mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147
Outcome: cited
The general principles concerning preliminary discovery were conveniently summarised by Hely J in St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147 at 153-154. An application for preliminary discovery under O 15A r 6 requires the Court to determine whether the applicant has reasonable cause to believe that it has a right to obtain relief from the prospective respondent. In making this determination, the Court need not make any findings of fact. Although the Court will require some evidence to conduct its objective assessment of the applicant's 'reasonable cause to believe', some things, such as the exact nature and significance of the evidence, may be left to surmise or conjecture: see John Holland Services Pty Ltd v Terranora Group Management Pty Ltd [2004] FCA 679 at [14] ; see also George v Rockett [1990] HCA 26 ; (1990) 170 CLR 104 at 115-116.
Case: Stewart v Miller (1979) 2 NSWLR 128
Outcome: considered
His Honour referred to the decision of Sheppard J in Stewart v Miller (1979) 2 NSWLR 128 (" Stewart "). That case concerned a rule of the Supreme Court of New South Wales relating to preliminary discovery, and does not appear to have enlivened the question of admissibility of evidence on preliminary discovery applications. His Honour's reasons do not address any arguments whether such an application would be final or interlocutory. Although his Honour observed that the application for preliminary discovery was of a final nature, his Honour did not give any reasons for his conclusion that the decision was final. In that case, his Honour was concerned with the question of the Court's jurisdiction to set aside an ex parte order which his Honour considered should not have been made 13 The other authority relied on by Lindgren J was John Fairfax &amp; Sons Ltd v Cojuangco [1988] HCA 54 ; (1988) 165 CLR 346 (" John Fairfax "). In that case, the High Court considered the same Supreme Court rule as that considered in Stewart in the context of a proposed defamation action in relation to what was known as the 'newspaper rule'; that is, the common law practice that courts would normally refuse to make an order which would compel a newspaper company to disclose its sources prior to commencement of an action. The Court said at 356: 'The newspaper rule is not capable of applying directly to proceedings under Pt 3 , r. 1. The respondent to an application ... is not, as such, a defendant in a defamation action. Such an application is not an interlocutory proceeding in such an action .' (Emphasis added.)
Case: Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No. 3) [2007] FCA 1567
Outcome: cited
An important decision in considering the nature of an application under O 15A is the decision of the Full Federal Court in Hooper v Kirella Pty Ltd [1999] FCA 1584 ; (1999) 96 FCR 1, in which the constitutional validity of O 15A was challenged on the ground that it did not give rise to a federal 'matter'. The argument raised on the challenge was that there is no federal 'matter' decided on an O 15A application because it does not finally determine a dispute. On this question, the Full Court decided that there was a 'matter' which established the jurisdiction of the Court to apply O 15A. Their Honours that the proceeding which would determine the rights of the parties was the substantive action in respect of which the preliminary discovery application was brought. The 'matter' was the underlying substantive claim, and not the ancillary application for preliminary discovery. Being ancillary, the preliminary discovery decision was deemed to be within the scope of the substantive 'matter'. This treatment of the preliminary discovery application provides support for the conclusion that, when determining whether a preliminary discovery application is interlocutory or final, it is the substantive rights of the parties in the prospective action to which attention must be directed when considering whether the determination finally resolves those rights. This is consistent with the view in the present case that, since preliminary discovery is ancillary in nature and part of the larger dispute, no substantive rights are finally determined until a decision is made in the contemplated substantive application. This conclusion is consistent with that of Graham J in Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No. 3) [2007] FCA 1567 at [70] .
Case: The Herald and Weekly Times Ltd v The Guide Dog Owners &amp; Friends Association [1990] VR 451
Outcome: considered
There are a number of other more recent decisions directly in point to the effect that applications for pre-action discovery under O 15A r 3 and O 15A r 6 are interlocutory and not final. In London Economics (Aust) Pty Ltd v Frontier Economics Pty Ltd [1999] FCA 932 at [19] (" London Economics "), Finkelstein J expressly disagreed with the reasoning of Lindgren J in Levis and referred to a number of decisions of intermediate appellate courts to which Lindgren J had not been referred and which held that applications under rules of courts equivalent of O 15A are interlocutory in nature. His Honour referred in particular to the decision of the Victorian Full Court in The Herald and Weekly Times Ltd v The Guide Dog Owners' and Friends' Association [1990] VR 451. In that case, O'Bryan J at 455 considered that an order for preliminary discovery was interlocutory because it did not finally determine the rights of the parties in the litigation. Marks J agreed that the order was interlocutory, and required leave to bring the appeal. His Honour reasoned at 461-462 that: '... the order was clearly interlocutory, not necessarily because there may technically be power to entertain an application to vary or vacate it, but because the rights of the respondents to the discovery sought have not yet been fully exercised. The order merely set in motion an investigation by examination of documents and persons whether certain information exists and if so, what it is. ... The order was merely the first step. It did not preclude further orders limiting or extending the scope of the investigation which the rule permits.'
Case: Waterhouse v Shelley [2007] FamCA 541
Outcome: cited
There are instances of s 190(3) being invoked. In Williams Advanced Materials Inc. v Target Technology Co. LLC (2004) 63 IPR 645 at 647-648, s 190(3)(b) was applied by Bennett J with some brief discussion of the provision. In Sony Entertainment (Australia) Limited v Smith 64 IPR 18 at 30, Jacobson J also applied the provision. The Family Court of Australia has on occasion, pursuant to its Practice Direction No. 2 of 2006, waived the rules of evidence in cases concerning custody of children: see Waterhouse v Shelley [2007] FamCA 541 ; Jakiemiec v Buckingham [2007] FamCA 542. The provision is discussed by Santow J in Edmunds-Jones Pty Ltd v Australian Women's Hockey Association Inc [1999] NSWSC 285 at [19] - [29] , where his Honour dispensed with the hearsay rule in order to admit evidence which " could rationally affect the assessment of the probability of the existence of a fact in issue " (see [9]).
Case: Williams Advanced Materials Inc. v Target Technology Co. LLC (2004) 63 IPR 645
Outcome: cited
There are instances of s 190(3) being invoked. In Williams Advanced Materials Inc. v Target Technology Co. LLC (2004) 63 IPR 645 at 647-648, s 190(3)(b) was applied by Bennett J with some brief discussion of the provision. In Sony Entertainment (Australia) Limited v Smith 64 IPR 18 at 30, Jacobson J also applied the provision. The Family Court of Australia has on occasion, pursuant to its Practice Direction No. 2 of 2006, waived the rules of evidence in cases concerning custody of children: see Waterhouse v Shelley [2007] FamCA 541 ; Jakiemiec v Buckingham [2007] FamCA 542. The provision is discussed by Santow J in Edmunds-Jones Pty Ltd v Australian Women's Hockey Association Inc [1999] NSWSC 285 at [19] - [29] , where his Honour dispensed with the hearsay rule in order to admit evidence which " could rationally affect the assessment of the probability of the existence of a fact in issue " (see [9]).
Case: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146
Outcome: discussed
Order 35A rule 3 (2)(c) of the Federal Court Rules is predicated upon an event of default of a kind prescribed in O 35A r 2(2), and contemplates that judgment may be given against a respondent for relief to which "the applicant appears entitled on the statement of claim" and which the Court is satisfied it has "power to grant". In determining the relief, O 35A permits regard to be had to the "face of the statement of claim"; no evidence need be adduced to prove the factual contentions; allegations of fact in the statement of claim are deemed admitted: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146 at [42] ; Wu v Avin Operations Pty Ltd [2006] FCA 36 at [57] ; Macquarie Bank Ltd v Seagle [2005] FCA 1239 ; (2005) 146 FCR 400. The findings set out at paragraphs 4(b) and 6(b) above constitute events of default pursuant to O 35A r 2(2)(b). The findings set out at paragraphs 5(b) and 7(b) above constitute events of default pursuant to O 35A r 2(2)(a).
Case: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665
Outcome: applied
To similar effect, Kiefel J's analysis of the effect of Order 35A, at first instance, in Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665 at [46], appears to assume implicitly that notice of the default judgment proceedings is not necessary unless the relief ultimately being sought is different to that expressed in the statement of claim. Her Honour indicated that the touchstone ought to be fairness in the conduct of litigation, with what is required potentially differing from case to case. 18 I have found that the eighty-third and ninety-second respondents have been served with the originating process and have made no, or no proper, effort, to respond to the Court's processes. No injustice would be occasioned by entering default judgment against them. 21 Older precedent reflects a certain reluctance to grant declaratory relief in the absence of facts found on evidence. Contemporary authority in this court reflects a strong disinclination to follow those earlier decisions. In Dataline , Kiefel J, reviewed much of that earlier authority. Her Honour observed at [57]-[59]: The question is whether declarations should be made on deemed admissions, given that there has been no adjudication by the court on the facts and the declarations may give the impression that there has. The power to grant declarations (s 21 Federal Court of Australia Act 1976 (Cth)) is unconfined. Order 35A itself imposes no constraints upon the relief sought. Refusals to make declarations in cases of default are based upon a practice, not a rule of law. The practice is one of long standing and might be seen as derived from views about litigation which pre-date more recent concerns expressed by the courts as to the costs of unnecessary litigation, the management of cases and efficiency overall. Views expressed in older cases may not take account of the increase in the use made of declaratory orders in developing areas of law which may involve matters of public interest (emphasis added). A caution with respect to the use of older authority is made in the White Book Service 2003 to the English Civil Procedure Rules 1998 (40.20.2). It may no longer be correct to have a practice which operates as a prohibition in every case of default and preferable to consider the circumstances pertaining to the particular case and the purpose and effect of the declaration ... Cases such as this, involving the protection of consumers, are of public interest. Declarations are often utilised in such cases to identify for the public what conduct constitutes a contravention and to make apparent that it is considered to warrant an order recognising its seriousness (emphasis added). It is however important that there be no misunderstanding as to the basis upon which they are made. This could be overcome by a statement, preceding the declarations, that orders are made 'upon admissions which [the respondent in question] is taken to have made, consequent upon non-compliance with orders of the court'.
Case: Bank of Kuwait and the Middle East v The Ship MV "Mawashi Al Gasseem" (No 2) [2007] FCA 815
Outcome: applied
To similar effect is the judgment of Mansfield J in Bank of Kuwait and the Middle East v The Ship MV "Mawashi Al Gasseem" (No 2) [2007] FCA 815 , which was, like Dataline , a case where judgment was given on the basis of deemed admissions under O 35A. Having noted the historical reluctance to base declarations on admissions, his Honour went on to approve and adopt the statements of Kiefel J in Dataline and to exercise his discretion to make declarations on the basis of those deemed admissions, at [13]-[16]. 23 Accordingly I propose to make the declarations sought, predicated by a statement that they are made on the basis of deemed admissions.
Case: British American Tobacco Australasia Limited v The Person Identified by the Australian Customs Service as "Gory Sabar" [2007] FCA 1417
Outcome: referred to
In British American Tobacco Australasia Limited v The Person Identified by the Australian Customs Service as "Gory Sabar" [2007] FCA 1417 , an application was made for judgment under Order 35A. It appears that this application may have been made by a notice of motion, which was made returnable instanter , and Stone J made orders 'pursuant to Order 19 rule 2(2)(d) that service of this Notice of Motion be dispensed with'. These orders were made despite the fact that neither of the respondents had filed a notice of appearance, or had appeared before the Court at any stage. 16 Stone J went on to find that the respondents were in default under O 35A r 2(2)(a) and 2(2)(c), and proceeded to enter judgment against them, notwithstanding that there was no evidence that they were aware of the hearing seeking default judgment. Notice of that hearing had not been personally served, as Order 19, r 4 would have required, if not dispensed with.
Case: Macquarie Bank Ltd v Seagle [2005] FCA 1239 ; (2005) 146 FCR 400
Outcome: cited
Order 35A rule 3 (2)(c) of the Federal Court Rules is predicated upon an event of default of a kind prescribed in O 35A r 2(2), and contemplates that judgment may be given against a respondent for relief to which "the applicant appears entitled on the statement of claim" and which the Court is satisfied it has "power to grant". In determining the relief, O 35A permits regard to be had to the "face of the statement of claim"; no evidence need be adduced to prove the factual contentions; allegations of fact in the statement of claim are deemed admitted: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146 at [42] ; Wu v Avin Operations Pty Ltd [2006] FCA 36 at [57] ; Macquarie Bank Ltd v Seagle [2005] FCA 1239 ; (2005) 146 FCR 400. The findings set out at paragraphs 4(b) and 6(b) above constitute events of default pursuant to O 35A r 2(2)(b). The findings set out at paragraphs 5(b) and 7(b) above constitute events of default pursuant to O 35A r 2(2)(a).
Case: Wu v Avin Operations Pty Ltd [2006] FCA 36
Outcome: cited
Order 35A rule 3 (2)(c) of the Federal Court Rules is predicated upon an event of default of a kind prescribed in O 35A r 2(2), and contemplates that judgment may be given against a respondent for relief to which "the applicant appears entitled on the statement of claim" and which the Court is satisfied it has "power to grant". In determining the relief, O 35A permits regard to be had to the "face of the statement of claim"; no evidence need be adduced to prove the factual contentions; allegations of fact in the statement of claim are deemed admitted: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146 at [42] ; Wu v Avin Operations Pty Ltd [2006] FCA 36 at [57] ; Macquarie Bank Ltd v Seagle [2005] FCA 1239 ; (2005) 146 FCR 400. The findings set out at paragraphs 4(b) and 6(b) above constitute events of default pursuant to O 35A r 2(2)(b). The findings set out at paragraphs 5(b) and 7(b) above constitute events of default pursuant to O 35A r 2(2)(a).
Case: Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: cited
The appellant did not argue this ground. Further, neither the Tribunal nor Scarlett FM considered the principles of non-refoulement for the reason that it had not been determined that the appellant satisfied the criterion for refugee status under the Act. Accordingly, this claim cannot succeed. If, by virtue of it, the appellant is seeking a review on the merits, this is not appropriate in judicial review. The role of the Court in an appeal such as this was stated succinctly by Mason J (as he then was) in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40 ; (1986) 162 CLR 24 at 40- 41, where His Honour said: 'The limited role of a Court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of a Court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Wednesbury Corporation [41].' 19 Scarlett FM did not rely upon or refer to such authority in reaching his decision. Further there is no basis for such submission. The decision only becomes relevant in circumstances in which an appellant has nominated a migration agent or other adviser. This was not the case in these proceedings, and the decision in Makhu is irrelevant.
Case: Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142
Outcome: referred to
The Court observes that there is no statutory obligation upon the Tribunal to provide legal advice or to refer applicants to a migration service. Further, Scarlett FM noted that the appellant confirmed that she had sought and received advice from a solicitor on the Tribunal's Legal Advice Panel. The appellant retained Mr Deng as her legal and migration adviser, and is critical of the service she was provided in relation to her migration matters. However, misconduct on the part of a migration agent does not give rise to a reviewable error of law: see Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142. 25 In light of the extension of time granted to the appellant to enable her to prepare further written submissions, and the fact that she has had since at least 4 October 2006, the date on which she was informed of the hearing date of her appeal, to avail herself of legal advice, I do not consider a further extension of time or another hearing is warranted. 26 I can find no error in the decision of Scarlett FM or the Tribunal, and accordingly the appeal must be dismissed.
Case: Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658
Outcome: cited
The respondent in the proceeding ("ANZ") seeks by motion an order that the statement of claim of the applicant ("ACCC") be struck out pursuant to Order 11, r 16(b) of the Federal Court Rules on the footing that the pleading has a tendency to cause prejudice or embarrassment as it fails to plead as required by Order 11, r 2(a) material facts necessary for the purpose of formulating a complete cause of action said to arise under ss 45(2)(a)(ii) and 45 (2)(b)(ii) of the Trade Practices Act 1974 (Cth) ("the Act "), having regard to s 45A of the Act . Thus, inconsistent with established principle, the pleading fails to define, it is said, the issues with sufficient clarity to enable the respondent to understand and have the opportunity to meet the case made against it and further, the pleading asserts conclusions unsupported by material facts. As to those principles, see: Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 at 664; Mitanis v Pioneer Concrete (Vic) Pty Ltd [1997] ATPR 41-591 at 44, 151; Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712-713; and Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228 ; (1985) 7 FCR 109 at 114-5.
Case: Mitanis v Pioneer Concrete (Vic) Pty Ltd [1997] ATPR 41-591
Outcome: cited
The respondent in the proceeding ("ANZ") seeks by motion an order that the statement of claim of the applicant ("ACCC") be struck out pursuant to Order 11, r 16(b) of the Federal Court Rules on the footing that the pleading has a tendency to cause prejudice or embarrassment as it fails to plead as required by Order 11, r 2(a) material facts necessary for the purpose of formulating a complete cause of action said to arise under ss 45(2)(a)(ii) and 45 (2)(b)(ii) of the Trade Practices Act 1974 (Cth) ("the Act "), having regard to s 45A of the Act . Thus, inconsistent with established principle, the pleading fails to define, it is said, the issues with sufficient clarity to enable the respondent to understand and have the opportunity to meet the case made against it and further, the pleading asserts conclusions unsupported by material facts. As to those principles, see: Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 at 664; Mitanis v Pioneer Concrete (Vic) Pty Ltd [1997] ATPR 41-591 at 44, 151; Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712-713; and Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228 ; (1985) 7 FCR 109 at 114-5.
Case: Bruce v Odhams Press Ltd [1936] 1 KB 697
Outcome: cited
The respondent in the proceeding ("ANZ") seeks by motion an order that the statement of claim of the applicant ("ACCC") be struck out pursuant to Order 11, r 16(b) of the Federal Court Rules on the footing that the pleading has a tendency to cause prejudice or embarrassment as it fails to plead as required by Order 11, r 2(a) material facts necessary for the purpose of formulating a complete cause of action said to arise under ss 45(2)(a)(ii) and 45 (2)(b)(ii) of the Trade Practices Act 1974 (Cth) ("the Act "), having regard to s 45A of the Act . Thus, inconsistent with established principle, the pleading fails to define, it is said, the issues with sufficient clarity to enable the respondent to understand and have the opportunity to meet the case made against it and further, the pleading asserts conclusions unsupported by material facts. As to those principles, see: Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 at 664; Mitanis v Pioneer Concrete (Vic) Pty Ltd [1997] ATPR 41-591 at 44, 151; Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712-713; and Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228 ; (1985) 7 FCR 109 at 114-5.
Case: Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228 ; (1985) 7 FCR 109
Outcome: cited
The respondent in the proceeding ("ANZ") seeks by motion an order that the statement of claim of the applicant ("ACCC") be struck out pursuant to Order 11, r 16(b) of the Federal Court Rules on the footing that the pleading has a tendency to cause prejudice or embarrassment as it fails to plead as required by Order 11, r 2(a) material facts necessary for the purpose of formulating a complete cause of action said to arise under ss 45(2)(a)(ii) and 45 (2)(b)(ii) of the Trade Practices Act 1974 (Cth) ("the Act "), having regard to s 45A of the Act . Thus, inconsistent with established principle, the pleading fails to define, it is said, the issues with sufficient clarity to enable the respondent to understand and have the opportunity to meet the case made against it and further, the pleading asserts conclusions unsupported by material facts. As to those principles, see: Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 at 664; Mitanis v Pioneer Concrete (Vic) Pty Ltd [1997] ATPR 41-591 at 44, 151; Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712-713; and Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228 ; (1985) 7 FCR 109 at 114-5.