mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Smallacombe v Lockyer Investment Co Pty Ltd (1993) 42 FCR 97
Outcome: cited
In their letter of 15 March 2006, which was headed "without prejudice save as to costs", the solicitors for Mr Rambaldi and Irlmond made an offer to resolve the proceeding and invoked Calderbank v Calderbank [1975] 3 All ER 333 (" Calderbank "). Under the Calderbank principle, costs may be awarded on an indemnity basis where a proceeding is unduly prolonged by an imprudent refusal of an offer of compromise: see Colgate-Palmolive at 233 per Sheppard J. A party may rely on a Calderbank offer notwithstanding that the party has not complied with the procedure set out in O 23 of the Federal Court Rules : see, for example, Smallacombe v Lockyer Investment Co Pty Ltd (1993) 42 FCR 97 at 101 per Spender J; Alpine Hardwoods (Aust) Pty Ltd v Hardys Pty Ltd (No 2) (2002) 190 ALR 121 at 124-125 per Weinberg J; and Henderson v Amadio Pty Ltd (No 3) [1996] FCA 184 per Heerey J.
Case: Vasram v AMP Life Limited [2002] FCA 1286
Outcome: referred to
Mr Rambaldi's submissions did not specifically invoke the principle in Calderbank . There may be a number of reasons for this. First, it may be that the offer did not amount to a genuine offer of compromise. The offer, which was stated to be open until noon on 16 March 2006, was made on the basis that Mr Spalla discontinue the proceeding as against Mr Rambaldi and Irlmond and provide full releases to them; that he also make appropriate arrangements with the first to eighth respondents (as they then were) to discontinue; that Mr Spalla, Mr Rambaldi and Irlmond each bear their own costs of the proceeding; and that there be no order as to costs including no order as to any reserved costs. In Vasram v AMP Life Limited [2002] FCA 1286 , Stone J held (at [12]) that where a respondent invited an applicant to discontinue with no order being made as to costs, the invitation could not be regarded as a Calderbank offer: see also Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (No 2) (2002) 201 ALR 618 at [59]-[60] per Hill J. In any event, even if the offer was in the nature of a Calderbank offer, the rejection of the offer would be only one factor to be taken into account in the Court's exercise of discretion. Further, in order for there to be an indemnity costs order, the respondents would need to show that Mr Spalla's rejection of their offer was so unreasonable as to justify indemnity costs: see, for example, Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2) (2004) 212 ALR 281 at 287-290 per Hely J. As I have said, Mr Rambaldi did not seek to rely on the Calderbank principle and to discharge this onus.
Case: Ackers v Austcorp International Ltd [2009] FCA 432
Outcome: related
matter has been before me on a number of occasions in connection with the appellant's attempts to overturn the decision of Rares J given on 1 May 2009 ( Ackers v Austcorp International Ltd [2009] FCA 432) which found reflection in orders made by his Honour on 8 May 2009. The nature and timing of the applications before me provide some of the context for my consideration of the present application. I shall briefly refer to some matters of history later in these Reasons. On 21 September 2009, Ms Monnox, who is the solicitor for the respondents, telephoned Mr Tzovaras, who is the solicitor for the appellant, and inquired of him as to whether the security for costs ordered by me was going to be provided and, if so, when. Mr Tzovaras' response was noncommittal. In effect, he did not inform Ms Monnox of any concrete proposal concerning the provision of the security. On 22 September 2009, Ms Monnox followed up Mr Tzovaras who was at that time unavailable. She left a message for him to contact her urgently. Mr Tzovaras did not respond. Later that day, Ms Monnox wrote a letter to Mr Tzovaras in which she pointed out that the security had not been provided as ordered. She drew Mr Tzovaras' attention to the fact that her clients' undertakings not to enforce the judgment debts were now extinguished and that the respondents proposed to issue creditor's statutory demands to the appellant in respect of the judgment debts which each of the respondents had against the appellant. In that letter she also foreshadowed an application that the appeal be dismissed for want of prosecution. In that letter, Ms Monnox made very clear that she was instructed to take steps to have the appeal dismissed. The appellant originally sought leave to appeal from the decision of Rares J because it believed that that decision was not a final judgment. After argument, I made orders on 22 July 2009 granting leave to appeal from the decision of Rares J should that leave be necessary and extending the time within which a Notice of Appeal could be filed in the event that, as I thought, the judgment of Rares J was in fact a final judgment (see Austcorp International Limited v Owers [2009] FCA 774).
Case: Austcorp International Limited v Owers [2009] FCA 774
Outcome: related
appellant originally sought leave to appeal from the decision of Rares J because it believed that that decision was not a final judgment. After argument, I made orders on 22 July 2009 granting leave to appeal from the decision of Rares J should that leave be necessary and extending the time within which a Notice of Appeal could be filed in the event that, as I thought, the judgment of Rares J was in fact a final judgment (see Austcorp International Limited v Owers [2009] FCA 774).
Case: Bell Wholesale Co Ltd v Gates Export [1984] FCA 34 ; (1984) 2 FCR 1
Outcome: cited
submitted by the solicitor for the respondents, the discretion which the Court might exercise to order security under s 56(1) of the Federal Court Act is broad and unfettered but must be exercised judicially ( Bell Wholesale Co Ltd v Gates Export (1984) 2 FCR 1 at 3 4). A similar approach should be taken to the power to dismiss an appeal pursuant to s 56(4). The Court should have regard to all of the circumstances of the case in exercising its discretion.
Case: Truth about Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2001] FCA 1603
Outcome: cited
have already referred to the relevant circumstances in some detail, and it seems to me that, in the absence of any attempt at all by the appellant to explain itself or to provide assistance to the Court as to when security might be provided, the only appropriate course is for me to dismiss the appeal pursuant to s 56(4) of the Federal Court Act. As Hely J said in Truth about Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2001] FCA 1603: It is a serious thing to terminate proceedings when there has not been a hearing on the merits. But in circumstances where there has been an unexplained failure to comply with an order of the Court, which itself was made in the circumstances which I have outlined, it seems to me that the proper exercise of the Court's discretion is to make the orders sought. Accordingly, pursuant to s 56(4) of the Federal Court Act, I dismiss the appeal and I order the appellant to pay the costs of the respondents of and incidental to the Notice of Motion filed by the respondents on 23 September 2009 and of the appeal. I also order that, to the extent necessary, the respondents be released from the undertaking given to the Court and noted in paragraph 8 in the orders of the Court made on 12 August 2009. I should add that my present view is that that undertaking became spent according to its terms when the appellant failed to provide the security for the respondents' costs of the appeal which it had been ordered to provide, that is to say, at 4.00 pm on 21 September 2009. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate: Dated: 1 October 2009 Solicitor for the Appellant: Mr D Riedstra (Agent for Tzovaras Legal) Solicitor for the Respondents: Ms C Monnox of Maurice Blackburn Pty Limited Date of Hearing: 30 September 2009 Date of Judgment: 30 September 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1112.html
Case: Joyce v Director of Public Prosecutions [1946] AC 347
Outcome: referred to
It is at the next stage that the appellants' argument breaks down. In my view, the possession and regular use by the husband of a FYROM passport provided some evidence that he was, as the Tribunal found, a national of that country. At common law, the issue of a passport involved an exercise of the royal prerogative by which the protection of the Crown was extended to a citizen of the country in whose name the passport was issued who travelled abroad: see Joyce v Director of Public Prosecutions [1946] AC 347 at 369-70; and Minister for Immigration and Ethnic Affairs v Petrovski (1997) 73 FCR 303 at 307. Under ss 7 and 8 of the Australian Passports Act 2005 (Cth), an Australia passport can only be granted to an Australian citizen. The same appears to be generally true of other countries. The issue of a passport does not, of itself, amount to a grant of citizenship. It may not amount to conclusive evidence of nationality, but it seems to me to be at least some evidence of that fact.
Case: Minister for Immigration and Ethnic Affairs v Petrovski (1997) 73 FCR 303
Outcome: referred to
It is at the next stage that the appellants' argument breaks down. In my view, the possession and regular use by the husband of a FYROM passport provided some evidence that he was, as the Tribunal found, a national of that country. At common law, the issue of a passport involved an exercise of the royal prerogative by which the protection of the Crown was extended to a citizen of the country in whose name the passport was issued who travelled abroad: see Joyce v Director of Public Prosecutions [1946] AC 347 at 369-70; and Minister for Immigration and Ethnic Affairs v Petrovski (1997) 73 FCR 303 at 307. Under ss 7 and 8 of the Australian Passports Act 2005 (Cth), an Australia passport can only be granted to an Australian citizen. The same appears to be generally true of other countries. The issue of a passport does not, of itself, amount to a grant of citizenship. It may not amount to conclusive evidence of nationality, but it seems to me to be at least some evidence of that fact.
Case: Nolan v Minister for Immigration and Ethnic Affairs [1988] HCA 45 ; (1988) 165 CLR 178
Outcome: referred to
Of course, while remaining constitutional monarchies, both Australia and the United Kingdom have by statute adopted the concept of "citizenship". See Nationality and Citizenship Act 1948 (Cth) (now titled the Australian Citizenship Act 1948 (Cth)), and see also the British Nationality Act 1981 (UK). The notions of citizenship and nationality were considered by the High Court in Nolan v Minister for Immigration and Ethnic Affairs [1988] HCA 45 ; (1988) 165 CLR 178 at 186, and in Re Patterson; ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391 at 467 (per Gummow and Hayne JJ).
Case: Nottebohm Case (Liechtenstein v Guatemala) (Second Phase) [1955] ICJ Rep 4
Outcome: referred to
Questions of nationality are generally determined in accordance with the municipal laws of the State concerned: Convention on Certain Questions Relating to Nationality , opened for signature 12 April 1930, LNTS 179 89, arts 1 and 2 (entered into force 1 July 1937, ratified by Australia 10 November 1937) and Tji at 513-14. There are, however, limits on the extent to which such municipal laws will be recognised under international law: See Nottebohm Case (Liechtenstein v Guatemala) [1955] ICJ 4 at 20-23; R v Burgess; ex parte Henry [1936] HCA 52 ; (1936) 55 CLR 608 at 649 per Latham CJ, and 673 per Dixon J; and Sykes v Cleary [1992] HCA 60 ; (1992) 176 CLR 77 at 105-6 per Mason CJ, Toohey and McHugh JJ, 112 per Brennan J, 127 per Deane J, 131 per Dawson J, and 135 per Gaudron J.
Case: Oppenheimer v Cattermole (Inspector of Taxes) [1976] AC 249
Outcome: referred to
Mr Gibson, counsel for the appellants, developed these submissions in the course of a helpful argument. He contended that at common law, and under customary international law, a person's nationality had to be determined by the municipal law of the State in relation to which nationality was claimed. He cited Tji v Minister for Immigration and Ethnic Affairs (1998) 55 ALD 508 at 513-4 per Finkelstein J, and Oppenheimer v Cattermole (Inspector of Taxes) [1976] AC 249 as authority for this proposition. He next submitted that a distinction should be drawn between what Finkelstein J in Tji referred to as "original acquisition of nationality", and what his Honour described as "derivative acquisition of nationality": see Tji at 516. In international law, generally speaking, original acquisition of nationality, that is nationality acquired at birth, was based on descent from a national, or birth within the territory of a State, or both. Derivative acquisition of nationality (which Mr Gibson contended was at issue in this case) could take place in one of only two ways. These were through naturalisation (in consequence of an application for citizenship), or by operation of law (for example, through the emergence of a new State, and principles of succession). See generally the discussion of these principles in Tji at 516.
Case: R v Burgess; ex parte Henry [1936] HCA 52 ; (1936) 55 CLR 608
Outcome: referred to
Questions of nationality are generally determined in accordance with the municipal laws of the State concerned: Convention on Certain Questions Relating to Nationality , opened for signature 12 April 1930, LNTS 179 89, arts 1 and 2 (entered into force 1 July 1937, ratified by Australia 10 November 1937) and Tji at 513-14. There are, however, limits on the extent to which such municipal laws will be recognised under international law: See Nottebohm Case (Liechtenstein v Guatemala) [1955] ICJ 4 at 20-23; R v Burgess; ex parte Henry [1936] HCA 52 ; (1936) 55 CLR 608 at 649 per Latham CJ, and 673 per Dixon J; and Sykes v Cleary [1992] HCA 60 ; (1992) 176 CLR 77 at 105-6 per Mason CJ, Toohey and McHugh JJ, 112 per Brennan J, 127 per Deane J, 131 per Dawson J, and 135 per Gaudron J.
Case: Re Patterson; ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391
Outcome: referred to
Of course, while remaining constitutional monarchies, both Australia and the United Kingdom have by statute adopted the concept of "citizenship". See Nationality and Citizenship Act 1948 (Cth) (now titled the Australian Citizenship Act 1948 (Cth)), and see also the British Nationality Act 1981 (UK). The notions of citizenship and nationality were considered by the High Court in Nolan v Minister for Immigration and Ethnic Affairs [1988] HCA 45 ; (1988) 165 CLR 178 at 186, and in Re Patterson; ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391 at 467 (per Gummow and Hayne JJ).
Case: SFGB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 231
Outcome: referred to
Mr Horan relied upon the following observation of the Full Court regarding the "no evidence ground" in SFGB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 231 at [20] : "On the other hand, if there is sufficient evidence or other information before the Tribunal on which it could reach the conclusion it did then it is for the Tribunal to determine what weight it gives to that evidence. Indeed, unless the relevant fact can be identified as a 'jurisdictional fact', there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35-36. It is for the Tribunal to determine the merit of the claim. The line between merit review and jurisdictional error may not be a 'bright line', but it is nevertheless an essential one: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272." 46 Mr Horan noted that Mr Gibson had not submitted that the question of the husband's nationality gave rise to a "jurisdictional fact". It was clear that it did not. 47 Mr Horan therefore submitted that the appellants' case, taken at its highest, amounted to nothing more than an assertion that the Tribunal's finding that the husband was a national of FYROM was factually incorrect. However, consistently with SFGB and numerous other authorities, even if factual error of that kind could be demonstrated, it would not give rise to jurisdictional error. And the second limb of Mr Gibson's argument, namely his submission that the Tribunal had been required to refer to direct evidence only of the relevant laws of FYROM, was unsupported by any authority, and could not be sustained. 48 It should be noted, at the outset, that the concept of "nationality", which is central to this appeal, is a term somewhat lacking in precision. It is generally used to signify the legal connection between an individual and a State. The primary relevance of nationality under international law is to provide a basis upon which a State can exercise jurisdiction over persons. However, the term is employed in different ways in international law, and domestic law.
Case: Sykes v Cleary [1992] HCA 60 ; (1992) 176 CLR 77
Outcome: referred to
Questions of nationality are generally determined in accordance with the municipal laws of the State concerned: Convention on Certain Questions Relating to Nationality , opened for signature 12 April 1930, LNTS 179 89, arts 1 and 2 (entered into force 1 July 1937, ratified by Australia 10 November 1937) and Tji at 513-14. There are, however, limits on the extent to which such municipal laws will be recognised under international law: See Nottebohm Case (Liechtenstein v Guatemala) [1955] ICJ 4 at 20-23; R v Burgess; ex parte Henry [1936] HCA 52 ; (1936) 55 CLR 608 at 649 per Latham CJ, and 673 per Dixon J; and Sykes v Cleary [1992] HCA 60 ; (1992) 176 CLR 77 at 105-6 per Mason CJ, Toohey and McHugh JJ, 112 per Brennan J, 127 per Deane J, 131 per Dawson J, and 135 per Gaudron J. 50 One of the terms that is often used synonymously with "nationality" is "citizenship". It has become usual to employ the term "citizen" instead of "subject" in States that adopt a republican form of government. In Sykes v Cleary , Brennan J observed at 109, in relation to the expression "subject or citizen of a foreign power" in s 44(i) of the Commonwealth Constitution , "subject being a term appropriate when the foreign power is a monarch of feudal origin; citizen when the foreign power is a republic."
Case: Tji v Minister for Immigration and Ethnic Affairs (1998) 55 ALD 508
Outcome: referred to
Mr Gibson, counsel for the appellants, developed these submissions in the course of a helpful argument. He contended that at common law, and under customary international law, a person's nationality had to be determined by the municipal law of the State in relation to which nationality was claimed. He cited Tji v Minister for Immigration and Ethnic Affairs (1998) 55 ALD 508 at 513-4 per Finkelstein J, and Oppenheimer v Cattermole (Inspector of Taxes) [1976] AC 249 as authority for this proposition. He next submitted that a distinction should be drawn between what Finkelstein J in Tji referred to as "original acquisition of nationality", and what his Honour described as "derivative acquisition of nationality": see Tji at 516. In international law, generally speaking, original acquisition of nationality, that is nationality acquired at birth, was based on descent from a national, or birth within the territory of a State, or both. Derivative acquisition of nationality (which Mr Gibson contended was at issue in this case) could take place in one of only two ways. These were through naturalisation (in consequence of an application for citizenship), or by operation of law (for example, through the emergence of a new State, and principles of succession). See generally the discussion of these principles in Tji at 516. 49 Questions of nationality are generally determined in accordance with the municipal laws of the State concerned: Convention on Certain Questions Relating to Nationality , opened for signature 12 April 1930, LNTS 179 89, arts 1 and 2 (entered into force 1 July 1937, ratified by Australia 10 November 1937) and Tji at 513-14. There are, however, limits on the extent to which such municipal laws will be recognised under international law: See Nottebohm Case (Liechtenstein v Guatemala) [1955] ICJ 4 at 20-23; R v Burgess; ex parte Henry [1936] HCA 52 ; (1936) 55 CLR 608 at 649 per Latham CJ, and 673 per Dixon J; and Sykes v Cleary [1992] HCA 60 ; (1992) 176 CLR 77 at 105-6 per Mason CJ, Toohey and McHugh JJ, 112 per Brennan J, 127 per Deane J, 131 per Dawson J, and 135 per Gaudron J.
Case: VHAJ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 186
Outcome: cited
Mr Gibson noted that the Federal Magistrate had relied upon the judgment of Ryan J in Applicants in V 722 of 2000 v Minister for Immigration &amp; Multicultural Affairs [2002] FCA 1059 (" Applicants V 722 ") in dealing with the ascertainment of foreign law. His Honour's approach was approved, on appeal, by the Full Court in VHAJ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 186.
Case: Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd [2000] WASCA 27 ; (2000) 22 WAR 101 
Outcome: applied
Whether the parties to an instrument intend to enter into a contract binding at law in the terms of the instrument is a question of fact to be determined objectively: Thompson v White &amp; Ors [2006] NSWCA 350 ; (2007) NSW Conv R 56-171 at [99] , [100] per Tobias JA (Ipp and McColl JJA agreeing). In Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd [2000] WASCA 27 ; (2000) 22 WAR 101 , Ipp J (as he then was) referred to the qualities or characteristics of 'completeness' and 'certainty' of the terms of the instrument in question, saying at [23]: 'Where some terms are uncertain or where terms which one would expect to be in a contract of the kind entered into are missing, inferences may be drawn that the parties lacked the requisite intention to contract.' Earlier, his Honour had said at [23]: 'Thus, in dealing with the overall submission, it is not possible to divorce issues of completeness and uncertainty from the intention to contract.' 132 In undertaking the task of determining, objectively, what the parties' intention was, the Court may have regard to all the relevant circumstances. 'Intention' in this sense means intention to contract, not what the parties intended by the terms of the contract. The relevant circumstances may include prior negotiations or subsequent conduct, although direct expressions of intent made after the contract was arrived at, are not admissible: Bramble Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 at [26] per Heydon JA; Anaconda Nickel at [26]; Thompson v White at [100].