mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12
Outcome: cited
The Tribunal is bound to take into account the considerations set out in reg 1.15A(3): see Nassouh v Minister for Immigration and Multicultural Affairs [2000] FCA 788 , cited with approval in Zhang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 30 (" Zhang ") at [15] per Moore, Mansfield and Dowsett JJ. Failure to do so will amount to jurisdictional error: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at 24 per Gummow and Hayne JJ. The Full Court said in Zhang at [14], where an issue arose as to whether the Tribunal had considered the factors in reg 1.15A(3)(c): "The reasons of the Tribunal are not to be read with an eye attuned to the ready perception of error: Minister for Immigration and Ethnic Affairs v Wu Shal Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272 and 291. On the other hand, it is important to review the Tribunal's reasons to be satisfied that the Tribunal has in fact had regard to the matters which it must address. The routine citation of statutory provisions or authorities will not necessarily demonstrate that regard."
Case: Davis v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 686
Outcome: cited
The Tribunal made no finding about "any joint responsibility for care and support" of a child, of the kind that might result from a consideration of this particular matter. It does not, however, necessarily follow from this that the Tribunal did not address this specific matter, although the omission may support such a conclusion. As Dowsett J said in Davis v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 686 at [35] , reg 1.15A(3) does not require the Tribunal to make specific findings concerning the matters to which it refers. Whether the omission is indicative of jurisdictional error depends very largely on the circumstances of each case.
Case: State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146
Outcome: cited
It is common practice in this Court, as has already been pointed out, for Counsel to orally address the Court by way of closing submissions at the conclusion of evidence, after which some judges require written submissions. Although it is true that the respondents have already filed their written submissions in accordance with my directions, and that I have had the opportunity to read them, any potential disadvantage or unfairness to the applicants from the fact that I have not read their submissions in advance (which is due to the failure of the applicants to file either submissions or a written outline) can be offset by a detailed and comprehensive oral address by their Counsel today, and by the subsequent filing of written submissions. In this way, in my view, justice can be done to the applicant in line with comments of the High Court in State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146. Where I do agree with Mr Perry is in relation to the importance of hearing submissions from the applicants in this case. It is their case, and their case which they have to prove. 23 In the circumstances, notwithstanding their breach of my orders in relation to written submissions, and the concession by Mr Perry that the applicants have even now not completed written submissions (despite having had almost three weeks to do so), I am prepared in the interests of justice to grant leave to the applicants to file and serve written submissions by 9.30 am tomorrow 6 June 2007. 24 I also grant leave to the respondents to file and serve any written submissions in reply by 4.00 pm 13 June 2007.
Case: BHP Trading Asia Ltd v Oceaname Shipping Ltd (1996) 67 FCR 211
Outcome: applied
The House of Lords held in The Raphaela S [2005] 2 AC 423 that a straight bill was "a bill of lading or any similar document of title" because it was a document of title within the meaning and for the purposes of Art I(b) of the Hague-Visby Rules: The Raphaela S [2005] 2 AC at 450 [22] per Lord Bingham, 458 [46] per Lord Steyn, 460-461 [57], 465 [70] and 466 [78] per Lord Rodger of Earlsferry, 451 [26] per Lord Nicholls of Birkenhead and 466 [79] per Lord Brown of Eaton-under-Heywood agreeing. And in BHP Trading Asia Ltd v Oceaname Shipping Ltd (1996) 67 FCR 211 at 222E-F, 223E Hill J appeared to recognise that a straight bill of lading was a document of title giving the right to call for delivery of the cargo at the port of destination.
Case: El Greco Australia Pty Limited v Mediterranean Shipping Company SA [2004] FCAFC 202 ; (2004) 140 FCR 296
Outcome: cited
The protection offered to a carrier who delivers cargo on production of the bill of lading is the result of centuries of mercantile practice and the development of the law merchant. The usual terms of a bill of lading expressly provide that, on production of an original, the others will be void and the terms of the contract of carriage embodied in the bill will be accomplished. As Lord Bingham of Cornhill stated in JI MacWilliam Co Inc v Mediterranean Shipping Co SA ("The Raphaela S") [2005] 2 AC 423 at 443F-G [4(6)] this endorsement is in the "time honoured form" of a bill of lading (a description he noted had been used by Lord Phillimore over 80 years before in The Malborough Hill v Alex Cowan &amp; Sons Ltd [1921] 1 AC 444, 453). Lord Bingham referred to the decision of the Full Court of this Court in El Greco (Australia) Pty Ltd v Mediterranean Shipping Company SA [2004] FCAFC 202 ; (2004) 140 FCR 296 at 374; [2004] 2 Lloyd's Rep 537 at 593 which reproduced the front of a bill as an example of the now standardised wording of this important mercantile instrument (which, as Lord Bingham said, could have immaterial differences of wording).
Case: Hilditch Pty Ltd v Dorval Dauin KK (No 2) (2007) 245 ALR 125
Outcome: cited
In The Raphaela S [2005] 2 AC 423 the House of Lords held that a straight bill of lading required delivery of the cargo by the master in the same way as a negotiable bill. As Lord Bingham said ( The Raphaela S [2005] 2 AC at 444G-H [6]; see too at 457-458 [45] per Lord Steyn; see also my judgment in Hilditch Pty Ltd v Dorval Dauin KK (No 2) (2007) 245 ALR 125 at 133 [25]-[31]): "... the shipper will not wish to part with an original bill to the consignee or buyer until that party has paid, and requiring production of the bill to obtain delivery is the most effective way of ensuring that a consignee or buyer who has not paid cannot obtain delivery. In this case, therefore, as in the case of an order bill, the bill is 'a key which in the hands of a rightful owner is intended to unlock the door of the warehouse, floating or fixed, in which the goods may chance to be': Sanders Bros v Maclean &amp; Co 11 QBD 327 , 341, per Bowen LJ."
Case: Neilson v Overseas Projects Corp [2005] HCA 54 ; (2005) 223 CLR 331
Outcome: cited
I am of opinion that the same result must follow here. There is no evidence of the provisions on the reverse of the bills of lading for the cargo held by the sheriff. There is also no evidence that India is a party to the Hague Rules or other international conventions referred to in the Carriage of Goods by Sea Act 1991 (Cth). (India appears to have enacted similar provisions to the Hague Rules in The Indian Carriage of Goods by Sea Act 1925 (India) and to have included in the Schedule to that Act Rules Relating to Bills of Lading containing a similar definition of a contract of carriage in Art I(b) of the Hague-Visby Rules.) For present purposes I assume that Indian law is the same as Australian law in accordance with the presumption that foreign law is the same as that of the law of the forum ( lex fori ): Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54 ; (2005) 223 CLR 331 at 343 [16] per McHugh J, 370 [115], 372 [125] per Gummow and Hayne JJ, 411 [249] per Callinan J and 420 [275] per Heydon J, cf the dissenting view of Kirby J at 396 [202] and Cross on Evidence (7 th Aust ed, Butterworths, 2004) at [41005]. 19 The amended Hague Rules in Schedule 1A of the Carriage of Goods by Sea Act 1991 apply by force of Arts 10(2) and (3) to this cargo unless the original Hague Rules, (referred to in the Act as the "Brussels Convention" ) the Hague-Visby Rules, the SDR protocol or the Hamburg Rules apply by agreement or law. There is no evidence of any provision that ousts the application of the amended Hague Rules. 20 On the material before me, the bills of lading here are documents within the meaning of a "sea carriage document" in the amended Hague Rules. That definition includes both "a bill of lading that, by law, is not negotiable" (Art 1(1)(g)(iii)) and a "non-negotiable document ... that either contains or evidences a contract of carriage of goods by sea": (Art 1(1)(g)(iv)).
Case: The Duke of Yare (unreported) 10 April 1997 ARR-RechtB Rotterdam
Outcome: cited
The House of Lords followed decisions, that straight bills of lading were documents of title, given earlier by the Court of Appeal of Singapore in APL Co Pte Ltd v Voss Peer [2002] 4 SLR 481 at [55]; [2002] SGCA 41 ; reported sub nom Voss v APL Co Pte Ltd [2002] 2 Lloyd's Rep 707, the Court of Appeal of Rennes, France in The MSC Magallanes (2002) 631 DMF 952 and a Dutch Court in an unreported 1997 decision The Duke of Yare (unreported) 10 April 1997, ARR-RechtB Rotterdam (see The Raphaela S [2005] 2 AC at 449-450 [21]). Lord Bingham said that this result followed from the express words in the bill that it had to be presented to obtain delivery of the goods: The Raphaela S [2005] 2 AC at 449 [20]; 457-458 [45]-[47] per Lord Steyn.
Case: APL Co Pte Ltd v Voss Peer [2002] 4 SLR 481; [2002] SGCA 41 ; reported sub nom Voss v APL Co Pte Ltd [2002] 2 Lloyd's Rep 707
Outcome: cited
The House of Lords followed decisions, that straight bills of lading were documents of title, given earlier by the Court of Appeal of Singapore in APL Co Pte Ltd v Voss Peer [2002] 4 SLR 481 at [55]; [2002] SGCA 41 ; reported sub nom Voss v APL Co Pte Ltd [2002] 2 Lloyd's Rep 707, the Court of Appeal of Rennes, France in The MSC Magallanes (2002) 631 DMF 952 and a Dutch Court in an unreported 1997 decision The Duke of Yare (unreported) 10 April 1997, ARR-RechtB Rotterdam (see The Raphaela S [2005] 2 AC at 449-450 [21]). Lord Bingham said that this result followed from the express words in the bill that it had to be presented to obtain delivery of the goods: The Raphaela S [2005] 2 AC at 449 [20]; 457-458 [45]-[47] per Lord Steyn.
Case: The MSC Magallanes (2002) 631 DMF 952
Outcome: cited
The House of Lords followed decisions, that straight bills of lading were documents of title, given earlier by the Court of Appeal of Singapore in APL Co Pte Ltd v Voss Peer [2002] 4 SLR 481 at [55]; [2002] SGCA 41 ; reported sub nom Voss v APL Co Pte Ltd [2002] 2 Lloyd's Rep 707, the Court of Appeal of Rennes, France in The MSC Magallanes (2002) 631 DMF 952 and a Dutch Court in an unreported 1997 decision The Duke of Yare (unreported) 10 April 1997, ARR-RechtB Rotterdam (see The Raphaela S [2005] 2 AC at 449-450 [21]). Lord Bingham said that this result followed from the express words in the bill that it had to be presented to obtain delivery of the goods: The Raphaela S [2005] 2 AC at 449 [20]; 457-458 [45]-[47] per Lord Steyn.
Case: The Malborough Hill v Alex Cowan &amp; Sons Ltd [1921] 1 AC 444
Outcome: cited
The protection offered to a carrier who delivers cargo on production of the bill of lading is the result of centuries of mercantile practice and the development of the law merchant. The usual terms of a bill of lading expressly provide that, on production of an original, the others will be void and the terms of the contract of carriage embodied in the bill will be accomplished. As Lord Bingham of Cornhill stated in JI MacWilliam Co Inc v Mediterranean Shipping Co SA ("The Raphaela S") [2005] 2 AC 423 at 443F-G [4(6)] this endorsement is in the "time honoured form" of a bill of lading (a description he noted had been used by Lord Phillimore over 80 years before in The Malborough Hill v Alex Cowan &amp; Sons Ltd [1921] 1 AC 444, 453). Lord Bingham referred to the decision of the Full Court of this Court in El Greco (Australia) Pty Ltd v Mediterranean Shipping Company SA [2004] FCAFC 202 ; (2004) 140 FCR 296 at 374; [2004] 2 Lloyd's Rep 537 at 593 which reproduced the front of a bill as an example of the now standardised wording of this important mercantile instrument (which, as Lord Bingham said, could have immaterial differences of wording).
Case: Kowalski v Mitsubishi Motors Australia Ltd [2001] SAWCT 93
Outcome: cited
the time the Heads of Agreement was entered into, there were outstanding matters between the parties in the specialist workers compensation tribunals and courts in the State of South Australia. As a result of the parties entering into of the Heads of Agreement, various steps were carried out in relation to those matters. Later, the applicant sought to have those acts or their effects reversed on the ground that the respondent had been guilty of fraud and misrepresentation. His attempts were unsuccessful: Kowalski v Mitsubishi Motors Australia Ltd [2001] SAWCT 93 ; Kowalski v Mitsubishi Motors Australia Ltd [2002] SAWCT 76. There is no dispute that the respondent paid the moneys it was liable to pay under the Heads of Agreement.
Case: Kowalski v Mitsubishi Motors Australia Ltd [2002] SAWCT 76
Outcome: cited
the time the Heads of Agreement was entered into, there were outstanding matters between the parties in the specialist workers compensation tribunals and courts in the State of South Australia. As a result of the parties entering into of the Heads of Agreement, various steps were carried out in relation to those matters. Later, the applicant sought to have those acts or their effects reversed on the ground that the respondent had been guilty of fraud and misrepresentation. His attempts were unsuccessful: Kowalski v Mitsubishi Motors Australia Ltd [2001] SAWCT 93 ; Kowalski v Mitsubishi Motors Australia Ltd [2002] SAWCT 76. There is no dispute that the respondent paid the moneys it was liable to pay under the Heads of Agreement.
Case: Kowalski v Mitsubishi Motors Australia Limited [2008] FCA 1873
Outcome: cited
12 November 2008, the applicant applied for an order that I disqualify myself from further involvement in this proceeding. On 4 December 2008, I made an order dismissing his application: Kowalski v Mitsubishi Motors Australia Limited [2008] FCA 1873. The grounds upon which the applicant sought such an order and my reasons for refusing his application are set out in my reasons. On 3 February 2009, Mansfield J refused an application by the applicant for leave to appeal from my decision: Kowalski v Mitsubishi Motors Australia Limited [2009] FCA 48.
Case: Kowalski v Mitsubishi Motors Australia Limited [2009] FCA 48
Outcome: cited
12 November 2008, the applicant applied for an order that I disqualify myself from further involvement in this proceeding. On 4 December 2008, I made an order dismissing his application: Kowalski v Mitsubishi Motors Australia Limited [2008] FCA 1873. The grounds upon which the applicant sought such an order and my reasons for refusing his application are set out in my reasons. On 3 February 2009, Mansfield J refused an application by the applicant for leave to appeal from my decision: Kowalski v Mitsubishi Motors Australia Limited [2009] FCA 48.
Case: Kowalski v Repatriation Commission [2009] FCA 47
Outcome: cited
late 2008 and early 2009, I was also dealing with another proceeding involving the applicant. That proceeding involved an appeal by the applicant under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act") against a decision of the Administrative Appeals Tribunal. On 8 December 2008, the applicant made an application that I disqualify myself from further involvement in that proceeding. I refused the application: Kowalski v Repatriation Commission [2008] FCA 1970. The grounds of the application and the reasons I refused it are set out in my reasons. I proceeded to hear his appeal on the substantive proceeding. On 30 January 2009, Mansfield J refused the applicant's application for leave to appeal from my decision: Kowalski v Repatriation Commission [2009] FCA 47.
Case: Kowalski v Repatriation Commission [2009] FCA 794
Outcome: cited
his present motion, the applicant claims that the fact that I proceeded to hear his appeal in the proceeding involving the Repatriation Commission before his application for leave to appeal was determined was proof of bias. That contention is untenable. Having determined that there were no grounds upon which I should disqualify myself, it was appropriate that I proceed to hear and determine the appeal in the substantive proceeding. I have since delivered judgment in that proceeding in which I dismissed the applicant's appeal: Kowalski v Repatriation Commission [2009] FCA 794. The applicant claims that that is a further ground upon which I should disqualify myself in this proceeding because in dismissing his appeal in the proceeding involving the Repatriation Commission I have "fabricated [my] decision". That contention is also untenable. The two proceedings are quite separate and the issue in the proceeding involving the Repatriation Commission was whether there was a question of law (and error of law) within s 44(1) of the AAT Act. The applicant further asserts that I should disqualify myself because I said in my decision on the appeal in that proceeding that I would hear the parties on the question of costs and yet (he claims) I did not hear him. The applicant's submission is untenable. The applicant was given notice of the date and time at which judgment would be handed down. On that date, I announced that I would dismiss the appeal and hear the parties on the question of costs. The applicant was not in attendance. The respondent applied for what was the usual order for costs and I decided that it was appropriate to make such an order.
Case: Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378
Outcome: applied
my opinion, the appropriate order is an order dismissing the proceeding. There are two possible routes to that conclusion. First, under O 20 r 5 of the Federal Court Rules a proceeding may be dismissed if it is an abuse of the process of the Court. A proceeding is an abuse of process where it is foredoomed to fail: Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378 at 393 per Mason CJ, Deane J and Dawson J. As presently pleaded, the proceeding is doomed to fail. Not only is the proceeding doomed to fail as presently pleaded, but I am satisfied that there is no claim of the type advanced. The applicant has already amended once and he has put forward a number of affidavits and written submissions in respect of his "claims", all of which I have read carefully. There is no suggestion that he has a claim either at all or at least a claim which would engage the jurisdiction of this Court. The other route to the same conclusion is that I have no doubt that the amended statement of claim does not identify an arguable cause of action and is embarrassing under O 11 r 16 of the Federal Court Rules . It must be struck out. A party faced with such conclusions is often given the opportunity to replead his or her case. However, that opportunity is not always given and ultimately, whether it is given, depends on the circumstances of the case. It is not appropriate to afford such an opportunity in this case. The applicant has had ample opportunity to articulate a case and, in all the material he has put forward, there is nothing to suggest that he has a claim. Conclusion In the circumstances, the amended statement of claim should be struck out and the proceeding dismissed. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 3 September 2009 Counsel for the Applicant: The Applicant appeared in person. Counsel for the Respondent: Ms V Heath (16 March 2009) Ms C Gitsham (18 August 2009) Solicitor for the Respondent: Thomson Playford Cutler Dates of Hearing: 16 March, 18 August 2009 Date of Judgment: 3 September 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/991.html
Case: Altinova Nominees Pty Ltd v Leveraged Capital Pty Ltd (Receivers and Managers Appointed) (in liq) [2009] FCA 42
Outcome: cited
s 471B of the Corporations Act prohibits a person beginning or continuing a proceeding against a company in liquidation except with the leave of the Court. The provision ensures that a company in liquidation does not face a multiplicity of legal proceedings that are expensive, time consuming, and potentially unnecessary: Altinova Nominees Pty Ltd v Leveraged Capital Pty Ltd (Receivers and Managers Appointed) (in liq) [2009] FCA 42 at [17] to [19]. See generally: Re Gordon Grant and Grant Pty Ltd at 317; Commonwealth v Davis Samuel Pty Ltd at [30], [32]; Lawless v Mackendrick (No 2) [2008] WASC 15 at [35] ; Altinova Nominees Pty Ltd v Leveraged Capital Pty Ltd (Receivers and Managers Appointed) (in liq) (No 2) [2009] FCA 42 ; Ingot Capital Investments Pty Ltd and Ors v Macquarie Equity Capital Markets Pty Ltd and Ors [2004] NSWSC 406.
Case: BHG Nominees Pty Ltd v Ellis Young Investments Pty Ltd &amp; Ors (1998) 16 ACLC 1539
Outcome: distinguished
these respects, the case is said to be analogous to BHG Nominees Pty Ltd v Ellis Young Investments Pty Ltd &amp; Ors (1998) 16 ACLC 1539 where Weinberg J, in granting leave, stated: The amount and seriousness of the claim and the degree and complexity of the legal questions involved all tell in favour of this matter proceeding to judgment rather than being dealt with by proof of claim in the winding up. If leave were refused, and a claim pursued, it is likely that it would be rejected by the liquidator and an appeal from his decision would therefore be initiated in any event ... (at 1544) As to the amount of the claim by Merrill Lynch, the quantum of the applicants' claims is yet to be fully particularised but it includes, according to the statement of claim, the marketable value of each Borrower's mortgaged securities less the amount outstanding to Lift under each of the Borrower's loans. The applicants claim that as at 10 April 2008: (a) the amounts outstanding in respect of the loans made by Lift under the Swaby Agreement, the First Crabb Agreement and the Second Crabb Agreement were $17,614,680.69, $7,783,483.02 and $3,869,520.22 respectively, a total of $29,267,683.93; and (b) the market value of the Borrower's securities mortgaged in favour of Lift to secure the amounts outstanding under the Swaby Agreement, the First Crabb Agreement and the Second Crabb Agreement was $38,540,206.35, $31,284,721.44 and $18,866,221.50 respectively, a total market value of $88,691,149.29. Finally, I note that in BHG Nominees Pty Ltd v Ellis Young Investments Pty Ltd, where leave was granted, Weinberg J proceeded on the basis that if leave were to have been refused and a claim pursued, it is likely that it would be rejected by the liquidator and an appeal pursued in any event. That is not this case.
Case: Commonwealth v Davis Samuel Pty Ltd (No.5) [2008] ACTSC 124
Outcome: cited
starting point is that a claimant must lodge a proof of debt unless that person can demonstrate there is good reason to depart from that procedure. The rationale for this approach is that a liquidator's attention and resources should not be diverted by litigation where there is a simpler procedure available, by way of proof of debt, with a right of appeal under s 1321 of the Act: Re Gordon Grant and Grant Pty Ltd at 317; Commonwealth v Davis Samuel Pty Ltd (No 5) [2008] ACTSC 124 at [33]. See generally: Re Gordon Grant and Grant Pty Ltd at 317; Commonwealth v Davis Samuel Pty Ltd at [30], [32]; Lawless v Mackendrick (No 2) [2008] WASC 15 at [35] ; Altinova Nominees Pty Ltd v Leveraged Capital Pty Ltd (Receivers and Managers Appointed) (in liq) (No 2) [2009] FCA 42 ; Ingot Capital Investments Pty Ltd and Ors v Macquarie Equity Capital Markets Pty Ltd and Ors [2004] NSWSC 406.