mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: VXDC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1388 ; (2005) 146 FCR 562
Outcome: cited
In any event, s 422B of the Act applies. The analysis of the breadth of application of s 422B was dealt with by Heerey J in VXDC v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1388 ; (2005) 146 FCR 562 at [22] to [31]. His Honour's reasons were adopted and his conclusion upheld in Minister for Immigration &amp; Multicultural Affairs v Lay Lat [2006] FCAFC 61 ; (2006) 151 FCR 214 at [60] to [70]; SZCIJ v Minister for Immigration &amp; Multicultural Affairs [2006] FCAFC 62 at [8] and NBKT v Minister for Immigration &amp; Multicultural Affairs [2006] FCAFC 195 at [85] .
Case: Covell Matthews &amp; Partners v French Wools Ltd [1977] 1 WLR 876
Outcome: cited
leave to discontinue is sought, the Court normally will grant leave provided no injustice will be caused to the respondent/defendant: Covell Matthews &amp; Partners v French Wools Ltd [1977] 1 WLR 876 at 879. As I earlier noted, Coopers does not oppose the grant of leave. It simply contests ACN's claim that no order be made as to costs.
Case: Smith v Airservices Australia [2005] FCA 997 ; (2005) 146 FCR 37
Outcome: referred to
is unnecessary in this proceeding to canvass in detail the case law on discontinuance and the above rules. This has been done recently and, with respect, helpfully by Stone J in Smith v Airservices Australia [2005] FCA 997 ; (2005) 146 FCR 37; see also Harvey Norman Holdings Ltd v Fels [2002] ATPR 41-852; O'Neill v Mann [2000] FCA 1680. All I need note is the following. (ii) While the underlying policy in the Rules is that the discontinuing party should be liable for the other parties' costs unless the Court otherwise orders, this has not hardened into a "usual rule" where leave is granted such as is the case where there has been a determination of a claim on its merits: as to the latter see Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 72 FCR 151. As Stone J observed in Smith , at [44]: "Where a claim for relief is discontinued the respondent to that claim is thereby deprived of an opportunity to vindicate its position despite, generally, having incurred costs in preparing to do so. Although the reasons for discontinuance may vary considerably, it is likely to be in the interests of justice that in those circumstances the respondent to the claim should have those costs met by the discontinuing party." (iii) The reasons for, and circumstances of, a discontinuance can be so various that there are some number of factors which can be of (varying) utility in informing the Court's discretion. These include the following: (a) While it is not the function of the Court to make a prediction as to the outcome of the litigation concerned, the Court may nonetheless in particular circumstances feel confident that, although both parties have acted reasonably, "one party was almost certain to have succeeded if the matter had been fully tried": Ex parte Lai Qin , at 3; (b) If one party has acted unreasonably in occasioning the need for the litigation or for the incurring of expense in it, that can entitle the other party to costs. (c) As McHugh J observed in Ex parte Lai Qin at 3-4: "If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases." (d) A common species of futility is where a change in "objective": O'Neill v Mann at [13]; or "extrinsic": Smith at [48] circumstances renders the further prosecution of a proceeding futile.
Case: Harvey Norman Holdings Ltd v Fels [2002] ATPR 41-852
Outcome: cited
is unnecessary in this proceeding to canvass in detail the case law on discontinuance and the above rules. This has been done recently and, with respect, helpfully by Stone J in Smith v Airservices Australia [2005] FCA 997 ; (2005) 146 FCR 37; see also Harvey Norman Holdings Ltd v Fels [2002] ATPR 41-852; O'Neill v Mann [2000] FCA 1680. All I need note is the following.
Case: O'Neill v Mann [2000] FCA 1680
Outcome: cited
is unnecessary in this proceeding to canvass in detail the case law on discontinuance and the above rules. This has been done recently and, with respect, helpfully by Stone J in Smith v Airservices Australia [2005] FCA 997 ; (2005) 146 FCR 37; see also Harvey Norman Holdings Ltd v Fels [2002] ATPR 41-852; O'Neill v Mann [2000] FCA 1680. All I need note is the following. (iii) The reasons for, and circumstances of, a discontinuance can be so various that there are some number of factors which can be of (varying) utility in informing the Court's discretion. These include the following: (a) While it is not the function of the Court to make a prediction as to the outcome of the litigation concerned, the Court may nonetheless in particular circumstances feel confident that, although both parties have acted reasonably, "one party was almost certain to have succeeded if the matter had been fully tried": Ex parte Lai Qin , at 3; (b) If one party has acted unreasonably in occasioning the need for the litigation or for the incurring of expense in it, that can entitle the other party to costs. (c) As McHugh J observed in Ex parte Lai Qin at 3-4: "If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases." (d) A common species of futility is where a change in "objective": O'Neill v Mann at [13]; or "extrinsic": Smith at [48] circumstances renders the further prosecution of a proceeding futile.
Case: Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 72 FCR 151
Outcome: cited
While the underlying policy in the Rules is that the discontinuing party should be liable for the other parties' costs unless the Court otherwise orders, this has not hardened into a "usual rule" where leave is granted such as is the case where there has been a determination of a claim on its merits: as to the latter see Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 72 FCR 151. As Stone J observed in Smith , at [44]: "Where a claim for relief is discontinued the respondent to that claim is thereby deprived of an opportunity to vindicate its position despite, generally, having incurred costs in preparing to do so. Although the reasons for discontinuance may vary considerably, it is likely to be in the interests of justice that in those circumstances the respondent to the claim should have those costs met by the discontinuing party."
Case: Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534
Outcome: followed
It is to be observed that s 43 gives the Court a wide and unstructured discretion. The decision in Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 (' Latoudis ') involved the consideration of such a discretion in relation to prosecution for a summary criminal offence where the defendant had succeeded. The majority stressed the compensatory nature of a costs order and the inadequacy, in the criminal law context, of the fact that the charge was laid in the public interest or that the informant acted reasonably in laying the charge as a reason to deprive the successful defendant of a costs order: per Mason CJ at 544, Toohey J at 563 and McHugh J at 569. Instead, the rule was adopted that in summary criminal matters the successful defendant should be entitled to costs unless there was something in the defendant's own conduct disentitling him or her to costs: per Mason CJ at 544, Toohey J at 565 and McHugh J at 569-570. 7 That approach appears powerfully persuasive to me, and at least provides some principled basis for the exercise of my discretion. It is the approach that I intend to follow. I do not overlook that these are very serious matters which would be prosecuted on indictment both in New Zealand and Australia. However, the proceedings themselves are auxiliary to intended proceedings on indictment rather than such proceedings themselves, and it seems to me that Latoudis provides the nearest and best guidance that is to be found. 8 I should add that various State legislatures have moved to restrict the benefits to successful defendants which Latoudis would have warranted by structuring and restricting the discretions available to the courts to order costs to successful defendants in criminal cases, and of course, the availability of costs in indictable cases has always been even more restricted. 9 Accordingly, the first respondent is to pay the applicants' costs of the proceedings in this Court. 10 I might add that any dissatisfaction with the outcome may provide another reason for the legislature to re-examine the Extradition Act 1988 (Cth) as I urge in the principal judgment. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate: Dated: 23 May 2006 Solicitor for the Applicants: Greg Walsh &amp; Co Counsel for the Respondent: Mr I Bourke SC Solicitor for the Respondent: Director of Public Prosecutions (Cth) Date of Hearing: 1 May 2006 Date of Judgment: 1 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/603.html
Case: Moloney v New Zealand [2006] FCA 438
Outcome: cited
On the other hand, the Extradition Act 1988 (Cth), as explained at length in the reasons for my judgment (see Moloney v New Zealand [2006] FCA 438) , sets its face against any consideration of the underlying merits of the criminal proceedings which the New Zealand prosecuting authorities have sought to bring against the applicants. Apart, therefore, from any time- or costs-wasting events that they may have perpetrated, and none is suggested, there is no conduct of the applicants which can fairly be regarded as disentitlement to an order for costs where such an order is otherwise appropriate. 4 The authorities differ as to the nature of proceedings such as these but, in my opinion, whatever their precise juridical nature, the essence of the matter is that the attempt to extradite the applicants, and all subsequent proceedings instituted by the applicants, arise out of an attempt by a responsible government, statutorily regarded as such in Australia, to invoke ordinary criminal processes to vindicate a number of very serious allegations of criminal misconduct. 5 In these circumstances it seems appropriate to me to accord to the New Zealand Government such respect and lack of impediment to enforcing its criminal laws as would be appropriate, in the case of the Australian government, were it subject to a provision such as s 43 of the Federal Court of Australia Act 1976 (Cth), in relation to criminal proceedings brought by it or its proper manifestation, the Commonwealth Director of Public Prosecutions.
Case: Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57
Outcome: applied
principal authority is the decision of the High Court in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 ( O'Neill ). In that case, Gummow and Hayne JJ held (Gleeson CJ and Crennan J agreeing) that (at [65]): The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; [(1968) 118 CLR 618]. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued [1968] HCA 1 ; [(1968) 118 CLR 618 at 622-623]: "The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted." By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial.
Case: Hexal Australia Pty Ltd v Roche Therapeutics Inc (2005) 66 IPR 325
Outcome: discussed
respondents also referred the Court to comments made by Stone J (prior to the High Court's decision above) in Hexal Australia Pty Ltd v Roche Therapeutics Inc (2005) 66 IPR 325. In that case, her Honour stated, at [17]: This court has power to grant interlocutory relief pursuant s 23 of the Federal Court of Australia Act 1976 (Cth). The relevant principles governing the exercise of the court's discretion to grant interlocutory relief are well established. In order to secure the relief it seeks Roche must demonstrate: (1) that there is a serious question to be tried or a prima facie case such that if the evidence remains the same there is a probability that at a final hearing it would be entitled to relief; (2) that it will suffer irreparable harm for which damages will not be adequate compensation, unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction. The second and third points referred to by Stone J are interrelated. Where damages can be adequate compensation, the balance of convenience will almost certainly be in favour of not granting relief; where, in the absence of an injunction, the harm will be irreparable, then the balance of convenience almost certainly favours the grant of interlocutory relief. Both of the respondents are related companies within the "Max Frank Group". The first respondent, Max Frank Pte Ltd, is the majority shareholder of the second respondent, Peca Verbundtechnik GmbH, which was established in Germany in 1981. The second respondent, in 1982, registered the marks "Pecaform" and "Peca" in Germany. Mr Christopher Baron, a director of the first respondent, deposes that the mark "Pecaform" was registered as a Trade Mark in various European countries in the mid to late 1980s and early 1990s. The steel mesh construction product that was labelled "Pecaform" has also been marketed and sold under the Trade Mark "Pecafil" in various countries. Although Pecaform and Pecafil are marked differently, they are in fact identical products.
Case: Malibu Boats West Inc v Cantanese (2000) 51 IPR 134
Outcome: considered
Malibu Boats West Inc v Catanese (2000) 51 IPR 134 it was said by Finkelstein J, at [25]: ... Proprietorship can arise in one of two ways. In the case of a mark that has never been used, the proprietor is the person who is the "author" of the mark and who has applied for its registration with the intention of using the mark: Re Hudson's Trade Marks (1986) 32 Ch D 311 at 319; Seven-Up Co v OT Ltd [1947] HCA 59 ; (1947) 75 CLR 203 ; [1947] ALR 436 ( Seven-up Co); Shell Co of Australia Ltd v Rohm &amp; Haas Co [1948] HCA 27 ; (1949) 78 CLR 601 at 626 [1948] HCA 27 ; ; [1949] ALR 661 ; 1A IPR 438 ( Shell Co of Australia ). Authorship in this context is not confined to the person who originated the mark. A person may be the author even if he has copied a foreign mark; he or she need only be the first person to have applied the mark in Australia: Aston v Harlee Manufacturing co [1960] HCA 47 ; (1960) 103 CLR 391 at 400 [1960] HCA 47 ; ; [1960] ALR 605 citing Re Registered Trade Mark "Yanx"; Ex parte Amalgamated Tobacco Corp Ltd [1951] HCA 28 ; (1951) 82 CLR 199 at 202 ( Re Registered Trade Mark "Yanx"). A person is also the proprietor of a mark if, at the time of application for registration, he or she is entitled to the exclusive use of that mark under the common law: Shell Co of Australia at 625, 627. At common law that is the person who first used the mark.
Case: Re McGrath [2005] NSWSC 506 ; (2005) 54 ACSR 55
Outcome: discussed
In Re McGrath [2005] NSWSC 506 ; (2005) 54 ACSR 55 , Barrett J appears to have thought that even where, as in the present case and in the case before him, there is a continuing co-liquidator in office, there is a "vacancy in the office of a liquidator appointed by the Court" where a co-liquidator ceases to hold office, and therefore s 473(1) requires the Court to fill the vacancy (at [5]). His Honour appointed a second liquidator to replace one who had resigned. 61 The questions raised above must now be considered in the light of s 530 of the Corporations Act which was introduced by the Corporations Amendment (Insolvency) Act 2007 (Cth), s 3 , Sch 1, Pt 3 , Item 114. Section 530 provides: If 2 or more persons have been appointed as liquidators of a company: (a) a function or power of a liquidator of the company may be performed or exercised by any one of them, or by any 2 or more of them together, except so far as the order or resolution appointing them otherwise provides; and (b) a reference in this Act to a liquidator, or to the liquidator, of a company is, in the case of the first-mentioned company, a reference to whichever one or more of those liquidators the case requires. This provision has assimilated the position of multiple liquidators to that of multiple voluntary administrators and of multiple administrators of deeds of company arrangement under s 451A(2) and s 451B(2) of the Corporations Act respectively (set out at [84] and [93] below). 62 Clearly, s 530 produced the effect that following Mr Watson's resignation, as prior to it, Mr Condon was entitled alone to perform the functions and exercise the powers that were vested in "the liquidators". In the result, whatever be the correct meaning of the word "must" in s 473(7) , there is only a vacancy in the office of a liquidator for the purposes of that subsection where a sole liquidator or all co-liquidators have ceased to hold office.
Case: (recs &amp; mgrs apptd) (admins appted)s (2003) 46 ACSR 674
Outcome: discussed
In Re Wallace Smith; National Express Group Australia (Bayside Trains) Pty Ltd (recs and mgrs apptd) (admins apptd) (2003) 46 ACSR 674, Finkelstein J had to deal with an application for the appointment of a substitute administrator where one of two administrators had resigned. In the present case, however, that is not the relief sought. In passing, his Honour referred to s 449C(6) which provides: Where a company is under administration, but for some reason no administrator is acting, the Court may appoint a person as administrator on the application of ASIC or of an officer, member or creditor of the company. His Honour observed (at [5]): On one view, which may be the correct view, this condition cannot be satisfied when one of two or more joint administrators have ceased to act for, in that event, it cannot be said that "no administrator is acting". It will be recalled that Barrett J took a similar view in the context of joint liquidators in Vouris (see [69] above).
Case: Ex parte Griffin; Re Dixon (1826) 2 GL&amp;J 114
Outcome: cited
The general rule of law is that two or more trustees in bankruptcy "have only a joint and not a separate authority", although the exigencies of the circumstances of a particular bankruptcy may make it proper for one to leave certain tasks to the other without being liable for the other's default: see Ex parte Griffin; Re Dixon (1826) 2 GL&amp;J 114 at 116, cited in Re Gudgeon; Ex parte Pegler (1969) 13 FLR 350 at 352.
Case: Re Gudgeon; Ex parte Pegler (1969) 13 FLR 350
Outcome: cited
The general rule of law is that two or more trustees in bankruptcy "have only a joint and not a separate authority", although the exigencies of the circumstances of a particular bankruptcy may make it proper for one to leave certain tasks to the other without being liable for the other's default: see Ex parte Griffin; Re Dixon (1826) 2 GL&amp;J 114 at 116, cited in Re Gudgeon; Ex parte Pegler (1969) 13 FLR 350 at 352.
Case: Bushell v Secretary of State for the Environment [1980] UKHL 1 ; [1981] AC 75
Outcome: referred to
The approach urged on me by counsel for Billabong would be to "over-judicialise" the process of administrative decision-making: Bushell v Secretary of State for the Environment [1980] UKHL 1 ; [1981] AC 75 at 97; Kioa v West at 628-629. Indeed, it goes beyond an application for discovery because it requires access to the Registrar's entire file. There is no basis for such an order.
Case: Claro v Minister for Immigration, Local Government and Ethnic Affairs (1993) 119 ALR 342
Outcome: referred to
Where there is credible, relevant and significant material before the decision-maker, it will not ordinarily be sufficient for the decision-maker to disavow reliance upon it. The significance of the material is to be determined leaving aside the disavowal, but a merely theoretical possibility of prejudice to the person affected will not be sufficient to require disclosure: Kioa v West at 629; NIB Health Funds Ltd v Private Health Insurance Administration Council (2001) 115 FCR at [94]; Claro v Minister for Immigration, Local Government and Ethnic Affairs (1993) 119 ALR 342 at 353; McLachlan v ASIC at [50].
Case: McLachlan v Australian Securities and Investment Commission [1999] FCA 244 ; (1999) 85 FCR 286
Outcome: applied
Counsel for the Registrar therefore relies upon the following statement of Kenny J, with whom O'Loughlin and Mansfield JJ agreed, in McLachlan v Australian Securities and Investment Commission [1999] FCA 244 ; (1999) 85 FCR 286 at [52] : "By seeking access to all documents relating to the subject-matter of the hearing, the appellants seek, in effect, to conduct a search into the ASIC's records about them. That is not a purpose sought to be met by the rules of natural justice."