mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: I&amp;L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 ; (2002) 210 CLR 109
Outcome: cited
It was put by the cross-claimant that the cross-claimant will need only to establish that the cross-respondent's conduct was "a cause" of the cross-claimant's damages: I&amp;L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 ; (2002) 210 CLR 109. The cross-claimant, of course, will not have to establish that the cross-respondent's conduct was the only cause. The question will be whether the contravention was a cause of the cross-claimant's loss. However, the plea as it presently stands allows the cross-respondent to say that the issue whether the cross-respondent's conduct was "a cause" has been raised and, in those circumstances, documents which might be adverse to the cross-claimant's case should be discovered. 17 For those reasons, I made the order to which I have already referred. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 19 February 2008 Counsel for the Applicant/Cross-Respondent: Mr B Caine SC with Mr G Tye Solicitor for the Applicant/Cross-Respondent: Johnson Winter &amp; Slattery Counsel for the Respondent/Cross-Claimant: Mr R Whitington QC with Mr M Evans and Mr C Beames Solicitor for the Respondent/Cross-Claimant: Norman Waterhouse Date of Hearing: 20 December 2007 Date of Judgment: 19 February 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/87.html
Case: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 104 ALR 621
Outcome: cited
conclusion requires that the application for leave to appeal from that interlocutory decision should be dismissed. Neither of the limbs in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 104 ALR 621 has been made out in the present case. In summary, there is not sufficient doubt about the Federal Magistrate's decision to warrant it being reconsidered by the Federal Court. The applicant, apart from evincing her unhappiness that the Federal Magistrate's decision was adverse to her, has not identified any error in that decision. It is plain also that no substantial injustice will result from the refusal of leave. In those circumstances the application for leave should be dismissed with costs to be taxed, if not agreed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender. Associate: Dated: 11 August 2006 The Appellant appeared in person Solicitor for the Respondent: Ms Therese Quinn, Phillips Fox Date of Hearing: 7 August 2006 Date of Judgment: 7 August 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1044.html
Case: Official Trustee in Bankruptcy v Raeffaele, in the matter of Tindaro Raeffaele [2003] FCA 328 
Outcome: followed
Also, in Official Trustee in Bankruptcy v Raeffaele, in the matter of Tindaro Raeffaele [2003] FCA 328 , Allsop J was satisfied that it was appropriate to make an order under s 146 notwithstanding the fact that the bankrupt was plainly solvent. In that case, the bankrupt had nearly $200,000 in cash in a bank account and two properties. The total value of creditors was a little over $3,000. His Honour said at [7] that he had thought it might be appropriate to identify as a condition of making the order that further attempts be made to notify the bankrupt of the orders and to stay them for a period of time. However, his Honour went on to say that given the respondent's "total lack of interest in his own bankruptcy" and the small amount owing to the creditors, such a course would only act to the bankrupt's further disadvantage and would delay the creditors in the receipt of funds that were due to them. 13 Clearly enough, these two authorities establish that in a case such as the present, the only appropriate course is to make an order under s 146. For the reasons mentioned by Allsop J in Raeffaele , I am satisfied that there is no point in staying the order. Nor would I impose as a condition of the order that further steps be taken to notify the bankrupt of these orders. 14 Nevertheless, I have been informed that the trustee is anxious to complete the administration of the bankruptcy as soon as possible. It is plain that in view of the substantial surplus of assets, an annulment order would ordinarily be made but it is important for the bankrupt to understand that the bankruptcy cannot be annulled until she files her statement of affairs. Once this is done, control of the respondent's affairs can be returned to her. 15 I have been told from the bar table that steps will be taken to try to notify the respondent of this but as I have said, I do not consider it appropriate to make this a condition of the order. This is because the respondent's unfortunate situation has been brought about entirely by her refusal to take any interest in her own affairs thereby leaving the petitioning creditor and subsequently the Trustee in the position in which they now find themselves. 17 The form of these orders follows the form adopted by Spender J and Allsop J in the matters referred to above.
Case: Rees (Trustee) in the matter of Stubberfield v Stubberfield (Bankrupt) [1999] FCA 1862
Outcome: followed
A similar situation arose in the matter of Rees (Trustee) in the matter of Stubberfield v Stubberfield (Bankrupt) [1999] FCA 1862. In that case, Spender J observed at [17] that it was apparent that the bankrupt was solvent, but his Honour was satisfied that that circumstance was not a matter which would have prevented the making of a sequestration order. He said it was a matter which the Court would have had regard to in considering whether in the exercise of its discretion, a sequestration order ought to have been made. 11 His Honour said at [19] that he was concerned in the application before him only with the question of whether on the failure of the bankrupt to file a statement of affairs, the Court should make an order under s 146 of the Act. His Honour said it was plain beyond argument that the failure of Mr Stubberfield to file a statement of affairs was a deliberate choice on his part. He said that, in those circumstances, it was appropriate that the trustee be able to proceed with the administration of the bankrupt estate. 17 The form of these orders follows the form adopted by Spender J and Allsop J in the matters referred to above.
Case: Rubibi Community v State of Western Australia (No 5) [2005] FCA 1025
Outcome: cited
Introduction 2 (a) The Yawuru community ([366]) 2 - 3 (b) Traditional laws and customs ([367]-[369]) 3 - 4 (c) Possession of native title rights and interests ([370]-[376]) 4 - 5 (d) The Walman Yawuru claim 5 (e) The remaining issues 5 - 6 2. The native title determination area 6 - 31 (a) Introduction 6 (b) The southern area 7 (c) The northern area 7 - 31 (i) Introduction 7 - 11 (ii) The Djugan 'tribe' 11 - 13 (iii) Yawuru 'country' 13 - 16 (iv) Practice of the northern and southern traditions in Yawuru 'country' 16 - 18 (v) Yawuru language in Yawuru 'country' 18 - 22 (vi) The contemporary Yawuru community 22 - 25 (vii) The native title holding community for Yawuru 'country' 25 - 27 (viii) Succession 27 - 30 (ix) Connection 30 - 31 (x) Conclusion 31 3. Membership of the native title holding community 31 - 35 4. The nature and extent of native title 35 - 38 1. Introduction In interim reasons for judgment ( Rubibi Community v State of Western Australia (No 5) [2005] FCA 1025) ('the interim reasons') I determined that: The key findings in the interim reasons that are relevant for present purposes may be summarised as follows. The present Yawuru community, as generally defined in the genealogies before the Court, is a recognisable body of persons who are likely to be descendants, on an ambilineal or cognatic basis, of members of the Yawuru community at the time of colonial contact and therefore at the time of sovereignty. The genealogies before the Court support an inference of continuity of the Yawuru community that existed at the time of sovereignty through to the present time. As the definition of the Yawuru community, based on ambilineal or cognatic descent, is in accordance with the traditional laws and customs of the Yawuru community, it follows that the present Yawuru community is one whose members are descended from the members of the Yawuru community at sovereignty in accordance with traditional laws and customs.
Case: Sampi on behalf of the Bardi and Jawi People v Western Australia [2005] FCA 777
Outcome: cited
to the possible exception referred to above, I am satisfied that, generally, the evidence supports the inference contended for by the Yawuru claimants of exclusive possession and occupation of the Yawuru claim area (excluding the intertidal zone) where there has been no extinguishment. However, for the reasons given by French J in Sampi on behalf of the Bardi and Jawi People v Western Australia [2005] FCA 777 at [1072] , the right should be limited to exclusive possession and occupation and should not extend to the broader concepts of 'use and enjoyment'. I also agree with his Honour that the right claimed to 'speak for' the land and to make decisions about its use and enjoyment by others is also subsumed in the global right of exclusive possession and occupation.
Case: Re Bell Construction Services Pty Ltd; Bell Construction Services Pty Ltd v Form-Kwip Building Services [2001] NSWSC 73
Outcome: cited
Provided there is no disjunction between the documents as filed and the documents served, one is truly characterised as a copy of the other unlike the circumstances before the Court in Robowash . In that case, four pages of the annexures to the relevant affidavit supporting the application were missing from the service copy of the affidavit and annexures. The important consideration is whether there is a demonstrated lack of identity between the material as filed and the material served upon the Defendant. In Re Bell Construction Services Pty Ltd; Bell Construction Services Pty Ltd v Form-Kwip Building Services [2001] NSWSC 73 , the omitted material was missing from both the filed affidavit and the copy as served. His Honour, Santow J concluded that since there was no lack of identity between the affidavit filed and the affidavit served, s 459G(3) had been satisfied.
Case: Graywinter Properties Pty Ltd v Gas &amp; Fuel Corporation Superannuation Fund (1996) 21 ACSR 581
Outcome: cited
The question to be determined by the Court is not where the merits lie in any contest but simply whether there is a genuine dispute or a genuine claim. No question of the resolution of any contested question of fact arises. The only question is whether the Plaintiff has deposed to facts which give rise to a conclusion that there is a genuine dispute rather than facts which operate at such a high level of abstraction that the Court might conclude that a failure to deal with the content of the Defendant's claim reflects obfuscation or a lack of genuineness. The supporting affidavit must depose to facts which promote the company's case. A supporting affidavit that fails to satisfy the minimum requirements in this regard, represents a failure of jurisdiction ( Graywinter Properties Pty Ltd v Gas &amp; Fuel Corporation Superannuation Fund (1996) 21 ACSR 581 at 587L, 20 to 40, per Sundberg J). Although an affidavit in support of the application need not go into the evidence supporting the dispute and may assert material facts much in the nature of a pleading, a mere assertion that there is a genuine dispute coupled with a bare claim that the debt is disputed, is not sufficient. What is required, 'in all cases is something between mere assertion and the proof that would be necessary in a court of law. Something more than mere assertion is required because if that were not so then anyone could merely say it did not owe a debt' ( John Holland Construction and Engineering Pty Ltd v Kilpatrick Green Pty Ltd (1994) 14 ACSR 250 at 253, L15-23 per Young J; Re Louisbridge Pty Ltd [1994] 2 Qd R 144 at 145; Dromore Fresh Produce Pty Ltd v W Paton (Fertilisers) Pty Ltd (1997) 23 ACSR 230 at 235 L6-18).
Case: John Holland Construction and Engineering Pty Ltd v Kilpatrick Green Pty Ltd (1994) 14 ACSR 250
Outcome: cited
The question to be determined by the Court is not where the merits lie in any contest but simply whether there is a genuine dispute or a genuine claim. No question of the resolution of any contested question of fact arises. The only question is whether the Plaintiff has deposed to facts which give rise to a conclusion that there is a genuine dispute rather than facts which operate at such a high level of abstraction that the Court might conclude that a failure to deal with the content of the Defendant's claim reflects obfuscation or a lack of genuineness. The supporting affidavit must depose to facts which promote the company's case. A supporting affidavit that fails to satisfy the minimum requirements in this regard, represents a failure of jurisdiction ( Graywinter Properties Pty Ltd v Gas &amp; Fuel Corporation Superannuation Fund (1996) 21 ACSR 581 at 587L, 20 to 40, per Sundberg J). Although an affidavit in support of the application need not go into the evidence supporting the dispute and may assert material facts much in the nature of a pleading, a mere assertion that there is a genuine dispute coupled with a bare claim that the debt is disputed, is not sufficient. What is required, 'in all cases is something between mere assertion and the proof that would be necessary in a court of law. Something more than mere assertion is required because if that were not so then anyone could merely say it did not owe a debt' ( John Holland Construction and Engineering Pty Ltd v Kilpatrick Green Pty Ltd (1994) 14 ACSR 250 at 253, L15-23 per Young J; Re Louisbridge Pty Ltd [1994] 2 Qd R 144 at 145; Dromore Fresh Produce Pty Ltd v W Paton (Fertilisers) Pty Ltd (1997) 23 ACSR 230 at 235 L6-18).
Case: Re Louisbridge Pty Ltd [1994] 2 Qd R 144
Outcome: cited
The question to be determined by the Court is not where the merits lie in any contest but simply whether there is a genuine dispute or a genuine claim. No question of the resolution of any contested question of fact arises. The only question is whether the Plaintiff has deposed to facts which give rise to a conclusion that there is a genuine dispute rather than facts which operate at such a high level of abstraction that the Court might conclude that a failure to deal with the content of the Defendant's claim reflects obfuscation or a lack of genuineness. The supporting affidavit must depose to facts which promote the company's case. A supporting affidavit that fails to satisfy the minimum requirements in this regard, represents a failure of jurisdiction ( Graywinter Properties Pty Ltd v Gas &amp; Fuel Corporation Superannuation Fund (1996) 21 ACSR 581 at 587L, 20 to 40, per Sundberg J). Although an affidavit in support of the application need not go into the evidence supporting the dispute and may assert material facts much in the nature of a pleading, a mere assertion that there is a genuine dispute coupled with a bare claim that the debt is disputed, is not sufficient. What is required, 'in all cases is something between mere assertion and the proof that would be necessary in a court of law. Something more than mere assertion is required because if that were not so then anyone could merely say it did not owe a debt' ( John Holland Construction and Engineering Pty Ltd v Kilpatrick Green Pty Ltd (1994) 14 ACSR 250 at 253, L15-23 per Young J; Re Louisbridge Pty Ltd [1994] 2 Qd R 144 at 145; Dromore Fresh Produce Pty Ltd v W Paton (Fertilisers) Pty Ltd (1997) 23 ACSR 230 at 235 L6-18).
Case: Dromore Fresh Produce Pty Ltd v W Paton (Fertilisers) Pty Ltd (1997) 23 ACSR 230
Outcome: cited
The question to be determined by the Court is not where the merits lie in any contest but simply whether there is a genuine dispute or a genuine claim. No question of the resolution of any contested question of fact arises. The only question is whether the Plaintiff has deposed to facts which give rise to a conclusion that there is a genuine dispute rather than facts which operate at such a high level of abstraction that the Court might conclude that a failure to deal with the content of the Defendant's claim reflects obfuscation or a lack of genuineness. The supporting affidavit must depose to facts which promote the company's case. A supporting affidavit that fails to satisfy the minimum requirements in this regard, represents a failure of jurisdiction ( Graywinter Properties Pty Ltd v Gas &amp; Fuel Corporation Superannuation Fund (1996) 21 ACSR 581 at 587L, 20 to 40, per Sundberg J). Although an affidavit in support of the application need not go into the evidence supporting the dispute and may assert material facts much in the nature of a pleading, a mere assertion that there is a genuine dispute coupled with a bare claim that the debt is disputed, is not sufficient. What is required, 'in all cases is something between mere assertion and the proof that would be necessary in a court of law. Something more than mere assertion is required because if that were not so then anyone could merely say it did not owe a debt' ( John Holland Construction and Engineering Pty Ltd v Kilpatrick Green Pty Ltd (1994) 14 ACSR 250 at 253, L15-23 per Young J; Re Louisbridge Pty Ltd [1994] 2 Qd R 144 at 145; Dromore Fresh Produce Pty Ltd v W Paton (Fertilisers) Pty Ltd (1997) 23 ACSR 230 at 235 L6-18).
Case: Johns v Australian Securities Commission [1993] HCA 56 ; (1993) 178 CLR 408
Outcome: cited
On 21 December 2006 solicitors for the applicant applied to ASIC for documents in relation to the Multiplex examinations. ASIC in accordance with its natural justice obligations (see Johns v Australian Securities Commission [1993] HCA 56 ; (1993) 178 CLR 408), has notified third parties who may be affected by the release of the documents and has received submissions from some of them. This has proved to be a lengthy process and ASIC has not yet provided any documents to the applicant. 13 As has been mentioned, the documents the subject of item 1 of the subpoena number about 3000 (assuming, as seems reasonable, that ASIC retains the documents it has reviewed, or most of them) and have been sorted into some 200 folders. The remaining documents sought would seem to be relatively much less numerous. 14 The present proceeding commenced on 18 December 2006. Pleadings have been filed. Multiplex has brought applications for (i) an order under s 33N of the Federal Court Act that the matter no longer proceed under Pt IVA, (ii) security for costs and (iii) transfer to the New South Wales District Registry. Finkelstein J heard the s 33N application on 27 April 2007 and his decision is reserved. The other two applications have not yet been heard. I understand that a date will be fixed after his Honour delivers judgment on the s 33N application. The matter is in Finkelstein J's docket and the present application has come before me as duty judge. 15 The parties have been in protracted negotiations as to security for costs. The applicant accepts that security should be ordered but the parties have not agreed on quantum or the form of security, due mainly to disputes about the likely extent of discovery (security is not sought at the moment for steps beyond discovery). Initially Multiplex sought $24.1 million, of which $24 million was for discovery based on a review of 3.5 million documents with approximately 880,000 potentially discoverable documents. That figure has since been reduced to $6 million, based on an estimate of 266,000 documents. The applicant proffers $1.9 million. 16 The applicant relies particularly on the assistance the subpoena will give in narrowing the scope of discovery and, as a consequence, reducing the amount of security ordered. 21 Further it is said that the subpoena would subvert ASIC's natural justice considerations as required by Johns . 22 Insofar as the subpoena by items 4 and 5 seeks the terms of reference and report of the consultant, it is said to be fishing and enquiring after irrelevant matter.
Case: Hughes v Western Australian Cricket Association (Inc) (1986) 66 ALR 541
Outcome: followed
It has been firmly established since the decision of Toohey J when a judge of this Court in Hughes v Western Australian Cricket Association (Inc) (1986) 66 ALR 541 that a subpoena duces tecum may be directed to a non-party prior to trial. The power exists "where it appears to the court to be in the interests of justice and the proper and expeditious conduct of a proceeding that a person produce documents before the date of hearing of the [substantive] application": at 543. (That case was the converse of the present in that issue of the subpoena was opposed by the proposed recipient, the Australian Cricket Board, but the respondent in the proceeding did not appear.) 24 In the present case senior counsel for Multiplex cited a line of cases which hold that a subpoena duces tecum is not to be used as a substitute for discovery: Commissioner for Railways v Small (1938) 38 SR (NSW) 564, Australian Competition and Consumer Commission v Shell Co of Australia Ltd (1999) 161 ALR 686, Pasini v Vanstone [1999] FCA 1271. However, all these cases were concerned with subpoenas directed to a party. True it is that in Hughes (at 543) Toohey J, citing Small , said that a party may not though a subpoena "obtain discovery from a stranger to the action". But what was meant by obtaining discovery from a stranger emerges from the judgment of Jordan CJ in Small at 573: "If [a subpoena duces tecum ] be addressed to a stranger, it must specify with reasonable particularity the documents which are required to be produced. A subpoena duces tecum ought not to be issued to such a person requiring him to search for and produce all such documents as he may have in his possession or power relating to a particular subject matter. It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery. A stranger to the cause ought not to be required to go to trouble and perhaps to expense in ransacking his records and endeavouring to form a judgment as to whether any of his papers throw light on a dispute which is to be litigated upon issues of which he is presumably ignorant".
Case: Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Outcome: discussed
In the present case senior counsel for Multiplex cited a line of cases which hold that a subpoena duces tecum is not to be used as a substitute for discovery: Commissioner for Railways v Small (1938) 38 SR (NSW) 564, Australian Competition and Consumer Commission v Shell Co of Australia Ltd (1999) 161 ALR 686, Pasini v Vanstone [1999] FCA 1271. However, all these cases were concerned with subpoenas directed to a party. True it is that in Hughes (at 543) Toohey J, citing Small , said that a party may not though a subpoena "obtain discovery from a stranger to the action". But what was meant by obtaining discovery from a stranger emerges from the judgment of Jordan CJ in Small at 573: "If [a subpoena duces tecum ] be addressed to a stranger, it must specify with reasonable particularity the documents which are required to be produced. A subpoena duces tecum ought not to be issued to such a person requiring him to search for and produce all such documents as he may have in his possession or power relating to a particular subject matter. It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery. A stranger to the cause ought not to be required to go to trouble and perhaps to expense in ransacking his records and endeavouring to form a judgment as to whether any of his papers throw light on a dispute which is to be litigated upon issues of which he is presumably ignorant".