mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Repatriation Commission v Keeley [2000] FCA 532 ; (2000) 98 FCR 108
Outcome: cited
During oral argument counsel for Mr Masliczek sought to argue that the Tribunal had erred in the manner in which it dealt with the general anxiety and the depressive disorders which it found, in paragraph [36], that Mr Masliczek suffered. He argued that the Tribunal's reasons suggested that these conditions had been found not to be service related because Mr Masliczek had fallen at the third of the Deledio steps: he had not experienced a category 1A or a category 1B stressor as defined in Statements of Principles Nos 101 of 2007 and 27 of 2008. It was argued that, in accordance with the Full Court's decision in Repatriation Commission v Keeley [2000] FCA 532 ; (2000) 98 FCR 108 at 123; 131-2, the Tribunal was required to consider whether earlier versions of these instruments, which were in force at the time at which the primary decision on Mr Masliczek's claim was made, might, if applied, have led to a favourable decision. These earlier versions did not contain a requirement that an applicant must have experienced defined stressors during service. The Tribunal had not considered the earlier versions.
Case: Benjamin v Repatriation Commission [2001] FCA 1879 ; (2001) 70 ALD 622
Outcome: cited
The Tribunal does not explain why it was that it embarked on a consideration of the general anxiety and depressive disorders from which it found Mr Masliczek to suffer. Counsel for Mr Masliczek (who also appeared for him before the Tribunal) was unable to advise the Court as to whether the Tribunal had been urged to find that Mr Masliczek suffered from these conditions or whether the Tribunal was referred to the Statements of Principles which deal with the conditions. It may be that the Tribunal felt bound to deal with these additional conditions, because of the ruling of the Full Court in Benjamin v Repatriation Commission [2001] FCA 1879 ; (2001) 70 ALD 622 at 633 that the Tribunal is required to consider issues raised by the material and evidence before it, even if an applicant does not articulate a case which is or may be supported by that evidence. 22 The difficulty which confronts Mr Masliczek is that there is no question of law or ground of appeal which raises any issue arising from the Tribunal's treatment of the psychiatric conditions identified in paragraph [36]. No application to amend was made. Had it been it was not bound to succeed because counsel for the Commission indicated that, had such issues been raised, it was likely that it would have filed a notice of contention.
Case: SZATV v Minister for Immigration and Citizenship [2007] HCA 40 ; (2007) 81 ALJR 1659
Outcome: cited
After Randhawa , the High Court had occasion to consider that particular principle last year in SZATV v Minister for Immigration and Citizenship [2007] HCA 40 ; (2007) 81 ALJR 1659. At pages 1664 and 1665, para 26, Gummow, Hayne and Crennan JJ observed in their joint judgment: in particular cases, territorial distinctions may have an apparent connection with the particular reason for the asserted well founded fear of persecution. There may be instances where differential treatment in matters of, for example, race or religion, is encountered in various parts of one nation state so that in some parts there is insufficient basis for a well founded fear of persecution. However, in other cases the conduct or attribute of the individual which attracts the apprehended persecution may be insusceptible of a differential assessment based upon matters of regional geography.
Case: Australian Competition &amp; Consumer Commission v The Shell Company of Australia Limited (1997) 72 FCR 386
Outcome: referred to
I am not persuaded that this is necessarily the case. Common Law Superior Courts of record do not become functus officio merely upon the making and entry of the judgment or order that determines the rights of the parties: they retain power in the same suit to make supplemental orders not limited to orders in aid of the enforcement and working out of the order determining the rights of the parties. So observed Drummond J in Australian Competition &amp; Consumer Commission v The Shell Company of Australia Limited (1997) 72 FCR 386 at 395. His Honour also observed that this Court's ancillary powers flow from authority under ss 22 and 23 of the FCA Act to resolve the whole of the controversy between the parties.
Case: Birri-Gubba (Cape Upstart) People v State of Queensland [2008] FCA 659 
Outcome: referred to
The issues involved are, at one level, complex. The applicants in the first motion have not been represented by solicitors or counsel. I would not, in the circumstances, be prepared to characterise the conduct of the applicants in the first motion as being unreasonable. This is so, even though I have concluded that the first motion has no reasonable prospect of success. The position may well have been different if the applicants in the first motion had been represented by experienced lawyers: cf Birri-Gubba (Cape Upstart) People v State of Queensland [2008] FCA 659. [37] These observations should not be seen in any way as a reflection on Ms Hanigan. Ms Hanigan is a law student who I have no doubt has been doing her best to represent the interests of the applicants in the first motion. They are not in receipt of public funding. 56 Furthermore, the articulation by Ms Hanigan of the two issues, which I have dealt with, together with her concession, quite properly made, that the resolution of these adverse to those whom she represents would justify the summary dismissal of the first motion greatly reduced both the time of the hearing and the issues for judgment.
Case: Boston Commercial Services Pty Ltd v GE Capital Finance Australasian Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720
Outcome: cited
Section 31A of the Federal Court of Australia Act 1976 (Cth) ("FCA Act ") lowers the bar for obtaining summary judgment, including summary dismissal: White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298. It is nonetheless not relief which is granted lightly and the Court should be cautious in dismissing proceedings pursuant to s 31A: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720. The utility of bringing such a motion in the present circumstances is questionable when, inevitably, there was, in effect, full argument on the first motion as the means of considering the motion for dismissal. I will refer to the Walman Yawuru respondents, in respect to the dismissal motion, simply as the respondents. 30 It is for the applicant to establish the grounds to warrant an order for dismissal under s 31A: Boston Commercial Services Pty Ltd [2006] FCA 1352 ; 236 ALR 720. Nonetheless the respondents submit that two issues arise on the first motion which, if resolved against them, would justify an order for dismissal. I take this concession to mean that if the applicant satisfies me that the respondents have no reasonable prospects of successfully demonstrating that the two issues are serious issues to be tried then the first motion ought to be summarily dismissed. Both issues reflect the core submission of the respondents which is to the effect that the applicant has no authority to negotiate future acts, on behalf of the Yawuru Community which includes the Walman Yawuru clan, with the State. In this way the matters for judgment have been significantly confined. 31 The first issue is as to whether the applicant is the "native title party" for the purpose of negotiating with the State in respect to future acts. It involves consideration of s 30(2) of the Act . Properly understood this issue does not involve any question of the construction of that statutory provision but rather, whether, on the facts, the provision presently has application. 32 The requirement to negotiate in respect to future acts is provided for in Subdivision P of Div 3 of Part 2 of the Act . Notification must be given by a Government party, before the act is done, relevantly here, to the registered native title claimant, which is by definition also the native title party (ss 29(2)(b) and 30 (1)(a); definition of "registered native title claimant" in s 253).
Case: Caboolture Park Shopping Centre Pty Ltd (in Liquidation) v White Industries (Qld) Pty Ltd [1993] FCA 471 ; (1993) 45 FCR 224
Outcome: cited
This Court has power to make supplemental orders and the exercise of this jurisdiction, while no doubt requiring caution, is not limited to the making of orders in aid of the enforcement and working out of original orders, although to do so may be appropriate: Caboolture Park Shopping Centre Pty Ltd (in Liquidation) v White Industries (Qld) Pty Ltd [1993] FCA 471 ; (1993) 45 FCR 224 at 234-236. These principles were reaffirmed recently by a Full Court in Remington Products Australia Pty Ltd v Energizer Australia Pty Ltd [2008] FCAFC 47.
Case: James on behalf of the Martu People v State of Western Australia [2002] FCA 1208
Outcome: referred to
This drafting addressed a perceived hiatus in the Act whereby, once a native title determination had been made and taken effect over an area of land, the Registrar of the Federal Court would notify the Native Title Registrar pursuant to s 189A(b) of the Act and the Native Title Register would then be amended to remove the entry pursuant to s 190(4)(d) of the Act if the application was finalised. Early determinations became effective immediately with respect to areas where native title had been extinguished, as well as areas where native title existed, but allowed a period of time for nomination of a prescribed body corporate. An example of this is to be found in the orders made in James on behalf of the Martu People v State of Western Australia [2002] FCA 1208. In such a case, there was an hiatus period between removal of the entry from the Register of Native Title Claims and thereby removal of the details of the registered native title claimant and the entry onto the National Native Title Register of the PBC: s 193(2)(e) of the Act . In James , a period of 3 months was allowed for nomination of a PBC. Arguably, in this period there was no native title party (s 253 of the Act ) to notify or to negotiate with for the purposes of Part 2 Division 3 of the Act . 41 Since the orders of 28 April 2006 were made in these proceedings, s 190 of the Act has been amended, by s 100 of the Native Title Amendment (Technical Amendments) Act 2007 (No 125 of 2007), in the following terms: 100. After paragraph 190(4)(d) Insert: (da) if an approved determination of native title is made to the effect that native title exists in relation to an area: (i) but no determination has yet been made under section 56; or (ii) a determination has been made under section 56 that the native title rights and interests are to be held by the common law holders, but no determination has yet been made under subsection 57(2) of which prescribed body corporate is to perform the functions mentioned in subsection 57(3); amend the entry on the Register that relates to the claim so that it reflects that fact;... 42 The Explanatory Memorandum to the Native Title Amendment (Technical Amendments) Bill 2007 ("the Explanatory Memorandum") at 1.319 and 1.320 relevantly states: Item 100 would insert paragraph 190(4)(da). Proposed paragraph 190(4)(da) would make clear that when a determination of native title has been made but no RNTBC has yet been determined, the Register of Native Title Claims should be amended to reflect that situation. The NNTT currently proceeds on the basis that the claim is not finalised until the RNTBC has been determined or registered, which ensures that the native title holders may still be notified of any proposed future acts pending registration. However, this approach gives rise to confusion where the determination establishes that native title has been extinguished over parts of the claim area, in so far as the National Native Title Register will not reflect this (and could suggest that the claimants continue to have procedural rights over those parts).
Case: Remington Products Australia Pty Ltd v Energizer Australia Pty Ltd [2008] FCAFC 47
Outcome: cited
This Court has power to make supplemental orders and the exercise of this jurisdiction, while no doubt requiring caution, is not limited to the making of orders in aid of the enforcement and working out of original orders, although to do so may be appropriate: Caboolture Park Shopping Centre Pty Ltd (in Liquidation) v White Industries (Qld) Pty Ltd [1993] FCA 471 ; (1993) 45 FCR 224 at 234-236. These principles were reaffirmed recently by a Full Court in Remington Products Australia Pty Ltd v Energizer Australia Pty Ltd [2008] FCAFC 47.
Case: Rubibi Community v The State of Western Australia (No 3) [2002] FCA 876 ; (2002) 120 FCR 512
Outcome: referred to
The applicants in the first motion were originally applicants but became respondents to the proceedings on behalf of a subset of the Yawuru Community, known as the Walman Yawuru ("the Walman Yawuru respondents" ) . Their independent application for native title was dismissed: Rubibi Community v The State of Western Australia (No 7) [2006] FCA 459. They were joined as respondents on their application, by order of Merkel J: Rubibi Community v The State of Western Australia (No 3) [2002] FCA 876 ; (2002) 120 FCR 512.
Case: Rubibi Community v The State of Western Australia (No 5) [2005] FCA 1025
Outcome: referred to
The Walman Yawuru respondents were found to have a special attachment to part of the claim area known as the Mangalagun area. However, it was not such as to constitute or give rise to a native title right or interest as defined in ss 223(1) and 253 of the Act . It followed that no rights or interests claimed by the Walman Yawuru respondents were possessed by them as members of the Walman Yawuru clan: Rubibi Community v The State of Western Australia (No 5) [2005] FCA 1025 [233] and [375].
Case: Rubibi Community v The State of Western Australia (No 6) [2006] FCA 82
Outcome: referred to
In later reasons, Merkel J held that any native title rights and interest in the claim area were held by the Yawuru people on a communal basis and not by members of the Walman Yawuru on a group or clan basis and that they did not have native title rights and interests in that capacity in the claim area: Rubibi Community v The State of Western Australia (No 6) [2006] FCA 82. [9] 8 Nonetheless, the Walman Yawuru respondents later contended that, as a result of this recognition of special attachment to specific areas in Rubibi (No 5) they were entitled, under s 225(c) of the Act to have that attachment recognised in the determination as an "other interest" in relation to the determination area. However, Merkel J held that the only "rights" or "interests" the Walman Yawuru clan members might have in relation to the Yawuru claim area were those held in any capacity they might have as members of the Yawuru Community and not "other interests" that were required to be set out in the determination pursuant to s 225(c) of the Act : Rubibi (No 7), [13]
Case: Rubibi Community v The State of Western Australia (No 7) [2006] FCA 459
Outcome: referred to
The applicants in the first motion were originally applicants but became respondents to the proceedings on behalf of a subset of the Yawuru Community, known as the Walman Yawuru ("the Walman Yawuru respondents" ) . Their independent application for native title was dismissed: Rubibi Community v The State of Western Australia (No 7) [2006] FCA 459. They were joined as respondents on their application, by order of Merkel J: Rubibi Community v The State of Western Australia (No 3) [2002] FCA 876 ; (2002) 120 FCR 512.
Case: The State of Western Australia v Sebastian [2008] FCAFC 65 
Outcome: referred to
The Walman Yawuru respondents were accordingly unsuccessful in the substantive proceedings. These findings were undisturbed on appeal: The State of Western Australia v Sebastian [2008] FCAFC 65. 10 The proceedings were the subject of final orders made by Merkel J in April 2006 in Rubibi (No 7) . Those orders were amended by orders of French J made on 23 November 2006, 30 April 2007 and 9 May 2007 pursuant to a limited liberty to apply. The final orders included: (a) a determination of native title in which it was determined relevantly that the native title is held by the Yawuru Community; (b) orders dealing with the determination of a prescribed body corporate ("PBC") under s 56(1) or s 57(2) of the Act to hold the native title rights and interests on trust for the common law holders of the native title or to act as agent on their behalf; (c) liberty to apply to a Judge of the Court in respect of limited matters, namely matters arising out of the determination of a PBC and the inclusion in the Determination of maps showing the location of the determination area and of the areas comprising it; and (d) a declaration that, in respect of areas where native title has been determined to exist, the Rubibi proceedings are not "finalised" within the meaning of s 190(4)(e) of the Act until a PBC has been determined. The orders and declarations made by Merkel J on 28 April 2006 as well as the orders made by French J on 30 April 2007 are annexed to these reasons for ease of explanation. 11 Importantly, for reasons I will explain later, the determination as to the existence of native title does not take effect until the making of a determination in respect to a PBC under s 56(1) or s 57(2) of the Act .
Case: White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298
Outcome: cited
Section 31A of the Federal Court of Australia Act 1976 (Cth) ("FCA Act ") lowers the bar for obtaining summary judgment, including summary dismissal: White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298. It is nonetheless not relief which is granted lightly and the Court should be cautious in dismissing proceedings pursuant to s 31A: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720. The utility of bringing such a motion in the present circumstances is questionable when, inevitably, there was, in effect, full argument on the first motion as the means of considering the motion for dismissal. I will refer to the Walman Yawuru respondents, in respect to the dismissal motion, simply as the respondents.
Case: Agrillo v Codisposto (unreported, Federal Court, Sackville J, 16 December 1994) 
Outcome: cited
Honour made the following observations: (1) It is not only on the hearing of a petition that the Court may 'go behind' the judgment giving rise to the judgment debt on which the petitioning creditor relies; the judgment debt can be impeached on a notice to set aside a bankruptcy notice (at 268D). (2) His Honour noted the different approaches of Kiefel J in Re Baker; Ex parte Baker v Staples (unreported, Federal Court, Kiefel J, 4 September 1995) and Sheppard J in Re Geard; Ex parte Reid (unreported, Federal Court, Sheppard J, 11 February 1994) and to later decisions in which Geard was followed. (3) In the course of his judgment in Geard , Sheppard J had taken on board the following considerations: (a) The debtor had not made any application for a stay of proceedings pending the outcome of the appeal; (b) an application to extend time for compliance with the bankruptcy notice is not the hearing of a bankruptcy petition. The refusal of the application will not affect the status of the debtor but it will mean that he, in all probability, will commit an act of bankruptcy; (c) if the appeal is ultimately dismissed and the judgment stands with the consequence that the bankruptcy proceedings go on, it may be quite important to the petitioning creditor, whoever he or she may be, to the general body of creditors and to the trustee in bankruptcy, that there be, for the purposes of the administration of the bankrupt estate, an act of bankruptcy committed at an earlier time than would be the case if the application were acceded to. (4) The approach adopted by Sheppard J was followed by Whitlam J in Re Smith (unreported, Federal Court, 4 May 1994) and by Sackville J in Agrillo v Codisposto (unreported, Federal Court, Sackville J, 16 December 1994).
Case: Australian Securities and Investment Commission v Forge [2003] FCAFC 274 ; (2003) 133 FCR 487
Outcome: referred to
other words, the first application was to set aside the Bankruptcy Notice. There is no express power in the Act to do so but it is common ground that it is within the general powers of the Court conferred by s 30(1) of the Act: see Australian Securities and Investment Commission v Forge [2003] FCAFC 274 ; (2003) 133 FCR 487 at [26] per Emmett J. There are, in my view, a number of problems with Mrs Coshott's application to set aside the Bankruptcy Notice, not the least of which are: (1) Her amended application of 29 October 2009 was not accompanied by an affidavit which complied with r 3.02(1) of the Federal Court (Bankruptcy) Rules 2006 in that the affidavit did not set out the grounds in support of the application to set aside. Arguably, Mrs Coshott's affidavit of 27 October 2009 filed in support of her amended application of 29 October 2009 set out the grounds upon which she sought an extension of time for compliance with the Bankruptcy Notice in compliance with r 3.03(1), but even that is not beyond argument. But even if she did, that would not satisfy the requirements of r 3.02(1) which requires the affidavit to set out the grounds in support of the application to set aside. As was noted in Maher v Commonwealth Bank of Australia [2008] FMCA 1004 , a failure to address the material requirements of r 3.02 (in that case it was r 3.02 of the Federal Magistrates Court (Bankruptcy) Rules, but they are in the same terms) will normally be fatal to an application to set aside a bankruptcy notice. (2) Second, counsel for Mrs Coshott did not articulate any grounds upon which the application to set aside the Bankruptcy Notice was founded. The best one can find is at para (70) of his written submissions where it is put: The application to set aside the Bankruptcy Notice is underlying [the] application to set aside the Certificate of Determination [of Costs] [in] the District Court ... With respect, that is not a proper ground in support of Mrs Coshott's application to set aside the Bankruptcy Notice. As was said by Emmett J in Forge at [27]: [T]he Act gives no general discretion to set aside bankruptcy notices that are valid in form and not an abuse of process. The Act permits the issue of a bankruptcy notice and, if the notice is valid, prescribes the consequences to the bankrupt of non-compliance. The grounds upon which a bankruptcy notice may be set aside must relate to the form or content of the notice, service of the notice or the existence of the debt upon which the judgment, and, in turn, the notice, is founded. Reference to the existence of a debt includes the existence of a counterclaim, set-off or cross demand equal to or exceeding the amount of the debt: Re Briggs; Ex parte Briggs v Deputy Commissioner of Taxation (WA) (1986) 12 FCR 310 ; Re Athans; Ex parte Athans (1991) 29 FCR 302. Since jurisdiction to set aside a defective bankruptcy notice is not a general discretionary jurisdiction, it differs from the jurisdiction to make a sequestration order under s 52(1), which is expressly discretionary.
Case: Australian Shepherd v Chiquita Brands South Pacific Pty Ltd [2004] FCAFC 76
Outcome: referred to
second application sought an extension of time for compliance with the Bankruptcy Notice in reliance on s 41(6A) of the Act pending the outcome of Mrs Coshott's notice of motion filed on 23 October 2009 in proceeding No. 4000/09. As Hill and Marshall JJ observed in Shepherd v Chiquita Brands South Pacific Pty Ltd [2004] FCAFC 76 at [40] : Clearly s 41(6A) was intended to be in aid of the application to set aside ... the bankruptcy notice ... See too Re Sterling; Ex parte Esanda Ltd [1980] FCA 61 ; (1980) 44 FLR 125 at 130.