mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Save the Ridge Inc v Commonwealth [2005] FCAFC 203 ; (2005) 147 FCR 97
Outcome: cited
The legal principles that govern the exercise of the Court's discretion under this rule have been discussed in a number of recent cases, and are well established: see Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334 (' Bass' ) at 355-359; Tepko Pty Ltd v Water Board [2001] HCA 19 ; (2001) 206 CLR 1 (' Tepko' ) at 55; Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 (' Reading' ) at 497-500 [7]-[11]; Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia [2005] FCA 1002 ( 'Direct Factory Outlets' ) at [2]-[4]; Souflett Beheer v AWB Limited [2004] FCA 518 ( 'Souflett Beheer' ) at [19]-[20]; Kockums AB v Commonwealth [2002] FCAFC 138 at [38] - [41] ; SmithKline Beecham (Aust) Pty Ltd v Chipman [2002] FCA 674 (' SmithKline' ) at [35]-[39]; SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd [2006] FCA 14 (' Diageo' ) at [22]-[27]; Save the Ridge Inc v Commonwealth [2005] FCAFC 203 ; (2005) 147 FCR 97 ( 'Save the Ridge' ) at 103-104 [15]-[17]; Rainsford v Victoria [2005] FCAFC 163 ; (2005) 144 FCR 279 (' Rainsford' ) at 291-294 36-44; Director of Fisheries (NT) v Arnhem Land Aboriginal Land Trust [2001] FCA 98 ; (2001) 109 FCR 488 ( 'Director of Fisheries' ) at 521 [139] and 526-527 [163]; and Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 (' Tallglen' ) at 141-142. 38 The courts have repeatedly warned of the dangers that attend the trial of separate or preliminary questions. In Tepko at 55 [168]-[170], Kirby and Callinan JJ said that the attraction of trials of separate questions are often more chimerical than real; savings in time and expense can prove illusory and the process can generate other problems such as interlocutory appeals and consequent delays. Their Honours concluded that single issue trials should only be embarked upon when their utility, economy and fairness to the parties are beyond question: at 55 [170]. In Direct Factory Outlets , Sackville J said, quite correctly, that the dangers of separate trials are well illustrated by the numerous cases in which the process has miscarried. In Save the Ridge at 103 [15], Black CJ and Moore J said that the O 29 procedure is one that should be adopted with caution as it can be fraught with difficulties. In Tallglen at 141-142, Giles CJ said that the ordering of separate trials must be carefully controlled lest fragmentation of the proceedings (particularly when the exercise of rights of appeal is borne in mind) brings delay, expense and hardship greater than that which the making of the order was intended to avoid. Similar statements can be found in this Court: see eg Novartis Corp Protection Australasia Pty Ltd v Orica Australia Pty Ltd [2001] FCA 1013 at [7] per Stone J.
Case: Director of Fisheries (NT) v Arnhem Land Aboriginal Land Trust [2001] FCA 98 ; (2001) 109 FCR 488
Outcome: cited
The legal principles that govern the exercise of the Court's discretion under this rule have been discussed in a number of recent cases, and are well established: see Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334 (' Bass' ) at 355-359; Tepko Pty Ltd v Water Board [2001] HCA 19 ; (2001) 206 CLR 1 (' Tepko' ) at 55; Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 (' Reading' ) at 497-500 [7]-[11]; Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia [2005] FCA 1002 ( 'Direct Factory Outlets' ) at [2]-[4]; Souflett Beheer v AWB Limited [2004] FCA 518 ( 'Souflett Beheer' ) at [19]-[20]; Kockums AB v Commonwealth [2002] FCAFC 138 at [38] - [41] ; SmithKline Beecham (Aust) Pty Ltd v Chipman [2002] FCA 674 (' SmithKline' ) at [35]-[39]; SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd [2006] FCA 14 (' Diageo' ) at [22]-[27]; Save the Ridge Inc v Commonwealth [2005] FCAFC 203 ; (2005) 147 FCR 97 ( 'Save the Ridge' ) at 103-104 [15]-[17]; Rainsford v Victoria [2005] FCAFC 163 ; (2005) 144 FCR 279 (' Rainsford' ) at 291-294 36-44; Director of Fisheries (NT) v Arnhem Land Aboriginal Land Trust [2001] FCA 98 ; (2001) 109 FCR 488 ( 'Director of Fisheries' ) at 521 [139] and 526-527 [163]; and Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 (' Tallglen' ) at 141-142. 34 In Bass at 359 [56], the High Court said that it would be contrary to the judicial process and no part of the judicial power to effect a determination of rights by applying the law to facts which are neither agreed nor determined by reference to the evidence in the case. The Full Federal Court applied this principle in Rainsford at 291 [36] and Director of Fisheries at 526 [163]. In Rainsford at 291 [36], Kenny J said that, in order for a court exercising federal jurisdiction to utilise the separate questions procedure, either the parties must agree on the relevant facts or the court must determine the facts before deciding the question. 35 The cases indicate that great caution needs to be exercised in formulating a separate question for determination on the basis of assumed facts. The assumed facts may prove to be incomplete or insufficiently precise: Director of Fisheries at 521 [139] and 526 [163]. The parties may also have different views concerning the effect or duration of the assumptions; for instance, they may consider that they can depart from the assumptions and re-agitate the facts in another part of the case: see SmithKline at [23], [27] and [89].
Case: Jacobson v Ross [1995] 1 VR 337
Outcome: considered
The separate question procedure poses special problems where the preliminary question is one of mixed fact and law: Bass at 358 [53]. In that situation, it is essential that there be precision both in formulating the question and specifying the facts upon which it is to be decided for the reasons given by Brooking J in Jacobson v Ross [1995] 1 VR 337 at 341. 46 While the refusal of declaratory relief on discretionary grounds will always be heavily dependent on the facts of the particular case, the discretion must be exercised within a framework of relevant legal principle. The cases afford guidance as to the way in which the discretion is to be exercised. In this sense, the question whether declaratory relief should be refused as a matter of discretion raises questions of fact and law, albeit heavily weighted towards the former. The separation of such a question poses special problems for the reasons stated by the High Court in Bass at 358 [53] and by Brooking J in Jacobson at 341. 56 In my opinion, the statements of principle by Branson J in Reading (which are summarised above in paragraph 33) are directly applicable. So too are the principles stated in Bass and Jacobson concerning mixed questions of fact and law. I am not satisfied that all of the necessary facts have been ascertained, agreed or proven so as to permit the judicial determination of question 1.1 as a separate question. Further, I am not satisfied that, on a separate trial of question 1.1, the Court would be placed in a position where it can consider all relevant matters before it exercises its discretion to grant or refuse relief.
Case: CBS Productions Pty Ltd v O'Neill [1985] 1 NSWLR 601
Outcome: cited
In CBS Productions Pty Ltd v O'Neill [1985] 1 NSWLR 601 at 606, Kirby P said that a matter is 'ripe' for separate and preliminary determination where it is a central issue in contention between the parties, and its resolution will either obviate the necessity of litigation altogether or substantially narrow the field of controversy. This proposition assumes, of course, that the factual foundation for the determination of the issue has been resolved: see Rocklea Spinning Mills v Anti-Dumping Authority (1995) 56 FCR 406; and SmithKline at [35]-[39]. In Tallglen , Giles CJ in the Commercial Division said at 141-142 that in the ordinary course all issues in proceedings should be decided at the one time, but the separate decision of a question may be appropriate where, for example, the decision of a question is critical to the outcome of the proceedings and (at least if decided in one way) will bring the proceedings to an end. His Honour added that, in particular circumstances, the separate decision of a question may be appropriate even if it will not bring the proceedings to an end, such as where there is a strong prospect that the parties will agree upon the result when the core of the dispute is decided or where the decision will obviate unnecessary and expensive hearings of other questions.
Case: Rocklea Spinning Mills v Anti-Dumping Authority (1995) 56 FCR 406
Outcome: cited
In CBS Productions Pty Ltd v O'Neill [1985] 1 NSWLR 601 at 606, Kirby P said that a matter is 'ripe' for separate and preliminary determination where it is a central issue in contention between the parties, and its resolution will either obviate the necessity of litigation altogether or substantially narrow the field of controversy. This proposition assumes, of course, that the factual foundation for the determination of the issue has been resolved: see Rocklea Spinning Mills v Anti-Dumping Authority (1995) 56 FCR 406; and SmithKline at [35]-[39]. In Tallglen , Giles CJ in the Commercial Division said at 141-142 that in the ordinary course all issues in proceedings should be decided at the one time, but the separate decision of a question may be appropriate where, for example, the decision of a question is critical to the outcome of the proceedings and (at least if decided in one way) will bring the proceedings to an end. His Honour added that, in particular circumstances, the separate decision of a question may be appropriate even if it will not bring the proceedings to an end, such as where there is a strong prospect that the parties will agree upon the result when the core of the dispute is decided or where the decision will obviate unnecessary and expensive hearings of other questions.
Case: Novartis Corp Protection Australasia Pty Ltd v Orica Australia Pty Ltd [2001] FCA 1013
Outcome: cited
The courts have repeatedly warned of the dangers that attend the trial of separate or preliminary questions. In Tepko at 55 [168]-[170], Kirby and Callinan JJ said that the attraction of trials of separate questions are often more chimerical than real; savings in time and expense can prove illusory and the process can generate other problems such as interlocutory appeals and consequent delays. Their Honours concluded that single issue trials should only be embarked upon when their utility, economy and fairness to the parties are beyond question: at 55 [170]. In Direct Factory Outlets , Sackville J said, quite correctly, that the dangers of separate trials are well illustrated by the numerous cases in which the process has miscarried. In Save the Ridge at 103 [15], Black CJ and Moore J said that the O 29 procedure is one that should be adopted with caution as it can be fraught with difficulties. In Tallglen at 141-142, Giles CJ said that the ordering of separate trials must be carefully controlled lest fragmentation of the proceedings (particularly when the exercise of rights of appeal is borne in mind) brings delay, expense and hardship greater than that which the making of the order was intended to avoid. Similar statements can be found in this Court: see eg Novartis Corp Protection Australasia Pty Ltd v Orica Australia Pty Ltd [2001] FCA 1013 at [7] per Stone J.
Case: Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 ; (1990) 171 CLR 538
Outcome: cited
AWB also relied upon an analogy with the forum non conveniens line of cases to submit that the determination of question 1.1 at a separate trial is likely to raise issues as to the extent to which the Court is duty bound to exercise the jurisdiction that has been invoked by AWB, whether this Court is 'a not inappropriate forum' for the resolution of AWB's privilege claims, and whether the Court should proceed to exercise its jurisdiction in the absence of any suggestion that AWB has acted vexatiously or oppressively in submitting its privilege claims to this Court: see Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 ; (1990) 171 CLR 538 at 554, 558-559 and 564-565; Regie Nationale Renault v Zhang [2002] HCA 10 ; (2002) 210 CLR 491 at 502-504; Oceanic Sun Line Shipping Company Inc v Fay [1988] HCA 32 ; (1988) 165 CLR 197 at 239; Humane Society International Inc v Kyodo Senpaku Caisha Ltd [2006] FCAFC 116 ; and Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260 at 286-287.
Case: Regie Nationale Renault v Zhang [2002] HCA 10 ; (2002) 210 CLR 491
Outcome: cited
AWB also relied upon an analogy with the forum non conveniens line of cases to submit that the determination of question 1.1 at a separate trial is likely to raise issues as to the extent to which the Court is duty bound to exercise the jurisdiction that has been invoked by AWB, whether this Court is 'a not inappropriate forum' for the resolution of AWB's privilege claims, and whether the Court should proceed to exercise its jurisdiction in the absence of any suggestion that AWB has acted vexatiously or oppressively in submitting its privilege claims to this Court: see Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 ; (1990) 171 CLR 538 at 554, 558-559 and 564-565; Regie Nationale Renault v Zhang [2002] HCA 10 ; (2002) 210 CLR 491 at 502-504; Oceanic Sun Line Shipping Company Inc v Fay [1988] HCA 32 ; (1988) 165 CLR 197 at 239; Humane Society International Inc v Kyodo Senpaku Caisha Ltd [2006] FCAFC 116 ; and Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260 at 286-287.
Case: Oceanic Sun Line Shipping Company Inc v Fay [1988] HCA 32 ; (1988) 165 CLR 197
Outcome: cited
AWB also relied upon an analogy with the forum non conveniens line of cases to submit that the determination of question 1.1 at a separate trial is likely to raise issues as to the extent to which the Court is duty bound to exercise the jurisdiction that has been invoked by AWB, whether this Court is 'a not inappropriate forum' for the resolution of AWB's privilege claims, and whether the Court should proceed to exercise its jurisdiction in the absence of any suggestion that AWB has acted vexatiously or oppressively in submitting its privilege claims to this Court: see Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 ; (1990) 171 CLR 538 at 554, 558-559 and 564-565; Regie Nationale Renault v Zhang [2002] HCA 10 ; (2002) 210 CLR 491 at 502-504; Oceanic Sun Line Shipping Company Inc v Fay [1988] HCA 32 ; (1988) 165 CLR 197 at 239; Humane Society International Inc v Kyodo Senpaku Caisha Ltd [2006] FCAFC 116 ; and Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260 at 286-287.
Case: Humane Society International Inc v Kyodo Senpaku Caisha Ltd [2006] FCAFC 116
Outcome: cited
AWB also relied upon an analogy with the forum non conveniens line of cases to submit that the determination of question 1.1 at a separate trial is likely to raise issues as to the extent to which the Court is duty bound to exercise the jurisdiction that has been invoked by AWB, whether this Court is 'a not inappropriate forum' for the resolution of AWB's privilege claims, and whether the Court should proceed to exercise its jurisdiction in the absence of any suggestion that AWB has acted vexatiously or oppressively in submitting its privilege claims to this Court: see Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 ; (1990) 171 CLR 538 at 554, 558-559 and 564-565; Regie Nationale Renault v Zhang [2002] HCA 10 ; (2002) 210 CLR 491 at 502-504; Oceanic Sun Line Shipping Company Inc v Fay [1988] HCA 32 ; (1988) 165 CLR 197 at 239; Humane Society International Inc v Kyodo Senpaku Caisha Ltd [2006] FCAFC 116 ; and Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260 at 286-287.
Case: Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260
Outcome: cited
AWB also relied upon an analogy with the forum non conveniens line of cases to submit that the determination of question 1.1 at a separate trial is likely to raise issues as to the extent to which the Court is duty bound to exercise the jurisdiction that has been invoked by AWB, whether this Court is 'a not inappropriate forum' for the resolution of AWB's privilege claims, and whether the Court should proceed to exercise its jurisdiction in the absence of any suggestion that AWB has acted vexatiously or oppressively in submitting its privilege claims to this Court: see Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 ; (1990) 171 CLR 538 at 554, 558-559 and 564-565; Regie Nationale Renault v Zhang [2002] HCA 10 ; (2002) 210 CLR 491 at 502-504; Oceanic Sun Line Shipping Company Inc v Fay [1988] HCA 32 ; (1988) 165 CLR 197 at 239; Humane Society International Inc v Kyodo Senpaku Caisha Ltd [2006] FCAFC 116 ; and Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260 at 286-287.
Case: Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564
Outcome: cited
The Commonwealth expressly conceded that this proceeding is neither hypothetical nor abstract, and raises a genuine controversy that constitutes a 'matter' appropriate for judicial determination: Bass at 355-356; Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 581-582 and 596; and Oil Basins Ltd v Commonwealth [1993] HCA 60 ; (1993) 178 CLR 643 at 649-650. Nonetheless, the Commonwealth submitted that, because of the presently incomplete definition of the issues that will have to be resolved in this Court, the proceeding is premature. In my opinion, this submission does not assist the Commonwealth's application for separate trials. In any proceeding, the process of joining and defining the issues of fact and law that will fall the decision takes some time, and will ordinarily follow the institution of proceedings. The issues in this case are still being defined and there are several reasons why that process is incomplete: the Commonwealth wished to pursue its notice of motion for separate questions at this hearing, which the Court had originally set aside as a hearing at which it was anticipated that there would be a trial of all issues; AWB has filed most but not all its evidence in support of its privilege claims; and the Commissioner has, thus far, taken the stance that it would be inappropriate for him as a submitting respondent to assist the Commonwealth, or the Court, to determine the merits or otherwise of AWB's claims for privilege.
Case: Oil Basins Ltd v Commonwealth [1993] HCA 60 ; (1993) 178 CLR 643
Outcome: cited
The Commonwealth expressly conceded that this proceeding is neither hypothetical nor abstract, and raises a genuine controversy that constitutes a 'matter' appropriate for judicial determination: Bass at 355-356; Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 581-582 and 596; and Oil Basins Ltd v Commonwealth [1993] HCA 60 ; (1993) 178 CLR 643 at 649-650. Nonetheless, the Commonwealth submitted that, because of the presently incomplete definition of the issues that will have to be resolved in this Court, the proceeding is premature. In my opinion, this submission does not assist the Commonwealth's application for separate trials. In any proceeding, the process of joining and defining the issues of fact and law that will fall the decision takes some time, and will ordinarily follow the institution of proceedings. The issues in this case are still being defined and there are several reasons why that process is incomplete: the Commonwealth wished to pursue its notice of motion for separate questions at this hearing, which the Court had originally set aside as a hearing at which it was anticipated that there would be a trial of all issues; AWB has filed most but not all its evidence in support of its privilege claims; and the Commissioner has, thus far, taken the stance that it would be inappropriate for him as a submitting respondent to assist the Commonwealth, or the Court, to determine the merits or otherwise of AWB's claims for privilege.
Case: McGowan v Migration Agents Registration Authority [2003] FCA 482 ; (2003) 129 FCR 118
Outcome: discussed
The Commonwealth could not refer me to any case in which the Court has made an order under O 29 r 2 for the separate trial of the question whether declaratory relief should be refused as a matter of discretion, prior to any consideration of the merits of the claim for declaratory relief. It did, however, refer me to McGowan v Migration Agents Registration Authority [2003] FCA 482 ; (2003) 129 FCR 118 ( 'McGowan' ) which concerned the dismissal of a judicial review application. 67 In McGowan , the applicant sought judicial review of a decision by the Migration Agents Registration Authority to suspend her registration as a migration agent until she satisfied certain conditions. The applicant made an application to the Administrative Appeals Tribunal under s 306 of the Migration Act for a merits review of the Authority's decision to suspend her registration some days before she instituted proceedings in the Federal Court seeking judicial review of the Authority's decision. The application was founded principally on the provisions of the Administrative Decisions (Judicial Review) Act 1977 ( 'ADJR Act' ), but also relied in the alternative on s 39B(1A)(c) of the Judiciary Act . The relief sought by the applicant included an order pursuant to s 16(1) of the ADJR Act setting aside or quashing the Authority's decision, and in the alternative, orders by way of prohibition and injunction pursuant to s 39B.
Case: Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523
Outcome: cited
McGowan forms part of a line of cases which recognises that the Court has a discretion to decline to embark on the judicial review of an administrative decision if a full merits review of that decision is available before an independent statutory tribunal, and the tribunal's decision can then be appealed to, or reviewed by, a court: Edelsten at 423-424; Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523 at 530; Bragg v Secretary of the Department of Employment, Education and Training (1995) 59 FCR 31 (' Bragg' ) at 33; Yarmirr v Australian Telecommunications Corporation (1990) 96 ALR 739 at 750; Du Pont (Australia) Ltd v Comptroller-General of Customs (1993) 30 ALD 829; Saitta Pty Ltd v Commonwealth [2000] FCA 1546 ; (2000) 106 FCR 554 at 575 [104] ; and Re Kamha v Australian Prudential Regulation Authority [2005] FCA 480 ; (2005) 146 FCR 24 ( 'Re Kamha' ) at 35 [41] and 36 [46]. In Re Kamha , Gyles J declined to exercise his discretion at a preliminary stage of the case: at 35 [39]. However, after the evidentiary case had been completed and the applicant had completed its submissions, Gyles J determined that it was appropriate to decline judicial review. In doing so, his Honour emphasised that a full merits review before the Administrative Appeals Tribunal was the appropriate means of reviewing the decision, and that means was likely to provide a more satisfactory remedy than the Court could provide on judicial review: at 35 [41] and 36 [46]. In Bragg at 33, Davies J said that the alternative method of review referred to in s 10(2)(b)(ii) of the ADJR Act is one involving 'an independent exercise of powers directly affecting the decision reviewed'. Courts have taken a range of considerations into account in exercising the discretion to decline judicial review, including matters such as whether the alternative form of review will be conclusive of the dispute, whether it is to be undertaken by a specialist tribunal that operates in a technical field, the inability of the court to provide a review on the merits, and whether any hardship or disadvantage will be caused by the applicant being forced to pursue the alternative remedy.