mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355
Outcome: considered
On behalf of Jemella Australia the submission which is made is that one ought not to regard the references in s 137(1) to a 10-day period as rigid. In aid of that particular construction reference is made to a passage in the reasons for judgment of the New South Wales Court of Appeal in Tasker v Fullwood (1978) 1 NSWLR 20 at 23, which was approved by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355 at 390. The passage from Tasker v Fullwood , which received approval is as follows: The problem is to be solved in the process of construing the relevance statute. Little, if any, assistance, will be derived from the terms of other statutes or any supposed judicial classification of them by reference to subject matter. The task of construction is to determine whether the legislature intended that if only to comply with the stipulated requirement would invalidate the act done, or whether the validity of the act would be preserved notwithstanding non-compliance: the Franklin Stores Pty Ltd case. The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute: Hatton v Beaumont. The intention being sought is the effect upon the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement: Victoria v The Commonwealth. It can mislead if one substitutes for the question thus posed an investigation as to whether the statute is mandatory or directory in its terms. It is an invitation to error, not only because the true inquiry will thereby be sidetracked, but also because these descriptions have been used with varying significations. In particular, it is wrong to say that, if a statute is couched in directory terms, the act will be invalid, unless substantial performance is demonstrated; the Franklin Stores Pty Ltd case. A statute which, on its proper construction, does not nullify the act in question, even for total non-observance of the stipulation, is also described as directory in its terms: Victoria v The Commonwealth (internal footnote references omitted).
Case: Brown v Rezitis [1970] HCA 56 ; (1970) 127 CLR 157
Outcome: cited
In Brown v Rezitis [1970] HCA 56 ; (1970) 127 CLR 157 the High Court considered the proper construction of s 88F(2) of the Industrial Arbitration Act 1940-1967 (NSW), which provided (at 160): "The commission, in making an order or award pursuant to subsection one of this section, may make such order as to the payment of money in connection with any contract, arrangement, condition or collateral arrangement declared void, in whole or in part, or varied in whole or in part, as may appear to the commission to be just in the circumstances of the case." Barwick CJ, with whom the other members of the Court agreed, said at 165: "Whilst it can be said that the expression 'in connection with' is of wide import, it does emphasize the need for a close connexion between the order made and the contract or arrangement varied or avoided. In my opinion, the power to make an order for the payment of money is at best no more than a power to make such an order as can reasonably be thought to have a real connexion with the making, variation or avoidance of the contract or arrangement which has been varied or avoided."
Case: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Outcome: cited
In Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 a Full Court of the Federal Court was concerned with the construction of s 164 of the Customs Act 1901 (Cth) which provided for the payment of a rebate in respect of diesel fuel used for certain purposes. The term "agriculture" was defined as including certain operations "connected with" certain other operations. The Full Court said at 288: "The words 'connected with' are capable of describing a spectrum of relationships ranging from the direct and immediate to the tenuous and remote. As Sheppard and Burchett JJ observed in Australian National Railways Commission v Collector of Customs (SA) at 378, the meaning of the word 'connection' is wide and imprecise, one of its common meanings being 'relation between things one of which is bound up with, or involved in, another': Shorter Oxford English Dictionary ."
Case: Taciak v Commissioner of Australian Federal Police (1995) 59 FCR 285
Outcome: applied
This passage was adopted by Sackville J in Taciak v Commissioner of Australian Federal Police (1995) 59 FCR 285 at 295. Sackville J continued: "The question remains in a particular case what kind of relationship will suffice to establish the connection contemplated by the statute. This requires, to use the language in Pozzolanic , at FCR 289, a 'value judgment about the range of the Act'. The value judgment required is more likely to depend on the statutory context than on dictionary definitions." 45 I consider that the same approach should be taken to the meaning of "permitted purpose" in s 67(1) of the TIA Act . It will be a question of fact as to what is the close or real connection but I do not consider that it must be established that the connection must have a purpose of advancing, helping or aiding the Australian investigation. It is a sufficient connection that the purpose of the communication was to assist the Greek authorities in relation to the prosecution of the applicant in Greece, in relation to the same or similar offences which the AFP was investigating in Australia. 46 As I have noted earlier, there is no evidence which enables me to determine the circumstances under which the contents of the intercepted telephone conversations were communicated to Mr Livanis. Accepting for the purpose of the analysis what Mr Livanis said to the Athens Court, it is apparent that by May 2005 the American Drug Enforcement administration and the AFP were investigating a network that was trafficking various kinds of drugs in a number of countries, including Greece and Australia. It is apparent from Mr Livanis' evidence that the American Drug Enforcement administration and the AFP were exchanging information about this network. I am prepared to infer from Mr Livanis' evidence that if indeed it was the AFP that communicated to him the details of the intercepted telephone conversations that such communication had a close and real connection with the AFP's investigations in Australia in relation to contraventions of Australian law by the applicant and others.
Case: Jess v Scott (1986) 12 FCR 187
Outcome: referred to
these reasons, I do not consider that special circumstances have been established within the well-known principle stated in Jess v Scott (1986) 12 FCR 187 at 195. Accordingly, I see no reason to justify a departure from the ordinary rule prescribing the period within which a notice of appeal must be filed and served. Accordingly, the order I will make is that the application be dismissed. The ordinary order to make in these circumstances is that the applicant pay the costs of this application, and that is the order I will make. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 24 August 2009 The Appellant appeared in person. Solicitor for the Respondents: Clayton Utz Date of Hearing: 21 August 2009 Date of Judgment: 21 August 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/950.html
Case: Batistatos v Road &amp; Traffic Authority of New South Wales [2006] HCA 27 ; (2006) 227 ALR 425
Outcome: referred to
order that the Court can deal with the issue of whether the proceedings are vexatious or oppressive it is not necessary to establish that the continuance of the action would involve moral delinquency on the part of the plaintiff or applicant: what is decisive is the objective effect of the continuation of the action in the forum when other proceedings are pending in a court of another State or Territory within the Commonwealth: Batistatos v Road &amp; Traffic Authority of New South Wales [2006] HCA 27 ; (2006) 227 ALR 425 at 442 [70] per Gleeson CJ, Gummow, Hayne and Crennan JJ. In Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 ; (2006) 227 ALR 425 at 427-431 [4] - [16] Gleeson CJ, Gummow, Hayne and Crennan JJ discussed the concept of abuse of court process. They noted that what amounts to abuse of court process is insusceptible of a formulation comprising closed categories and that development continues (227 ALR at 428 [9]). Here, I am of opinion that it would be unduly vexatious and oppressive upon Wholefoods to require it to litigate these proceedings in this Court. Mr Kinnear, although in law a separate individual, in a practical sense is closely connected to Wholefoods. He will be required to litigate in the Supreme Court proceedings, issues which, even the Dairy, in the joinder motion before Bongiorno J recognized were closely connected. The Courts must have regard to the realities of the capacity of individuals, including corporations, to deal with litigation. Litigation is invariably expensive. It is stressful on individuals concerned with it, be they personal parties to the litigation or, where there are small, and sometimes large, corporations involved, on the individual director or shareholder or employee concerned. Courts must be mindful that there are both matters of public and private interest in ensuring that litigation does not become overwhelming for one or other of the parties concerned because it is conducted on more than one front in different courts or different jurisdictions.
Case: BHP Billiton Ltd v Schultz [2004] HCA 61 ; (2004) 221 CLR 400
Outcome: applied
course, the principles relating to a stay on the ground of oppression or vexation are not directly applicable to the application currently before me. Rather, I am concerned with the test in s 5(4)(d) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth) as to whether it is otherwise in the interests of justice that these proceedings be determined by the Supreme Court of Victoria in which case I must transfer the proceedings to that court. As Callinan J noted in BHP Billiton Ltd v Schultz [2004] HCA 61 ; (2004) 221 CLR 400 at 492 [258] , one person's legitimate advantage is another person's disadvantage and there should be no presumption in litigation in favour of any party. His Honour continued: 'Courts are required to do equal justice.' And, as Gleeson CJ, McHugh and Heydon JJ said in that case (221 CLR at 421 [14]): '... the Court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice.' The Dairy can hardly complain if I see the Supreme Court of Victoria as being the place where the interests of justice require these proceedings to be determined. After all, the Dairy has initiated defamation proceedings in that forum and has joined Mr Kinnear there. The other respondent to this application, Mr Whitsed, now consents to the application to cross vest the proceedings, and he is a resident of Victoria.
Case: Henry v Henry [1995] HCA 64 ; (1996) 185 CLR 571 
Outcome: considered
can be no doubt that the concurrent maintenance of proceedings in two different jurisdictions involving the same parties can be seen as vexatious and oppressive within the meaning of the test on which the exercise of the power of a superior court of record to stay proceedings exists. Bringing multiple proceedings with respect to the same subject matter in different courts in Australia was discussed by Dawson, Gaudron, McHugh and Gummow JJ in Henry v Henry [1995] HCA 64 ; (1996) 185 CLR 571 at 590-591. They said: 'In Union Steamship Co of New Zealand Ltd v The Caradale [1937] HCA 1 ; (1937) 56 CLR 277 at 281, Dixon J observed of that latter situation that "[t]he inconvenience and embarrassment of allowing two independent actions involving the same question of liability to proceed contemporaneously in different courts needs no elaboration". From the parties' point of view, there is no less -- perhaps, considerably more -- inconvenience and embarrassment if the same issue is to be fought in the courts of different countries according to different regimes, very likely permitting of entirely different outcomes. It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue (see Moore v Inglis (1976) 9 ALR 509; 50 ALJR 589 and, on appeal, (1976) 51 ALJR 207).'
Case: Lange v Australian Broadcasting Corporation [1997] HCA 25 ; (1997) 189 CLR 520
Outcome: referred to
Court is clearly able to hear and determine the claims in defamation. They are in federal jurisdiction because the Australian Broadcasting Corporation, among other things, pleaded a defence of qualified privilege which relied upon the principle in Lange v Australian Broadcasting Corporation [1997] HCA 25 ; (1997) 189 CLR 520. It said the broadcast concerned government or political matters that affected the people of Australia and that it was published within the implied constitutional freedom of communication on government and political matter. This Court has jurisdiction to hear and determine that matter under s 39B(1A)(b) of the Judiciary Act 1903 (Cth) as a matter arising under the Constitution or involving its interpretation. However, no party has applied to the Supreme Court of Victoria to cross vest the matter here. I have not overlooked one possibility which may be available that, until matters clarify in the Supreme Court proceedings, this matter could be transferred to the Victorian Registry of the Court where, if need be, it could be later cross vested under the Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth).
Case: Maniotis v JH Lever &amp; Co Pty Ltd [2006] FCAFC 7
Outcome: considered
sought to have the Dairy answer properly a particular identifying whether the Dairy was alleging that it had suffered any and, if so, what loss of business or economic loss or special damage. To those questions the Dairy simply responded 'Yes'. As I pointed out during the course of argument, in commercial litigation of this character and, as indeed in other litigation in today's society, that approach is unacceptable for the reasons given by Allsop J in White v Overland [2001] FCA 1333 at [4] which were applied by Heydon JA with the endorsement of Mason P and Young CJ in Eq in Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346 ; (2001) 53 NSWLR 116 at 128-129 [28] - [32] and by a Full Court of this Court in Maniotis v JH Lever &amp; Co Pty Ltd [2006] FCAFC 7 at [72] per Finn, Emmett and Bennett JJ. In the last case, the Court said: '[72] In the efficient and proper conduct of civil litigation, even civil litigation hard fought between parties, it should always be recognised that, in the propounding of issues for trial, the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are. Quietly leaving footprints in correspondence or directions hearings to be uncovered some time later in an attempt to reveal that a matter was always in issue is a practice that must be firmly discouraged. Where it is evident, or indeed suspected, that the other side is proceeding on the basis of a misconception or has not appreciated something, common sense will, as a general rule, mandate that a party ensure that the other is not proceeding on a misconception or that the other does appreciate something that has been said. No one's interests are advanced by litigation proceeding on assumptions which are seen or suspected to be false. The only consequence of keeping issues hidden or not clearly identifying them is to disrupt the business of the court leading to the waste of valuable public resources and to lead to the incurring of unnecessary costs by the parties, costs which ultimately have to be borne by someone: see White v Overland [2001] FCA 1333 at [4] .' And as Heydon JA noted that even in personal injury litigation 'the ambush theory of life has been abandoned' (53 NSWLR at 128 [30]). Counsel for the Dairy recognized that particulars were required, and I made an order at the conclusion of the hearing that they be given within three weeks.
Case: National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155
Outcome: cited
is important that this Court retain the flexibility as to venue which was established by the decision in National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155 at 165 per Bowen CJ, Woodward and Lockhart JJ. They said that the Court's powers under s 48 of the Federal Court of Australia 1976 (Cth) and under the Court's Rules exist within the context of a national court. Earlier they said that the power under s 48 should be exercised flexibly having regard to the circumstances of a particular case. The Court or judge is in a position to mould orders under the section to take account of the many and varied circumstances that arise in particular cases (19 FCR at 162). However, in light of the evidence this is not the appropriate course to take here. The new material confirms that there is a single controversy arising out of the assertions made in the letter signed by Mr Kinnear. I am satisfied that these proceedings should be transferred to the Supreme Court of Victoria in the interests of justice. The more recent developments make it even more compelling that the whole controversy be decided in the one forum. The Dairy has chosen to litigate on a considerable scale there. Given that the Dairy asserts that all its Victorian claims for defamation should be heard together because of the commonality of facts, I am of opinion that these proceedings are so closely connected to them that they should be cross-vested. I will hear the parties on whether I should make an order for these proceedings to be referred to mediation on 17 November 2006 before the same mediator as is dealing with the media claims. If that mediator needs to conduct mediations separately with those parties or in a different way I am provisionally of the view that the mediator will be able to devise an effective means of doing so, even if the ABC and its journalists who are defendants do not consent to that course. However, the parties should have an opportunity to consider the position and to approach the mediator to see whether what I have in mind is feasible. If all parties were to approach the mediation in good faith with a view to resolving disputes, there would be considerable advantages in a common mediation.
Case: Atlantis Corporation Pty Ltd v Schindler , unreported, Emmett J, 27 May 1997
Outcome: cited
Alphapharm and Arrow accept that, upon the appropriate undertakings being given by Lundbeck, there should be a stay in relation to revocation of claim 5 of the Patent since there is some doubt as to the Court's power to order re-instatement: see Atlantis Corporation Pty Ltd v Schindler , unreported, Emmett J, 27 May 1997; Doric Products Pty Ltd v Lockwood Security Products Pty Ltd (2002) 54 IPR 495 at [4]; Imperial Chemical Industries plc v E I Dupont De Nemours &amp; Co (2002) 58 IPR 227 at [11]. I agree that there should be a stay in relation to claim 5. I note that in Doric v Lockwood above, Hely J observed (at [4]) that it is usual for an order for revocation of a patent to be stayed pending an appeal against the order.
Case: Doric Products Pty Ltd v Lockwood Security Products Pty Ltd (2002) 54 IPR 495
Outcome: cited
Alphapharm and Arrow accept that, upon the appropriate undertakings being given by Lundbeck, there should be a stay in relation to revocation of claim 5 of the Patent since there is some doubt as to the Court's power to order re-instatement: see Atlantis Corporation Pty Ltd v Schindler , unreported, Emmett J, 27 May 1997; Doric Products Pty Ltd v Lockwood Security Products Pty Ltd (2002) 54 IPR 495 at [4]; Imperial Chemical Industries plc v E I Dupont De Nemours &amp; Co (2002) 58 IPR 227 at [11]. I agree that there should be a stay in relation to claim 5. I note that in Doric v Lockwood above, Hely J observed (at [4]) that it is usual for an order for revocation of a patent to be stayed pending an appeal against the order.
Case: Imperial Chemical Industries plc v E I Dupont De Nemours &amp; Co (2002) 58 IPR 227
Outcome: cited
Alphapharm and Arrow accept that, upon the appropriate undertakings being given by Lundbeck, there should be a stay in relation to revocation of claim 5 of the Patent since there is some doubt as to the Court's power to order re-instatement: see Atlantis Corporation Pty Ltd v Schindler , unreported, Emmett J, 27 May 1997; Doric Products Pty Ltd v Lockwood Security Products Pty Ltd (2002) 54 IPR 495 at [4]; Imperial Chemical Industries plc v E I Dupont De Nemours &amp; Co (2002) 58 IPR 227 at [11]. I agree that there should be a stay in relation to claim 5. I note that in Doric v Lockwood above, Hely J observed (at [4]) that it is usual for an order for revocation of a patent to be stayed pending an appeal against the order.
Case: Woolworths Ltd v BP plc [2006] FCAFC 52 ; (2006) 150 FCR 134
Outcome: referred to
On the question of the Court's power to order reinstatement, in contending that the Full Court would have that power, Alphapharm relies on Woolworths Ltd v BP plc [2006] FCAFC 52 ; (2006) 150 FCR 134 ( Woolworths ) at [30] [48] per Sundberg and Bennett JJ. Lundbeck contends that Woolworths is distinguishable. That case concerned s 68(1)(b) of the Trade Marks Act 1995 (Cth) (TM Act), in circumstances in which a trade mark had been registered pursuant to the order of the primary Judge and the issue was whether the Court, in its appellate jurisdiction, had power to order removal of the mark. There are some differences between s 192 of the Act and s 68(1)(b) of the TM Act. 18 Lundbeck points out that there has been no judicial determination of the Court's power to order reinstatement of an entry in the Register where the Court has ordered removal of particulars of an extension of term and the order for rectification of the Register has been implemented. 19 I will not explore the present question. It suffices to say that while I suspect that it would be within the implied power of the Court to order reinstatement, there is some doubt which is not clearly removed by Woolworths . 20 There should be a stay in relation to removal of the extension of the term. The potential hardship to Lundbeck if there is no stay, it succeeds in its appeal, and the Court is found to lack power to order reinstatement, far exceeds the hardship to Alphapharm if there is a stay, it successfully resists Lundbeck's appeal, and the appeal is not determined until after 13 June 2009. 21 As a condition of getting the stay, the Lundbeck parties must give to the Court the usual undertaking as to damages, an undertaking to prosecute their appeal expeditiously, and related undertakings.
Case: Hughes v Western Australian Cricket Association (Inc) (1986] ATPR 40-748
Outcome: cited
Section 43 of the Federal Court of Australia Act 1976 (Cth) gives the Court a broad discretion to award costs. In Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 , Toohey J stated (at 2): 1. Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order: Ritter v. Godfrey (1920) 2 K.B. 47. 2. Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed: Forster v. Farquhar (1893) 1 Q.B. 564. 3. A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party's costs of them. In this sense, "issue" does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law: Cretazzo v. Lombardi (1975) 13 S.A.S.R. 4 at 12.