mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Dudzinski v Centrelink [2003] FCA 308
Outcome: cited
The first issue which arises concerns the application to discharge the injunctive order made on 19 May 2006. There is a preliminary question as to the circumstances that must be demonstrated before a court would consider varying or discharging an interlocutory injunction. Under O 35 r 7 of the Federal Court Rules , the Court has power to vary or set aside an order. Under sub-rule (1), the power extends to any judgment or order before it has been entered. After entry, the power is limited to stipulated cases which include the case where the order is interlocutory: see sub-rule (2)(c). In each case, the power is discretionary, and the authorities in this Court indicate that it is ordinarily only exercised in exceptional circumstances: see Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 at 549-552; Dudzinski v Centrelink [2003] FCA 308 (' Dudzinski' ) at [11]; and McDermott v Richmond Sales Pty Ltd (in liq) [2006] FCA 248 at [25] . Where the order has not been entered, an order varying or setting aside the terms of a judgment can also be made to correct error or oversight or to give effect to a review of the contemplated order so that the orders made more adequately deal with the matter as litigated before the Court: Yenald Nominees Pty Ltd v Como Investments Pty Ltd (1996) 18 ATPR 41-508. 5 The authorities indicate that the kind of exceptional circumstances that might attract the power of discharge or variation include where an interlocutory order was obtained by fraud or non-disclosure of material facts, or through an accident or mistake that occurred without the fault of the parties seeking the relief under O 35 r 7: see Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 at 549-551. The court's discretion to vary or set aside an order is to be exercised with great caution having regard to the importance of the public interest in the finality of litigation: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39 ; (1981) 148 CLR 170 (' Brown' ) at 178; Baker v Beckett (unreported, Supreme Court of NSW, Cohen J, 26 May 1998) (' Baker' ); and Chanel Ltd v FW Woolworth &amp; Co Ltd [1981] 1 All ER 745 (' Chanel' ) at 751. Similar principles apply to the variation or discharge of final orders: see Autodesk Inc v Dyason (No 2) [1993] HCA 6 ; (1993) 176 CLR 300 (' Autodesk' ) at 302, 307, 309-310, 317-318 and 321. Further, as Spender J emphasised in Dudzinski in relation to O 35 r 7(2)(c), the rule is not an alternative to the appellate procedure in respect of interlocutory judgments, nor is it to be invoked for the purpose of allowing a party to present a case a second time to its better advantage. In my opinion, these principles apply, a fortiori, where the party applying for discharge of an interlocutory order seeks to reargue the issues that have already been determined by reference to additional evidence that was available to it on the earlier occasion but which it chose not to advance: see also Autodesk at 310 per Brennan J.
Case: McDermott v Richmond Sales Pty Ltd (in liq) [2006] FCA 248
Outcome: cited
The first issue which arises concerns the application to discharge the injunctive order made on 19 May 2006. There is a preliminary question as to the circumstances that must be demonstrated before a court would consider varying or discharging an interlocutory injunction. Under O 35 r 7 of the Federal Court Rules , the Court has power to vary or set aside an order. Under sub-rule (1), the power extends to any judgment or order before it has been entered. After entry, the power is limited to stipulated cases which include the case where the order is interlocutory: see sub-rule (2)(c). In each case, the power is discretionary, and the authorities in this Court indicate that it is ordinarily only exercised in exceptional circumstances: see Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 at 549-552; Dudzinski v Centrelink [2003] FCA 308 (' Dudzinski' ) at [11]; and McDermott v Richmond Sales Pty Ltd (in liq) [2006] FCA 248 at [25] . Where the order has not been entered, an order varying or setting aside the terms of a judgment can also be made to correct error or oversight or to give effect to a review of the contemplated order so that the orders made more adequately deal with the matter as litigated before the Court: Yenald Nominees Pty Ltd v Como Investments Pty Ltd (1996) 18 ATPR 41-508.
Case: Yenald Nominees Pty Ltd v Como Investments Pty Ltd (1996) 18 ATPR 41-508
Outcome: cited
The first issue which arises concerns the application to discharge the injunctive order made on 19 May 2006. There is a preliminary question as to the circumstances that must be demonstrated before a court would consider varying or discharging an interlocutory injunction. Under O 35 r 7 of the Federal Court Rules , the Court has power to vary or set aside an order. Under sub-rule (1), the power extends to any judgment or order before it has been entered. After entry, the power is limited to stipulated cases which include the case where the order is interlocutory: see sub-rule (2)(c). In each case, the power is discretionary, and the authorities in this Court indicate that it is ordinarily only exercised in exceptional circumstances: see Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 at 549-552; Dudzinski v Centrelink [2003] FCA 308 (' Dudzinski' ) at [11]; and McDermott v Richmond Sales Pty Ltd (in liq) [2006] FCA 248 at [25] . Where the order has not been entered, an order varying or setting aside the terms of a judgment can also be made to correct error or oversight or to give effect to a review of the contemplated order so that the orders made more adequately deal with the matter as litigated before the Court: Yenald Nominees Pty Ltd v Como Investments Pty Ltd (1996) 18 ATPR 41-508.
Case: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39 ; (1981) 148 CLR 170
Outcome: considered
The authorities indicate that the kind of exceptional circumstances that might attract the power of discharge or variation include where an interlocutory order was obtained by fraud or non-disclosure of material facts, or through an accident or mistake that occurred without the fault of the parties seeking the relief under O 35 r 7: see Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 at 549-551. The court's discretion to vary or set aside an order is to be exercised with great caution having regard to the importance of the public interest in the finality of litigation: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39 ; (1981) 148 CLR 170 (' Brown' ) at 178; Baker v Beckett (unreported, Supreme Court of NSW, Cohen J, 26 May 1998) (' Baker' ); and Chanel Ltd v FW Woolworth &amp; Co Ltd [1981] 1 All ER 745 (' Chanel' ) at 751. Similar principles apply to the variation or discharge of final orders: see Autodesk Inc v Dyason (No 2) [1993] HCA 6 ; (1993) 176 CLR 300 (' Autodesk' ) at 302, 307, 309-310, 317-318 and 321. Further, as Spender J emphasised in Dudzinski in relation to O 35 r 7(2)(c), the rule is not an alternative to the appellate procedure in respect of interlocutory judgments, nor is it to be invoked for the purpose of allowing a party to present a case a second time to its better advantage. In my opinion, these principles apply, a fortiori, where the party applying for discharge of an interlocutory order seeks to reargue the issues that have already been determined by reference to additional evidence that was available to it on the earlier occasion but which it chose not to advance: see also Autodesk at 310 per Brennan J. 8 Ms O'Brien, senior counsel for the applicant, submitted that the respondents must meet a high threshold test in order to succeed in an application for orders discharging an interlocutory order. She cited Brown, Baker and Chanel in support of this submission. In Brown , the High Court held that a further order will be appropriate where new facts come into existence, or are discovered, which render the enforcement of the order unjust. Those changed circumstances must be established by evidence: Brown at 178 per Gibbs CJ, Aickin, Wilson and Brennan JJ. In Chanel , the Court said at 751 that: 'Even in interlocutory matters a party cannot fight over again a battle which has already been fought unless there has been some significant change of circumstances, or the party has become aware of facts which he could not reasonably have known, or found out, in time for the first encounter.' The applicant submitted that the respondents had failed to adduce evidence of any new facts or changed circumstances; rather, the matters relied upon by the respondents to support the application were wholly matters which could have been put into evidence at the hearing on 19 May 2006.
Case: Baker v Beckett (unreported, Supreme Court of NSW, Cohen J, 26 May 1998)
Outcome: cited
The authorities indicate that the kind of exceptional circumstances that might attract the power of discharge or variation include where an interlocutory order was obtained by fraud or non-disclosure of material facts, or through an accident or mistake that occurred without the fault of the parties seeking the relief under O 35 r 7: see Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 at 549-551. The court's discretion to vary or set aside an order is to be exercised with great caution having regard to the importance of the public interest in the finality of litigation: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39 ; (1981) 148 CLR 170 (' Brown' ) at 178; Baker v Beckett (unreported, Supreme Court of NSW, Cohen J, 26 May 1998) (' Baker' ); and Chanel Ltd v FW Woolworth &amp; Co Ltd [1981] 1 All ER 745 (' Chanel' ) at 751. Similar principles apply to the variation or discharge of final orders: see Autodesk Inc v Dyason (No 2) [1993] HCA 6 ; (1993) 176 CLR 300 (' Autodesk' ) at 302, 307, 309-310, 317-318 and 321. Further, as Spender J emphasised in Dudzinski in relation to O 35 r 7(2)(c), the rule is not an alternative to the appellate procedure in respect of interlocutory judgments, nor is it to be invoked for the purpose of allowing a party to present a case a second time to its better advantage. In my opinion, these principles apply, a fortiori, where the party applying for discharge of an interlocutory order seeks to reargue the issues that have already been determined by reference to additional evidence that was available to it on the earlier occasion but which it chose not to advance: see also Autodesk at 310 per Brennan J.
Case: Chanel Ltd v FW Woolworth &amp; Co Ltd [1981] 1 All ER 745
Outcome: cited
The authorities indicate that the kind of exceptional circumstances that might attract the power of discharge or variation include where an interlocutory order was obtained by fraud or non-disclosure of material facts, or through an accident or mistake that occurred without the fault of the parties seeking the relief under O 35 r 7: see Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 at 549-551. The court's discretion to vary or set aside an order is to be exercised with great caution having regard to the importance of the public interest in the finality of litigation: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39 ; (1981) 148 CLR 170 (' Brown' ) at 178; Baker v Beckett (unreported, Supreme Court of NSW, Cohen J, 26 May 1998) (' Baker' ); and Chanel Ltd v FW Woolworth &amp; Co Ltd [1981] 1 All ER 745 (' Chanel' ) at 751. Similar principles apply to the variation or discharge of final orders: see Autodesk Inc v Dyason (No 2) [1993] HCA 6 ; (1993) 176 CLR 300 (' Autodesk' ) at 302, 307, 309-310, 317-318 and 321. Further, as Spender J emphasised in Dudzinski in relation to O 35 r 7(2)(c), the rule is not an alternative to the appellate procedure in respect of interlocutory judgments, nor is it to be invoked for the purpose of allowing a party to present a case a second time to its better advantage. In my opinion, these principles apply, a fortiori, where the party applying for discharge of an interlocutory order seeks to reargue the issues that have already been determined by reference to additional evidence that was available to it on the earlier occasion but which it chose not to advance: see also Autodesk at 310 per Brennan J. 8 Ms O'Brien, senior counsel for the applicant, submitted that the respondents must meet a high threshold test in order to succeed in an application for orders discharging an interlocutory order. She cited Brown, Baker and Chanel in support of this submission. In Brown , the High Court held that a further order will be appropriate where new facts come into existence, or are discovered, which render the enforcement of the order unjust. Those changed circumstances must be established by evidence: Brown at 178 per Gibbs CJ, Aickin, Wilson and Brennan JJ. In Chanel , the Court said at 751 that: 'Even in interlocutory matters a party cannot fight over again a battle which has already been fought unless there has been some significant change of circumstances, or the party has become aware of facts which he could not reasonably have known, or found out, in time for the first encounter.' The applicant submitted that the respondents had failed to adduce evidence of any new facts or changed circumstances; rather, the matters relied upon by the respondents to support the application were wholly matters which could have been put into evidence at the hearing on 19 May 2006.
Case: Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd [2006] VSC 170
Outcome: distinguished
Dr Jessup QC, senior counsel for the respondents (the applicants on the notice of motion), referred me to several decisions concerning the principles which apply where an interlocutory application is made several times and the previous applications are unsuccessful: Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd [2006] VSC 170 (' Tenth Vandy' ) and Nominal Defendant v Manning [2000] NSWCA 80 ; (2000) 50 NSWLR 139 (' Manning' ). The decision of Hargrave J in Tenth Vandy canvasses the authorities concerning multiple interlocutory applications, including the decision of the Victorian Court of Appeal in DA Christie Pty Ltd v Baker (1996) 2 VR 582. There is, it seems to me, a distinction between the approach which might be adopted in relation to multiple interlocutory applications where the relevant principal concerns abuse of process, and the approach which has been adopted in relation to applications to vary or discharge an interlocutory order, where the interlocutory order can, in any event, be the subject of an appeal with leave.
Case: Nominal Defendant v Manning [2000] NSWCA 80 ; (2000) 50 NSWLR 139
Outcome: distinguished
Dr Jessup QC, senior counsel for the respondents (the applicants on the notice of motion), referred me to several decisions concerning the principles which apply where an interlocutory application is made several times and the previous applications are unsuccessful: Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd [2006] VSC 170 (' Tenth Vandy' ) and Nominal Defendant v Manning [2000] NSWCA 80 ; (2000) 50 NSWLR 139 (' Manning' ). The decision of Hargrave J in Tenth Vandy canvasses the authorities concerning multiple interlocutory applications, including the decision of the Victorian Court of Appeal in DA Christie Pty Ltd v Baker (1996) 2 VR 582. There is, it seems to me, a distinction between the approach which might be adopted in relation to multiple interlocutory applications where the relevant principal concerns abuse of process, and the approach which has been adopted in relation to applications to vary or discharge an interlocutory order, where the interlocutory order can, in any event, be the subject of an appeal with leave.
Case: DA Christie Pty Ltd v Baker (1996) 2 VR 582
Outcome: cited
Dr Jessup QC, senior counsel for the respondents (the applicants on the notice of motion), referred me to several decisions concerning the principles which apply where an interlocutory application is made several times and the previous applications are unsuccessful: Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd [2006] VSC 170 (' Tenth Vandy' ) and Nominal Defendant v Manning [2000] NSWCA 80 ; (2000) 50 NSWLR 139 (' Manning' ). The decision of Hargrave J in Tenth Vandy canvasses the authorities concerning multiple interlocutory applications, including the decision of the Victorian Court of Appeal in DA Christie Pty Ltd v Baker (1996) 2 VR 582. There is, it seems to me, a distinction between the approach which might be adopted in relation to multiple interlocutory applications where the relevant principal concerns abuse of process, and the approach which has been adopted in relation to applications to vary or discharge an interlocutory order, where the interlocutory order can, in any event, be the subject of an appeal with leave.
Case: Robb v Hammersmith and Fulham London Borough Council [1991] IRLR 72; [1991] ICR 514
Outcome: considered
In oral submissions, Dr Jessup proposed that the injunctive order should either be stayed or discharged in the absence of an undertaking being proffered now by the applicant equivalent to that proffered by the employee in Robb v Hammersmith and Fulham London Borough Council [1991] IRLR 72; [1991] ICR 514 at 523. The effect of that undertaking was, inter alia, that until trial, the employee would agree to be treated as suspended on full pay. In my opinion, there is no reason why this submission should cause me to alter or vary the orders I made on 19 May 2006. It is open to the applicant and the respondents, by direct discussions or arrangements between them, to address the basis upon which Ms Paras continues in employment pending trial. 18 The final order sought by the notice of motion was an order extending the time in which an application for leave to appeal against my orders of 19 May 2006 might be filed pursuant to O 52 r 10(2) of the Federal Court Rules . Under that rule, a motion seeking leave to appeal must be filed within seven days after the date on which the interlocutory judgment was pronounced. 19 The judgment was pronounced on 19 May 2006 and the seven day period would expire next Monday 29 May 2006. Dr Jessup submits that a short extension of time is appropriate in view of the fact that my published reasons for judgment became available in writing yesterday. The reasons were pronounced orally at the conclusion of the hearing on 19 May 2006.
Case: Deighton v Telstra Corporation Ltd (unreported, Full Federal Court, Lee, Heerey and Nicholson JJ, 17 October 1997)
Outcome: cited
The likelihood of leave to appeal being granted is a relevant consideration, even on a limited application to extend the time for the filing of a notice of motion seeking leave: see Deighton v Telstra Corporation Ltd (unreported, Full Federal Court, Lee, Heerey and Nicholson JJ, 17 October 1997) and Croker v Philips Electronics Australia Ltd [2000] FCA 1731. I have some reservation as to whether an appropriate case for an extension of time has been made out. However, I will grant a short extension of time for the filing of a notice of motion seeking leave to appeal. In reaching this conclusion, I am conscious that, as I said in my reasons for judgment of 19 May 2006, the grant of an interlocutory injunction in an employment situation such as this is exceptional, although I consider that this case has special features which made the grant of such relief necessary and appropriate.
Case: Croker v Philips Electronics Australia Ltd [2000] FCA 1731
Outcome: cited
The likelihood of leave to appeal being granted is a relevant consideration, even on a limited application to extend the time for the filing of a notice of motion seeking leave: see Deighton v Telstra Corporation Ltd (unreported, Full Federal Court, Lee, Heerey and Nicholson JJ, 17 October 1997) and Croker v Philips Electronics Australia Ltd [2000] FCA 1731. I have some reservation as to whether an appropriate case for an extension of time has been made out. However, I will grant a short extension of time for the filing of a notice of motion seeking leave to appeal. In reaching this conclusion, I am conscious that, as I said in my reasons for judgment of 19 May 2006, the grant of an interlocutory injunction in an employment situation such as this is exceptional, although I consider that this case has special features which made the grant of such relief necessary and appropriate.
Case: Bahonko v The Commonwealth [2008] FCAFC 16
Outcome: cited
Under the circumstances, bearing in mind the matter has not been served, that there is no proper respondent and that the application for an order of review is bound to fail because the underlying document is simply not in a form capable of being filed, this application for an order of review is dismissed pursuant to O 20, and pursuant to s 31A of the Federal Court of Australia Act 1976 (see Bahonko v The Commonwealth [2008] FCAFC 16). I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 27 June 2008 The Applicant appeared in person Date of Hearing: 25 June 2008 Date of Judgment: 25 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/981.html
Case: Adler v Australian Securities &amp; Investments Commission [2003] NSWCA 131 ; (2003) 179 FLR 1
Outcome: referred to
rule in Jones v Dunkel was discussed however in Adler v Australian Securities &amp; Investments Commission [2003] NSWCA 131 ; (2003) 179 FLR 1 , Williams v Australian Securities &amp; Investments Commission [2003] NSWCA 131 ; (2003) 46 ACSR 504 , a judgment handed down before the High Court's Rich ruling, where the New South Wales Court of Appeal ruled that the trial judge, Santow J ((2002) [2002] NSWSC 171 ; 41 ACSR 72) , made no error in so far as his findings against Mr Adler, his company and Mr Williams were aided by Jones v Dunkel inferences against both those individuals and the company. In that proceeding ASIC had sought, inter alia , disqualification orders as well as pecuniary penalties. Giles JA, with whom Mason P and Beazley JA agreed, considered the High Court criminal cases discussed above and noted at [658] that proceedings for civil penalties do not share the same fundamental features of a criminal trial. His Honour stated that civil penalty proceedings are expressly to be maintained by civil law processes, not by a criminal trial with its fundamental features, [659]. He concluded that it was open for Jones v Dunkel inferences to be drawn against Mr Adler, his company, and Mr Williams in the proceedings, [661]. The rulings in Adler were therefore made on the footing that the privilege against exposure to penalty was attracted through ASIC's seeking of pecuniary penalties, but this did not prevent the trial judge from applying the rule in Jones v Dunkel, the rule and privilege both falling within the rules of evidence and procedure for civil matters that the court was bound to apply pursuant to s 1317L of the act when hearing proceedings for a declaration of contravention or a pecuniary penalty order. The High Court refused an application for special leave to appeal from the Court of Appeal's decision in Adler : [2004] HCATrans 182 , 28 May 2004. The transcript reveals that the special leave point argued was the issue of procedural fairness in dealing with the imposition of pecuniary penalties and disqualification under the civil penalties regime of the Act; there was no discussion of the rule in Jones v Dunkel .