mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Finance Sector Union of Australia v Commonwealth Bank of Australia Limited [2000] FCA 1389
Outcome: discussed
Finance Sector Union of Australia v Commonwealth Bank of Australia Limited [2000] FCA 1389 , Moore J declined to make an order for cross-examination of a deponent of an affidavit sworn in response to an order for particular discovery. He considered that there was a power to order cross-examination, but that, as the affidavit of discovery should generally be treated as conclusive, the power should only be exercised "in order to do justice between the parties or to prevent an abuse of the Court's processes". The deponent had filed a supplementary affidavit to explain what he meant by "discarded" in his affidavit of discovery.
Case: Fruehauf Finance Corporation Pty Ltd v Zurich Australian Insurance Ltd (1990) 20 NSWLR 359
Outcome: discussed
Fruehauf Finance Corporation Pty Ltd v Zurich Australian Insurance Ltd (1990) 20 NSWLR 359 , Giles J considered an application to cross-examine the deponent of an affidavit put forward in support of a claim for privilege. He referred to Mulley v Manifold and to the principle that the affidavit of discovery is generally conclusive not only as to the amplitude of discovery, but also in relation to any claim for protection from production. Giles J declined to allow cross-examination in that case. He referred to authority to the effect that there was no power to allow cross-examination and to authority suggesting that there was a power, albeit a power to be exercised in limited circumstances.
Case: Global Intertrade Pty Ltd v Adelaide Festival Centre Trust [1999] FCA 162
Outcome: cited
fact that O 15A incorporates a number of processes and obligations in O 15 is established by the authorities. I refer to Global Intertrade Pty Ltd v Adelaide Festival Centre Trust [1999] FCA 162 (" Global Intertrade "); Tyco Australia Pty Limited v Leighton Contractors Pty Ltd [2005] FCAFC 115 ; Imperial Chemical Industries Plc v Echo Tasmanian Pty Ltd [2007] FCA 1731. However, the fact that O 15A incorporates certain parts of O 15 does not mean that it incorporates all parts of the Order. Order 15A does incorporate the provisions of O 15 dealing with inspection (that is, Division 2) but that is done expressly by O 15A r 10. By contrast, O 15 r 8 is a free-standing power available in cases of discovery in existing proceedings. It is not expressly incorporated into O 15A and there is no compelling reason to think that it was intended to be available in a case where an applicant does not have sufficient information to enable a decision to be made whether to commence a proceeding in this Court, that is to say, an applicant for preliminary discovery under O 15A r 6. Put another way, while it might be convenient for there to be a power of the type identified in O 15 r 8 in the case of orders for preliminary discovery, it is not so obviously necessary in such cases that it can be implied in the same way as, for example, the provisions dealing with the contents of a List of Documents (O 15 r 6).
Case: Hall v Truman, Hanbury &amp; Co (1885) 29 Ch D 307
Outcome: discussed
Noel v Noel [1863] EngR 646 ; 1 D.J. &amp; S. 468 , Turner LJ spoke of a reasonable suspicion that the deponent had more documents in his possession. In Lyell v Kennedy (1884) 27 Ch D 1 at 20, Cotton LJ followed this approach. In a case a short time later, his Lordship spoke of a presumption or prima facie case that the deponent had more documents in her possession ( Hall v Truman, Hanbury &amp; Co (1885) 29 Ch D 307 at 319-321).
Case: Imperial Chemical Industries Plc v Echo Tasmanian Pty Ltd [2007] FCA 1731
Outcome: cited
fact that O 15A incorporates a number of processes and obligations in O 15 is established by the authorities. I refer to Global Intertrade Pty Ltd v Adelaide Festival Centre Trust [1999] FCA 162 (" Global Intertrade "); Tyco Australia Pty Limited v Leighton Contractors Pty Ltd [2005] FCAFC 115 ; Imperial Chemical Industries Plc v Echo Tasmanian Pty Ltd [2007] FCA 1731. However, the fact that O 15A incorporates certain parts of O 15 does not mean that it incorporates all parts of the Order. Order 15A does incorporate the provisions of O 15 dealing with inspection (that is, Division 2) but that is done expressly by O 15A r 10. By contrast, O 15 r 8 is a free-standing power available in cases of discovery in existing proceedings. It is not expressly incorporated into O 15A and there is no compelling reason to think that it was intended to be available in a case where an applicant does not have sufficient information to enable a decision to be made whether to commence a proceeding in this Court, that is to say, an applicant for preliminary discovery under O 15A r 6. Put another way, while it might be convenient for there to be a power of the type identified in O 15 r 8 in the case of orders for preliminary discovery, it is not so obviously necessary in such cases that it can be implied in the same way as, for example, the provisions dealing with the contents of a List of Documents (O 15 r 6).
Case: IO Group Inc v Prestige Club Australasia Pty Ltd [2008] FCA 1147
Outcome: discussed
IO Group Inc v Prestige Club Australasia Pty Ltd [2008] FCA 1147 , a deponent of an affidavit of discovery was cross-examined. The deponent of the affidavit had not opposed an order for cross-examination. Flick J described the course of allowing cross-examination as unusual. His Honour did make the following observation (at [50]): "As events unfolded, it [cross-examination] was probably the only effective means whereby the Applicants could have exposed what they believed were inadequacies in the existing discovery as provided particularly by the Fourth Respondent. As a result of the cross-examination, the Applicants were proved right. An order requiring a further affidavit to be filed in respect to particular documents, without knowledge of the manifest deficiencies in the existing discovery, may well have proved as ineffective as the discovery previously provided." In my opinion, the examples given by the applicants of the insufficiency of the affidavit of discovery in relation to the five classes of documents in Schedule 2 demonstrate the insufficiency. I reject the respondents' contention that the affidavit of discovery is conclusive and that the Court is unable to make orders remedying the defects. In this case, the insufficiency of the affidavit appears on the face of the affidavit. At the same time, I do not think that this is a case where cross-examination should be ordered, at least at this stage. The respondents can be ordered to each file a further affidavit of discovery and this is not a case where there is no effective means other than cross-examination of preventing an injustice to the applicants. Each respondent must file a further affidavit of discovery in relation to the five classes of documents in Schedule 2 of the List of Documents. Further and better discovery or an order for particular discovery under O 15 r 8 (the orders sought in paragraphs 2 and 4 of the Motion) For the reasons I have already given, I do not think that O 15 r 8 is incorporated into O 15A. In those circumstances, it is not open to me to make an order for particular discovery under O 15 r 8. Nevertheless, as I have said, an affidavit of discovery under O 15A may be insufficient, and an order may be made that a further affidavit of discovery be filed. The principles are those set out above (see [28]-[34]). I must be satisfied that there are reasonable grounds for being fairly certain that discoverable documents exist. I may not have regard to a contentious affidavit.
Case: Lyell v Kennedy (1884) 27 Ch D 1
Outcome: discussed
Noel v Noel [1863] EngR 646 ; 1 D.J. &amp; S. 468 , Turner LJ spoke of a reasonable suspicion that the deponent had more documents in his possession. In Lyell v Kennedy (1884) 27 Ch D 1 at 20, Cotton LJ followed this approach. In a case a short time later, his Lordship spoke of a presumption or prima facie case that the deponent had more documents in her possession ( Hall v Truman, Hanbury &amp; Co (1885) 29 Ch D 307 at 319-321).
Case: Mulley v Manifold [1959] HCA 23 ; (1959) 103 CLR 341
Outcome: discussed
Mulley v Manifold [1959] HCA 23 ; (1959) 103 CLR 341 (" Mulley v Manifold ") (at 343), Menzies J said in a well-known passage: "So far as O. 32, r. 13 is concerned, it cannot be shown by a contentious affidavit that the discovery made is insufficient. Before 1912, it was thought that the insufficiency had to appear from the pleadings, the affidavit of documents itself or the documents therein referred to. However, in British Association of Glass Bottle Manufacturers Ltd. v. Nettlefold , it was established that the insufficiency might appear not only from the documents but also from any other source that constituted an admission of the existence of a discoverable document. Furthermore, it is not necessary to infer the existence of a particular document; it is sufficient if it appears that a party has excluded documents under a misconception of the case. Beyond this, the affidavit of discovery is conclusive." As the passage from Mulley v Manifold set out above makes clear, there are limits on the material which may be considered by a Court in determining the sufficiency of an affidavit of discovery. The most significant is that the insufficiency cannot be established by a contentious affidavit. The insufficiency of an affidavit of discovery will ordinarily lead to an order requiring the filing of a further affidavit of discovery. It may, in certain limited circumstances, lead to an order allowing cross-examination of the deponent. I turn now to examine the circumstances in which the Court will make an order for cross-examination of the deponent. In Fruehauf Finance Corporation Pty Ltd v Zurich Australian Insurance Ltd (1990) 20 NSWLR 359 , Giles J considered an application to cross-examine the deponent of an affidavit put forward in support of a claim for privilege. He referred to Mulley v Manifold and to the principle that the affidavit of discovery is generally conclusive not only as to the amplitude of discovery, but also in relation to any claim for protection from production. Giles J declined to allow cross-examination in that case. He referred to authority to the effect that there was no power to allow cross-examination and to authority suggesting that there was a power, albeit a power to be exercised in limited circumstances.
Case: Noel v Noel [1863] EngR 646 ; 1 D.J. &amp; S 468
Outcome: discussed
Noel v Noel [1863] EngR 646 ; 1 D.J. &amp; S. 468 , Turner LJ spoke of a reasonable suspicion that the deponent had more documents in his possession. In Lyell v Kennedy (1884) 27 Ch D 1 at 20, Cotton LJ followed this approach. In a case a short time later, his Lordship spoke of a presumption or prima facie case that the deponent had more documents in her possession ( Hall v Truman, Hanbury &amp; Co (1885) 29 Ch D 307 at 319-321).
Case: Olympic Airways SA v Spiros Alysandratos &amp; Consolidated Travel (Vic) Pty Ltd (Unreported, Supreme Court of Victoria, Harper J, 26 May 1997)
Outcome: discussed
Olympic Airways SA v Spiros Alysandratos &amp; Consolidated Travel (Vic) Pty Ltd (Unreported, Supreme Court of Victoria, Harper J, 26 May 1997), Harper J allowed cross-examination on an affidavit of discovery of particular documents. The case was a strong one because of the features identified in the following passage from his Honour's reasons: "It seems to me that the evidence is at present in such a state as to raise serious doubts as to whether the process of the court is being abused by the defendants in relation to discovery. I have, of course, formed no concluded view about this. It would be quite improper for me to do so. I simply say that on the material now before the court serious questions have arisen as to the legitimacy of the position thus far taken by the defendants in relation to discovery. Discovery being of particular importance in this matter, it may well be that if the defendants are seeking illegitimately to avoid their obligations in this regard, the plaintiffs will be disadvantaged in a way which will not subsequently be able to be rectified. The only process by which an important aspect of these proceedings can be explored at this stage is, it seems to me, by ordering the first defendant to attend for cross-examination. I appreciate that such a step is unusual."
Case: Tyco Australia Pty Limited v Leighton Contractors Pty Ltd [2005] FCAFC 115
Outcome: cited
fact that O 15A incorporates a number of processes and obligations in O 15 is established by the authorities. I refer to Global Intertrade Pty Ltd v Adelaide Festival Centre Trust [1999] FCA 162 (" Global Intertrade "); Tyco Australia Pty Limited v Leighton Contractors Pty Ltd [2005] FCAFC 115 ; Imperial Chemical Industries Plc v Echo Tasmanian Pty Ltd [2007] FCA 1731. However, the fact that O 15A incorporates certain parts of O 15 does not mean that it incorporates all parts of the Order. Order 15A does incorporate the provisions of O 15 dealing with inspection (that is, Division 2) but that is done expressly by O 15A r 10. By contrast, O 15 r 8 is a free-standing power available in cases of discovery in existing proceedings. It is not expressly incorporated into O 15A and there is no compelling reason to think that it was intended to be available in a case where an applicant does not have sufficient information to enable a decision to be made whether to commence a proceeding in this Court, that is to say, an applicant for preliminary discovery under O 15A r 6. Put another way, while it might be convenient for there to be a power of the type identified in O 15 r 8 in the case of orders for preliminary discovery, it is not so obviously necessary in such cases that it can be implied in the same way as, for example, the provisions dealing with the contents of a List of Documents (O 15 r 6).
Case: Pattison v Hadjimouratis [2006] FCAFC 153
Outcome: applied
An applicant for review under s 104(2) is under no obligation to demonstrate error on the part of the Registrar, and does not need to establish that the Registrar's exercise of discretion miscarried in the sense described in House v The King [1936] HCA 40 ; (1936) 55 CLR 499 at 505: Pattison v Hadjimouratis [2006] FCAFC 153 at [153] - [154] . The Magistrate must exercise any discretion on the material before him or her unaffected by how the Registrar may have exercised the discretion.
Case: Australian Coal and Shale Employees' Federation v Commonwealth [1953] HCA 25 ; (1953) 94 CLR 621
Outcome: applied
The remaining grounds of appeal attack the Magistrate's exercise of discretion. The appellant acknowledged the obstacles that lie in the way of such an attack. It must be shown that an error has been made in the exercise of the discretion. There is a strong presumption in favour of the correctness of the decision appealed from, which must be affirmed unless the court of appeal is satisfied that it is clearly wrong: Australian Coal and Shale Employees' Federation v Commonwealth [1953] HCA 25 ; (1953) 94 CLR 621 at 627.
Case: House v The King [1936] HCA 40 ; 55 CLR 499
Outcome: applied
An applicant for review under s 104(2) is under no obligation to demonstrate error on the part of the Registrar, and does not need to establish that the Registrar's exercise of discretion miscarried in the sense described in House v The King [1936] HCA 40 ; (1936) 55 CLR 499 at 505: Pattison v Hadjimouratis [2006] FCAFC 153 at [153] - [154] . The Magistrate must exercise any discretion on the material before him or her unaffected by how the Registrar may have exercised the discretion. 20 The circumstance is which error may be established in connection with an exercise of discretion are described in House v The King 55 CLR at 504-505: "It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so."
Case: Norbis v Norbis [1986] HCA 17 ; (1986) 161 CLR 513
Outcome: cited
In Norbis v Norbis [1986] HCA 17 ; (1986) 161 CLR 513 at 518 Mason and Deane JJ said: "If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance." 28 Whether someone has behaved unreasonably in particular circumstances involves a value judgment. It is a matter about which minds may well differ. In this case the appellant's conduct in response to the request in the GSM letter was relevant to the exercise of the Magistrate's discretion. The complaint that the Magistrate "relied too heavily" on that letter as opposed to other material does not demonstrate error in the exercise of the discretion. It simply argues about the end result of its exercise. See the passage from Norbis quoted at [21]. Nor does it mean, as the appellant submitted, that the Magistrate "thereby failed to consider properly the actions and conduct of the appellant".
Case: Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1987) 17 FCR 211
Outcome: applied
The above principles apply to an appeal against an order for costs: Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1987) 17 FCR 211 at 222. The starting point is that costs normally follow the event. In Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 at 97-98 McHugh J with whom Brennan CJ agreed, said: "The traditional exceptions to the usual order as to costs focus on the conduct of the successful party which disentitles it to the beneficial exercise of the discretion .... 'Misconduct' in this context means misconduct relating to the litigation, or the circumstances leading up to the litigation. Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute."
Case: Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72
Outcome: cited
The above principles apply to an appeal against an order for costs: Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1987) 17 FCR 211 at 222. The starting point is that costs normally follow the event. In Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 at 97-98 McHugh J with whom Brennan CJ agreed, said: "The traditional exceptions to the usual order as to costs focus on the conduct of the successful party which disentitles it to the beneficial exercise of the discretion .... 'Misconduct' in this context means misconduct relating to the litigation, or the circumstances leading up to the litigation. Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute."
Case: Hogg v J Isherwood-Hicks Pty Ltd (1992) 108 FLR 62
Outcome: cited
The appellant claims the Magistrate erred by relying on two earlier decisions: Hogg v J Isherwood-Hicks Pty Ltd (1992) 108 FLR 62 and Microsoft (International) Pty Ltd v Total Peripherals Pty Ltd [1998] VSC 50. It is said that they are distinguishable. In my view the appellant mistakes the use the Magistrate was making of these cases. She accepted that they were distinguishable. She was deprecating precipitate action on the part of the appellant, as were the judges in the two cases relied on. The Magistrate did not commit an appealable error by relying on what was said in those cases about precipitate action, as a relevant consideration, simply because the cases are distinguishable on their facts.
Case: Microsoft (International) Pty Ltd v Total Peripherals Pty Ltd [1998] VSC 50
Outcome: cited
The appellant claims the Magistrate erred by relying on two earlier decisions: Hogg v J Isherwood-Hicks Pty Ltd (1992) 108 FLR 62 and Microsoft (International) Pty Ltd v Total Peripherals Pty Ltd [1998] VSC 50. It is said that they are distinguishable. In my view the appellant mistakes the use the Magistrate was making of these cases. She accepted that they were distinguishable. She was deprecating precipitate action on the part of the appellant, as were the judges in the two cases relied on. The Magistrate did not commit an appealable error by relying on what was said in those cases about precipitate action, as a relevant consideration, simply because the cases are distinguishable on their facts.
Case: Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558
Outcome: cited
The appeal is being heard by me as a single judge pursuant to s 25 (1AA)(a) of the Federal Court of Australia Act 1976 (Cth). An appeal to this Court from a decision of the Federal Magistrates Court is an appeal by way of re-hearing, but the process remains a process for the correction of error. As Kenny J said in Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558 [4]: 'On an appeal by way of re-hearing, the powers of an appellate court are exercisable only if the appellant can demonstrate that, having regard to the evidence before the appellate court, the judgment under appeal is a consequence of some legal, factual or discretionary error'. 3 Therefore, the burden rests on the appellant to demonstrate some legal, factual or discretionary error by the Federal Magistrate. In turn, the Federal Magistrate was examining the question whether there was jurisdictional error on the part of the Tribunal. 4 The Tribunal examined each of the grounds upon which the appellant challenged the decision of the delegate, and rejected all of the grounds raised by the appellant. The Tribunal concluded that there was 'an overwhelming lack of credibility' in the appellant's claims regarding his political profile and activities and alleged fear of persecution for political reasons. The Tribunal formed the view that he had 'fabricated a colourful set of claims' to support his application for a protection visa.
Case: Mashayekhi v Minister for Immigration and Multicultural Affairs [2000] FCA 321 ; (2000) 97 FCR 381
Outcome: cited
The Tribunal's findings on credibility were central to its decision. A finding on credibility that was open to the Tribunal on the material before it does not give rise to an error of law: see Mashayekhi v Minister for Immigration and Multicultural Affairs [2000] FCA 321 ; (2000) 97 FCR 381 and W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703. Findings on credibility were described by McHugh J in Re Minister for Immigration ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 as the function of the primary decision-maker, par excellence: at 423 [67]. That does not mean that such findings are invulnerable to review, but it does mean that they will not ordinarily be reviewable if the Tribunal has provided a rational basis for rejecting the claims and relied upon matters that were logically probative of the issues it was determining: see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 552 and 559.