mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760
Outcome: cited
I am mindful that the status of an applicant to bring a native title determination application is of central importance: see Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 at [43] . See also Ward 196 ALR 32 at [15] and [40].
Case: Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637
Outcome: cited
As the submissions of senior counsel for Ms Foster indicate, other decisions of this Court have held that the words 'the application' in ss 66B(1)(b) refer to both the native title determination application and the application under s 66B ( Daniel 194 ALR 278 at [53]) or to only the s 66B application ( Chapman 159 FCR [5]; Mandingalbay [2004] FCA 1703 at [40] ; Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [36] ). Any authority to make the native title determination application and authority to make the application under s 66B are clearly interdependent. The members of the claim group authorised to apply under s 66B to replace an applicant must be the proposed new applicant and they must be authorised to make the native title determination application and deal with matters arising under it. Consequently, in my view, authorisation to bring the application under s 66B must follow from the authorisation required by s 66B(1)(b). That authorisation includes separate authorisation for each member of the native title claim group who will make up "the applicant". For those persons who will not be newly appointed, but who will maintain their existing status, it would be sufficient to merely refer to their prior authorisation and the fact that it has not been revoked: Butchulla [2006] FCA 1063 ; 154 FCR 233 at [45] .
Case: Milroy v Lord (1862) 4 De GF &amp; J 264
Outcome: discussed
seminal case dealing with the circumstances in which equity will recognise the assignment of property without consideration is Milroy v Lord (1862) 4 De GF &amp; J 264. The test laid down by Turner LJ was in the following terms (at 274): "I take the law of this Court to be well settled, that, in order to render a voluntary settlement valid and effectual, the settler must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him. ... there is no equity in this Court to perfect an imperfect gift." The question of what constituted "everything which ... was necessary" was the subject of considerable discussion, and confusion, over many years. In Anning v Anning [1907] HCA 13 ; (1907) 4 CLR 1049, each member of the High Court interpreted Milroy v Lord differently. The facts of the case, briefly stated, were as follows. Mr William Anning, a few days before his death, conveyed equal shares in his personal estate to his wife and children. This estate included a leasehold and money in bank accounts. He did so by deed of gift, and executed a will of realty, but nothing further. The transaction was alleged to have been made to avoid the payment of succession duty. The appellant, his widow, sought a determination of whether there had been an effective gift.
Case: Anning v Anning [1907] HCA 13 ; (1907) 4 CLR 1049 
Outcome: discussed
Anning v Anning [1907] HCA 13 ; (1907) 4 CLR 1049, each member of the High Court interpreted Milroy v Lord differently. The facts of the case, briefly stated, were as follows. Mr William Anning, a few days before his death, conveyed equal shares in his personal estate to his wife and children. This estate included a leasehold and money in bank accounts. He did so by deed of gift, and executed a will of realty, but nothing further. The transaction was alleged to have been made to avoid the payment of succession duty. The appellant, his widow, sought a determination of whether there had been an effective gift. Dixon J, with whom Rich J agreed, held that a transferee of land under the Real Property Act 1900 (NSW) obtained no estate in the land, legal or equitable, until his transfer was registered. The learned authors of Meagher, Gummow and Lehane's Equity: Doctrines and Remedies (2002, 4 th ed) comment (at [6-120]) that Dixon J took the same view, at least as regards estates in Torrens Title land, as Isaacs J took in Anning v Anning , namely that property could be assigned at law, but the assignment of it was not complete in equity until it was complete at law. It followed, therefore, that even on the assumption that Mr Sellar had done everything which he alone could do to perfect the gift, the remainder interest did not, in equity, vest in the housekeeper. However, Dixon J went on to say (at 599-600): "But, under the system of the Real Property Act , a transferee may be in a position by registering an instrument to obtain a legal estate, although prior to registration neither the legal nor any equitable estate was vested in him. If that system allows a volunteer to acquire an indefeasible right to the registration of an instrument in his favour, then, although it would remain true that before registration he had neither a legal nor an equitable estate in the land, yet he would be entitled to a right of a new description arising under the statute, and by its exercise he could vest the legal estate in himself. The true question in the present case appears to me to be whether the appellant acquired a right of this nature which the deceased or his executor could not intercept or defeat. There is no a priori reason why statutory provisions making title depend upon registration should not confer upon a person in whose favour a registrable instrument has been made, a right to procure its registration, notwithstanding that it is voluntary, and no reason why it should not leave the transferor powerless to countermand his instrument. Such a right would not depend upon the doctrines or remedies of a court of equity, and, pending actual registration, the transferee could not be considered entitled to an equitable interest any more than to a legal interest in the land. It might appear anomalous, but the anomaly would be no obstacle to the existence of the right." For criticism of Dixon J's analysis see Meagher, Gummow and Lehane's Equity: Doctrines and Remedies at [6-125]. See also Olsson v Dyson [1969] HCA 3 ; (1969) 120 CLR 365.
Case: Brunker v Perpetual Trustee Co (Ltd) [1937] HCA 29 ; (1937) 57 CLR 555 
Outcome: discussed
Brunker v Perpetual Trustee Co (Ltd) [1937] HCA 29 ; (1937) 57 CLR 555, the facts were, briefly, that Mr Sellar, the registered proprietor of a parcel of Torrens title land, executed on the day before his death a voluntary transfer to his housekeeper of an estate in the land in remainder. The land was subject to a mortgage to a bank, but as it was intended that the remainder interest should be transferred free of the mortgage, particulars of it were not entered in the memorandum of prior encumbrances. However, the mortgage was not discharged, and the bank remained at all material times, in possession of the certificate of title. After signing the transfer, Mr Sellar handed it to a law stationer who had prepared it acting, so it was held, as agent for the transferor and not the housekeeper. After Mr Sellar's death, the transfer came into the possession of the housekeeper who delivered it to her solicitors. They in turn inserted particulars of the bank's mortgage in the memorandum of prior encumbrances and lodged the transfer for registration. However, the certificate of title was not produced to the Registrar General. Meanwhile, Mr Sellar's executor had lodged a caveat against the registration of dealings affecting the land, and he initiated proceedings in which he sought, and obtained, an order declaring the transfer to be void. An appeal against that order was dismissed by the High Court.
Case: Olsson v Dyson [1969] HCA 3 ; (1969) 120 CLR 365 
Outcome: referred to
criticism of Dixon J's analysis see Meagher, Gummow and Lehane's Equity: Doctrines and Remedies at [6-125]. See also Olsson v Dyson [1969] HCA 3 ; (1969) 120 CLR 365.
Case: Costin v Costin (1997) 7 BPR 15,167
Outcome: discussed
principles preferred by the High Court in Corin v Patton were applied by the New South Wales Court of Appeal in Costin v Costin (1997) 7 BPR 15,167. In that case, Eric Costin made arrangements to transfer an interest in property to his son Nicholas (the respondent). He executed a transfer and instructed his solicitors to provide the certificate of title to allow registration. However, before his solicitors carried out those instructions, Eric Costin changed his mind and executed a transfer to his other son, Robert (the appellant), which was then registered. The Court of Appeal resolved the dispute between the sons in favour of Robert. Brownie AJA, with whom Powell JA agreed, held (at 15,170): "... the intended gift by Eric Costin to the respondent was complete in the sense that the donor had done all that was required to be done by him alone to transfer the legal title. If his solicitors had acted as he had directed, the legal title would have passed. But the donor had not done all that was necessary to render the gift binding upon himself, or to arm or equip the donee with the means of securing registration of the transfer, or of putting the transfer beyond the donor's recall or intervention . As the events that occurred demonstrated, the donor effectively allowed the appellant rather than the respondent to become the owner at law of the donor's interest in the property. The respondent submitted, and I accept, that the donor intended to perfect his gift; but he failed to achieve that aim before changing his intention . As Corin and other cases show, more is needed. No doubt, too, it is true that if the donor's solicitors had promptly done what the donor directed them to do, the gift would have become complete, and effective, and it would have become impossible for the donor to recall the gift; but this did not happen, and the case has to be considered in the light of what did happen, rather than what might have happened." (emphasis added)
Case: Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8 ; (2008) 165 FCR 211
Outcome: distinguished
Recently I declined to make an order for costs against an unsuccessful party in litigation raising environmental issues: Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8 ; (2008) 165 FCR 211 at [73] . The present case, however, is not comparable. Unlike Blue Wedges , the present case did not raise any novel questions of general importance about the operation of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) or any difficult questions of construction.
Case: Save the Ridge Inc v Commonwealth [2006] FCAFC 51 ; (2006) 230 ALR 411
Outcome: cited
The general rule is that the losing party should pay the successful party's costs. As the Full Court pointed out in Save the Ridge Inc v Commonwealth [2006] FCAFC 51 ; (2006) 230 ALR 411 at [6] , the fact that the unsuccessful party was raising a matter of public interest does not necessarily warrant a departure from this rule. In the same vein Marshall J said in Wilderness Society Inc v Turnbull [2007] FCA 1863 ; (2007) 98 ALD 651 at [30] : The real issue is not what is considered to be in the public interest or whether public interest considerations are a recognised exception to the usual rule, but rather, whether it can be said that there are sufficient public interest related reasons connected with or leading up to the litigation that warrant a departure from or outweigh the important consideration that a wholly successful respondent would ordinarily be awarded its costs.
Case: Wilderness Society Inc v Turnbull [2007] FCA 1863 ; (2007) 98 ALD 651
Outcome: cited
The general rule is that the losing party should pay the successful party's costs. As the Full Court pointed out in Save the Ridge Inc v Commonwealth [2006] FCAFC 51 ; (2006) 230 ALR 411 at [6] , the fact that the unsuccessful party was raising a matter of public interest does not necessarily warrant a departure from this rule. In the same vein Marshall J said in Wilderness Society Inc v Turnbull [2007] FCA 1863 ; (2007) 98 ALD 651 at [30] : The real issue is not what is considered to be in the public interest or whether public interest considerations are a recognised exception to the usual rule, but rather, whether it can be said that there are sufficient public interest related reasons connected with or leading up to the litigation that warrant a departure from or outweigh the important consideration that a wholly successful respondent would ordinarily be awarded its costs.
Case: Your Water Your Say Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 670
Outcome: referred to
On 16 May 2008 I gave judgment for the respondents and directed written submissions as to costs: Your Water Your Say Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 670. 4 The case against the first respondent, the Federal Minister, in my opinion had no arguable merit. It was plain that no relevant decision was made by the Federal Minister about the Preliminary Works. Neither respondent contended that the delegate's observation in the s 75 decision that the Preliminary Works did not "require approval under the EPBC Act" had any legal effect. The applicant submitted that it "won the point there was no 'approval'". But the respondents never suggested there was. It was not a case of "de facto approval": see [2008] FCA 670 at [17] [21]. 5 Reference was made in the costs submissions of the applicant to an "advertorial" in the South Gippsland Sentinel-Times of 26 March 2008 which stated: The Federal Government determined that these works in themselves would not have any significant environmental effects and subsequently decided that they would not need to be subject to the requirements of EES. 6 Quite apart from the lack of proper proof, and consideration of the context, this does not add anything. As pointed out in the substantive judgment [2008] FCA 670 at [21] , if works do not have approval under the EPBC Act and in fact have significant impact on matters of national environmental significance, persons carrying out the works face criminal sanctions. However, as will shortly be mentioned in regard to the case against the State of Victoria, there was no proof that any such impact was likely. 7 The case against the State of Victoria had even less merit. The only material adduced in support of an application to have the Court order the stopping of the Preliminary Works was a report by an unidentified individual as to the environmental effects of a wind farm some distance from the works in question. This was spectacularly irrelevant. 8 Even if the applicant qualified for the special provision for standing in ss 487 and 488 of the EPBC Act, that does not carry any particular significance on the issue of costs. The general rule that the losing party pays the winner's costs necessarily assumes that the former has standing.
Case: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Outcome: followed
Principles which may assist the Court in exercising its discretion under O 52 r 15(2) include the following: 1. Applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an acceptable explanation for the delay and it must be fair and equitable in the circumstances to extend time; 2. Action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished; 3. Any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension; 4. The mere absence of prejudice is not enough to justify the grant of an extension; and 5. The merits of the substantial application are to be taken into account in considering whether an extension of time should be granted. (Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349.) 7 Applying these principles to the application before me the following issues are clear.
Case: Jess v Scott (1986) 12 FCR 187
Outcome: considered
First, the delay in this case in filing an application for an extension of time in which to file a notice of appeal is extreme. Wilcox J in Jess v Scott (1986) 12 FCR 187 at 195 observed "It would require something very persuasive indeed to justify a grant of leave after, for example, a year...". In this case more than five years have passed since the primary judgment was delivered. 9 Second, no acceptable explanation for this delay has been given by the applicant in his written or oral submissions, or in either of his affidavits. While Dr Chalk has deposed that he has treated the applicant for approximately ten years and that the applicant suffers from chronic mental illness and while I understand that the applicant suffered a breakdown in 2003, this does not adequately explain a delay of more than five years in bringing the present application. 10 Third, no prejudice has been demonstrated by the respondent in this case. However this does not in itself justify the grant of an extension of time.
Case: Secretary, Department of Social Security v Garvey (1989) 91 ALR 245
Outcome: related
As explained in the decision of Dowsett J of 2 April 2003 ( Robert Joseph Barry Garvey v Secretary, Department of Family and Community Services [2003] FCA 340) events relevant to the decision of his Honour, and the application currently before me, date back to December 1985. In summary: &#8226; In December 1985 the applicant applied for an invalid pension pursuant to the provisions of s 30 Social Security Act 1947 (Cth). That application was refused. &#8226; The applicant subsequently sought a merits review of that decision in the Administrative Appeals Tribunal ("the Tribunal"), but was unsuccessful. He was also unsuccessful in his appeal to the Full Court of the Federal Court ( Secretary, Department of Social Security v Garvey (1989) 91 ALR 245). &#8226; The applicant brought a new application before the Tribunal however the Tribunal determined that no new issues were raised in these subsequent proceedings. &#8226; The applicant appealed against this decision of the Tribunal to this Court, however Dowsett J ordered the applicant's notice of appeal be struck out on the basis that the matter had already been finally resolved by the Full Court in 1989. His Honour also ordered the applicant pay the respondent's costs ( Garvey [2003] FCA 340). &#8226; On 19 November 2003 the District Registrar in the Brisbane Registry of the Court made an order pursuant to O 62 r 45(3) Federal Court Rules in the following terms: On 2 April 2003 the Court ordered that the applicant pay the respondent's costs of the appeal including the costs of the application to strike out and the costs of 2 April 2003. On 1 October 2003 an estimate of the respondent's bill of costs was made pursuant to the provisions of Order 62 rule 46 and allowed in the sum of $5,878.88, for which sum a Certificate of Taxation was issued on 28 October 2003. THE COURT ORDERS THAT the applicant pay the sum of $5,878.88 to the respondent.
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
The second ground of appeal refers to the weight ascribed by the Tribunal to the evidence before it. The weight given by the Tribunal to evidence before it, both oral evidence and documentary, is a matter for the Tribunal as an incident of its role as the arbiter of fact: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259. Accordingly, in my view the second ground of appeal cannot be sustained.
Case: Sebel Furniture Limited v Acoustic &amp; Felts Pty Limited [2009] FCA 6
Outcome: related
12 January 2009, I delivered a judgment which determined an application for urgent interlocutory injunctive relief which had been made by the applicant on 23 December 2008: Sebel Furniture Limited v Acoustic &amp; Felts Pty Limited [2009] FCA 6 ( the principal judgment ). I declined to grant all of the interlocutory relief claimed by the applicant. In particular, I declined to grant relief based upon the applicant's registered trade mark, the tort of passing off and s 52 of the Trade Practices Act 1974 (Cth) ( the TPA ) insofar as this latter cause of action related to the alleged similarities between the applicant's plastic moulded chair and the respondent's plastic moulded chair. Prior to the interlocutory hearing before me, the respondent had agreed to give an undertaking to the Court on an interlocutory basis dealing with certain alleged misrepresentations said to have been made by it. That undertaking was noted at the time I delivered the principal judgment. At the same time, I granted an interlocutory injunction restraining the respondent from making certain other representations.
Case: Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 , (1992) 9 ACSR 309
Outcome: applied
principle was also explained in Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 , (1992) 9 ACSR 309 at 437D 442D. A more recent exposition of the relevant principles can be found in McGovern v Ku-ring-Gai Council [2008] NSWCA 209 ; (2008) 251 ALR 558 , (2008) 161 LGERA 170 at [14] [24] (251 ALR at pp 561 562) and at [71] [83] (251 ALR at pp 569 573).
Case: McGovern v Ku-ring-Gai Council [2008] NSWCA 209 ; (2008) 251 ALR 558 , (2008) 161 LGERA 170
Outcome: applied
principle was also explained in Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 , (1992) 9 ACSR 309 at 437D 442D. A more recent exposition of the relevant principles can be found in McGovern v Ku-ring-Gai Council [2008] NSWCA 209 ; (2008) 251 ALR 558 , (2008) 161 LGERA 170 at [14] [24] (251 ALR at pp 561 562) and at [71] [83] (251 ALR at pp 569 573).