mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Principal Strategic Options Pty Ltd [2001] FCA 664
Outcome: cited
In my view, the above principles also ordinarily guide the exercise of the Court's discretion in comparable circumstances to award costs pursuant to s 32 of the Bankruptcy Act . As I observed in Principal Strategic Options Pty Ltd [2001] FCA 664 at [17] - [18] , s 32 gives the Court a very wide discretion with respect to orders for costs, albeit that the discretion must be exercised judicially. 11 Mr George Elias submitted that the trustee should pay his costs of this proceeding because the trustee had acted precipitously in serving the bankruptcy notice. He argued that, once the holding summons for leave to appeal had been filed, it was inherently risky to serve the bankruptcy notice; the risk having eventuated, the trustee should pay the costs reasonably incurred by him with respect to the bankruptcy notice. 12 The trustee submitted that as no stay of the judgment of the District Court had been obtained, or indeed sought, he had acted reasonably and properly in serving the bankruptcy notice and in respect of the conduct of this proceeding.
Case: Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564
Outcome: discussed
any event, it is clear enough that there is no matter if there is no real controversy between parties. Various words have been used to describe what will not qualify as a matter on this ground: abstract question, theoretical question or hypothetical question. In Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 , Mason CJ, Dawson, Toohey and Gaudron JJ referred to the discretionary power to grant a declaration as being confined by considerations which mark out the boundaries of judicial power. Their Honours said (at 581-582): "It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which '[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise.' However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have 'a real interest' and relief will not be granted if the question 'is purely hypothetical', if relief is 'claimed in relation to circumstances that [have] not occurred and might never happen' or if 'the Court's declaration will produce no foreseeable consequences for the parties'." (Citations omitted.) (See also Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11 ; (2000) 200 CLR 591 at 613 [52] per Gaudron J).
Case: Amust Computer Corporation Pty Ltd v Australia Entre Business Centres Pty Ltd (No 2) [1987] ATPR 40-829
Outcome: cited
power in O 9 r 7 may be exercised where the originating process has been served outside the jurisdiction and the Court is satisfied that there is no prima facie case: Amust Computer Corporation Pty Ltd v Australia Entre Business Centres Pty Ltd (No 2) [1987] ATPR 40-829; Trade Practices Commission v The Gillette Company (No 1) [1993] FCA 496 ; (1993) 45 FCR 366 ; Southern Cross Airlines Holdings Ltd v Arthur Andersen &amp; Co (A Firm) (unreported, Cooper J, 7 May 1998). That follows from the fact that, in certain cases, a prima facie case must be shown before service outside the jurisdiction is effective: O 8 r 3.
Case: Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1 ; (2001) 204 CLR 559
Outcome: cited
second respondent contends that the Court does not have jurisdiction to entertain the application because there is no matter , in the sense of a justiciable controversy, within s 39B(1A) of the Judiciary Act . It is common ground that the word matter in that subsection has the same meaning as it has in Ch III of the Constitution (see Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1 ; (2001) 204 CLR 559 at 584-586 [50] , [51] and [54] per Gleeson CJ, Gaudron and Gummow JJ).
Case: F Sharkey &amp; Co Pty Ltd v Fisher [1980] FCA 146 ; (1980) 50 FLR 130
Outcome: cited
authorities establish that O 9 r 7(1) is not confined to cases where there has been service outside the jurisdiction. While O 9 r 7(1)(b), (c) and (d) refer to service of an originating process, (a) does not, and under that subparagraph an originating process may be set aside where the Court does not have jurisdiction to entertain the claim made in it, or where the originating process constitutes an abuse of process: F Sharkey &amp; Co Pty Ltd v Fisher [1980] FCA 146 ; (1980) 50 FLR 130 ; 33 ALR 173 ; Cell Tech Communications (at 370). The second respondent's first ground (see [7] above) raises an issue of jurisdiction and, if made good, engages the power to set aside the originating process. By contrast, the second ground does not raise an issue of jurisdiction, and, even if made good, does not engage the power to set aside the originating process.
Case: Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421
Outcome: discussed
have been considerable developments in the law relating to declarations since the decision in In re Judiciary and Navigation Acts . One of the leading High Court decisions in the area of declarations is Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421. That case dealt with the statutory power of the Supreme Court of New South Wales in s 10 of the Equity Act 1901 (NSW) to make a declaration. Gibbs J said (at 437) that it was neither possible nor desirable to fetter the broad discretion in s 10 by laying down rules as to the manner of its exercise. His Honour said that, in general, the requirements identified by Lord Dunedin in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 should be satisfied before the discretion to make a declaration is exercised. In the latter case, Lord Dunedin said (at 448): "The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought."
Case: Gardner v The Dairy Industry Authority of New South Wales (1978) 52 ALJR 180
Outcome: cited
second respondent's submission in this case is that there is no matter within s 39B(1A)(c) of the Judiciary Act because there is no real controversy between parties. He submits that the question raised, and the relief sought, is abstract or hypothetical. If that proposition is rejected, the second respondent does not put any other argument suggesting that the Court does not have jurisdiction to make the declaration sought. It is not said, for example, that the Court would never make the declaration sought because it is claimed in relation to circumstances that have not occurred and might never happen in the sense explained by Gibbs J in The University of New South Wales v Moorhouse [1975] HCA 26 ; (1975) 133 CLR 1 at 9-11, or because it will produce no foreseeable consequences for the parties in the sense explained by Mason J in Gardner v The Dairy Industry Authority of New South Wales (1978) 52 ALJR 180 ; 18 ALR 55 at 188; 69.
Case: Ibeneweka v Egbuna [1964] 1 WLR 219
Outcome: discussed
J also referred with approval to a passage in the advice given by Viscount Radcliffe on behalf of the Privy Council in Ibeneweka v Egbuna [1964] 1 WLR 219 at 225: "After all, it is doubtful if there is more of principle involved than the undoubted truth that the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making. Beyond that there is no legal restriction on the award of a declaration."
Case: IMF (Australia) Ltd v Sons of Gwalia Ltd (admin apptd) (2004) 211 ALR 231
Outcome: discussed
has been a good deal of debate in the authorities as to whether, in the case of a general statutory power to make declarations, and leaving aside a statutory intention to exclude the remedy of declaration, there are any jurisdictional limits on the power of the Court to make a declaration, or whether all the matters which from time to time have been identified in the authorities as relevant are no more than discretionary considerations (see, for example, the discussion of this issue by King CJ in J N Taylor Holdings Ltd (in liq) v Bond (1993) 59 SASR 432 at 436-437). There is also a question of whether jurisdiction and discretion are "congruent" in relation to declaratory relief. That was said by French J in IMF (Australia) Ltd v Sons of Gwalia Ltd (admin apptd) (2004) 211 ALR 231 (" Sons of Gwalia ") at 243 [45] to be debatable. In Sons of Gwalia , French J considered a case involving a declaration as to the lawfulness of future conduct. His Honour said (at 243 [44]): "In my opinion, the issue in the present application is neither hypothetical nor contingent. It involves a real question, namely whether IMF can lawfully proceed to do what it intends to do in using information on the Sons of Gwalia register to approach members and former members of the company with a view to joining them in possible recovery action against the company. The capacity of courts to declare that conduct, which has not yet taken place, will or will not be in breach of the law 'contributes enormously to the utility of the jurisdiction': Commonwealth of Australia v Sterling Nicholas Duty Free Pty Ltd [1972] HCA 19 ; (1972) 126 CLR 297 at 305; [1972-3] ALR 23." In my opinion, there is a matter in this case and it arises under a law of the Parliament, namely, the Migration Act 1958 (Cth). There is a real controversy and the question raised is not an abstract or hypothetical question. It seems to me important not to confuse considerations relating to the desirability of the Tribunal ruling on the issue and then the matter proceeding by way of judicial review through the seeking of constitutional writs. Those considerations are relevant, perhaps highly relevant, to whether this Court should, as a matter of discretion, entertain the application for declaratory relief. They do not go to the question of whether there is a matter .
Case: In re the Judiciary Act 1903-1920 and In re the Navigation Act 1912-1920 [1921] HCA 20 ; (1921) 29 CLR 257
Outcome: discussed
starting point in determining whether there is a matter within s 39B(1A) of the Judiciary Act is the early decision of the High Court in In re the Judiciary Act 1903-1920 and In re the Navigation Act 1912-1920 [1921] HCA 20 ; (1921) 29 CLR 257 (" In re Judiciary and Navigation Acts "). For there to be a matter , it is not enough that there be a legal proceeding; there must be "some immediate right, duty or liability to be established by the determination of the Court" (see at 265 per Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ). The Court said (at 267) that the power to confer jurisdiction under Ch III of the Constitution did not include a jurisdiction to "determine abstract questions of law without the right or duty of any body or person being involved".
Case: J N Taylor Holdings Ltd (in liq) v Bond (1993) 59 SASR 432
Outcome: referred to
has been a good deal of debate in the authorities as to whether, in the case of a general statutory power to make declarations, and leaving aside a statutory intention to exclude the remedy of declaration, there are any jurisdictional limits on the power of the Court to make a declaration, or whether all the matters which from time to time have been identified in the authorities as relevant are no more than discretionary considerations (see, for example, the discussion of this issue by King CJ in J N Taylor Holdings Ltd (in liq) v Bond (1993) 59 SASR 432 at 436-437). There is also a question of whether jurisdiction and discretion are "congruent" in relation to declaratory relief. That was said by French J in IMF (Australia) Ltd v Sons of Gwalia Ltd (admin apptd) (2004) 211 ALR 231 (" Sons of Gwalia ") at 243 [45] to be debatable.
Case: Maryland Casualty Co v Pacific Coal &amp; Oil Co [1941] USSC 28 ; 312 US 270 (1941)
Outcome: discussed
Re Tooth &amp; Co , Brennan J addressed the difference between a hypothetical and a non-hypothetical question. His Honour was dealing with a case involving a declaration as to the lawfulness of future conduct. He said that the difference between a hypothetical and a non-hypothetical question was one of degree and he referred to the following passage from the United States case of Maryland Casualty Co v Pacific Coal &amp; Oil Co [1941] USSC 28 ; 312 US 270 (1941) at 273: "The difference between an abstract question and a 'controversy' contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in every case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Brennan J said (at 333-334; 209): "A controversy as to the lawfulness of future conduct cannot be said to be immediate and real if it is unlikely that the applicant will engage in the conduct ( Golden, Acting District Attorney of Kings County v. Zwickler [1969] USSC 46 ; (1969) 394 U.S. 103 , at p. 109). If the prospects of the applicant engaging in the conduct are uncertain, the uncertainty may deprive the controversy of a sufficient immediacy and reality to warrant the making of a declaration ( Steffel v. Thompson [1974] USSC 53 ; (1973) 415 U.S. 452 , at p. 460). The degree of uncertainty as to whether the applicant will engage in the conduct proposed will usually determine whether the circumstances call for the making of a declaration." (Original emphasis.)
Case: Mentha v GE Capital Ltd (1997) 154 ALR 565
Outcome: referred to
considerations referred to in the above passage are essential to the presence of a matter and therefore the jurisdiction of this Court under s 39B(1A) of the Judiciary Act (see also Mentha v GE Capital Ltd (1997) 154 ALR 565 at 574 per Finkelstein J; Re Gidley [2006] FCA 102 ; (2006) 150 FCR 345 ; Purchas v Estore Pty Ltd (in liq) [2006] FCA 1222 ; (2006) 154 FCR 246).
Case: Murphy v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 657 ; (2004) 135 FCR 550
Outcome: referred to
Full Court of this Court considered the proper construction of s 494C in Xie v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 172 (" Xie "). The Court held that the effect of the section was to identify the date of receipt of a document and that it was not open to a person to establish that in fact he received the document on another date. In other words, the effect of the section was not merely to create a rebuttable presumption of fact (see also Murphy v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 657 ; (2004) 135 FCR 550).
Case: Purchas v Estore Pty Ltd (in liq) [2006] FCA 1222 ; (2006) 154 FCR 246
Outcome: referred to
considerations referred to in the above passage are essential to the presence of a matter and therefore the jurisdiction of this Court under s 39B(1A) of the Judiciary Act (see also Mentha v GE Capital Ltd (1997) 154 ALR 565 at 574 per Finkelstein J; Re Gidley [2006] FCA 102 ; (2006) 150 FCR 345 ; Purchas v Estore Pty Ltd (in liq) [2006] FCA 1222 ; (2006) 154 FCR 246).
Case: Re Gidley [2006] FCA 102 ; (2006) 150 FCR 345
Outcome: referred to
considerations referred to in the above passage are essential to the presence of a matter and therefore the jurisdiction of this Court under s 39B(1A) of the Judiciary Act (see also Mentha v GE Capital Ltd (1997) 154 ALR 565 at 574 per Finkelstein J; Re Gidley [2006] FCA 102 ; (2006) 150 FCR 345 ; Purchas v Estore Pty Ltd (in liq) [2006] FCA 1222 ; (2006) 154 FCR 246).
Case: Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16 ; (2002) 209 CLR 372
Outcome: referred to
submission made by the second respondent should be addressed before leaving this topic. It was suggested that this case was similar to Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16 ; (2002) 209 CLR 372 in that the thrust of the application was an attack on the reasoning in Xie and that did not give rise to a justiciable issue (cf at 394-396 [22] and [26] per Gleeson CJ). That argument must be rejected because, in this case, the proper interpretation of s 494C of the Act has a direct effect on the competency of the applicant's application for review. Discretion
Case: Re Tooth &amp; Co Ltd [1978] FCA 9 ; (1978) 31 FLR 314 ; 19 ALR 191
Outcome: discussed
issue which has arisen is the extent to which the jurisdiction to make a declaration in the exercise of federal judicial power is narrower, because of the need to show that a matter is involved, than it is in the case of the exercise of non-federal judicial power. This issue was mentioned by Brennan J sitting as a judge of this Court in Re Tooth &amp; Co Ltd [1978] FCA 9 ; (1978) 31 FLR 314 ; 19 ALR 191 (" Re Tooth &amp; Co ") at 330-331; 206 (see also Re Tooth &amp; Co Ltd (No 2) [1978] FCA 36 ; (1978) 34 FLR 112 at 118-119 per Bowen CJ). Perhaps the point will not matter a great deal in practice because, in the case of non-federal judicial power, the considerations identified in the authorities as relevant will be, in any event, powerful discretionary considerations likely to lead to the refusal of declaratory relief.
Case: Re Tooth &amp; Co Ltd (No 2) [1978] FCA 36 ; (1978) 34 FLR 112
Outcome: referred to
issue which has arisen is the extent to which the jurisdiction to make a declaration in the exercise of federal judicial power is narrower, because of the need to show that a matter is involved, than it is in the case of the exercise of non-federal judicial power. This issue was mentioned by Brennan J sitting as a judge of this Court in Re Tooth &amp; Co Ltd [1978] FCA 9 ; (1978) 31 FLR 314 ; 19 ALR 191 (" Re Tooth &amp; Co ") at 330-331; 206 (see also Re Tooth &amp; Co Ltd (No 2) [1978] FCA 36 ; (1978) 34 FLR 112 at 118-119 per Bowen CJ). Perhaps the point will not matter a great deal in practice because, in the case of non-federal judicial power, the considerations identified in the authorities as relevant will be, in any event, powerful discretionary considerations likely to lead to the refusal of declaratory relief.
Case: Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438
Outcome: discussed
have been considerable developments in the law relating to declarations since the decision in In re Judiciary and Navigation Acts . One of the leading High Court decisions in the area of declarations is Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421. That case dealt with the statutory power of the Supreme Court of New South Wales in s 10 of the Equity Act 1901 (NSW) to make a declaration. Gibbs J said (at 437) that it was neither possible nor desirable to fetter the broad discretion in s 10 by laying down rules as to the manner of its exercise. His Honour said that, in general, the requirements identified by Lord Dunedin in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 should be satisfied before the discretion to make a declaration is exercised. In the latter case, Lord Dunedin said (at 448): "The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought."
Case: Southern Cross Airlines Holdings Ltd v Arthur Andersen &amp; Co (A Firm) (unreported, Cooper J, 7 May 1998)
Outcome: cited
power in O 9 r 7 may be exercised where the originating process has been served outside the jurisdiction and the Court is satisfied that there is no prima facie case: Amust Computer Corporation Pty Ltd v Australia Entre Business Centres Pty Ltd (No 2) [1987] ATPR 40-829; Trade Practices Commission v The Gillette Company (No 1) [1993] FCA 496 ; (1993) 45 FCR 366 ; Southern Cross Airlines Holdings Ltd v Arthur Andersen &amp; Co (A Firm) (unreported, Cooper J, 7 May 1998). That follows from the fact that, in certain cases, a prima facie case must be shown before service outside the jurisdiction is effective: O 8 r 3.
Case: The University of New South Wales v Moorhouse [1975] HCA 26 ; (1975) 133 CLR 1
Outcome: cited
second respondent's submission in this case is that there is no matter within s 39B(1A)(c) of the Judiciary Act because there is no real controversy between parties. He submits that the question raised, and the relief sought, is abstract or hypothetical. If that proposition is rejected, the second respondent does not put any other argument suggesting that the Court does not have jurisdiction to make the declaration sought. It is not said, for example, that the Court would never make the declaration sought because it is claimed in relation to circumstances that have not occurred and might never happen in the sense explained by Gibbs J in The University of New South Wales v Moorhouse [1975] HCA 26 ; (1975) 133 CLR 1 at 9-11, or because it will produce no foreseeable consequences for the parties in the sense explained by Mason J in Gardner v The Dairy Industry Authority of New South Wales (1978) 52 ALJR 180 ; 18 ALR 55 at 188; 69.
Case: Trade Practices Commission v The Gillette Company (No 1) [1993] FCA 496 ; (1993) 45 FCR 366
Outcome: cited
power in O 9 r 7 may be exercised where the originating process has been served outside the jurisdiction and the Court is satisfied that there is no prima facie case: Amust Computer Corporation Pty Ltd v Australia Entre Business Centres Pty Ltd (No 2) [1987] ATPR 40-829; Trade Practices Commission v The Gillette Company (No 1) [1993] FCA 496 ; (1993) 45 FCR 366 ; Southern Cross Airlines Holdings Ltd v Arthur Andersen &amp; Co (A Firm) (unreported, Cooper J, 7 May 1998). That follows from the fact that, in certain cases, a prima facie case must be shown before service outside the jurisdiction is effective: O 8 r 3.
Case: Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11 ; (2000) 200 CLR 591
Outcome: referred to
any event, it is clear enough that there is no matter if there is no real controversy between parties. Various words have been used to describe what will not qualify as a matter on this ground: abstract question, theoretical question or hypothetical question. In Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 , Mason CJ, Dawson, Toohey and Gaudron JJ referred to the discretionary power to grant a declaration as being confined by considerations which mark out the boundaries of judicial power. Their Honours said (at 581-582): "It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which '[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise.' However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have 'a real interest' and relief will not be granted if the question 'is purely hypothetical', if relief is 'claimed in relation to circumstances that [have] not occurred and might never happen' or if 'the Court's declaration will produce no foreseeable consequences for the parties'." (Citations omitted.) (See also Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11 ; (2000) 200 CLR 591 at 613 [52] per Gaudron J).