mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14 ; (1985) 157 CLR 17
Outcome: cited
Here, however, no circuity of action would be avoided by the joinder of Ms Nader. The claim against her is freestanding and depends on the Bank's other independent claims against the guarantors with whom it had relationships based in contract and the law of (real) property (cp Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14 ; (1985) 157 CLR 17 at 33-34 per Mason J). Of course, the Bank also now claims against the guarantors in tort and pursuant to statute. It is because these latter claims are made and the Bank also seeks to sue Ms Nader on a quite distinct, alternate, basis for like causes of action, that it applied to join her.
Case: Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146
Outcome: referred to
In Birtles v Commonwealth [1960] VR 247 at 250 Adam J observed that an overly technical approach to the construction of an analogue to O 6 was "... out of harmony with the modern concept that litigation is no mere game of chess to be lost by one false move ..." and that errors are, usually, curable. That is certainly the case, and in instances involving the related, but distinct, discretion to permit amendment, the court takes a liberal and facultative approach to ensuring that the real issues are litigated. There, an amendment will be allowed in the ordinary case, no matter what kind of error or mistake occurred unless it was fraudulent or intentionally exaggerated: Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 at 152-153; Cropper v Smith (1884) 26 Ch D 700 at 710.
Case: Re The Thai Silk Company Ltd and Arkitex Fabrics Pty Ltd (31 May 1989 unreported, Federal Court of Australia)
Outcome: followed
So, if here, the only parties to the Bank proceedings had been Marie and Josephine Saklaoui the Bank's position may have brought it within the words of O 6 r 2(a)(ii). But because the Bank proceedings involve four other existing respondents this is not the case here because the 'transaction' or 'transactions' in which Marie and Josephine Saklaoui are involved is not related to and does not arise from the cases of the other guarantors (see too Marino v Esanda Ltd [1986] VR 735 at 740 per Tadgell J; Re The Thai Silk Company Ltd and Arkitex Fabrics Pty Ltd (31 May 1989 unreported, Federal Court of Australia) per Hill J at [22]-[23]; Dean-Willcocks v Air Transit International Pty Ltd [2002] NSWSC 525 ; (2002) 55 NSWLR 64 at 7-72 [21] - [27] ). 61 Last, the Bank seeks the exercise of my discretion pursuant to O 6 r 2(b). As already noted the discretion is very wide ( John Cooke &amp; Co Pty Ltd v The Commonwealth [1922] HCA 60 ; (1922) 31 CLR 394 at 411; Caboolture Park Shopping Centre Pty Ltd v White Industries (Qld) Pty Ltd (25 May 1988, unreported, Federal Court of Australia) per Ryan J at 3; Re The Thai Silk Company Ltd and Arkitex Fabrics Pty Ltd (31 May 1989, unreported, Federal Court of Australia) per Hill J at [21]).
Case: Reg v Lawrence [1982] AC 510
Outcome: applied
A delay of 21/2 years has occurred in a case where the basal events had happened in June 1997. This means that, even though Ms Nader now has sworn an affidavit, every witnesses' memory is likely to have been affected and that, in turn, may affect her position adversely. As Lord Hailsham of St Marylebone LC said, albeit in the context of a criminal trial but none less apposite to a civil trial, in Reg. v Lawrence [1982] AC 510 at 517B-C: '... it is a truism to say that justice delayed is justice denied. But it is not merely the anxiety and uncertainty in the life of the accused, whether on bail or remand, which are affected. Where there is delay the whole quality of justice deteriorates. Our system depends on the recollection of witnesses, conveyed to a jury by oral testimony. As the months pass, this recollection necessarily dims, and juries who are correctly directed not to convict unless they are assured of the reliability of the evidence for the prosecution, necessarily tend to acquit as this becomes less precise, and sometimes less reliable. This may also affect defence witnesses on the opposite side.' 77 His Lordship's observations apply a fortiori to the present application. The risk of injustice being done to the Bank, has to be balanced against the risk of injustice being done to Ms Nader in the context of this particular litigation and the way it has been conducted to the present time. The joinder of Ms Nader, if she is to have adequate time in which to prepare and investigate the case which she may or may not wish to pursue involving the ASS proceedings, does not appear to be one which can be regarded as a simple task. The whole history of the litigation has indicated that it is not. For Ms Nader to prepare fully in that respect will cause delay in the prosecution of the case against all of the other parties. It may cause her injustice by being hurried on. The Bank has only itself to blame for its inability to appreciate from March 2003 until October 2005 what appears to be plain in the defence of Marie and Josephine Saklaoui. 78 The fact that her affidavit evidence is available to be used, if the Bank so chooses, in the Bank proceedings reduces but does not entirely eliminate the potential prejudice to the Bank flowing from a decision to refuse the present application. Doing the best that I can on the evidence before me, the interests of justice will be better served by exposing the Bank to this prejudice rather than exposing Ms Nader to what I consider to be far more substantive prejudice to her.
Case: Review Australia Pty Ltd v Redberry Enterprise Pty Ltd (2003) 58 IPR 366
Outcome: referred to
At the hearing the principles upon which I was asked to exercise my discretion in granting leave to join Ms Nader to the Bank's proceedings, were set out in written submissions by the Bank which were accepted by Ms Nader's counsel. They are: ' Principles on Joinder 11. Order 6 rr.2 and 8 of the Federal Court Rules , permit the addition of parties. It is submitted with regard to the proposed causes of action against Ms Nader that there are clearly common questions of fact and law under O.6 r.2 which will arise in the proceedings and also relate to the proposed case against her. Under O.6 r.8 joinder is permitted where it is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon. 12. Order 6 r.8 should be liberally construed so that all parties to disputes relating to the one subject matter may be dealt with at the one time: Montgomery v Foy, Morgan &amp; Co. [1895] 2 QB 321 at 324; John Cooke &amp; Co. Ltd v Commonwealth [1922] HCA 60 ; (1922) 31 CLR 394 at 411. In order to obtain a joinder order under the rule, a party must only show an arguable case against the proposed respondent at least to the standard of being able to resist an application for summary judgment by the proposed respondent to have the proposed party being sued in separate proceedings: Review Australia Pty Ltd v Redberry Enterprise Pty Ltd [2003] FCA 1009. The phrase "all matters in dispute in the proceedings" should not be construed as limited to matters arising on the existing pleadings: it may also properly include those disputed issues of fact which are subjacent to the existing pleadings: Qantas Airways Ltd v AF Little Pty Ltd [1981] 2 NSWLR 34. Disputed issues of fact which underlie proceedings are subjacent to the pleadings: Fried v National Australian Bank Ltd [1999] FCA 737. As the joinder of Ms Nader is based upon affidavit evidence served in support of the existing pleadings, the case against Ms Nader is a matter currently in dispute in the proceedings.' 75 The delay of the Bank here in bringing any claim against Ms Nader is not sufficiently justified on the evidence to warrant the exercise of my discretion to permit her now to be joined. Not only did the Bank not act after it received amended defences in March 2003, but it did nothing until late October 2003 after receiving the affidavits of Marie and Josephine Saklaoui in November 2004. That is a sufficient reason to refuse the relief sought (cp: Review Australia Pty Ltd v Redberry Enterprise Pty Ltd (2003) 58 IPR 366 at 372 [33] per Heerey J).
Case: The Queen v Australian Broadcasting Tribunal: Ex Parte 2HD Pty Ltd [1979] HCA 62 ; (1979) 144 CLR 45
Outcome: followed
That said, it is now necessary to consider the construction and application of O 6 r 2. It provides two bases, each again discretionary ( John Cooke &amp; Co Pty Ltd v The Commonwealth [1922] HCA 60 ; (1922) 31 CLR 394 at 411), for joinder. The second basis, in r 2(b), is emphatic of this discretion which falls to be considered having regard to the subject matter, scope and purpose of O 6 as whole and as part of the Federal Court Rules : The Queen v Australian Broadcasting Tribunal: Ex Parte 2HD Pty Ltd [1979] HCA 62 ; (1979) 144 CLR 45 at 49. The first basis, in r 2(a) involves considerations which have been the subject of over a century of judicial decisions. It requires not just the existence of a common question of fact or law in each proceeding which might be brought separately against two or more persons, but also that ' all rights to relief claimed' are in respect of or arise out of the same transaction or series of transactions (cf: Stroud v Lawson [1898] 2 QB 44 at 52).
Case: Trade Practices Commission v Westco Motors (Distributors) Pty Ltd (1981) 58 FLR 384
Outcome: approved
Unfortunately, these principles do not address the considerations relevant for the exercise of the discretion to join Ms Nader in the factual context of this application. It is necessary to understand the purpose of and interrelation between the various relevant rules in Order 6. This has been explained in some detail by the High Court in Richardson v Trautwein [1942] HCA 5 ; (1942) 65 CLR 585 at 590, 593-594, 598, 601-602, and Mahoney JA in Qantas Airways Ltd v AF Little Pty Ltd [1981] 2 NSWLR 34 at 44C-56D in considering analogues, not wholly identical, of Order 6 in Judicature system court rules. More recently Branson J, in Warner Music Australia Limited v Swiftel Communications Pty Limited [2005] FCA 1127 at [14] - [18] followed Sheppard J in Trade Practices Commission v Westco Motors (Distributors) Pty Ltd (1981) 58 FLR 384 at 388. Her Honour observed that the extent to which causes of action against different persons legitimately may be prosecuted is governed by O 6 r 2 of the Federal Court Rules . The parties did not make submissions on this question or refer to Branson J's judgment or the authorities on which it was based at the hearing. When I found her Honour's judgment after judgment was reserved, accordingly, I asked for further submissions which the Bank, the first to fifth respondents in the Bank proceedings and Ms Nader provided on 19 April 2006.
Case: Warner Music Australia Limited v Swiftel Communications Pty Limited [2005] FCA 1127
Outcome: discussed
Unfortunately, these principles do not address the considerations relevant for the exercise of the discretion to join Ms Nader in the factual context of this application. It is necessary to understand the purpose of and interrelation between the various relevant rules in Order 6. This has been explained in some detail by the High Court in Richardson v Trautwein [1942] HCA 5 ; (1942) 65 CLR 585 at 590, 593-594, 598, 601-602, and Mahoney JA in Qantas Airways Ltd v AF Little Pty Ltd [1981] 2 NSWLR 34 at 44C-56D in considering analogues, not wholly identical, of Order 6 in Judicature system court rules. More recently Branson J, in Warner Music Australia Limited v Swiftel Communications Pty Limited [2005] FCA 1127 at [14] - [18] followed Sheppard J in Trade Practices Commission v Westco Motors (Distributors) Pty Ltd (1981) 58 FLR 384 at 388. Her Honour observed that the extent to which causes of action against different persons legitimately may be prosecuted is governed by O 6 r 2 of the Federal Court Rules . The parties did not make submissions on this question or refer to Branson J's judgment or the authorities on which it was based at the hearing. When I found her Honour's judgment after judgment was reserved, accordingly, I asked for further submissions which the Bank, the first to fifth respondents in the Bank proceedings and Ms Nader provided on 19 April 2006.
Case: Wood v Cross Television Centre Pty Ltd [1962] NSWR 528
Outcome: referred to
The claims arising in the ASS proceedings are, of course, distinct from those in the Bank proceedings. Each of the guarantors, in the Bank proceedings, has pleaded a set off the quantification of which requires a decision in the ASS proceedings. So, in this way, there is a common question of fact in the two proceedings as presently constituted, namely what is the quantum, if any, due by ASS to the Bank both under the facility agreement and in light of the determination of ASS's claim for damages (see e.g. Wood v Cross Television Centre Pty Ltd [1962] NSWR 528 at 532 per Walsh J).
Case: Belgrave Nominees Pty Ltd &amp; Ors v Barlin-Scott Airconditioning (Aust) Pty Ltd [1984] VR 947
Outcome: cited
The degree of annexation test looks to the manner in which the object is attached to the land. If the object is attached to the land, other than by its own weight, there is a rebuttable presumption that it forms part of the land. The greater the degree of annexation, the stronger the presumption. If on the other hand, the object is attached only by its own weight, there is a rebuttable presumption that it is not part of the land, even if it has become embedded in the soil. In such a case the onus lies upon the person claiming that the object forms part of the land to prove that it was erected with the intention that it should become part of the land: Reid v Smith [1905] HCA 54 ; (1905) 3 CLR 656 at 668, 673-4, 675-6; Belgrave Nominees Pty Ltd &amp; Ors v Barlin-Scott Airconditioning (Aust) Pty Ltd [1984] VR 947 at 950-1. The courts will infer the degree of annexation from the surrounding circumstances including the nature of the object and the nature of the interest held in the land by the owner of the object. The test is objective, namely, what a reasonable person would consider to be the reason for attaching the object to the land. 70 Further the proper formulation of the test is not whether damages are an adequate remedy but whether it is just in all the circumstances that the plaintiff should be confined to his remedy in damages. The courts have recognised there may be cases in which it is unjust to confine a plaintiff to its remedy in damages because of, for example, the difficulty in estimating damages and damages which cannot be taken into monetary account such as loss of goodwill and trade reputation: Belgrave Nominees Pty Ltd v Barlin-Scott Airconditioning Pty Ltd [1984] VR 947 at 954-5, citing Evans Marshall &amp; Co Ltd v Bertola SA and Sherry Imports Ltd [1973] 1 WLR 349.
Case: Cahill v Construction Forestry Mining and Energy Union (No 2) [2008] FCA 1292
Outcome: cited
Consideration of the main object is a relevant consideration to the construction and application of the provisions of the BCII Act: United Group Infrastructure Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2005) 148 IR 399 at [23]-[25]; Cahill v Construction Forestry Mining and Energy Union (No 2) [2008] FCA 1292 at [50] - [51] .
Case: EPM Concrete Pty Ltd v Building and Construction Industry Long Service Leave Payments Corp (1985) 23 IR 430
Outcome: referred to
In EPM Concrete Pty Ltd v Building and Construction Industry Long Service Leave Payments Corp (1985) 23 IR 430 the definition of "building and construction work" in s 4 of the Building and Construction Industry Long Service Leave Payments Act 1974 (NSW) was considered. The definition relevantly included the carrying out of the construction of "structures, fixtures or works".
Case: Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108 ; (1999) 91 FCR 463
Outcome: cited
The Court also has power to make interlocutory orders under s 23 of the Federal Court of Australia Act 1976 (Cth): Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108 ; (1999) 91 FCR 463 at 480-1.
Case: Evans Marshall &amp; Co Ltd v Bertola SA and Sherry Imports Ltd [1973] 1 WLR 349
Outcome: cited
Further the proper formulation of the test is not whether damages are an adequate remedy but whether it is just in all the circumstances that the plaintiff should be confined to his remedy in damages. The courts have recognised there may be cases in which it is unjust to confine a plaintiff to its remedy in damages because of, for example, the difficulty in estimating damages and damages which cannot be taken into monetary account such as loss of goodwill and trade reputation: Belgrave Nominees Pty Ltd v Barlin-Scott Airconditioning Pty Ltd [1984] VR 947 at 954-5, citing Evans Marshall &amp; Co Ltd v Bertola SA and Sherry Imports Ltd [1973] 1 WLR 349.
Case: ICI Australia Operations Pty Ltd v Trade Practices Commission [1991] FCA 527 ; (1992) 38 FCR 248
Outcome: referred to
Section 39(3) is in the same terms as s 80(4) of the Trade Practices Act 1974 (Cth). In ICI Australia Operations Pty Ltd v Trade Practices Commission [1991] FCA 527 ; (1992) 38 FCR 248 Lockhart J (with whom French J agreed) said at 256-7: Subsections (4) and (5) of s 80 are novel because they empower the court to grant injunctive relief notwithstanding that the defendant has not previously engaged in the prohibited conduct or does not intend to engage in it again or to continue to engage in it or there is no imminent danger of substantial damage. Yet these are the traditional requirements for equitable injunctive relief. . . . In my opinion subss (4) and (5) are designed to ensure that once the condition precedent to the exercise of injunctive relief has been satisfied (ie contraventions or proposed contraventions of Pts IV or V of the Act), the court should be given the widest possible injunctive powers, devoid of traditional constraints, though the power must be exercised judicially and sensibly. . . . This does not mean that the traditional equitable doctrines are irrelevant. For example, it must be relevant to consider questions of repetition of conduct or whether it has ever occurred before or whether imminent substantial damage is likely: but the absence of any one or more of these elements is not fatal to the grant of an injunction under s 80. That is the effect of subss (4) and (5) (subs (4) in relation to the prevention of conduct and subs (5) in relation to a mandatory injunction). Their presence is not an indication of a new statutory house, rather an old house with some modern extensions. Gummow J at 267 came to essentially the same conclusion. 61 Section 49(1) and (3) of the BCII Act empower the Court to grant injunctions (including interim injunctions) in relation to a person who has contravened a civil penalty provision. Subsection 49(6) defines an eligible person to make an application under s 49(1) and (3) to include a person affected by the contravention. The applicant is a person affected by the alleged contraventions. Section 38 is a civil penalty provision as defined in s 4. Thus, s 49(1) and s 49(3)(a) empower this Court on the present application, to make an interim injunction in relation to a person who has contravened s 38.
Case: John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (2005) 144 IR 418
Outcome: referred to
In John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (2005) 144 IR 418 the defendant submitted that because the industrial action had stopped the plaintiff needed to show that there was a "strong probability" that the defendants' conduct would be the cause of serious damage, the threat of injury was immediate and substantial, and damages would not be a sufficient or adequate remedy if the damage did occur. In rejecting that submission and granting an interlocutory injunction, Le Miere J said at [77]: The degree of probability of future injury is not an absolute standard. What is to be aimed at is justice between the parties, having regard to all the relevant circumstances: Hooper v Rogers at 50 per Russell LJ followed by the Full Federal Court in Magic Menu Systems Pty Ltd v AFA Facilitation Pty Ltd at 269-270. Provided that there is a real risk of wrongful conduct which would cause injury which is more than trivial, there may be no good reason to refuse quia timet relief . . .
Case: Johns v R [1980] HCA 3 ; (1980) 143 CLR 108
Outcome: cited
In Johns v R [1980] HCA 3 ; (1980) 143 CLR 108 Stephen J said at 121: "Probable" may bear a variety of meanings. As Lord Reid observed in delivering the judgement of the Board in The Wagon Mound (No. 2) (1967) 1 AC 617, at pp 634-635: "It is used with various shades of meaning. Sometimes it appears to mean more probable than not, sometimes it appears to include events likely but not very likely to occur, sometimes it has a still wider meaning and refers to events the chance of which is anything more than a bare possibility." 56 In R v Thomson [1997] 1 Qd R 623 Fitzgerald P said at 627-8: "probable" is another word of variable import which takes its meaning from the context in which it is used . . . In Johns v. R [1980] HCA 3 ; (1980) 143 CLR 108 , Stephen J seemed to accept at 121 that "probable" might sometimes be satisfied by "anything more than a bare possibility"; while, as will be seen below, sometimes the degree of probability required must be "overwhelming"; however, the more usual debate is whether "probable" requires more than a "real or substantial possibility" . . . . To complete the circle, just as the meaning of "likely" is sometimes expressed by reference to what is "probable", the meaning of "probable" is sometimes related to whether an event or consequence is "more likely than not" . . . Sometimes "probable" and "likely" are treated as synonymous; sometimes "probable" is regarded as a stronger word than "likely"; and sometimes "likely" is regarded as a stronger word than "probable". [references deleted]