mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: D&eacute;cor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397
Outcome: cited
The applicant has not identified any error on the part of the Federal Magistrate in dismissing his application on the basis that it had no reasonable prospects of success. The grounds contained in the affidavit accompanying the application for leave to appeal are misconceived and no arguable basis has been advanced upon which an appeal might succeed. The applicant has not satisfied the test in D&eacute;cor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 to warrant a grant of leave to appeal. The decision is not attended with sufficient doubt to warrant its reconsideration. 14 The applicant has failed to show that Barnes FM erred in the exercise of her discretion. In the light of the applicant's extensive litigation history, I am satisfied that no substantial injustice would result if leave were refused, even supposing her Honour's decision to be wrong. The application for leave to appeal should be dismissed with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 23 December 2008 The Applicant appeared in person. Solicitor for the First Respondent: Sparke Helmore Date of Hearing: 15 December 2008 Date of Judgment: 15 December 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1968.html
Case: Metwally v University of Wollongong [1985] HCA 28 ; (1985) 60 ALR 68
Outcome: considered
As I pointed out in SZFMW v Minister for Immigration and Citizenship [2008] FCA 1862 at [12] , the Full Court in Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 51 ; (2004) 146 FCR 10 applied Anshun in the context of judicial review of administrative action and said at [37] that where an issue was so relevant to the subject matter of the earlier action that it would be unreasonable not to have raised it at that time, it is an abuse of process to endeavour to raise that issue for the first time in a subsequent proceeding between the parties. Further, in Metwally v University of Wollongong [1985] HCA 28 ; (1985) 60 ALR 68 , the High Court stated at [7] that: Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, either deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
Case: Port of Melbourne Authority v Anshun Proprietary Limited [1981] HCA 45 ; (1981) 147 CLR 589
Outcome: considered
The applicant reapplied to the Federal Magistrates Court for a review of the Tribunal's decision. Federal Magistrate Barnes was satisfied (at [18]) that the application was, in effect, an attempt to reagitate the same issues that had been dealt with in past judicial review proceedings. For that reason, Barnes FM concluded that the application should be dismissed pursuant to rule 13.10(a). Her Honour also concluded that the proceedings were barred by the operation of the doctrine of Anshun estoppel (see Port of Melbourne Authority v Anshun Proprietary Limited [1981] HCA 45 ; (1981) 147 CLR 589). Any further arguments, including an argument based upon the High Court decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 228 CLR 294 , could, her Honour pointed out, have been raised in prior proceedings. 8 As I pointed out in SZFMW v Minister for Immigration and Citizenship [2008] FCA 1862 at [12] , the Full Court in Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 51 ; (2004) 146 FCR 10 applied Anshun in the context of judicial review of administrative action and said at [37] that where an issue was so relevant to the subject matter of the earlier action that it would be unreasonable not to have raised it at that time, it is an abuse of process to endeavour to raise that issue for the first time in a subsequent proceeding between the parties. Further, in Metwally v University of Wollongong [1985] HCA 28 ; (1985) 60 ALR 68 , the High Court stated at [7] that: Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, either deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
Case: SZFMW v Minister for Immigration and Citizenship [2008] FCA 1862
Outcome: cited
As I pointed out in SZFMW v Minister for Immigration and Citizenship [2008] FCA 1862 at [12] , the Full Court in Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 51 ; (2004) 146 FCR 10 applied Anshun in the context of judicial review of administrative action and said at [37] that where an issue was so relevant to the subject matter of the earlier action that it would be unreasonable not to have raised it at that time, it is an abuse of process to endeavour to raise that issue for the first time in a subsequent proceeding between the parties. Further, in Metwally v University of Wollongong [1985] HCA 28 ; (1985) 60 ALR 68 , the High Court stated at [7] that: Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, either deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
Case: Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 51 ; (2004) 146 FCR 10
Outcome: considered
As I pointed out in SZFMW v Minister for Immigration and Citizenship [2008] FCA 1862 at [12] , the Full Court in Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 51 ; (2004) 146 FCR 10 applied Anshun in the context of judicial review of administrative action and said at [37] that where an issue was so relevant to the subject matter of the earlier action that it would be unreasonable not to have raised it at that time, it is an abuse of process to endeavour to raise that issue for the first time in a subsequent proceeding between the parties. Further, in Metwally v University of Wollongong [1985] HCA 28 ; (1985) 60 ALR 68 , the High Court stated at [7] that: Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, either deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
Case: Re Richstar Enterprises Pty Ltd; Australian Securities &amp; Investments Commission v Carey (No 3) (2006) 232 ALR 577
Outcome: cited
On 20 April 2006 receivers were appointed to the property of all of those named as defendants with exception of the seventh defendant, Bowesco Ltd which was subject to a private receiver appointed under a security. Freezing orders were made in relation to its property. The reasons for all the orders made were set out in Re Richstar Enterprises Pty Ltd; Australian Securities &amp; Investments Commission v Carey (No 3) (2006) 232 ALR 577. Those orders commenced a long and winding trail of interlocutory processes involving the ultimate joinder of four additional defendants, orders in respect of each of them, other than the eleventh defendant, and variations to make all of the orders more effective and to deal with practical difficulties encountered in their administration. 3 The protective regime established by these proceedings has been extended from time to time. Orders presently in place in respect of the first, fifth to tenth and twelfth defendants have been further extended to 5pm today, 4 September 2007. Orders in relation to the second, third and fourth defendants, which are not before me for extension at this time, remain in force until 12 September 2007 in relation to the second and third defendants and the 26 September 2007, in relation to the fourth defendant. ASIC now seeks, by consent, to extend and vary the regime by orders which may broadly be described as follows: 1. Orders in terms of a proposed minute with respect to the first and fifth defendants. 2. The discharge of existing orders against the sixth and eighth defendants. 3. The extension of existing orders against the seventh, ninth and tenth defendants to 31 January 2008 unless otherwise discharged or varied. 4. The extension of existing orders against the twelfth defendant to 31 January 2008 subject to agreed amendments. For the reasons that follow I am satisfied that the orders proposed should be made. The Court's approach to consent orders generally 4 When the Court is presented with a proposed order, agreed between the parties, it must be satisfied, before making it, that it is within the power of the Court to make it and that the proposed order is appropriate. The requirement that the order be "appropriate" does not mean that the Court will refuse to make it simply because it thinks a different order would be preferable. This is particularly the case where the parties are properly advised by competent legal representatives. An appropriate order is one which lies within the range of orders that could reasonably be made on the materials before the Court. The limiting factor is that in making any order the Court exercises the judicial power of the Commonwealth and cannot simply rubber stamp what is proposed without consideration of its substance.
Case: Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596
Outcome: distinguished
Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596, Mason CJ, Deane and McHugh JJ said (170 CLR at 598): 'It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment ...' In Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 it was held that reputation, including business or commercial reputation, is an interest that may attract the protection of the rules of procedural fairness. It is also submitted that the common law right to maintain silence will be encroached upon. It is not clear to me that the so called common law right to silence is a right or interest in the sense outlined in Annetts v McCann [1990] HCA 57 ; 170 CLR 596 . The only authority that was cited to support that proposition, apart from the reference in the passage from the reasons of Dawson J in Johns v Australian Securities Commission 178 CLR at 437, was that of Branson J in Re Cortaus Ltd (in liq); Sheahan v Joye (No 2) (1996) 20 ACSR 576 at 578. That was an examination of the balance of convenience on an application for a contested adjournment and did not involve the present issue. There is merit in the submission by counsel for ASIC that it is hardly correct to say that an officer of a company that is in external administration has any right to silence concerning the affairs of the company. On the contrary, the officer is bound by statute, when called upon, to provide information. That has been the case for a very long time ( Rees v Kratzmann [1965] HCA 49 ; 114 CLR 63; Evans v Wainter 145 FCR per Lander J at [44] [82]; per French J in Highstoke Pty Ltd v Hayes Knight GTO Pty Ltd [2007] FCA 13 at [46] [78]). Ainsworth [1992] HCA 10 ; 175 CLR 564 concerned publication of a damning report. The same can be said of Testro Bros Pty Ltd v Tait [1963] HCA 29 ; (1963) 109 CLR 353 that was effectively overruled by Annetts v McCann (per Mason CJ, Dean and McHugh JJ 170 CLR at 598) and Ainsworth (per Mason CJ, Dawson, Toohey and Gaudron JJ 175 CLR at 576 577). In my opinion, the initiation of the exercise of a statutory power of an investigatory nature will not normally 'destroy, defeat or prejudice' (to use the words from Annetts v McCann [1990] HCA 57 ; 170 CLR 596) or 'imperil' (to use Meagher J's word) any relevant right or interest such as to require notice to be given to the object prior to exercise of the power. In any event, where, as here, the exercise of a power is anterior to that which has a direct effect upon the party, there is no such requirement.
Case: Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 ; (2004) 221 CLR 1
Outcome: cited
second argument was that if ASIC had notified the Administrators prior to the decision, so giving them the opportunity of making submissions in opposition, there is no reason to suppose that would have produced a different outcome ( Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141). It was submitted that ASIC had received significant submissions from or on behalf of the Administrators in relation to the original investigation and in relation to the release of transcripts which said all that could be said, as was revealed by the nature of the response made when the authorisation was known. Counsel for ASIC submitted that the evidence suggested that ASIC took those considerations into account. Some of the difficulties of applying the Stead principle were discussed by McHugh, Gummow, Callinan and Heydon JJ in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 ; (2004) 221 CLR 1 at [34] . In the present case, the question was whether particular persons should be appointed as eligible applicants. I can see no evidence that that topic was addressed in the submissions made on behalf of the Administrators prior to the decision being made.
Case: Australian Securities and Investments Commission v Plymin (No 3) [2002] VSC 358 ; (2002) 170 FLR 128
Outcome: cited
the sake of completeness I should deal with two arguments raised on behalf of ASIC, each of which I would reject if I had been of a different view concerning the duty to accord natural justice. The first was that the decision here was a step or stage in a process, the end result of which would entail procedural fairness ( Ainsworth per Mason CJ, Dawson, Toohey and Gaudron JJ 175 CLR at 578; South Australia v O'Shea [1987] HCA 39 ; (1987) 163 CLR 378 per Mason CJ at 389). It was argued that the position was not dissimilar to the lack of any requirement to afford a hearing prior to the commencement of a prosecution of a like proceeding ( Barton v The Queen [1980] HCA 48 ; (1980) 147 CLR 75 at 95; Cornall v AB (A Solicitor) [1995] 1 VR 372 at 396 397; Commissioner of Police v Reid 16 NSWLR at 461; Australian Securities and Investments Commission v Plymin (No 3) [2002] VSC 358 ; (2002) 170 FLR 128 at 135 136). In the first place, it is doubtful whether there is a single decision making process of the kind referred to in the present circumstances. The decision by ASIC in relation to authorisation involves different questions and different issues than would a decision to issue a summons by the Court or the conduct of the proceeding itself (cf McHugh J in Johns v Australian Securities Commission 178 CLR at 473 474 and see Re Excel 52 FCR at 83 84 and 86). It is difficult to see how failure to accord natural justice in relation to the decision in question could be cured by later events. In the second place, the examination procedure is not designed to accord natural justice to a party in relation to any allegations made, directly or indirectly, against the examinee. The process is inquisitorial rather than adversarial. There is no case put against the examinee or any case in reply. As Windeyer J said in Rees v Kratzmann (114 CLR at 80): 'The honest conduct of the affairs of companies is a matter of great public concern to-day. If the legislature thinks that in this field the public interest overcomes some of the common law's traditional consideration for the individual, then effect must be given to the statute which embodies this policy.' (See also Hamilton v Oades [1989] HCA 21 ; (1989) 166 CLR 486.) The fact that the Court maintains considerable control over the examination does not change the information gathering nature of the function being performed. The analogy with the institution of Court proceedings is not apt.
Case: Barton v The Queen [1980] HCA 48 ; (1980) 147 CLR 75
Outcome: cited
the sake of completeness I should deal with two arguments raised on behalf of ASIC, each of which I would reject if I had been of a different view concerning the duty to accord natural justice. The first was that the decision here was a step or stage in a process, the end result of which would entail procedural fairness ( Ainsworth per Mason CJ, Dawson, Toohey and Gaudron JJ 175 CLR at 578; South Australia v O'Shea [1987] HCA 39 ; (1987) 163 CLR 378 per Mason CJ at 389). It was argued that the position was not dissimilar to the lack of any requirement to afford a hearing prior to the commencement of a prosecution of a like proceeding ( Barton v The Queen [1980] HCA 48 ; (1980) 147 CLR 75 at 95; Cornall v AB (A Solicitor) [1995] 1 VR 372 at 396 397; Commissioner of Police v Reid 16 NSWLR at 461; Australian Securities and Investments Commission v Plymin (No 3) [2002] VSC 358 ; (2002) 170 FLR 128 at 135 136). In the first place, it is doubtful whether there is a single decision making process of the kind referred to in the present circumstances. The decision by ASIC in relation to authorisation involves different questions and different issues than would a decision to issue a summons by the Court or the conduct of the proceeding itself (cf McHugh J in Johns v Australian Securities Commission 178 CLR at 473 474 and see Re Excel 52 FCR at 83 84 and 86). It is difficult to see how failure to accord natural justice in relation to the decision in question could be cured by later events. In the second place, the examination procedure is not designed to accord natural justice to a party in relation to any allegations made, directly or indirectly, against the examinee. The process is inquisitorial rather than adversarial. There is no case put against the examinee or any case in reply. As Windeyer J said in Rees v Kratzmann (114 CLR at 80): 'The honest conduct of the affairs of companies is a matter of great public concern to-day. If the legislature thinks that in this field the public interest overcomes some of the common law's traditional consideration for the individual, then effect must be given to the statute which embodies this policy.' (See also Hamilton v Oades [1989] HCA 21 ; (1989) 166 CLR 486.) The fact that the Court maintains considerable control over the examination does not change the information gathering nature of the function being performed. The analogy with the institution of Court proceedings is not apt.
Case: Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237 ; (2004) 140 FCR 101
Outcome: cited
reasons in Rio Tinto 151 FCR from [64] [68] make clear that it was a special case, depending upon the form of particulars given by the Commissioner. In my opinion, an argumentative submission that is responsive to an integer of the applicant's case and defensive of the respondent's position would not normally give rise to the type of inconsistency referred to by the High Court in Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 and applied on the facts of Rio Tinto [2006] FCAFC 86 ; 151 FCR 341 (cf Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237 ; (2004) 140 FCR 101). I could see no special feature of the present case to displace that position.
Case: Commissioner of Police v Reid (1989) 16 NSWLR 453
Outcome: considered
decision of the New South Wales Court of Appeal in Commissioner of Police v Reid (1989) 16 NSWLR 453, cited by counsel for ASIC, is, at least, consistent with his submission and, on one view, directly supports it. Meagher JA (with whom Clarke JA agreed) held (at 461FG) that the ministerial step of obtaining leave from a judge to prosecute for perjury before any decision to prosecute is taken ' ... of itself does nothing, and certainly does not imperil any relevant right or interest.' I do not read the circumstance that the decision to prosecute does not require natural justice to be afforded as detracting from the more general proposition. For the sake of completeness I should deal with two arguments raised on behalf of ASIC, each of which I would reject if I had been of a different view concerning the duty to accord natural justice. The first was that the decision here was a step or stage in a process, the end result of which would entail procedural fairness ( Ainsworth per Mason CJ, Dawson, Toohey and Gaudron JJ 175 CLR at 578; South Australia v O'Shea [1987] HCA 39 ; (1987) 163 CLR 378 per Mason CJ at 389). It was argued that the position was not dissimilar to the lack of any requirement to afford a hearing prior to the commencement of a prosecution of a like proceeding ( Barton v The Queen [1980] HCA 48 ; (1980) 147 CLR 75 at 95; Cornall v AB (A Solicitor) [1995] 1 VR 372 at 396 397; Commissioner of Police v Reid 16 NSWLR at 461; Australian Securities and Investments Commission v Plymin (No 3) [2002] VSC 358 ; (2002) 170 FLR 128 at 135 136). In the first place, it is doubtful whether there is a single decision making process of the kind referred to in the present circumstances. The decision by ASIC in relation to authorisation involves different questions and different issues than would a decision to issue a summons by the Court or the conduct of the proceeding itself (cf McHugh J in Johns v Australian Securities Commission 178 CLR at 473 474 and see Re Excel 52 FCR at 83 84 and 86). It is difficult to see how failure to accord natural justice in relation to the decision in question could be cured by later events. In the second place, the examination procedure is not designed to accord natural justice to a party in relation to any allegations made, directly or indirectly, against the examinee. The process is inquisitorial rather than adversarial. There is no case put against the examinee or any case in reply. As Windeyer J said in Rees v Kratzmann (114 CLR at 80): 'The honest conduct of the affairs of companies is a matter of great public concern to-day. If the legislature thinks that in this field the public interest overcomes some of the common law's traditional consideration for the individual, then effect must be given to the statute which embodies this policy.' (See also Hamilton v Oades [1989] HCA 21 ; (1989) 166 CLR 486.) The fact that the Court maintains considerable control over the examination does not change the information gathering nature of the function being performed. The analogy with the institution of Court proceedings is not apt.