mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Harrington-Smith on behalf of the Wongatha People v State of Western Australia [2002] FCA 871
Outcome: referred to
In particular, I see no reason why the Court's incidental power to grant a person leave to appear by a non-lawyer and the power to do so under s 85 of the NTA should not involve similar considerations, particularly in the current context. In Harrington-Smith on behalf of the Wongatha People v State of Western Australia [2002] FCA 871 , Lindgren J stated at [20] in relation to an application for leave under s 85: 'What should be clearly understood is that leave is required because it is not to be taken for granted that a person who is not a solicitor or barrister will be allowed to represent a party. Perhaps Dolly Walker thinks that leave is granted as a matter of course, just for the asking. This is not so and for good reason. Solicitors and barristers are qualified by education and training to represent parties and are subject to professional and curial disciplines and responsibilities. The requirement of leave is imposed for the reason that the Court must be satisfied that it is in the interests of the administration of justice in all the circumstances that a party be represented by a person who is not a solicitor or barrister.' See also, Adnyamathanha People No 1 v South Australia (2004) 208 ALR 91 at [9] et seq.
Case: Holborow v State of Western Australia [2002] FCA 1428
Outcome: referred to
In Daniel v Western Australia (2002) 194 ALR 278 (' Daniel ') at [17], French J drew from s 66B the following conditions that must be met for an order under the section to be made: 1. There is a claimant application. 2. Each applicant for an order under s 66B is a member of the native title group. 3. The person to be replaced is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it. 4. Alternatively, the person to be replaced has exceeded the authority given to him or her by the claim group. 5. The persons making the application under s 66B are authorised by the claim group to make the application and to deal with matters arising under it. See also, Holborow v State of Western Australia [2002] FCA 1428 ; Ward v Northern Territory of Australia (2003) 196 ALR 32; Lawson ; and Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760.
Case: Johnson, in the matter of Lawson v Lawson [2001] FCA 894
Outcome: referred to
On 13 July 2001, I rejected an application made under s 66B to remove the Lawsons as the applicant: Johnson, in the matter of Lawson v Lawson [2001] FCA 894. Although I accepted that the Lawsons had lost the confidence of some important members of the Claim Group I was not satisfied that the evidence was sufficient to show that the Claim Group, by appropriate decision-making processes, had revoked their authority to represent it or had authorised other members of the Claim Group to replace them.
Case: Johnson on behalf of the Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2003] FCA 981
Outcome: referred to
In opposing the application for leave for Mr Dengate to appear, Ms Phillips, who appeared for New South Wales Native Title Services ('NTS'), pointed out that the application for leave (which was signed by Mr Dengate) sought to have him represent Mr Lawson and Mr Johnson not only in respect of the present motion but also in the substantive proceedings. The notion that there is any scope for members of the applicant group to be separately represented fundamentally misconceives the role of those comprising an applicant in native title proceedings. As I pointed out in Johnson on behalf of the Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2003] FCA 981 (' Johnson ') at [8]: 'Such applicants are representatives of the claimant group; they have no personal interest other than as members of the claimant group and for this reason their interests do not differ from each other or from the claimant group and separate representation is inappropriate and unacceptable.'
Case: Johnson on behalf of the Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2003] FCA 1411
Outcome: referred to
I am satisfied that, in the present circumstances, it is not in the interests of justice for Mr Dengate to be permitted to represent Mr Lawson and Mr Johnson. With the greatest respect to Mr Dengate, and despite his genuine commitment to his clients, I am convinced that he has neither the discipline nor the understanding to assist them or the Court. I am confirmed in this view by my previous experience of Mr Dengate as an advocate; see my comments in Johnson at [14]-[16] and Johnson on behalf of the Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2003] FCA 1411 at [4] - [6] . For these reasons I declined to grant leave for Mr Dengate to appear. 12 It is also relevant to note that Messrs Lawson and Johnson have some experience in native title proceedings in this Court and, as it transpired, their evidence and submissions at the motion hearing were cogent, relevant and explained the dispute between the parties clearly. 13 A further issue was raised at the directions hearing of 5 December 2005 in relation to the suitability or otherwise of the proposed hearing date; 13 December 2005. Mr Dengate contended that there had been delays in the service of the documents relating to the motion. He stated that Mr Lawson had not been served with all the documents until 21 November 2005. Consequently, he argued that it was not appropriate to hear the motion on 13 December 2005.
Case: Melaleuca of Australia &amp; New Zealand Pty Ltd v Duck [2005] FCA 1481
Outcome: cited
Section 85 of the NTA provides that a 'party may appear in person or may be represented by a barrister, a solicitor or, with the leave of the Federal Court, another person'. Although Messrs Lawson and Johnson are members of the applicant group they are not, as individuals, parties to this proceeding: see s 61(2) of the NTA. Nevertheless they are, effectively, the contradictors to the present motion. I am satisfied, therefore, that under the Court's power to do that which is incidental or necessary to the exercise of the powers conferred on it, in this case by s 66B of the NTA, I have jurisdiction to entertain the application for leave for Mr Dengate to appear. In Melaleuca of Australia &amp; New Zealand Pty Ltd v Duck [2005] FCA 1481 , Bennett J helpfully summarised the Court's 'inherent' power in this regard at [5]-[15]. While I would prefer to take the approach advocated in Parsons v Martin (1984) 5 FCR 235 at 241 and refer to this power as an 'incidental and necessary power of a statutory court' rather than as 'inherent', I respectfully accept her Honour's statement of the generally applicable principles.
Case: Noble v Murgha [2005] FCAFC 211
Outcome: referred to
Subsection 61(2) of the NTA provides that the persons authorised to make the claimant application by the native title claim group are jointly the 'applicant' and none of the other members of the native title claim group is the 'applicant'. This leads to the somewhat awkward situation where the term 'applicant' is applied to a group of separately named individuals: see Noble v Murgha [2005] FCAFC 211 at [6] . Other provisions of the NTA relevant to the present application are: ' 66B Replacing the applicant Application to replace applicant in claimant application (1) One or more members of the native title claim group (the claim group ) in relation to a claimant application, or of the compensation claim group (also the claim group ) in relation to a compensation application, may apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application on the grounds that: (a) either: (i) the current applicant is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it; or (ii) the current applicant has exceeded the authority given to him or her by the claim group to make the application and to deal with matters arising in relation to it; and (b) the member or members are authorised by the claim group to make the application and to deal with matters arising in relation to it. Court order (2) The Court may make the order if it is satisfied that the grounds are established.' ' 251B Authorising the making of applications For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if: (a) where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind--the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or (b) where there is no such process--the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.'
Case: Parsons v Martin (1984) 5 FCR 235
Outcome: referred to
Section 85 of the NTA provides that a 'party may appear in person or may be represented by a barrister, a solicitor or, with the leave of the Federal Court, another person'. Although Messrs Lawson and Johnson are members of the applicant group they are not, as individuals, parties to this proceeding: see s 61(2) of the NTA. Nevertheless they are, effectively, the contradictors to the present motion. I am satisfied, therefore, that under the Court's power to do that which is incidental or necessary to the exercise of the powers conferred on it, in this case by s 66B of the NTA, I have jurisdiction to entertain the application for leave for Mr Dengate to appear. In Melaleuca of Australia &amp; New Zealand Pty Ltd v Duck [2005] FCA 1481 , Bennett J helpfully summarised the Court's 'inherent' power in this regard at [5]-[15]. While I would prefer to take the approach advocated in Parsons v Martin (1984) 5 FCR 235 at 241 and refer to this power as an 'incidental and necessary power of a statutory court' rather than as 'inherent', I respectfully accept her Honour's statement of the generally applicable principles.
Case: Ward v Northern Territory [2002] FCA 171
Outcome: referred to
It is pertinent to note, however, that the Court retains a discretion not to make the orders sought under s 66B of the NTA: see Ward v Northern Territory [2002] FCA 171 (' Ward ') at [16] and Daniel at [18].
Case: Ward v Northern Territory of Australia (2003) 196 ALR 32
Outcome: referred to
In Daniel v Western Australia (2002) 194 ALR 278 (' Daniel ') at [17], French J drew from s 66B the following conditions that must be met for an order under the section to be made: 1. There is a claimant application. 2. Each applicant for an order under s 66B is a member of the native title group. 3. The person to be replaced is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it. 4. Alternatively, the person to be replaced has exceeded the authority given to him or her by the claim group. 5. The persons making the application under s 66B are authorised by the claim group to make the application and to deal with matters arising under it. See also, Holborow v State of Western Australia [2002] FCA 1428 ; Ward v Northern Territory of Australia (2003) 196 ALR 32; Lawson ; and Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760.
Case: Australian Guarantee Corp Ltd v De Jager [1984] VR 483
Outcome: applied
I do, however, consider that there was a considerable loss of time, inconvenience to the parties and the Court, and a wilful disregard to established law in the attempts to re-open the case (other than on the limited basis permitted) and in the application for a restraining order against Saxbys see generally Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397 at 401; Ugly Tribe Company Pty Ltd v Sikola [2001] VSC 189 ; Australian Guarantee Corp Ltd v De Jager [1984] VR 483 at 502. 29 I do not accept on the current material that the application to restrain Saxbys was necessarily to intimidate or harass Saxbys or its clients, although I do accept that there was no basis to support the legitimacy of such motion to disqualify. The allegations made against Saxbys were unsuccessful. In my view they were clearly unmeritorious, and to the extent possible, Saxbys should not be out of pocket see generally Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397 at 401; Ugly Tribe Company Pty Ltd v Sikola [2001] VSC 189 ; Australian Guarantee Corp Ltd v De Jager [1984] VR 483 at 502.
Case: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397
Outcome: applied
I do, however, consider that there was a considerable loss of time, inconvenience to the parties and the Court, and a wilful disregard to established law in the attempts to re-open the case (other than on the limited basis permitted) and in the application for a restraining order against Saxbys see generally Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397 at 401; Ugly Tribe Company Pty Ltd v Sikola [2001] VSC 189 ; Australian Guarantee Corp Ltd v De Jager [1984] VR 483 at 502. 29 I do not accept on the current material that the application to restrain Saxbys was necessarily to intimidate or harass Saxbys or its clients, although I do accept that there was no basis to support the legitimacy of such motion to disqualify. The allegations made against Saxbys were unsuccessful. In my view they were clearly unmeritorious, and to the extent possible, Saxbys should not be out of pocket see generally Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397 at 401; Ugly Tribe Company Pty Ltd v Sikola [2001] VSC 189 ; Australian Guarantee Corp Ltd v De Jager [1984] VR 483 at 502.
Case: Knight v FP Special Assets Ltd [1992] HCA 28 ; (1992) 174 CLR 178
Outcome: applied
The plaintiffs requested that Mr Fisher be ordered to pay the costs incurred in relation to the hearings after the conclusion of the hearing on 11 July 2007 (on the principles set out in Knight v FP Special Assets Ltd [1992] HCA 28 ; (1992) 174 CLR 178) because: (1) a considerable portion of time was wasted on the application to remove Saxbys which application was without merit; (2) the application for leave to reopen APM's case was seeking an indulgence and was without merit. 10 Further, I am not satisfied that the interests of justice require an order to be made against Mr Fisher where costs can be accommodated in accordance with the statutory regime or as part of the costs in the winding up see generally Knight v FP Special Assets Ltd [1992] HCA 28 ; (1992) 174 CLR 178 and Symphony Group Plc v Hodgson [1994] QB 179 at 191-192 per Balcombe LJ.
Case: Symphony Group Plc v Hodgson [1994] QB 179
Outcome: applied
Further, I am not satisfied that the interests of justice require an order to be made against Mr Fisher where costs can be accommodated in accordance with the statutory regime or as part of the costs in the winding up see generally Knight v FP Special Assets Ltd [1992] HCA 28 ; (1992) 174 CLR 178 and Symphony Group Plc v Hodgson [1994] QB 179 at 191-192 per Balcombe LJ.
Case: Ugly Tribe Company Pty Ltd v Sikola [2001] VSC 189
Outcome: applied
I do, however, consider that there was a considerable loss of time, inconvenience to the parties and the Court, and a wilful disregard to established law in the attempts to re-open the case (other than on the limited basis permitted) and in the application for a restraining order against Saxbys see generally Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397 at 401; Ugly Tribe Company Pty Ltd v Sikola [2001] VSC 189 ; Australian Guarantee Corp Ltd v De Jager [1984] VR 483 at 502. 29 I do not accept on the current material that the application to restrain Saxbys was necessarily to intimidate or harass Saxbys or its clients, although I do accept that there was no basis to support the legitimacy of such motion to disqualify. The allegations made against Saxbys were unsuccessful. In my view they were clearly unmeritorious, and to the extent possible, Saxbys should not be out of pocket see generally Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397 at 401; Ugly Tribe Company Pty Ltd v Sikola [2001] VSC 189 ; Australian Guarantee Corp Ltd v De Jager [1984] VR 483 at 502.
Case: White Industries (Qld) Pty Ltd v Flower &amp; Hart (a firm) (1998) 156 ALR 169
Outcome: cited
It was contended that Mr Fisher's conduct was unreasonable in the sense used by Goldberg J in White Industries (Qld) Pty Ltd v Flower &amp; Hart (a firm) (1998) 156 ALR 169 in that: (1) the applications were hopeless; (2) Mr Fisher conducted and managed the proceeding in disregard of any proper consideration of the prospects of success; and (3) no practitioner who was reasonably well-informed and competent would have so acted. 9 The application by APM to re-open was permitted on a limited basis, although the application by APM to remove Saxbys was unsuccessful. However, I am not satisfied that it is appropriate in the context of the applications made on behalf of APM or in the conduct of the proceedings generally, that I should make a cost order directly against Mr Fisher. I do not consider that Mr Fisher's own conduct has been demonstrated to be so unreasonable, or even that if the application against Saxbys was obviously without merit, that a costs order against Mr Fisher would be appropriate. I appreciate that Mr Fisher (as the director of APM) was granted leave to appeal the decision of Registrar Musset, but the hearing was to be treated de novo to consider the solvency of APM.
Case: Kaiser Aluminum &amp; Chemical Corporation v Reynolds Metal Company [1969] HCA 7 ; (1969) 120 CLR 136
Outcome: cited
An appeal under s 60(4) of the Patents Act is an original proceeding in this Court and the hearing of an appeal is a hearing de novo : see Kaiser Aluminum &amp; Chemical Corporation v Reynolds Metal Company [1969] HCA 7 ; (1969) 120 CLR 136 at 142; RD Werner Co Inc v Bailey Aluminium Products Pty Ltd (1987) 8 IPR 339 at 340; and F Hoffman-La Roche AG v New England Biolabs Inc [2000] FCA 283 ; (2000) 99 FCR 56 at 63 (' Hoffman-La Roche' ). 13 In Caroma , Walsh J was confronted with a situation like that of the present case, in that neither the respondent-opponent nor the Commissioner appeared. Walsh J found at 324-325: 'It was said that the only evidence to be taken into consideration in deciding the appeal is that tendered at the hearing and admitted by me. In my opinion that submission is correct. ...[T]he enactment that the Tribunal may admit further evidence ought not to be taken, in my opinion, as implying that the Tribunal must treat all evidence which has been given at a hearing before the Commissioner or his officer as being evidence in the proceeding before the Tribunal. As Kitto J. said in Kaiser Aluminum &amp; Chemical Corporation v Reynolds Metal Co. [1969] HCA 7 ; (1969), 120 CLR 136, at p. 142, an appeal under s.60(5) of the Act is in truth an original proceeding and "it must be decided upon the evidence adduced before this Court". His Honour referred to some authorities dealing with the nature of the jurisdiction exercised by this Court in taxation "appeals". One of those authorities was Commissioner of Taxation v Finn [1960] HCA 69 ; (1960), 103 CLR 165. In that case, at pp. 167-168, Fullagar J. cited passages from the judgment of Williams J. in Federal Commission of Taxation v Sagar [1946] HCA 6 ; (1946), 71 CLR 421, at pp. 423-424, including the following passage: "The appeal is a proceeding in the original jurisdiction of the Court so that, unless the parties agree that the evidence given before the Board shall be used on the appeal, the evidence must be tendered again, and, as the appeal is a rehearing, further evidence can be called". In the present case the Supervising Examiner... who heard the matter, had before him two statutory declarations in support of the opposition. These have not been tendered before me. ... There has been no proof before me of any facts alleged in the statutory declarations supporting the opposition, except to the extent that the affidavit or oral evidence tendered on behalf of the appellant refers to those facts.'
Case: RD Werner Co Inc v Bailey Aluminium Products Pty Ltd (1987) 8 IPR 339
Outcome: cited
An appeal under s 60(4) of the Patents Act is an original proceeding in this Court and the hearing of an appeal is a hearing de novo : see Kaiser Aluminum &amp; Chemical Corporation v Reynolds Metal Company [1969] HCA 7 ; (1969) 120 CLR 136 at 142; RD Werner Co Inc v Bailey Aluminium Products Pty Ltd (1987) 8 IPR 339 at 340; and F Hoffman-La Roche AG v New England Biolabs Inc [2000] FCA 283 ; (2000) 99 FCR 56 at 63 (' Hoffman-La Roche' ).
Case: Hoffman-La Roche AG v New England Biolabs Inc [2000] FCA 283 ; (2000) 99 FCR 56
Outcome: discussed
An appeal under s 60(4) of the Patents Act is an original proceeding in this Court and the hearing of an appeal is a hearing de novo : see Kaiser Aluminum &amp; Chemical Corporation v Reynolds Metal Company [1969] HCA 7 ; (1969) 120 CLR 136 at 142; RD Werner Co Inc v Bailey Aluminium Products Pty Ltd (1987) 8 IPR 339 at 340; and F Hoffman-La Roche AG v New England Biolabs Inc [2000] FCA 283 ; (2000) 99 FCR 56 at 63 (' Hoffman-La Roche' ). 10 In an appeal, the issue for decision would be whether, if granted, the patent would be clearly invalid. The authorities dealing with the issues that arise in an appeal and the onus of proof are canvassed by Emmett J in Hoffman-La Roche , particularly at 66-70 [48]-[66]. Emmett J arrived at the following conclusion at 70 [67]: 'The language employed in the cases to which I have referred suggest that it should appear clear to the Court that no patent granted in respect of the specification would be valid. I consider that, before the Court would uphold an opposition to the grant of a patent, the Court should be clearly satisfied that the patent, if granted, would not be valid.' 11 The appellant submitted that the appeal should be allowed and the patent application should proceed to grant essentially because the onus is on the now-withdrawn opponent to make out the opposition and, in this proceeding, the opponent has neither tendered nor adduced any evidence before this Court capable of discharging its onus. In those circumstances, the accepted patent application stands unchallenged and it was submitted that it must be allowed to proceed to grant.
Case: Interchase Corporation Limited (In Liquidation) v Grosvenor Hill Queensland Proprietary Limited (No 1) (1999) 1 QR 141
Outcome: cited
was submitted on behalf of the Conservation Council that the manner in which the return of the subpoena had been ordered in the Documents for Subpoena document, insofar as categorisation and tabulation was concerned, engaged with particular observations which I made, by reference to, in turn, to observations made particularly by Pincus J in Interchase Corporation Limited (in Liquidation) v Grosvenor Hill Queensland Proprietary Limited (No 1) (1999) 1 QR 141 (Interchase), in my judgment in Granitgard Pty Ltd v Termicide Pest Control Pty Ltd (No 2) [2008] FCA 1451 (Granitgard), at particularly para 28.