mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Macquarie Bank Ltd v Seagle [2005] FCA 1239 ; (2005) 146 FCR 400
Outcome: cited
the Court may only give judgment under O 35A for relief that "the applicant is entitled to on the statement of claim". In Macquarie Bank Ltd v Seagle [2005] FCA 1239 ; (2005) 146 FCR 400 at [24] , Conti J observed that: Counsel for the Bank submitted that so long as each element of the relevant civil wrong involved is properly and discretely pleaded in the statement of claim, the requirement of subr (2)(c)(i) will be satisfied in principle. In light of the evident objectives of the O 35A procedure in providing for a ready and expedient means to dispose of uncontested litigation, I consider that the Bank's submission duly reflects a correct description of the subr (2)(c)(i) requirement. Paragraph 11 of the applicants' amended statement of claim dated 13 May 2008 identifies 21 representations made during the negotiations for the joint venture businesses which are said to be misleading and deceptive conduct in contravention of s 52 of the Act. The prefatory words to [11] read: In the course of the said negotiations in each of the aforesaid cases Hughey and/or Pierce made the following representations and/or caused them to be made and/or were directly or indirectly knowingly involved in such representations being made by [EVP] Holdings and/or [EVP] Recruitment ... It is unclear from the amended statement of claim to whom each representation in [11] of the pleading is said to have been directed; which representations are alleged to have been made by the first respondent; which misrepresentations are alleged to have been made by the second respondent; and which representations are said to have been made by EVP Holdings or EVP Recruitment for which the respondents may be liable as accessories. In relation to the alleged breaches of s 52 of the Act by the second respondent identified in [11] of the amended statement of claim, the elements of the wrongs cannot be said to have been "properly and discretely pleaded". In relation to the second respondent, the allegations in [15] of the amended statement of claim meet the requirements of O 35A r 3(2) as discussed in Macquarie Bank Ltd v Seagle at [24]. Consequently, the power to give relief concerning contraventions of s 52 of the Act is within the Court's powers. Given the second respondent's failure to participate in any way in the proceeding, it is appropriate to exercise the Court's discretion to order relief against the second respondent, for breaches of s 52 identified in [15] of the amended statement of claim. The first respondent The position of the first respondent in relation to the application for default judgment pursuant to O 35A is in contrast to that of the second respondent. The first respondent filed a notice of appearance, a defence to the amended statement of claim and participated in the proceeding through his solicitors until 1 December 2008.
Case: Lenjimar Pty Ltd v AGC (Advances) Limited [1990] FCA 520 ; (1990) 27 FCR 388
Outcome: cited
prior notice of the applicants' intention to seek default judgment was given to the first respondent. No motion was filed with the Court that would have alerted the first respondent to the applicants' intentions. As Wilcox and Gummow JJ observed in Lenjimar Pty Ltd v AGC (Advances) Limited [1990] FCA 520 ; (1990) 27 FCR 388 at 400 in relation to the discretion to dismiss a proceeding for default: it is important that an applicant whose proceeding is under threat of dismissal be made aware of the nature of the alleged default and that there be a finding on that matter. That did not occur in this case. As we have said, the notice of motion failed to state any ground for the proposed order. The appellants were left to divine that from the evidence. Another relevant factor in determining whether to grant default judgment is whether, despite the default, the party "genuinely wishes the matter to go to trial" (see Lenjimar per Wilcox and Gummow JJ at 396). On 25 February 2009, the first respondent informed the Court by email that he would not appear at the trial of the proceedings on 2 March 2009. Nevertheless, the first respondent said that: The purpose of this letter is to advise that I do not have the financial resources to attend the hearing or brief counsel. However, I maintain my defence and if the matter proceeds in my absence as I expect, I request the Plaintiffs be obliged to prove their case against me to the required burden of proof. These statements evince an intention on the part of the first respondent to defend the applicants' claims and for the trial to proceed. In light of the relief sought by the applicants, the lack of notice to the first respondent of the applicants' intention to seek default judgment and the reasons given by the first respondent for the default, I am not satisfied that it is appropriate to give default judgment against the first respondent. It is more appropriate to test whether the evidence supports the claims made by the applicants against the first respondent.
Case: Ogawa v University of Melbourne (No. 2) (2004) FCA 1275
Outcome: cited
It is also well established and clear that in making an application for leave to appeal from such a judgment, the applicants must establish that the decision of Scarlett FM is 'attended by sufficient doubt to warrant its being reconsidered by the Full Court.' and must also demonstrate that 'substantial injustice' would result if leave were refused, supposing the decision to be wrong. The orthodoxy of those principles is established in Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 ( 'D&eacute;cor v Dart' ) and is confirmed in Ogawa v University of Melbourne (No. 2) (2004) FCA 1275. Of course, those principles are consistent with well established principles derived from Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 and also other authorities of the Federal Court of Australia. In examining the decision of Scarlett FM and the analytical exposed reasons published by his Honour in support of the orders, it is clear that his Honour turned his mind in considerable detail to the chronology of events, the principles to be applied in considering the application before him and the underlying merits of the contentions advanced by the appellant in relation to the proceedings before the Tribunal and the contended jurisdictional error on the part of the Tribunal.
Case: Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423
Outcome: cited
It is also well established and clear that in making an application for leave to appeal from such a judgment, the applicants must establish that the decision of Scarlett FM is 'attended by sufficient doubt to warrant its being reconsidered by the Full Court.' and must also demonstrate that 'substantial injustice' would result if leave were refused, supposing the decision to be wrong. The orthodoxy of those principles is established in Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 ( 'D&eacute;cor v Dart' ) and is confirmed in Ogawa v University of Melbourne (No. 2) (2004) FCA 1275. Of course, those principles are consistent with well established principles derived from Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 and also other authorities of the Federal Court of Australia. In examining the decision of Scarlett FM and the analytical exposed reasons published by his Honour in support of the orders, it is clear that his Honour turned his mind in considerable detail to the chronology of events, the principles to be applied in considering the application before him and the underlying merits of the contentions advanced by the appellant in relation to the proceedings before the Tribunal and the contended jurisdictional error on the part of the Tribunal.
Case: Whitlam v Australian Securities and Investments Commission [2003] NSWCA 183 ; (2003) 57 NSWLR 559
Outcome: cited
proxy forms are, in my opinion, to be considered and construed as commercial documents. They are, in substance, directions or appointments by a principal to an agent authorising the agent to act on behalf of the principal in a particular way. In such circumstances there is a duty upon the agent (the proxy) to abide by the direction or instruction given by the principal (the shareholder): Whitlam v Australian Securities and Investments Commission [2003] NSWCA 183 ; (2003) 57 NSWLR 559 at 600-601 at par [152]. The Company filed four affidavits sworn by four shareholders in the Company who had completed and lodged proxy forms in which they had appointed the Chairman of the meeting as their proxy but had not otherwise marked any of the "For", "Against" or "Abstain" boxes on the form. Those shareholders said that they did not provide any directions as to how the proxy was to vote and that they appointed the proxy to vote as he saw fit. They said they appointed the Chairman as their proxy expecting that Mr Pursell, Managing Director, was to be Chairman and that they expected at the time they completed the proxies that the Chairman would vote in favour of resolution 1 (the removal of Mr Campbell as a director), against resolutions 4, 5, 6 and 7 (the removal of the current Board) and against resolutions 8, 9, 10 and 11 (the appointment of the alternate board). The shareholders said that at no point of time did they expect, or want, their proxy to vote in favour of all resolutions put forward at the EGM. The secretary of the Company, Mr John Lawrence Neill, said in an affidavit that between 14 and 16 April 2009 he had received 16 letters from shareholders who provided an "open-useable proxy" (that is to say, undirected proxies) to the Chairman and who were concerned that the applicants were submitting that the votes cast as a consequence of these open-useable proxies should be counted as affirmative votes for each of the eleven resolutions and not as cast by the Chairman of the meeting.
Case: Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451
Outcome: followed
is well settled, in particular, by recent High Court authority, that the meaning of commercial contracts in documents and their proper construction is to be determined objectively, although regard may be had to all the surrounding circumstances known to the relevant parties at the time the document was created and that the subjective belief or understanding of the parties in relation to the document is not relevant or admissible: Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 , 461-462; Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165 at 179; Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5 ; (2002) 186 ALR 289 at 292-293; Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC 144 ; (2006) 156 FCR 1 at 12-13 per Weinberg J, at 22 per Kenny J, at 50 per Lander J.
Case: Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165
Outcome: followed
is well settled, in particular, by recent High Court authority, that the meaning of commercial contracts in documents and their proper construction is to be determined objectively, although regard may be had to all the surrounding circumstances known to the relevant parties at the time the document was created and that the subjective belief or understanding of the parties in relation to the document is not relevant or admissible: Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 , 461-462; Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165 at 179; Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5 ; (2002) 186 ALR 289 at 292-293; Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC 144 ; (2006) 156 FCR 1 at 12-13 per Weinberg J, at 22 per Kenny J, at 50 per Lander J.
Case: Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5 ; (2002) 186 ALR 289
Outcome: followed
is well settled, in particular, by recent High Court authority, that the meaning of commercial contracts in documents and their proper construction is to be determined objectively, although regard may be had to all the surrounding circumstances known to the relevant parties at the time the document was created and that the subjective belief or understanding of the parties in relation to the document is not relevant or admissible: Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 , 461-462; Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165 at 179; Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5 ; (2002) 186 ALR 289 at 292-293; Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC 144 ; (2006) 156 FCR 1 at 12-13 per Weinberg J, at 22 per Kenny J, at 50 per Lander J.
Case: Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC 144 ; (2006) 156 FCR 1
Outcome: followed
is well settled, in particular, by recent High Court authority, that the meaning of commercial contracts in documents and their proper construction is to be determined objectively, although regard may be had to all the surrounding circumstances known to the relevant parties at the time the document was created and that the subjective belief or understanding of the parties in relation to the document is not relevant or admissible: Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 , 461-462; Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165 at 179; Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5 ; (2002) 186 ALR 289 at 292-293; Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC 144 ; (2006) 156 FCR 1 at 12-13 per Weinberg J, at 22 per Kenny J, at 50 per Lander J.
Case: Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd [1993] FCA 45 ; (1993) 40 FCR 381
Outcome: considered
The absurdity is said to result in invalidity because no reasonable person could have devised the 2006 transitional provision; it is a fantastic and capricious law. Particular reliance was placed on the observations of Lockhart J as a member of the Full Court in Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd [1993] FCA 45 ; (1993) 40 FCR 381 ( Austral Fisheries ) at 382: Delegated legislation is not invalid on the ground of unreasonableness in the sense that the courts may form a different view as to what is reasonable. Unreasonableness in this branch of the law means unreasonable in the sense that "a merely fantastic and capricious by-law, such as reasonable men could not make in good faith" is bad, because delegated legislation of this kind could not be regarded as an exercise of the power conferred upon the subordinate legislative body making the delegated legislation .... At 401 the other members of the Full Court (Beaumont and Hill JJ) endorsed the primary judge's holding that the provisions under attack were "capricious and irrational, such that no reasonable person could ever have devised" them. 16 The first three steps at [14] are not in dispute. The conclusion in the last step is, and in my view does not follow from those that precede it. Subclause (2) applies only if the assessment mentioned in subclause (1) is carried out and has a particular character. It thus has no operation if subclause (1) does not apply. The 2006 transitional provision does not purport to give subclause (2) any operation beyond the class of visa applications covered by (the existing) subclause (1), namely those made on or after 1 July 2005. A visa application lodged before 1 July 2005 remains unaffected by any part of clause 880.230. 25 The present case is quite unlike Austral Fisheries [1993] FCA 45 ; 40 FCR 381 , where the formula for the allocation of quotas was based on a statistical fallacy which operated to produce such a capricious and irrational result that no reasonable person could have devised it. It is also unlike Li [1999] FCA 1147 ; 94 FCR 219 , where the delegated legislation was inconsistent with the Act itself. That is not the case here. Indeed, little assistance is to be derived from other cases on capriciousness and irrationality. Each depends on its own facts. For the reasons I have sought to express, I do not regard the result in the present case as having either of those characteristics.
Case: Public Transport Commission (NSW) v J Murray-Moore (NSW) Pty Ltd [1975] HCA 28 ; (1975) 132 CLR 336
Outcome: cited
This construction of the provisions accords with the ordinary meaning of the words and produces a sensible result. It is thus to be preferred to that propounded by the appellant, which would produce what she describes as an absurdity, namely that subclause (2) would purport to apply in some cases where it has no work to do for want of any assessment having been required by subclause (1). See, for example, Public Transport Commission (NSW) v J Murray-Moore (NSW) Pty Ltd [1975] HCA 28 ; (1975) 132 CLR 336 at 350 and Widgee Shire Council v Bonney [1907] HCA 11 ; (1907) 4 CLR 977 at 983.
Case: Widgee Shire Council v Bonney [1907] HCA 11 ; (1907) 4 CLR 977
Outcome: cited
This construction of the provisions accords with the ordinary meaning of the words and produces a sensible result. It is thus to be preferred to that propounded by the appellant, which would produce what she describes as an absurdity, namely that subclause (2) would purport to apply in some cases where it has no work to do for want of any assessment having been required by subclause (1). See, for example, Public Transport Commission (NSW) v J Murray-Moore (NSW) Pty Ltd [1975] HCA 28 ; (1975) 132 CLR 336 at 350 and Widgee Shire Council v Bonney [1907] HCA 11 ; (1907) 4 CLR 977 at 983.
Case: Li v Minister for Immigration and Multicultural Affairs [1999] FCA 1147 ; (1999) 94 FCR 219
Outcome: distinguished
In this connection the appellant relied on the obiter observations of Gyles J in Li v Minister for Immigration and Multicultural Affairs [1999] FCA 1147 ; (1999) 94 FCR 219 ( Li ). There in question was a regulation deeming documents dispatched in a particular way to have been received at a particular time. At [46] to [47] Gyles J said: [T]he description of the legislation in Austral Fisheries ... is apt to describe the result of applying subregs (1)(a) and (2) of reg 5.03. The result is not simply the possibility of some illogical or strange result depending upon the circumstances. It is the certainty of an absurd result if the notification is posted on the seventh day, as the regulation expressly contemplates. The inevitable result of that state of facts is that the applicant will simply not receive the prescribed number of days in which to make an application for review as required by s 347(1) and reg 4.10. Thus, another way of analysing the matter is to say that the delegated legislation is inconsistent with the legislation, and in particular with s 347(1). ... I cannot accept that in the present context Parliament would intend that delegated legislation may validly contemplate the certainty that the Minister may correctly follow its provisions, yet the applicant will not receive the benefit of the prescribed statutory period of notice. 25 The present case is quite unlike Austral Fisheries [1993] FCA 45 ; 40 FCR 381 , where the formula for the allocation of quotas was based on a statistical fallacy which operated to produce such a capricious and irrational result that no reasonable person could have devised it. It is also unlike Li [1999] FCA 1147 ; 94 FCR 219 , where the delegated legislation was inconsistent with the Act itself. That is not the case here. Indeed, little assistance is to be derived from other cases on capriciousness and irrationality. Each depends on its own facts. For the reasons I have sought to express, I do not regard the result in the present case as having either of those characteristics.
Case: Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 377 ; (2000) 98 FCR 77
Outcome: cited
Gyles J's obiter observations were approved by two members of the Full Court in Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 377 ; (2000) 98 FCR 77 at [49] , where their Honours noted that reg 5.03 could produce the absurd result that the document, if sent on the seventh day after its date, was to be taken to have been received before that could possibly be the case.
Case: City of Brunswick v Stewart [1941] HCA 7 ; (1941) 65 CLR 88
Outcome: cited
The Minister accepts that the differential results that could arise between two visa applicants whose positions are otherwise the same depending on the luck of the draw is unfortunate. However, he says that this is the inevitable result where the regulation maker wishes promptly to close a loophole in the existing criteria, and that scope for debate as to the consequences of such a measure does not mean that it lacks a rational foundation. Support for this view, which I accept, is provided by the distinction drawn by Starke J in City of Brunswick v Stewart [1941] HCA 7 ; (1941) 65 CLR 88 at 98 - "it is one thing to say that the provision is drastic, and another to affirm that it is so capricious and oppressive that no reasonable mind can justify it".
Case: Health Insurance Commission v Peverill [1994] HCA 8 ; (1994) 179 CLR 226
Outcome: cited
It was common ground that when the appellant paid the visa application fee there was no acquisition of property within s 51(xxxi). She paid the fee voluntarily. There was no compulsory acquisition, expropriation or requisition. See Health Insurance Commission v Peverill [1994] HCA 8 ; (1994) 179 CLR 226 at 235, 299 ( Peverill ) and Smith v ANL Ltd [2000] HCA 58 ; (2000) 204 CLR 493 at [128] per Hayne J, with whom McHugh J agreed. 35 In order for the voluntarily paid fee to become an expropriated asset, the challenged provisions must have defeated some right that was acquired by the appellant when she entered into the transaction constituted by the visa application accompanied by the fee. What she thereby obtained was the right to have her application considered and determined according to law. That right is enforceable by public law remedies such as mandamus. It is not a right to a particular outcome. The right to have an application determined according to law is always subject to the power of Parliament and its delegates to change the law. Accordingly there is no right to have an application considered against criteria that exist at the time the application is made. In Peverill 179 CLR at 261, McHugh J quoted with approval the observation of Pitney J in New York Central RR Co v White (1917) 243 US 188 at 198 that "No person has a vested interest in any rule of law entitling him to insist that it shall remain unchanged for his benefit".
Case: Smith v ANL Ltd [2000] HCA 58 ; (2000) 204 CLR 493
Outcome: cited
It was common ground that when the appellant paid the visa application fee there was no acquisition of property within s 51(xxxi). She paid the fee voluntarily. There was no compulsory acquisition, expropriation or requisition. See Health Insurance Commission v Peverill [1994] HCA 8 ; (1994) 179 CLR 226 at 235, 299 ( Peverill ) and Smith v ANL Ltd [2000] HCA 58 ; (2000) 204 CLR 493 at [128] per Hayne J, with whom McHugh J agreed.