mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: MZXPW v Minister for Immigration and Citizenship [2008] FCA 689
Outcome: cited
principles governing granting or withholding leave to appeal are well known: D&eacute;cor Corporation Pty Ltd and Anor v Dart Industries Inc (1991) 104 ALR 621 at 622 per Sheppard, Burchett and Heerey JJ; MZXPW v Minister for Immigration and Citizenship [2008] FCA 689 per Tracey J; MZXPF v Minister for Immigration and Citizenship [2007] FCA 1765 per Spender J; SZDWE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1498 per Jacobson J at [4] and [5]. There are two questions. First, whether in all the circumstances the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court. Second, whether substantial injustice would be done if leave were refused supposing the decision to be wrong. In the present case, the question is whether the exercise of the discretion by the Federal Magistrates Court conferred by rule 16.05(2)(a) of the Federal Magistrates Court Rules to set aside (or not) orders made in the absence of a party, miscarried. The exercise of the discretion was informed by three considerations: whether the absence of the applicant from the hearing was satisfactorily explained; whether arguable grounds of jurisdictional error were demonstrated; and whether any prejudice might arise to the respondent in setting aside the dismissal order. The final question did not arise in the opinion of FM Cameron having regard to his findings in relation to the first two questions which were that the failure to appear was not satisfactorily explained and arguable grounds of jurisdictional error were not demonstrated. Background
Case: MZXPF v Minister for Immigration and Citizenship [2007] FCA 1765
Outcome: cited
principles governing granting or withholding leave to appeal are well known: D&eacute;cor Corporation Pty Ltd and Anor v Dart Industries Inc (1991) 104 ALR 621 at 622 per Sheppard, Burchett and Heerey JJ; MZXPW v Minister for Immigration and Citizenship [2008] FCA 689 per Tracey J; MZXPF v Minister for Immigration and Citizenship [2007] FCA 1765 per Spender J; SZDWE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1498 per Jacobson J at [4] and [5]. There are two questions. First, whether in all the circumstances the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court. Second, whether substantial injustice would be done if leave were refused supposing the decision to be wrong. In the present case, the question is whether the exercise of the discretion by the Federal Magistrates Court conferred by rule 16.05(2)(a) of the Federal Magistrates Court Rules to set aside (or not) orders made in the absence of a party, miscarried. The exercise of the discretion was informed by three considerations: whether the absence of the applicant from the hearing was satisfactorily explained; whether arguable grounds of jurisdictional error were demonstrated; and whether any prejudice might arise to the respondent in setting aside the dismissal order. The final question did not arise in the opinion of FM Cameron having regard to his findings in relation to the first two questions which were that the failure to appear was not satisfactorily explained and arguable grounds of jurisdictional error were not demonstrated. Background
Case: SZDWE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1498
Outcome: cited
principles governing granting or withholding leave to appeal are well known: D&eacute;cor Corporation Pty Ltd and Anor v Dart Industries Inc (1991) 104 ALR 621 at 622 per Sheppard, Burchett and Heerey JJ; MZXPW v Minister for Immigration and Citizenship [2008] FCA 689 per Tracey J; MZXPF v Minister for Immigration and Citizenship [2007] FCA 1765 per Spender J; SZDWE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1498 per Jacobson J at [4] and [5]. There are two questions. First, whether in all the circumstances the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court. Second, whether substantial injustice would be done if leave were refused supposing the decision to be wrong. In the present case, the question is whether the exercise of the discretion by the Federal Magistrates Court conferred by rule 16.05(2)(a) of the Federal Magistrates Court Rules to set aside (or not) orders made in the absence of a party, miscarried. The exercise of the discretion was informed by three considerations: whether the absence of the applicant from the hearing was satisfactorily explained; whether arguable grounds of jurisdictional error were demonstrated; and whether any prejudice might arise to the respondent in setting aside the dismissal order. The final question did not arise in the opinion of FM Cameron having regard to his findings in relation to the first two questions which were that the failure to appear was not satisfactorily explained and arguable grounds of jurisdictional error were not demonstrated. Background
Case: Hamersley Iron Pty Ltd v National Competition Council [1999] FCA 867 ; (1999) 164 ALR 203
Outcome: considered
Hamersley claims that, by reason of certain orders made by Kenny J in Hamersley Iron Pty Ltd v National Competition Council [1999] FCA 867 ; (1999) 164 ALR 203) ( First Hamersley Iron ), the NCC should be prevented from considering or otherwise dealing with TPI's application. 5 In First Hamersley Iron , a similar application was made by Robe River Mining Co Pty Ltd and a group of associated joint venturers (hereafter described for convenience as Robe River). Kenny J held that the NCC did not have power to recommend declaration of Hamersley's rail track under Pt IIIA of the TPA because it was not a "service" within s 44B. That was because the rail track involved "the use of a production process" and therefore fell within the exclusion to the definition of "service" in that section. 6 TPI's application to the NCC, which lies behind this proceeding, involves the same rail track as that featured in First Hamersley Iron, though it extends beyond it. Hamersley claims that the NCC remains permanently bound by her Honour's orders in First Hamersley Iron , and therefore has no power to consider TPI's application or recommend declaration of the service. That is so despite the fact that TPI was not a party to the earlier proceeding. 7 Hamersley invokes the doctrine of res judicata as the central plank of its case. It also relies upon what it says were undertakings given to the Court by the NCC in First Hamersley Iron , which it submits prevent the NCC from entertaining TPI's application. 8 Part IIIA of the TPA contains a statutory regime for regulated access to what may be described as "essential facilities". Introduced in 1995, this regime allows the designated Minister, usually the Federal Treasurer, to "declare" a particular "service" pursuant to s 44H. The Minister cannot proceed without a recommendation from the NCC. This means that all declarations must be filtered through the NCC. 9 A declaration of a service overrides what would otherwise be the exclusive rights of the owner of a "monopoly" facility to determine the terms and conditions upon which that owner will supply its services to others. In essence, the focus is upon facilities of national significance, which it would be uneconomic to duplicate and which supply a service, access to which would promote competition, efficiency and the public interest.
Case: BHP Billiton Iron Ore Pty Ltd v National Competition Council (2007) 162 FCR 234
Outcome: cited
The provisions of Pt IIIA are complex and have given rise to difficulty. For example, judges of this Court have differed as to the meaning of the term "the use of a production process" in s 44B. Recently, in BHP Billiton Iron Ore Pty Ltd v National Competition Council (2007) 162 FCR 234 , a Full Court, by majority, disapproved Kenny J's reasoning in First Hamersley Iron. In March this year, the High Court granted special leave to appeal from that decision of the Full Court. 16 It is well established that the doctrine of res judicata will apply whether or not the decision which is said to give rise to that form of estoppel has itself been overruled. It makes no difference whether the initial judgment was wrong. It follows that I need not concern myself with whether First Hamersley Iron represents good law. The only question is whether it operates in the way for which Hamersley contends. 17 In considering whether First Hamersley Iron operates to prevent the NCC from dealing with the TPI application , it is of course necessary to pay close attention to the issues determined in that case. 18 The facts may be briefly stated. In September 1998 Robe River applied to the NCC under s 44F(1) to recommend that the designated Minister declare the Hamersley rail track to be a "service". The application identified Hamersley as the provider of the service and the owner of the facility to which it related. 19 The Robe River application went on to state as follows: "3.2 The service to which [Robe] seeks access is the bulk iron ore rail track transportation service provided by the Hamersley Rail Infrastructure Facility, as defined in part 4 of this application ( Rail Track Service ). This should be distinguished from any rail haulage service which may be available in relation to this facility. 3.3 The Rail Track Service is required for use by both [Robe] trains and by [Robe] hi-rails only over that section of the Hamersley Rail Infrastructure Facility described in part 4 of this application. The Rail Track Service comprises the use of an infrastructure facility, being the Hamersley Rail Infrastructure Facility mainline, yard track and maintenance support road, including the in-track fault detection and monitoring systems, and the use of a communications service being the train control systems, inclusive of two-way radio. 3.4 The access sought by [Robe] is the use of the Rail Track Service by [Robe] trains laden with iron ore from [Robe's] West Angelas minesite, travelling from the minesite to [Robe's] Port Walcott at Cape Lambert, and by empty [Robe] trains on a return journey to the minesite. ... 3.6 [Robe] is not seeking the service provided by the [Hamersley] locomotives, rolling stock or hi-rails. [Robe] will provide its own locomotives, rolling stock, hi-rails and all necessary operational personnel. [Hi-rails are road motor vehicles capable of being driven on rail tracks and are used for maintenance purposes] "
Case: Hope Downs Management Services Pty Ltd v Hamersley Iron Pty Ltd [1999] FCA 1652 ; (2000) ATPR 41-733
Outcome: considered
Ultimately, the Full Court held that, having regard to the undertakings offered by Hamersley, no purpose would be served in proceeding to hear the appeals: Hope Downs Management Services Pty Ltd v Hamersley Iron Pty Ltd [1999] FCA 1652 ; (2000) ATPR 41-733 at [14] . Any possible prejudice to Hope Downs resulting from issue estoppel or res judicata was removed by those undertakings. Accordingly, the Court ordered (at [15]) that the appeals be forever stayed. It added that it should not be taken to have expressed any view as to the correctness or otherwise of the judgment appealed from. 37 Transcript of the proceedings before the Full Court was tendered before me. In that transcript, senior counsel for Hope Downs expressed concern that any future application his client might make for a recommendation in relation to the Hamersley railway track would be met with a claim of issue estoppel or res judicata. Mr Neil Young QC, on behalf of Hamersley, responded by submitting that the appeal had become academic. That was because the issue in the case depended entirely upon the definition of "rail track service" in Robe River's application which was now defunct. 38 Chief Justice Black commented that everything turned upon "the particular application".
Case: Yates Property Corp Pty Ltd v Boland (1998) 89 FCR 78
Outcome: cited
The respondents say that the controversy before Kenny J plainly did not extend to all possible future times and circumstances. Her Honour's orders should not be interpreted as though it did. They say that resort may be had to contextual matters, such as the reasons for judgment and the pleadings, in order to identify the subject matter of the controversy as an aid to interpreting the orders. They refer in that regard to: Yates Property Corp Pty Ltd v Boland (1998) 89 FCR 78 ; Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629 ; (2003) 129 FCR 558 at [49] - [51] ; Athens v Randwick City Council (2005) 64 NSWLR 58 at [27]-[29] and [129]-[140]; Newcastle City Council v Leaway Pty Ltd [2005] NSWLEC 619 at [28] - [36] ; Polyaire Pty Ltd v K-Aire Pty Ltd (No 4) (2007) 147 LSJS 65. 84 That movement was anticipated in relation to court orders in Yates Property Corp Pty Ltd v Boland (1998) 89 FCR 78 , in which a Full Court of this Court held that in interpreting an order of a court framed in unambiguous language, regard should still be had to the reasons given by the court for making the order because they formed part of the context in which the order was made. See also Australian Energy Ltd v Lennard Oil NL (No 2) [1988] 2 Qd R 230. This second, and more flexible, line of authority was preferred by the Court of Appeal in Athens v Randwick City Council where Santow JA explained (at [129]) that the "purpose of a court order is, ordinarily, to give effect to a judgment". See also Polyaire Pty Ltd v K-Air Pty Ltd (No 4) (2007) SASC 36 ; Kwikspan Purlin System Pty Ltd v Federal Commissioner of Taxation (1987) 93 FLR 263.
Case: Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629 ; (2003) 129 FCR 558
Outcome: cited
The respondents say that the controversy before Kenny J plainly did not extend to all possible future times and circumstances. Her Honour's orders should not be interpreted as though it did. They say that resort may be had to contextual matters, such as the reasons for judgment and the pleadings, in order to identify the subject matter of the controversy as an aid to interpreting the orders. They refer in that regard to: Yates Property Corp Pty Ltd v Boland (1998) 89 FCR 78 ; Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629 ; (2003) 129 FCR 558 at [49] - [51] ; Athens v Randwick City Council (2005) 64 NSWLR 58 at [27]-[29] and [129]-[140]; Newcastle City Council v Leaway Pty Ltd [2005] NSWLEC 619 at [28] - [36] ; Polyaire Pty Ltd v K-Aire Pty Ltd (No 4) (2007) 147 LSJS 65. 86 Indeed, I would go further. In my opinion, it is permissible when construing court orders (irrespective of whether they be ambiguous) to have regard to, at least, the pleadings which defined the issues to be resolved: Owston Nominees No 2 Pty Ltd v Branair Pty Ltd [2003] FCA 629 ; (2003) 129 FCR 558 and Athens v Randwick City Council.
Case: Newcastle City Council v Leaway Pty Ltd [2005] NSWLEC 619
Outcome: cited
The respondents say that the controversy before Kenny J plainly did not extend to all possible future times and circumstances. Her Honour's orders should not be interpreted as though it did. They say that resort may be had to contextual matters, such as the reasons for judgment and the pleadings, in order to identify the subject matter of the controversy as an aid to interpreting the orders. They refer in that regard to: Yates Property Corp Pty Ltd v Boland (1998) 89 FCR 78 ; Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629 ; (2003) 129 FCR 558 at [49] - [51] ; Athens v Randwick City Council (2005) 64 NSWLR 58 at [27]-[29] and [129]-[140]; Newcastle City Council v Leaway Pty Ltd [2005] NSWLEC 619 at [28] - [36] ; Polyaire Pty Ltd v K-Aire Pty Ltd (No 4) (2007) 147 LSJS 65.
Case: Polyaire Pty Ltd v K-Aire Pty Ltd (No 4) (2007) 147 LSJS 65
Outcome: cited
The respondents say that the controversy before Kenny J plainly did not extend to all possible future times and circumstances. Her Honour's orders should not be interpreted as though it did. They say that resort may be had to contextual matters, such as the reasons for judgment and the pleadings, in order to identify the subject matter of the controversy as an aid to interpreting the orders. They refer in that regard to: Yates Property Corp Pty Ltd v Boland (1998) 89 FCR 78 ; Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629 ; (2003) 129 FCR 558 at [49] - [51] ; Athens v Randwick City Council (2005) 64 NSWLR 58 at [27]-[29] and [129]-[140]; Newcastle City Council v Leaway Pty Ltd [2005] NSWLEC 619 at [28] - [36] ; Polyaire Pty Ltd v K-Aire Pty Ltd (No 4) (2007) 147 LSJS 65.
Case: Ecrosteel Pty Ltd t/as Packs Business Form Brokers v Pefor Printing Pty Ltd (unreported, Sup Ct, NSW, 12 November 1997, Santow J)
Outcome: cited
A number of the authorities cited by Tarrant are instructive. First, by way of background, in Ecrosteel Pty Ltd t/as Packs Business Form Brokers v Pefor Printing Pty Ltd (unreported, Sup Ct, NSW, 12 November 1997), Santow J observed (at 6) that "orders have to cope with situations not readily foreseen, where their later application, and hence their precise interpretation, may be open to argument." 82 Tarrant notes that there is a debate as to whether it may be appropriate, in certain circumstances, not merely to have regard to the reasons for judgment but also other material in order to interpret a court order. This would include pleadings and affidavits.
Case: Repatriation Commission v Nation (1995) 57 FCR 25
Outcome: cited
Tarrant cites in support of the traditional, and more constrained, view that there must be ambiguity in a court order before the reasons for judgment can be considered: McNair Anderson Associates Pty Ltd v Hinch [1985] VR 309 at 312; Repatriation Commission v Nation (1995) 57 FCR 25 at 33; and Blanch v British American Tobacco Australia Services Ltd (2005) 62 NSWLR 653 at 655. He notes, however, that in relation to contracts, there has been a movement away from the requirement that there be ambiguity before extrinsic material can be examined: Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451. There has been a similar movement in relation to the interpretation of corporate constitutions: Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC 144 ; (2006) 156 FCR 1 at [51] , [100] and [238].
Case: Blanch v British American Tobacco Australia Services Ltd (2005) 62 NSWLR 653
Outcome: cited
Tarrant cites in support of the traditional, and more constrained, view that there must be ambiguity in a court order before the reasons for judgment can be considered: McNair Anderson Associates Pty Ltd v Hinch [1985] VR 309 at 312; Repatriation Commission v Nation (1995) 57 FCR 25 at 33; and Blanch v British American Tobacco Australia Services Ltd (2005) 62 NSWLR 653 at 655. He notes, however, that in relation to contracts, there has been a movement away from the requirement that there be ambiguity before extrinsic material can be examined: Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451. There has been a similar movement in relation to the interpretation of corporate constitutions: Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC 144 ; (2006) 156 FCR 1 at [51] , [100] and [238].
Case: Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451
Outcome: cited
Tarrant cites in support of the traditional, and more constrained, view that there must be ambiguity in a court order before the reasons for judgment can be considered: McNair Anderson Associates Pty Ltd v Hinch [1985] VR 309 at 312; Repatriation Commission v Nation (1995) 57 FCR 25 at 33; and Blanch v British American Tobacco Australia Services Ltd (2005) 62 NSWLR 653 at 655. He notes, however, that in relation to contracts, there has been a movement away from the requirement that there be ambiguity before extrinsic material can be examined: Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451. There has been a similar movement in relation to the interpretation of corporate constitutions: Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC 144 ; (2006) 156 FCR 1 at [51] , [100] and [238].
Case: Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC 144 ; (2006) 156 FCR 1
Outcome: cited
Tarrant cites in support of the traditional, and more constrained, view that there must be ambiguity in a court order before the reasons for judgment can be considered: McNair Anderson Associates Pty Ltd v Hinch [1985] VR 309 at 312; Repatriation Commission v Nation (1995) 57 FCR 25 at 33; and Blanch v British American Tobacco Australia Services Ltd (2005) 62 NSWLR 653 at 655. He notes, however, that in relation to contracts, there has been a movement away from the requirement that there be ambiguity before extrinsic material can be examined: Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451. There has been a similar movement in relation to the interpretation of corporate constitutions: Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC 144 ; (2006) 156 FCR 1 at [51] , [100] and [238].
Case: Australian Energy Ltd v Lennard Oil NL (No 2) [1988] 2 Qd R 230
Outcome: cited
That movement was anticipated in relation to court orders in Yates Property Corp Pty Ltd v Boland (1998) 89 FCR 78 , in which a Full Court of this Court held that in interpreting an order of a court framed in unambiguous language, regard should still be had to the reasons given by the court for making the order because they formed part of the context in which the order was made. See also Australian Energy Ltd v Lennard Oil NL (No 2) [1988] 2 Qd R 230. This second, and more flexible, line of authority was preferred by the Court of Appeal in Athens v Randwick City Council where Santow JA explained (at [129]) that the "purpose of a court order is, ordinarily, to give effect to a judgment". See also Polyaire Pty Ltd v K-Air Pty Ltd (No 4) (2007) SASC 36 ; Kwikspan Purlin System Pty Ltd v Federal Commissioner of Taxation (1987) 93 FLR 263. 87 I note that in Owston Nominees No 2 Pty Ltd v Branair Pty Ltd (2003) at 569, Allsop J concluded that, when construing court orders, regard may even be had to the evidence that was led before the judge who pronounced those orders. See also Blacktown Concrete Services Pty Ltd v Ultra Refurbishing &amp; Construction Pty Ltd (in liq) (1998) 43 NSWLR 484 and Australian Energy Ltd v Lennard Oil NL (No 2) at 232.
Case: Kwikspan Purlin System Pty Ltd v Federal Commissioner of Taxation (1987) 93 FLR 263
Outcome: cited
That movement was anticipated in relation to court orders in Yates Property Corp Pty Ltd v Boland (1998) 89 FCR 78 , in which a Full Court of this Court held that in interpreting an order of a court framed in unambiguous language, regard should still be had to the reasons given by the court for making the order because they formed part of the context in which the order was made. See also Australian Energy Ltd v Lennard Oil NL (No 2) [1988] 2 Qd R 230. This second, and more flexible, line of authority was preferred by the Court of Appeal in Athens v Randwick City Council where Santow JA explained (at [129]) that the "purpose of a court order is, ordinarily, to give effect to a judgment". See also Polyaire Pty Ltd v K-Air Pty Ltd (No 4) (2007) SASC 36 ; Kwikspan Purlin System Pty Ltd v Federal Commissioner of Taxation (1987) 93 FLR 263.
Case: Blacktown Concrete Services Pty Ltd v Ultra Refurbishing &amp; Construction Pty Ltd (in liq) (1998) 43 NSWLR 484
Outcome: cited
I note that in Owston Nominees No 2 Pty Ltd v Branair Pty Ltd (2003) at 569, Allsop J concluded that, when construing court orders, regard may even be had to the evidence that was led before the judge who pronounced those orders. See also Blacktown Concrete Services Pty Ltd v Ultra Refurbishing &amp; Construction Pty Ltd (in liq) (1998) 43 NSWLR 484 and Australian Energy Ltd v Lennard Oil NL (No 2) at 232.