mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Messier Dowty Ltd v Sabena SA [2000] 1 Lloyd's Rep 428
Outcome: referred to
Smurfit also submits that, seen in this light, and having regard to the modern approach to the use of negative declarations is transnational litigation, the Court should find that the US District Court proceeding is consistent with the purpose of ensuring that the aims of justice are achieved: Messier Dowty Ltd v Sabena SA [2000] 1 Lloyd's Rep 428 at [34]ff. 97 Plainly, the fact that the United States proceedings were first in point of time is a relevant consideration. Moreover, for the reasons referred to by Lord Woolf in Messier Dowty at [34]-[42], I do not consider that I should approach the question with an adverse pre-disposition to the claim for negative declaratory relief: Challenger Group Holdings Ltd v Concept Equity Pty Ltd [2005] NSWSC 374 at [42] [43]. This issue in the US District Court is not hypothetical. Our courts should be slow to criticise the approach of the foreign court to the question of negative declaratory relief. It must be a matter of discretion in all the circumstances. Moreover, the US District Court has held that it does have jurisdiction and no point was raised in the Pennsylvania proceeding about negative declaratory relief.
Case: Merpro Montassa Limited v Conoco Specialty Products Inc [1991] FCA 70 ; (1991) 28 FCR 387
Outcome: referred to
The Court should not grant leave unless it is positively persuaded that it should do so: Voth at 564. However, the threshold is not high. The Court is not required to trawl through the material to determine the strength of the case. Rather, the Court's task is to determine whether the material presented shows that a controversy exists which warrants the use of the Court's processes in respect of litigation that brings a foreign respondent before an Australian court: Merpro Montassa Limited v Conoco Specialty Products Inc [1991] FCA 70 ; (1991) 28 FCR 387 at 390; State of Western Australia v Vetter Trittler Pty Ltd (In Liq) (1991) 30 FCR 102 at 109-110; Century Insurance Limited (In Prov Liq) v NZ Guardian Trust Limited (unreported, FCA, Lee J, 16 May 1996); Clough at [13]-[14].
Case: Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451
Outcome: referred to
These principles reflect the ordinary rules of construction of contracts which are to be found in the observations of the High Court in Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 at [22] , as reaffirmed in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at [40] .
Case: Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd [2005] FCAFC 131 ; [(2005) 220 ALR 211
Outcome: referred to
I accept that at a final hearing, reliance upon these representations may not be made out having regard to the "entire agreement" clause contained in cl 21.1 of the Agreement: Leda Holdings Pty Limited v Oraka Pty Limited (1997) ATPR 41-601 at [40,517] [40,518]; see also Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd [2005] FCAFC 131 ; [(2005) 220 ALR 211 at [75] - [76] , [81]; and see Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55 ; (2004) 211 ALR 101 at [35] .
Case: Prestige Property Services Pty Ltd v Madzoski [2008] WASCA 58
Outcome: referred to
This passage from Lord Brandon's speech was referred to with apparent approval in Schnabel v Lui [2002] NSWSC 15 at [112] ; Castillon v P&amp;O Ports Ltd at [54]; and Prestige Property Services Pty Ltd v Madzoski [2008] WASCA 58 at [66] .
Case: Reinsurance Australia Corporation Ltd v HIH Casualty &amp; General Insurance Ltd (in Liquidation) [2003] FCA 56
Outcome: distinguished
The position seems to me to be unlike that which existed in Reinsurance Australia Corporation Ltd v HIH Casualty &amp; General Insurance Ltd (in Liquidation) [2003] FCA 56. There, it was established on the evidence that the trade practices claims could not be maintained in the United States and that the remedies which would have been available in the English court were more restricted than those that were available under the Trade Practices Act : see at [217]-[218], [322]. 111 Accordingly, I am not satisfied that Armacel is deprived of a legitimate forensic disadvantage in being forced to bring its claim in the United States. 112 There is some force in Dr Bell's submission that the dispute has a closer factual connection with the United States than it does with Australia. The principal issues in the contract claim appear to be the reasonableness of Smurfit's efforts to exploit the technology in the United States and whether it was entitled to disconnect Armacel's machine. The latter question may raise the application of United States environmental law issues including a complaint filed with the Occupational Health &amp; Safety Administration: see Smurfit's Complaint in the US District Court [26].
Case: Schnabel v Lui [2002] NSWSC 15
Outcome: referred to
This passage from Lord Brandon's speech was referred to with apparent approval in Schnabel v Lui [2002] NSWSC 15 at [112] ; Castillon v P&amp;O Ports Ltd at [54]; and Prestige Property Services Pty Ltd v Madzoski [2008] WASCA 58 at [66] .
Case: Sohio Supply Co v Gatoil (USA) Inc [1989] 1 Lloyd's Rep 588
Outcome: applied
However, cl 21.3.1 falls to be construed against the background that this was a contract made between business people negotiating at arms' length who must be presumed to have intended some certainty as to where their disputes would be litigated. The relevant courts, ie the courts of New South Wales or, subject to what I say below, the Federal Court, would have jurisdiction by reason of the choice of law clause. The parties agreed to mediate in Sydney. It is therefore difficult to see why they would not have intended that all their disputes be resolved in New South Wales: Sohio Supply Co v Gatoil (USA) Inc [1989] 1 Lloyd's Rep 588 at 591-592, cited in FAI at 121-122 and 127.
Case: State of Western Australia v Vetter Trittler Pty Ltd (In Liq) (1991) 30 FCR 102
Outcome: referred to
The Court should not grant leave unless it is positively persuaded that it should do so: Voth at 564. However, the threshold is not high. The Court is not required to trawl through the material to determine the strength of the case. Rather, the Court's task is to determine whether the material presented shows that a controversy exists which warrants the use of the Court's processes in respect of litigation that brings a foreign respondent before an Australian court: Merpro Montassa Limited v Conoco Specialty Products Inc [1991] FCA 70 ; (1991) 28 FCR 387 at 390; State of Western Australia v Vetter Trittler Pty Ltd (In Liq) (1991) 30 FCR 102 at 109-110; Century Insurance Limited (In Prov Liq) v NZ Guardian Trust Limited (unreported, FCA, Lee J, 16 May 1996); Clough at [13]-[14].
Case: The Sennar (No 2) [1985] 1 WLR 490 (HL) 
Outcome: applied
The second requirement may be satisfied even if the earlier judgment is interlocutory: Castillon v P&amp;O Ports Ltd [2007] QCA 364 at [49] ff. The requirement of finality has been broken down into two separate conditions, namely that the decision must be "final and conclusive" and "on the merits": The Sennar (No 2) [1985] 1 WLR 490 (HL) at 499.
Case: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165
Outcome: referred to
These principles reflect the ordinary rules of construction of contracts which are to be found in the observations of the High Court in Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 at [22] , as reaffirmed in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at [40] .
Case: Voth v Manildra Flour Mills Proprietary Limited [1990] HCA 55 ; (1990) 171 CLR 538
Outcome: referred to
Alternatively, Smurfit seeks a stay of this proceeding on the ground that the Federal Court is a clearly inappropriate forum in accordance with the principles stated by the High Court in Voth v Manildra Flour Mills Proprietary Limited [1990] HCA 55 ; (1990) 171 CLR 538 and Henry v Henry (1996) 185 CLR 571. 13 The fourth issue, which only arises if I am satisfied that the jurisdiction of New South Wales is non-exclusive and that Armacel is not bound by an issue estoppel, is whether this Court is a clearly inappropriate forum, ie. whether this proceeding is vexatious or oppressive in the strict sense: Voth at 564-565; Henry v Henry at 587, 591-592. 45 The onus remains on an applicant to satisfy the Court in light of the additional materials, facts and arguments that leave ought to have been granted: Voth at 564; Clough at [12]. 46 The Court should not grant leave unless it is positively persuaded that it should do so: Voth at 564. However, the threshold is not high. The Court is not required to trawl through the material to determine the strength of the case. Rather, the Court's task is to determine whether the material presented shows that a controversy exists which warrants the use of the Court's processes in respect of litigation that brings a foreign respondent before an Australian court: Merpro Montassa Limited v Conoco Specialty Products Inc [1991] FCA 70 ; (1991) 28 FCR 387 at 390; State of Western Australia v Vetter Trittler Pty Ltd (In Liq) (1991) 30 FCR 102 at 109-110; Century Insurance Limited (In Prov Liq) v NZ Guardian Trust Limited (unreported, FCA, Lee J, 16 May 1996); Clough at [13]-[14]. 96 The test to be applied is whether having regard to the controversy as a whole, the Australian proceedings are vexatious or oppressive in the Voth sense: CSR v Cigna at 401. The considerations include which forum can provide more effectively for complete resolution of the matters in controversy, which proceeding was commenced first and the stage that each of the proceedings has reached: Henry v Henry at 592. 123 The problems which arise if the same controversy is to be litigated in different countries which have jurisdiction with respect to the same matter are such that, prima facie , the continuation of one or other of them must be seen as vexatious or oppressive in the sense stated in Voth : see Henry v Henry at 591.
Case: O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310
Outcome: followed
test to be applied in determining whether leave should be granted to advance new grounds of appeal is well known. That test is in short, whether it is expedient and in the interests of justice that such leave be granted. In the present circumstances the relevant facts underlying the decision on review are not controversial. In O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 Mason J (with whom the other members of the Court agreed) said at 319: "In some cases when a question of law is raised for the first time in an ultimate court of appeal, as for example upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is expedient in the interests of justice that the question should be argued and decided (Connecticut Fire Insurance Co. v. Kavanagh (14); Suttor v. Gundowda Pty Ltd. (15); Green v. Sommerville (16))." In this appeal the relevant facts are not controversial and the particular ground now sought to be raised can be argued by both sides without the need for further factual investigation.
Case: Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1
Outcome: considered
Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 , the majority of the High Court at 7-8 following this observation of Mason J drew no distinction between its application before an intermediate court of appeal and an ultimate court of appeal. Nevertheless, the majority of the High Court recognised the limitations which should be placed on raising new arguments on appeal. In that case the majority concluded that the respondents must be bound by the conduct of their case at trial. The majority said at 11: "It would not be fair to the appellants to subject them at this stage of the proceedings to what is virtually a new trial on an entirely different issue to that which has been litigated. In the pursuit of such a course, the interests of expedition, finality and justice are denied." I do not consider that the present appeal falls into the category of case identified by the majority in Coulton v Holcombe (supra).
Case: Vishnumolakala v Minister for Immigration and Indigenous Affairs [2007] FCA 248
Outcome: followed
determining whether it is expedient or in the interests of justice to grant leave to raise a new ground, it is accepted that consideration needs to be given to the merits of the ground proposed to determine whether that ground has a reasonable prospect of success: MZWCL v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 635 at [35] [37]; Vishnumolakala v Minister for Immigration and Multicultural Affairs [2007] FCA 248 at [5] .
Case: MZWCL v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 635
Outcome: followed
determining whether it is expedient or in the interests of justice to grant leave to raise a new ground, it is accepted that consideration needs to be given to the merits of the ground proposed to determine whether that ground has a reasonable prospect of success: MZWCL v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 635 at [35] [37]; Vishnumolakala v Minister for Immigration and Multicultural Affairs [2007] FCA 248 at [5] .
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57
Outcome: cited
Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214 the Full Court observed that s 51A was intended to overcome the effect of the decision of the High Court in Re Minister for Immigration and Multicultural Affairs; ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57. The Full Court concluded at [66] that what was intended by the introduction of s 51A and related provisions into the Act was that Subdiv AB "provide comprehensive procedural codes which contain detailed provisions for procedural fairness but which exclude the common law natural justice hearing rule." The issues raised by the appellant in ground 2 of the notice of appeal do not identify any particular provision of Subdiv AB of Div 3 of Part 2 of the Act in respect of which there has been a contravention or a failure to comply.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214
Outcome: followed
Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214 the Full Court observed that s 51A was intended to overcome the effect of the decision of the High Court in Re Minister for Immigration and Multicultural Affairs; ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57. The Full Court concluded at [66] that what was intended by the introduction of s 51A and related provisions into the Act was that Subdiv AB "provide comprehensive procedural codes which contain detailed provisions for procedural fairness but which exclude the common law natural justice hearing rule." The issues raised by the appellant in ground 2 of the notice of appeal do not identify any particular provision of Subdiv AB of Div 3 of Part 2 of the Act in respect of which there has been a contravention or a failure to comply.
Case: Plaintiff s157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Outcome: followed
decision of the delegate was a privative decision in accordance with s 474 of the Act. Nevertheless, s 474, does not preclude a court from determining that a decision does not fall within the privative provisions of s 474 if it involves a failure to exercise jurisdiction or is in excess of jurisdiction: Plaintiff s157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506. In my opinion, the delegate accordingly fell into jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at [82] .
Case: Water Board v Moustakas [1988] HCA 12 ; (1988) 180 CLR 491
Outcome: followed
principles applicable in determining whether a new ground can be raised on appeal were reiterated by the majority of the High Court in Water Board v Moustakas [1988] HCA 12 ; (1988) 180 CLR 491 at 497: "More than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied. In deciding whether or not a point was raised at trial no narrow or technical view should be taken."
Case: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: followed
decision of the delegate was a privative decision in accordance with s 474 of the Act. Nevertheless, s 474, does not preclude a court from determining that a decision does not fall within the privative provisions of s 474 if it involves a failure to exercise jurisdiction or is in excess of jurisdiction: Plaintiff s157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506. In my opinion, the delegate accordingly fell into jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at [82] .
Case: National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155 
Outcome: applied
The principles to be applied on such motions are well accepted and are not in dispute. The discretion to make an order under s 48 is unfettered, although it must be exercised judicially and in accordance with accepted principle. As to the latter it is only necessary that I refer to the Full Court decision in National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155 which has been followed repeatedly. The Court there indicated (at 162) that the discretion given should be exercised flexibly having regard to the circumstances of the particular case; the factors which the Court is entitled to take into account in considering whether one city is more appropriate than another for interlocutory or final hearings are numerous and include residence of parties and witnesses, expense to parties, the place where the cause of action arose and the convenience of the Court; the balance of convenience will be a relevant consideration, but not necessarily determinative of each case; there is no onus of proof in the strict sense on the party seeking to have the proceedings conducted or continued in another place but the Court must be satisfied that there is sound reason to direct that the proceeding be conducted or continued elsewhere; the test to be applied, ultimately is: ... where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court. It cannot and should not, in our opinion, be defined more closely or precisely.
Case: Inverness Medical Switzerland GMBH v Advance Chemical Systems Pty Limited [2002] FCA 1261
Outcome: cited
Given this test it is unsurprising that judges have observed that authorities on such motions tend not to be very helpful given the fact specific character of the question the s 48 discretion raised: see eg Inverness Medical Switzerland GMBH v Advance Chemical Systems Pty Limited [2002] FCA 1261 at [2] . 10 The matters relied upon in Mr Parker's affidavit in support of the motion are (i) the first respondent's principal place of business is at Broadbeach as is the place of residence of the majority of staff (past and present) who can be expected to be called to give evidence at trial; (ii) the legal practice conducted by Mr Parker and Mr Simmonds will be significantly affected if the trial (estimated by both sides to take two weeks) at which they necessarily must attend, is to be held in Adelaide (a) they are the firm's only principals; (b) their employees are junior solicitors without open practising certificates; (c) the practice consists predominantly of conveyancing and typically issues more than fifty trust cheques per week; (d) no employee of the firm has authority to execute a trust account cheque (in accordance with the Queensland Law Society Rules); and (e) the practice needs at least one of the partners to be readily accessible to clients and staff and for administrative matters. (iii) SCL employs three persons on a full-time basis and, if these are required to give evidence in Adelaide, there would be major disruption to the business; (iv) there would be far greater costs incurred in respect of the conduct of a trial in Adelaide than in Brisbane in respect of flights, accommodation etc; (v) the respondents' documentation is located in Queensland.
Case: Optics Online Pty Ltd v Sunland Group Ltd [2006] FCA 1389
Outcome: cited
Save for the issues arising from Mr Parker's and Mr Simmonds' professional practice, the matters relied upon by Mr Bratton in his affidavit opposing the transfer mirror in considerable degree those referred to by Mr Parker, save in one important respect. That exceptional matter, to which I earlier referred, is that Tidswell's investment was solicited by the respondent Mr Benson who sought out Mr Bratton in South Australia with the consequence that the causes of action advanced arose in that State. Of itself, this not only makes Tidswell's choice of the South Australian District Registry an appropriate one in which to file its proceedings, it also provides real reason for pause in too readily acceding to a request to transfer the proceedings to Brisbane particularly at this stage: cf Optics Online Pty Ltd v Sunland Group Ltd [2006] FCA 1389 at [8] - [9] . 12 Otherwise Mr Bratton relies upon (i) Adelaide being Tidswell's place of business; (ii) the four witnesses two lay (himself and the company's managing director) and two expert all reside in South Australia; (iii) for him and the managing director to go to Brisbane for two weeks would cause significant disruption to the day-to-day management of Tidswell's business; and (iv) Tidswell's documentation is all in Adelaide. 13 Bearing in mind that I need a sound or good reason for ordering that the proceeding be conducted in Brisbane, I do not consider that such has been made out at this stage of the proceeding particularly when one has regard to the fact that the proceeding itself was properly and appropriately instituted in South Australia.
Case: Bartlett v Swan Television and Radio Broadcasters Pty Ltd [1995] FCA 1429 ; (1995) ATPR 41-434
Outcome: cited
plea will have a tendency to cause embarrassment if it is ambiguous or irrelevant, or if it is inconsistent with another plea. The latter case is to be distinguished from a plea which is clearly put in the alternative to another plea which is permissible. For present purposes, it is sufficient to refer to Mayor, &amp;c., of City of London v Horner (1914) 111 LT 512 at 514 per Pickford LJ and Bartlett v Swan Television and Radio Broadcasters Pty Ltd [1995] FCA 1429 ; (1995) ATPR 41-434 at 40,889 per Carr J.