mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Purvis v Dairy Adjustment Authority (No 2) [2006] FCAFC 38 , 150 FCR 48
Outcome: cited
whatever reason, no draft index of the appeal papers has been filed in the Registry as required by O 52 r 27 of the Federal Court Rules. Nor has there been compliance with O 52 r 28A. The importance of these and other obligations imposed upon an Appellant is not to be underestimated and the fact of non-compliance is not to be disregarded. Compliance ensures the orderly resolution of appeals and avoids the prospect of applications for adjournments or for orders seeking the dismissal of an appeal for failure to comply. Although an appellant has the carriage of an appeal, all parties share a responsibility to avoid incurring cost and expense ( Purvis v Dairy Adjustment Authority (No 2) [2006] FCAFC 38 at [5] , [2006] FCAFC 38 ; 150 FCR 48 at 49 per Black CJ (Branson and Finn JJ agreeing)) and a responsibility to ensure that an appeal is ready for hearing. An unrepresented appellant is equally as bound by these requirements as any other appellant. Whatever may be the shared responsibility of all parties to an appeal, non-compliance by an appellant with fundamental requirements of the Federal Court Rules cannot be the occasion for impermissibly seeking to transfer the obligations imposed upon an unrepresented Appellant to a represented Respondent. The obligations imposed by these Rules upon the Appellant have not been discharged. That failure cannot deprive a Respondent of the opportunity to have an appeal heard and resolved or dismissed. On occasions, a represented respondent (as in the present appeal) has assisted the Court by attempting to do that which should have been done by the appellant. The assistance of those representing the Respondent in preparing a compilation of documents relevant to this appeal has been appreciated.
Case: Revis v Murphy [2008] FMCA 1638
Outcome: affirmed
2 September 2008 a sequestration order was made against the Appellant, then using her married name: Murphy v Revis [2008] FMCA 1561. The hearing on that occasion took place in the absence of the Appellant and her then solicitor. Thereafter, on 22 December 2008 the Federal Magistrates Court, differently constituted, dismissed an application seeking an order under s 153B of the Bankruptcy Act 1966 (Cth) that the bankruptcy be annulled: Revis v Murphy [2008] FMCA 1638. These were considerations well known to the Federal Magistrate who made the sequestration order: [2008] FMCA 1561 at [6] . They are considerations expressly referred to in his reasons for decision. And that Magistrate's reasons for decision were expressly incorporated into the reasons for decision of the Federal Magistrate whose decision is now under appeal and who dismissed the application made pursuant to s 153B: [2008] FMCA 1638 at [14] .
Case: Samootin v Wagner [2008] FCA 1066
Outcome: cited
section has essentially two elements, namely the establishment of the state of satisfaction that a sequestration order ought not to have been made and, if that state of satisfaction is reached, thereafter an exercise of discretion: Rigg v Baker [2006] FCAFC 179 at [59] , [2006] FCAFC 179 ; 155 FCR 531 at 543 per French J. Those who seek an annulment carry a " heavy burden ": Re Papps; Ex parte Tapp (1997) 78 FCR 524 at 531 per O'Loughlin J; Evans v Hi-Fert Pty Ltd [2003] FCA 802 at [11] ; Samootin v Wagner [2008] FCA 1066 at [32] .
Case: Singh v Official Trustee in Bankruptcy [2008] FCA 544
Outcome: cited
the power to dismiss an appeal for want of prosecution is a power available to be exercised in an appropriate case. " [S]uccessive and cavalier omissions by the appellant " led the Full Court to dismiss an appeal in NBCI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 280. So, too, can " persistent breach of the Court's directions ": Khera v Jones [2008] FCA 548 at [16] per Buchanan J. This power can be invoked in respect to all appeals, including bankruptcy appeals: e.g. Singh v Official Trustee in Bankruptcy [2008] FCA 544.
Case: Sobey v Nicol [2007] FCAFC 136 , 245 ALR 389
Outcome: cited
the powers of the Court on appeal can only be exercised if there be appellable error. And, where an appeal is in the nature of a rehearing, the appellate Court can substitute its own decision on the facts and law as they then stand: Allesch v Maunz [2000] HCA 40 at [23] , [2000] HCA 40 ; 203 CLR 172 at 180 to 181. Gaudron, McHugh, Gummow and Hayne JJ there made the following observations in relation to the powers of a Court when entertaining an appeal by way of a rehearing (references omitted): For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance. And the critical distinction, for present purposes, between an appeal by way of rehearing and an appeal in the strict sense is that, unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance whereas, on an appeal by way of rehearing, an appellate court can substitute its own decision based on the facts and the law as they then stand. Although this was a case concerning the Family Court, s 27 of the Federal Court of Australia Act 1976 (Cth) is not materially different to the equivalent provision of the Family Law Act 1976 (Cth): Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 at [75] , [2001] HCA 17 ; 205 CLR 507 at 533 per Gleeson CJ and Gummow J. The " proper role of an appellate court under s 25 of the Federal Court Act ... is ordinarily to correct error ": Sobey v Nicol [2007] FCAFC 136 at [72] , [2007] FCAFC 136 ; 245 ALR 389 at 403 to 404 per Branson, Lindgren and Besanko JJ. It is not appropriate to treat an appeal "as though it were a new trial on the evidence and constrained merely by ... unassailable factual findings "; error must be demonstrated: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 at [30] , [2001] FCA 1833 ; 117 FCR 424 at 438 per Allsop J (Drummond and Mansfield JJ agreeing).
Case: Van Reesema v Giameos [1979] FCA 108 ; (1979) 41 FLR 86
Outcome: cited
power conferred by O 52 r 38(1)(a) " must not be lightly exercised ": Van Reesema v Giameos [1979] FCA 108 ; (1979) 41 FLR 86 at 90 per Bowen CJ, Fisher and Lockhart JJ; Goldie v The Commonwealth of Australia [2004] FCA 973 at [16] per Carr J. It has further been recognised that the Court's power " to dismiss for want of prosecution is a drastic step which would only be justified by the grossest or most contumelious delay ": Hughes v Australian Competition and Consumer Commission [2004] FCA 1271 at [8] per Jacobson J. It is " exceptional for the court to dismiss a matter for want of prosecution under O 52 r 38(1)(a) ": Abraham v Attorney-General for the Commonwealth [2004] FCA 411 at [5] per Finn J.
Case: Voskuilen v Morisset Megamarket Pty Ltd [2004] FCA 1727
Outcome: cited
manner in which s 153B is to be applied has been summarised as follows by Carr, Finn and Sundberg JJ in Heinrich v Commonwealth Bank of Australia [2003] FCAFC 315: [20] The Court must first consider whether the sequestration order ought not to have been made. If it so finds, then the Court must consider whether, in the exercise of its discretion, the bankruptcy should be annulled: Re Deriu (1970) 16 FLR 420. Later evidence of previously unknown facts may disclose matters which show that the sequestration order ought not to have been made. That is, the Court is entitled to consider not only the case as disclosed at the time when the sequestration order was made, but also those facts now known then to have existed. The Court excludes those facts which have occurred since the order was made. Later evidence of previously unknown facts may disclose matters which show that the sequestration order ought not to have been made: Re Frank; Ex parte Piliszky (1987) 16 FCR 396 ; Stankiewicz v Plata [2000] FCA 1185 at [19] ; Re Williams (1968) 13 FLR 10 at 23; Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347. These authorities, all of which were cited by the learned primary judge in his judgment, were accepted at first instance as reflecting the relevant law. See also: Voskuilen v Morisset Megamarket Pty Ltd [2004] FCA 1727 at [14] per Jacobson J; Hacker v The Owners - Strata Plan No 17572 [2005] FCA 1936 at [46] per Emmett J; Johnston v Challen t/as Hawthorn Cappaidge and Badgery [2006] FCA 401 at [32] per Collier J; Gargan v Kippin Investments Pty Ltd [2008] FCA 1718 at [11] per Perram J.
Case: Watts v Adelaide Bank Ltd [2009] FCA 420
Outcome: applied
than mere assertion is required before an abuse of process can be established: Watts v Adelaide Bank Ltd [2009] FCA 420. The argument is rejected. Had an occasion for the exercise of any discretion arisen, that discretion would have been exercised against the Appellant by reason of: her delay in commencing the District Court proceedings, the Family Court proceedings being heard in November 2005 and the District Court proceedings being commenced in July 2007; the fact that the Appellant has not demonstrated or adduced any evidence that she is presently solvent. The only evidence as to the current financial circumstances of the Appellant was contained in the Trustee's affidavit prepared for the purposes of the December 2008 proceedings in the Federal Magistrates Court. He there stated: [44] ... it is my opinion that the Bankrupt was insolvent at the date of Bankruptcy and at the time of swearing this Affidavit. There was no more current evidence. the absence of any full and frank disclosure by the Appellant of her financial affairs as at the date of the hearing of her appeal; and the voluntary non-appearance and want of opposition to the creditor's petition at the outset of the bankruptcy process. An additional factor may also be relied upon, namely: the failure of the Appellant to promptly prosecute the present appeal, albeit not being a delay warranting dismissal of the appeal.
Case: Allen v Townsend [1977] FCA 10 ; (1977) 31 FLR 431
Outcome: referred to
those orders be continued against other respondents who are members of the NUW? The answer to this question depends on whether, as members, they are bound to perform and observe the Rules by engaging or not engaging in the conduct which is the subject of his Honour's orders. As officers, they were subject to the rules because they owed fiduciary obligations to the union: cf Allen v Townsend [1977] FCA 10 ; (1977) 31 FLR 431 at 483. Members, as such, do not have equivalent fiduciary obligations. Mr Borenstein nonetheless argued that members of an organisation are under an obligation not to act against the interests of the organisation of which they are members. He submitted that the Rules constituted a compact which defined the relationship between the member and the union. There was, he submitted, an implied restraint against a member acting against the interests of the union by procuring resignations by other members. He referred to Rule 3 of the NUW rules, which provides that, where a member acts in a way that conflicts with the objects of the union, that member may be subject to a charge under Rule 67 for failing to observe the rules of the union. The only object to which he referred was that found in rule 2(44) which was 'To enrol into membership of the union all employees eligible to become members of the union'.
Case: Cook v Crawford (1982) 43 ALR 83
Outcome: referred to
is arguable that Rule 2(44) may give rise to a negative implication that employees who have been induced to enrol as members should not, thereafter, be encouraged by other members to resign their membership. There may be some support to be found for the existence of such an implication in dicta in the judgment of Smithers J in Cook v Crawford (1982) 43 ALR 83 at 116. His Honour there said: "Whatever reasons the appellants may have had for thinking that their resistance was justifiable, there could, of course, be no justification of any kind for members and officers of the organisation actually to attempt to induce other members to resign from it. To try to reduce the membership of the organization whilst remaining members and officers thereof was conduct which could only be described as most reprehensible. Whether or not there was some expressed or implied rule of the organisation which forbade members to engage in such conduct, it conflicted with every implied obligation of official duty" (emphasis added). See also at 114 per Smithers J, and 159-160 per Sheppard J. It is not necessary, in dealing with interim Orders, to come to a concluded view as to whether or not there is an obligation, which may be enforced against a member of an organisation under s 164, not to prejudice the interests of the organisation by encouraging fellow members to resign. It is sufficient that I conclude, as I do, that this is a serious question which will require attention at a final hearing. Accordingly, I reject the application that Orders 1(a) and 1(b) of Gray J's Orders be vacated insofar as they apply to respondents who are presently members of the NUW. Order 1(c) is in a different category. It was made at a time when it was normal practice for a single application to be made, or concurrent applications to be made, by aspiring members who wished to join the NUW and the NUWQ. This was convenient because the Queensland branch of the NUW and the NUWQ had the same office bearers, operated out of the same offices, and acted as if they were a single entity. It was not, however, appropriate that respondents who were officers of the NUW should be recruiting workers to be members of the NUWQ to the exclusion of the NUW.
Case: James v Beuna Ventura Nitrate Grounds Syndicate Limited [1896] Ch D 456
Outcome: considered
In support of the plaintiff's contention that a special resolution is required now, reliance was placed upon the case of James v Beuna Ventura Nitrate Grounds Syndicate Limited [1896] Ch D 456 at 463, where Lord Herschell said: A good deal of argument was addressed to us on the question whether this resolution of April, 1893, sanctioned a different allotment of the shares from that provided for by art. 27; and, if so, whether it was competent by a special resolution to sanction a departure from the provisions of art. 27 without having first by a special resolution duly altered that article. I am not satisfied that it would be competent for the company thus to act. It is unnecessary, however, to decide the point... 15 There is not here any sanctioning of a departure from the articles of association or the Act, as was hypothesised in the case of James [1896] Ch D 456. There is nothing in the proposal that has been put before the Court that suggests that the requirement in respect of a name change will not occur, namely, that procedures in relation to a special resolution will not be followed.
Case: McCawley v The King [1918] HCA 55 ; (1918) 26 CLR 9
Outcome: considered
The plaintiff also relied upon the cases of Taylor v Pilsen Joel &amp; General Electric Light Co [1884] 27 Ch D 268 and McCawley v The King [1918] HCA 55 ; (1918) 26 CLR 9. I do not consider these cases take the matter any further in the context of this case, as they do not deal with, or touch upon, the issue I need to determine, namely the one postulated by the plaintiff in identifying the issue. This is not a case where it is suggested the Company cannot enter into the arrangements at all. Nor is this a case where the entering into of the arrangement, or proposal, will necessarily be a breach of the memorandum or articles of association.
Case: Taylor v Pilsen Joel &amp; General Electric Light Co [1884] 27 Ch D 268
Outcome: considered
The plaintiff also relied upon the cases of Taylor v Pilsen Joel &amp; General Electric Light Co [1884] 27 Ch D 268 and McCawley v The King [1918] HCA 55 ; (1918) 26 CLR 9. I do not consider these cases take the matter any further in the context of this case, as they do not deal with, or touch upon, the issue I need to determine, namely the one postulated by the plaintiff in identifying the issue. This is not a case where it is suggested the Company cannot enter into the arrangements at all. Nor is this a case where the entering into of the arrangement, or proposal, will necessarily be a breach of the memorandum or articles of association.
Case: Lloyd Werft Bremerhaven GmbH v Owners of Ship "Zoya Kosmodemyanskaya" and Anor (1997) 79 FCR 71
Outcome: cited
notice to produce. The provision in the Federal Court Rules in relation to notices to produce is O 33 r 12. That rule provides: (1) Where a party to any proceedings serves on another party notice, in accordance with Form 45, requiring the party served to produce at any trial or hearing in the proceedings, or before any Judge, officer, examiner or other person having authority to take evidence in the proceedings any document or thing for the purpose of evidence and the document or thing is in the possession, custody or power of the party served, the party served shall, unless the Court otherwise orders, produce the document or thing in accordance with the notice, without the need for any subpoena for production. (2) Where the document or thing required to be produced in accordance with subrule (1) is not produced, the party serving the notice may lead secondary evidence of the contents or nature of the document or thing. (3) Subrule (2) does not affect the power of the Court to order costs against a party who fails to comply with a notice under subrule (1). Some principles have emerged in relation to notices to produce under O 33 r 12 from prior authorities. It is accepted that a notice to produce, properly issued in terms of O 33 r 12, has the same coercive effect as a subpoena. There is also authority that a notice to produce may be used even in respect of an interlocutory hearing. Though examples are to be found of such use it may perhaps require reconsideration at some stage in light of the remarks made in the Full Court in Lloyd Werft Bremerhaven GmbH v Owners of Ship "Zoya Kosmodemyanskaya" and Anor (1997) 79 FCR 71 at 93D (Bremerhaven), where the Full Court makes reference to adjectival rules to be applied at the hearing, being those appropriate to a final hearing. I proceed, though, on the basis that the desired use of a notice to produce by Mr Joyce to secure the production of particular documents for use in relation to the application to be heard on 14 December 2009 is, at least in theory, permissible under the Rules even though the application to be heard that day is not a final hearing. I note that in Tyco Australia Pty Ltd v Leighton Contractors Pty Ltd [2005] FCAFC 115 ; (2005) 142 FCR 428 , Hely J at 442, having voiced his general agreement with observations made by Hill J in relation to notices to produce, stated: Contestable issues of fact may arise in proceedings under O 15A for preliminary discovery.
Case: Telstra Corporation v Minister for Communications, Information Technology and the Arts [2007] FCA 1398
Outcome: cited
sentiments expressed by Hely J were quoted with apparent approval by Graham J in Telstra Corporation v Minister for Communications, Information Technology and the Arts [2007] FCA 1398 (Telstra). One finds in Graham J's judgment in the Telstra case at para 44 through to, and including, para 54, a helpful recitation of authority in relation to practice and procedure concerning notices to produce. The Sunland parties do not challenge the prima facie ability of Mr Joyce to invoke the notice to produce procedure in support of his application on 14 December 2009.
Case: Armacel Pty Ltd v Smurfit Stone Container Corporation [2007] FCA 1928 ; (2007) 164 FCR 123
Outcome: considered
is, it must be said, something of an incongruity in respect of a party who, on the one hand, challenges the jurisdiction of this Court to entertain the substantive proceeding and, on the other hand, seeks to invoke its compulsory process to support an application that that party is making. It may well be that, again prima facie, that course is impermissible: see Armacel Pty Ltd v Smurfit Stone Container Corporation [2007] FCA 1928 ; (2007) 164 FCR 123 at [10] . The application to be heard on 14 December 2009 has about it, though, as noted, an alternative predicated upon an absence of success as to the jurisdictional challenge. The Sunland parties, for their part, recognise the practicalities and also the service of the interests of justice by the hearing of the application for the relief Mr Joyce seeks on that day conjunctively rather than in some staggered way. For that reason there is no formal challenge to the ability to invoke the compulsory process reflected in a notice to produce made by the Sunland parties. Rather, they seek to meet whether the notice to produce should be set aside on the assumption that it is otherwise open to Mr Joyce to invoke that process. That seems to me to be a just way to approach the question of whether the notice to produce should be set aside in the particular circumstances of this case. In other words, whilst I have a particular reservation as to the invocation of the process when jurisdiction is under challenge, I shall proceed on the assumption that it is otherwise regular to have sought to invoke the process. Another question which emerges in terms of practice and procedure is the absence of a grant of leave to Mr Joyce for the issuing of any notice to produce, be it in the form quoted or in some other form. I say that because the notice seeks to have the documents it describes produced at a time other than the hearing which was to occur on 14 December.