mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Nile v Wood [1988] HCA 30 ; (1987-1988) 167 CLR 133
Outcome: followed
As noted above, s 358(1) of the Act provides that, subject to subs (2), no proceedings shall be had on the petition unless the requirements of, relevantly, s 355, are complied with. The 40 day requirement of s 355(e) is one which must be complied with if proceedings are to be had on the petition within the meaning of s 358(1). In Nile v Wood [1988] HCA 30 ; (1987-1988) 167 CLR 133 the petition failed to include a prayer for relief as required by s 355(b). Justices Brennan, Deane and Toohey stated at 137 that if there are defects in the petition in a failure to comply with s 355, those defects are not capable, by reason of s 358, of being cured by amendment after the period of 40 days fixed by paragraph (e) for the filing of a petition. Accordingly the petition was held to be incurably defective and no proceedings could be had on it (at 140). 19 Accordingly, as the 40 day period has now expired, any amendment to the petition is not available as the petition does not comply with s 355(a) of the Act. 20 The Act does provide one exception to the requirements of s 355. Section 358(2) provides that the Court may, at any time after filing the petition and on such terms (if any) as it thinks fit, relieve the petitioner wholly or in part from compliance with s 355(aa).
Case: Robertson v Australian Electoral Commission [1993] HCA 50 ; (1993) 116 ALR 407
Outcome: cited
There are some difficulties in distinguishing between the facts required by s 355(a), as to which no amendments are to be made after the 40 day period and the facts needed to comply with s 355(aa), where compliance can be dispensed with at any time after the filing of the petition. As Dawson J observed in Sykes at 648, the precise distinction between those two subparagraphs ' is a matter of some obscurity '. His Honour continued, in a passage adopted by Toohey J in Robertson v Australian Electoral Commission [1993] HCA 50 ; (1993) 116 ALR 407 at 409: ...it appears that under para (a) the essential facts may be stated with a degree of generality and it is para (aa) which requires sufficient particularity to identify the specific matter or matters relied on.
Case: Rudolphy v Lightfoot [1999] HCA 61 ; (1999) 197 CLR 500
Outcome: followed
This is not a case of a lack of particularisation. The facts in the petition do not comply with s 355(a) of the Act even at a level of generality. The inclusion of s 355(aa), which refers to the particularity of the content of the petition emphasises the imperative nature of the other provisions of s 355 ( Rudolphy v Lightfoot [1999] HCA 61 ; (1999) 197 CLR 500 at [9] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) including s 355(a). 25 In Rudolphy , the High Court confirmed that ' once the forty day period has expired, it is not possible thereafter to amend the petition which has been filed within time so as to cure any non-compliance with the requirement of section 355 ' (at [12]). Amendment to the petition is not available. 26 Mr Smith seeks by the petition an order that the Senate elections be declared void on the ground that the registration of the Fishing and Lifestyle Party contravened Part XI of the Act. However, his petition does not allege sufficient facts that would be capable of showing that any such wrongful registration is likely to have had any effect on the outcome of the elections in question. Any amendment to the petition is not available as the 40 day period referred to in s 355(e) has now expired. 27 The petition fails to comply with s 355(a) of the Act and must therefore be dismissed. I will hear the parties as to costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 26 June 2008 The Petitioner was self represented Counsel for the Respondent: G R Kennett Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 20 June 2008 Date of Judgment: 27 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/953.html
Case: Sykes v Australian Electoral Commission [1993] HCA 36 ; (1993) 115 ALR 645
Outcome: followed
In a case where the relief sought is an order under s 360(1)(v) or (vii) of the Act (declaring that a person who was returned as elected was not duly elected or declaring an election void) on the ground that there has been a contravention of the Act, the consequence of s 362(3) of the Act is that, relevantly, the facts which would justify the relief must include facts which would allow the Court to be satisfied that the result of the election is likely to have been affected. The minimum assertion necessary to constitute such a fact is one raising the matter or matters by which the election is likely to be affected ( Webster at 225 per Gaudron J; McClure v Australian Electoral Commission [1999] HCA 31 ; (1999) 163 ALR 734 at [23] [24] per Hayne J). As Dawson J outlined in Sykes v Australian Electoral Commission [1993] HCA 36 ; (1993) 115 ALR 645 at 649, paragraph (a) requires not only the essential facts relied on to be set out but also those facts must be sufficient to justify a finding in invalidity. As his Honour pointed out, otherwise s 355(a) in conjunction with s 358(1) would achieve little. 15 Whether or not the requirements of s 355(a) are complied with is to be determined solely by reference to what appears on the face of the petition ( Wheeley v Australian Electoral Commission [2005] FCA 473 at [13] per Kiefel J). In the present case there are no facts set out or assertions made in the petition as to the likely outcome of the election other than the possibility that, because of a preference deal, the quota or a Senate position may have been achieved for some other, unspecified, group. The facts alleged emphasise the difficulty of "unscrambling" the Senate results if a group were to be removed. As Dawson J said in Sykes at 649, it is not sufficient for a petitioner to allege insufficient facts to justify relief under the Act but nevertheless contend that as they were the only facts upon which he or she relied, the requirements of paragraph (a) were satisfied. 23 There are some difficulties in distinguishing between the facts required by s 355(a), as to which no amendments are to be made after the 40 day period and the facts needed to comply with s 355(aa), where compliance can be dispensed with at any time after the filing of the petition. As Dawson J observed in Sykes at 648, the precise distinction between those two subparagraphs ' is a matter of some obscurity '. His Honour continued, in a passage adopted by Toohey J in Robertson v Australian Electoral Commission [1993] HCA 50 ; (1993) 116 ALR 407 at 409: ...it appears that under para (a) the essential facts may be stated with a degree of generality and it is para (aa) which requires sufficient particularity to identify the specific matter or matters relied on.
Case: Wheeley v Australian Electoral Commission [2005] FCA 473
Outcome: applied
Whether or not the requirements of s 355(a) are complied with is to be determined solely by reference to what appears on the face of the petition ( Wheeley v Australian Electoral Commission [2005] FCA 473 at [13] per Kiefel J). In the present case there are no facts set out or assertions made in the petition as to the likely outcome of the election other than the possibility that, because of a preference deal, the quota or a Senate position may have been achieved for some other, unspecified, group. The facts alleged emphasise the difficulty of "unscrambling" the Senate results if a group were to be removed. As Dawson J said in Sykes at 649, it is not sufficient for a petitioner to allege insufficient facts to justify relief under the Act but nevertheless contend that as they were the only facts upon which he or she relied, the requirements of paragraph (a) were satisfied.
Case: Akins v Abigroup Ltd (1998) 43 NSWLR 539
Outcome: cited
Third, the exhibits were filed pursuant to a direction of the Court for Veda to 'file and serve any ... affidavits". Veda is to be regarded as acting under compulsion of law by reason of the direction (see Akins v Abigroup Ltd (1998) 43 NSWLR 539) just as it would be doing if it had been required to give discovery of the documents or to produce them in compliance with a subpoena or notice to produce. Whatever the position may be when a party simply leads evidence on the final hearing without having been required to file and serve its affidavits in advance, that is not the case here. Veda would not have filed and served its affidavits and their exhibits if it had not been directed by the Court to do so.
Case: Cadence Asset Management Pty Ltd v Concept Sports Ltd [2006] FCA 711
Outcome: distinguished
Seventh, in Cadence Asset Management Pty Ltd v Concept Sports Limited [2006] FCA 711 , which concerned discovered documents, Finkelstein J held that disclosure to a litigation funder was not caught by the implied undertaking. His Honour's reason was that a litigation funder, although not a party, was not a stranger to the proceeding and had a sufficient interest to be provided with the documents, or at least to those documents it needed in order to assess the merits of the action. 43 Neither DR Capital nor CRA is a litigation funder. Nor are they expert witnesses. On the present state of the evidence, it is not clear to me that they have any proper role in relation to the prosecution of these proceedings. The evidence shows only that DR Capital and CRA: &#8226; assist individuals to have their credit information files corrected; &#8226; have acted as some kind of intermediary between the applicants and a proposed litigation funder; and &#8226; introduced the nine applicants or some of them to their present solicitors.
Case: Commonwealth v Northern Land Council [1993] HCA 24 ; (1992) 176 CLR 604
Outcome: cited
The conclusion I have reached is that the position of Mr Dale's legal representatives and Mr Dale (and the other eight applicants) should be left to be governed by the implied undertaking in accordance with Harman [1983] 1 AC 280. I accept a submission of senior counsel for Mr Dale that his legal advisers should be at liberty to explain to their client, if and as and when they think appropriate, what the exhibits reveal, and to show the exhibits to him for that purpose, subject, of course, to their also explaining to him the implied undertaking he gives to the Court and the potential consequences for him of a breach by, for example, disclosing what he has learned from the exhibits to DR Capital or to CRA. As Toohey J observed in Commonwealth v Northern Land Council [1993] HCA 24 ; (1992) 176 CLR 604 at 638, an undertaking by a litigant's legal representatives not to disclose to the litigant can give rise to considerable difficulties.
Case: Anisminic Ltd v Foreign Compensation Commission and Another [1969] 2 AC 147
Outcome: considered
A denial of natural justice may arise in a variety of different circumstances. It can for example result from a misconstruction of the powers provided to the Tribunal (see Anisminic Ltd v Foreign Compensation Commission and Another [1969] 2 AC 147 at 171) or where a Tribunal identifies a wrong issue, asks itself the wrong question, ignores relevant material, relies upon irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion: see Craig v The State of South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179.
Case: Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 137
Outcome: affirmed
Ms Budd applied to the Tribunal for a review of the SSAT decision and participated in a hearing before the Tribunal by way of telephone. The Tribunal delivered its decision on 21 February 2008 affirming the SSAT decision and dismissing Ms Budd's application: see Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 137. In such decision the Tribunal at [8] made the following finding of fact: She seldom goes out of the house and will only do so to get stationary [sic] supplies and post letters. That is the extent of her travelling. Ms Budd also stated in her letter dated 26 November 2006 that she does not leave the house to do her voluntary work and instead writes the poems at home and then sends them to St Clare's Church. In a letter, undated but received by the Tribunal on 5 November 2007, Ms Budd stated that "St Clare's does not need me to do "face to face" work". 15 The Tribunal concluded at [9]: I find that Ms Budd does not satisfy the travel test because the nature of her voluntary work does not require her to travel to and from her home for the purpose of undertaking that work. Ms Budd is able to conduct her voluntary work from home. In making my finding I have taken into consideration the reports of Dr Hugo Rodriguez, the letters from Sister Francis, the letter from Senator John Faulkner and several letters that Ms Budd sent the Tribunal. 16 Where a notice of appeal is not filed within the time limits prescribed by s 44(2A)(a) of the AAT Act, s 44(2B) thereof provides: In the interest of justice, the grounds on which the Federal Court of Australia may allow further time under paragraph (2A)(a) include, but are not limited to, the following grounds: (a) if the Tribunal made an oral statement as to the reasons for the decision and afterwards gave a written statement of reasons for the decision--the written statement contains reasons that were not mentioned in the oral statement; (b) the text of the decision or a statement of reasons for the decision has been altered under section 43AA.
Case: Comcare v Etheridge [2006] FCAFC 27
Outcome: considered
The Court observes that it has a limited power to review questions of fact (see Comcare v Etheridge [2006] FCAFC 27 at [13] - [16] ), but such power only arises 'after the Court has given consideration of the questions of law which constitute the subject matter of the appeal' : see Comcare at [17]. In the current proceeding however no question of law is raised.
Case: Craig v The State of South Australia [1995] HCA 58 ; (1995) 184 CLR 163
Outcome: considered
A denial of natural justice may arise in a variety of different circumstances. It can for example result from a misconstruction of the powers provided to the Tribunal (see Anisminic Ltd v Foreign Compensation Commission and Another [1969] 2 AC 147 at 171) or where a Tribunal identifies a wrong issue, asks itself the wrong question, ignores relevant material, relies upon irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion: see Craig v The State of South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179.
Case: Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: followed
In these circumstances, the Court cannot substitute its own decision for that of the Tribunal: see Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40 ; (1986) 162 CLR 24 per Mason J at 40-41. 31 Although it is inappropriate for the Court to trespass into the merits, the Court notes that Ms Budd misinterprets the travel test in s 1035(2) of the Act. Her submissions at hearing and her correspondence with the Court continually reiterated that she 'does the work' and that she 'does the travel' . However, the existence of these two facts in isolation does not satisfy the travel test in s 1035(2). The determinative issue before the Tribunal was whether she was required to travel in order to perform the work. The Tribunal found against Ms Budd on such issue and this Court cannot interfere with that finding. 32 It follows from the above that it is not 'in the interest of justice' to grant leave to Ms Budd to file and serve a notice of appeal out of time pursuant to s 44(2A)(a) of the AAT Act. The Court accordingly dismisses the application with costs. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 17 October 2008 Counsel for the Applicant: The Applicant appeared in person by telephone. Solicitor for the Applicant: Australian Government Solicitor Date of Hearing: 23 September 2008 Date of Judgment: 17 October 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1540.html
Case: Airservices Australia v Jeppersen Sanderson Inc [2006] FCA 906
Outcome: followed
In Shahid v The Australasian College of Dermatologists [2006] FCA 414 at [5] - [6] I said: 'The respondent relies on the reasoning in McKellar v Container Terminal Management Services Ltd [1999] FCA 1639 and Sereika v Cardinal Financial Securities Ltd (formerly Inteq Custodians Ltd) [2001] FCA 687. In McKellar , Weinberg J followed the approach taken by Branson J in Life Airbag Co of Australia Pty Ltd v Life Airbag Co (New Zealand) Ltd [1998] FCA 545 and Kiefel J in Harris v Cigna Insurance Australia Ltd (1995) ATPR 41-445. In Harris , Kiefel J accepted that an order that certain costs be taxed and paid forthwith was justified in circumstances where there had been a long delay in the course of the proceeding by the pursuit of an ill-considered and unnecessary claim. It is common ground that the making of the order sought by the notice of motion is a matter in the discretion of the Court.' In Airservices Australia v Jeppersen Sanderson Inc [2006] FCA 906 at [31] - [32] Graham J said: 'In lengthy and complex cases where substantial costs have been thrown away as a result of ill-considered pleadings being drawn, the power to order that costs thrown away be paid forthwith should be used less sparingly than it has in the past. Such costs should be capable of being recovered without the innocent party having to wait, possibly years, for that to occur (per Weinberg J in McKellar v Container Terminal Management Services Limited [1999] FCA 1639 at [41] ). The making of an order under Order 62 rule 3 is justified where, through no fault of a party, such as the first and second respondents in the present case, there has been substantial delay in the proceedings because an applicant has attempted a number of versions of the Application and of the Statement of Claim, additional directions hearings have taken place which should not have been necessary, interlocutory steps have been taken and applications have been brought unnecessarily given the changes to the pleadings that have occurred (see All Services Australia Pty Ltd v Telstra Corporation Ltd (2000) 171 ALR 330 at 333 [11].'
Case: Shahid v The Australasian College of Dermatologists [2006] FCA 414
Outcome: applied
In Shahid v The Australasian College of Dermatologists [2006] FCA 414 at [5] - [6] I said: 'The respondent relies on the reasoning in McKellar v Container Terminal Management Services Ltd [1999] FCA 1639 and Sereika v Cardinal Financial Securities Ltd (formerly Inteq Custodians Ltd) [2001] FCA 687. In McKellar , Weinberg J followed the approach taken by Branson J in Life Airbag Co of Australia Pty Ltd v Life Airbag Co (New Zealand) Ltd [1998] FCA 545 and Kiefel J in Harris v Cigna Insurance Australia Ltd (1995) ATPR 41-445. In Harris , Kiefel J accepted that an order that certain costs be taxed and paid forthwith was justified in circumstances where there had been a long delay in the course of the proceeding by the pursuit of an ill-considered and unnecessary claim. It is common ground that the making of the order sought by the notice of motion is a matter in the discretion of the Court.' In Airservices Australia v Jeppersen Sanderson Inc [2006] FCA 906 at [31] - [32] Graham J said: 'In lengthy and complex cases where substantial costs have been thrown away as a result of ill-considered pleadings being drawn, the power to order that costs thrown away be paid forthwith should be used less sparingly than it has in the past. Such costs should be capable of being recovered without the innocent party having to wait, possibly years, for that to occur (per Weinberg J in McKellar v Container Terminal Management Services Limited [1999] FCA 1639 at [41] ). The making of an order under Order 62 rule 3 is justified where, through no fault of a party, such as the first and second respondents in the present case, there has been substantial delay in the proceedings because an applicant has attempted a number of versions of the Application and of the Statement of Claim, additional directions hearings have taken place which should not have been necessary, interlocutory steps have been taken and applications have been brought unnecessarily given the changes to the pleadings that have occurred (see All Services Australia Pty Ltd v Telstra Corporation Ltd (2000) 171 ALR 330 at 333 [11].'
Case: Australian Securities and Investments Commission, In the Matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 3) [2006] FCA 433
Outcome: cited
On 20 April 2006 the Court made orders under s 1323 of the Corporations Act 2001 (Cth) appointing receivers to the property of Westpoint Realty Pty Ltd (Westpoint Realty) and a number of other companies and individuals connected with the Westpoint Finance and Property Group (Westpoint Group): Australian Securities and Investments Commission, In the Matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 3) [2006] FCA 433. The receivers appointed were Brian McMaster, Oren Zohar and Mark Korda. Orders were made at the same time requiring the authority of the receivers to approve transfers or dispositions of the property of the company to a value in excess of $5,000 within any seven day period. 2 The orders made on 20 April 2006 were varied on 30 June 2006 by more elaborate orders. These included an order that, subject to the receivers' satisfaction as to the solvency of the company, they could approve payments by it to meet "reasonable legal expenses" incurred in these proceedings or in connection with proceedings brought against the company by the Australian Securities and Investments Commission (ASIC) or others in the future. 3 The condition requiring satisfaction as to solvency before payments could be approved was modified by further orders made on 26 July 2006. By those orders the receivers were permitted to disregard, for the purposes of their satisfaction as to solvency, the potential liability of the company under guarantees it had given to so called Mezzanine companies in the Westpoint Group. The Mezzanine companies had raised funds from retail investors for property developments in the Westpoint Group. The receivers were also entitled to disregard the company's potential GST liability for the supply of sales and marketing services to other entities in the Westpoint Group. The modification of the condition requiring satisfaction as to solvency has been referred to in these proceedings as a "carve-out" from that condition.