mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Kuswardana v Minister for Immigration &amp; Ethnic Affairs (1981) 35 ALR 186 
Outcome: referred to
The fact that this alleged failure had not been raised in the Tribunal was no bar to its qualification as an error of law on the part of the Tribunal according to counsel for the applicant. In this regard I was referred to what was said by Bowen CJ in Kuswardana v Minister for Immigration &amp; Ethnic Affairs (1981) 35 ALR 186 at 194; see too Fox J at 199; although Deane J at 205 was troubled as to whether the appellant's failure in that case to raise the issue in the Tribunal precludes the intervention of the court on appeal.
Case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 
Outcome: referred to
Counsel for the Minister accepted that failure to consider a relevant consideration is, as Mason J explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 39, "one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action"; but noted that failure by a decision-maker to take into account relevant considerations is only an error where the statute makes the considerations ones which the decision-maker is " bound to take into account in making that decision".
Case: Port of Geelong Authority v The "Bass Reefer" [1992] FCA 378 ; (1992) 37 FCR 374
Outcome: followed
a demise charter had been terminated before the plaintiff applied to amend to an existing writ, Foster J said in Port of Geelong Authority v The "Bass Reefer" [1992] FCA 378 ; (1992) 37 FCR 374 at 389 that, as a matter of discretion, he would not allow an amendment where some items covered by the requested amendment might arguably be maritime claims but others not. He adverted to difficulties that obviously might arise if the writ were to be amended at that time after the charterer had ceased to be a relevant person. Like his Honour, I have difficulty in seeing that the grant of the requested amendment would be just or appropriate in all the circumstances: see too r 17(1) of the Admiralty Rules . I am of opinion that, as a matter of my discretion, I should not allow this amendment, so as to permit this claim to be made in this way at this time. The claim is, in effect, against the property of the owner of the vessel, APC Marine, when the owner will not be able to have recourse, in the circumstances, to its current demise charterer because T-D has ceased to have any connection with the vessel. In addition, although I do not express these views for the purposes of my decision, it is desirable to say that in my view s 18 of the Act does not appear to me, at the moment, to support the present claim. That section contemplates that when an action in rem is commenced the, or a, maritime claim will be connected temporally by the coincidence of possession of a demise charterer who is liable and the cause of action asserted as a, or part of a, maritime claim. I will assume for the moment that EMAS' claim for indemnity, is a maritime claim under s 4(3)(j) or (m) in respect of towage of the barge or a claim in respect of goods, materials or services supplied to it for its operation or maintenance (i.e. necessaries). However, each of those categories is a matter about which there is a considerable amount of learning and which may or may not be correct in respect of the present proceedings.
Case: Tisand Pty Limited v The Owners of the Ship MV "Cape Moreton" (Ex Freya) [2005] FCAFC 68 ; (2005) 143 FCR 43
Outcome: discussed
Tisand Pty Limited v The Owners of the Ship MV "Cape Moreton" (Ex Freya) [2005] FCAFC 68 ; (2005) 143 FCR 43 Ryan and Allsop JJ, particularly at 68-74 [100]-[122] engaged in a substantial and learned discussion of the importance of identifying persons with a proprietary interest as owner or demise charterer in arrest proceedings, albeit that they concentrated on the question of ownership. They said that in ss 17 , 18 and 19 of the Act, the phrase "the owner" was used in a proprietary sense, reflecting the clear purpose of the Act to require that the property proposed to be arrested belong to the relevant person: The "Cape Moreton" 143 FCR at 73 [118]. Here, that approach must be adapted to the special provisions of s 18 in relation to a demise charterer being the relevant person. At the time of the arrest of the "APC Aussie 1" , T-D was the relevant person, as the existing demise charterer. T-D was the contracting party with EMAS under the charter for her towage. But, at the present time T-D is not capable of being a relevant person in respect of the barge because the demise charter has been terminated and APC Marine, as owner, has retaken possession. T-D now has no proprietary interest in the barge, yet EMAS is seeking to extend the ambit of the security for which the arrest was obtained to a cause of action not previously contemplated in either the writ or the amended writ. If granted, the amendment would have the effect of greatly expanding the amount of security that EMAS could require for release of the " APC Aussie 1 " before its owner would be able to exercise its proprietary rights, even though the new claim involves no direct relationship between EMAS and APC Marine. There may be occasions (that were not suggested during the hearing) in which it is possible to argue that such an amendment could be appropriate. It is for that reason that I do not wish to express a final view on this question and instead have exercised my discretion to refuse the application to amend. The reality is that EMAS seeks to utilise the earlier arrest of the barge, to bring pressure on APC Marine well after EMAS became aware of the existence of APC Marine's Singaporean writ and in circumstances in which EMAS has delayed making the application to amend until after the intervening event of APC Marine's termination of its charterparty with T-D.
Case: Shell Oil Company v The Ship "Lastrigoni" [1974] HCA 27 ; (1974) 131 CLR 1
Outcome: followed
in Admiralty are intended to facilitate the enforcement of liabilities and not to allow pressure to be put on a person who is himself under no liability in respect of the liabilities of others: Shell Oil Company v The Ship "Lastrigoni" [1974] HCA 27 ; (1974) 131 CLR 1 at 6 per Menzies J; cp Owners of MV "Iron Amanat" v KMP Coastal Oil Pte Ltd [1999] HCA 11 ; (1999) 196 CLR 130 at 139 [22] per Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ. In my opinion, it would not be right, or just, in the present circumstances to allow the amendment to be made so as to permit APC Marine's property to stand as security for EMAS' claim to be entitled to indemnity from T-D under cl 14 of their charterparty for any claim T-D makes against EMAS based on a liability T-D may have to APC Marine.
Case: Owners of MV "Iron Amanat" v KMP Coastal Oil Pte Ltd [1999] HCA 11 ; (1999) 196 CLR 130
Outcome: cited
in Admiralty are intended to facilitate the enforcement of liabilities and not to allow pressure to be put on a person who is himself under no liability in respect of the liabilities of others: Shell Oil Company v The Ship "Lastrigoni" [1974] HCA 27 ; (1974) 131 CLR 1 at 6 per Menzies J; cp Owners of MV "Iron Amanat" v KMP Coastal Oil Pte Ltd [1999] HCA 11 ; (1999) 196 CLR 130 at 139 [22] per Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ. In my opinion, it would not be right, or just, in the present circumstances to allow the amendment to be made so as to permit APC Marine's property to stand as security for EMAS' claim to be entitled to indemnity from T-D under cl 14 of their charterparty for any claim T-D makes against EMAS based on a liability T-D may have to APC Marine.
Case: Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1
Outcome: followed
than once, members of the High Court of Australia have observed that the elements of a native title claim depend upon the terms of the Act, not the common law: see The Commonwealth v Yarmirr (2001) 208 1 at [7] ( 'Yarmirr' ), Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1 at [16] ( 'Ward HC' ), Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58 ; (2002) 214 CLR 422 at [32] ( 'Yorta Yorta' ). In Yorta Yorta at [75], Gleeson CJ, Gummow and Hayne JJ said: 'Native title, for present purposes, is what is defined and described in s 223(1)' of the Act. That subsection reads as follows: '(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia.'
Case: Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316
Outcome: applied
might be expected, having regard to these statements of principle, there are cases in which communal native title has been recognised over the whole of an area of land, notwithstanding that estate groups were found to have particular rights to parts of that land: see Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316 ( Ward FC1 , first Full Court decision) at [203] - [204], Neowarra v Western Australia [2003] FCA 1402 ( 'Neowarra' ) at [393] and Alyawarr at [69] [71]. In Alyawarr , the Full Court drew attention to the form of the declaration made in Mabo . Notwithstanding evidence that groups and individuals had particular rights and interests in relation to parts of the Murray Islands, the High Court declared 'that the Meriam people' are 'entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands'.
Case: SZGXZ v MIMA [2006] FMCA 928
Outcome: affirmed
The appellant's sister submitted her own application for a protection visa which was refused both before the Tribunal and on appeal before the Federal Magistrates Court: SZGXZ v Minister for Immigration &amp; Multicultural Affiairs [2006] FMCA 928. The appellant's sister's appeal raises the same claims and grounds and was heard at the same time. 3 In essence, the claim as presented to the Tribunal centred on the appellant and her sister's complaints regarding extortion by police and officials in connection with a clothing shop which they owned. They claim that the police closed down the shop and they were both arrested and imprisoned for two weeks during which time they were physically and mentally mistreated. 4 The appellants also claim that they were only released when the SZGXO appellant's husband paid a large bribe. The appellants complained to higher level officials regarding their treatment, but instead of re-opening their shop the officials searched the appellants' home and threatened to punish them more severely.
Case: Australian Competition &amp; Consumer Commission v Australian Safeway Stores Pty Ltd (No 2) [2003] FCAFC 163
Outcome: cited
This approach has been approved by the Full Court: Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd (1987) 17 FCR 211 ; Australian Competition &amp; Consumer Commission v Australian Safeway Stores Pty Ltd (No 2) [2003] FCAFC 163 ; and in Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at [11].
Case: Australian Pesticides and Veterinary Medicines Authority v Administrative Appeals Tribunal [2008] FCA 1393
Outcome: referred to
On 13 October 2008 I made final orders, except as to costs, which gave effect to reasons for judgment dated 12 September 2008: Australian Pesticides and Veterinary Medicines Authority v Administrative Appeals Tribunal [2008] FCA 1393. There was divided success in the proceedings. 2 These reasons concern the question of costs, as to which it was agreed that the Court should resolve this upon written submissions without the need for a further appearance.
Case: Cultivaust Pty Ltd v Grain Pool Pty Ltd [2004] FCA 1568
Outcome: cited
It has been recognised that ordering costs on an "issues" basis can lead to difficulties in assessment: Spotwire Pty Ltd v Visa International Service Association [2004] FCA 1481 at [13] . Indeed the Court is reluctant generally to proceed on this basis: Cultivaust Pty Ltd v Grain Pool Pty Ltd [2004] FCA 1568 at [40] .
Case: Hughes v Western Australian Cricket Association (Inc) [1986] FCA 511 ; (1986) 8 ATPR |P40-748
Outcome: referred to
In Hughes v Western Australian Cricket Association (Inc) [1986] FCA 511 ; (1986) 8 ATPR |P40-748 at 48,136, Toohey J said the following upon the question of the apportionment of costs in circumstances such as the present: (a) ordinarily, costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order; (b) where a litigant has succeeded only on a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which it has failed; (c) a successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party's costs. "Issue" in that sense, does not mean a precise issue in the technical pleading sense, but any disputed question of fact or law. (citations omitted)
Case: New South Wales Dairy Corporation v Murray-Goulburn Co-operative Co Ltd (1989) 14 IPR 75
Outcome: discussed
Imtrade submits that costs should follow the event. The "event" it says can be considered as the commercial result, so that a successful litigant may recover all its costs where the objective sought by the litigation is achieved, even though the litigant does not succeed on every issue in the litigation: O'Keefe Nominees Pty Ltd v BP Australia Ltd, Trade Practices Commission (Intervener) [1995] FCA 1079 ; (1991) 128 ALR 718 per Spender J at 720, citing New South Wales Dairy Corporation v Murray-Goulburn Co-operative Co Ltd (1989) 14 IPR 75.
Case: O'Keefe Nominees Pty Ltd v BP Australia Ltd, Trade Practices Commission (Intervener) [1995] FCA 1079 ; (1991) 128 ALR 718
Outcome: cited
Imtrade submits that costs should follow the event. The "event" it says can be considered as the commercial result, so that a successful litigant may recover all its costs where the objective sought by the litigation is achieved, even though the litigant does not succeed on every issue in the litigation: O'Keefe Nominees Pty Ltd v BP Australia Ltd, Trade Practices Commission (Intervener) [1995] FCA 1079 ; (1991) 128 ALR 718 per Spender J at 720, citing New South Wales Dairy Corporation v Murray-Goulburn Co-operative Co Ltd (1989) 14 IPR 75.
Case: Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd (1987) 17 FCR 211
Outcome: cited
This approach has been approved by the Full Court: Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd (1987) 17 FCR 211 ; Australian Competition &amp; Consumer Commission v Australian Safeway Stores Pty Ltd (No 2) [2003] FCAFC 163 ; and in Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at [11].
Case: Ruddock v Vadarlis (No 2) (2001) 115 FCR 229
Outcome: cited
This approach has been approved by the Full Court: Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd (1987) 17 FCR 211 ; Australian Competition &amp; Consumer Commission v Australian Safeway Stores Pty Ltd (No 2) [2003] FCAFC 163 ; and in Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at [11].
Case: Spotwire Pty Ltd v Visa International Service Association [2004] FCA 1481
Outcome: cited
It has been recognised that ordering costs on an "issues" basis can lead to difficulties in assessment: Spotwire Pty Ltd v Visa International Service Association [2004] FCA 1481 at [13] . Indeed the Court is reluctant generally to proceed on this basis: Cultivaust Pty Ltd v Grain Pool Pty Ltd [2004] FCA 1568 at [40] .
Case: Re Ansett Australia Ltd and Mentha (2001) 39 ACSR 355
Outcome: cited
The same view has been expressed in the context of the provision of the Corporations Act that permits directions to be given for the benefit of a liquidator of a company. In Re Ansett Australia Ltd and Mentha (2001) 39 ACSR 355 (' Re Ansett' ) at 370 [59], the Court referred approvingly to the following passage in the judgment of McLelland J in Re GB Nathan &amp; Co Pty Ltd (in liq) (1991) 24 NSWLR 674 at 679-680: 'Modern Australian authority confirms the view that s 479(3) "does not enable the court to make binding orders in the nature of judgments" and that the function of a liquidator's application for directions "is to give him advice as to his proper course of action in the liquidation; it is not to determine the rights and liabilities arising from the company's transactions before the liquidation".'
Case: Re GB Nathan &amp; Co Pty Ltd (in liq) (1991) 24 NSWLR 674
Outcome: cited
The same view has been expressed in the context of the provision of the Corporations Act that permits directions to be given for the benefit of a liquidator of a company. In Re Ansett Australia Ltd and Mentha (2001) 39 ACSR 355 (' Re Ansett' ) at 370 [59], the Court referred approvingly to the following passage in the judgment of McLelland J in Re GB Nathan &amp; Co Pty Ltd (in liq) (1991) 24 NSWLR 674 at 679-680: 'Modern Australian authority confirms the view that s 479(3) "does not enable the court to make binding orders in the nature of judgments" and that the function of a liquidator's application for directions "is to give him advice as to his proper course of action in the liquidation; it is not to determine the rights and liabilities arising from the company's transactions before the liquidation".'
Case: Franbridge Pty Ltd v Societ&eacute; &amp; Generale Finance Corporation Pty Ltd (1994) 14 ACSR 304
Outcome: discussed
Other limits on the court's power to give directions under s 424 have been discussed in the authorities. In particular, the authorities make it clear that it is not appropriate for the court to give directions about the commercial propriety or reasonableness of a transaction that the receiver proposes to enter into: see One.Tel at 91 [30], 92 [33] and 93 [38]; and Best &amp; Less at 247, 249 and 250. In Franbridge Pty Ltd v Societ&eacute; &amp; Generale Finance Corporation Pty Ltd (1994) 14 ACSR 304 (' Franbridge') , Einfeld J refused to make directions to the effect that a particular transaction was not improper and, more particularly, that the receiver had acted reasonably: at 308, 309. 35 The cases decided under s 424 show a distinct disinclination on the part of courts to make any direction that approves, or appears to approve, the undertaking of a commercial transaction by a receiver. Likewise, the courts have resisted the notion that they should make a direction under s 424 that a receiver has acted reasonably in the performance of his duties pursuant to s 420A. There is a good reason for this caution. Unless directions are carefully worded, they might give a false public perception that the court is placing its imprimatur upon a particular transaction: see Lockhart J in Best &amp; Less at 249 and Franbridge , where Einfeld J said at 308: 'The court should not be asked to make orders, give directions or make declarations that would convey to the public, quite wrongly, for the reasons Lockhart and Hodgson JJ point out, that the court is giving judicial approval to the sale after due consideration in accordance with regular procedures when, however the words are hedged, in fact it is not doing that at all.' 37 In the present case, the deed of charge dated 17 October 2003 provides that the receiver and manager from appointment is the agent of the chargor, Lake Federation. As Hodson J pointed out in Vartex , the consequence of that agency is that the sale of property by the receivers and managers to a company associated with the appointor does not infringe the mortgage principle: see also Franbridge at 308 and Actwane at [13]-[15].
Case: Australasian Memory Pty Ltd v Brien [2000] HCA 30 ; (2000) 200 CLR 270
Outcome: cited
In Australasian Memory Pty Ltd v Brien [2000] HCA 30 ; (2000) 200 CLR 270 at 279-280, the High Court said that the powers conferred by s 447A are wide, but they are not entirely without limit. The High Court found that there is nothing on the face of s 447A(1) that suggests it should be read down; it confers power to make orders which will have effect in the future. Their Honours said that the orders contemplated by s 447A(2) go beyond a curial determination of what is the effect of existing provisions of the Part in relation to a particular company, and contemplate orders that alter how Part 5.3A is to operate in relation to a particular company under administration. 30 The power under s 447A is extremely wide. This may explain the preparedness of the Goldberg J in Re Ansett to give directions approving a particular agreement to be entered into by the administrators. In that case, Goldberg J noted that it is not the role of the court to make a commercial judgment for the liquidators or administrators or to substitute its judgment for their judgment, but then added at 371: [A]lthough courts will not pronounce upon the commercial prudence of a particular transaction, they will act in an appropriate case to protect liquidators and administrators from claims that they have acted unreasonably in entering into particular transactions. That protection will remain so long as the liquidators or administrators have made a full and fair disclosure to the court of all facts material to the subject-matter under consideration.' 31 In Re Ansett , Goldberg J give a direction under s 447A that the Court approved a particular contractual arrangement that the administrators proposed to enter into.
Case: Re Ansett Australia Ltd (2002) 41 ACSR 605
Outcome: cited
Another case to similar effect is Re Ansett Australia Ltd (2002) 41 ACSR 605 at 615-616 [44]-[46] and 618 [54]. In that case, Goldberg J acknowledged that the Court should not give directions as to whether or not a decision made by the administrators is a commercial decision. However, his Honour said at 616 [46]: '... where issues as to the propriety or reasonableness of the conduct undertaken, or the decision made, by an administrator is called in question, it is open to the court to give a direction which, in substance, sanctions or approves the conduct undertaken, or decision made, by the administrator.' 33 His Honour also said that in so far as it might be thought that it was implicit in his reasons for directing that the administrators may properly perform and give effect to the agreement, that was a necessary and inevitable consequence of a consideration of the propriety and reasonableness of the conduct of the administrators in entering into and seeking to perform and give effect to the agreement: at 618 [54]. 34 It therefore seems that, while ss 424 and 447A of the Corporations Act have their respective limits, the courts have been prepared to go further into the commercial arena in making directions under the wider power conferred by s 447A than they have in giving directions to receivers under s 424.