mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334
Outcome: cited
TPI joins in the NCC's submissions. However, it adds that apart from the fact that Kenny J used the term "Rail Track Service", which her Honour had carefully and narrowly defined in her first declaration, it was not open to her to make a declaration in any wider terms. That was because there was no matter before the Court other than the amenability of the Rail Track Service, as defined, to a declaration recommendation by the NCC. Accordingly, the Court had no jurisdiction to make a declaration about anything more than it did: Bass v Permanent Trustee Ltd [1999] HCA 9 ; (1999) 198 CLR 334 at [45] - [47] . TPI also cites Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 582 in support of the proposition that, where the underlying factual subject matter of a proposed declaration is uncertain or hypothetical, the Court lacks jurisdiction to make a declaration.
Case: Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564
Outcome: cited
TPI joins in the NCC's submissions. However, it adds that apart from the fact that Kenny J used the term "Rail Track Service", which her Honour had carefully and narrowly defined in her first declaration, it was not open to her to make a declaration in any wider terms. That was because there was no matter before the Court other than the amenability of the Rail Track Service, as defined, to a declaration recommendation by the NCC. Accordingly, the Court had no jurisdiction to make a declaration about anything more than it did: Bass v Permanent Trustee Ltd [1999] HCA 9 ; (1999) 198 CLR 334 at [45] - [47] . TPI also cites Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 582 in support of the proposition that, where the underlying factual subject matter of a proposed declaration is uncertain or hypothetical, the Court lacks jurisdiction to make a declaration.
Case: Turner v London Transport Executive [1977] ICR 952
Outcome: cited
In Turner v London Transport Executive [1977] ICR 952, a plea of issue estoppel failed because "the findings of the industrial tribunal were not sufficiently clear and precise". Browne LJ said (at 964): "The essential foundation of a plea of issue estoppel must be that the issue or issues raised in the first proceedings, and the issue or issues raised in the second proceedings are identical. It is for the party who seeks to rely on the estoppel to establish this identity. " [Emphasis added.]
Case: Hacking v Lee (1860) 9 WR 70
Outcome: cited
Some examples of just how strictly the courts have viewed this requirement may be useful. It has been held that a party, against whom judgment has been given when suing in a representative capacity, is not estopped from suing in a different representative capacity. That is because the subject matter of the litigation is not the same in the two proceedings. See generally Hacking v Lee (1860) 9 WR 70. Similarly, an acquittal on a charge of wilfully making a false tax return has been held not to be a bar to a civil claim brought by the Commissioner alleging that the return was fraudulent or wilfully misleading. The issues were not identical. In addition, the onus of proof differed: Maxwell v IRC [1962] NZLR 683.
Case: Maxwell v IRC [1962] NZLR 683
Outcome: cited
Some examples of just how strictly the courts have viewed this requirement may be useful. It has been held that a party, against whom judgment has been given when suing in a representative capacity, is not estopped from suing in a different representative capacity. That is because the subject matter of the litigation is not the same in the two proceedings. See generally Hacking v Lee (1860) 9 WR 70. Similarly, an acquittal on a charge of wilfully making a false tax return has been held not to be a bar to a civil claim brought by the Commissioner alleging that the return was fraudulent or wilfully misleading. The issues were not identical. In addition, the onus of proof differed: Maxwell v IRC [1962] NZLR 683.
Case: Ord v Ord [1923] 2 KB 432
Outcome: cited
There are cases in which a change of circumstances has led to the rejection of a claim of estoppel. In Ord v Ord [1923] 2 KB 432, a wife sued for maintenance under a deed of separation. The husband sought to have the deed set aside on the basis that she had fraudulently concealed her adultery. In the first action, the husband failed to prove adultery. In a later action for further instalments, it was held that he could rely upon other acts of adultery of which he had no knowledge at the time of the first action.
Case: Richards v Richards [1953] P 36
Outcome: cited
Similarly, in Richards v Richards [1953] P 36 , it was held that where a wife's charge of cruelty had been dismissed by justices, there was no estoppel preventing her from leading the same evidence, together with other evidence covering a later period, to establish cruelty at a later date. In Burman v Woods [1948] 1 KB 111, it was held that a decision refusing an order for possession based on hardship would not bar later proceedings. That was because the factors relevant to hardship might change. To the same effect is Mills v Cooper [1967] 2 KB 459, where it was held that a decision that the defendant was not a gypsy did not bar proceedings alleging that he was a gypsy on a later date.
Case: Burman v Woods [1948] 1 KB 111
Outcome: cited
Similarly, in Richards v Richards [1953] P 36 , it was held that where a wife's charge of cruelty had been dismissed by justices, there was no estoppel preventing her from leading the same evidence, together with other evidence covering a later period, to establish cruelty at a later date. In Burman v Woods [1948] 1 KB 111, it was held that a decision refusing an order for possession based on hardship would not bar later proceedings. That was because the factors relevant to hardship might change. To the same effect is Mills v Cooper [1967] 2 KB 459, where it was held that a decision that the defendant was not a gypsy did not bar proceedings alleging that he was a gypsy on a later date.
Case: Mills v Cooper [1967] 2 KB 459
Outcome: cited
Similarly, in Richards v Richards [1953] P 36 , it was held that where a wife's charge of cruelty had been dismissed by justices, there was no estoppel preventing her from leading the same evidence, together with other evidence covering a later period, to establish cruelty at a later date. In Burman v Woods [1948] 1 KB 111, it was held that a decision refusing an order for possession based on hardship would not bar later proceedings. That was because the factors relevant to hardship might change. To the same effect is Mills v Cooper [1967] 2 KB 459, where it was held that a decision that the defendant was not a gypsy did not bar proceedings alleging that he was a gypsy on a later date.
Case: New Brunswick Railway Company v British and French Trust Corporation [1939] AC 1
Outcome: cited
Spencer Bower (at 199) considers these cases to support the principle that issue estoppel "does not apply in a changing situation". The same point was made in New Brunswick Railway Company v British and French Trust Corporation [1939] AC 1 , where Lord Maugham LC said (at 20): "If an issue has been distinctly raised and decided in an action, in which both parties are represented, it is unjust and unreasonable to permit the same issue to be litigated afresh between the same parties or persons claiming under them; but in my view the doctrine cannot be made to extend to presumptions or probabilities as to issues in a second action which may be, and yet cannot be asserted beyond all possible doubt to be, identical with those raised in the previous action. In the earlier action here the only relevant issue was as to the true construction of the only bond then sued upon; ... The issue of construction in the second action could indeed be proved in the second action to be similar to that decided in the first; but it related to a different cause of action based on other bonds and could not be asserted to be the same issue. Moreover, it is a matter of common knowledge that such bonds are often issued at different dates and in different countries, matters which might well have a possible bearing on their true construction. " [Emphasis added.]
Case: Co-Ownership Land Development Pty Ltd v Queensland Estates Pty Ltd (1973) 47 ALJR 519
Outcome: cited
In general, the identical subject matter requirement has been construed strictly. In Co-Ownership Land Development Pty Ltd v Queensland Estates Pty Ltd (1973) 47 ALJR 519 , Walsh J said (at 522): "In order that the principle of issue estoppel may apply it ... must be possible to assert without doubt that the issues are identical." 118 In the light of these authorities, Hamersley's estoppel claim must fail. In my view, the TPI application raises different issues to those that confronted the NCC at the time of First Hamersley Iron. The orders that Kenny J pronounced must be construed in the light of her Honour's reasons for judgment as a whole, as well as in the context of the issues which presented themselves at the time. 119 I should, for the sake of completeness, deal with Hamersley's alternative submission. It argues that even if its rail track today is not the same in all relevant respects as that of 1998, its claim of res judicata should still succeed. It submits that no matter how great the differences there may be between the two track systems, Kenny J's orders still speak for themselves, and must stand unless and until they are varied. 120 Hamersley recognises the implications of this submission. It accepts that, over time, conditions may change to such a degree as to warrant reconsideration of whether its railway system still involves "the use of a production process". It says that in that event, it would be open to the NCC to make application, pursuant to O 37 r 6 of the Federal Court Rules, for a variation of Kenny J's orders. This would be on the basis of "matters occurring after judgment".
Case: Gamser v Nominal Defendant [1977] HCA 7 ; (1977) 136 CLR 145
Outcome: cited
It has been held that O 37 r 6 does not authorise the Court to set aside a judgment regularly passed and entered because new facts and circumstances have arisen. See Gamser v Nominal Defendant [1977] HCA 7 ; (1977) 136 CLR 145 , which concerned a similar rule of the Supreme Court of New South Wales. If an injunction has been granted, however, an order may be made under this rule suspending the operation of the injunction from the date of the changed circumstances. See generally Permewan Wright Consolidated Pty Ltd v Attorney-General (NSW) (1978) 35 NSWLR 365.
Case: Permewan Wright Consolidated Pty Ltd v Attorney-General (NSW) (1978) 35 NSWLR 365
Outcome: cited
It has been held that O 37 r 6 does not authorise the Court to set aside a judgment regularly passed and entered because new facts and circumstances have arisen. See Gamser v Nominal Defendant [1977] HCA 7 ; (1977) 136 CLR 145 , which concerned a similar rule of the Supreme Court of New South Wales. If an injunction has been granted, however, an order may be made under this rule suspending the operation of the injunction from the date of the changed circumstances. See generally Permewan Wright Consolidated Pty Ltd v Attorney-General (NSW) (1978) 35 NSWLR 365.
Case: Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193
Outcome: applied
I am fortified in my conclusion that there is no res judicata by the nature of the legislative scheme under which the NCC exercises its statutory duties. The NCC is not an ordinary litigant. It does not seek to vindicate its own private rights. Prima facie, duties conferred by statute are intended by Parliament to be exercised from time to time as occasion arises. See generally s 33(1) of the Acts Interpretation Act 1901 (Cth) and the well-known observations of Gummow J in Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 211 and 218-9. 125 It follows that Hamersley's claim of res judicata is not made out. 126 Hamersley next submitted, albeit tentatively, that the NCC was barred from dealing with the TPI application even if Kenny J's orders did not bear the interpretation for which it contended. 146 If a representation is to found an estoppel, it must be clear and unambiguous. See Legione v Hately [1983] HCA 11 ; (1983) 152 CLR 406 at 436 per Mason and Deane JJ and Minister for Immigration and Ethnic Affairs v Kurtovic . See also the cases discussed at footnotes 10 and 11 to [190-245] of Halsbury's .
Case: Papazoglou v Republic of the Philippines (1997) 74 FCR 108
Outcome: cited
It may be that counsel had in mind some notion akin to abuse of process as the basis for this contention. If so, the argument fails. The doctrine of abuse of process, as distinct from various forms of proprietary estoppel, ordinarily operates as a shield rather than a sword. In addition, it is generally confined to curial proceedings and does not operate to prevent investigative or other like processes from being carried out. See generally Papazoglou v Republic of the Philippines (1997) 74 FCR 108 at 131-2. 128 I reject Hamersley's submission that some notion akin to abuse of process can be used to obtain prohibition or injunctive relief of the kind now sought. 129 Hamersley submits that Mr Brett's assurance to Kenny J that the NCC would abide by declaratory orders without the need for any permanent injunction to be granted gave rise to an undertaking to the Court from which the NCC should not now be permitted to resile.
Case: S &amp; M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358
Outcome: cited
Undertakings are often given to a court by one or more parties to a dispute. In many cases, the undertakings do not form part of any court order. Nonetheless, an undertaking has the same effect in law as an injunction. Breach of an undertaking is a contempt of court. Self-evidently, the principles that apply to interpreting court orders also apply to interpreting undertakings: S &amp; M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358. 132 It is quite common when injunctive relief is sought against the Commonwealth for the court to inquire of its own motion whether an injunction is really necessary or whether an appropriate undertaking will be forthcoming. Typically, in such circumstances, undertakings are readily proffered. The need to grant injunctive relief is thereby avoided. 133 It is less common, though still not unusual, when declaratory and injunctive relief are sought against the Commonwealth for an assurance to be given that it will abide by any declaration and that no injunction is therefore necessary. In such cases, formal undertakings are not normally proffered. It is assumed that the Commonwealth will act in accordance with the law as declared by the Court. The Commonwealth is expected to act as a "model litigant". It is assumed that it will comply with the spirit as well as the letter of the law.
Case: Harman v Secretary of State for the Home Department [1983] 1 AC 280
Outcome: cited
Hamersley submits that the central feature of an undertaking is nothing more than a commitment to perform a particular duty. It is not necessary for the word "undertake" to be used. Some undertakings are merely implied. See for example: Harman v Secretary of State for the Home Department [1983] 1 AC 280 at 304. As with an injunction, the terms of an undertaking must be strictly observed: Lade &amp; Co Pty Ltd v Black [2006] 2 Qd R 531 at [36].
Case: Lade &amp; Co Pty Ltd v Black [2006] 2 Qd R 531
Outcome: cited
Hamersley submits that the central feature of an undertaking is nothing more than a commitment to perform a particular duty. It is not necessary for the word "undertake" to be used. Some undertakings are merely implied. See for example: Harman v Secretary of State for the Home Department [1983] 1 AC 280 at 304. As with an injunction, the terms of an undertaking must be strictly observed: Lade &amp; Co Pty Ltd v Black [2006] 2 Qd R 531 at [36].
Case: Thomson Australian Holdings Proprietary Limited v The Trade Practices Commission [1981] HCA 48 ; (1981) 148 CLR 150
Outcome: cited
Hamersley's submissions in this regard have some force. The indication by Kenny J that she would "accept" what was proffered on behalf of the NCC reflects the usual terminology employed by a court that accepts an undertaking from a party in lieu of an injunction. See Thomson Australian Holdings Proprietary Limited v The Trade Practices Commission [1981] HCA 48 ; (1981) 148 CLR 150 at 164. 139 Having given this matter careful consideration, I have concluded that Mr Brett's statements to Kenny J should not be regarded as amounting to a formal undertaking. The words that he used seem to me to have been casually expressed and spoken without any attention to formality. His "assurance" cannot properly be understood as constraining the NCC forever from entertaining any application made by a different applicant for a declaration recommendation in respect of what might have become a different service.
Case: Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394
Outcome: applied
At common law, an estoppel by representation arises only as a result of words or conduct reasonably likely to be understood as a representation of fact and not a mere expression of opinion. Moreover, the circumstances must be such that a reasonable person would accept the representation as an invitation to act upon it in a particular way. It must be causally linked to the decision of the party to whom it is made to act upon it to that party's detriment. See generally Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394. 148 Next, it might be thought that any representation embedded in that "assurance" involved a promise as to future conduct and not a statement as to an existing state of affairs: Legione v Hately ; Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 398 per Mason CJ and Wilson J, at 415 per Brennan J, at 459 per Gaudron J; and Commonwealth v Verwayen at 499-500 per McHugh J. Of course, a statement as to whether a present intention exists may itself be a representation as to an existing fact. However, that is hardly a proper characterisation of Mr Brett's language.
Case: Legione v Hately [1983] HCA 11 ; (1983) 152 CLR 406
Outcome: applied
If a representation is to found an estoppel, it must be clear and unambiguous. See Legione v Hately [1983] HCA 11 ; (1983) 152 CLR 406 at 436 per Mason and Deane JJ and Minister for Immigration and Ethnic Affairs v Kurtovic . See also the cases discussed at footnotes 10 and 11 to [190-245] of Halsbury's . 148 Next, it might be thought that any representation embedded in that "assurance" involved a promise as to future conduct and not a statement as to an existing state of affairs: Legione v Hately ; Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 398 per Mason CJ and Wilson J, at 415 per Brennan J, at 459 per Gaudron J; and Commonwealth v Verwayen at 499-500 per McHugh J. Of course, a statement as to whether a present intention exists may itself be a representation as to an existing fact. However, that is hardly a proper characterisation of Mr Brett's language.
Case: Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Outcome: applied
Next, it might be thought that any representation embedded in that "assurance" involved a promise as to future conduct and not a statement as to an existing state of affairs: Legione v Hately ; Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 398 per Mason CJ and Wilson J, at 415 per Brennan J, at 459 per Gaudron J; and Commonwealth v Verwayen at 499-500 per McHugh J. Of course, a statement as to whether a present intention exists may itself be a representation as to an existing fact. However, that is hardly a proper characterisation of Mr Brett's language. 149 It is well recognised that statements as to future conduct may ground equitable estoppel. Equity will come to the aid of a party, who has acted to his or her detriment on the basis of some assumed state of affairs to which the other party to the transaction has contributed, if it would be unfair or unjust not to do so. There are, however, constraints upon the use of equitable estoppel. The applicant must prove that he or she assumed the existence of a particular legal relationship with the respondent, that the respondent induced that assumption, that the applicant acted or abstained from acting on the faith of that assumption, that the respondent knew of the applicant's action or intended the applicant to act in that way and that the applicant would suffer detriment if the assumption were not fulfilled. See Waltons Stores (Interstate) Ltd v Maher . 150 In effect, in order to establish equitable estoppel, it must be shown that it would be unconscionable for one party to resile from the assumed state of affairs on which the other party has relied. 151 In circumstances where it is uncertain as to the form that any permanent injunction might have taken, it is difficult to see how any assurance given by Mr Brett, expressed, it must be said, casually and in informal terms, can make it unconscionable for the NCC to go about performing its statutory duty. It must be remembered that Hamersley was represented by experienced and competent counsel at the time the assurance was given. It could have sought clarification of Mr Brett's remarks but did not do so. If, at the end of the day, Mr Brett had one thing in mind, and Ms Sloss something else, that is unfortunate. However, the test to be applied when determining whether something said by counsel gave rise to an undertaking must be the same as that to be adopted when construing judicial orders. That test is an objective, and not a subjective, one.
Case: BTR Engineering (Australia) Ltd v Patterson (unreported Supreme Court of New South Wales, Giles J, 1 September 1989)
Outcome: considered
The need for evidence to make out a prima facie case is illustrated by Patterson (1989) 18 NSWLR 319. In that case, Gleeson CJ at 321 referred to the need to establish a prima facie cause of action, and also noted at 322 that Giles J was satisfied, as the primary judge, that there was sufficient evidence to satisfy this first condition for grant of the remedy. Giles J only came to that conclusion after carefully considering the extensive and detailed evidence before him, which provided the necessary basis for his finding: see BTR Engineering (Australia) Ltd v Patterson (unreported Supreme Court of New South Wales, Giles J, 1 September 1989) at 3-5; see also Biscoe P, Mareva and Anton Piller orders: freezing and search orders (LexisNexis, 2005) at [2.60]-[2.61].
Case: SCAT v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 80 (2003) 76 ALD 625
Outcome: applied
of the appellants made two separate and distinct claims that were not considered by the Tribunal. They were claims based on imputed political opinion as a result of the appellants' sister's position, and claims based on the proposition that they would be members of a particular social group, being citizens returning to Sri Lanka after making unsuccessful claims to be refugees in other countries. It is well-established that the Tribunal is obliged to deal with each and every claim made by an applicant for review of a decision refusing to grant a protection visa. Failure to do so amounts to jurisdictional error. As Allsop J (with whom Spender J concurred) said in Htun v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 1802 (2001) 194 ALR 244 at [42] : The requirement to review the decision under s 414 of the [ Migration ] Act requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of the jurisdiction embarked on. See also Merkel J at [8] and SCAT v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 80 (2003) 76 ALD 625 at [26] and [30] per Madgwick and Conti JJ.