mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531 ; (2000) 105 FCR 573
Outcome: referred to
Having reviewed the relevant statutory provisions His Honour concluded that the Court lacked jurisdiction, under the Act, to hear complaints regarding religious and political discrimination. The right to apply to the Court for relief under s 46PO of the Act is, as His Honour held, limited to applications in respect of complaints of 'unlawful discrimination' which are made to the Commission under Part IIB of the Act: see Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531 ; (2000) 105 FCR 573 at 580-582. Part IIB deals with complaints relating to age, disability, racial and sex discrimination. It does not apply to religious or political discrimination. I do not understand Ms Bahonko to have argued to the contrary before Weinberg J. Rather, she submitted to His Honour that the Court should not be bound by technicalities or legal forms and should avoid, if possible, fragmentation of hearings. On this application she did not argue that His Honour had erred in his ruling on the jurisdictional issues. 5 Each of the specific claims made against the various respondents which were based on allegations of race and disability discrimination were rejected because the applicant had failed to advance any evidence which directly, or by necessary inference, supported her claims. 6 Ms Bahonko's claims against the Royal Melbourne Institute of Technology ('RMIT') arose out of its refusal to pass her doctoral thesis. His Honour said (at [85]) that: 'There is not a scintilla of evidence in anything that she has, at anytime, said to warrant the conclusion that the decision of the examiners not to pass her thesis was actuated or influenced by her race. Nor is there any evidence to support her contention that the examiners were motivated by any disability on her part, actual or imputed.' 7 Ms Bahonko's claim against the Victorian Institute of Teaching arose from some administrative confusion relating to her annual registration as a teacher. Ms Bahonko had applied for a waiver of the annual registration fee. It was granted on condition that she did not work and then refused when she made it plain that she wished to work. Later she arranged for the relevant payment to be made and she was registered. At no time did she lose her registration as a teacher. His Honour held that there was 'not a skerrick of evidence' to support Ms Bahonko's assertion that these administrative decisions reflected any discrimination on the part of the Institute. 8 Ms Bahonko's complaint against the Minister for Education was, first, that the Minister was responsible for the Institute's discrimination against her. Given his finding in relation to the Institute, His Honour rejected this part of Ms Bahonko's claim against the Minister. The alternative basis of the applicant's claim against the Minister relied on alleged vicarious liability. Having examined the relevant legislative provisions His Honour concluded that the conduct of the RMIT could not be attributed to the Minister. He concluded that it would, therefore, be futile to extend time 'to enable her to pursue a hopeless case.'
Case: D&eacute;cor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Outcome: applied
The principles to be applied on an application for leave to appeal from an interlocutory decision are well established. They are stated and explained in D&eacute;cor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. The principles were drawn to Ms Bahonko's attention before she commenced her submissions.
Case: Vranic v Commissioner of Taxation (2002) 67 ALD 798
Outcome: followed
The applicant seeks leave to appeal from a judgment of Weinberg J, given on 11 October 2006: see Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325. Leave is necessary because the judgment was interlocutory in nature: see Vranic v Commissioner of Taxation (2002) 67 ALD 798, [2]. The application was brought out of time but no objection was raised to me considering the merits of the application as argued by Ms Bahonko. His Honour had refused an application, by Ms Bahonko, for an enlargement of time within which to file an application and claim pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ('the Act'). The decision which provided the catalyst for Ms Bahonko's application had been made under s 46PH(1)(c) of the Act. The President of the Commission had terminated a complaint made by her against the respondents because he considered that the complaints were 'trivial, vexatious, misconceived or lacking in substance'. By s 46PO(1) of the Act, a complainant, whose complaint is terminated by the President, may make an application to this Court alleging unlawful discrimination by one or more of the respondents to the complaint. Section 46PO(2) requires that any such application must be made within 28 days after the date of issue of the notice that the complaint has been terminated.
Case: McPherson's Ltd v Eaton [2005] NSWCA 435 ; (2005) 65 NSWLR 187
Outcome: cited
The applicant submitted that there is a distinction between the alleged basis of liability respectively of the first and second respondents. For example, it was said that the applicant may be successful against the first, but not the second respondent, in relation to liability for the alleged defects in the manufactured goods, as the duty owed by a manufacturer of goods is not owed by a distributor: in that regard reference was made to McPherson's Ltd v Eaton [2005] NSWCA 435 ; (2005) 65 NSWLR 187. The applicant is correct in drawing that distinction and in the light of the nature of the applicant's causes of action, it is clear that the potential liability of the first respondent to the applicant does not simply reflect the potential liability of the second respondent to the applicant.
Case: Re Wakim; ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511
Outcome: cited
The applicant submitted that the Federal Court has jurisdiction to determine its claim for relief under ss 82 and 87 of the TPA and that the 'non-federal' claim of negligence and relief under the FTA are part of the same controversy between the parties, ' arise out of the same transaction and facts ' or ' a common substratum of facts ', and therefore are within the Federal Court's accrued jurisdiction: the Court was referred to Re Wakim; ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511 at [140] (as per Gummow and Hayne JJ) in support of that proposition.
Case: Traxon Industries Pty Ltd v Emerson Electric Co (2006) 230 ALR 297
Outcome: referred to
As I have foreshadowed, the criteria for the grant of leave to serve an originating process out of the jurisdiction are contained within Order 8 rule 3(2) of the Federal Court Rules . Order 8 in its present form commenced on the 1 August 2006. The form of the repealed Order 8 differs materially from the current Order 8, in that the former Order 8 rule 1, due to the inclusion of sub-rule 1(n), had been construed in a way that required each cause of action pleaded in the statement of claim to be within one or more of the categories listed in Order 8 rule 1. In that regard, the applicant referred the Court to the dicta of French J in Traxon Industries Pty Ltd v Emerson Electric Co (2006) 230 ALR 297 at [63]-[64], where his Honour observed as follows: The question that then arises is whether, given that the causes of action in misleading or deceptive conduct and breach of contract are within O 8 r 1, that is sufficient to satisfy the requirement that the rule "applies to the proceeding" within the meaning of O 8 r 2(2)(b). As to that von Doussa J in Delco Australia said (at [35]): In this Court r 1 (n) makes express provision for a proceeding where a proceeding does not fall squarely within one of the heads enumerated in the earlier paragraphs. In my opinion r 1(n) makes it clear that an originating process to be served out of the Commonwealth must be confined to causes of action that fall wholly within one or several of the heads in r 1. An originating process that includes a claim that does not fall within one or more of the heads is not an originating process that meets the description of r 1, in that it is not one "in" any of the cases described in the rule. It is not a "proceeding to which r 1 applies" so as to meet the requirement of r 2(2)(c)(b). A similar conclusion was expressed by Wilcox J in Tycoon Holding Ltd v Tencor Jetco Inc (1992) 34 FCR 31 at 35. 12 The applicant further submitted that the current Order 8 rule 2 contains no equivalent to the former rule 1(n) and that the plain meaning of the current rule is that 'if the originating process includes any one of the kinds of proceedings listed, regardless of what other relief is sought, the Court has power to order service outside Australia'. I find that submission to be persuasive when read in the light of the text of Order 8 rule 2, namely that ' an originating process may be served on a person in a foreign country in a proceeding which consists of, or includes, any 1 or more of the kinds of proceeding mentioned... '. I also agree with the applicant's proposition that authorities on the construction of the former Order 8 may be of limited guidance relevantly in the present proceedings.
Case: Fubilan Catering Services Ltd v Compass Group (Australia) Pty Ltd [2004] FCA 532
Outcome: referred to
In support of its case for service out of the jurisdiction, the applicant brought the Court's attention to what it categorised as cases analogous to the present proceedings. One of the cases referred to was Fubilan Catering Services Ltd v Compass Group (Australia) Pty Ltd [2004] FCA 532 in which French J granted leave to the applicant to serve originating process on the English parent of an Australian registered subsidiary, based on allegations of misleading or deceptive conduct in the course of contractual negotiations between the applicant and that subsidiary, and of an alleged breach of fiduciary duty. Having regard to that authority, and the analogous authorities of Distillers [1971] NSWLR 83, Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10 ; (2002) 210 CLR 491 and Bray v F Hoffman La Roche [2003] FCAFC 153 ; (2003) 130 FCR 317, and in light of the applicant's satisfaction of the conditions prescribed under Order 8 rule 2, I was satisfied that I should grant the applicant's application for leave to serve the application and statement of claim on the first respondent and to use the diplomatic channel for that purpose. I made that order on the day of the interlocutory hearing.
Case: Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10 ; (2002) 210 CLR 491
Outcome: cited
In support of its case for service out of the jurisdiction, the applicant brought the Court's attention to what it categorised as cases analogous to the present proceedings. One of the cases referred to was Fubilan Catering Services Ltd v Compass Group (Australia) Pty Ltd [2004] FCA 532 in which French J granted leave to the applicant to serve originating process on the English parent of an Australian registered subsidiary, based on allegations of misleading or deceptive conduct in the course of contractual negotiations between the applicant and that subsidiary, and of an alleged breach of fiduciary duty. Having regard to that authority, and the analogous authorities of Distillers [1971] NSWLR 83, Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10 ; (2002) 210 CLR 491 and Bray v F Hoffman La Roche [2003] FCAFC 153 ; (2003) 130 FCR 317, and in light of the applicant's satisfaction of the conditions prescribed under Order 8 rule 2, I was satisfied that I should grant the applicant's application for leave to serve the application and statement of claim on the first respondent and to use the diplomatic channel for that purpose. I made that order on the day of the interlocutory hearing.
Case: Bray v F Hoffman-La Roche Ltd [2003] FCAFC 153 ; (2003) 130 FCR 317
Outcome: cited
In support of its case for service out of the jurisdiction, the applicant brought the Court's attention to what it categorised as cases analogous to the present proceedings. One of the cases referred to was Fubilan Catering Services Ltd v Compass Group (Australia) Pty Ltd [2004] FCA 532 in which French J granted leave to the applicant to serve originating process on the English parent of an Australian registered subsidiary, based on allegations of misleading or deceptive conduct in the course of contractual negotiations between the applicant and that subsidiary, and of an alleged breach of fiduciary duty. Having regard to that authority, and the analogous authorities of Distillers [1971] NSWLR 83, Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10 ; (2002) 210 CLR 491 and Bray v F Hoffman La Roche [2003] FCAFC 153 ; (2003) 130 FCR 317, and in light of the applicant's satisfaction of the conditions prescribed under Order 8 rule 2, I was satisfied that I should grant the applicant's application for leave to serve the application and statement of claim on the first respondent and to use the diplomatic channel for that purpose. I made that order on the day of the interlocutory hearing.
Case: Australian Broadcasting Corporation v Cloran (1984) 4 FCR 151
Outcome: cited
AFP and the DCT accept that a decision to issue the search warrant is reviewable under the ADJR Act: see eg Australian Broadcasting Corporation v Cloran (1984) 4 FCR 151 ; Ferris v Commonwealth Director of Quarantine (1991) 29 FCR 147 ; Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1994) 94 ATC 4054 ; Salerno v National Crime Authority (1997) 75 FCR 133 ; Hart v Commissioner of Australian Federal Police [2002] FCAFC 392 ; (2002) 124 FCR 384.
Case: Ferris v Commonwealth Director of Quarantine (1991) 29 FCR 147
Outcome: cited
AFP and the DCT accept that a decision to issue the search warrant is reviewable under the ADJR Act: see eg Australian Broadcasting Corporation v Cloran (1984) 4 FCR 151 ; Ferris v Commonwealth Director of Quarantine (1991) 29 FCR 147 ; Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1994) 94 ATC 4054 ; Salerno v National Crime Authority (1997) 75 FCR 133 ; Hart v Commissioner of Australian Federal Police [2002] FCAFC 392 ; (2002) 124 FCR 384.
Case: Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1994) 94 ATC 4054
Outcome: cited
AFP and the DCT accept that a decision to issue the search warrant is reviewable under the ADJR Act: see eg Australian Broadcasting Corporation v Cloran (1984) 4 FCR 151 ; Ferris v Commonwealth Director of Quarantine (1991) 29 FCR 147 ; Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1994) 94 ATC 4054 ; Salerno v National Crime Authority (1997) 75 FCR 133 ; Hart v Commissioner of Australian Federal Police [2002] FCAFC 392 ; (2002) 124 FCR 384.
Case: Salerno v National Crime Authority (1997) 75 FCR 133
Outcome: cited
AFP and the DCT accept that a decision to issue the search warrant is reviewable under the ADJR Act: see eg Australian Broadcasting Corporation v Cloran (1984) 4 FCR 151 ; Ferris v Commonwealth Director of Quarantine (1991) 29 FCR 147 ; Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1994) 94 ATC 4054 ; Salerno v National Crime Authority (1997) 75 FCR 133 ; Hart v Commissioner of Australian Federal Police [2002] FCAFC 392 ; (2002) 124 FCR 384.
Case: Hart v Commissioner of Australian Federal Police [2002] FCAFC 392 ; (2002) 124 FCR 384
Outcome: cited
AFP and the DCT accept that a decision to issue the search warrant is reviewable under the ADJR Act: see eg Australian Broadcasting Corporation v Cloran (1984) 4 FCR 151 ; Ferris v Commonwealth Director of Quarantine (1991) 29 FCR 147 ; Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1994) 94 ATC 4054 ; Salerno v National Crime Authority (1997) 75 FCR 133 ; Hart v Commissioner of Australian Federal Police [2002] FCAFC 392 ; (2002) 124 FCR 384.
Case: Bank of Western Australia Ltd v Federal Commissioner of Taxation (1994) 55 FCR 233
Outcome: followed
Wilhelm v McKay [2007] FCA 367 , Greenwood J refused an application to join a party to an application for an order to review certain decisions relating to the application for a search warrant under the Crimes Act . The party sought to be joined was the person who decided to apply for the search warrant. The circumstances, at least at that level of generality, appear to be the same as those applicable to the decision of the fifth "respondent" (and of the AFP and the DCT, as alleged in paras 9.8 and 9.9 of the amended application). His Honour decided that the decision to swear the affidavit in support of the application for the search warrant and to apply for it were not decisions of an administrative character made under an enactment: see s 3(1) of the ADJR Act. Counsel for Mr Nicholls did contend that the decision was plainly wrong and should not be followed: see eg Bank of Western Australia Ltd v Federal Commissioner of Taxation (1994) 55 FCR 233 at 255. I respectively adopt his Honour's reasons at [60] to [70]. I shall not repeat them.
Case: Williams v Keelty [2001] FCA 1301 ; (2001) 111 FCR 175
Outcome: cited
there any point of distinction? In Wilhelm v McKay [2007] FCA 367 , one contention was that the applicant for the search warrant did not disclose certain information to the Magistrate. In that case, the non-disclosure was of information which the applicant claimed should have been disclosed. At [78] to [80], Greenwood J reviewed certain authorities touching upon the validity of search warrants procured through fraud or the absence of good faith: see eg Williams v Keelty [2001] FCA 1301 ; (2001) 111 FCR 175 at 225 [238] ; Lego Australia Pty Ltd v Paraggio [1994] FCA 1286 ; (1994) 52 FCR 542. He accepted at [80] that "the fundament of the duty is a duty to act in good faith and avoid making half-truths giving rise to a misrepresentation". His Honour's focus then was upon whether the applicants in that case had demonstrated an arguable case that in swearing the affidavit in support of the application for, and in applying for, the search warrant the person seeking the search warrant had misrepresented material facts going to the exercise of the power by the Magistrate to issue the warrant.
Case: Lego Australia Pty Ltd v Paraggio [1994] FCA 1286 ; (1994) 52 FCR 542
Outcome: cited
there any point of distinction? In Wilhelm v McKay [2007] FCA 367 , one contention was that the applicant for the search warrant did not disclose certain information to the Magistrate. In that case, the non-disclosure was of information which the applicant claimed should have been disclosed. At [78] to [80], Greenwood J reviewed certain authorities touching upon the validity of search warrants procured through fraud or the absence of good faith: see eg Williams v Keelty [2001] FCA 1301 ; (2001) 111 FCR 175 at 225 [238] ; Lego Australia Pty Ltd v Paraggio [1994] FCA 1286 ; (1994) 52 FCR 542. He accepted at [80] that "the fundament of the duty is a duty to act in good faith and avoid making half-truths giving rise to a misrepresentation". His Honour's focus then was upon whether the applicants in that case had demonstrated an arguable case that in swearing the affidavit in support of the application for, and in applying for, the search warrant the person seeking the search warrant had misrepresented material facts going to the exercise of the power by the Magistrate to issue the warrant.
Case: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321
Outcome: referred to
Nicholls has not identified any decision of an administrative character made by an officer of the AFP or the DCT in relation to the execution of the search warrant, nor presented an argument that any such decision was made under an enactment, so as to attract the application of the ADJR Act: see eg Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 341-3 and Jilani v Wilhelm [2005] FCAFC 269 ; (2005) 148 FCR 255 at 272-3, [102] - [107] .
Case: Jilani v Wilhelm [2005] FCAFC 269 ; (2005) 148 FCR 255
Outcome: referred to
Nicholls has not identified any decision of an administrative character made by an officer of the AFP or the DCT in relation to the execution of the search warrant, nor presented an argument that any such decision was made under an enactment, so as to attract the application of the ADJR Act: see eg Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 341-3 and Jilani v Wilhelm [2005] FCAFC 269 ; (2005) 148 FCR 255 at 272-3, [102] - [107] .
Case: Lenijamar Pty Ltd v AGC (Advances) Ltd [1990] FCA 520 ; (1990) 27 FCR 388
Outcome: referred to
question is whether Mr Nicholls' serial non-compliance with orders of the Court, in the light of his further contentions and oral submissions, has demonstrated an inability to comply with orders of the Court, or an unpreparedness to present his claim for hearing: see eg Lenijamar Pty Ltd v AGC (Advances) Ltd [1990] FCA 520 ; (1990) 27 FCR 388 at 396. In my view, in addition to the refusal to entertain grounds 9.1 and 9.4-9.9 of the amended application because I uphold the Notice of Objection to Competency in respect of them, those grounds should be dismissed by reason of the persistent default of Mr Nicholls. He has had ample time to clearly identify, in respect of those grounds, the decisions which he attacks and to provide proper particulars of the reasons for doing so. He has still not done so. His Outlines of Contentions and his oral submissions through counsel have in reality exposed that his attack upon the decision to issue the search warrant and decisions surrounding it are of quite narrow compass. The attack is confined to the alleged use (and alleged misuse) of certain information to support the application for the search warrant which had been compulsorily acquired from Mr Nicholls. That does not generally impinge upon the decision to apply for the search warrant, or upon decisions as to when and how the search warrant was executed. The material indicates, in my view, that Mr Nicholls has demonstrated an inability to comply with orders of the Court in respect of those grounds of the amended application. Otherwise, over the space of six months, he would have been able to properly specify and detail the foundation for those claims.