mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Bazos v Doman [2001] NSWCA 347
Outcome: followed
No estoppel arises unless the new claim relied on was so relevant to the subject matter of the first proceeding that it would have been unreasonable not to rely on it in that proceeding: Anshun at 602-603. However, the concept of relevance is more helpful when considering the failure to raise a defence than a failure to advance a claim: see Gibbs v Kinna at [24] and Egglishaw at [28]. Further, the mere fact that each proceeding is closely related is an insufficient basis to invoke the principle, given that it is concerned with substance and not form and technicalities: Bazos v Doman [2001] NSWCA 347 at [44] per Stein JA (with whom Priestly JA and Beazley JA agreed).
Case: Custombuilt Homes Pty Ltd v Dowell [2005] WASCA 221
Outcome: followed
Unless the alleged unreasonableness is manifest (such as the likelihood of plainly inconsistent judgments) considerable caution should be exercised in summarily dismissing the subsequent application at an early stage of the proceeding when it may be more appropriate for the issue to be considered upon "meticulous examination [of] precisely pleaded defences": Custombuilt Homes Pty Ltd v Dowell [2005] WASCA 221 at [9] per Wheeler JA (with whom Steytler P agreed). 30 The alleged unreasonableness is not manifest. No doubt it would have been more convenient for the issues raised in the current proceeding to have been advanced in New South Wales, but that is not the question. It is not appropriate when considering the Anshun principle to say what a party could reasonably have done. The proper question is, was it unreasonable to do as that party did? In any event there is much force in the view expressed by Wheeler JA in Custombuilt Homes that one should exercise considerable caution in summarily dismissing an application before the issues are crystalised after the filing of a defence. To this one might add "and/or contentions of fact and law". A judgment dismissing the matter before the Court is interlocutory in nature. It would still be open to Kooee to advance its submissions based on the Anshun principle at the trial of the proceeding when the issues will be more clearly defined.
Case: Egglishaw v Australian Crime Commission (2007) 164 CLR 224
Outcome: applied
Before embarking on an examination of the relevant facts which are said to give rise to the operation of the Anshun principle, it is important to bear in mind the parameters of the principle guided by Anshun itself and subsequent judgments of the Full Court of this Court and various State Courts of Appeal. I now turn to those matters. I do so mindful of the fact that whether the principle applies depends on the particular circumstances involved: see Egglishaw v Australian Crime Commission (2007) 164 CLR 224 and Gibbs v Kinna (1999) 2 VR 19 at [23] per Kenny JA (with whom Phillips JA agreed). 6 No estoppel arises unless the new claim relied on was so relevant to the subject matter of the first proceeding that it would have been unreasonable not to rely on it in that proceeding: Anshun at 602-603. However, the concept of relevance is more helpful when considering the failure to raise a defence than a failure to advance a claim: see Gibbs v Kinna at [24] and Egglishaw at [28]. Further, the mere fact that each proceeding is closely related is an insufficient basis to invoke the principle, given that it is concerned with substance and not form and technicalities: Bazos v Doman [2001] NSWCA 347 at [44] per Stein JA (with whom Priestly JA and Beazley JA agreed). 7 Other than in special circumstances, the principle applies if it was unreasonable for a claimant to have refrained from raising the new claim in the earlier proceeding: Anshun at 602; Egglishaw at [21]. The issue is not whether it would have been reasonable to advance the claim beforehand because it was possible to do so but whether it was unreasonable to defer reliance: Egglishaw at [24] and [34] and Gibbs v Kinna (per Ormiston JA) at [2]. 9 Another factor indicative of unreasonableness is whether any judgment or order made in the later proceeding would conflict with any judgment or order made in the earlier proceeding: Anshun at 604; Gibbs v Kinna at [25] and Egglishaw at [32]. Putting to one side this factor and the two factors examined in the preceding paragraphs, there still remains a question whether the failure to raise the claim in the earlier proceeding was unreasonable: Egglishaw at [37]. 10 In considering the issue of unreasonableness one must consider all the facts of the case, including the nature of the proceeding, the pleadings, the length and complexity of the foreshadowed trial and the explanation, if any, for the failure to raise the claim in the previous proceeding: Egglishaw at [33] and Gibbs v Kinna at [28].
Case: Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) (New York Deli case) [1988] FCA 40 ; (1988) 39 FCR 546
Outcome: referred to
Kooee points to Primus' application for a declaration in the proceeding in this Court for a declaration that the release provisions of the Separation Deed are void and of no affect against it with respect to the matters the subject of this proceeding. Primus says that in New South Wales it relied on the release provisions to defeat an argument by Kooee that Primus had been negligent in the provision of information required under the Separation Deed. Primus says that, in this Court, it wishes to allege that the release provisions are ineffectual to protect Kooee from allegations that it misled and deceived Primus, and made misrepresentations which led to Primus entering into the Separation Deed. It relies on the principle referred to in Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) (New York Deli case) [1988] FCA 40 ; (1988) 39 FCR 546 at 560-561 to the effect that exclusion clauses can't operate to defeat claims made under s 52 of the Trade Practices Act . Primus contends that a ruling to that effect would not lead to a judgment inconsistent with that in New South Wales which concerned an examination of entitlements under the Separation Deed itself and not any claims based on a statutory remedy or allied contractual claims. 22 The application and statement of claim in the current proceeding came to Kooee's attention in January 2008. In a letter to Primus' solicitors dated 30 January 2008, the solicitors for Kooee said that the Federal Court proceeding came as a surprise to Kooee as it arose out of the same series of transactions that were the subject of the New South Wales case. The letter asked for the reasons why the subject matter of the "Victorian proceeding" was not raised in the "NSW proceedings". In a reply letter, dated 15 February 2008, the solicitors for Primus took issue with the suggestion that the current proceeding arose out of the same series of transactions as in the New South Wales litigation. After identifying the different nature of the two sets of proceedings, the letter said: The quantification of loss in the current proceedings will have regard to the amount of the debt recovered (and not recovered) in the NSW proceedings, but there is no question of double recovery. 23 The letter also stated, no doubt on instructions, that: Our client [Primus] was unaware of the potential availability of the causes of action which found the present proceedings at the time the NSW proceedings were instituted. Having sought and received legal advice as to its rights, our client determined to initiate the current proceedings promptly.
Case: Ling v Commonwealth of Australia [1996] FCA 1646 ; (1996) 68 FCR 180
Outcome: applied
The invocation of the Anshun principle is a serious step and a power which should not be exercised without a scrupulous examination of all the circumstances. It is to be applied only in the clearest of cases as it ends a litigant's right to have the merits of a claim adjudicated and may result in a serious injustice if applied too readily. To do otherwise would be to hamper free access to the courts without careful consideration of the consequences: see Ling v Commonwealth [1996] FCA 1646 ; (1996) 68 FCR 180 at 182 per Wilcox J and Gibbs v Kinna at [33].
Case: Primus Telecommunications Pty Ltd v Kooee Communications Limited [2007] NSWSC 91
Outcome: referred to
There is a further consideration in support of the view that Primus did not act unreasonably in not raising the issues in the current application in the New South Wales Supreme Court proceeding. That reason would defeat the current motion even if the view that the facts are not substantially the same is in error. The reason is that no judgment or order can be made in the current proceeding which will conflict with any judgment or order made in New South Wales. The judgments in New South Wales give effect to the Separation Deed by interpreting the rights of the parties under it. Any judgment in this proceeding will focus on the conduct of Kooee in the six month or so period leading up to the termination of the VSPA to examine whether Kooee engaged in conduct of the kind which caused compensable damage to Primus. As Einstein J said at [10] in Primus Telecommunications Pty Ltd v Kooee Communications Limited [2007] NSWSC 91: The VSPA received only minimal attention during the hearing. It is likely sufficient for present purposes to do no more than to set out the recitals and some detail from the schedules. 29 An examination of the entirety of those reasons gives no cause for concern of any likely embarrassment in the sense that this Court will be required to consider taking a contrary view on any issue to that taken by Einstein J or the Court of Appeal. On this ground alone the motion must be dismissed. It is not unreasonable to defer the bringing of a claim which could have been brought in an earlier proceeding if there is no likelihood of inconsistent orders or judgments. In this context the submissions of Primus on the deed of release issue referred to at [21] above are persuasive.
Case: R &amp; J Lyons Family Settlement Pty Ltd v 155 Macquarie Street Pty Ltd [2008] NSWSC 232
Outcome: referred to
A finding of relevant unreasonableness is not to be made lightly. It is a severe test different from a test of severe inconvenience. The starting point should be free access to the courts: R &amp; J Lyons Family Settlement Pty Ltd v 155 Macquarie Street Pty Ltd [2008] NSWSC 232 per Bryson JA. 13 Primus, from 2000 until 2005, supplied telecommunications carriage services to Kooee for re-sale to customers of Kooee. Primus carried out functions in Kooee's name such as billing, revenue collection, call centre support and customer relations. A written agreement known as the Virtual Service Provider Agreement or the VSPA regulated the commercial relationship between Primus and Kooee. Amongst other things, the VSPA provided for the distribution of revenue collected by Primus between Primus and Kooee resulting from the re-sale of telecommunications services to Kooee's customers. The parties entered into the VSPA in July 2000. A "letter agreement" dated 14 April 2003 extended the operations of the VSPA until 1 August 2006. 14 During the operation of the VSPA, Primus and Kooee had a difference of opinion about the operation of the provisions of the VSPA which dealt with the distribution of income between Primus and Kooee and, in particular, the amounts owing to Kooee by Primus out of the revenue collected by Primus.
Case: Walton v Gardiner [1993] HCA 77 ; (1993) 177 CLR 378
Outcome: distinguished
Kooee also submitted that the current proceeding is an abuse of process. It based that submission on the judgment of the High Court in Walton v Gardiner [1993] HCA 77 ; (1993) 177 CLR 378 where at 392-393 Mason CJ, Deane and Dawson JJ held that it would be an abuse of process to allow a party to litigate afresh a matter which has already been disposed of in earlier proceeding. That is because it would be manifestly unfair to do so. No such abuse of process arises here. The matter sought to be now litigated is entirely different in character to that disposed of in the earlier proceeding. The earlier litigation resolved a dispute about the meaning of the Separation Deed. This proceeding concerns a dispute about the circumstances which led to its making. 33 The Court will order as follows: 1. The respondent's motion of 3 March 2008 is dismissed. 2. The respondent pay the applicant's costs of and associated with the motion. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 10 July 2008 Counsel for the Applicant: Mr R Garratt QC with Mr D Priestley Solicitor for the Applicant: Browne &amp; Co Counsel for the Respondent: Mr J Duncan with Mr D Sulan Solicitor for the Respondent: Aleco Vrisakis Date of Hearing: 27 May 2008 Date of Judgment: 10 July 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1027.html
Case: Wong v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCA 422 ; (2004) 146 FCR 1
Outcome: followed
In considering the issue of unreasonableness, it is first necessary to determine whether the subject matter of the subsequent claim could have been raised in the earlier proceeding: Anshun at 598; Gibbs v Kinna at [23] and Wong v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCA 422 ; (2004) 146 FCR 1 at [37] , per Lindgren J. Next, to invoke the principle, it must be shown that the same or substantially the same facts will arise for consideration in the new proceeding as arose in the earlier proceeding: Gibbs v Kinna at [23]. These two factors were described by Kenny JA in Gibbs v Kinna at [23] as "...necessary but not sufficient considerations for the application of the principle...".
Case: Attorney-General (NT) v Ward [2003] FCAFC 283 ; (2003) 134 FCR 16
Outcome: discussed
The Validation of Titles and Actions Act 1994 (NT) was amended by the Validation of Titles and Actions Amendment Act 1998 (NT) (the ' Amendment Act (NT) ') to include provisions to the same effect as ss 23D and 23DA of the NTA : see now Validation Act , ss 9JA, 11. The Amendment Act ( NT ) came into force on 1 October 1998. The enactment of these provisions allows the Territory to legislate to the same effect as s 23C of the NTA in respect of previous exclusive possession acts attributable to the Territory: NTA , s 23E. 94 The Validation Act adopts the meaning of 'previous exclusive possession act' given in s 23B of the NTA , 'which meaning in so far as it relates to the Territory is set out in Schedules 1 and 2 to the [ Validation Act ]': s 3A(1). In the event of any inconsistency between the Schedules to the Validation Act and s 23B of the NTA, the latter prevails: s 3A(2). 95 Schedule 1 to the Validation Act provides that an act is a 'previous exclusive possession act' if 'it is valid (including because of Division 2 ... of Part 2 of the Commonwealth Act' ). This definition is identical to s 23B(2)(a) of the NTA, except for the addition of the bolded words. It will be seen that Schedule 1 does not refer to an act which is valid because of the operation of s 4 of the Validation Act . According to the applicants, it follows that a past act which was invalid because of the existence of native title, but was validated by s 4 of the Validation Act , is not a previous exclusive possession act. The respondents take a different view of the effect of the definition in Schedule 1 (see section 26.1.1, below) . 548 The Commonwealth recognises that if the right to protect sites is merely intended to encompass a right to control the ceremonial activities of other Aboriginal people, Attorney-General (NT) v Ward [2003] FCAFC 283 ; (2003) 134 FCR 16 (' Ward (FC) (No 2) ') supports the proposition that the right could survive the grant of a pastoral lease. Mr Hughston formally submitted that, in this respect, Ward (FC)(No 2) was incorrectly decided. 549 Otherwise the Commonwealth appears to accept that the non-exclusive rights claimed by the applicants, if they existed as native title rights and interests, were not extinguished by the grant of the pastoral leases.
Case: Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77
Outcome: cited
However, a Full Court of this Court has held that the transitional provisions of the NTAA 1998 do not require a claim made before the commencement of that Act to comply with the new authorisation requirements, at least in the absence of a material change in the composition of the compensation claim group: Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77, at [84], per Stone J; De Rose v South Australia [2003] FCAFC 286 ; (2003) 133 FCR 325 (' De Rose (FC) (No 1) '), at [26]-[28], per curiam . The respondents do not suggest that the Application changed the compensation claim group in a manner that required the applicants to comply with s 61(1) and s 61(3) of the NTA (as amended). Nor has any suggestion been made that the applicants' attempt in final submissions to further amend the Points of Claim requires compliance with s 61(1) and s 00061(3) of the NTA. Accordingly, no issue arises concerning authorisation of the compensation claim.
Case: Breskvar v Wall [1971] HCA 70 ; (1971) 126 CLR 376
Outcome: cited
Dr Perry relied on authorities that establish that a registered proprietor under the Real Property Act of an estate or interest in land acquires an indefeasible title to that estate or interest notwithstanding that the dealing pursuant to which registration was obtained was void: Breskvar v Wall [1971] HCA 70 ; (1971) 126 CLR 376 at 385-386, per Barwick CJ; Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59 ; (2004) 220 CLR 472, at [52], per McHugh ACJ, Hayne and Heydon JJ. Dr Perry submitted that the fact the grant of the fee simple estate or lease (in the case of CL 256) was invalid by reason of the operation of s 10(1) of the RD Act does not prevent the grantee obtaining an indefeasible title upon the estate or interest being brought under the Real Property Act , just as a person registering a forged transfer obtains an indefeasible title to the registered estate provided he or she acts without fraud: Frazer v Walker [1967] AC 589; Breskvar v Wall , at 385-386, per Barwick CJ.
Case: Bulstrode v Trimble [1970] VR 840
Outcome: cited
A failure to cross-examine a witness on contentious issues may have at least two consequences: Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, at 587, per Samuels JA (with whom Meagher JA agreed). First, the so-called rule in Browne v Dunn (1893) 6 R 67, which reflects a principle of procedural fairness, may prevent the cross-examining party asking the court not to accept the evidence of the witness on that particular issue: J D Heydon, Cross on Evidence (6 th Aust ed, 2000), at [17460]. Secondly, the failure to cross-examine may provide a cogent reason for accepting the witness's evidence, particularly if it is not contradicted: Precision Plastics Pty Ltd v Demir [1975] HCA 27 ; (1975) 132 CLR 362, at 371. However, there is no rule that evidence which is unchallenged in cross-examination must be accepted by the trier of fact, especially if it appears to be inherently incredible or is contradicted by other credible evidence: Bulstrode v Trimble [1970] VR 840, at 849, per Newton J; Ellis v Wallsend District Hospital , at 586-588, per Samuels JA; Elkington v Shell Australia Ltd (1993) 32 NSWLR 11, at 17, per Kirby ACJ.
Case: Capital Duplicators Pty Ltd v Australian Capital Territory [1992] HCA 51 ; (1992) 177 CLR 248
Outcome: cited
The Self-Government Act was enacted pursuant to s 122 of the Constitution , which empowers the Commonwealth Parliament to 'make laws for the government of any territory ...': Capital Duplicators Pty Ltd v Australian Capital Territory [1992] HCA 51 ; (1992) 177 CLR 248, at 265-266, per Mason CJ, Dawson and McHugh JJ. The Self-Government Act came into force on 1 July 1978, as did the Self-Government Regulations. 708 Section 5 of the Self-Government Act established the Northern Territory of Australia 'as a body politic under the Crown'. Subject to the Self-Government Act , the Legislative Assembly has power with the assent of the Administrator or the Governor-General, to make laws for the peace, order and good government of the Territory: ss 6, 13. 709 Section 57(1) of the Self-Government Act gives all laws of the Territory in force on 1 July 1978: 'the same operation as they would have had if [the Self-Government] Act had not been enacted, subject to alterations or repeal by or under an enactment'.
Case: Clissold v Perry [1904] HCA 12 ; (1904) 1 CLR 363
Outcome: cited
In one of its earliest decisions, the High Court applied a longstanding rule of construction that statutes 'are not to be construed as interfering with vested interests unless that intention is manifest': Clissold v Perry [1904] HCA 12 ; (1904) 1 CLR 363, at 373, per Griffith CJ. In that case, the High Court held that a person who had a mere possessory interest in land, having entered as a trespasser, nonetheless had a statutory right to compensation upon the land being resumed. The principle stated in Clissold v Perry has subsequently been applied in many cases. As Professors Pearce and Geddes point out (S tatutory Interpretation in Australia (5 th ed, 2001), at [515]-[517]), the principle has two aspects. Legislation is presumed not to authorise the acquisition of property rights without adequate compensation; and legislation is presumed not to interfere with vested property rights.
Case: Commonwealth v Yarmirr [2001] HCA 56 ; (2001) 208 CLR 1 
Outcome: followed
Native title is recognised and protected in accordance with the NTA : s 10. Section 11, which was described in Commonwealth v Yarmirr [2001] HCA 56 ; (2001) 208 CLR 1 (' Yarmirr (HC) ') , at [7], as perhaps the most important of the NTA 's protection provisions, provides that: 'native title is not able to be extinguished contrary to this Act.'
Case: Daniel v Western Australia [2003] FCA 666
Outcome: distinguished
The Commonwealth cites several first instance decisions as authorities to the contrary of Ward (FC) (No 2) . Leaving aside the fact that I am bound by Ward (FC) (No 2), each of these cases is distinguishable. In Lardil Peoples v Queensland [2004] FCA 298 , Cooper J was concerned with native title rights over certain waters which rights were expressed to be good against all the world other than people exercising public rights of fishing, navigation or innocent passage, or other rights lawfully conferred by statute. Cooper J, with respect, correctly considered that a formulation in these terms amounted to an attempt to control access to and use of the land in a manner that was inconsistent with the reasoning in Ward (HC) : see at [188]. Lardil Peoples v Queensland did not involve any native title right of the kind dealt with either in para 5(e) of the determination in Ward (FC) (No 2) or in the determination made in De Rose (FC) (No 2). Similarly, the passages cited from Daniel v Western Australia [2003] FCA 666 , at [134]-[136], and Neowarra v Western Australia [2003] FCA 1402 , at [475], do not directly bear on a native title right to make decisions about the use and enjoyment of land by Aboriginal peoples bound by traditional laws and customs.
Case: De Rose v South Australia [2002] FCA 1342
Outcome: discussed
Dr Willis has given evidence as an expert anthropologist in other proceedings, including De Rose v South Australia [2002] FCA 1342 (' De Rose (FCA) '). Initially, the applicants indicated that they wished to rely on Dr Willis' report as that of an expert containing the opinions of an anthropologist with specialist knowledge of the people of the eastern Western Desert. Ultimately, however, the applicants did not persist with that approach and tendered his statement simply as an account of his own observations and experiences as an initiated Pitjantjatjara man. This approach had the necessary consequence that some opinions expressed by Dr Willis were not admitted into evidence, since he was not put forward as a person having specialised knowledge based on his training, study or experience for the purposes of s 79 of the Evidence Act .