mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Johnston v Cameron [2002] FCAFC 251
Outcome: cited
Previous decisions of this Court indicate that issues that are relevant as to whether a decision is attended by sufficient doubt to warrant reconsideration include the following: - a decision may be of "sufficient doubt" where a contrary position is reasonably arguable (Tamberlin J in Johnston v Cameron [2002] FCAFC 251 at [65] ) or the view taken by the trial judge is debatable ( Davidson v Fesl [2005] FCAFC 183 at [22] ) - leave to appeal is not necessarily granted simply because the reviewing court does not agree with every aspect of the trial judge's reasons ( Energex Limited v Alstom Australia Limited [2005] FCAFC 215 at [65] ) and - leave is more readily granted where substantive issues, rather than points of practice, are at issue ( Rivera v United States of America [2004] FCAFC 154 at [13] , M111 of 2003 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 97 at [8] ).
Case: M111 of 2003 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 97
Outcome: cited
Previous decisions of this Court indicate that issues that are relevant as to whether a decision is attended by sufficient doubt to warrant reconsideration include the following: - a decision may be of "sufficient doubt" where a contrary position is reasonably arguable (Tamberlin J in Johnston v Cameron [2002] FCAFC 251 at [65] ) or the view taken by the trial judge is debatable ( Davidson v Fesl [2005] FCAFC 183 at [22] ) - leave to appeal is not necessarily granted simply because the reviewing court does not agree with every aspect of the trial judge's reasons ( Energex Limited v Alstom Australia Limited [2005] FCAFC 215 at [65] ) and - leave is more readily granted where substantive issues, rather than points of practice, are at issue ( Rivera v United States of America [2004] FCAFC 154 at [13] , M111 of 2003 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 97 at [8] ).
Case: Rivera v United States of America [2004] FCAFC 154
Outcome: cited
Previous decisions of this Court indicate that issues that are relevant as to whether a decision is attended by sufficient doubt to warrant reconsideration include the following: - a decision may be of "sufficient doubt" where a contrary position is reasonably arguable (Tamberlin J in Johnston v Cameron [2002] FCAFC 251 at [65] ) or the view taken by the trial judge is debatable ( Davidson v Fesl [2005] FCAFC 183 at [22] ) - leave to appeal is not necessarily granted simply because the reviewing court does not agree with every aspect of the trial judge's reasons ( Energex Limited v Alstom Australia Limited [2005] FCAFC 215 at [65] ) and - leave is more readily granted where substantive issues, rather than points of practice, are at issue ( Rivera v United States of America [2004] FCAFC 154 at [13] , M111 of 2003 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 97 at [8] ).
Case: Shaw v Holland (1900) 2 Ch 305
Outcome: cited
Although as a general rule proceedings under a judgment should not be stayed pending an appeal ( Shaw v Holland (1900) 2 Ch 305), it is equally clear that the Court ought to see that the appeal, if successful, is not nugatory ( Wilson v Church (No 2) (1879) 12 Ch D 454). In considering whether to grant a stay, it is also important that the Court take account of the risk of prejudice resulting from a stay to the other party ( The Marconi's Wireless Telegraph Company Ltd v The Commonwealth (No 3) [1913] HCA 23 ; (1913) 16 CLR 384, ACCC v BMW (Australia) Ltd (No 2) [2003] FCA 864). In this case in the absence of a stay, an appeal from his Honour's judgment would be nugatory. Further, there is no evidence before me that a stay of his Honour's orders would prejudice the respondents. THE COURT ORDERS THAT: 1. Leave to appeal against the judgment of his Honour in Welsh v Digilin Pty Ltd [2007] FCA 2064 be granted pursuant to section 24(1A) Federal Court of Australia Act 1976 (Cth) and Order 52 rule 10 Federal Court Rules . 2. The judgment of his Honour in Welsh v Digilin Pty Ltd [2007] FCA 2064 be stayed pursuant to Order 52 rule 17 Federal Court Rules . 3. Costs be reserved. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 18 February 2008 Counsel for the Applicant: C Heyworth-Smith Solicitor for the Applicant: Efron &amp; Associates Counsel for the Respondent: M Steele Solicitor for the Respondent: ClarkeKann Date of Hearing: 7 February 2008 Date of Judgment: 18 February 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/78.html
Case: Southern Cross Exploration NL v Fire &amp; All Risks Insurance Co Ltd (No 2) (1990) 21 NSWLR 200
Outcome: distinguished
Mr Steele for the respondents submitted that his Honour's orders would not result in substantial injustice because the orders did not finally dispose of the matter, and relied on Southern Cross Exploration NL v Fire &amp; All Risks Insurance Co Ltd (No 2) (1990) 21 NSWLR 200. I am not persuaded that this is sufficient reason for finding that substantial injustice would not occur if leave to appeal were refused. Southern Cross Exploration NL v Fire &amp; All Risks Insurance Co Ltd (No 2) (1990) 21 NSWLR 200 is authority for the propositions that, inter alia : &#8226; an appeal from interlocutory orders of a judge, filed without leave, should be dismissed as incompetent, &#8226; whether an order is characterised as "final" or "interlocutory" depends on the legal, not the practical, effect of the order, and &#8226; a declaration that an action be dismissed with costs by operation of a self-executing order does not finally dispose of the rights of the parties in the action, and is interlocutory rather than final. 15 In these proceedings there is no dispute that the orders of his Honour were interlocutory orders, do not finally dispose of the rights of the parties, and require leave of the Court within terms of s 24(1A) Federal Court of Australia Act 1976 (Cth) and O 52 r 10 Federal Court Rules for an appeal to lie. I do not read Southern Cross Exploration NL as suggesting that there is no possibility of injustice to one party arising within the meaning of the principles articulated in D&eacute;cor Corporation v Dart Industries Inc (1991) 33 FCR 397 and Telstra Corporation Ltd v AAPT Ltd (1997) 38 IPR 539, simply because the orders do not finally dispose of the rights of the parties in the action. However in any event, although the orders as made require the applicant to pay an amount of costs to the respondents by 29 February 2008, and it is only if the applicant fails to comply with that order that any further consequence will flow, the reality is that the orders of his Honour have a finalising effect on the substantive proceedings. If his Honour's decision is wrong, substantial injustice to the applicant will follow, because the applicant will have lost his right to a hearing.
Case: Telstra Corporation Ltd v AAPT Ltd (1997) 38 IPR 539
Outcome: cited
In the case before me there is no dispute that the decision of his Honour is an interlocutory decision, and that leave to appeal is required pursuant to s 24(1A) Federal Court of Australia Act 1976 (Cth) and O 52 r 10 Federal Court Rules . The principles to be applied by the Court when considering whether leave to appeal should be granted in such circumstances are well settled, and can be summarised as: &#8226; whether the judgment was attended by sufficient doubt to warrant it being reconsidered, and &#8226; whether substantial injustice would result if leave were refused, supposing the decision to be wrong. ( D&eacute;cor Corporation v Dart Industries Inc (1991) 33 FCR 397, Telstra Corporation Ltd v AAPT Ltd (1997) 38 IPR 539) 15 In these proceedings there is no dispute that the orders of his Honour were interlocutory orders, do not finally dispose of the rights of the parties, and require leave of the Court within terms of s 24(1A) Federal Court of Australia Act 1976 (Cth) and O 52 r 10 Federal Court Rules for an appeal to lie. I do not read Southern Cross Exploration NL as suggesting that there is no possibility of injustice to one party arising within the meaning of the principles articulated in D&eacute;cor Corporation v Dart Industries Inc (1991) 33 FCR 397 and Telstra Corporation Ltd v AAPT Ltd (1997) 38 IPR 539, simply because the orders do not finally dispose of the rights of the parties in the action. However in any event, although the orders as made require the applicant to pay an amount of costs to the respondents by 29 February 2008, and it is only if the applicant fails to comply with that order that any further consequence will flow, the reality is that the orders of his Honour have a finalising effect on the substantive proceedings. If his Honour's decision is wrong, substantial injustice to the applicant will follow, because the applicant will have lost his right to a hearing.
Case: The Marconi's Wireless Telegraph Company Ltd v The Commonwealth (No 3) [1913] HCA 23 ; (1913) 16 CLR 384
Outcome: cited
Although as a general rule proceedings under a judgment should not be stayed pending an appeal ( Shaw v Holland (1900) 2 Ch 305), it is equally clear that the Court ought to see that the appeal, if successful, is not nugatory ( Wilson v Church (No 2) (1879) 12 Ch D 454). In considering whether to grant a stay, it is also important that the Court take account of the risk of prejudice resulting from a stay to the other party ( The Marconi's Wireless Telegraph Company Ltd v The Commonwealth (No 3) [1913] HCA 23 ; (1913) 16 CLR 384, ACCC v BMW (Australia) Ltd (No 2) [2003] FCA 864). In this case in the absence of a stay, an appeal from his Honour's judgment would be nugatory. Further, there is no evidence before me that a stay of his Honour's orders would prejudice the respondents. THE COURT ORDERS THAT: 1. Leave to appeal against the judgment of his Honour in Welsh v Digilin Pty Ltd [2007] FCA 2064 be granted pursuant to section 24(1A) Federal Court of Australia Act 1976 (Cth) and Order 52 rule 10 Federal Court Rules . 2. The judgment of his Honour in Welsh v Digilin Pty Ltd [2007] FCA 2064 be stayed pursuant to Order 52 rule 17 Federal Court Rules . 3. Costs be reserved. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 18 February 2008 Counsel for the Applicant: C Heyworth-Smith Solicitor for the Applicant: Efron &amp; Associates Counsel for the Respondent: M Steele Solicitor for the Respondent: ClarkeKann Date of Hearing: 7 February 2008 Date of Judgment: 18 February 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/78.html
Case: Wilson v Church (No 2) (1879) 12 Ch D 454
Outcome: cited
Although as a general rule proceedings under a judgment should not be stayed pending an appeal ( Shaw v Holland (1900) 2 Ch 305), it is equally clear that the Court ought to see that the appeal, if successful, is not nugatory ( Wilson v Church (No 2) (1879) 12 Ch D 454). In considering whether to grant a stay, it is also important that the Court take account of the risk of prejudice resulting from a stay to the other party ( The Marconi's Wireless Telegraph Company Ltd v The Commonwealth (No 3) [1913] HCA 23 ; (1913) 16 CLR 384, ACCC v BMW (Australia) Ltd (No 2) [2003] FCA 864). In this case in the absence of a stay, an appeal from his Honour's judgment would be nugatory. Further, there is no evidence before me that a stay of his Honour's orders would prejudice the respondents. THE COURT ORDERS THAT: 1. Leave to appeal against the judgment of his Honour in Welsh v Digilin Pty Ltd [2007] FCA 2064 be granted pursuant to section 24(1A) Federal Court of Australia Act 1976 (Cth) and Order 52 rule 10 Federal Court Rules . 2. The judgment of his Honour in Welsh v Digilin Pty Ltd [2007] FCA 2064 be stayed pursuant to Order 52 rule 17 Federal Court Rules . 3. Costs be reserved. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 18 February 2008 Counsel for the Applicant: C Heyworth-Smith Solicitor for the Applicant: Efron &amp; Associates Counsel for the Respondent: M Steele Solicitor for the Respondent: ClarkeKann Date of Hearing: 7 February 2008 Date of Judgment: 18 February 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/78.html
Case: The State of Queensland v J L Holdings Pty Limited [1997] HCA 1 ; (1997) 189 CLR 146
Outcome: cited
In The State of Queensland v J L Holdings Pty Limited [1997] HCA 1 ; (1997) 189 CLR 146, the joint judgment of Dawson, Gaudron and McHugh JJ cited with approval (at 152-153) a passage from the judgment of Bowen LJ in Cropper v Smith (1884) 26 Ch D 700, at 710, as follows: 'Now, I think it is a well established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. Speaking for myself, and in conformity with what I have heard laid down by the other division of the Court of Appeal and by myself as a member of it, I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace.' 14 The joint judgment in J L Holdings emphasised (at 154) that the ultimate aim of a court is the attainment of justice and that no principle of case management can supplant that aim. The latter comment reflected the fact that in J L Holdings itself, the application for leave to amend pleadings had been refused by the trial Judge some six months before the hearing was due to commence. The application to amend in the present case has been made towards the end of the hearing in an extraordinarily long and complex case. 15 If leave could be granted to Seven to amend para 222 without causing significant prejudice to Optus and the other respondents, I would grant the necessary leave, even at this late stage of the proceedings. I would do so notwithstanding the absence of an explanation on affidavit as to the reason for Seven's failure until now to plead the retail minus formula. The critical question, therefore, is whether the amendment, if made, will occasion significant prejudice to the respondents in the conduct of the trial. 16 Mr Sheahan submitted that the amendment would cause no significant prejudice to the respondents because they have in fact addressed the question of whether Optus was an effective competitor on price and quality, both in relation to the period before and the period after the CSA. According to Mr Sheahan, there is no further factual inquiry that the respondents could make that has not already arisen on the pleadings. He pointed out, for example, that Optus' expert, Professor Hausman, adverted in his report to the fact that Foxtel and Optus now offer 'essentially the same product for which Optus pays a licence fee determined by reference to Foxtel's retail price'. Mr Sheahan also directed attention to the fact that one of Seven's competition experts, Professor Noll, referred in his report to the retail minus formula as eliminating the possibility of price competition between Foxtel and Optus where their services overlap.
Case: Cropper v Smith (1884) 26 Ch D 700
Outcome: cited
In The State of Queensland v J L Holdings Pty Limited [1997] HCA 1 ; (1997) 189 CLR 146, the joint judgment of Dawson, Gaudron and McHugh JJ cited with approval (at 152-153) a passage from the judgment of Bowen LJ in Cropper v Smith (1884) 26 Ch D 700, at 710, as follows: 'Now, I think it is a well established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. Speaking for myself, and in conformity with what I have heard laid down by the other division of the Court of Appeal and by myself as a member of it, I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace.'
Case: MZWIK v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 185
Outcome: cited
Having regard to the history of this matter, I am not persuaded that I should adjourn this proceeding. The medical certificate tells the Court nothing about the seriousness of the condition, and whether it is really likely to prevent the appellant from going to Court. There may be conditions that preclude someone attending work, but do not preclude the person attending Court. I regard the certificate as worthless. See generally MZWIK v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 185 per Sundberg J.
Case: MZWQH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1491
Outcome: applied
The objection to competency is plainly well taken. A decision to dismiss an application by reason of the absence of the applicant is a decision of an interlocutory nature. Pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) an appeal from the Federal Magistrates Court cannot be brought from such a decision without leave. See generally NACA v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 659 at [15] per Hely J; MZWQH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1491 at [26] per Kenny J; and MZWXC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 172 at [9] per Young J.
Case: MZWXC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 172
Outcome: applied
The objection to competency is plainly well taken. A decision to dismiss an application by reason of the absence of the applicant is a decision of an interlocutory nature. Pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) an appeal from the Federal Magistrates Court cannot be brought from such a decision without leave. See generally NACA v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 659 at [15] per Hely J; MZWQH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1491 at [26] per Kenny J; and MZWXC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 172 at [9] per Young J.
Case: NACA v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 659
Outcome: applied
The objection to competency is plainly well taken. A decision to dismiss an application by reason of the absence of the applicant is a decision of an interlocutory nature. Pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) an appeal from the Federal Magistrates Court cannot be brought from such a decision without leave. See generally NACA v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 659 at [15] per Hely J; MZWQH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1491 at [26] per Kenny J; and MZWXC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 172 at [9] per Young J.
Case: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2000) 206 CLR 323
Outcome: referred to
Thirdly, the appellant complained that the Tribunal found that he could seek the protection of relevant authorities and the legal system in India. It is true that the Tribunal so found. It is impossible to characterise that conclusion by the Tribunal as an infringement of the requirements of s 430. Fourthly, he complained that the Tribunal failed to record the material facts for the reasons referred to above. It seems to me, in light of what I have just said, that that allegation is without substance. In any event, the argument could not be accepted in light of Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2000) 206 CLR 323 at 331-332 [10] per Gleeson CJ, 349 [77] per McHugh, Gummow and Hayne JJ. 22 Ground five complained that the Tribunal had, by reason of the first three grounds, failed to carry out its review function. It is, of course, true that had the Tribunal failed to carry out its review function that it would have engaged in a jurisdictional excess. However, in the circumstances where I have found each of the other grounds not to have been made out it follows that this ground is not made out either. I should say for completeness that two particulars were provided for ground five. The first was that the Tribunal did not consider that the appellant had been under immense intimidating pressure from the RSS. It seems to me that that is not factually correct. The Tribunal recorded its findings about that. Secondly, it was said that the Tribunal did not consider the appellant's claim that RSS members would kill him if he returned to India. This is factually incorrect. The Tribunal did record that claim and, it seems to me, accepted it as well. 23 The appellant also filed written submissions in which he sought to impugn the Tribunal's conclusion that the confrontations after December 1998 had occurred because of the settlement. I have already rejected that argument. It was then argued that the Court below ought to have held that on the evidence it was open to the Tribunal to find that the appellant was a refugee. There was no occasion for the learned federal magistrate to reach such a conclusion. Her inquiry was limited to the identification of jurisdictional error.