mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Parker v The Queen [2002] FCAFC 133
Outcome: applied
As I have already noted, the applicant filed an application for an extension of time and a notice of appeal after the expiration of the time limits set for such appeals in the Federal Court Rules . Clearly it is important that parties observe time limits set by the Rules, however a discretion is vested in the Court by O 52 r 15(2) to extend time to permit a notice of appeal to be filed in order to avoid injustice where a party has missed a prescribed deadline for filing ( Parker v The Queen [2002] FCAFC 133 at pars 10-13). The applicant must however demonstrate 'special reasons' to the Court. In considering the meaning of the words 'special reasons' in this context, the Full Court of the Federal Court in Jess v Scott (1986) 70 ALR 185 observed that the facts of a case may be such as to justify the exercise of the Court's discretion: '...wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression "for special reasons" implies something narrower than this.' (at 193) 21 There are a number of guiding principles which may assist the Court in exercising its discretion under O 52 r 15(2): 1. applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an 'acceptable explanation for the delay'; it must be 'fair and equitable in the circumstances' to extend time 2. action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished 3. any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension 4. however, the mere absence of prejudice is not enough to justify the grant of an extension 5. the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted. (Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349, adopted by the Full Court in Parker v The Queen at pars 6-7)
Case: Rana v University of South Australia [2004] FCA 559
Outcome: cited
This principle represents the position in Australia: Luck at [8]. That decisions of Federal Magistrates pursuant to r 13.10 FMCR are interlocutory judgments is also beyond doubt, as pointed out by Lander J in Rana v University of South Australia [2004] FCA 559 at [6] - [15] . 47 Applications for leave to appeal to the Court, like applications for an extension of time within which to institute an appeal to the Court, may be heard and determined by a single judge of this Court: s 25(2) Federal Court of Australia Act 1976 (Cth). Given the length of time which has passed since the decision of Jarrett FM in this case, it is clear that the statutory time limits for making application for leave to appeal have long expired and it would be necessary to obtain an order of the Court dispensing with the time limits (note O 52 r 5(2)(a) and r 5(3) Federal Court Rules , and comments of Lander J in Rana v University of South Australia (2004) FCA 559 par 3).
Case: SZBMN v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCAFC 268
Outcome: cited
In my view it could not be said that the case before his Honour claiming a breach of Pt II Div 3 SD Act by the second respondent was (to paraphrase the words of Dixon J) so very clear as to justify the summary intervention of the court to prevent the applicant submitting his case for determination. In comparison with other cases where a claim had been dismissed pursuant to r 13.10 FMCR and subsequently considered by this Court, in my view the nature of the applicant's claim was not, for example, hopeless or doomed to failure (contra Hely J in SZFEA v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 634 at [6] ), or so obviously untenable that it could not possibly succeed (contra French J in Hassan v Hume (2004) FCA 886 at [27] ), or exhibiting no articulated grounds to support his assertions in relation to sexual harassment (contra the Full Court in SZBMN v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCAFC 268 at [21] ). While these principles do not represent an exhaustive list of characteristics which must be exhibited by claims in order to warrant summary dismissal, they nevertheless provide some assistance in considering the types of claims that do warrant this result.
Case: SZFEA v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 634
Outcome: cited
In my view it could not be said that the case before his Honour claiming a breach of Pt II Div 3 SD Act by the second respondent was (to paraphrase the words of Dixon J) so very clear as to justify the summary intervention of the court to prevent the applicant submitting his case for determination. In comparison with other cases where a claim had been dismissed pursuant to r 13.10 FMCR and subsequently considered by this Court, in my view the nature of the applicant's claim was not, for example, hopeless or doomed to failure (contra Hely J in SZFEA v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 634 at [6] ), or so obviously untenable that it could not possibly succeed (contra French J in Hassan v Hume (2004) FCA 886 at [27] ), or exhibiting no articulated grounds to support his assertions in relation to sexual harassment (contra the Full Court in SZBMN v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCAFC 268 at [21] ). While these principles do not represent an exhaustive list of characteristics which must be exhibited by claims in order to warrant summary dismissal, they nevertheless provide some assistance in considering the types of claims that do warrant this result.
Case: Telstra Corporation Ltd v AAPT Ltd [1997] 38 IPR 539
Outcome: applied
The principles applicable to grant of leave under s 24(1A) are reasonably well settled. The Full Court of the Federal Court in Telstra Corporation Ltd v AAPT Ltd [1997] 38 IPR 539 at 542 described the approach of the Court to such applications in the following terms: 'In accordance with the practice frequently adopted by the Court in applications for leave to appeal from interlocutory orders, we permitted counsel for both parties to address us, not only on that application, but on the grounds of appeal sought to be advanced, assuming, for the purposes of the argument, that leave to appeal had been granted. With the benefit of a full appellate argument, we come to the conclusion, for the reasons we give below, that in some respects but not in others, the judgment was attended by sufficient doubt to warrant it being reconsidered; and that, in those respects, substantial injustice would result if leave were to be refused. We propose to grant leave to appeal accordingly.' 49 The issues I have considered in the context of whether to allow the applicant an extension of time, particularly in relation to the merits of the case, are similar to the issues I would need to consider in an application for leave to appeal in this case. In my view, for the reasons I outlined earlier in this judgment in assessing the merit of the applicant's case, the decision of the learned Federal Magistrate to summarily dismiss the applicant's claim against the second respondent in respect of P II Div 3 SD Act is attended by sufficient doubt to warrant it being reconsidered. Accordingly, I am prepared to grant leave to the applicant to appeal the decision of Jarrett FM. THE COURT ORDERS THAT: 1. The application for leave to file and serve out of time a notice of appeal from the decision of Jarrett FM of 12 October 2005 is granted. 2. Leave to appeal from the decision of Jarrett FM of 12 October 2005 is granted. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 6 July 2006 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: The First Respondent appeared in person Counsel for the Second Respondent: Mr TJ Bradley Solicitor for the Second Respondent: Brian Bartley &amp; Associates Date of Hearing: 18 April 2006 Date of Judgment: 6 July 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/869.html
Case: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: followed
If a matter is not mentioned in a Tribunal's findings, this entitles a court to infer that the matter was not considered by the Tribunal to be material ( Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 per McHugh, Gummow, Hayne JJ (with whom Gleeson CJ agreed) at [69]). That the Tribunal Member engaged in no discussion of questions of those kinds suggests that the psychological aspects of the practical realities facing the appellant were not present to his mind. Given the strangeness of such matters not having been mentioned if they were considered, in my view it is appropriate to draw the inference that they were not considered. I do not wish to seem overcritical. The appellant's case was not a simple one. She had, according to the Tribunal, embroidered some facts and the Tribunal Member thought that a friend who gave evidence was suggesting that, even in the Australian context, she was less robust a person than the Tribunal considered her to be. Nevertheless, it is notorious that in the last 20 years or so the high potential for sexual assault, let alone repeated instances of it, to cause the victim serious psychological difficulties, has become widely accepted. I think that the kinds of potential difficulties to which I have referred were overlooked. There has in my opinion been, as in NAIZ , a failure by the Tribunal to ask itself (as Branson J put it) 'the right questions'.
Case: NALZ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 320 ; (2004) 140 FCR 270
Outcome: cited
The present and well-entrenched state of Full Federal Court authority is that a claim to refugee status is not established by those who could reasonably avail themselves of the real protection of the country of nationality elsewhere within their country of nationality: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 (' Randhawa' ) per Black CJ at 440 (cf my remarks in dissent in NALZ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 320 ; (2004) 140 FCR 270 at [8] ). The question is whether the person can relocate to another area of the country, and, it is said, whether he or she could reasonably be expected to do so. However, answering this question is influenced by the principle that: 'notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, a person's fear of persecution in relation to that country will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person' (per Black CJ in Randhawa at 442).
Case: Queensland v J L Holdings Pty Limited [1997] HCA 1 ; (1997) 189 CLR 146
Outcome: cited
At the hearing, counsel for the appellant relied on Queensland v J L Holdings Pty Limited [1997] HCA 1 ; (1997) 189 CLR 146, suggesting that it is authority for the principle that the requirements of case management are relevant considerations, but they cannot be used to prevent a party from arguing a ground that is fairly arguable. Further, counsel suggested that there is a level of disagreement in this Court regarding the approach to be taken to this issue. In doing so, counsel referred to the judgment of Allsop J in Branir v Owston Nominees (No 2) [2001] FCA 1833 ; (2001) 117 FCR 424 at 440, in which his Honour expressly declined to comment on the approach taken by Branson and Katz JJ in H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43. In that case, their Honours gave consideration to the merits of the new grounds to be raised. On this point, counsel also referred to the discussion in VUAX at [48] where, it appears, the Full Court accepted that the merits of the new grounds are to be given consideration. The appellant argued that a party should be permitted to raise an arguable case provided any prejudice to other parties could be compensated by costs. In addition, the appellant referred to the judgment of R D Nicholson J in Jones , where his Honour stated (at 48) that whether or not the Immigration Review Tribunal had complied with its statutory duty 'raises a point of law in the interests of justice which supports and outweighs, in all the circumstances, the public interest in the finality of litigation in these particular circumstances'. Jenkinson J (with whom Carr J agreed) similarly stated (at 37) that the '[o]bservance of such [statutory] requirements by a tribunal administering important and publicly scrutinised immigration laws should be encouraged by this Court. A determination whether...the Tribunal satisfied those requirements is in my opinion expedient and in the interests of justice.'
Case: SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364
Outcome: approved
Earlier the Full Court had approved (at [60]) some pertinent observations by Selway J in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [17]-[18] : '...But this does not mean that the application is to be treated as an exercise in nineteenth century pleading. ... The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.' It would be strange if a claimant of refugee status were to be denied a right to have the substance of her claim considered, including the different ways in which the Convention might apply to her, because she had failed clearly to analyse those ways in her application and supporting material, although she had clearly enough delineated facts that might attract the salvation of the Convention. It is not likely that the Full Court in NABE intended such a thing. The Full Court was absolving the Tribunal from any duty to engage in subtle teasing out of hypotheses that only abstrusely arise from an applicant's account of the circumstances that have led to the claim of refugee status. That is not the position here.
Case: Acerose Pty Ltd v Workcover Authority of New South Wales (unreported, Sup Ct, NSW, Carruthers AJ, 30 July 1998)
Outcome: distinguished
Jewellery also relies upon the decision of Acerose Pty Ltd v Workcover Authority of New South Wales (unreported, Sup Ct, NSW, Carruthers AJ, 30 July 1998) in which the successful defendant sought an order that the unsuccessful plaintiff pay its costs. Carruthers AJ, refusing such order and instead ordering that each party pay its own costs, said as follows: Also these proceedings are, as I have already indicated, by their nature a test case as far as other Spinner's franchisees are concerned, and I take into consideration the line of authority applied in decisions such as that of Cummins J in Lyser v Camberwell City Council (1989) 69 LGRA 250 , where his Honour was dealing with the construction of certain Local Government by-laws. His Honour there deviated from the general rule that costs should follow the event because the matters which were debated before him were matters of much general interest in so far as Local Government administration was concerned. Similarly, the decision of Acerose is distinguishable since the Court in that matter was clearly of the opinion that the case before it constituted a test case. As to the decision in Cripps , Austrade submits that it does not stand for the principle that non-indigent public authorities cannot be awarded costs. In Attrill there had already been a division of judicial opinion within the Supreme Court and the New South Wales Court of Appeal found that the determination of that dispute in the Court was a matter in the public interest. For this reason it ordered that each party pay its own costs. In Acerose and Cripps public interest was found to be involved in the decision.
Case: Attrill and Others v Richmond River Shire Council (1995) 38 NSWLR 545
Outcome: distinguished
Jewellery refers to the decision of Attrill and Others v Richmond River Shire Council (1995) 38 NSWLR 545 in which the Court, having resolved a difference of judicial opinion concerning the interpretation of a provision in the Local Government Act 1919 , ordered each party to pay its own costs of the appeal because the Court found the resolution of the issue to be in the public interest. Austrade submits that the decisions of State Courts relied upon by Isaac Jewellery should be treated with caution. In Attrill the Court was faced with a difference of judicial opinion relating to a local government statute and such factor clearly demonstrated a distinct public interest. No such consideration arises in the present appeal. In Attrill there had already been a division of judicial opinion within the Supreme Court and the New South Wales Court of Appeal found that the determination of that dispute in the Court was a matter in the public interest. For this reason it ordered that each party pay its own costs. In Acerose and Cripps public interest was found to be involved in the decision.
Case: Australian Trade Commission v Isaac Jewellery Pty Ltd [2009] FCA 37
Outcome: cited
Court delivered its judgment in these proceedings on 3 February 2009 (see Australian Trade Commission v Isaac Jewellery Pty Ltd [2009] FCA 37 (' Isaac No. 1 ')). At the request of the parties the Court reserved the question of costs. The Court has now heard the party's submissions in relation to costs which are summarised hereunder.
Case: Bullock and Others v Federated Furnishing Trades Society of Australasia and Others (No 2) (1985) 5 FCR 476
Outcome: referred to
the Court exercises its discretion judicially, its power to award a certificate is unfettered: see Bullock and Others v Federated Furnishing Trades Society of Australasia and Others (No 2) (1985) 5 FCR 476 at 477.
Case: Cretazzo v Lombardi (1975) 13 SASR 4
Outcome: referred to
basic rule remains that the Court has an absolute and unfettered discretion in relation to costs subject only to the requirement that the discretion be exercised judicially and not arbitrarily or capriciously and not on grounds unconnected with the litigation: see Cretazzo v Lombardi (1975) 13 SASR 4 at 11.
Case: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748
Outcome: referred to
it remains the established principle that an award of costs to the successful party is compensatory: see Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 per Mason CJ at 543; McHugh J at 567. In Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48,136 Toohey J observed: Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order. Ritter v. Godfrey (1920) 2 K.B. 47.
Case: Independent Commission Against Corruption v Cripps and Anor (unreported, Sup Ct, NSW, Sully J, 27 August 1996)
Outcome: distinguished
Jewellery also relies upon the decision in Independent Commission Against Corruption v Cripps and Anor (unreported, Sup Ct, NSW, Sully J, 27 August 1996) which it submitted was an example of a Court declining an award of costs in favour of a public body given that the public body was pursuing a matter of public interest and the public body was not an indigent private person. Austrade rejects the implication that its submissions before the Tribunal were in any way responsible for the Tribunal's erroneous conclusions concerning the operation of s 94(1)(b)(i) and s 94(1)(b)(ii) of the EMDG Act. Its submissions before the Tribunal addressed both sub-sections for the Tribunal's consideration but neither party suggested that the Export Market Development Grants (Change in Ownership of Business) Guidelines 2006 ('the Guidelines') applied to s 94(1)(b)(i). Austrade submits that it was the Tribunal's error to erroneously apply the Guidelines to such subsection. Austrade also submits that there is no major public interest in the Court's decision which should lead the Court to depart from the usual practice of ordering that the successful party receive a costs order in its favour. Further, Austrade emphasises that the suggestion that the public interest was to be served by the appeal first arose from a comment by Gary Dennis, Isaac Jewellery's consultant, and that Mr Tonkin's response clearly stated that Austrade would not pay Isaac Jewellery's costs. Similarly, the decision of Acerose is distinguishable since the Court in that matter was clearly of the opinion that the case before it constituted a test case. As to the decision in Cripps , Austrade submits that it does not stand for the principle that non-indigent public authorities cannot be awarded costs. In Attrill there had already been a division of judicial opinion within the Supreme Court and the New South Wales Court of Appeal found that the determination of that dispute in the Court was a matter in the public interest. For this reason it ordered that each party pay its own costs. In Acerose and Cripps public interest was found to be involved in the decision.
Case: Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534
Outcome: referred to
it remains the established principle that an award of costs to the successful party is compensatory: see Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 per Mason CJ at 543; McHugh J at 567. In Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48,136 Toohey J observed: Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order. Ritter v. Godfrey (1920) 2 K.B. 47. As stated, an award of costs is in its nature compensatory, and not punitive. McHugh J at 567 of Latoudis observed that a costs order may, ' and usually will, be made even though the action has failed through no fault of the unsuccessful party '. The Court is unable to discern any factor to justify the Court exercising its discretion in favour of Isaac Jewellery so as to deny Austrade its entitlement to costs. Application for Costs Certificate Section 6 of the Costs Act relevantly provides: (1) Subject to this Act, where a Federal appeal succeeds on a question of law, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal. (2) ... (3) The certificate that may be granted under subsection (1) or (2) by a court to a respondent to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to the respondent in respect of: (a) the costs incurred by the respondent in relation to the appeal; and (b) any costs incurred by an appellant in relation to the appeal that have been, or are required to be, paid by the respondent to the appellant in pursuance of an order of the court, not being costs to which a costs certificate granted under section 7 relates. Section 3 defines 'Federal appeal' to include: (g) an appeal to the Federal Court from a decision of the Administrative Appeals Tribunal... 'Federal Court' is defined in the same section to include the Federal Court of Australia.