mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Crest Homes Plc v Marks (1987) 1 AC 829
Outcome: cited
the other hand, I have come to the view that 'special circumstances' exist to warrant leave being granted to Optus to use the Lee Outline in the current proceedings, or at least those parts of it referred to in the amended notice of motion. In Springfield Nominees 38 FCR at 223, Wilcox J referred, with approval, to what was said by Burchett J in Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576 at 578 579 of the need for 'special circumstances' if leave was to be granted see too Crest Homes Plc v Marks (1987) 1 AC 829 at 860 per Lord Oliver and as to what that required. Burchett J said: 'As far as the expression "special circumstances" is concerned, it is an expression which is liable to be misunderstood unless care is taken to ask and answer the question, special in relation to what? "Special" is one of those words which derive almost all their meaning from the context ... If all that is required is that, among the great number of cases in the court in which documents have been discovered, this one must evince some special feature which affords a reason for releasing or modifying the undertaking, there will be no difficulty. Circumstances in which there is a legitimate reason why documents discovered in one proceeding should be made available in another will, viewed in this way, be rare. In the ordinary course, the ordinary rule should apply, there being no special circumstance to suggest otherwise. Cf Jess v Scott (1986) 12 FCR 187, where the Full Court was concerned with the construction of O 52, r 15(2), by which leave to file an appeal out of time could be granted "for special reasons". The joint judgment described (at 195) the expression "special reasons" in this rule as: "an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served." Of course, if Lord Oliver should be taken to have required the circumstances to be special, not in relation to all the various circumstances of the actions in which the relevant implied obligation has arisen, but in relation to the very small number of cases in which a reason appears why the undertaking might be relaxed, the discretion of the court would be entangled in a rule of quite uncertain import. I do not know on what footing one would say that a particular circumstance among these relatively rare circumstances would be 'special' and another not. I do not think his Lordship intended to fetter the court's discretion in this way. I think he was using the words "special circumstances" to express the same idea which is expressed in the rule discussed in Jess v Scott by the words "for special reasons" ...'
Case: Australian Prudential Regulation Authority v Siminton (No 7) [2007] FCA 1609
Outcome: referred to
Mr Siminton relied on the same evidence and submissions which were advanced during the penalty hearing conducted in relation to the contempt findings which I made in Australian Prudential Regulation Authority v Siminton (No 7) [2007] FCA 1609: see Australian Prudential Regulation Authority v Siminton (No 10) [2007] FCA 1814 at [9] and [11]. This was character evidence given by two of his friends and submissions that he was impecunious but that an unnamed person might be prepared to provide him with some money to pay any fine which the Court might impose.
Case: Australian Prudential Regulation Authority v Siminton (No 8) [2007] FCA 1612
Outcome: referred to
On 7 November 2007 I found that Mr Siminton had committed contempt of Court by failing to pay a fine imposed on him by a Full Court within the time stipulated by the Full Court (which included an additional two weeks allowed by the District Registrar under the Full Court's Order): see Australian Prudential Regulation Authority v Siminton (No 8) [2007] FCA 1612. These reasons should be read in conjunction with those in Siminton (No 8). 2 On 19 July 2006 the Full Court ordered that Mr Siminton pay a fine of $50,000 "within 60 days or such further time and by such instalments as the District Registrar may allow." The 60 day period expired on 18 September 2006. On that day the District Registrar ordered that Mr Siminton be granted a further 14 days within which to make payment. The extended period expired on 2 October 2006. The fine was not paid despite the fact that Mr Siminton had the financial capacity to do so, at least in part. I found that Mr Siminton's failure to make at least a part payment was wilful. 3 In dealing with the issues arising in relation to the determination of a penalty the District Registrar drew attention to the following matters: &#8226; The contempt was properly to be characterised as "very serious": it was one of a number of contempts which occurred at or about the same time; it involved a failure to pay a fine imposed by the Full Court in respect of a separate finding of contempt; and it involved a deliberate and wilful disobedience of the Full Court's order; and &#8226; The failure by Mr Siminton to accept any responsibility for the contempt or to express remorse or contrition.
Case: Australian Prudential Regulation Authority v Siminton (No 10) [2007] FCA 1814
Outcome: referred to
Mr Siminton relied on the same evidence and submissions which were advanced during the penalty hearing conducted in relation to the contempt findings which I made in Australian Prudential Regulation Authority v Siminton (No 7) [2007] FCA 1609: see Australian Prudential Regulation Authority v Siminton (No 10) [2007] FCA 1814 at [9] and [11]. This was character evidence given by two of his friends and submissions that he was impecunious but that an unnamed person might be prepared to provide him with some money to pay any fine which the Court might impose. 6 In Siminton (No 10) at [15] I identified a number of considerations which are relevant to the determination of penalties for contempt. They are derived from the authorities there referred to and I do not repeat them. I have had regard to them in dealing with this matter. 7 An additional consideration which is relevant in the present matter is that the $50,000 fine, imposed by the Full Court, was imposed in substitution for an order made by the trial judge that Mr Siminton be imprisoned for 10 weeks. The substitution was made because the copy of the Court order which had been served on Mr Siminton and which Mr Siminton had been found to have contravened, did not bear the endorsement required by O 37 r 2 of the Federal Court Rules . Such an endorsement appeared on the copy of the Full Court order which was served on Mr Siminton. 8 I take into account, as I did in Siminton (No 10) , that: &#8226; Mr Siminton has not apologised, expressed regret or in any other way sought to purge his contempt. &#8226; Mr Siminton has chosen not to provide evidence of his personal and financial circumstances. &#8226; Mr Siminton is an undischarged bankrupt who has failed to provide a statement of his affairs in accordance with the requirements of the Bankruptcy Act 1966 (Cth). &#8226; Mr Siminton claims to be impecunious. &#8226; Mr Siminton has a friend who might be disposed to provide an undisclosed amount of money to meet any fine which might be imposed by the Court. 9 I also accept the District Registrar's submission that the contempt is properly to be characterised as "very serious" for the reasons which she advanced. 10 In the circumstances I do not consider that it is appropriate to impose a penalty other than a term of imprisonment. I have determined that an appropriate penalty is imprisonment for a term of four months.
Case: Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522
Outcome: applied
J in Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 made similar observations at [13]-[16]: The nature of an appeal under s 44(1) of the AAT Act was considered in Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 38 AAR 55 by Stone J and me particularly at [10]-[18]. We expressed our approval of the observation made by Gummow J in TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation (Cth) [1988] FCA 119 ; (1988) 19 ATR 1067 at 1069-1070 that an appeal "on a question of law" is narrower than an appeal that merely involves a question of law. As his Honour pointed out, where an appeal lies "on a question of law" the subject matter of the appeal is the question or questions of law. That is, the subject matter of the appeal is the question or questions of law stated as required by O 53, r 3(2)(b). The legislature, by creating a statutory right of appeal to a party to a proceeding before the Tribunal in the narrow terms of s 44(1), disclosed an intention to limit the capacity of the Court on an appeal under s 44(1) to review factual findings of the Tribunal. An appeal pursuant to s 44(1) is thus quite different from an appeal from a judicial body under s 24 of the Federal Court Act. An appeal under s 24 is an appeal by way of rehearing (see, Poulet Frais Pty Ltd v Silver Fox Company Pty Ltd [2005] FCAFC 131 ; (2005) 220 ALR 211 at [35] - [47] ). The subject matter of an appeal under s 44(1) of the AAT Act is (shorn of the requirement to determine what, if any, entitlement to relief flows from the answer to the question or questions of law) of the same character as the subject matter of a reference of a question of law to the Court made under s 45 of the AAT Act. In Birdseye Stone J and I also expressed approval of the observation of Ryan J in Australian Telecommunications Corp v Lambroglou (1990) 12 AAR 515 at 527 that: If the question, properly analysed, is not a question of law no amount of formulary like "erred in law" or "was open as a matter of law" can make it into a question of law. A mixed question of fact and law is not a question of law within the meaning of s 44(1) of the AAT Act. Stone J and I observed in Birdseye (at [18]): In our view, O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the Tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal.
Case: Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91
Outcome: applied
The power to dismiss an application summarily must be exercised with great caution and only in the clearest of cases. As Dixon J said in Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91: 'The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.' 44 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: Gauci v Kennedy &amp; Anor [2005] FMCA 1505
Outcome: cited
The application before me seeks an extension of time to file and serve out of time a notice of appeal from the decision of Jarrett FM made 12 October 2005 ( Gauci v Kennedy &amp; Anor [2005] FMCA 1505). In that decision the learned Federal Magistrate dismissed the applicant's claim for relief against the second respondent for a breach of any provision of Pt II Div 3 of the Sex Discrimination Act 1984 (Cth) (' SD Act '). 2 As explained in the reasons for judgment of Jarrett FM, the substantive application filed by the applicant on 10 August 2004 sought orders from the Federal Magistrates Court under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (' HREOC Act ') that the respondents apologise to the applicant and pay him financial compensation in respect of alleged unlawful discrimination and sexual harassment. The application before me concerns only interlocutory relief obtained by the second respondent as a result of the orders made by Jarrett FM in his decision of 12 October 2005. 3 Limitations of time in respect of filing and serving notices of appeal of decisions of the Federal Court or the Federal Magistrates Court are found in O 52 r 15 Federal Court Rules . The rule provides: '(1) The notice of appeal shall be filed and served - (a) within 21 days after - (i) the date when the judgment appealed from was pronounced; (ii) the date when leave to appeal was granted; or (iii) any later date fixed for that purpose by the court appealed from; or (b) within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within the period of 21 days referred to in the last preceding paragraph. (2) Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.'
Case: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: cited
Further, Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 130 opined that great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal.
Case: Hassan v Hume (2004) FCA 886
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: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Outcome: applied
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: Ingram-Nader v Brinks Australia Pty Ltd [2006] FCA 624
Outcome: cited
The issue of prejudice in the context of cases involving an application for extension of time was recently discussed by Cowdroy J in Ingram-Nader v Brinks Australia Pty Ltd [2006] FCA 624 at par 16. His Honour referred to comments of Bray CJ in Lovett v Le Gall (1975) 10 SASR 479: 'If the defendant has suffered no prejudice, as when he was well aware within the limitation period of the plaintiff's claim, or where the excess period of time is small, or where he cannot show that he has lost anything by reason of the delay, it may well be that the court will not find it difficult to come to the conclusion that it is fair and equitable in the circumstances to grant the extension.' (at 485) 38 There is clearly a wealth of authority in the courts interpreting sexual harassment, and vicarious liability of employers for conduct of employees breaching the SD Act . A recent case where relevant issues were discussed is Ingram-Nader . 39 It is in my view at least arguable as claimed by the applicant that the conduct of the first respondent towards him as described in the decision of Jarrett FM and outlined earlier in this judgment, did amount to sexual harassment in the sense of being unwelcome conduct of a sexual nature in relation to the applicant. In this case, I note in particular the invitations of the first respondent, the nature of those invitations, the persistence of the first respondent, and the correspondence from the first respondent to the applicant. 40 Determination of whether the first respondent had sexually harassed the applicant would have clear implications for the applicant's claim against the second respondent. 41 The applicant stated in his submissions before me that he had never intended to allege that he had been sexually harassed by employees of the second respondent, other than the first respondent. However if the actions of the first respondent did constitute sexual harassment, then two issues arise regarding the second respondent's vicarious liability for breaches of Pt II Div 3 SD Act about which submissions have been put to me. 42 First, the applicant alleges that the first respondent was an employee of the second respondent at relevant times and that the second respondent was therefore vicariously liable for her actions. In its outline of submissions in this matter before me, the second respondent stated that there did not appear to be any evidence that the first respondent was an employee of the University at the relevant time. This is clearly a key issue, to be determined in a substantive hearing of this matter. 43 Second, the applicant's submissions in relation to the failure of the second respondent to deal appropriately with his complaints arguably raise issues concerning the reasonableness of steps taken by the second respondent, which are relevant for the purposes of s 106(2) SD Act .
Case: In the matter of an appeal by Gaye Alexandra Mary Luck [2003] HCA 70
Outcome: cited
However, a complication which has not been addressed by the parties in this case is that the decision of Jarrett FM pursuant to r 13.10 Federal Magistrates Court Rules 2001 ('FMCR') was an interlocutory judgment. His Honour noted himself in his reasons for decision that the application brought by the second respondent was interlocutory (par 3). Further, as pointed out by the High Court of Australia in In the matter of an appeal by Gaye Alexandra Mary Luck [2003] HCA 70 at [6] : 'For more than a century, courts, including courts of the highest authority, have consistently held that an order staying an action on the ground that it is frivolous, vexatious or an abuse of process is an interlocutory order.' 6 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] .
Case: Jess v Scott (1986) 70 ALR 185
Outcome: cited
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)
Case: Lovett v Le Gall (1975) 10 SASR 479
Outcome: cited
The issue of prejudice in the context of cases involving an application for extension of time was recently discussed by Cowdroy J in Ingram-Nader v Brinks Australia Pty Ltd [2006] FCA 624 at par 16. His Honour referred to comments of Bray CJ in Lovett v Le Gall (1975) 10 SASR 479: 'If the defendant has suffered no prejudice, as when he was well aware within the limitation period of the plaintiff's claim, or where the excess period of time is small, or where he cannot show that he has lost anything by reason of the delay, it may well be that the court will not find it difficult to come to the conclusion that it is fair and equitable in the circumstances to grant the extension.' (at 485)