mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Tisand Pty Limited v The Owners of the Ship MV 'Cape Morton' (Ex 'Freya') [2005] FCAFC 68 ; (2005) 143 FCR 43 
Outcome: discussed
Before dealing with these cases, it is appropriate to set out, by reference to settled Australian law, some important considerations that attend the construction and interpretation of the Act. The first consideration is the proper approach to the construction of the Act. In Tisand Pty Limited v The Owners of the Ship MV 'Cape Morton' (Ex 'Freya') [2005] FCAFC 68 ; (2005) 143 FCR 43 at 59-61 [59] - [65] , the Full Court set out relevant governing principles. It is unnecessary to repeat those passages other than to say the Act should be read in its legal and historical context, and that the Act and the definitions of maritime claims have an international as well as a domestic maritime context, including the International Convention for the Unification of Certain Rules Relating to the Arrest of Sea-Going Ships 1952, done at Brussels on 10 May 1952 (the "1952 Convention") and the Australian Law Reform Commission Report No 33 on Civil Admiralty Jurisdiction (the "ALRC Report").
Case: Jess v Scott (1986) 12 FCR 187
Outcome: followed
The requirement imposed by Rule 15(2) that there be " special reasons " is a requirement imposing a flexible discretionary power: Jess v Scott (1986) 12 FCR 187. Lockhart, Sheppard and Burchett JJ there observed at 195 : It is useful to consider the meaning and application of r 15(2) against a background of an understanding of how other courts have applied corresponding rules. But in the end, this Court must construe and apply the terms of its own rule. The question is what that rule means, and how it is to be applied to the circumstances of the case. It is clear that the rule reflects the same general structure exemplified by the various decisions we have discussed -- the provision of a time for lodgment of an appeal, but the provision also of a discretion to permit an appeal out of time where it is shown that the circumstances warrant the exercise of that discretion. As Lord Guest, speaking for the Privy Council, put it in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12: "The rules of court must prima facie be obeyed and in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation." What is needed to justify an extension of time is indicated in r 15(2) by the words "for special reasons". It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In that context, the expression "special reasons" is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a 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. The discretion to extend time is given for the purpose of enabling the Court to do justice between the parties: WAAD v Minister for Immigration &amp; Multicultural Affairs [2002] FCAFC 399 at [7] per Lee, Nicholson and Finkelstein JJ.
Case: QAAH v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 9
Outcome: applied
It may not be an appropriate exercise of discretion to extend time, however, where a satisfactory explanation has not been provided for the whole of the delay: QAAH v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 9 at [7] ; SZKSM v Minister for Immigration &amp; Citizenship [2008] FCA 632 at [20] . In the present Application , that for which there has been no explanation, or no satisfactory explanation, is such delay as occurred after 6 June 2008. A two-month delay after that date is largely unexplained; and following a friend to Queensland and thereby occasioning a further two-month delay falls well short of " special reason ". And during that period the present Applicant was well aware that her Application was already out of time.
Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 , 228 CLR 152
Outcome: applied
Notwithstanding the absence of any real assistance from the Applicant, the Federal Magistrate proceeded to review the available grounds. There was certainly no procedural unfairness in the Federal Magistrate taking that course. And, as noted in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 , 228 CLR 152: [25] ... what is required by procedural fairness is a fair hearing, not a fair outcome. ... See also: SZLVN v Minister for Immigration &amp; Citizenship [2008] FCA 1301 at [18] per Jacobson J. The review undertaken by the Federal Magistrates Court, it should be noted, was considerably assisted by detailed written submissions having been filed on behalf of the Respondent Minister.
Case: SZGQM v Minister for Immigration &amp; Citizenship [2008] FCA 899
Outcome: considered
Every case must individually be considered. Subject to that necessary qualification, the present case is comparable in some respects to SZGQM v Minister for Immigration &amp; Citizenship [2008] FCA 899 where an extension of time of one week was refused in circumstances where the explanation provided by the applicant was that he had " forgot about it ". 17 Compliance with the Rules of Court, including the times within which applications are to be made, is normally to be expected. 18 No reason is shown in the present proceeding to extend the time by some 4 months.
Case: SZLVN v Minister for Immigration &amp; Citizenship [2008] FCA 1301
Outcome: applied
Notwithstanding the absence of any real assistance from the Applicant, the Federal Magistrate proceeded to review the available grounds. There was certainly no procedural unfairness in the Federal Magistrate taking that course. And, as noted in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 , 228 CLR 152: [25] ... what is required by procedural fairness is a fair hearing, not a fair outcome. ... See also: SZLVN v Minister for Immigration &amp; Citizenship [2008] FCA 1301 at [18] per Jacobson J. The review undertaken by the Federal Magistrates Court, it should be noted, was considerably assisted by detailed written submissions having been filed on behalf of the Respondent Minister.
Case: SZKSM v Minister for Immigration &amp; Citizenship [2008] FCA 632
Outcome: applied
It may not be an appropriate exercise of discretion to extend time, however, where a satisfactory explanation has not been provided for the whole of the delay: QAAH v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 9 at [7] ; SZKSM v Minister for Immigration &amp; Citizenship [2008] FCA 632 at [20] . In the present Application , that for which there has been no explanation, or no satisfactory explanation, is such delay as occurred after 6 June 2008. A two-month delay after that date is largely unexplained; and following a friend to Queensland and thereby occasioning a further two-month delay falls well short of " special reason ". And during that period the present Applicant was well aware that her Application was already out of time.
Case: WAAD v Minister for Immigration &amp; Multicultural Affairs [2002] FCAFC 399
Outcome: followed
The requirement imposed by Rule 15(2) that there be " special reasons " is a requirement imposing a flexible discretionary power: Jess v Scott (1986) 12 FCR 187. Lockhart, Sheppard and Burchett JJ there observed at 195 : It is useful to consider the meaning and application of r 15(2) against a background of an understanding of how other courts have applied corresponding rules. But in the end, this Court must construe and apply the terms of its own rule. The question is what that rule means, and how it is to be applied to the circumstances of the case. It is clear that the rule reflects the same general structure exemplified by the various decisions we have discussed -- the provision of a time for lodgment of an appeal, but the provision also of a discretion to permit an appeal out of time where it is shown that the circumstances warrant the exercise of that discretion. As Lord Guest, speaking for the Privy Council, put it in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12: "The rules of court must prima facie be obeyed and in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation." What is needed to justify an extension of time is indicated in r 15(2) by the words "for special reasons". It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In that context, the expression "special reasons" is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a 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. The discretion to extend time is given for the purpose of enabling the Court to do justice between the parties: WAAD v Minister for Immigration &amp; Multicultural Affairs [2002] FCAFC 399 at [7] per Lee, Nicholson and Finkelstein JJ.
Case: Lim v Secretary, Department of Education, Employment and Workplace Relations (No 2) [2008] FCA 1752
Outcome: referred to
Tribunal in considering the delegation issue stated "It is claims [sic] that there was not an instrument of authority or something that gave them [MatchWorks] the legal authority to act for Centrelink. I am not persuaded that this is the case at all". However, there was no evidence before the Tribunal to support this finding. In contrast to the circumstances considered by Bennett J in Lim v Secretary, Department of Education, Employment and Workplace Relations (No 2) [2008] FCA 1752 at [19] , the respondent did not adduce any evidence before the Tribunal to demonstrate which of the arrangements referred to in cl 3 applies to MatchWorks's activities on behalf of the respondent; see also Piotto at [17] [20]. Also the respondent has not adduced evidence to demonstrate that the relevant employees of MatchWorks were officers of an Employment Services Provider for the purposes of s 23(1) of the Act; see Lim at [19] and Piotto at [19] [20].
Case: Dunn v Secretary, Department of Employment and Workplace Relations [2007] AATA 1031
Outcome: cited
for the respondent submitted that the Act empowers the respondent to impose the terms of a Newstart Activity Agreement rather than requiring a true process of negotiation. In doing so, counsel for the respondent relied on the Tribunal's decision in Dunn v Secretary, Department of Employment and Workplace Relations [2007] AATA 1031. Similarly, counsel for the respondent contended that as the respondent is empowered to require attendance at interviews or other appointments, this permits the respondent to alter the dates in a Newstart Activity Agreement. Counsel for the respondent also submitted that the matters identified by Mr Piotto did not constitute a reasonable excuse for the purposes of s 624 of the Act. The decision in Dunn considered the refusal by Mr Dunn to enter into a Newstart Activity Agreement, including whether Centrelink was permitted to present the terms of an agreement as a fait accompli . In doing so, the Tribunal examined what was then known as s 604 of the Act. The Tribunal at [17] concluded that: Section 604 of the Act clearly has the effect of empowering the Secretary to impose terms. It is something of a misnomer to suggest that the agreed plan is the product of negotiations. The provisions of s 604 considered by the Tribunal in Dunn were contained in s 605 of the Act as it was at the time of the 2007 Participation Failures. Although this Court is not bound by the Tribunal's decision in Dunn , I see no reason in the present circumstances to depart from the Tribunal's observations regarding the extent of 'negotiation' required by Act. The language of s 605 of the Act, in place at the time of the 2007 Participation Failures, did not require the parties to a Newstart Activity Agreement to engage in the same process of negotiation that may be expected of parties to other types of contracts. The respondent is placed in the stronger negotiation position by the Act and is able, to a very real extent to dictate the terms of a Newstart Activity Agreement. Accordingly, the Newstart Activity Agreements proposed at the time of the 2007 Participation Failures are not unconscionable or unreasonable as a result of the failure of Mr Piotto and MatchWorks to engage in a negotiation process. The Tribunal's findings in this respect were correct.
Case: Australian Securities &amp; Investments Commission v Bowesco Pty Ltd (Receiver and Manager Appointed) (No 2) [2006] FCA 1493
Outcome: cited
Forestview has applied for funding for its legal representation in the winding up proceedings on the basis that it requested funding from the receivers and managers and was refused by them. It relies upon ss 423 and 1321 of the Act as the sources of the Court's power to review that refusal and make an order that funding be provided. As in the like case of Australian Securities and Investments Commission v Bowesco Pty Ltd (Receiver and Manager Appointed) (No 2) [2006] FCA 1493 , I do not consider that any inquiry pursuant to s 423 of the Act is warranted nor is it an appropriate vehicle for dealing with the question which arises pursuant to the liberty to apply given on 31 August 2006. In Northbourne Developments Pty Ltd v Reiby Chambers Pty Ltd (1989) 19 NSWLR 434 at 438, McLelland J said of the former s 420 of the Companies (New South Wales) Code , which provided for inquiries into complaints relating to liquidators in terms relevantly identical to s 423 of the Act: 'Section 420 is concerned with aspects of the conduct of liquidators which are liable to attract sanctions or control for what might broadly be described as disciplinary reasons. Although the section applies to any liquidator it has particular significance in the case of a liquidator appointed by the court who is, in that sense, an officer of the court, and to a liquidator whose qualification for office is that he is a registered official liquidator or a registered liquidator with the public accreditation that such registration involves and who is in that sense a public officer.' In Belvista Pty Ltd v Murphy (1993) 11 ACSR 628, his Honour revisited the point in relation to the like provision in s 536 of the former Corporations Law and said (at 630): 'In conclusion, I wish to add that where, as here, a creditor or other interested party wishes to challenge the decision of a person in the position of a scheme administrator, or a liquidator, apparently arrived at in good faith, it is generally inappropriate to utilise the "complaint" provisions of s 536 of the Corporations Law rather than the "appeal" provisions of s 1321. As I observed in Northbourne Developments v Reiby Chambers Pty Ltd [(1989) 18 NSWLR 434 at 438] in relation to the predecessor of s 536, that section is concerned with aspects of the conduct of liquidators and others which are liable to attract sanctions or control for what might be broadly described as disciplinary reasons.' I respectfully agree with and adopt what McLelland J said in those two cases in its application to s 423 of the Act.
Case: Belvista Pty Ltd v Murphy (1993) 11 ACSR 628
Outcome: cited
Forestview has applied for funding for its legal representation in the winding up proceedings on the basis that it requested funding from the receivers and managers and was refused by them. It relies upon ss 423 and 1321 of the Act as the sources of the Court's power to review that refusal and make an order that funding be provided. As in the like case of Australian Securities and Investments Commission v Bowesco Pty Ltd (Receiver and Manager Appointed) (No 2) [2006] FCA 1493 , I do not consider that any inquiry pursuant to s 423 of the Act is warranted nor is it an appropriate vehicle for dealing with the question which arises pursuant to the liberty to apply given on 31 August 2006. In Northbourne Developments Pty Ltd v Reiby Chambers Pty Ltd (1989) 19 NSWLR 434 at 438, McLelland J said of the former s 420 of the Companies (New South Wales) Code , which provided for inquiries into complaints relating to liquidators in terms relevantly identical to s 423 of the Act: 'Section 420 is concerned with aspects of the conduct of liquidators which are liable to attract sanctions or control for what might broadly be described as disciplinary reasons. Although the section applies to any liquidator it has particular significance in the case of a liquidator appointed by the court who is, in that sense, an officer of the court, and to a liquidator whose qualification for office is that he is a registered official liquidator or a registered liquidator with the public accreditation that such registration involves and who is in that sense a public officer.' In Belvista Pty Ltd v Murphy (1993) 11 ACSR 628, his Honour revisited the point in relation to the like provision in s 536 of the former Corporations Law and said (at 630): 'In conclusion, I wish to add that where, as here, a creditor or other interested party wishes to challenge the decision of a person in the position of a scheme administrator, or a liquidator, apparently arrived at in good faith, it is generally inappropriate to utilise the "complaint" provisions of s 536 of the Corporations Law rather than the "appeal" provisions of s 1321. As I observed in Northbourne Developments v Reiby Chambers Pty Ltd [(1989) 18 NSWLR 434 at 438] in relation to the predecessor of s 536, that section is concerned with aspects of the conduct of liquidators and others which are liable to attract sanctions or control for what might be broadly described as disciplinary reasons.' I respectfully agree with and adopt what McLelland J said in those two cases in its application to s 423 of the Act.
Case: Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124
Outcome: cited
An appeal can only be brought by a "person aggrieved" by the "relevant act, omission or decision". The term "person aggrieved" was discussed by Gummow J in the context of an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) in Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124 at 130-133. His Honour observed that the term "aggrieved" has long appeared in statutes as a way of identifying persons who have standing to utilise a procedure established by the statute (131). He said: 'In each instance the content of the expression is to be seen in the light of the scope and purpose of the statute in issue...'
Case: Tooheys Ltd v Minister for Business and Consumer Affairs (1982) 54 FLR 421
Outcome: cited
What emerges from his Honour's judgment, by reference to common law standing requirements for the issue of certiorari is that (at 132): '... it was by no means apparent that "grievance" necessarily involved injury to property or present legal interests or "special damage" in any technical sense.' His Honour acknowledged the force of the observation by Ellicott J in Tooheys Ltd v Minister for Business and Consumer Affairs (1982) 54 FLR 421 at 437-438 that the meaning of a "person aggrieved" is "... not encased in any technical rules and that much depends upon the nature of the particular decision and the extent to which the interest of the applicant rises above that of an ordinary member of the public". Gummow J was considering the term in the context of standing to bring an application under the ADJR Act which has specified grounds for judicial review. The scope of review under s 1321 is not confined by specified grounds.
Case: Ex parte Sidebotham; Re Sidebotham (1880) 14 Ch D 458
Outcome: cited
McLelland J discussed the term "person aggrieved" in s 538 of the Companies (New South Wales) Code in Northbourne Developments. He referred to the observations of James LJ in Ex parte Sidebotham; Re Sidebotham (1880) 14 Ch D 458 concerning s 71 of the Bankruptcy Act 1869 (UK) (at 465): '... but the words "person aggrieved" do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. A "person aggrieved" must be a person who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something.' McLelland J, correctly in my respectful opinion, said that the remarks of James LJ should not be treated as an exhaustive definition. But the concept encapsulated in the phrase "legal grievance" was, he thought, "sound in principle". He made the important point that "... the wider the class of persons entitled to appeal to the court in respect of an act, omission or decision of a liquidator (or provisional liquidator) the greater the scope for potential disruption of an orderly administration" (438).
Case: Tanning Research Industries Inc v O'Brien [1990] HCA 8 ; (1990) 169 CLR 332
Outcome: cited
The appeal process has been described in an analogous but not identical context as "originating proceedings which the Court hears de novo" Tanning Research Industries Inc v O'Brien [1990] HCA 8 ; (1990) 169 CLR 332 at 339 (Brennan and Dawson JJ). The context in that case was an appeal against rejection by a liquidator of a proof of debt. It was applied to the characterisation of the proceedings in that case and has been applied to like proceedings under s 1321 involving an appeal against an administrator's rejection of a proof of debt: In The Matter of Federation Health Ltd (Administrator Appointed) [2006] FCA 314 at [32] [36] (Young J), citing also Re North Sydney District Rugby League Football Club (2000) 34 ACSR 630 at 631 [3] (Bryson J) and Brodyn Pty Ltd v Dasein Constructions Pty Ltd [2004] NSWSC 1230 at [29] - [33] (Young CJ). See also Westpac Banking Corporation v Totterdell (1997) 25 ACSR 769 in which Templeman J said (at 772): 'I understand a hearing de novo in this context to be one in which the parties are not bound by the evidence at the previous hearing, but may supplement it as they think fit ... But despite the admission of further evidence, the onus remains with the party who challenges the decision.'