mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Wilcox; ex parte Venture Industries Pty Limited (1996) 66 FCR 511
Outcome: referred to
other legislative provisions on which SOG and the administrators rely state the criteria for the exercise of the power to transfer proceedings in terms which may be said to be less prescriptive than under the cross-vesting legislation. The power to transfer under the Trade Practices Act is stated in discretionary terms. In Re Wilcox; ex parte Venture Industries Pty Limited (1996) 66 FCR 511 at 529, the Full Court said that: [A] manifest object of the cross-vesting legislative scheme as enacted by the Commonwealth in 1987 was for the [ Trade Practices Act ] and the [ Cross-Vesting Act ] to provide separate, albeit overlapping, but additional sources ... of power ... Under section 1337H of the Corporations Act , the Federal Court is not required to consider whether the proceedings arise out of or are related to another proceeding. The background to these matters is set out in the affidavit of Darren Gordon Weaver sworn on 18 June 2008. Mr Weaver is one of the respondents to the proceedings and is one of the administrators of SOG. It is convenient to refer to the content of Mr Weaver's affidavit.
Case: KGL Health Pty Limited v Mechtler [2007] FCA 1410
Outcome: related
The background and the nature of the principal proceeding is set out in the judgment given by me in relation to an application by the applicants for an asset preservation order: see KGL Health Pty Limited v Mechtler [2007] FCA 1410. I will not repeat those matters here. 3 The Amended Cross-Claim alleges that, in breach of a lease ("the Lease") with Rosanza, Peninsula Hospital Management Pty Limited ("Peninsula") as lessee, has failed to pay rent, GST, outgoings, insurance premiums and interest in the amount of $419,129.40 to Rosanza. 4 In paragraph 1 of the Defence to the Amended Cross-Claim, the cross-respondents admit that they are in breach of the Lease because Peninsula failed to pay the above amount. However, that admission is made subject to paragraphs 8 and 9, which deny that Rosanza is entitled to any relief sought due. This non-entitlement, it is said, is due to Peninsula's claims in the principal proceeding, or to the contention that the rent and other payments due under the Lease were abated to nil from the commencement of the Lease by reason of clause 11.
Case: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51
Outcome: followed
The relevant matters to be considered in an application for leave to adduce a new ground of appeal are those outlined in VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 at [21] - [38] ; and NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at [154] - [175] . Such matters are as follows: &#8226; the merit of the new ground; &#8226; any explanation as to why the new ground was not raised at trial; &#8226; the dislocation to the court and the efficient use of judicial sitting time if the new ground were to be argued; &#8226; the stakes for the appellant if leave is refused; &#8226; the prejudice, if any, to the respondent; and &#8226; where the interests of justice lie with the granting of leave.
Case: Re Refugee Review Tribunal; Ex parte Aala [2000] FCA 57 ; (2000) 204 CLR 82
Outcome: cited
As I have found no jurisdictional error I do not need to consider whether I should exercise my discretion to refuse relief in the event that jurisdictional error was found. However, it seems to me this would have been the appropriate case to refuse relief if the only jurisdictional error was a failure to comply with s 441A: see generally Re Refugee Review Tribunal; Ex parte Aala [2000] FCA 57 ; (2000) 204 CLR 82 and SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609.
Case: SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609
Outcome: cited
As I have found no jurisdictional error I do not need to consider whether I should exercise my discretion to refuse relief in the event that jurisdictional error was found. However, it seems to me this would have been the appropriate case to refuse relief if the only jurisdictional error was a failure to comply with s 441A: see generally Re Refugee Review Tribunal; Ex parte Aala [2000] FCA 57 ; (2000) 204 CLR 82 and SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609.
Case: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168
Outcome: followed
The relevant matters to be considered in an application for leave to adduce a new ground of appeal are those outlined in VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 at [21] - [38] ; and NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at [154] - [175] . Such matters are as follows: &#8226; the merit of the new ground; &#8226; any explanation as to why the new ground was not raised at trial; &#8226; the dislocation to the court and the efficient use of judicial sitting time if the new ground were to be argued; &#8226; the stakes for the appellant if leave is refused; &#8226; the prejudice, if any, to the respondent; and &#8226; where the interests of justice lie with the granting of leave.
Case: Edelsten v Ward (No 2) (1988) 63 ALJR 346
Outcome: cited
Zealand, by its counsel, has confirmed that, in accordance with the requirements of the Extradition Act 1988 (Cth), the respondents will not be removed to New Zealand before any timely application which they may make for special leave to appeal to the High Court is heard and determined. I therefore consider it appropriate to approach the question of whether a stay of the orders of the Full Court should be granted on the basis that the discretion to order a stay should only be exercised if the circumstances justify a departure from the ordinary rule that a successful litigant is entitled to the benefit of a court's judgment pending the determination of any appeal ( Federal Commissioner of Taxation v Myer Emporium Ltd [1986] HCA 13 ; (1986) 160 CLR 220 per Dawson J at 222-223). It would not be appropriate to order a stay simply to preserve the status quo ( Edelsten v Ward (No 2) (1988) 63 ALJR 346).
Case: Federal Commissioner of Taxation v Myer Emporium Ltd [1986] HCA 13 ; (1986) 160 CLR 220
Outcome: cited
Zealand, by its counsel, has confirmed that, in accordance with the requirements of the Extradition Act 1988 (Cth), the respondents will not be removed to New Zealand before any timely application which they may make for special leave to appeal to the High Court is heard and determined. I therefore consider it appropriate to approach the question of whether a stay of the orders of the Full Court should be granted on the basis that the discretion to order a stay should only be exercised if the circumstances justify a departure from the ordinary rule that a successful litigant is entitled to the benefit of a court's judgment pending the determination of any appeal ( Federal Commissioner of Taxation v Myer Emporium Ltd [1986] HCA 13 ; (1986) 160 CLR 220 per Dawson J at 222-223). It would not be appropriate to order a stay simply to preserve the status quo ( Edelsten v Ward (No 2) (1988) 63 ALJR 346).
Case: Heslehurst v Government of New Zealand [2000] FCA 937
Outcome: applied
I observed in the case of Heslehurst v Government of New Zealand [2000] FCA 937 at [16] , in the context of an application for bail under s 35(6)(g)(iv) of the Extradition Act : 'The Court does not treat lightly the deprivation of liberty of any person before it, particularly where that person is unwell. However, the Court is obliged to apply the direction of the legislature which places a significant onus in a case such as this on an applicant for bail. It is to be remembered that Australia has continuing obligations to New Zealand which are reflected in the terms of s 35(6) of the Act.' The onus to which I referred in Heslehurst is applicable in this case in a practical, if not a strictly legal, sense (see [4] above). The present application is not brought under s 35(6) of the Extradition Act but Australia's obligations to New Zealand are the same as the obligations to New Zealand to which I referred in Heslehurst . Having given anxious consideration to the material upon which the respondents rely in support of their stay application, I am not satisfied that the material demonstrates the exceptional circumstances necessary to warrant the grant of the stay which they seek. It is open to them to follow the course envisaged by the Extradition Act (ie to make an application to the High Court for bail) with little delay. If such an application is made and it succeeds, the time that they will spend in custody because of the failure of this application for a stay of the Full Court's orders will be brief. The application to stay the orders of the Full Court pronounced this morning is dismissed. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate: Dated: 18 October 2006 Counsel for the Applicant: Ms W Abraham QC and Mr I Bourke Solicitor for the Applicant: Commonwealth Director of Public Prosecutions Counsel for the Respondent: Mr P Byrne SC and Mr M Thangaraj Solicitor for the Respondent: Greg Walsh &amp; Co Date of Hearing: 5 October 2006 Date of Judgment: 5 October 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1363.html
Case: Rahme v Commonwealth Bank of Australia [1993] HCA 62 ; (1993) 117 ALR 618
Outcome: cited
considering whether the above test is satisfied in this case it is appropriate to note that special leave to appeal to the High Court is not readily granted. Apart from the exceptional case in which special leave to appeal to the High Court is granted, a final judgment of the Full Court of this Court is conclusive of any issue arising under the Extradition Act (cf Rahme v Commonwealth Bank of Australia [1993] HCA 62 ; (1993) 117 ALR 618 per Deane J at 620). It is always difficult to assess the likelihood of an application to the High Court for special leave succeeding. Nonetheless in this case I consider it appropriate to give some weight, but not overriding weight, to the fact that the judgment of the Full Court was a unanimous judgment of five judges based on established authority. For this reason it may be assumed that the respondents' application to the High Court will face particular difficulty. The respondents have placed primary reliance on factors which can, I think, be categorised under three headings. First, their previous conduct in the sense that they have been on bail for a long time; have a good record of compliance with conditions of their bail; and have voluntarily attended before this Court on the hearing of their appeal and when judgment was delivered this morning. Secondly, that they seek a stay for a relatively short period of time. Thirdly, that they are both in poor health, including poor psychological health and may face more than usual problems should they be incarcerated.
Case: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
Outcome: cited
the appellant's father had acknowledged to a previous Tribunal that the relevant documents were fraudulent and the Tribunal was satisfied that he was a party to the falsification of the documents (AB386). At AB602, the Tribunal noted that the appellant's father had admitted that his friends had falsely put particular documents together for him. Moreover, these matters were raised by the s 424A letter of 20 September 2007. Second, the Tribunal is not required to make enquiries to verify contentions or to make out a case for the appellant ( Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [78]). Third, as to the question of putting the appraisal process to the appellant, Finn and Stone JJ said this in VAF v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (2004) 206 ALR 471 at [24] in connection with what might constitute information for the purposes of a s 424A letter: ...the word ["information" in the s 424A setting] does not encompass the Tribunal's subjective appraisals, thought processes or determinations: Tin at [54]; Paul at [95]; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 at [25] ; appr [2002] FCAFC 120 ; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 ; (2002) 124 FCR 276 at [26] [29].
Case: VAF v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (2004) 206 ALR 471
Outcome: cited
the appellant's father had acknowledged to a previous Tribunal that the relevant documents were fraudulent and the Tribunal was satisfied that he was a party to the falsification of the documents (AB386). At AB602, the Tribunal noted that the appellant's father had admitted that his friends had falsely put particular documents together for him. Moreover, these matters were raised by the s 424A letter of 20 September 2007. Second, the Tribunal is not required to make enquiries to verify contentions or to make out a case for the appellant ( Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [78]). Third, as to the question of putting the appraisal process to the appellant, Finn and Stone JJ said this in VAF v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (2004) 206 ALR 471 at [24] in connection with what might constitute information for the purposes of a s 424A letter: ...the word ["information" in the s 424A setting] does not encompass the Tribunal's subjective appraisals, thought processes or determinations: Tin at [54]; Paul at [95]; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 at [25] ; appr [2002] FCAFC 120 ; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 ; (2002) 124 FCR 276 at [26] [29].
Case: Soondur v Minister for Immigration &amp; Multicultural Affairs (2002) 122 FCR 578
Outcome: cited
although the appellant was previously included as a dependent in her mother's application for a protection visa, the appellant remains entitled to make an independent application for a protection visa: Soondur v Minister for Immigration &amp; Multicultural Affairs (2002) 122 FCR 578 per Gray, Carr and Goldberg JJ. The respondent makes no challenge to the competency of the application. Second, there seems to be no authority on the question of whether the scope of the inquisitorial role of the Tribunal might be different or whether the Tribunal might be required to make particular enquiries, in discharging the statutory duty of review, when the application for review is made by or on behalf of a minor. In this case, however, the question does not arise because the application was made by the appellant in reliance on the circumstances and claims of her parents and her father had the carriage and prosecution of the application for a protection visa on her behalf and also in relation to all subsequent challenges by the appellant. The appellant's interests before the Tribunal were represented by her father as next friend. Accordingly, it follows that none of the grounds of appeal to this Court have been made out. It therefore follows that the appeal must be dismissed with an order that the appellant pay the first respondent's costs of and incidental to the appeal. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate: Dated: 26 August 2009 Counsel for the Appellant: Appellant appeared in person Solicitor for the Appellant: Appellant appeared in person Counsel for the First Respondent: Ms S Sirtes Solicitor for the First Respondent: DLA Phillips Fox Lawyers Date of Hearing: 3 November 2008 Date of Judgment: 26 August 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/952.html
Case: Home Office v Harman [1983] 1 AC 280
Outcome: cited
Discovery in this Court is discretionary. It is governed by Order 15 of the Federal Court Rules . In particular, r 15.15 provides that the Court will not make an order for discovery "unless satisfied that the order is necessary at the time when the order is made." The exercise of this discretion is usually seen as involving the balancing of competing interests. In Home Office v Harman [1983] 1 AC 280, 308, Lord Keith said: "Discovery constitutes a very serious invasion of the privacy and confidentiality of a litigant's affairs. It forms part of English legal procedure because the public interest in securing that justice is done between parties is considered to outweigh the private and public interest in the maintenance of confidentiality." 20 Relevant factors in determining whether or not the discretion should be exercised include the burden on the discovering party, the benefits of discovery and the circumstances of the discovering party: see Practice Note 14. Further factors include whether discovery would constitute a "fishing exercise" and whether there are policy reasons not to order it. 21 The ASIO Act, by s 6, continues the operation of ASIO. The Director-General is appointed pursuant to s 7 and, by virtue of sub-s 8(1), controls ASIO.
Case: Trade Practices Commission v CC (New South Wales) Pty Ltd (1995) 58 FCR 426
Outcome: cited
Courts have long been wary of ordering discovery to enable parties to 'fish' for a case. Of the term 'fishing expedition' in the discovery context, Lindgren J in Trade Practices Commission v CC (New South Wales) Pty Ltd (1995) 58 FCR 426 at 438 said: "ex hypothesi, the giving of discovery will often, if not always, reveal documents of which the other party was not previously aware ... What is meant is that discovery must not be used for the purpose of ascertaining whether a case exists, as distinct from the purpose of compelling the production of documents where there is already some evidence that a case exists"
Case: Caltex Refining Co Pty Ltd v Amalgamated Metal Workers Union (1990) 51 IR 113
Outcome: applied
More recently, it has been observed by Full Courts of this Court that the reluctance of the court to allow a fishing expedition is not as great as it once was: Caltex Refining Co Pty Ltd v Amalgamated Metal Workers Union (1990) 51 IR 113; Treasurer of the Commonwealth of Australia v CanWest Global Communications Corp [1997] FCA 578 ; see also Bertran v Vanstone [1999] FCA 1753 at [18] to [23]. There are two significant reasons for this. The first is that the Federal Court Rules do not, as most jurisdictions traditionally did, provide for discovery as of right. The second is the introduction in 1988 of Order 15A and its equivalents in other jurisdictions which permit preliminary discovery and discovery against a non-party. These considerations led Burchett J (with whom Lockhart and Gummow JJ agreed) to conclude in Caltex Refining Co Pty Ltd v Amalgamated Metal Workers Union (1990) 51 IR 113 at 116 that " This [fishing] objection to applications for discovery of documents does not now have the weight it was once thought to have. Perhaps it should be seen as a metaphor with more colour than substance." 37 In a sense, the present application is a fishing expedition, and as much is admitted by the applicants. But I do not think it is an impermissible fishing expedition. The purpose of the discovery that is sought is not for the applicants to determine if they have a case. If the applicants are right that they have no idea why the adverse security assessments have been made, then it follows that they must have a case that is at least arguable. Their case is that, because they have done nothing to constitute a threat to national security, any finding that they are such a threat must have been made in error. The purpose of discovery is to determine the nature of that error, not whether it exists. The classes of document sought are not overly broad and can be stated simply. The existence of the security assessments is admitted and the existence of documents supporting them can be readily inferred. The 'fishing' allegation does not dissuade me from ordering discovery. 38 I have said at [32] that discovery and production are not the same thing; a party may be entitled to the one but not the other. So far, I have not had to consider whether the applicants would be entitled to have produced to them or to their legal advisers the documents sought in discovery. That question was not addressed in argument. If I were satisfied that under no circumstances could they compel production of the documents sought, then I would be inclined against ordering discovery on the ground that it would be futile. For the same reason that a court will not grant leave to hear an appeal that is doomed to fail, it should not generally order discovery of a document production of which can never be compelled. Courts do not make nugatory orders.
Case: Tasker v Fullwood (1978) 1 NSWLR 20
Outcome: considered
On behalf of Jemella Australia the submission which is made is that one ought not to regard the references in s 137(1) to a 10-day period as rigid. In aid of that particular construction reference is made to a passage in the reasons for judgment of the New South Wales Court of Appeal in Tasker v Fullwood (1978) 1 NSWLR 20 at 23, which was approved by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355 at 390. The passage from Tasker v Fullwood , which received approval is as follows: The problem is to be solved in the process of construing the relevance statute. Little, if any, assistance, will be derived from the terms of other statutes or any supposed judicial classification of them by reference to subject matter. The task of construction is to determine whether the legislature intended that if only to comply with the stipulated requirement would invalidate the act done, or whether the validity of the act would be preserved notwithstanding non-compliance: the Franklin Stores Pty Ltd case. The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute: Hatton v Beaumont. The intention being sought is the effect upon the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement: Victoria v The Commonwealth. It can mislead if one substitutes for the question thus posed an investigation as to whether the statute is mandatory or directory in its terms. It is an invitation to error, not only because the true inquiry will thereby be sidetracked, but also because these descriptions have been used with varying significations. In particular, it is wrong to say that, if a statute is couched in directory terms, the act will be invalid, unless substantial performance is demonstrated; the Franklin Stores Pty Ltd case. A statute which, on its proper construction, does not nullify the act in question, even for total non-observance of the stipulation, is also described as directory in its terms: Victoria v The Commonwealth (internal footnote references omitted).