mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22 ; (1953) 88 CLR 100
Outcome: followed
In The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22 ; (1953) 88 CLR 100 at 120 ,Dixon CJ, Williams, Webb and Fullagar JJ said: 'The inadequacy of the material is not in itself a ground for prohibition. But it is a circumstance which may support the inference that the tribunal is applying the wrong test or is not in reality satisfied of the requisite matters. If there are other indications that this is so or that the purpose of the function committed to the tribunal is misconceived it is but a short step to the conclusion that in truth the power has not arisen because the conditions for its exercise do not exist in law and in fact.' (see too Bushell v Repatriation Commission [1992] HCA 47 ; (1992) 175 CLR 408 at 421-422 per Mason CJ, Deane and McHugh JJ)
Case: Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18 ; (1996) 189 CLR 1
Outcome: cited
In arriving at what it considers to be the correct or preferable decision ( Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18 ; (1996) 189 CLR 1 at 18) at the conclusion of its review under ss 414(1) and 415 of the Act, the tribunal must give 'proper, genuine and realistic consideration to the merits of the case' ( Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J, Zhang v Canterbury City Council [2001] NSWCA 167 ; (2001) 51 NSWLR 589 at 601 [62] where Spigelman CJ collected the authorities; Minister for Immigration v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 367 [138] per Kirby J.
Case: Zhang v Canterbury City Council [2001] NSWCA 167 ; (2001) 51 NSWLR 589
Outcome: referred to
In arriving at what it considers to be the correct or preferable decision ( Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18 ; (1996) 189 CLR 1 at 18) at the conclusion of its review under ss 414(1) and 415 of the Act, the tribunal must give 'proper, genuine and realistic consideration to the merits of the case' ( Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J, Zhang v Canterbury City Council [2001] NSWCA 167 ; (2001) 51 NSWLR 589 at 601 [62] where Spigelman CJ collected the authorities; Minister for Immigration v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 367 [138] per Kirby J.
Case: Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336
Outcome: referred to
In my opinion, the question of whether there was even an arguable case of fraud raised before the Federal Magistrate is finely balanced. Counsel for the Minister referred to the transcript of the hearing before the Federal Magistrate and reminded me of the fact that strong evidence is usually required to establish fraud. He referred to Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336. There is considerable force in the Minister's submissions. The appellant appears to have changed his story on whether his signature appears on one of the documents. More importantly perhaps is that, on the face of it, it is difficult to discern a motive for any fraudulent dealing on the part of Mr Lue. Despite these considerations, I do not think I should go so far as to conclude that on no possible view of the evidence before the Federal Magistrate could fraud be established. If the appellant's signature was falsely placed on a relevant document and part of a statement "made up", then that may go some way towards establishing fraud, although it will still be necessary for the appellant to show that the fraud (if there be fraud) has affected the process prescribed by the Act . I am not to be taken as saying that it is likely that fraud will be made out, but simply that I cannot be certain that it cannot be made out. It seems to me that the application for constitutional writs must be remitted to the Federal Magistrates Court for rehearing in accordance with these reasons. I am satisfied that the circumstances are such that a rehearing of the application is necessary. 38 The appeal must be allowed and the orders made by the Federal Magistrate on 29 January 2007 must be set aside. The application is remitted to the Federal Magistrates Court of Australia for rehearing in accordance with these reasons. I will hear the parties on the question of costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 13 December 2007 The Appellant appeared in person Counsel for the Respondent: Mr P S Braham Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 2 May, 6 and 27 June 2007 Date of Judgment: 13 December 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1980.html
Case: Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 ; (2006) 154 FCR 365
Outcome: referred to
The Magistrate said that the appellant's claim was that he was unaware of the proposed Tribunal hearing on 2 December 2004 because his agent did not tell him about it. He noted that the appellant described the agent's conduct as "wrongful" and that the written submissions filed by counsel for the appellant sought to separate the issue of wrongful conduct into fraudulent and non-fraudulent conduct. The Magistrate said that while some authorities suggested that such a dichotomy might have been a useful one in proceedings, recent decisions binding on him led to a different conclusion. The Magistrate referred to various sections in the Migration Act and decisions of this Court, including the decision of the Full Court of this Court in Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 ; (2006) 154 FCR 365 (" SZFDE "). The Magistrate took the view that an agent's wrongful conduct, whether fraudulent or not, in failing to inform an applicant of a hearing of the Tribunal of which notification had been given did not give rise to jurisdictional error. The Federal Magistrate did not make an express finding to the effect that the appellant's agent did not advise him of the proposed hearing before the Tribunal because he said that even if that were so it did not affect the result. He said that the outcome of the application for constitutional writs in relation to the decision of the Tribunal did not turn on whether or not the agent's conduct in not informing the appellant of the proposed Tribunal hearing was fraudulent. The Magistrate said: Therefore, the Tribunal was entitled under the Act to proceed to a determination notwithstanding that the applicant may not have been informed by his agent of the Tribunal's proposed hearing, with the result that the Tribunal's decision is not affected by jurisdictional error on this account. 25 As I have said, the Federal Magistrate did not find it necessary to make findings as to whether the appellant was aware of the proposed hearing of the Tribunal or whether, assuming he was not aware, that came about as a result of fraud or negligence or mistake on the part of Mr Lue.
Case: SZFDE v Minister for Immigration and Citizenship (2007) 81 ALJR 1401
Outcome: referred to
The respondent in SZFDE sought and obtained from the High Court of Australia special leave to appeal against the decision of the Full Court of this Court. The appeal was heard on 24 May 2007 and, on 2 August 2007, the High Court handed down its decision. The Court reversed the decision of the Full Court of this Court: SZFDE v Minister for Immigration and Citizenship (2007) 81 ALJR 1401. 28 The appellant submitted that the Federal Magistrate erred in concluding that the Tribunal was entitled to proceed to determine the application for review even though he (the appellant) had not been informed of the proposed hearing of the Tribunal. 29 For his part, the Minister sought an extension of the time within which to file and serve a notice of contention. On 6 June 2007 I granted that extension of time. The notice of contention is in the following terms: The first respondent contends that the judgment of Federal Magistrate Cameron should be affirmed on the following grounds (not being grounds relied upon by the court below): 1. There was no evidence before Federal Magistrate Cameron upon which the Court could have found that the applicant's adviser had fraudulently failed to inform the applicant of the hearing before the Tribunal; and 2. Federal Magistrate Cameron should have rejected the applicant's contention that his adviser had fraudulently failed to inform the applicant of the hearing before the Tribunal.
Case: SZGQL v Minister for Immigration and Multicultural Affairs [2006] FCA 1420
Outcome: referred to
On the authorities as they stood at the time of the Federal Magistrate's decision, his decision was correct: SZFDE ; SZGQL v Minister for Immigration and Multicultural Affairs [2006] FCA 1420.
Case: Baygol Pty Ltd v Huntsman Chemical Co Australia Pty Limited t/a RMAH [2004] FCA 1248
Outcome: cited
I do not accept this submission. Clearly the Probiotec parties were a party to the litigation. The expression "litigation" in this case should be read as a reference to both the infringement and validity aspects of the proceeding. It should not be confined simply to the cross claim alleging invalidity brought by the NSI parties. They denied not only infringement but also invalidity. They gave an undertaking inter partes not to carry out relevant conduct, but this was a conditional undertaking in that it was made without admissions and was only to continue until the outcome of the proceedings, and even then only in the event that they were unsuccessful in their defence. In my view, the principles in Knight are not relevant to the present circumstances. When looked at in the context of the overall litigation, the Probiotec parties intended to and did take advantage of the invalidity claim and non-infringement submissions advanced on behalf of the NSI parties. Looking at the substance of the position taken by the Probiotec parties, the non-infringement defence in relation to the patent involves by its nature, substance and effect a consideration of the patent's validity in a real sense: see Baygol Pty Ltd v Huntsman Chemical Co Australia Pty Limited t/a RMAH [2004] FCA 1248 at [27] - [28] ; and Farmitalia Carlo Erba SrL v Delta West Pty Ltd (1994) 28 IPR 336 at 339 and 341. The end result of this consideration is that, although they took no active part in argument or in the conduct of the proceeding, the Probiotec parties, in denying infringement and asserting invalidity in the event that infringement was found to have been made out, were content to allow the NSI parties to put the case and to rely on the same submissions thus advanced. When regard is had to the limited and conditional nature of the position taken by them in the undertaking and in not withdrawing the pleading as to invalidity, the approach of the Probiotec parties to the litigation was not one simply of a submitting party. The University parties therefore are entitled to their costs against the Probiotec parties, including costs on the question of invalidity and infringement.
Case: Farmitalia Carlo Erba SrL v Delta West Pty Ltd (1994) 28 IPR 336
Outcome: cited
I do not accept this submission. Clearly the Probiotec parties were a party to the litigation. The expression "litigation" in this case should be read as a reference to both the infringement and validity aspects of the proceeding. It should not be confined simply to the cross claim alleging invalidity brought by the NSI parties. They denied not only infringement but also invalidity. They gave an undertaking inter partes not to carry out relevant conduct, but this was a conditional undertaking in that it was made without admissions and was only to continue until the outcome of the proceedings, and even then only in the event that they were unsuccessful in their defence. In my view, the principles in Knight are not relevant to the present circumstances. When looked at in the context of the overall litigation, the Probiotec parties intended to and did take advantage of the invalidity claim and non-infringement submissions advanced on behalf of the NSI parties. Looking at the substance of the position taken by the Probiotec parties, the non-infringement defence in relation to the patent involves by its nature, substance and effect a consideration of the patent's validity in a real sense: see Baygol Pty Ltd v Huntsman Chemical Co Australia Pty Limited t/a RMAH [2004] FCA 1248 at [27] - [28] ; and Farmitalia Carlo Erba SrL v Delta West Pty Ltd (1994) 28 IPR 336 at 339 and 341. The end result of this consideration is that, although they took no active part in argument or in the conduct of the proceeding, the Probiotec parties, in denying infringement and asserting invalidity in the event that infringement was found to have been made out, were content to allow the NSI parties to put the case and to rely on the same submissions thus advanced. When regard is had to the limited and conditional nature of the position taken by them in the undertaking and in not withdrawing the pleading as to invalidity, the approach of the Probiotec parties to the litigation was not one simply of a submitting party. The University parties therefore are entitled to their costs against the Probiotec parties, including costs on the question of invalidity and infringement.
Case: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748
Outcome: cited
Although the discretion of the Court to award costs is a broad one, it must be exercised judicially and unless special circumstances are shown a successful litigant will receive costs: see Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 per Toohey J. In the present case the question is whether there are special circumstances in relation to the Probiotec parties which displace that general rule.
Case: Knight v F.P. Special Assets LTD [1992] HCA 28 ; 1992 174 CLR 178
Outcome: distinguished
The Probiotec parties refer in support of their case on costs to the decision in Knight v F.P. Special Assets Ltd [1992] HCA 28 ; (1992) 174 CLR 178 at 192-193, where Mason CJ and Deane J considered the principles on which costs may be awarded against a non-party to the litigation. Their Honours referred to the position where the non-party has played an active part in the conduct of the litigation and where the non-party, or some person on whose behalf he or she is acting, has an interest in the subject of the litigation. The Probiotec parties say in the present case that they were not party to the cross claim alleging invalidity of the patent claim, that they were drawn into the litigation in which they played no active role, and that they should not be the subject of adverse costs order. 23 I do not accept this submission. Clearly the Probiotec parties were a party to the litigation. The expression "litigation" in this case should be read as a reference to both the infringement and validity aspects of the proceeding. It should not be confined simply to the cross claim alleging invalidity brought by the NSI parties. They denied not only infringement but also invalidity. They gave an undertaking inter partes not to carry out relevant conduct, but this was a conditional undertaking in that it was made without admissions and was only to continue until the outcome of the proceedings, and even then only in the event that they were unsuccessful in their defence. In my view, the principles in Knight are not relevant to the present circumstances. When looked at in the context of the overall litigation, the Probiotec parties intended to and did take advantage of the invalidity claim and non-infringement submissions advanced on behalf of the NSI parties. Looking at the substance of the position taken by the Probiotec parties, the non-infringement defence in relation to the patent involves by its nature, substance and effect a consideration of the patent's validity in a real sense: see Baygol Pty Ltd v Huntsman Chemical Co Australia Pty Limited t/a RMAH [2004] FCA 1248 at [27] - [28] ; and Farmitalia Carlo Erba SrL v Delta West Pty Ltd (1994) 28 IPR 336 at 339 and 341. The end result of this consideration is that, although they took no active part in argument or in the conduct of the proceeding, the Probiotec parties, in denying infringement and asserting invalidity in the event that infringement was found to have been made out, were content to allow the NSI parties to put the case and to rely on the same submissions thus advanced. When regard is had to the limited and conditional nature of the position taken by them in the undertaking and in not withdrawing the pleading as to invalidity, the approach of the Probiotec parties to the litigation was not one simply of a submitting party. The University parties therefore are entitled to their costs against the Probiotec parties, including costs on the question of invalidity and infringement.
Case: Minogue v Human Rights &amp; Equal Opportunity Commission [1999] FCA 85 ; (1999) 84 FCR 438
Outcome: referred to
The applicant submitted that the intention to proceed on the basis that no claims had been made out which might be affected by the implicit non-refoulement obligation was inconsistent with the legitimate expectation that the Minister would act in conformity with the ICCPR. There was an expectation that if the Minister proposed to act in a manner which was not consistent with Australia's obligations under the ICCPR, that he would be afforded procedural fairness in relation to this intention and given the opportunity to argue against that course. Reference was made to Minogue v Human Rights &amp; Equal Opportunity Commission [1999] FCA 85 ; (1999) 84 FCR 438 at [37] . 14 The Minister submitted that the applicant had not in fact made claims that required assessment in relation to international obligations. The Minister submitted that the applicant's claims did not show or reasonably show that he would suffer subjection to torture or cruel, inhuman or degrading treatment or punishment by someone in Serbia. 15 Article 7 of the ICCPR provides: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation. 18 The applicant submitted that the Minister was required to consider Australia's international obligations under Art 31(1) of the Convention relating to the Status of Stateless Persons (CSSP) and that if he proposed to depart from that, the applicant was entitled to notice and that he had a legitimate expectation that he would be given an opportunity to argue against that course being taken: Minogue . Article 31 provides that: The Contracting States shall not expel a stateless person lawfully in their territory save on grounds of national security or public order. 28 As the Full Court noted in Minogue , the authority relied on by counsel for the applicant, the notion that departure from a course that a person has an expectation will be followed, is an aspect of procedural fairness. Even making a range of assumptions in the applicant's favour about the contents of the two international instruments and that an expectation of the type asserted had been raised in a general sense, the applicant singularly failed to provide the Minister with any information which might reasonably have caused the Minister not to decide to cancel the applicant's visa because of the instruments. In substance, the factual case now called in aid to establish that there would have been an expectation that the Minister would act in a particular way, was a case never raised with the Minister before he made the impugned decision. There was no unfairness: see Lam at [24]-[25]. At best, it would be a case based on facts now known and advanced by the applicant in these proceedings.
Case: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1
Outcome: referred to
The Minister submitted that, following the decision in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1, the applicant must do more than simply identify an expectation that a particular treaty would be applied. The applicant must identify some respect in which he suffered a practical injustice because of the procedure that was followed. The Minister submitted that even if the Court were to find that the applicant was stateless the applicant could not have had a legitimate expectation that the Minister would consider obligations arising under the CSSP because the CSSP was not one of the international instruments expressly referred to in Direction 21. 28 As the Full Court noted in Minogue , the authority relied on by counsel for the applicant, the notion that departure from a course that a person has an expectation will be followed, is an aspect of procedural fairness. Even making a range of assumptions in the applicant's favour about the contents of the two international instruments and that an expectation of the type asserted had been raised in a general sense, the applicant singularly failed to provide the Minister with any information which might reasonably have caused the Minister not to decide to cancel the applicant's visa because of the instruments. In substance, the factual case now called in aid to establish that there would have been an expectation that the Minister would act in a particular way, was a case never raised with the Minister before he made the impugned decision. There was no unfairness: see Lam at [24]-[25]. At best, it would be a case based on facts now known and advanced by the applicant in these proceedings.
Case: VKAC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 124
Outcome: referred to
The Minister referred to authority for the proposition that citizenship or statelessness are not relevant considerations required to be taken into account (see VKAC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 974 (at [43])) however, since making that submission a Full Court has allowed an appeal against that decision ( VKAC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 124).
Case: VKAC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 974
Outcome: referred to
The Minister referred to authority for the proposition that citizenship or statelessness are not relevant considerations required to be taken into account (see VKAC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 974 (at [43])) however, since making that submission a Full Court has allowed an appeal against that decision ( VKAC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 124).