mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: R v Hibble; Ex parte Broken Hill Pty Co Ltd [1920] HCA 83 ; (1920) 28 CLR 456
Outcome: applied
However that may be, the University says that the prosecutrix is not entitled to any relief. The first point is that prohibition is not available because the order the subject of prohibition is exhausted and if prohibition is not available nor is certiorari, which is merely an ancillary remedy. Let it be assumed that it is not possible to obtain certiorari other than as an ancillary relief: as authority for this approach see Madden v Madden (1996) 65 FCR 354. The problem for the University is that the underlying premise that the Federal Magistrates Court order is exhausted is false. This is so for several reasons. First, although the action has been dismissed with costs and the costs have been taxed (it is the fact of taxation which is the basis for the contention that the order is exhausted) the costs have not been paid and unless prohibition issues, action can be taken to enforce the order: Ex parte Goodwin; Re Carruthers (1969) 70 SR (NSW) 175; cf Ex parte Browne; Re McNamara (1967) 68 SR (NSW) 188 which may have been incorrectly decided but is in any case distinguishable. Second, and more importantly, the order operates to bar the prosecutrix' claims. They have merged in the judgment. According to the High Court in R v Hibble; Ex parte Broken Hill Pty Co Ltd [1920] HCA 83 ; (1920) 28 CLR 456, 463, the test for the issue of prohibition is not whether the inferior court is functus officio or whether its order can no longer be enforced. The true question is whether the order made without jurisdiction "remains in force so as to impose liabilities on an individual". The order of the Federal Magistrates Court plainly does that. In any event, as Knox CJ and Gavan Duffy J said in their joint judgment in R v Hibble (at 463): "If ... the issue of the writ be regarded as intended to keep an inferior court within the limits of its jurisdiction, it should never be too late to get rid of what might be regarded in the future as a precedent for the exercise of a jurisdiction which is not really justified by the law." See also Roberts v Humby (1837) 3 M&amp;W 120, 127; Farquharson v Morgan [1894] 1 QB 552, 556, 559, 560.
Case: R v Ross-Jones; Ex parte Green [1984] HCA 82 ; (1984) 156 CLR 185
Outcome: applied
Next it was submitted that the prosecutrix had not availed herself of the right to apply under r 16.05(2) of the Federal Magistrates Court Rules to set aside the judgment that was entered in her absence. The authorities say, however, that if the excess of jurisdiction of the inferior court is clearly shown the fact that there is another remedy is in general of no consequence: R v Ross-Jones; Ex parte Green [1984] HCA 82 ; (1984) 156 CLR 185, 194. 17 The prosecutrix is entitled to the relief she seeks but not, I think, to any costs, for if she incurred any that has been occasioned not by any fault of the University. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein. Associate: Dated: 4 April 2006 Prosecutrix appeared in person. Counsel for the Respondent: Mr C Caleo Solicitor for the Respondent: Minter Ellison Date of Hearing: 28 February 2006 Date of Judgment: 4 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/361.html
Case: Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16 ; (2002) 209 CLR 372
Outcome: cited
At one time it was accepted that where there had been an apparent excess of jurisdiction by an inferior court a writ of prohibition would issue as of right. Even the acquiescence of the prosecutrix in the exercise of the inferior court's jurisdiction could not preclude her from applying for the writ: see eg Farquharson v Morgan [1894] 1 QB 552. Now it is clear that the issue of any of the constitutional writs is discretionary and, in an appropriate case, relief may be refused even if the grounds for the issue of the writ be made out: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82; Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16 ; (2002) 209 CLR 372. Nevertheless, I am bound to say that it would require a strong case before a supervising court would permit an inferior court to proceed with matters in respect of which it apparently has no jurisdiction.
Case: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82
Outcome: cited
At one time it was accepted that where there had been an apparent excess of jurisdiction by an inferior court a writ of prohibition would issue as of right. Even the acquiescence of the prosecutrix in the exercise of the inferior court's jurisdiction could not preclude her from applying for the writ: see eg Farquharson v Morgan [1894] 1 QB 552. Now it is clear that the issue of any of the constitutional writs is discretionary and, in an appropriate case, relief may be refused even if the grounds for the issue of the writ be made out: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82; Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16 ; (2002) 209 CLR 372. Nevertheless, I am bound to say that it would require a strong case before a supervising court would permit an inferior court to proceed with matters in respect of which it apparently has no jurisdiction.
Case: Roberts v Humby (1837) 3 M&amp;W 120
Outcome: cited
However that may be, the University says that the prosecutrix is not entitled to any relief. The first point is that prohibition is not available because the order the subject of prohibition is exhausted and if prohibition is not available nor is certiorari, which is merely an ancillary remedy. Let it be assumed that it is not possible to obtain certiorari other than as an ancillary relief: as authority for this approach see Madden v Madden (1996) 65 FCR 354. The problem for the University is that the underlying premise that the Federal Magistrates Court order is exhausted is false. This is so for several reasons. First, although the action has been dismissed with costs and the costs have been taxed (it is the fact of taxation which is the basis for the contention that the order is exhausted) the costs have not been paid and unless prohibition issues, action can be taken to enforce the order: Ex parte Goodwin; Re Carruthers (1969) 70 SR (NSW) 175; cf Ex parte Browne; Re McNamara (1967) 68 SR (NSW) 188 which may have been incorrectly decided but is in any case distinguishable. Second, and more importantly, the order operates to bar the prosecutrix' claims. They have merged in the judgment. According to the High Court in R v Hibble; Ex parte Broken Hill Pty Co Ltd [1920] HCA 83 ; (1920) 28 CLR 456, 463, the test for the issue of prohibition is not whether the inferior court is functus officio or whether its order can no longer be enforced. The true question is whether the order made without jurisdiction "remains in force so as to impose liabilities on an individual". The order of the Federal Magistrates Court plainly does that. In any event, as Knox CJ and Gavan Duffy J said in their joint judgment in R v Hibble (at 463): "If ... the issue of the writ be regarded as intended to keep an inferior court within the limits of its jurisdiction, it should never be too late to get rid of what might be regarded in the future as a precedent for the exercise of a jurisdiction which is not really justified by the law." See also Roberts v Humby (1837) 3 M&amp;W 120, 127; Farquharson v Morgan [1894] 1 QB 552, 556, 559, 560.
Case: Stack v Coast Securities (No 9) Pty Ltd [1983] HCA 36 ; (1983) 154 CLR 261
Outcome: cited
I will now explain why the Federal Magistrates Court had no jurisdiction to entertain the claim under s 51AB. By Ch III of the Constitution federal Parliament is given power to create federal courts and to invest them with federal jurisdiction, including jurisdiction which is exclusive of the jurisdiction of other federal courts: Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7 ; (1981) 148 CLR 457. The jurisdiction which may be conferred on a federal court is in respect of federal subject matters, that is matters of the kind mentioned in ss 75 and 76 of the Constitution . The jurisdiction of a federal court is not, however, confined to matters which are expressly conferred on the court. It will include what is sometimes referred to as "accrued jurisdiction" and, in the case of both the Federal Court and the Federal Magistrates Court, it also includes "associated jurisdiction": Federal Court of Australia Act 1976 (Cth), s 32 ; Federal Magistrates Court Act 1999 (Cth), s 18. As to the distinction between "accrued jurisdiction" and "associated jurisdiction" see Stack v Coast Securities (No 9) Pty Ltd [1983] HCA 36 ; (1983) 154 CLR 261. (See also WMC Gummow, "Pendent Jurisdiction in Australia Section 32 of the Federal Court of Australia Act 1976" (1979) 10 Federal Law Review 211; L Zines, "Federal, Associated and Accrued Jurisdiction" in B Opeskin and F Wheeler (eds) The Australian Federal Judicial System , Melbourne University Press, 2000, p 265).
Case: SZIUE v Minister for Immigration &amp; Anor [2006] FMCA 1551
Outcome: affirmed
the grounds of appeal nor the submission filed prior to the hearing on behalf of the appellant isolate any appealable error in the decision of the Federal Magistrate from which the appeal is brought ( SZIUE v Minister for Immigration &amp; Anor [2006] FMCA 1551). Rather, there is a repetition of complaints made in the proceedings in the Federal Magistrates Court concerning the proceedings of the Refugee Review Tribunal (the Tribunal). Each of those complaints was properly considered and disposed of in a reasoned decision by Scarlett FM. Having read the comprehensive submissions of counsel for the Minister I would be content to simply say that no basis has been put forward to demonstrate any error in the reasons of the Federal Magistrates Court.
Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; 231 ALR 592
Outcome: referred to
because of the repetition of complaints as to the manner in which the hearing was conducted, in effect alleging failure to accord procedural fairness and bias, I have read the transcript of what occurred at that hearing in the light of the later reasons of the Tribunal and in the light of the nature of the complaints made in the proceedings in the Federal Magistrates Court and repeated in this Court. I have also taken into account the recent decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; 231 ALR 592. Having done so, I agree with the submission by counsel for the Minister that there is nothing in that decision which causes any disquiet as to whether there was lack of procedural fairness or bias in the present circumstances. Scarlett FM adequately dealt with the criticisms of the Tribunal's procedure. However, one aspect of the matter concerned me. The appellant's basic case was that he feared persecution if he returned to China on account of his practising the Christian religion in association with an unregistered church. He claimed to have been converted to Christianity by a fellow labourer in a construction gang who spread the gospel amongst gang members who met and studied the Bible at secret gatherings. He was baptised by a priest organised by the fellow labourer who also led the group into seeking to spread the gospel to other labourers and local villagers with religious propaganda materials. This, he claimed, led to persecution at the hands of local authorities. This caused him to flee China and come to Australia. He claims to have practised Christianity at a local Sydney church since arrival in Australia. During the course of the hearing the Tribunal member referred to some particular country information and made it clear that she had difficulty in believing that studying the Bible with a small group of workers, not being of a particular denominational group or of a particular belief, would be regarded as a church in the eyes of the Communist government.
Case: Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126 ; (1998) 86 FCR 547
Outcome: followed
2 raises considerations on the merits and questions of fact. The conclusion which the Tribunal reached, it seems to me, was open to it. The appellant has submitted that the Tribunal did not consider the reality of the chance of his persecution because of his political opinions and social activities. However, a fair reading of the Tribunal's reasons makes clear that these matters were considered, and considered in detail. At the heart of the Tribunal's conclusion in this respect, as I have already mentioned, are questions of fact and credibility, which are matters for the Tribunal alone (see Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126 ; (1998) 86 FCR 547 ; and NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10).
Case: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Outcome: followed
2 raises considerations on the merits and questions of fact. The conclusion which the Tribunal reached, it seems to me, was open to it. The appellant has submitted that the Tribunal did not consider the reality of the chance of his persecution because of his political opinions and social activities. However, a fair reading of the Tribunal's reasons makes clear that these matters were considered, and considered in detail. At the heart of the Tribunal's conclusion in this respect, as I have already mentioned, are questions of fact and credibility, which are matters for the Tribunal alone (see Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126 ; (1998) 86 FCR 547 ; and NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10).
Case: Prasad v Minister for Immigration and Citizenship [1985] FCA 47 ; (1985) 6 FCR 155
Outcome: followed
additional matter raised in the appellant's Written Submission is also a matter which I think the appellant has failed to make good. The Tribunal used appropriate means to contact the officer in charge at the Jagira Police Station and received a communication from that person to the effect that the alleged charges were not genuine. I do not think that this is a case where further investigation on the part of the Tribunal was required (see Prasad v Minister for Immigration and Citizenship [1985] FCA 47 ; (1985) 6 FCR 155 at 169 170).
Case: SZNEC v Minister for Immigration and Citizenship [2009] FMCA 432
Outcome: cited
the Federal Magistrate, the appellant claimed that the Tribunal had erred because it had failed to comply with s 424(3)(a) and s 424B of the Migration Act 1958 (Cth) ( the Act ). The Federal Magistrate took the view that these points were covered by the decision of the Full Court of this Court in SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51 ; (2009) 255 ALR 407. The Federal Magistrate also relied upon a decision of his own in SZNEC v Minister for Immigration and Citizenship [2009] FMCA 432. The Federal Magistrate held that the issues in the present case were indistinguishable from those in SZNEC [2009] FMCA 432. The Federal Magistrate said ( SZMXP [2009] FMCA 495 at [7] ): In my view, it is clear that the outcome in this case is determined by the decision of the Full Court in SZLPO . Based upon the reasoning of the Full Court, and my own analysis of that reasoning in SZNEC , there was no breach of s.424 or s. 424B in this case. Section 424(2) does not apply because the Tribunal was not seeking additional information from a natural person. Neither, on the facts of this case, was DFAT acting as the agent of the Tribunal. Because s.424(2) does not apply, neither does s.424B. It follows that no jurisdictional error in the decision of the Tribunal has been established and the application must be dismissed as a privative clause decision. I will so order.
Case: Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 2) (1998) 28 ACSR 688
Outcome: cited
delisting now will not occur until either 1 November 2006 or 1 May 2007 according to the letter from the ASX dated 28 April 2006. Whether to comply or not with the listing rules seems to me, in the circumstances of this case, a matter for LND and its directors. As matters now stand, DPE and LAM have the ability to sell their shares whilst LND is still listed. I will therefore not impose a sale as this would not be appropriate. As to the other remedies sought, I consider there to be no warrant for such an intrusion into the affairs of LND: see, generally, Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 2) (1998) 28 ACSR 688 and Martin v Australian Squash Club Pty Ltd (1996) 14 ACLC 452, 475.
Case: M Dalley &amp; Co Pty Ltd v Sims [1968] HCA 82 ; (1968) 120 CLR 603
Outcome: considered
question of whether the directors of LND put the plaintiffs in a position where the only possible remedy was litigation, to use the arguendo comments of Kitto J in M Dalley &amp; Co Pty Ltd v Sims [1968] HCA 82 ; (1968) 120 CLR 603 at 606, will depend upon the view I take as to the merits of the plaintiffs' case prior to the litigation commencing. If the plaintiffs do not have a basis for claiming relief in these proceedings then I do not see how the observations of Kitto J - which are said, in any event, in a different context - can be of much assistance to the plaintiffs. The main issue comes down to whether the actions of the directors on 22 June 2006 and 23 June 2006 were such as to constitute conduct which was contrary to the interests of the members as a whole, or oppressive to, unfairly prejudicial to or unfairly discriminatory against, a member or members, whether in that capacity or in any other capacity. Taking into account the history of LND as detailed above, the fact that the market in its shares is illiquid, even whilst listed, and the decisions made by the directors as to the express concerns of the plaintiffs, it is difficult to see any unfairness to the plaintiffs.
Case: Martin v Australian Squash Club Pty Ltd (1996) 14 ACLC 452, 475
Outcome: cited
delisting now will not occur until either 1 November 2006 or 1 May 2007 according to the letter from the ASX dated 28 April 2006. Whether to comply or not with the listing rules seems to me, in the circumstances of this case, a matter for LND and its directors. As matters now stand, DPE and LAM have the ability to sell their shares whilst LND is still listed. I will therefore not impose a sale as this would not be appropriate. As to the other remedies sought, I consider there to be no warrant for such an intrusion into the affairs of LND: see, generally, Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 2) (1998) 28 ACSR 688 and Martin v Australian Squash Club Pty Ltd (1996) 14 ACLC 452, 475.
Case: Re G Jeffrey (Mens Store) Pty Ltd and G Jeffrey Pty Ltd (1984) 9 ACLR 193
Outcome: considered
circumstances are not too dissimilar to certain aspects of the case before Crockett J in Re G Jeffrey (Mens Store) Pty Ltd and G Jeffrey Pty Ltd (1984) 9 ACLR 193. Of course, each case must be looked at on the basis of its own facts and circumstances. It is significant that ASX itself is taking the initiative to delist LND. Having regard to the nature of the listing rules, it seems to me to be up to LND itself to make a decision whether to comply or not. It seems that to comply would involve a change in direction for LND which the directors themselves consider to be commercially inappropriate. As far as the evidence shows, the investment strategy and approach of the directors has been very successful. It was said on behalf of the plaintiffs that, prior to delisting, some opportunity should have been given to the plaintiffs to sell their shares in the market. I am looking at the position prior to the institution of proceedings unaffected by the decision made by LND on 28 July 2006, and recalling that it is not suggested that the resolution of LND on 22 June 2006 and announcement on 23 June 2006 were made in bad faith or for an improper purpose. In not giving some further opportunity to sell, I am not satisfied that there is any element of unfairness, commercial or otherwise, having regard to the particular circumstances of LND and the current market. Delisting seems inevitable if ASX persists with its current attitude. Further, I am not satisfied on the evidence that the immediate delisting without giving LAM or DPE an opportunity to sell their shares would have made any substantial difference to those companies in disposing of their shares in a sufficient quantity and at an appropriate price. I will accept that there may be a value to be attached to the listed shares over and above unlisted shares, however the evidence is a little unsatisfactory in that regard.
Case: Re Spargos Mining NL (1990) 3 WAR 166
Outcome: followed
it is not necessary that the conduct of which the plaintiffs complain be continuing at the time of the application or at the time when the court comes to consider the matter. However, that question may well be relevant as to whether relief is granted at all or what is the appropriate relief: Re Spargos Mining NL (1990) 3 WAR 166. One must look to all the circumstances, including the timing of the actions of the defendants, to ascertain whether particular conduct is within the terms of ss 232(d) or (e). One event or one act in itself may not constitute an act which will provide the basis for the court to conclude that the conduct is within these provisions. However a number of events or acts, when viewed cumulatively, may well provide such a basis. The main complaint in this case is that the defendants unfairly took action to put a restriction upon the plaintiffs' ability to sell their shares through the taking of a positive action to delist LND. The restriction was not so much one which realistically imposed any greater restraint upon the volume of shares that could be sold, but it was said that it did impact upon the price that could be achieved. The evidence seems clear that, whether listed or not, the plaintiffs would have difficulty in selling their shares, even if they were so minded to sell. There was evidence of a recent sale of some 680 of DPE's shares for the price of $46 each which seemed to be above the 'fair value' attributed by the directors of LND. In addition to this positive action to delist, the plaintiffs call in aid a number of other factors which indicate the unfair dealing, such as the failure to respond to requests addressing their concerns and other correspondence, compelling the institution of these proceedings and failing to notify in a timely matter various matters affecting LND.