mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Waters v Public Transport Corporation [1991] HCA 49 ; (1991) 173 CLR 349
Outcome: cited
As observed by Brennan J in Waters v Public Transport Corporation [1991] HCA 49 ; (1991) 173 CLR 349 at 378 in considering the concept of reasonableness in a similar legislative provision: 'It is not possible to determine reasonableness in the abstract; it must be determined by reference to the activity or transaction in which the putative discriminator is engaged. Provided the purpose of the activity or transaction is not to discriminate on impermissible grounds, the reasonableness of a requirement or condition depends on whether it is reasonable to impose the requirement or condition in order to perform the activity or complete the transaction. There are two aspects to this criterion of reasonableness: first, whether the imposition of the condition is appropriate and adapted to the performance of the activity or the completion of the transaction; second, whether the activity could be performed or the transaction completed without imposing a requirement or condition that is discriminatory...or that is as discriminatory as the requirement or condition imposed. These are questions of fact and degree. Effectiveness, efficiency and convenience in performing the activity or completing the transaction and the cost of not imposing the discriminatory requirement or condition or of substituting another requirement or condition are relevant factors in considering what is reasonable.' 57 In the absence of submissions by the applicant, it is difficult to understand how the Barplus procedures, which required account of documents and monies received by flight attendants during the performance of their duties, were other than a reasonable requirement in the circumstances. 58 Accordingly in my view there is no merit in the applicant's submissions that he has been the subject of unlawful discrimination within the meaning of the DD Act .
Case: Wedesweiller v Cole (1983) 47 ALR 528
Outcome: cited
The discretion of the Court conferred by the words 'or within such further time as the court concerned allows' appearing in s 46PO(2) HREOC Act is similar to the discretion given to the Court in s 11(1) Administrative Decisions (Judicial Review) Act 1977 (Cth) (' ADJR Act '). Principles applicable to the exercise of the discretion under s 46PO(2) were described by McInnis FM in Phillips v Australian Girls Choir [2001] FMCA 109 , based in turn on principles formulated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 in relation to s11 ADJR Act . These considerations articulated in Phillips have been applied in a number of Federal Court decisions including Pham , Ingram-Nader v Brinks Australia Pty Limited [2005] FCA 1541 (Jacobsen J) and Ingram-Nader v Brinks Australia Pty Limited [2006] FCA 624 (Cowdroy J), and are relevant in the case before me. The principles listed by McInnis FM are as follows: 1. There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The 'prescribed period' of 28 days is not to be ignored ( Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550). 2. It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained ( Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a precondition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential precondition ( Comcare v A'Hearn (1993) 45 FCR 441 and Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302). 3. Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised (see Doyle v Chief of Staff (1982) 42 ALR 283 at 287). 4. Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension (see Doyle at 287). 5. The mere absence of prejudice is not enough to justify the grant of an extension (see Lucic at 416). 6. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted (see Lucic at 417). 7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion (see Wedesweiller v Cole (1983) 47 ALR 528).
Case: Applicant M171/2003 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 220
Outcome: followed
Although the Application for Leave to Appeal as filed in this Court on 4 March 2008 sought an order dispensing with compliance with O 52, r 5(2) of the Federal Court Rules , in SZDGN v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 1543 at [9] Lindgren J correctly concluded that " there is no rule providing for a time limit for the seeking of leave to appeal from an interlocutory judgment of the FMCA ". His Honour further concluded that " there is an implied time limit of 21 days after the date of the interlocutory judgment ". See also: Applicant M171/2003 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 220 at [32] per Moore J.
Case: Harrington v Rich [2008] FCAFC 61
Outcome: followed
No question arises in the present Application as to whether it was filed within time; the question is whether leave should be granted or refused. Considerations relevant to the exercise of that discretion are: (i) whether in all the circumstances the judgment of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and (ii) whether substantial injustice would result if leave were refused, supposing the decision were wrong. See: Harrington v Rich [2008] FCAFC 61 at [25] per Sackville, Emmett and Jacobson JJ. 8 The proposed Grounds of Appeal as set out in the Draft Notice of Appeal are as follows (without alteration): 1. Jurisdictional error 2. Breached of procedural fairness 3. Berached of natural justice Particulars provided in respect of these grounds, as expressed in the Draft Notice of Appeal , state (without alteration): 1. TRIBUNAL ASK FOR THE RE LOCATION &amp; FAILED TO SAK FOR THE INFORMATION. 2. THEY USED TELEPHONE CONFRENCE FOR ME.ITS TOO DIFFICULT FOR ME. 3. I NEED A GOOD HEARING: 9 It is considered that leave to appeal should be refused. A review of the reasons for decision of the Tribunal does not reveal any jurisdictional error, breach of procedural fairness or denial of natural justice. Nor do the reasons of the Federal Magistrates Court, albeit brief, disclose any self-evident appellable error.
Case: SZDGN v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 1543
Outcome: followed
Although the Application for Leave to Appeal as filed in this Court on 4 March 2008 sought an order dispensing with compliance with O 52, r 5(2) of the Federal Court Rules , in SZDGN v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 1543 at [9] Lindgren J correctly concluded that " there is no rule providing for a time limit for the seeking of leave to appeal from an interlocutory judgment of the FMCA ". His Honour further concluded that " there is an implied time limit of 21 days after the date of the interlocutory judgment ". See also: Applicant M171/2003 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 220 at [32] per Moore J.
Case: SZLRL v Minister for Immigration &amp; Citizenship [2008] FMCA 196
Outcome: cited
On 20 February 2008 the Federal Magistrates Court dismissed an application seeking review of the decision of the Tribunal: SZLRL v Minister for Immigration &amp; Citizenship [2008] FMCA 196. The Federal Magistrate dismissed the proceedings before that Court pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). 4 Rule 44.12 of the 2001 Rules provides as follows: Show cause hearing (1) At a hearing of an application for an order to show cause, the Court may: (a) if it is not satisfied that the application has raised an arguable case for the relief claimed -- dismiss the application; or (b) if it is satisfied that the application has raised an arguable case for the relief claimed -- adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application. (2) To avoid doubt, a dismissal under paragraph (1) (a) is interlocutory. As r 44.12(2) expressly provides, the dismissal of an application under r 44.12(1)(a) is an interlocutory decision. 5 An appeal to this Court from an interlocutory decision of the Federal Magistrates Court requires leave: Federal Court of Australia Act 1976 (Cth), s 24(1A). The Applicant appeared before this Court this afternoon unrepresented, although he did have the assistance of an interpreter.
Case: University of Western Australia v Gray (No 11) [2007] FCA 377
Outcome: cited
On 8 March 2007 Graham J made the following orders: 1. Orders that the agreement for resolution of the applicant's claims for relief against the third respondent as contained in the 'Agreed Settlement Terms' of 22 February 2007 as varied on 2 March 2007 be approved. 2. Directs that this order not be entered before 2:15pm WDST on Friday 9 March 2007. 3. Orders that the second respondent pay 50% of the third respondent's costs of the Notice of Motion dated 28 February 2007. 4. Orders that the second respondent pay 50% of the applicant's costs of the Notice of Motion dated 28 February 2007. 5. Orders that the costs the subject of the earlier orders may be taxed and shall be payable forthwith. University of Western Australia v Gray (No 11) [2007] FCA 377 10 Since those orders were made Sirtex and Dr Gray have filed motions seeking orders which would restrain CRI and its receiver until further order from taking steps to dispose of the shares pursuant to the Terms of Settlement. I directed that the parties file affidavit evidence and written submissions in relation to the motions and reserved judgment on them until today. 11 By its motion filed on 12 March 2007 Sirtex seeks the following orders: 1. The Third Respondent and Mr Mark Conlan, the receiver of the Third Respondent ("the Receiver"), be restrained, until further order, from taking the steps in paragraphs 4, 6 and 7 of the Terms of Settlement dated 22 February 2007 and amended 2 March 2007; 2. Subject to orders 7 to 12 of the orders of the Honourable Justice French made 22 December 2006, the Third Respondent and the Receiver be restrained, until further order, from dealing (whether by transfer, alienation, encumbrance or pursuant to the Terms of Settlement dated 22 February 2007 and amended 2 March 2007 or otherwise) in any shares held by it (whether beneficially or otherwise) in the Second Respondent. 3. There be liberty to apply to vary or discharge the above orders at short notice. 4. Such further or other orders as the Court may consider appropriate.
Case: Anton Piller KG v Manufacturing Processes Limited [1976] 1 Ch 55
Outcome: applied
Such orders are only made in exceptional circumstances. In Anton Piller KG v Manufacturing Processes Limited [1976] 1 Ch 55 at 62 Ormrod LJ identified what he described as 'three essential preconditions for the making of such an order'. They were: 'First, there must be an extremely strong prima facie case. Secondly, the damage, potential or actual, must be very serious for the applicant. Thirdly, there must be clear evidence that the defendants have in their procession incriminating documents or things, and that there is a real possibility that they may destroy such material before any application inter partes can be made.' 7 In order to satisfy the Court that it is appropriate to make the orders sought the applicant relies on two affidavits, sworn by its managing director, and affidavits of Jian Ping Gao and Chen Ben He. 8 Having read those affidavits and considered submissions made by counsel appearing for the applicant I have been persuaded that the first precondition identified by Ormrod LJ has been satisfied. The pictures appearing on t-shirts being sold by the defendants appear to be identical with those commissioned by the applicant.
Case: SZIKZ v Minister for Immigration &amp; Anor [2007] FMCA 487
Outcome: affirmed
This is an appeal from a decision of a Federal Magistrate who dismissed an application for review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister for Immigration and Citizenship to refuse the appellant a protection visa. Details of the appellant's visa application, the decision of the Tribunal and the reasons of the Federal Magistrate are set out in the decision of the Federal Magistrate, SZIKZ v Minister for Immigration [2007] FMCA 487 , which is available on the Internet. 2 The appellant is a citizen of the People's Republic of China. In his protection visa application he claimed a well-founded fear of persecution on the basis of being a Falun Gong practitioner and an imputed role as a regional head of Falun Gong. He claimed that his wife became a member in 1996 and he became a member in 1997 after learning about Falun Gong from her. He claimed his wife was the leading member in their town and had connections with organisations all over the world. He claimed that in 1999 he organised members for the district for demonstrations and missions in Beijing. In January 2005 the appellant was detained by police for 10 days. The police told him that they believed he was the head of Falun Gong in the town. His wife bribed a government official for his release and obtained a passport and a visa to Australia. 3 On 25 November 2005 the Tribunal wrote to the appellant inviting him to attend a hearing on 6 January 2006. On 5 December the Tribunal received a change of contact details form indicating that the appellant still lived at his residential address but his mailing address had changed. On 6 December 2005 the Tribunal sent a letter to the appellant at his new mailing address enclosing a copy of the hearing invitation letter. The earlier hearing letter sent on 24 November was returned to the Tribunal with advice that the appellant no longer lived at that address. The appellant did not attend at the hearing on 6 January 2006 and did not contact the Tribunal to explain his failure to attend.
Case: Brailsford v Tobie (1888) 10 ALT 194
Outcome: followed
In Issitch [2000] FCA 477 ; 172 ALR 586 at [32] (pp 594 595), Drummond J (with whom Spender and Katz JJ agreed) said: [32] But once the appellant decided to answer the claim made on her in respect of the $110,167 in the way she did, she was not entitled thereafter to set up in the alternative the inconsistent answer she now suggests she would also have relied on, if only absence of consideration had been specifically pleaded by the trustee. A party can as a general rule plead inconsistent sets of facts in the alternative (cf O 11 r 8(2); Re Morgan (1887) 35 Ch D 492 and Delfino v Trevis (No 1) [1963] NSWR 191 at 196), but not where one of those sets must be known to the party to be false. It has long been recognised that such a pleading is embarrassing and will be struck out. In Brailsford v Tobie (1888) 10 ALT 194 at 195, the defendant pleaded two factually inconsistent accounts in justification for not having paid the moneys claimed by the plaintiff. Holroyd J ordered that the defendant elect which one of these two cases she would maintain, saying: ... I think it would be most improper to allow the defendant to plead as she has done. The actual facts must be within her own knowledge, and that being so she has set up two sets of facts inconsistent with one another. If this were allowed it would be permitting a party knowing the facts to deliberately place on the record statements, one or other of which must be known to be a lie. This, in my opinion, ought not to be allowed. 58 The requirement to elect imposed by Holroyd J on the defendant in Brailsford v Tobie (1888) 10 ALT 194 occurred in circumstances where the two inconsistent sets of facts appeared in a single pleading, not in different pleadings in different courts as is the case here. The applicants do not plead inconsistent sets of facts in the Statement of Claim in this Court if the pleading is viewed in isolation. However, the principle which underlies the observations made by the Full Court in Issitch [2000] FCA 477 ; 172 ALR 586 is that a litigant ought not to be permitted to advance a pleaded case which is inconsistent with another pleaded case in circumstances where one of those cases is known to the litigant to be a false case. Whilst it must be accepted that inconsistent sets of facts may be pleaded in the alternative in the same pleading, pleadings of that kind need to make very clear that the cases are to be put in the alternative and need also to make very clear what the alternatives are. The principle which permits the pleading of inconsistent sets of facts in the alternative does not authorise the pleading of inconsistent cases where one of the cases is known to the party who pleads it to be false. This is so whether the cases are pleaded in one pleading or in different pleadings. Propounding a case which is known to be a false case is an abuse of process. Doing so solely in order to obtain a strategic advantage by invoking the cross-vesting legislation is a flagrant abuse of process.
Case: Htun v Minister for Immigration &amp; Multicultural Affairs (2001) 194 ALR 244
Outcome: discussed
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42], Allsop J (with whom Spender J agreed) pointed to the distinction between failure to deal with an aspect of the evidence and failure to address a claim or an integer of the claim.
Case: Minister for Immigration &amp; Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: followed
Honours went on at [21] to say that the RRT failed to have regard to "relevant material, which is so fundamental that it goes to jurisdiction: see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 ... at [82]." This is clear, not only from what the High Court said in Yusuf , but also from other authorities which explain the boundaries between errant fact finding and jurisdictional error. Also, in Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 at [57] , Allsop J observed that Yusuf does not stand for the proposition that a tribunal has failed to take into account a relevant consideration merely because it has not referred to a piece of evidence which the Court thinks relevant. His Honour supported this proposition by reference to Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 39-42. It is also amply supported by the observations of McHugh, Gummow and Hayne JJ in Yusuf at [73], [74], [82] and [84]. Moreover, it is plain from Yusuf at [68]-[69] that s 368 of the Migration Act (and its equivalent in s 430), requires the tribunal to set out only the findings it did make, not the findings it did not make.
Case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: referred to
Honour supported this proposition by reference to Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 39-42. It is also amply supported by the observations of McHugh, Gummow and Hayne JJ in Yusuf at [73], [74], [82] and [84].
Case: MZXBX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 94
Outcome: referred to
Magistrate Lloyd-Jones referred at [21] of his judgment to the appellant's submission that the MRT did not have regard to all the medical reports and that it ignored relevant evidence. The learned Federal Magistrate observed that, despite this contention, there was no doubt that the MRT was familiar with all the reports. This was because the exchange of correspondence between the MRT and the doctors led to the preparation of the reports. His Honour observed that in those circumstances it was difficult to accept that the MRT did not have regard to all of the reports. He went on to say that the MRT was not required to record in its decision all the material that it had considered. Reference was made to the decision of a Full Court in MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94. The learned Federal Magistrate also observed at [25] that the appellant knew exactly what he was required to prove and was given the opportunity of obtaining the evidence. His Honour said that Dr Patapanian's clear diagnosis was that there was no substantial medical or clinical basis for any claim of discomfort on the appellant's part. He also said that it was open for the MRT to conclude that the appellant did not have a condition that would prevent him from travelling long distances. Mr Young, counsel for the appellant, conceded that the appellant's grounds of appeal may be reduced to two. The first ground is that the MRT failed to have regard in its reasons to important material going to an essential issue in the case. The second ground is that the MRT failed to take into account relevant considerations, namely the existence of other medical evidence, in particular the report of Dr Dinakar dated 30 May 2004. The substance of Mr Young's argument was that the MRT fell into error because it failed to have regard to the other medical evidence, in particular Dr Dinakar's report of 30 May 2004. He drew attention to those parts of the report which stated that the appellant would be unable to travel long distances.
Case: NABE v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2002) 219 ALR 27
Outcome: followed
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389, Gummow and Callinan JJ said at [24] that a failure by the Refugee Review Tribunal to respond to a substantial, clearly articulated argument relying upon established facts amounted to a denial of natural justice. However, this does not assist the appellant's argument in the present case because Dranichnikov must be understood as a failure by the tribunal to deal with a claim; see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 219 ALR 27 at [63] .