mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Sanders v Snell (1998) 196 CLR 329
Outcome: considered
Sanders v Snell (1998) 196 CLR 329 the majority of the High Court, in relation to the tort of interference with trade or business interests by unlawful means said at 342: "There are, however, several reasons for concluding that a want of procedural fairness by the appellant before giving the direction that he gave to the Bureau is not conduct that can be characterised as 'unlawful means' for the purposes of this tort". I consider that this observation is equally applicable to the tort of intimidation.
Case: MZWQH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1491
Outcome: applied
Having regard to the history of this matter, I am not persuaded that I should adjourn this proceeding. The objection to competency is plainly well taken. A decision to dismiss an application by reason of the absence of the applicant is a decision of an interlocutory nature. Pursuant to s 24(1A) of the Federal Court Act 1976 (Cth) an appeal from the Federal Magistrates Court cannot be brought from such a decision without leave. See generally NACA v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 659 at [15] per Hely J; MZWQH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1491 at [26] per Kenny J; and MZWXC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 172 at [9] per Young J.
Case: MZWXC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 172
Outcome: applied
Having regard to the history of this matter, I am not persuaded that I should adjourn this proceeding. The objection to competency is plainly well taken. A decision to dismiss an application by reason of the absence of the applicant is a decision of an interlocutory nature. Pursuant to s 24(1A) of the Federal Court Act 1976 (Cth) an appeal from the Federal Magistrates Court cannot be brought from such a decision without leave. See generally NACA v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 659 at [15] per Hely J; MZWQH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1491 at [26] per Kenny J; and MZWXC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 172 at [9] per Young J.
Case: NACA v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 659
Outcome: applied
Having regard to the history of this matter, I am not persuaded that I should adjourn this proceeding. The objection to competency is plainly well taken. A decision to dismiss an application by reason of the absence of the applicant is a decision of an interlocutory nature. Pursuant to s 24(1A) of the Federal Court Act 1976 (Cth) an appeal from the Federal Magistrates Court cannot be brought from such a decision without leave. See generally NACA v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 659 at [15] per Hely J; MZWQH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1491 at [26] per Kenny J; and MZWXC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 172 at [9] per Young J.
Case: Australian Securities &amp; Investments Commission v P Dawson Nominees Pty Ltd (2008) 169 FCR 227
Outcome: referred to
Ms Collins then submitted that a balancing exercise was involved, essentially between the forensic significance of the material and the harm that would be done to the public good by disclosure. In essence, Mr Halley accepted that proposition the correctness of which is borne out by a recent judgment of the Full Court of this Court in Australian Securities and Investments Commission v P Dawson Nominees Pty Limited (2008) 169 FCR 227 at 232 [22]. The Full Court (Heerey, Moore and Tracey JJ) set out the well known passage from Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1 at 38-39, which was in these terms: The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence.
Case: MZXGR v Minister for Immigration and Multicultural Affairs [2006] FCA 1167
Outcome: cited
my opinion, it cannot be said that there is any 'independent and unimpeachable' basis for the Tribunal's decision, uninfected by any jurisdictional error under s 424A (see MZXGR v Minister for Immigration and Multicultural Affairs [2006] FCA 1167 at [7] ). Thus, although the matter is by no means free from doubt, the appeal should be allowed, the orders of the Federal Magistrate's Court set aside and in lieu thereof it be ordered that the decision of the Tribunal be set aside and the matter remitted to the Tribunal for determination according to law. The first respondent is to pay the costs of the appellants of the proceedings in the Federal Magistrates Court and of this appeal. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 15 November 2006 Solicitor for the Appellants: Mr Chandra Jayawardena Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: Phillips Fox The Second Respondent submitted Date of Hearing: 3 November 2006 Date of Judgment: 3 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1507.html
Case: Oayda v Mercantile Mutual Life Insurance Co Ltd (unreported, Wilcox J, 20 February 1995)
Outcome: followed
inquired of counsel for the applicants as to the source of the power to make the order sought in para 4 of the orders by consent. The effect of that order, in conjunction with para 3, would be to cast upon the respondent personal liability for the costs of this proceeding by preventing him from reimbursing himself from the bankrupt estate. In my view, it is appropriate that the respondent assume personal liability for the costs of the application. Counsel for the applicants referred me to the judgment of Wilcox J in Oayda v Mercantile Mutual Life Insurance Co Ltd (unreported, Wilcox J, 20 February 1995) in which his Honour made an order the effect of which was to require a trustee in bankruptcy to pay costs personally, when the trustee in bankruptcy had acted wrongly in relation to a proof of debt. On considering the question, I think that s 179(1)(b) of the Bankruptcy Act provides me with sufficient authority to make an order ensuring that the respondent will bear the costs personally. For these reasons, I make the following orders by consent, that: Pursuant to s 179 of the Bankruptcy Act 1966 (Cth), the respondent is removed as trustee in bankruptcy of the bankrupt estate of Ramadan Alievski. Pursuant to s 179 of the Bankruptcy Act 1966 (Cth), Gess Rambaldi of Level 19, 15 William Street, Melbourne, Victoria, be appointed as trustee in bankruptcy of the bankrupt estate of Ramadan Alievski in place of the respondent. The respondent pay the applicants' costs of this application in the amount of $7,000. The costs payable by the respondent under order 3 herein must not be reimbursed by the bankrupt estate of Ramadan Alievski. I certify that the preceding nine (9) numbered paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Gray. Associate: Dated: 24 June 2009 Counsel for the applicants: Mr S Waldren Solicitor for the applicants: Taylor Splatt &amp; Partners The respondent did not appear but signed orders by consent Date of hearing: 1 June 2009 Date of judgment: 1 June 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/688.html
Case: Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd (unreported, Lindgren J, 24 May 1996)
Outcome: cited
However, this would not be the first time when solicitors on behalf of clients have made firm assertions of wrongdoing by a proposed defendant. Assertion is not proof. There are equally stern denials made in the responses to those assertions by the respondent's solicitors. As counsel for the applicants put it, an essential element of the claim is that Dr Minas is using the algorithm forming part of the applicants' system. There remains a possibility that he has created a new algorithm, and the applicants, reasonably, in my opinion, wants to obtain forensic examination to eliminate that possibility before making a final decision whether to commence proceedings. I note that the provisions of O 15A r 6(b) extend to a decision whether or not to commence a proceeding which depends on whether or not a defence may be made out: see, Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd at 8 (unreported, Lindgren J, 24 May 1996). 3 Accordingly, the court finds in favour of the applicants' motion. I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice HEEREY. Associate: Dated: 27 September 2007 Counsel for the Applicant: L Duncan Solicitor for the Applicant: Cornwall Stodart Counsel for the Respondent: A Thomas Solicitor for the Respondent: Browne &amp; Co Date of Hearing: 27 September 2007 Date of Judgment: 27 September 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1513.html
Case: Harrington-Smith on behalf of The Wongatha People v State of Western Australia [2002 FCA 184
Outcome: cited
WAFIC has been named as a respondent in some other native title determination applications in Western Australia, the District Registrar who received its notice of intention to become a party to the Amangu application referred the matter to a judge because of a decision of Lindgren J refusing an application by the Chamber of Minerals and Energy of Western Australia to be joined as a party in the Wongatha proceedings Harrington-Smith on behalf of The Wongatha People v State of Western Australia [2002] FCA 184. In the notice of intention to become a party lodged by WAFIC on 28 July 2005, it gave details of its interest thus: Application may have an adverse effect on the rights and interests of the Western Australian Fishing Industry Council (Inc) as set out in Attachment A.' Attachment A to the notice identified WAFIC as the peak industry body for the fishing industry in Western Australia. It referred to its role of liaising with government on behalf of its members in connection with the management of various fisheries. Some of those fisheries are located in the claim area. WAFIC's role and function as liaison with government in relation to policies and issues concerning the fishing and pearling industries was said to depend on: the managed fisheries in a particular area; the number of its members operating in that area; and the ability of its members to access the fisheries in that area.' It was submitted that the function of various committees and WAFIC's role on those committees constituted an interest capable of being affected by the native title claim. If the claim were made out WAFIC's role in advising government in relation to issues raised by the committees would be affected as the rights of its members would be affected by the declaration of co-existing rights or by the declaration that no rights exist. It described its role in those committees as 'political' in that it plays a part in the political process of lobbying or at least making recommendations to government. In Harrington-Smith , Lindgren J referred to the Byron Environment Centre case and the Woodridge decision and said (at 2): do not find it necessary to refer to the discussion of the matter in those cases, beyond noting that they establish that a society, organisation, association or other body which voices, protects or promotes the concerns and interests of its members does not, by reason of that circumstance alone, have "interests [which] may be affected by a determination in the proceedings" for the purposes of subs 84(5) of the Act.' Applying that proposition to the position of the Chamber of Minerals and Energy of Western Australia, his Honour refused its application for joinder. See also Adnyamatha People v South Australia [2003] FCA 1377 ; (2003) 133 FCR 242 (Mansfield J).
Case: Members of the Yorta Yorta Aboriginal Community v State of Victoria (1996) 1 AILR 482
Outcome: cited
J referred to the joinder by Olney J of the Victorian Field and Game Association as a party in the Yorta Yorta application Members of the Yorta Yorta Aboriginal Community v State of Victoria (1996) 1 AILR 482. His Honour also referred to the joinder of the persons and organisations referred to in the Gunai Peoples' case. He observed that the 10 groups of persons and organisations admitted as parties in that case included frequent recreational users of the land and waters covered by the claim, commercial entities said to be dependent for their livelihood upon continuing recreational use of the claimed area by local persons and visitors, property owners entitled to free access to parts of the area claimed and sporting and angling clubs or associations which are the conducted sporting, shooting or angling activities in parts of the claimed areas or had members who frequently or habitually engaged in such activities. In relation to the standing of organisations representing persons whose interests might be affected, Merkel J said (at 43): an individual lacks the requisite interest the position cannot be improved or altered by an application to be a party being made by an organisation representing many such individuals.' His Honour went on, however, to say that (at 43): problem arising in respect of an organisation representing members who have interests that may be affected by a determination is that the interests of the organisation are indirect. Put another way, it is the interests of members, rather than those of an organisation representing them, that may be affected.' His Honour further observed (at 43): different situation might arise if such organisations themselves conduct activities in the area covered by the claim which may be curtailed, interfered with or otherwise affected by a determination. In such cases there is no reason in principle why such organisations may not be persons whose interests may be affected by a determination.'
Case: Adnyamatha People v South Australia [2003] FCA 1377 ; (2003) 133 FCR 242
Outcome: cited
Harrington-Smith , Lindgren J referred to the Byron Environment Centre case and the Woodridge decision and said (at 2): do not find it necessary to refer to the discussion of the matter in those cases, beyond noting that they establish that a society, organisation, association or other body which voices, protects or promotes the concerns and interests of its members does not, by reason of that circumstance alone, have "interests [which] may be affected by a determination in the proceedings" for the purposes of subs 84(5) of the Act.' Applying that proposition to the position of the Chamber of Minerals and Energy of Western Australia, his Honour refused its application for joinder. See also Adnyamatha People v South Australia [2003] FCA 1377 ; (2003) 133 FCR 242 (Mansfield J).
Case: Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 ; (2003) 217 CLR 387
Outcome: cited
the particular social group now formulated by the appellant seems to me to be somewhat artificial and it must be questionable whether it comprises a cognisable group in the community (see Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 ; (2003) 217 CLR 387). It is artificial because it is very general and because it seems to me it could be formulated in a number of other ways. Clearly, it is not my role to decide these issues, but the fact that they arise is clearly relevant to whether the claim was apparent on the face of the material before the Tribunal. They suggest it was not.
Case: AZAAC v Minister for Immigration and Citizenship [2008] FMCA 1506
Outcome: referred to
is an appeal from a decision of the Federal Magistrates Court: AZAAC v Minister for Immigration and Citizenship [2008] FMCA 1506. On 11 November 2008, that Court dismissed an application for constitutional writs directed to the Refugee Review Tribunal ("the Tribunal"). The appellant is a male child who was born on 3 June 2004. He was born in Australia and, by reason of the fact that his parents are Albanian nationals, his nationality is Albanian. Throughout the administrative and legal processes which followed his application for a Protection (Class XA) visa ("protection visa"), his father has acted on his behalf. The appellant lodged an application for a protection visa on 28 June 2007. On 23 July 2007, his application was refused by a delegate of the Minister for Immigration and Citizenship. He applied to the Tribunal for a review of the delegate's decision. In a decision handed down on 3 December 2007, the Tribunal affirmed the decision of the delegate not to grant a protection visa to the appellant. On the application made by the appellant to the Federal Magistrates Court for constitutional writs, a federal magistrate held that the Tribunal had not fallen into jurisdictional error, and dismissed the application. The application by the appellant's parents for protection visas
Case: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1
Outcome: discussed
question of the extent of the Tribunal's obligation to consider a claim not clearly articulated before it was considered in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1. The Full Court of this Court (Black CJ, French and Selway JJ) said (at 18 [58] and 22 [68]): "The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it: Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901 ; (2000) 106 FCR 157 at [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the "case" articulated by an applicant if evidence and material which it accepts raise a case not articulated: Paramananthan v Minister for Immigration and Multicultural Affairs [1998] FCA 1693 ; (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 ; (1999) 90 FCR 287 at 293-294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant: Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) [2001] FCA 263 ; (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised "squarely" on the material available to the Tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120 ; (2003) 129 FCR 137 at [19] per Cooper J. The use of the adverb "squarely" does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal. ... Although such a claim might have been seen as arising on the material before the Tribunal it did not represent, in any way, "a substantial clearly articulated argument relying upon established facts" in the sense in which that term was used in Dranichnikov . A judgment that the Tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made. The claim must emerge clearly from the materials before the Tribunal."
Case: STJB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 861
Outcome: referred to
appellant's father applied for constitutional writs and his application was heard by Selway J in 2004 and refused: STJB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 861. The decision of Selway J was upheld by the Full Court of this Court: STJB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 9. An application for special leave to appeal to the High Court was refused on 16 December 2005. The appellant's application for a protection visa
Case: STJB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 9
Outcome: referred to
appellant's father applied for constitutional writs and his application was heard by Selway J in 2004 and refused: STJB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 861. The decision of Selway J was upheld by the Full Court of this Court: STJB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 9. An application for special leave to appeal to the High Court was refused on 16 December 2005. The appellant's application for a protection visa
Case: Howells v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 327 ; (2004) 139 FCR 580
Outcome: referred to
The Minister is not bound to proceed by reference to the direction under s 499 of the Act, namely, Direction No 21: Howells v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 327 ; (2004) 139 FCR 580 at 585 [31] . However, he may choose to do so. In this case, he said that he would proceed in accordance with the Direction. 20 The applicant submits that the third primary consideration referred to in Direction No 21, namely, the best interests of the child, is only relevant if there is a child. He points to paragraph 2.3(c) set out in [11] above and he also points to the following paragraph in Direction No 21: "2.13 This consideration only applies if the child is or would be less than 18 years of age at the time when the decision is intended to come into effect. The best interests of any children aged 18 years or more is not a primary consideration but may be considered with other considerations under paragraph 2.17." 21 It should be noted that Direction No 21 makes it clear that although generally speaking it is in the child's best interests to remain with his or her parent, there may be circumstances in which the best interests are served by separation from the non-citizen.
Case: Minister for Immigration and Ethnic Affairs v Gray (1994) 50 FCR 189
Outcome: referred to
The next question is whether the error of the Minister being a misconstruction of Direction No 21 amounts to jurisdictional error. The applicant referred to the following observations of French and Drummond JJ in Minister for Immigration and Ethnic Affairs v Gray (1994) 50 FCR 189 at 208: "If a decision-maker, not bound to apply policy, purports to apply it as a proper basis for disposing of the case in hand but misconstrues or misunderstands it so that what is applied is not the policy but something else, then there may be reviewable error. In a limiting case a policy may be so broadly stated as to cover all considerations properly brought to bear on the exercise of the discretion. In such a case misconstruction of the policy may reduce to misconstruction of the statute or misunderstanding of its purpose."