mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re JRL; ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342
Outcome: cited
The first time that I knew that there had been any threat, if there has been a threat directed to me, was when I read Ms Ogawa's letter on 15 May. I was not previously aware that the Queensland Police were investigating any threat made to or about me. It is not appropriate for me to disqualify myself in those circumstances. I need not disqualify myself because the applicant has brought to my attention the allegation that she has previously made a threat to me. As Mason J said in Re JRL; ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342 at 352: 'Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias encourage parties to believe that by seeking the disqualification of a judge, they will have had their case tried by someone thought to be more likely to decide the case in their favour.' 7 I decline to disqualify myself for bias. 8 The application for judicial review was listed for hearing today. There has been no appearance of the applicant. As I have said, there is no contradictor. Order 32 rule 2(1)(d) of the Federal Court Rules allows the Court to proceed in the absence of a party. In my opinion, it is appropriate that I proceed in this matter in the absence of the applicant. My reasons for judgment will show that, in my opinion, this application on any understanding is doomed to fail. It therefore should be disposed of as soon as possible.
Case: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82
Outcome: cited
Whether this application is brought under the Judiciary Act 1903 or the Administrative Decisions (Judicial Review) Act 1977 a grant of a remedy is discretionary. The issue of the constitutional writs is always discretionary: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 and Re McBain; Ex parte Australian Catholic Bishops Conference and Another [2002] HCA 16 ; (2002) 209 CLR 372. Any remedy under the Administrative Decisions (Judicial Review) Act 1977 is also discretionary: s 16.
Case: Re McBain; Ex parte Australian Catholic Bishops Conference and Another [2002] HCA 16 ; (2002) 209 CLR 372
Outcome: cited
Whether this application is brought under the Judiciary Act 1903 or the Administrative Decisions (Judicial Review) Act 1977 a grant of a remedy is discretionary. The issue of the constitutional writs is always discretionary: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 and Re McBain; Ex parte Australian Catholic Bishops Conference and Another [2002] HCA 16 ; (2002) 209 CLR 372. Any remedy under the Administrative Decisions (Judicial Review) Act 1977 is also discretionary: s 16.
Case: Alister and Ors v The Queen [1983] HCA 45 ; (1984) 154 CLR 404
Outcome: referred to
A Court will not order the production of a document, even if relevant and admissible, if it would be injurious to the public interest to disclose it: see Alister and Ors v The Queen [1983] HCA 45 ; (1984) 154 CLR 404 at 450-1; Sankey v Whitlam and Ors [1978] HCA 43 ; (1978) 142 CLR 1 per Gibbs ACJ at 38; The Commonwealth of Australia v Northern Land Council and Anor [1993] HCA 24 ; (1993) 176 CLR 604; Young v Quin (1985) 4 FCR 483; Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 at 674-6.
Case: Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667
Outcome: referred to
A Court will not order the production of a document, even if relevant and admissible, if it would be injurious to the public interest to disclose it: see Alister and Ors v The Queen [1983] HCA 45 ; (1984) 154 CLR 404 at 450-1; Sankey v Whitlam and Ors [1978] HCA 43 ; (1978) 142 CLR 1 per Gibbs ACJ at 38; The Commonwealth of Australia v Northern Land Council and Anor [1993] HCA 24 ; (1993) 176 CLR 604; Young v Quin (1985) 4 FCR 483; Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 at 674-6.
Case: Choi v Minister for Immigration and Multicultural Affairs (1998) 55 ALD 140
Outcome: referred to
I accept that in the present case that there may be documents in the possession of APRA whose release would clearly prejudice the public interest, for example documents identifying informers, documents containing details of financial affairs of third parties, documents which had been provided to APRA on a confidential basis, or documents which are pertinent to an ongoing investigation. It has generally been accepted that documents of this nature attract public interest immunity: see Zarro and Ors v Australian Securities Commission (1992) 36 FCR 40; Choi v Minister for Immigration and Multicultural Affairs (1998) 55 ALD 140; Somerville v Australian Securities Commission and Ors (1995) 60 FCR 319; Spargos Mining NL &amp; Anor v Standard Chartered Aust Ltd &amp; Ors (No 1) (1989) 1 ASCR 311 at 312. The very restriction on the release of the final report without approval by the Attorney-General under s 60(6) suggests that reports of this nature may well contain information which, in the public interest, should not be disclosed.
Case: Confidential and Australian Prudential Regulation Authority [2005] AATA 1264
Outcome: cited
In the present application for preliminary discovery I have not been told of a relevant factual dispute between the parties which would justify the use of a notice to produce. The applicant has alleged a possible cause of action arising under the ADJR Act. In a subsequent letter to the respondent (Exhibit 2 in these proceedings), the applicant's solicitor provided further details with respect to the applicant's potential claim. That letter indicates that the proceedings contemplated by the applicant are proceedings for judicial review of APRA's report on the basis of apprehended bias of the inspector. In particular, the applicant seeks to rely upon his differential treatment by the investigator and has referred to several authorities which he says suggest that a cause of action may lie on this basis: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639 per Brennan J; Confidential and Australian Prudential Regulation Authority [2005] AATA 1264 per Downes J. The applicant seeks the final report of the inspector in order to determine whether an action on this ground in fact lies.
Case: Conway v Rimmer and Anor [1968] UKHL 2 ; [1968] AC 910
Outcome: considered
There is a tension between the public interest in disclosing documents which may assist a party in enforcing its legal rights and the public interest in keeping documents of a certain nature confidential. As Lord Upjohn stated in Conway v Rimmer and Anor [1968] UKHL 2 ; [1968] AC 910 at 992: 'On the one side there is the public interest to be protected; on the other side of the scales is the interest of the subject who legitimately wants production of some documents which he believes will support his own or defeat his adversary's case. Both are matters of public interest, for it is also in the public interest that justice should be done between litigating parties by production of all documents which are relevant and for which privilege cannot be claimed under the ordinary rules. They must be weighed in the balance one against the other.'
Case: Gull Petroleum (WA) Ltd v Tah Land Pty Ltd [2001] FCA 1531
Outcome: referred to
The applicant submits that the entirety of the draft reports is required in order to consider whether he has a basis to allege that APRA treated him inconsistently. I accept that the draft reports may be relevant to the question of any ultimate claim against APRA, should such a claim be brought, but those reports are not properly the subject of a notice to produce brought in proceedings under O 15A r 6. The requirements of O 15A r 6 are not particularly stringent: see Minister for Health &amp; Aged Care v Harrington Associates Ltd [1999] FCA 549 at [28] and [29] per Sackville J; Gull Petroleum (WA) Ltd v Tah Land Pty Ltd [2001] FCA 1531 at [59] per Carr J. However, if the applicant does not possess sufficient factual material to substantiate O 15A r 6(a), then the deficiency cannot be rectified by seeking production of material from a respondent before the preliminary discovery application is heard.
Case: Minister for Health &amp; Aged Care v Harrington Associates Ltd [1999] FCA 549
Outcome: referred to
The applicant submits that the entirety of the draft reports is required in order to consider whether he has a basis to allege that APRA treated him inconsistently. I accept that the draft reports may be relevant to the question of any ultimate claim against APRA, should such a claim be brought, but those reports are not properly the subject of a notice to produce brought in proceedings under O 15A r 6. The requirements of O 15A r 6 are not particularly stringent: see Minister for Health &amp; Aged Care v Harrington Associates Ltd [1999] FCA 549 at [28] and [29] per Sackville J; Gull Petroleum (WA) Ltd v Tah Land Pty Ltd [2001] FCA 1531 at [59] per Carr J. However, if the applicant does not possess sufficient factual material to substantiate O 15A r 6(a), then the deficiency cannot be rectified by seeking production of material from a respondent before the preliminary discovery application is heard.
Case: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Outcome: cited
In the present application for preliminary discovery I have not been told of a relevant factual dispute between the parties which would justify the use of a notice to produce. The applicant has alleged a possible cause of action arising under the ADJR Act. In a subsequent letter to the respondent (Exhibit 2 in these proceedings), the applicant's solicitor provided further details with respect to the applicant's potential claim. That letter indicates that the proceedings contemplated by the applicant are proceedings for judicial review of APRA's report on the basis of apprehended bias of the inspector. In particular, the applicant seeks to rely upon his differential treatment by the investigator and has referred to several authorities which he says suggest that a cause of action may lie on this basis: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639 per Brennan J; Confidential and Australian Prudential Regulation Authority [2005] AATA 1264 per Downes J. The applicant seeks the final report of the inspector in order to determine whether an action on this ground in fact lies.
Case: Sankey v Whitlam and Ors [1978] HCA 43 ; (1978) 142 CLR 1
Outcome: applied
A Court will not order the production of a document, even if relevant and admissible, if it would be injurious to the public interest to disclose it: see Alister and Ors v The Queen [1983] HCA 45 ; (1984) 154 CLR 404 at 450-1; Sankey v Whitlam and Ors [1978] HCA 43 ; (1978) 142 CLR 1 per Gibbs ACJ at 38; The Commonwealth of Australia v Northern Land Council and Anor [1993] HCA 24 ; (1993) 176 CLR 604; Young v Quin (1985) 4 FCR 483; Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 at 674-6. 47 It is the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or withheld: see Sankey v Whitlam at 38. An objection may be taken to the production of a document because it would be against the public interest to disclose its contents, or because the document belongs to a class of documents which, in the public interest, ought not be produced: see Sankey v Whitlam at 39. The category of documents to which the 'class' rule applies is relatively narrow, and includes documents such as cabinet minutes and documents which relate to the framing of government policy at a high level: see Sankey v Whitlam at 39. The claim in the present case is made on the basis of the contents of the draft reports, and not on the basis that the draft reports are a class to which public interest immunity attaches.
Case: Somerville v Australian Securities Commission and Ors (1995) 60 FCR 319
Outcome: referred to
I accept that in the present case that there may be documents in the possession of APRA whose release would clearly prejudice the public interest, for example documents identifying informers, documents containing details of financial affairs of third parties, documents which had been provided to APRA on a confidential basis, or documents which are pertinent to an ongoing investigation. It has generally been accepted that documents of this nature attract public interest immunity: see Zarro and Ors v Australian Securities Commission (1992) 36 FCR 40; Choi v Minister for Immigration and Multicultural Affairs (1998) 55 ALD 140; Somerville v Australian Securities Commission and Ors (1995) 60 FCR 319; Spargos Mining NL &amp; Anor v Standard Chartered Aust Ltd &amp; Ors (No 1) (1989) 1 ASCR 311 at 312. The very restriction on the release of the final report without approval by the Attorney-General under s 60(6) suggests that reports of this nature may well contain information which, in the public interest, should not be disclosed.
Case: Spargos Mining NL &amp; Anor v Standard Chartered Aust Ltd &amp; Ors (No 1) (1989) 1 ACSR 311
Outcome: considered
I accept that in the present case that there may be documents in the possession of APRA whose release would clearly prejudice the public interest, for example documents identifying informers, documents containing details of financial affairs of third parties, documents which had been provided to APRA on a confidential basis, or documents which are pertinent to an ongoing investigation. It has generally been accepted that documents of this nature attract public interest immunity: see Zarro and Ors v Australian Securities Commission (1992) 36 FCR 40; Choi v Minister for Immigration and Multicultural Affairs (1998) 55 ALD 140; Somerville v Australian Securities Commission and Ors (1995) 60 FCR 319; Spargos Mining NL &amp; Anor v Standard Chartered Aust Ltd &amp; Ors (No 1) (1989) 1 ASCR 311 at 312. The very restriction on the release of the final report without approval by the Attorney-General under s 60(6) suggests that reports of this nature may well contain information which, in the public interest, should not be disclosed.
Case: St George Bank Ltd v Rabo Australia Ltd and Anor (2004) 211 ALR 147
Outcome: cited
There could be no dispute that APRA possesses the documents in question and accordingly par (c) of O 15A r 6 is satisfied. As to par (b) of O 15A r 6, it seems unlikely that APRA will dispute that production of the final report would be necessary for the applicant to decide whether to bring proceedings: see Hely J in St George Bank Ltd v Rabo Australia Ltd and Anor (2004) 211 ALR 147 at 154(e). Without the final report the applicant does not know the details of any findings which may have been made against him in the final report, which would be essential information in making such a decision. Accordingly it seems likely that par (b) of O 15A r 6 would be satisfied. The real question seems to be whether there is reasonable cause to believe that the applicant may have the right to obtain relief from APRA, as required by par (a). 38 The facts relied upon by the applicant in support of his application for preliminary discovery are set out in his affidavit of 9 December 2005, which accompanied the application. The affidavit describes the course of APRA's investigation as it related to the applicant and to the facts which he believes indicated differential treatment of him by the inspector. 39 APRA has indicated in its written submissions that it intends to dispute that there is a reasonable cause to believe that the applicant has or may have the right to obtain relief from APRA in this Court. It has indicated that such challenge will be made because the final report, by virtue of the confidentiality provisions in the APRA Act, is only available to the inspector, APRA, ASIC, the Director of Public Prosecutions and the Attorney-General: see s 56(5)(a) and the definition of ' financial sector supervisory agency ' in s 3 of the APRA Act. This submission does not raise a factual dispute in respect of any of the matters raised in the affidavit of the applicant, but rather a legal question, namely whether a claim lies at law based upon the facts raised by the applicant.
Case: The Commonwealth of Australia v Northern Land Council and Anor [1993] HCA 24 ; (1993) 176 CLR 604
Outcome: referred to
A Court will not order the production of a document, even if relevant and admissible, if it would be injurious to the public interest to disclose it: see Alister and Ors v The Queen [1983] HCA 45 ; (1984) 154 CLR 404 at 450-1; Sankey v Whitlam and Ors [1978] HCA 43 ; (1978) 142 CLR 1 per Gibbs ACJ at 38; The Commonwealth of Australia v Northern Land Council and Anor [1993] HCA 24 ; (1993) 176 CLR 604; Young v Quin (1985) 4 FCR 483; Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 at 674-6.
Case: Tyco Australia Pty Ltd v Leighton Contractors Pty Ltd [2005] FCAFC 115 ; (2005) 142 FCR 428
Outcome: followed
The issues to be decided in an application for preliminary discovery are narrow in scope. The primary question to be answered is whether pars (a), (b) and (c) of O 15A r 6 of the Federal Court Rules are satisfied. In Tyco Australia Pty Ltd v Leighton Contractors Pty Ltd [2005] FCAFC 115 ; (2005) 142 FCR 428 the Full Court of the Federal Court held that in limited circumstances a notice to produce could be issued under O 33 r 12 of the Federal Court Rules in relation to an application for preliminary discovery under O 15A r 6. In those proceedings, Hill J, with whom Hely and Conti JJ agreed, held that a notice to produce could be issued where there was a factual dispute related to one of the requirements of a preliminary discovery application under O 15A r 6. His Honour gave the example of a respondent who wished to call into question whether an applicant had made reasonable enquiries, as required by O 15A r 6(b). His Honour cautioned, however, at [46]: 'An applicant who seeks to use a notice to produce, in effect, to gain production of the very documents which are the subject of the pre-action discovery will not have given the notice to produce in good faith, but rather, will have acted in a way that is an abuse of process.'
Case: Young v Quin (1985) 4 FCR 483
Outcome: referred to
A Court will not order the production of a document, even if relevant and admissible, if it would be injurious to the public interest to disclose it: see Alister and Ors v The Queen [1983] HCA 45 ; (1984) 154 CLR 404 at 450-1; Sankey v Whitlam and Ors [1978] HCA 43 ; (1978) 142 CLR 1 per Gibbs ACJ at 38; The Commonwealth of Australia v Northern Land Council and Anor [1993] HCA 24 ; (1993) 176 CLR 604; Young v Quin (1985) 4 FCR 483; Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 at 674-6.
Case: Applicant M153 of 2004 v Minister for Immigration [2006] FMCA 42
Outcome: affirmed
The Refugee Review Tribunal affirmed the decision of a delegate of the respondent not to grant the appellants protection visas. An application for review of that decision was dismissed by the Federal Magistrates Court: Applicant M153 of 2004 v Minister for Immigration [2006] FMCA 42. This is an appeal from that decision. Pursuant to s 25(1AA) of the Federal Court of Australia Act 1976 the appeal is to be heard by a single judge. 2 The background facts and the first appellant's claims are set out in the Magistrate's decision, and in more detail in the Tribunal's reasons. The second, third and fourth appellants are the first appellant's wife and children. Their claims are dependent on his. I will refer hereafter to "the appellant" alone. 3 There are three grounds of appeal. The first is that the Magistrate erred in finding that the Tribunal "did not fail to consider that the basis of the appellant's fear of extortion by the LTTE was a Convention related reason". The contention before the Magistrate was that in respect of the appellant's claim that he feared that the LTTE would seek to extort money from him upon his return to Sri Lanka, the Tribunal failed to consider that his claim was that extortion would be by reason of his Tamil ethnicity. It was also said that the Tribunal failed to consider whether such extortion would be by reason of the appellant's membership of a particular social group, namely Tamils returning to Sri Lanka from overseas or Tamils perceived to have money.
Case: VWAL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 266
Outcome: applied
In VWAL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 266 at [24] , after quoting the second above paragraph from SFGB , Ryan J said: "by that passage I take their Honours to mean that a positive finding, in the absence of any supporting evidence, of the existence of a fact which is a critical step in deciding the ultimate matter as to which the Tribunal has to be satisfied, may signify jurisdictional error." (Emphasis in original.) Why his Honour made this clarification appears from [22] and [26]: "it is not a legal or jurisdictional error for the Tribunal, in evaluating the assertions of fact relied on by an applicant as giving rise to a well-founded fear of persecution, to reject one or more of those assertions as 'unclear', 'incoherent' or 'implausible'. That is so even if there is no identifiable piece of evidence which tends against acceptance of the relevant assertion. As Gleeson CJ and McHugh J indicated [in MIMA v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 629], different minds may form different views about issues which arise for determination on the way to resolving the ultimate question. The fact that a reviewing Court might disagree, even strongly, with a conclusion reached by the Tribunal on a question on the way to determining the ultimate question does not import jurisdictional error on the part of the Tribunal. ... In the present case the impugned rejection by the Tribunal of certain of the appellant's assertions of fact about assistance rendered to the LTTE or the LTTE's knowledge of the Army's intention to search her home did not depend on any inference from other facts. It resulted merely from a failure to attain a state of satisfaction that the assistance had been rendered or that the LTTE had the prior knowledge imputed to it. The fact that the rejection may appear to a reviewing court to be illogical is not to the point."
Case: Ainsworth v Criminal Justice Commission (1992) 175 CLR 56
Outcome: cited
Because I am of opinion that Senator Ellison's s 16(1) notice was invalid and that Mr Tervonen's continued detention after 18 August 2006 was unlawful (there having been no application to a magistrate for an extension of the detention under s 17(2)), it is appropriate to grant a declaration to the effect that after 18 August 2006 Mr Tervonen was not on remand under s 15. His liberty was interfered with for a considerable time without lawful authority: Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 581-582 per Mason CJ, Dawson, Toohey and Gaudron JJ; cf: SZFDE v Minister for Immigration (2007) 237 ALR 64 at 70 [22] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ.