mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 174 ; (2006) 156 FCR 205
Outcome: considered
In NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at 435 Young J (with whom Gyles and Stone JJ agreed) drew attention to "the importance of giving careful consideration to the nature of the information that is said to fall within s 424A(3)(b) and the circumstances in which it is communicated to, or elicited by, the Tribunal." Although there are some decisions of the Court (see for example VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (which maybe understood as supporting the view that omissions from an applicant's account do not constitute "information" for the purposes of s 424A of the Act , the weight of authority supports the conclusion reached by Weinberg J in NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 174 ; (2006) 156 FCR 205 at 212-3 that: "There is no reason in principle why such an omission (which the Tribunal views as important, and which is plainly adverse to the applicant's case) should be treated any differently, when it comes to s 424A , than a positive statement. This is particularly so when, as the Tribunal seems to have done here, it treats the omission as though it provides implicit support for a positive assertion that is detrimental to an applicant's case. It makes no difference whether the omission is to be found in a prior statement of an applicant or, as in this case, in a statement provided by a third party." See also SZEEU at 252, 262-263; SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 at [72] .
Case: SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435
Outcome: referred to
In NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at 435 Young J (with whom Gyles and Stone JJ agreed) drew attention to "the importance of giving careful consideration to the nature of the information that is said to fall within s 424A(3)(b) and the circumstances in which it is communicated to, or elicited by, the Tribunal." Although there are some decisions of the Court (see for example VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (which maybe understood as supporting the view that omissions from an applicant's account do not constitute "information" for the purposes of s 424A of the Act , the weight of authority supports the conclusion reached by Weinberg J in NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 174 ; (2006) 156 FCR 205 at 212-3 that: "There is no reason in principle why such an omission (which the Tribunal views as important, and which is plainly adverse to the applicant's case) should be treated any differently, when it comes to s 424A , than a positive statement. This is particularly so when, as the Tribunal seems to have done here, it treats the omission as though it provides implicit support for a positive assertion that is detrimental to an applicant's case. It makes no difference whether the omission is to be found in a prior statement of an applicant or, as in this case, in a statement provided by a third party." See also SZEEU at 252, 262-263; SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 at [72] .
Case: M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131
Outcome: referred to
It is clear in the present case that the appellant "gave" the Tribunal the relevant information to the extent that he made the claims relating to his profile, referred to above at [19], in written submissions. He thereby expressly relied on the information and invited the Tribunal to have regard to it: see M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25] . The more significant issue for present purposes is whether the appellant also "gave" the information that he had not made the relevant claims at the time at which he originally applied for a protection visa. In my view he did give this information to the Tribunal. It is implicit in the declaration which he made on 14 December 2005 which is quoted above at [19], when he says, immediately before the reference to his profile as "the Indian leader" that this was information which he wished "to add by way of clarification." The omission was expressly acknowledged on a number of occasions during his interview with the Tribunal. In his oral evidence the appellant told the Tribunal about the events in September 1987 in which he said he was identified as "the Indian leader". The Tribunal member raised the question of whether this claim had earlier been made. The appellant's legal representative drew attention to the passage in the appellant's statutory declaration of 14 December 2005 which is quoted above at [19]. The following exchange then ensued: "MS TSIAKAS: It's in your recent document. I know that, but it wasn't in your original document that people were gathering at your house and they were calling you an Indian and gathering at the Indian's house, and I am wondering why. INTERPRETER: That's right. I didn't have that open to me. I didn't have the time for the situation that allowed me to do so. That's why I had to change solicitor. MS TSIAKAS: Why didn't you have the opportunity? This is very important evidence for you to have provided at the time. INTERPRETER: At the time, the person who was writing all this Mr Roberts didn't write properly. The three brothers the three of us were there. We were doing everything hurriedly until I got to see Mr Manne (in distinct) I've already made the information to you. The Tribunal was thus advised that the appellant's claimed profile as an Indian leader had not been advanced at the time at which he made his original application. 25 The appellant "gave" the Tribunal the information relating to his claimed profile as an Indian leader and the information that he had not referred to this claim in his earlier dealings with the department. This omission was one of the reasons advanced by the Tribunal for rejecting the appellant's evidence that he was known as an Indian leader and that demonstrators had gathered at his house. The Federal Magistrate was, therefore, in my opinion, correct to hold that s 424A did not apply because the relevant "information" was information of the kind comprehended by s 424A(3)(b).
Case: SZEOP v Minister for Immigration and Citizenship [2007] FCA 807
Outcome: considered
After the foregoing reasons had been prepared counsel for the appellant sought and obtained leave to file further written submissions because of the publication of reasons in two other cases. The reasons had been published after I had reserved judgment in the present proceeding. The two cases were the decision of Rares J in SZEOP v Minister for Immigration and Citizenship [2007] FCA 807 and that of Kenny J in MZXFQ v Minister for Immigration and Citizenship [2007] FCA 826. Written submissions in reply were also filed by counsel for the Minister pursuant to leave. 27 In SZEOP the central issue was whether the Tribunal had satisfied its obligations under s 424A(1) of the Act . The Tribunal had determined that the appellant's delay in making a claim for a protection visa once he had arrived in Australia was a reason for concluding that he had fabricated a claim to being homosexual. The Tribunal had sent a letter to the appellant under s 424A(1) in which it invited comment on the proposition that: "Your delay in applying for Australia's protection is relevant because it casts doubt on the genuineness, or at least the depth, for your claimed fear of being persecuted if you return to Bangladesh." Rares J held that this invitation was insufficiently precise: it "did not include any suggestion that the appellant's claim to be a homosexual would be positively disbelieved as a fabrication because he had delayed in making his protection visa application": at [35]. There is nothing in his Honour's reasons which causes me to depart from my conclusion that the Tribunal, in the present case, failed to meet its obligations to the appellant under s 424A(1). Indeed, his Honour's reemphasis of the need for sufficient specificity in s 424A letters in entirely consistent with the views which I have expressed.
Case: Mitchell v Bailey (No 2) [2008] FCA 692
Outcome: cited
2 July 2008 I handed down judgment in Mitchell v Bailey (No 2) [2008] FCA 692. Having considered a petition which had been filed in the High Court and referred for trial in this Court I concluded that the Australian Electoral Officer ("AEO") for Victoria had erred in ruling that nine ballot-papers, cast in the election for a Member of the House of Representatives for the Division of McEwen, held on 24 November 2007, were formal. I found that a further 142 votes, which the AEO had determined were informal were formal and should have been counted. As a result of these decisions I determined that the first respondent had been certified correctly as the candidate who had been elected for the Division. She had been so elected by a margin of 27 votes after the preferences of other candidates had been distributed. The parties sought an opportunity to consider my reasons before making submissions as to what orders should be made by the Court. The parties agreed on the orders which they wished the Court to make. Pursuant to O 35 rule 10 of the Federal Court Rules , they submitted minutes of consent orders on 4 July 2008. The agreed orders were: "1. The petition is dismissed. The Commonwealth pay the Petitioner his costs of and incidental to the petition, including costs reserved by Crennan J on 21 February 2008 and any other reserved costs, on a party/party basis. The Commonwealth pay the First Respondent her costs of and incidental to the petition, including costs reserved by Crennan J on 21 February 2008 and any other reserved costs, on a party/party basis." Written submissions were filed by all parties supporting the making of these orders. At no stage was the Commonwealth a party to the proceeding. The second respondent expressly disavowed any right to speak on behalf of the Commonwealth in relation to costs issues. For this reason I listed the matter for hearing on the question of whether a costs order could be made against the Commonwealth without the Commonwealth being afforded the opportunity to be heard. At the hearing senior counsel for the second respondent advised the Court that an appropriate officer within the Department of Finance and Deregulation had been advised of the proposed orders and would write to the Court advising that the Commonwealth did not oppose the making of such orders. By letter dated 7 July 2008 Mr Marc Mowbray-d'Arbela, the Assistant Secretary, Legislative Review Branch, Financial Management Group of the Department of Finance and Deregulation advised the Court that he was authorised "to convey the position of the Commonwealth in relation to costs." That position was that the Commonwealth did not object to the Court making the orders which were sought.
Case: Nile v Wood [1988] HCA 30 ; (1988) 167 CLR 133
Outcome: followed
Nile v Wood [1988] HCA 30 ; (1988) 167 CLR 133 at 142, Brennan J said that the discretion to make a costs order against the Commonwealth under s 360(4): "... may properly be exercised when the proceedings have arisen because an officer of the Commonwealth has failed properly to perform his function or when the proceedings have resulted in some public benefit. In such cases it may be appropriate that the public purse ought bear the costs or some of them. I do not suggest that these categories are exhaustive, but it would not be appropriate to exercise the discretion whenever a litigant chooses to put the validity of an election to the test. Some warrant for imposing a liability on the funds of the Commonwealth must appear before it is appropriate to make an order."
Case: Hudson v Lee [1993] HCA 58 ; (1993) 177 CLR 627
Outcome: cited
and Toohey JJ, in a passage which was subsequently said by Gaudron J, in Hudson v Lee [1993] HCA 58 ; (1993) 177 CLR 627 at 633, to be cast in "wider" terms, said (at 143) that: "This power to order costs against the Commonwealth, which is unlikely in the ordinary case to be a party to proceedings before the Court of Disputed Returns, is not constricted by reference to the principles controlling the making of an order for costs inter partes. It is a general power conferred upon the Court of Disputed Returns, in the exercise of its special jurisdiction, to order that the Commonwealth pay the costs of a party whenever the Court considers it appropriate so to do. We would not attempt to confine it by definition beyond saying that it should be exercised when considerations of what is fair and just support, on balance, an order indemnifying a party against costs which the party may have incurred in connexion with an electoral petition." In my view it is appropriate that the orders sought by the parties in relation to costs should be made. The proceeding raised issues which were novel and which it was in the public interest to resolve. The Court found that a significant number of inadvertent errors had been made during the scrutiny of reserved ballot-papers. The petitioner had been prejudiced by an even greater number of errors than had been alleged in the petition. These errors would have affected the outcome of the election had it not been that an even greater number of errors were made which prejudiced the successful candidate. The fact that these errors had occurred and required correction by the Court is probably a sufficient reason, standing alone, to make the orders sought. There were, however, a series of novel issues which it was necessary to resolve in the course of the proceeding. Those issues included: Whether the parties, or their legal advisors, could be provided with access to the reserved ballot-papers consistently with the provisions of s 360(1)(iii) of the Act and, if so, on what conditions. Whether the Act imposed any statutory obligations on an Australian Electoral Officer which, if not complied with, could give rise to a contravention of the Act. What processes should be adopted by the Court in order to deal with a petition which alleged that errors had been made by an Australian Electoral Officer in determining the formality of reserved ballot-papers. Whether the Court should engage in merits review or judicial review of decisions made by an Australian Electoral Officer under s 281 of the Act. It was, in my opinion, necessary and desirable, in the public interest, that these issues should be resolved.
Case: Australian Steel Company v EPS Group [2006] NSWSC 1080; (2007) 59 ACSR 602
Outcome: cited
view of the scope of the power conferred on the Court by s 564 and the relationship between s 564 and s 556(1) was adopted by Austin J in Australian Steel Company v EPS Group [2006] NSWSC 1080; (2007) 59 ACSR 602 although his Honour thought that the discretion was not correctly described as a "complete discretion" or a "totally open discretion" but rather a power to make such orders as the Court deems just. Nevertheless, the discretion is conferred in broad terms. As to the question of power, the liquidator contends that he is not a creditor in respect of a claim for the payment of the costs and expenses of recovering property of the company for the purposes of s 556(1) and therefore his claim to those costs and expenses cannot be deferred to that of the indemnifying creditor as an exercise of power to adjust claims within s 556(1). Secondly, the liquidator as a person with a claim for payment of recovery costs and expenses is not a person contemplated by the phrase in s 564 "an advantage over others". The liquidator is not, it is said, an "other" person. Accordingly, there is no power to confer an advantage on the Deputy Commissioner over the liquidator in relation to the liquidator's claim to receive the settlement monies in satisfaction of the costs and expenses incurred in recovering the property of the company. Section 556(1) , subject to Division 6, attributes priority of payment to particular classes of debts and claims, as compared with all other unsecured debts and claims. The first such debt or claim is expenses properly incurred by the liquidator in preserving, realising or getting in the property of the company. Section 556(1) treats those expenses as a claim of the liquidator upon the estate or property of the company. Such a claim ranks above all other claims primarily because those expenses in the ordinary course represent the price paid to secure the company's assets or realise or get in the property of the company for the benefit of those entitled to participate in the distribution of that property according to the provisions of the Corporations Act . The paramouncy of those expenses conveys a clear statutory intention that the liquidator is entitled to recoup out of the property of the company, the costs and expenses "properly" incurred in taking the relevant steps that meet the statutory description in s 556(1)(a). However, that claim nevertheless remains a claim within s 556(1) and is subject to a power in the Court conferred by s 564 to adjust the order of priority including the paramouncy of such a claim, as appears just in all the circumstances, as between an indemnifying creditor and others. In that sense, the reference to others must be taken to be a reference to any other person (or entity) that has a debt or claim to be paid in the winding up of a company whatever the priority of that debt or claim may be according to the proper operation of the relevant provisions of the Corporations Act .
Case: Household Financial Services Pty Ltd v Chase Medical Centre Pty Ltd (1995) 18 ACSR 294
Outcome: cited
is clear from the liquidator's letter of 2 June 2006 and cl 9 of the Indemnity Agreement of 6 February 2007 that the indemnity was to be provided by the Deputy Commissioner on the footing that where an amount was recovered or received by the liquidator arising out of the processes sought to be undertaken through the use of the indemnity, the liquidator would apply to the Court for an order that the indemnifying creditor would receive priority for the amount of the indemnity. That position was also an element of the proposal in relation to the further indemnity. Having regard to the expectations reflected in the liquidator's letter of 2 June 2006, it seems that the parties proceeded on the basis that property (an amount) recovered by reason of the various processes would significantly exceed the costs of recovery and would thus be productive of a fund of money from which distributions would be made in part reduction of the Deputy Commissioner's debt, after redemption of the indemnity amount. Part reduction of the debts of the trade creditors of $27,071.34 in the aggregate, may have been unlikely. In any event, redemption of the amount of the indemnity was to be a priority. The debt to the Deputy Commissioner was revised on 5 June 2007 to $128,927.61. In the result, the settlement funds fall well short of meeting the costs and expenses of recovery. The authorities ( Australia and New Zealand Banking Group Ltd v TJF EBC Pty Ltd (supra); Household Financial Services Pty Ltd v Chase Medical Centre Pty Ltd (1995) 18 ACSR 294; State Bank of New South Wales v Brown (2001) 38 ACSR 715) demonstrate that in exercising the discretion consideration needs to be given to the risk run by the indemnifying creditor in providing the indemnity; the value of the property recovered or the sum recovered; the failure of other creditors to participate in providing an indemnity; the proportions between the debt due to the indemnifying creditor and other debts; the public interest in encouraging creditors to provide indemnities so as to enable a liquidator to pursue remedies which would result in recovery of the property of the company; and all other relevant circumstances.
Case: State Bank of New South Wales v Brown (2001) 38 ACSR 715)
Outcome: cited
is clear from the liquidator's letter of 2 June 2006 and cl 9 of the Indemnity Agreement of 6 February 2007 that the indemnity was to be provided by the Deputy Commissioner on the footing that where an amount was recovered or received by the liquidator arising out of the processes sought to be undertaken through the use of the indemnity, the liquidator would apply to the Court for an order that the indemnifying creditor would receive priority for the amount of the indemnity. That position was also an element of the proposal in relation to the further indemnity. Having regard to the expectations reflected in the liquidator's letter of 2 June 2006, it seems that the parties proceeded on the basis that property (an amount) recovered by reason of the various processes would significantly exceed the costs of recovery and would thus be productive of a fund of money from which distributions would be made in part reduction of the Deputy Commissioner's debt, after redemption of the indemnity amount. Part reduction of the debts of the trade creditors of $27,071.34 in the aggregate, may have been unlikely. In any event, redemption of the amount of the indemnity was to be a priority. The debt to the Deputy Commissioner was revised on 5 June 2007 to $128,927.61. In the result, the settlement funds fall well short of meeting the costs and expenses of recovery. The authorities ( Australia and New Zealand Banking Group Ltd v TJF EBC Pty Ltd (supra); Household Financial Services Pty Ltd v Chase Medical Centre Pty Ltd (1995) 18 ACSR 294; State Bank of New South Wales v Brown (2001) 38 ACSR 715) demonstrate that in exercising the discretion consideration needs to be given to the risk run by the indemnifying creditor in providing the indemnity; the value of the property recovered or the sum recovered; the failure of other creditors to participate in providing an indemnity; the proportions between the debt due to the indemnifying creditor and other debts; the public interest in encouraging creditors to provide indemnities so as to enable a liquidator to pursue remedies which would result in recovery of the property of the company; and all other relevant circumstances.