mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Peruvian Railway Construction Company Ltd [1915] 2 Ch 144
Outcome: cited
further competing submission addressed by both Counsel on behalf of Dr Wenkart and Mr Pantzer should be noted. This further submission invoked " the rule in Cherry v Boultbee ". This rule was stated by Sargant J in Re Peruvian Railway Construction Company Ltd [1915] 2 Ch 144 at 150 as follows: ... [W]here a person entitled to participate in a fund is also bound to make a contribution in aid of that fund, he cannot be allowed so to participate unless and until he has fulfilled his duty to contribute. Given the constraint imposed upon the Deputy District Registrar when conducting her " inquiry ", namely that " [t]he appropriate time for the determination of questions of interest " was at a later date, this present submission need not be further considered. A review of all of the materials to which the Court has been referred does not lead to any different conclusion being reached to that set forth in the Certificate . Assisted by &#8212; but not dictated by &#8212; the reasons provided by the Deputy District Registrar, it is considered that the same findings should now be made as were made by the Deputy District Registrar. For the purposes of O 39 rule 10(4) of the Federal Court Rules , it is thus concluded that the " weight " to be given to the Certificate of the Deputy Registrar dated 28 May 2009 is such that a finding should be made, consistent with the terms of the order for referral, that the date on which 28 days has passed from the determination of the quantum of an amount by way of remuneration, costs and charges and expenses to which Mr Pantzer is lawfully entitled that resulted in the aggregate of such determinations exceeding $769,191.66 is 10 January 2005.
Case: Rapid Metal Developments (Australia) Pty Ltd v Rosato [1971] Qd R 82
Outcome: cited
39 does not permit, however, an order to be made referring the whole of a case to a Registrar; it only permits a " subsidiary " part of the case to be the subject of a referral: Sharpe v Goodhew (unreported, FCA, Drummond J, Q I6 of 1989, 11 December 1992). Drummond J there observed (citation omitted): Rules such as O 39, rules 1 and 3 of the Federal Court Rules do not create a new cause of action or a new equity, nor do they confer a general right to an account in substitution for the trial of issues; these rules do not authorise the sending of the whole case to the Registrar, they only authorise the directing of such accounts as are subsidiary to determining the rights of the parties, thus emphasising that the main issue in suit cannot be disposed of by ordering the taking of an account ... One of the decisions there referred to by Drummond J was the earlier decision of the Supreme Court of Queensland in Rapid Metal Developments (Australia) Pty Ltd v Rosato [1971] Qd R 82 where Wanstall J directed attention to the " [v]arious rules of court providing for the taking of accounts " and observed that " [t]hey merely regulate procedure in aid of substantive rights arising from other sources and put in suit in a cause ".
Case: Sharpe v Goodhew (unreported, FCA, Drummond J, Q I6 of 1989, 11 December 1992)
Outcome: cited
39 does not permit, however, an order to be made referring the whole of a case to a Registrar; it only permits a " subsidiary " part of the case to be the subject of a referral: Sharpe v Goodhew (unreported, FCA, Drummond J, Q I6 of 1989, 11 December 1992). Drummond J there observed (citation omitted): Rules such as O 39, rules 1 and 3 of the Federal Court Rules do not create a new cause of action or a new equity, nor do they confer a general right to an account in substitution for the trial of issues; these rules do not authorise the sending of the whole case to the Registrar, they only authorise the directing of such accounts as are subsidiary to determining the rights of the parties, thus emphasising that the main issue in suit cannot be disposed of by ordering the taking of an account ... One of the decisions there referred to by Drummond J was the earlier decision of the Supreme Court of Queensland in Rapid Metal Developments (Australia) Pty Ltd v Rosato [1971] Qd R 82 where Wanstall J directed attention to the " [v]arious rules of court providing for the taking of accounts " and observed that " [t]hey merely regulate procedure in aid of substantive rights arising from other sources and put in suit in a cause ".
Case: Wenkart v Pantzer [2008] FCA 478
Outcome: cited
concluded by Branson J in her reasons for decision in April 2008 ( Wenkart v Pantzer [2008] FCA 478): [91] I conclude that as at the date that the cross-claim was filed, Mr Pantzer, in his capacity as trustee of Dr Wenkart's bankrupt estate, had received a larger amount by way of receipts than the determined quantum of the remuneration, costs, charges and expenses to which he was lawfully entitled. Mr Pantzer has therefore failed to demonstrate that, as at the date of the filing of his cross-claim, he was entitled to "orders in aid" of the consent orders made on 11 March 2002. [92] Nonetheless, I do not accept the submission of Dr Wenkart that it would be appropriate simply to dismiss the cross-claim with costs. Were this course adopted Mr Pantzer could simply institute a fresh application seeking to enforce the charge over the Paddington property. The regrettably long and complex history of this matter renders such an outcome even more undesirable than might ordinarily be the case. The appropriate way to deal with the premature filing of Mr Pantzer's cross-claim is, in my view, by the making of appropriate costs orders. This will require, as a first step, the identification of the date, if any, on which 28 days had passed from the determination of the quantum of an amount by way of remuneration, costs, charges and expenses to which Mr Pantzer is lawfully entitled that resulted in the aggregate of such determinations exceeding $769,191.66 (ie the total amount received by Mr Pantzer as trustee of Dr Wenkart's estate). If the parties are unable to reach agreement on this question, I propose to make an order for the making of an inquiry by a Registrar (O 39 r 2 and r 9 of the Federal Court Rules ). Her Honour had also earlier published in October 2007 reasons for decision relevant to the remuneration and costs of the trustee: Wenkart v Pantzer (No 10) [2007] FCA 1589. This table, it is considered, correctly sets forth as the starting point the sum of $769,191.66. Reference had been made by Branson J to an alternative figure of $797,000: [2008] FCA 478 at [6] . But this alternative figure was apparently an error attributable to submissions by Senior Counsel previously appearing for Dr Wenkart. Nothing turns on this error, it being accepted by both Counsel that the correct sum is that identified in the Certificate . The sum of $769,191.66 was the sum identified by Her Honour when making the order that an " inquiry " be undertaken. And, other than a slight variation as to the dates upon which payments had been made in March 2000, there was also no disagreement on the part of Dr Wenkart as to the payments of $60,744.30, $80,000.00, $11,811.40 or $68,188.60 as identified in the table. One " objection " taken on behalf of Dr Wenkart, however, focussed upon the two sums of $105,000 paid on 15 March 2002. One sum of $105,000 was identified as " trustee remuneration " and the other sum was identified as the payment of legal fees to Cutler Hughes and Harris.
Case: Wenkart v Pantzer (No 10) [2007] FCA 1589
Outcome: cited
concluded by Branson J in her reasons for decision in April 2008 ( Wenkart v Pantzer [2008] FCA 478): [91] I conclude that as at the date that the cross-claim was filed, Mr Pantzer, in his capacity as trustee of Dr Wenkart's bankrupt estate, had received a larger amount by way of receipts than the determined quantum of the remuneration, costs, charges and expenses to which he was lawfully entitled. Mr Pantzer has therefore failed to demonstrate that, as at the date of the filing of his cross-claim, he was entitled to "orders in aid" of the consent orders made on 11 March 2002. [92] Nonetheless, I do not accept the submission of Dr Wenkart that it would be appropriate simply to dismiss the cross-claim with costs. Were this course adopted Mr Pantzer could simply institute a fresh application seeking to enforce the charge over the Paddington property. The regrettably long and complex history of this matter renders such an outcome even more undesirable than might ordinarily be the case. The appropriate way to deal with the premature filing of Mr Pantzer's cross-claim is, in my view, by the making of appropriate costs orders. This will require, as a first step, the identification of the date, if any, on which 28 days had passed from the determination of the quantum of an amount by way of remuneration, costs, charges and expenses to which Mr Pantzer is lawfully entitled that resulted in the aggregate of such determinations exceeding $769,191.66 (ie the total amount received by Mr Pantzer as trustee of Dr Wenkart's estate). If the parties are unable to reach agreement on this question, I propose to make an order for the making of an inquiry by a Registrar (O 39 r 2 and r 9 of the Federal Court Rules ). Her Honour had also earlier published in October 2007 reasons for decision relevant to the remuneration and costs of the trustee: Wenkart v Pantzer (No 10) [2007] FCA 1589.
Case: Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225
Outcome: cited
The appellant has not earlier advanced a claim to fear being arrested and charged with an offence under the Terrorism and Disturbance Act if he returns to India. If he had, the Tribunal would presumably have pointed out to him that being arrested on a charge of contravening a law of general application would not, of itself, constitute persecution (see Applicant A &amp; Anor v Minister for Immigration and Ethnic Affairs &amp; Anor [1997] HCA 4 ; (1997) 190 CLR 225 and Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 ; (2003) 217 CLR 387).
Case: Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 ; (2003) 217 CLR 387
Outcome: cited
The appellant has not earlier advanced a claim to fear being arrested and charged with an offence under the Terrorism and Disturbance Act if he returns to India. If he had, the Tribunal would presumably have pointed out to him that being arrested on a charge of contravening a law of general application would not, of itself, constitute persecution (see Applicant A &amp; Anor v Minister for Immigration and Ethnic Affairs &amp; Anor [1997] HCA 4 ; (1997) 190 CLR 225 and Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 ; (2003) 217 CLR 387).
Case: Carey-Hazell v Getz Bros &amp; Co (Aust) Pty Ltd [2006] FCAFC 48
Outcome: cited
The appellant did not seek judicial review in the Federal Magistrates Court on the ground that the Tribunal breached any or all of ss 414, 415 and 420 of the Act. Nor has he particularised the way or ways in which he now alleges that the Tribunal breached those sections. As I can see no apparent merit in the submission that the Tribunal breached those sections I do not consider it expedient in the interests of justice to grant the appellant leave to rely in this Court on a ground not raised before the Federal Magistrates Court ( Carey-Hazell v Getz Bros &amp; Co (Aust) Pty Ltd [2006] FCAFC 48 at [53] ). 46 To the extent that the appellant continues to submit that the Tribunal overlooked his claim to fear persecution in India on the specific ground that he had stored ammunition for the BK, I see no error in the way in which the Federal Magistrate dealt with this submission. 47 I am unable to identify any substance in the second ground of appeal.
Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162
Outcome: cited
As Weinberg J pointed out in SZEEU 230 ALR at [110], the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 by majority held that s 424A requires the Tribunal, at the hearing stage, to give the applicant written notice of any information that would be the reason, or a part of the reason, for affirming the decision under review and that any breach of the requirements of the section will constitute jurisdictional error. 24 Allsop J pointed out in SZEEU 230 ALR at [214] that the decision of the High Court in SAAP [2005] HCA 24 ; 215 ALR 162 requires some aspects of the analysis in VAF 206 ALR 471 to be rejected. However, I do not understand the authority of the above passage from VAF to have been generally undermined. Nonetheless, their Honours' reference to the 'integral' and the 'inessential' must be understood more strictly than may originally have been intended. The critical question is whether the information in question was a part (that is, any part) of the reason for affirming the decision ( SZEEU 230 ALR per Allsop J at [215]). 25 The task of ascertaining what was the Tribunal's reason, or the constituent parts of the Tribunal's reason, for affirming the decision under review may not be an easy one. It will require the reasons for decision of the Tribunal to be analysed with care. Ordinarily any statement made by the Tribunal in its written reasons for decision concerning its reason for affirming the decision will carry considerable weight. However, a statement of this kind will not necessarily be determinative. On an application for judicial review of the decision of the Tribunal it is for the court itself to determine what was the Tribunal's reason, or as appropriate the constituent parts of the reason, for affirming the decision under review. In doing so the court must remember that in SAAP [2005] HCA 24 ; 215 ALR 162 the majority made clear that it was not appropriate to engage in an evaluative analysis of the triviality, or alternatively the seriousness, of the failure to observe the requirements of s 424A (see per McHugh J at [83], Kirby J at [173] and Hayne J at [208]).
Case: VAF v Minister for Immigration and Multicultural Affairs (2004) 206 ALR 471
Outcome: cited
In VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471, a case decided earlier than SZEEU [2006] FCAFC 2 ; 230 ALR 1 , Finn and Stone JJ at [33] had observed: 'It commonly is the case that the detail and complexity of the case advanced by a visa applicant, and the information that is given and garnered for the purposes of considering it, results in the Tribunal being confronted with issues that may be of varying importance, relevance and centrality both to the decision to be taken and to the reasoning that in the event sustains that decision. While the reasoning process may advert to, and express views on, such issues, all will not necessarily constitute part of the reason for the Tribunal's decision. Tribunals, no less than courts, engage in their own species of dicta often enough for reasons related to haste and pressure in composition. When a Tribunal's reasons are to be evaluated for s 424A(1) purposes, the Court as a matter of judgment is required to isolate what were the integral parts of the reasons for the Tribunal's decision. That task, necessarily, is an interpretative one. In some instances the differentiation of the integral and the inessential may be by no means easy -- and made the more so by less than explicit indications in the reasons themselves as to what the Tribunal itself considered to be integral.' 24 Allsop J pointed out in SZEEU 230 ALR at [214] that the decision of the High Court in SAAP [2005] HCA 24 ; 215 ALR 162 requires some aspects of the analysis in VAF 206 ALR 471 to be rejected. However, I do not understand the authority of the above passage from VAF to have been generally undermined. Nonetheless, their Honours' reference to the 'integral' and the 'inessential' must be understood more strictly than may originally have been intended. The critical question is whether the information in question was a part (that is, any part) of the reason for affirming the decision ( SZEEU 230 ALR per Allsop J at [215]).
Case: Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225
Outcome: cited
Moreover, this claim was tied to the father's claims of Christian beliefs which the tribunal rejected. The mere fact that the husband might continue to breach the one child policy was not capable of making him a member of a particular social group: Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225. Thus, in my opinion, this claim could not have succeeded. The only factual basis for the claim was that the father intended to continue to breach the one child policy and his Christian beliefs would not permit him or his wife to have abortions. Once the father's claim to be a Christian was rejected, his mere claim that he would have more children would not have been capable of making him a member of any particular social group identified by him in his claim. For these additional reasons, I reject this claim. 67 The appeal must be allowed. I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 19 December 2008 The First and Second Appellants: Appeared in person and the First Appellant spoke for all three appellants Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: Sparke Helmore Date of Hearing: 28 November 2008 Date of Judgment: 19 December 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1938.html
Case: C raig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163
Outcome: followed
Here, the tribunal made no findings about the impact of any fee which might be imposed. It therefore failed to pose or answer the correct question and committed a jurisdictional error: C raig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ. Addressing that question may well have involved the tribunal dealing with the third basis on which the appellants argued it had erred. That was that the tribunal had not enquired whether the fee was appropriate and adapted to a legitimate end so as to be a law of general application. Her Honour rejected this argument finding that the tribunal had addressed the correct question in its speculation about what fee might be imposed. It is not necessary to decide this issue. 64 The second ground of appeal was that the husband would continue to breach the one child policy by having more children, were he to return to China. The tribunal recorded that he had made such a claim during an earlier tribunal hearing. Her Honour rejected this argument. The tribunal did not expressly give separate attention to this claim but made a general finding that it was satisfied that the husband had manufactured his claims in order to make a claim for a protection visa and found that he was not a credible witness. The trial judge held that, whether or not the tribunal addressed this matter as a separate claim, the tribunal dealt sufficiently with the possibility that the father might have further children in breach of the one child policy when it considered his other claims. Ultimately, it concluded that it did not accept his claims and was satisfied that he did not have a well-founded fear of serious harm amounting to persecution for a Convention reason or that he would be persecuted for any Convention related reason if he returned to China now or in the reasonably foreseeable future. 65 The trial judge noted that the tribunal had rejected the husband's claim that he was of interest to the authorities in China, prior to his departure, by reason of his breaches of the one child policy and that it had found that the imposition of a social compensation fee, in accordance with the law generally applicable in China for breach of the one child policy, did not amount to mistreatment so serious and systematic as to satisfy the requirements of s 91R(1) of the Act. Her Honour concluded that the tribunal's findings sufficiently addressed the possibility that the appellant parents may have more children and that they would then suffer difficulties by reason of the application of the one child policy. This ground was also advanced in the notice of appeal from her Honour. I reject it for the reasons her Honour gave.
Case: Darling Casino Ltd v NSW Casino Control Authority [1997] HCA 11 ; (1997) 191 CLR 602
Outcome: applied
The principle identified by Mason J requires a decision-maker to make his or her decision on the basis of the most current material available to him or her at the time the decision is made, unless the legislation under which the decision is made excludes this duty: Darling Casino Ltd v NSW Casino Control Authority [1997] HCA 11 ; (1997) 191 CLR 602 at 624 per Gaudron and Gummow JJ with whom Brennan CJ, Dawson and Toohey JJ agreed on this issue at 609; see also Shi v Migration Agents Registration Authority [2008] HCA 31 ; (2008) 248 ALR 390 at 400 [42] per Kirby J.
Case: Kahn v Minister for Immigration and Ethnic Affairs [1987] FCA 457 ; (1987) 14 ALD 291
Outcome: followed
The tribunal was obliged to identify the evidence on which its finding of "considerable relaxation of the one child policy" was based pursuant to s 430(1)(d) of the Act. It did not make a jurisdictional error merely by failing to identify the evidence on which that finding was based. However, a decision-maker must give proper, genuine and realistic consideration to the merits of the case: Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457 ; (1987) 14 ALD 291 at 292 per Gummow J; see also Telstra Corporation Ltd v ACCC [2008] FCA 1758 at [106] where I collected the authorities.
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
Of course, the Court cannot turn a review of the administrative decision into a review of the merits of the decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. Their Honours said that proceedings for judicial review should not over-zealously scrutinise the reasons of the decision-maker. Those reasons are meant to inform.
Case: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Outcome: cited
Her Honour said that no authority had been cited to her in support of the proposition that the tribunal was under an obligation to make its decision on the basis of the most country information reasonably available to it. She said that in VAO v Minister for Immigration and Multicultural Affairs [2002] FCAFC 31 Sundberg, Marshall and Weinberg JJ had held that the tribunal had no obligation "to seek out or act upon more recent information" at [25]. The trial judge said that it was open to the tribunal to prefer particular country information in arriving at findings of fact and that no jurisdictional error would be established if it did so or gave different weight to various items, relying on NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 and VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104 among other authorities.