mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1
Outcome: followed
A party is normally bound by the manner in which it has previously conducted its case: Metwally v University of Wollongong [1985] HCA 28 ; (1985) 59 ALJR 481. Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ there observed: It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. Appl'd: Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105 at [18] , [2002] FCAFC 105 ; 190 ALR 543 at 548 9 per Hill, O'Loughlin and Tamberlin JJ. Similarly, in Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7 Gibbs CJ, Wilson, Brennan and Dawson JJ observed: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The importance of litigants, especially in the present statutory context, raising all arguments in need of resolution in the Federal Magistrates Court cannot be underestimated. In SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 Lander J referred to the appellate jurisdiction of this Court being exercised by a single judge pursuant to s 25(1AA) of the Federal Court of Australia Act 1976 (Cth) and continued: [24] The appellate process is to correct error. If a party is entitled to raise issues for the first time on appeal, the appeal court will become de facto the primary court. That is undesirable. It is particularly undesirable where the appellate jurisdiction of the Court is being exercised by a single judge and any right of appeal from that single judge is to the High Court. If a party is entitled to raise an issue for the first time on appeal in this Court, the High Court will be burdened by applications for leave to appeal from judges sitting alone who have not had their decision reviewed. That must be particularly undesirable from the High Court's point of view. [25] Moreover, to allow new grounds of appeal is to defeat the purpose of the legislation which requires that judicial review of a decision of the Refugee Review Tribunal to be within solely the jurisdiction of the Federal Magistrates Court. If new grounds are advanced on appeal, it effectively means that the jurisdiction is being exercised by this Court.
Case: Foxtel Management Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 589 , 173 ALR 362
Outcome: followed
The circumstances in which a decision of the Tribunal should be set aside by reason of a failure to make inquiries, it is acknowledged, may be a confined category of case: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155. Wilcox J there observed at 169 70: ... The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. ... This decision was subsequently endorsed by the Full Court: Luu v Renevier (1989) 91 ALR 39. See also: Tickner v Bropho [1993] FCA 208 ; (1993) 40 FCR 183 at 197 8 per Black CJ. Subsequently in Foxtel Management Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 589 , 173 ALR 362 at 417 Wilcox J returned to his earlier decision in Prasad and further observed: [214] ... It will be a relatively rare case in which a statutory decision is vitiated because of the decision-maker's failure to make inquiries. It will need to be apparent that relevant material was readily available to the decision-maker, but ignored. The circumstances in which an obligation may be imposed upon an administrator to make further inquiries is thus repeatedly said to be " strictly limited ": Wecker v Secretary, Department of Education Science &amp; Training [2008] FCAFC 108 at [109] per Greenwood J (Weinberg J agreeing). And the fact that it is no part of the task of the decision-maker to make out an applicant's case is also repeatedly recognised -- it was referred to at the outset by Wilcox J in Prasad and subsequently emphasised: eg, Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369 at [50] , [2002] FCAFC 369 ; 127 FCR 24 at 40 1 per Gray, North and Mansfield JJ.
Case: Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105 , 190 ALR 543
Outcome: followed
A party is normally bound by the manner in which it has previously conducted its case: Metwally v University of Wollongong [1985] HCA 28 ; (1985) 59 ALJR 481. Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ there observed: It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. Appl'd: Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105 at [18] , [2002] FCAFC 105 ; 190 ALR 543 at 548 9 per Hill, O'Loughlin and Tamberlin JJ. Similarly, in Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7 Gibbs CJ, Wilson, Brennan and Dawson JJ observed: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The importance of litigants, especially in the present statutory context, raising all arguments in need of resolution in the Federal Magistrates Court cannot be underestimated. In SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 Lander J referred to the appellate jurisdiction of this Court being exercised by a single judge pursuant to s 25(1AA) of the Federal Court of Australia Act 1976 (Cth) and continued: [24] The appellate process is to correct error. If a party is entitled to raise issues for the first time on appeal, the appeal court will become de facto the primary court. That is undesirable. It is particularly undesirable where the appellate jurisdiction of the Court is being exercised by a single judge and any right of appeal from that single judge is to the High Court. If a party is entitled to raise an issue for the first time on appeal in this Court, the High Court will be burdened by applications for leave to appeal from judges sitting alone who have not had their decision reviewed. That must be particularly undesirable from the High Court's point of view. [25] Moreover, to allow new grounds of appeal is to defeat the purpose of the legislation which requires that judicial review of a decision of the Refugee Review Tribunal to be within solely the jurisdiction of the Federal Magistrates Court. If new grounds are advanced on appeal, it effectively means that the jurisdiction is being exercised by this Court.
Case: Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 , 192 ALR 71
Outcome: considered
More generally, there is a legitimate interest in public law matters being resolved in a timely and efficient manner: cf Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 at [62] , [2001] FCA 929 ; 192 ALR 71 at 86 per Gyles J.
Case: Li v Minister for Immigration and Citizenship [2007] FCA 1098 , 96 ALD 361
Outcome: followed
There was, however, no opposition to advancing the submission as to a failure to make inquiries in terms of the decision being unreasonable. So structured, the dispute centred upon whether or not it was unreasonable not to have made further inquiries. No submission was advanced on behalf of the Appellant, nor could it have been advanced, that the power of the Tribunal to make further inquiries imposed upon it " any duty or obligation to do so ": Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [43] , [2004] HCA 32 ; 207 ALR 12 at 21 2 per Gummow and Hayne JJ. See also: SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 at [46] , [2007] FCA 1592 ; 164 FCR 14 at 25 per Allsop J; WAGJ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 277 at [24] . Nor was any submission advanced on behalf of the Respondent Minister that there was not a line of inquiry which was readily available to the Tribunal and centrally relevant to the task being undertaken: eg, Li v Minister for Immigration and Citizenship [2007] FCA 1098 at [28] , [2007] FCA 1098 ; 96 ALD 361 at 367 per Kenny J. The simple submission advanced on behalf of the Respondent Minister was that there was material upon which the Tribunal could justifiably have based its decision and there was, in those circumstances, no duty to inquire further. The response of the Association was disclosed to the now Appellant and he provided his response.
Case: Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369 , 127 FCR 24
Outcome: considered
The circumstances in which a decision of the Tribunal should be set aside by reason of a failure to make inquiries, it is acknowledged, may be a confined category of case: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155. Wilcox J there observed at 169 70: ... The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. ... This decision was subsequently endorsed by the Full Court: Luu v Renevier (1989) 91 ALR 39. See also: Tickner v Bropho [1993] FCA 208 ; (1993) 40 FCR 183 at 197 8 per Black CJ. Subsequently in Foxtel Management Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 589 , 173 ALR 362 at 417 Wilcox J returned to his earlier decision in Prasad and further observed: [214] ... It will be a relatively rare case in which a statutory decision is vitiated because of the decision-maker's failure to make inquiries. It will need to be apparent that relevant material was readily available to the decision-maker, but ignored. The circumstances in which an obligation may be imposed upon an administrator to make further inquiries is thus repeatedly said to be " strictly limited ": Wecker v Secretary, Department of Education Science &amp; Training [2008] FCAFC 108 at [109] per Greenwood J (Weinberg J agreeing). And the fact that it is no part of the task of the decision-maker to make out an applicant's case is also repeatedly recognised -- it was referred to at the outset by Wilcox J in Prasad and subsequently emphasised: eg, Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369 at [50] , [2002] FCAFC 369 ; 127 FCR 24 at 40 1 per Gray, North and Mansfield JJ.
Case: Luu v Renevier (1989) 91 ALR 39
Outcome: followed
The circumstances in which a decision of the Tribunal should be set aside by reason of a failure to make inquiries, it is acknowledged, may be a confined category of case: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155. Wilcox J there observed at 169 70: ... The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. ... This decision was subsequently endorsed by the Full Court: Luu v Renevier (1989) 91 ALR 39. See also: Tickner v Bropho [1993] FCA 208 ; (1993) 40 FCR 183 at 197 8 per Black CJ. Subsequently in Foxtel Management Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 589 , 173 ALR 362 at 417 Wilcox J returned to his earlier decision in Prasad and further observed: [214] ... It will be a relatively rare case in which a statutory decision is vitiated because of the decision-maker's failure to make inquiries. It will need to be apparent that relevant material was readily available to the decision-maker, but ignored. The circumstances in which an obligation may be imposed upon an administrator to make further inquiries is thus repeatedly said to be " strictly limited ": Wecker v Secretary, Department of Education Science &amp; Training [2008] FCAFC 108 at [109] per Greenwood J (Weinberg J agreeing). And the fact that it is no part of the task of the decision-maker to make out an applicant's case is also repeatedly recognised -- it was referred to at the outset by Wilcox J in Prasad and subsequently emphasised: eg, Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369 at [50] , [2002] FCAFC 369 ; 127 FCR 24 at 40 1 per Gray, North and Mansfield JJ.
Case: Metwally v University of Wollongong [1985] HCA 28 ; (1985) 59 ALJR 481
Outcome: followed
A party is normally bound by the manner in which it has previously conducted its case: Metwally v University of Wollongong [1985] HCA 28 ; (1985) 59 ALJR 481. Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ there observed: It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. Appl'd: Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105 at [18] , [2002] FCAFC 105 ; 190 ALR 543 at 548 9 per Hill, O'Loughlin and Tamberlin JJ. Similarly, in Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7 Gibbs CJ, Wilson, Brennan and Dawson JJ observed: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The importance of litigants, especially in the present statutory context, raising all arguments in need of resolution in the Federal Magistrates Court cannot be underestimated. In SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 Lander J referred to the appellate jurisdiction of this Court being exercised by a single judge pursuant to s 25(1AA) of the Federal Court of Australia Act 1976 (Cth) and continued: [24] The appellate process is to correct error. If a party is entitled to raise issues for the first time on appeal, the appeal court will become de facto the primary court. That is undesirable. It is particularly undesirable where the appellate jurisdiction of the Court is being exercised by a single judge and any right of appeal from that single judge is to the High Court. If a party is entitled to raise an issue for the first time on appeal in this Court, the High Court will be burdened by applications for leave to appeal from judges sitting alone who have not had their decision reviewed. That must be particularly undesirable from the High Court's point of view. [25] Moreover, to allow new grounds of appeal is to defeat the purpose of the legislation which requires that judicial review of a decision of the Refugee Review Tribunal to be within solely the jurisdiction of the Federal Magistrates Court. If new grounds are advanced on appeal, it effectively means that the jurisdiction is being exercised by this Court.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 , 207 ALR 12
Outcome: followed
There was, however, no opposition to advancing the submission as to a failure to make inquiries in terms of the decision being unreasonable. So structured, the dispute centred upon whether or not it was unreasonable not to have made further inquiries. No submission was advanced on behalf of the Appellant, nor could it have been advanced, that the power of the Tribunal to make further inquiries imposed upon it " any duty or obligation to do so ": Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [43] , [2004] HCA 32 ; 207 ALR 12 at 21 2 per Gummow and Hayne JJ. See also: SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 at [46] , [2007] FCA 1592 ; 164 FCR 14 at 25 per Allsop J; WAGJ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 277 at [24] . Nor was any submission advanced on behalf of the Respondent Minister that there was not a line of inquiry which was readily available to the Tribunal and centrally relevant to the task being undertaken: eg, Li v Minister for Immigration and Citizenship [2007] FCA 1098 at [28] , [2007] FCA 1098 ; 96 ALD 361 at 367 per Kenny J. The simple submission advanced on behalf of the Respondent Minister was that there was material upon which the Tribunal could justifiably have based its decision and there was, in those circumstances, no duty to inquire further. The response of the Association was disclosed to the now Appellant and he provided his response.
Case: Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553
Outcome: considered
The Tribunal, it may be noted, had no hesitation in suggesting that an inquiry should have been made of the Association and no hesitation in suggesting that an adverse inference could be drawn against the Appellant in the event that he did not consent to such a course. In the absence of any submission now being advanced that a reasonable apprehension of bias may have arisen on the part of the Tribunal by confronting the Appellant with such a choice, it is unnecessary to make any comment upon the course in fact pursued by the Tribunal. But, having embarked upon its preferred course of making an inquiry of the Association, the Tribunal was thereafter committed to making a further inquiry to resolve the diametrically opposed evidence exposed before it. There may be no general obligation to make inquiries to test the authenticity of documents produced to the Tribunal: eg, Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553. But where an inquiry initiated by the Tribunal itself places the authenticity of documents otherwise before it in issue, further inquiries should be made to attempt to resolve the conflict that emerges. Having confronted the Appellant with the choice of consenting to an inquiry being made of the Association, or an adverse inference possibly being drawn, it was incumbent upon the Tribunal to at least make a further inquiry of the nature now advanced by the Appellant. 30 In the present appeal, it is considered that, as a matter of discretion, leave to raise the argument previously abandoned should be refused. No reason has been advanced to explain why the argument now sought to be advanced was previously abandoned by the now Appellant. In any event, the fifth Ground of Appeal is considered to be without sufficient merit to now warrant the granting of leave. 31 The Application as filed in the Federal Magistrates Court stated the following as one of the grounds there relied upon: The Tribunal fell into jurisdictional error in its application of s 91R(3) of the Migration Act . Before that Court the now Appellant was represented by Counsel. For whatever reason, that ground was there abandoned.
Case: NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 , 93 ALD 333
Outcome: followed
It was understood that Counsel for the Appellant contended that the failure to make inquiries constituted a denial of procedural fairness. That submission was resisted by Counsel for the Respondent Minister. It was his contention that by reason of s 422B of the 1958 Act " there is no scope for the operation of general requirements of procedural fairness outside the specific provisions of Div 4 of Pt 7 of the Act ": NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 at [85] , [2006] FCAFC 195 ; 93 ALD 333 at 353 per Young J (Gyles and Stone JJ agreeing).
Case: Ngaronoa v Minister for Immigration and Citizenship [2007] FCAFC 196 , 244 ALR 119
Outcome: followed
In the absence of some explanation as to why an argument which has previously been raised and abandoned should now be resurrected, it is difficult to see why leave should be given not only to raise the Ground on appeal but to raise it by way of an application to amend the Notice of Appeal as filed, that application being filed only shortly before the hearing of the appeal. The purpose of an appeal is to permit the correction of error, not to permit a fresh application to be brought on different grounds occasioned by a change of counsel: Ngaronoa v Minister for Immigration and Citizenship [2007] FCAFC 196 at [1] per Moore J, at [29] [30] per Bennett and Buchanan JJ; 244 ALR 119.