mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: McLeod v Australian Securities and Investment Commission [2002] HCA 37 ; (2002) 211 CLR 287
Outcome: referred to
As to the second submission, this could be rejected on a number of grounds. It is sufficient for me to say that the State Act does not apply to the applicant's request for access according to its terms and is not 'picked up' by s 79 of the Judiciary Act 1903 (Cth), because the Commonwealth has 'otherwise provided' in the FIO Act: see McLeod v Australian Securities and Investment Commission [2002] HCA 37 ; (2002) 211 CLR 287 at 302 [44] . 20 The application must be dismissed and the applicant must pay the respondent's costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 13 July 2006 The Applicant: The Applicant appeared in person. Counsel for the Respondent: Ms E Reed Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 30 June 2006 Date of Judgment: 13 July 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/890.html
Case: Pancontinental Mining Ltd v Burns (1994) 52 FCR 454
Outcome: referred to
The applicant's challenge is made by way of an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the ADJR Act'). It seems that the applicant had a right of appeal on a question of law from the decision of the Tribunal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ('the AAT Act'), but he has not exercised that right. Although the respondent accepts that the decision falls within the terms of the ADJR Act (see, eg, Pancontinental Mining Ltd v Burns (1994) 52 FCR 454 at 462-464 per von Doussa J), it submits that because the applicant had a right of appeal on a question of law under the AAT Act, I have a discretion not to entertain the application under the ADJR Act. However, the respondent has asked me not to exercise the discretion to decline to entertain the application, because it submits that it is in the interests of justice that the application be determined as expeditiously as possible. I am prepared to proceed in this way because, irrespective of the form of the challenge, the applicant must show a breach of the rules of natural justice or an error of law and I am satisfied that he is unable to do this. 3 The applicant represented himself both in this Court and in the Tribunal. He believes that the respondent has certain documents and, as will become clear, his attempts to obtain those documents have a long history. 4 On 18 February 2005, the applicant made a request of the respondent under s 15 of the FIO Act for certain documents. The documents sought were as follows: 'Seeking freedom of information between 1978 to 2005 about myself ... I seek all materials and including a Queensland Police file (including the Special Branch files) that I provided you in 1990.'
Case: Sullivan v Department of Transport (1978) 20 ALR 323
Outcome: referred to
Section 33(1)(b) of the AAT Act provides that a proceeding before the Tribunal shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of that Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit. The Tribunal has a duty to act judicially. Ordinarily, it is for the parties to define the issues in the proceedings and to decide how they wish to conduct their respective cases. As Deane J (with whom Fisher J agreed) noted in Sullivan v Department of Transport (1978) 20 ALR 323 (at 343), undue interference by the Tribunal with how the parties conduct their cases may prove counter-productive. At the same time, there may be cases where the Tribunal's duty to act judicially may require it to advise a party of his or her ability to seek an adjournment, or even to adjourn a hearing of its own motion. It is not possible to catalogue the circumstances in which either of these courses may be appropriate. They are likely to be rare and to involve a party who does not have legal representation. 18 In this case, the applicant was aware before the hearing that the respondent was asserting that the documents could not be found or did not exist. There is nothing in what occurred before the Tribunal to suggest that it would have been appropriate for the Tribunal to intervene in some way so as to enable the applicant to launch what is even now an unparticularised challenge to the evidence of the searches conducted of the electronic databases of the respondent. I reject the first submission.
Case: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Outcome: considered
In addition, the Tribunal formed the view that, given the attributes of the appellant and the basis on which he claimed persecution, it would be possible for the appellant to relocate to another part of India. On this matter, I find that the decision of the Tribunal is in accordance with the principles set out by Black CJ in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, which were referred to in the Federal Magistrates Court. 7 It is worth noting that the Tribunal also considered the evidence of the second named applicant and formed the same conclusion. 8 Accordingly, after considering the reasons for the decision of the Tribunal and the detailed treatment of the numerous grounds raised before the Federal Magistrates Court, I am not persuaded that either the Court or the Tribunal fell into appealable error. I am not satisfied that s 424A of the Migration Act 1958 (Cth) has been breached. I do not think the circumstances for the application of that section arise in this case and, as pointed out in the decision of Federal Magistrates Court below, there are no transcripts, particulars or detailed submissions indicating that the material in question came before the Tribunal in a way other than what is stated in its decision. 9 For the above reasons I am satisfied in this case that the appeal should be dismissed with costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 3 August 2007 Counsel for the Appellant: None Solicitor for the Appellant: None Counsel for the Respondent: Mr J. Mitchell Solicitor for the Respondent: Clayton Utz Date of Hearing: 30 July 2007 Date of Judgment: 30 July 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1152.html
Case: NAGP v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 709
Outcome: cited
I am satisfied that the appellant has given a satisfactory explanation for his delay. However, the exercise of my discretion to set aside the orders depends not only upon the sufficiency of the explanation but also on whether I come to the view that the appellant has a properly arguable case to go to a hearing of the appeal, see NAGP v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 709 at [3] - [4] ; NALO v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 113 ; NADF v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCAFC 71 at [16] - [17] .
Case: NALO v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 113
Outcome: cited
I am satisfied that the appellant has given a satisfactory explanation for his delay. However, the exercise of my discretion to set aside the orders depends not only upon the sufficiency of the explanation but also on whether I come to the view that the appellant has a properly arguable case to go to a hearing of the appeal, see NAGP v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 709 at [3] - [4] ; NALO v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 113 ; NADF v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCAFC 71 at [16] - [17] .
Case: NADF v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCAFC 71
Outcome: cited
I am satisfied that the appellant has given a satisfactory explanation for his delay. However, the exercise of my discretion to set aside the orders depends not only upon the sufficiency of the explanation but also on whether I come to the view that the appellant has a properly arguable case to go to a hearing of the appeal, see NAGP v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 709 at [3] - [4] ; NALO v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 113 ; NADF v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCAFC 71 at [16] - [17] .
Case: Yevad Products Pty Limited v Brookfield [2005] FCAFC 263
Outcome: cited
Nevertheless, I am satisfied that I have power to set aside the order on either of two bases; the first is order 35 rule 7(1) if the motion was filed before entry of the order. The second is an implied power under section 23 of the Act to overcome the court's failure to provide a party with a hearing; see Yevad Products Pty Limited v Brookfield [2005] FCAFC 263 at [26] - [33] and the authorities there cited; see also DJL v Central Authority [2000] HCA 17 ; (2000) 201 CLR 226 at [189] .
Case: DJL v Central Authority [2000] HCA 17 ; (2000) 201 CLR 226
Outcome: cited
Nevertheless, I am satisfied that I have power to set aside the order on either of two bases; the first is order 35 rule 7(1) if the motion was filed before entry of the order. The second is an implied power under section 23 of the Act to overcome the court's failure to provide a party with a hearing; see Yevad Products Pty Limited v Brookfield [2005] FCAFC 263 at [26] - [33] and the authorities there cited; see also DJL v Central Authority [2000] HCA 17 ; (2000) 201 CLR 226 at [189] .
Case: SZEEU v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCAFC 2
Outcome: referred to
The Minister fairly raises another issue which was not addressed by the appellant. The issue is the question of whether section 424A was breached. The Minister concedes that in light of a decision of a Full Court in SZEEU v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCAFC 2 (" SZEEU") , the Federal Magistrate's finding that a protection visa application had been adopted in writing was no longer sustainable the Minister concedes that the information contained in the appellant's protection visa application was not "information" falling within the exception contained in section 424A(3)(b) of the Act . 33 However, it seems to me to be clear that the observations of Allsop J in SZEEU at [206] and [207] are applicable. That is to say, "information" does not encompass the RRT's subjective appraisals, thought processes or determinations nor does it encompass gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the RRT in weighing the evidence by reference to those gaps. 34 Thus, applying the approach adopted by Allsop J at [216] of SZEEU, the RRTs reasons in the present case went to the appellant's manner of giving evidence and the vague and generalised claims which he made it was those factors which informed the RRTs decision and not the information in the protection visa application itself. 35 I am satisfied on a careful reading of the decision of the RRT and the decision of the Federal Magistrate that there is no fairly arguable case that the appellant could succeed on an appeal. I therefore decline to exercise my discretion to set aside the orders which I made on 11 April 2006. 36 The order I will make is that the notice of motion be dismissed with costs. I certify that the preceding thirty six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 31 May 2006 The Appellant appeared in person Solicitor for the Respondent: Sparke Helmore Date of Hearing: 24 May 2006 Date of Judgment: 24 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/648.html
Case: Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225
Outcome: followed
In relation to indemnity costs, categories of cases warranting the Court in departing from the usual course of ordering costs on a party to party basis were described in Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 as including: 1. Making allegations of fraud knowing them to be false. 2. Evidence of particular misconduct that causes loss of time to the court and to other parties. 3. Making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions. 4. The fact that proceedings were commenced or continued for some ulterior motive or unlawful disregard of known facts or clearly established law. 5. Any prudent refusal of an offer to compromise. 19 These principles, as articulated in Colgate-Palmolive , are well known and were recently reinforced by the Full Court of the Federal Court in InterTAN Inc v DSE (Holdings) Pty Ltd [2005] FCAFC 54 at [11] . The categories of cases I have listed are not closed. The Court clearly has wide discretion under s 43 Federal Court of Australia Act 1976 (Cth) to order costs in any particular matter. In this particular case I am not persuaded that the circumstances of the case are such as to warrant a departure from the usual practice of the Court in awarding party to party costs so far as the costs of the respondent are concerned. There is no evidence before me that this case exhibits special or unusual features so as to justify the Court exercising its discretion so as to award indemnity costs. Further, notwithstanding the failure of the applicant to attend on numerous occasions there is no evidence before me that the applicant's case against the respondent was "hopeless" or had no chance of success, or that the applicant's case was not based on evidentiary or factual foundations.
Case: InterTAN Inc v DSE (Holdings) Pty Ltd [2005] FCAFC 54
Outcome: followed
These principles, as articulated in Colgate-Palmolive , are well known and were recently reinforced by the Full Court of the Federal Court in InterTAN Inc v DSE (Holdings) Pty Ltd [2005] FCAFC 54 at [11] . The categories of cases I have listed are not closed. The Court clearly has wide discretion under s 43 Federal Court of Australia Act 1976 (Cth) to order costs in any particular matter. In this particular case I am not persuaded that the circumstances of the case are such as to warrant a departure from the usual practice of the Court in awarding party to party costs so far as the costs of the respondent are concerned. There is no evidence before me that this case exhibits special or unusual features so as to justify the Court exercising its discretion so as to award indemnity costs. Further, notwithstanding the failure of the applicant to attend on numerous occasions there is no evidence before me that the applicant's case against the respondent was "hopeless" or had no chance of success, or that the applicant's case was not based on evidentiary or factual foundations.
Case: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337
Outcome: applied
is no controversy between the parties as to the principles to be applied. The inquiry is whether a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question it is required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at [6] . The development and application of the test of reasonable apprehension of bias avoids the need for a court: "to attempt some analysis of the likely or actual thought processes of the decision-maker. It objectifies what otherwise would be a wholly subjective inquiry and it poses the relevant question in a way that avoids having to predict what probably will be done, or to identify what probably was done, by the decision-maker in reaching the decision in question: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at [184] .
Case: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507
Outcome: cited
is no controversy between the parties as to the principles to be applied. The inquiry is whether a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question it is required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at [6] . The development and application of the test of reasonable apprehension of bias avoids the need for a court: "to attempt some analysis of the likely or actual thought processes of the decision-maker. It objectifies what otherwise would be a wholly subjective inquiry and it poses the relevant question in a way that avoids having to predict what probably will be done, or to identify what probably was done, by the decision-maker in reaching the decision in question: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at [184] . I am not concerned to analyse the Tribunal's actual thought processes or to identify what was done by the Tribunal in reaching its decision: Jia , at [185]. Nonetheless, against the background of the Tribunal's conceded apparent bias at the hearing stage, I am satisfied the reasonable observer might well conclude that the attitudes and predisposition to Mr Shingles there manifest, were not curbed as the Senior Member's retreat might have suggested. Rather, they were reflected in the Reasons for Decision and particularly was this so in the manner in which the Tribunal used the evidence to reach the finding that (at Reasons [35]): ... the Applicant has attempted to exaggerate the effects of his disabilities in obtaining and retaining employment. In this the lay observer might properly have said the Tribunal made an issue of a matter that was not manifest as an issue to be addressed in the case with which the Tribunal had to deal. This leads to the second basis of the Appellant's case before me. (b) Denial of Procedural Fairness In reaching its "exaggeration" conclusion in relation to the effects of Mr Shingles' disabilities, the Tribunal was not simply expressing a conclusion which followed from perceived inconsistencies in the evidence. Rather, the Tribunal was calling into question Mr Shingles' credibility directly: he was attempting to create a misleading picture of his disabilities.
Case: Re Bos and Defence Forces Retirement and Death Benefits Authority (1977) 20 ALR 663
Outcome: cited
way of background I should emphasise that the issue before the Tribunal was "the percentage of total incapacity of [Mr Shingles] in relation to civil employment ": s 51(2): see Re Bos and Defence Forces Retirement and Death Benefits Authority (1977) 20 ALR 663 at 666-667. Mr Shingles gave a deal of evidence of his history of obtaining and retaining employment and of the difficulties his alcohol abuse posed in both of those respects. His evidence was that he had 28 jobs in 18 years and that many of these were in the early years after discharge. I should note that the Tribunal was constituted by two members a Senior Member who had had service experience in Vietnam, and a Member who was a medical practitioner. As the bias claim relates to comments made by the Senior Member, I will for ease in exposition refer only to that member. (a) The Transcript On the first page of the transcript at the first day of hearing the following exchange is recorded between the Senior Member and Mr Shingles' counsel: Mr White: If the Tribunal would be assisted by the applicant traversing all of the matters then I will take him through. Senior Member: Well, having read what he has said about his Vietnam service, we're rather hoping that Mr Dillon [the Authority's counsel] might explore that in some detail. Mr White: Yes. Senior Member: If he doesn't, we will. Mr White: Yes. Is there anything in particular the senior Member has in mind, otherwise - - - Senior Member: I've got lots of things in mind but I will save that.
Case: Emperor Sports Pty Ltd v Commissioner of Patents [2005] FCA 996 ; (2005) 146 FCR 159
Outcome: cited
re-examination provisions were introduced following the report of the Industrial Property Advisory Committee to the Minister for Science and Technology dated 29 August 1984. The report was entitled "Patents, Innovation and Competition in Australia", and recommended the availability of re-examination "so as to utilise the expertise in the Patent Office to decide appropriate questions in the hope that this may reduce the costs of, or in some cases avoid the need for, court proceedings": see the report as quoted in Emperor Sports Pty Ltd v Commissioner of Patents [2005] FCA 996 ; (2005) 146 FCR 159 at 179-180 per Lindgren J and Termite Tite (NZ) No 2 Ltd v Term-Seal (Aust) Pty Ltd [2007] FCA 1493 ; (2007) 74 IPR 16 at 28 [50] per Besanko J. These provisions are to be read against the patent regime established under the Patents Act , including the definitions of 'novelty' and 'inventive step' in s 7 , and the related definitions of 'prior art base' and 'prior art information' in the Dictionary in Sch 1.
Case: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Outcome: cited
Before considering the rival contentions, I mention three matters of a general nature which were the subject of submissions. First, the respondent referred to the well-established principle that I should not analyse the reasons of the Tribunal with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259. That is certainly a matter which I must bear in mind, although I think the 'principle' is of limited relevance here because both the Tribunal's reasons and the points of construction raised by the applicant are reasonably clear. Secondly, the respondent submits that in construing the sections of the Act, I should bear in mind that it is remedial or beneficial legislation and is to be interpreted liberally. Workers Compensation legislation is often referred to as a prime example of such legislation. However, I must also bear in mind the limits on this approach to statutory construction. In Victims Compensation Fund Corporation v Brown [2003] HCA 54 ; (2003) 77 ALJR 1797 (at [33] (footnotes omitted) Heydon J (with whom the other members of the Court agreed) said: 'To begin consideration of issues of construction by positing that a "liberal", "broad", or "narrow" construction will be given tends to obscure the essential question, that of determining the meaning the relevant words used require. Although the purpose of the Act is beneficial, it does not follow that recovery is contemplated for every act of violence or every consequence that could be described as an injury. The numerous injuries set out in the table to Sch 1 (which extends over 12 pages) are identified with considerable precision. The clauses in Sch 1 which precede the table, too, are drafted with some attempt at precision. The legislation confers benefits, and no doubt it should not be construed restrictively, but in dealing with specific limited words like those of cl 5, it is not open to apply much liberality of construction. It is difficult to state the legislative purpose except at such extreme levels of generality that it is not useful in construing particular parts of the legislative language. As Spigelman CJ said,"The issue before the Court is the determination of the circumstances in which compensation is payable." The legislation has endeavoured to define these circumstances in precise language which does not permit universal recovery; and hence "[t]he Court is not required to give the most expansive possible interpretation of such circumstances".'