mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Sullivan v Department of Transport (1978) 20 ALR 323
Outcome: cited
principles relevant to this aspect of the proceedings can be simply stated: (a) The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is an abuse of discretion entitling a party with sufficient standing to seek judicial review of the decision. (b) This ground of review can only be made out if the decision-maker fails to take into account a consideration that they are bound to take into account in making the decision. (c) The factors a decision-maker is bound to take into account in making a decision are determined by construction of the statute conferring the power. Where the matters to be taken into account are not expressly stated in the statute, they must be determined by implication from the subject matter, scope and purpose of the Act: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 39-40 per Mason J. (d) A decision-maker may not have had proper regard to a relevant consideration if they merely make a formalistic reference to the consideration: see Azriel v NSW Land &amp; Housing Corporation [2006] NSWCA 372 at [49] per Basten JA (with whom Santow and Ipp JJA agreed at [1] and [3]). (e) A decision-maker is required to give proper, genuine and realistic consideration to a relevant consideration: see Deloitte Touche Tohmatsu v Australian Securities Commission (1996) 136 ALR 453 at 468 (per Lindgren J); Bruce v Cole (1998) 45 NSWLR 163 at 185-6 per Spigelman CJ and the authorities cited therein. (f) The mere failure to refer expressly to a matter will not necessarily give rise to the inference that it was not taken into account: see Australian Conservation Foundation v Forestry Commission (1988) 19 FCR 127 at 132 (per Burchett J). However, it is open to the Court to infer that a matter was not taken into account where no reference is made to it: see, eg, Sullivan v Department of Transport (1978) 20 ALR 323 at 349 (per Deane J). (g) In Deloitte Touche Tohmatsu 136 ALR 453 , Lindgren J said (at 468): It is for an applicant to make out its case of "failure to take into account", but the circumstances may be such that the applicant will be aided in this task by an absence of evidence from the decision-maker on a particular matter, such as an absence of evidence giving rise to an inference of a failure to make further inquiries when a genuine taking into account would have called for them.
Case: Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 2) (1979) 40 FLR 83
Outcome: cited
in Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 2) (1979) 40 FLR 83 Fisher J said (at 111): The Trade Practices Tribunal considered the concept of market in some detail in Re Queensland Co-operative Milling Association Ltd (1975-6) 8 ALR 481 at 517, where the members said: "A market is the area of close competition between firms or, putting it a little differently, the field of rivalry between them. ... Within the bounds of a market there is substitution substitution between one product and another, and between one source of supply and another, in response to changing prices. So a market is the field of actual and potential transactions between buyers and sellers amongst whom there can be strong substitution, at least in the long run, if given a sufficient price incentive". It is significant to note that consideration must be given to both actual and potential transactions between buyers and sellers in identifying the 'field of rivalry' between competitors.
Case: Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193 ; (2003) 131 FCR 529
Outcome: cited
Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193 ; (2003) 131 FCR 529 the Full Court (Wilcox, French and Gyles JJ) said (at 545): The concept of a "market" is a metaphor used to describe a range of competitive activities by reference to function, product and geography. The application of the metaphor may be informed by economic analysis, provided it is rooted in commercial realities.
Case: Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1
Outcome: cited
mere lack of resources does not of itself give rise to the kind of lack of state protection that is necessary to establish a well-founded fear of persecution for a Convention reason. As McHugh J observed in Minister for Immigration &amp; Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1 at [33] : ' [t] he inability of Australian governments to eliminate [death or serious injury from motor car accidents] does not determine whether the fear [of death or serious injury from a motor accident] is well-founded.' The second ground of appeal concerns whether or not any part of the Tribunal's reasons were based upon information that should have been disclosed to the appellant pursuant to s 424A(1) of the Act. Leave is required for the appellant to raise this ground as it was not argued before the Federal Magistrate. It is submitted by the appellant that s 424A(1) of the Act applies in this case in two ways. First, there was a reference in the Tribunal's reasons to country information that had been before the Delegate. The country information included the response of the Department of Foreign Affairs and Trade to a series of questions apparently asked by the Tribunal concerning the status of women trafficking in Mongolia ('the response'). The appellant accepts that if the response was information of a kind to which s 424A(3)(a) of the Act applied it did not need to be disclosed to the appellant. However, the appellant submits that because the response commenced with the words ' SEVERAL FEMALE APPLICANTS CLAIM TO HAVE PARTICIPATED IN PROTESTING AGAINST WOMEN TRAFFICKING IN MONGOLIA ON BEHALF OF A LOCAL WOMENS SUPPORT GROUP ' (emphasis added), the information must be ' specifically about the applicant or another person ' and not ' just about a class of persons of which the applicant or other person is a member ' (s 434A(3)(a)). It is clear to me that when one looks at the response in its totality, the information relates only to a class of persons. All of the answers to the questions and the questions themselves relate to a class of persons, being victims of women trafficking or persons participating in protests against women trafficking, and not to any individual. Accordingly, even if that did form part of the information upon which the Tribunal relied, the Tribunal was not obliged to disclose the response to the appellant.
Case: SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238
Outcome: cited
basis for the Tribunal's decision was that it was the unsatisfactory nature of the evidence before the Tribunal alone that was the reason for affirming the decision of the Delegate. That such information does not come within s 424A(1) has been reaffirmed in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at [223] to [224] and again in SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238 at [12] .
Case: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214
Outcome: cited
basis for the Tribunal's decision was that it was the unsatisfactory nature of the evidence before the Tribunal alone that was the reason for affirming the decision of the Delegate. That such information does not come within s 424A(1) has been reaffirmed in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at [223] to [224] and again in SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238 at [12] .
Case: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473
Outcome: referred to
In the appellant's submission, this approach demonstrated that the Tribunal was distracted from the question that is at the heart of any enquiry as to whether a person is a refugee, namely does the person have a well-founded fear of future persecution should that person be returned to their own country. This is the crucial issue and, as Gummow and Hayne JJ have noted, persecution in the past is neither necessary nor sufficient for an affirmative answer to that question. A person could have a well-founded fear of persecution even if there is no likelihood that those responsible for past persecution would be able to mete out similar treatment in the future or even if there had been no persecution in the past; Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 at [72] - [74] . 30 The Tribunal found that the appellant had a reputation as a troublemaker and that it was likely that this was at the root of his past treatment. That being so it was not sufficient to find that those responsible for that treatment would not seek him out in other parts of Egypt. It was necessary for the Tribunal to ask if the appellant is likely to continue with the conduct that marked him as a troublemaker in the past and, if so, whether that conduct would, in the future, evoke a similar response from others. The Tribunal is not entitled to base its prediction on an expectation that the appellant will modify his behaviour on his return to Egypt; Appellant S395/2002 at [40] per McHugh and Kirby JJ and at [80]-[82] per Gummow and Hayne JJ. 31 The appeal must be allowed with costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone . Associate: Dated: 12 January 2007 Counsel for the Appellant: B O'Donnell Counsel for the First Respondent: R Francois Solicitor for the First Respondent: Australian Government Solicitor Date of Hearing: 11 December 2006 Date of Judgment: 12 January 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/9.html
Case: Minister for Immigration and Multicultural and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: discussed
The Minister urged a 'beneficial' construction of the Tribunal's reasons and referred to comments made in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259, in particular at 271-272. The phrase 'beneficial construction', as used in Wu Shan Liang has a specific meaning, and was certainly not intended to mean that any ambiguity in the Tribunal's reasons be resolved in the Tribunal's favour. Rather, the construction of the Tribunal's reasons should be beneficial in the sense that the Tribunal's reasons would not be over-zealously scrutinised, with an eye attuned to error. In this sense a 'beneficial' approach to the Tribunal's reasons does not require this Court to assume that a vital issue was addressed when there is no evidence of this and, indeed, the general thrust of the Tribunal's comments suggest that the issue was overlooked.
Case: Federated Clerks Union of Australia v Victorian Employers Federation [1984] HCA 53 ; (1984) 154 CLR 472
Outcome: cited
This interpretation takes too narrow a view of the meaning of the expression industrial conditions. There is nothing in the natural meaning of the expression which would prevent a requirement for union representation being described as an industrial condition. The statutory context suggests that such a requirement would fall within that description. The purpose of s 298K with s 298L(1)(l) is protective, that is to say, it is designed to prevent employees being prejudiced because they are dissatisfied with their working conditions where their union is taking steps to improve those conditions. Viewed this way the claim for union representation in the negotiation of a collective agreement falls within the statutory description. That view is supported by Webb v Nationwide News Pty Ltd (1985) 10 IR 252 at 283 where Wilcox J said: ... [a] term such as "industrial conditions" should be construed liberally and so as to embrace arrangements for consultation between employer and employee in relation to matters arising out of that relationship and relevant to the working environment of employees, as such. His Honour based that approach on the judgments delivered in Federated Clerks Union of Australia v Victorian Employers Federation [1984] HCA 53 ; (1984) 154 CLR 472 , which held that the wider term "industrial matters" included a claim that a union be consulted in relation to technological changes.
Case: Heidt v Chrysler Australia Ltd (1976) 13 ALR 365
Outcome: cited
Again it is convenient to approach this ground in a way most favourable to the respondent without determining whether the approach is correct in law. The respondent contended that s 298L(1)(l) required the conditions sought by the union and the conditions about which the applicant employees were dissatisfied to be the same: Heidt v Chrysler Australia Ltd (1976) 13 ALR 365 at 375. Further, the respondent submitted that this fact was a condition precedent to the application of s 298V and, hence, the onus lay on the applicants to demonstrate the coincidence of conditions. Whilst I doubt that the respondent is correct in this second submission concerning the construction of s 298V, nothing turns on resolution of the issue because, accepting for the purposes of argument the approach proposed by the respondent, the facts of the case do not support the conclusion contended for by it. 115 There was evidence that at all times Mr Whelan pursued the aim of having the respondent negotiate a collective agreement with the union. This is what he told the employees who attended the off site meetings in November and on 1 December 2005. Then, at the union meeting on 9 December 2005 he advocated a role for the union in negotiating an agreement with the respondent. That, he told the meeting, was the way to improve terms and conditions of employment. At the end of the meeting there was a vote in favour of the union negotiating a collective agreement with the respondent, and Mr Whelan initiated a bargaining period immediately following the vote. Mr Thornton acknowledged that Mr Whelan constantly tried to get the respondent to negotiate an agreement with the union. 116 There was evidence that the applicant employees also wanted the respondent to negotiate a collective agreement with the union in order to achieve an improvement in conditions of employment. Mr Kemmis and Mr Coon expressly stated their positions at the meeting on 9 December 2005. Mr Taylor described himself as one of the "three amigos" who, together with Mr Kemmis and Mr Coon, were agitating for the respondent to engage with the union to negotiate improved conditions. They were dissatisfied with the situation in which Mr Thornton refused to negotiate with the union.
Case: Webb v Nationwide News Pty Ltd (1985) 10 IR 252
Outcome: applied
This interpretation takes too narrow a view of the meaning of the expression industrial conditions. There is nothing in the natural meaning of the expression which would prevent a requirement for union representation being described as an industrial condition. The statutory context suggests that such a requirement would fall within that description. The purpose of s 298K with s 298L(1)(l) is protective, that is to say, it is designed to prevent employees being prejudiced because they are dissatisfied with their working conditions where their union is taking steps to improve those conditions. Viewed this way the claim for union representation in the negotiation of a collective agreement falls within the statutory description. That view is supported by Webb v Nationwide News Pty Ltd (1985) 10 IR 252 at 283 where Wilcox J said: ... [a] term such as "industrial conditions" should be construed liberally and so as to embrace arrangements for consultation between employer and employee in relation to matters arising out of that relationship and relevant to the working environment of employees, as such. His Honour based that approach on the judgments delivered in Federated Clerks Union of Australia v Victorian Employers Federation [1984] HCA 53 ; (1984) 154 CLR 472 , which held that the wider term "industrial matters" included a claim that a union be consulted in relation to technological changes.
Case: Shipley v Masu Financial Management Pty Ltd [2008] NSWSC 252
Outcome: distinguished
Masu referred to Shipley v Masu Financial Services Pty Ltd [2008] NSWSC 252 , but that case is distinguishable for two reasons. The first reason is that Hammerschlag J noted (at [49]) that the argument before him appeared to proceed on the basis that Masu was a "responsible person" in relation to the Westpoint Products because it was within the notion of "either the issuer of the financial product or the person making the offer to sell the financial product". In the present case, however, Mr Stoyef relies exclusively on s 1012A on the basis that Masu provided financial product advice to Mr Stoyef and the group members, that consisted of or included a recommendation that they acquire the Westpoint Products. Accordingly, the only "responsible person" in the present case was the issuer of the Westpoint Product relevant to the particular investor, being either Westpoint or a Westpoint entity. The second reason is that the statement of claim in that case pleaded what a "proper" PDS of the kind that the defendant or its authorised representatives was required to give to the plaintiffs would have contained. In the present case, the relevant paragraphs of the further amended statement of claim do not use the word "proper" to qualify the PDS that was required to be given. 43 .There are, however, in my opinion, two pleading defects which Masu has identified. First, the words "at least" in para 42A are objectionable. Mr Curtin of counsel for Masu, submitted that his client is entitled to know now, rather than at trial, what is all of the particular information that Mr Stoyef says would have been included in the PDS which would have altered his and the group members' minds, because his client would like to investigate, or at least may choose to investigate, the question whether that information was known to "the responsible person" referred to in s 1013C(2)(a). 44 I agree. The proposed further amended statement of claim should omit the words "at least". If Mr Stoyef later wishes to allege that the hypothetical PDS would have contained further information that would have caused him and the group members not to invest, he will need to seek leave to amend further at that time.
Case: Aiden Shipping Co Ltd v Interbulk Ltd (1986) 2 All ER 409
Outcome: cited
The parties were in agreement that I could and should make a global order for costs relating to the proceedings. I am content to proceed on this basis: see Aiden Shipping Co Ltd v Interbulk Ltd (1986) 2 All ER 409 and Dr Martens Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602.
Case: Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166
Outcome: cited
In Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166 Burchett J noted that the successful first respondent had raised a number of objections on which it failed, which added the last half day to the hearing. In exercising his discretion against the first respondent on this issue, his Honour held at 169: A party against whom an unsustainable claim is prosecuted is not to be forced, at his peril in respect of costs, to abandon every defence he is not sure of maintaining, and oppose to his adversary only the barrier of one hopeful argument: he is entitled to raise his earthworks at every reasonable point along the path of assault. At the same time, if he multiplies issues unreasonably, he may suffer in costs. Ultimately, the question is one of discretion and judgment. In my judgment, the competing considerations will be reflected, and justice will be done, if the costs to be recovered by the first respondent are shorn of any amount attributable to the last day of hearing.
Case: Commissioner of the Australian Federal Police v Razzi (No 2) (1991) 30 FCR 64
Outcome: discussed
In Commissioner of the Australian Federal Police v Razzi (No 2) (1991) 30 FCR 64 at 69 Wilcox J said: In these days of extensive court delays and high legal costs the courts should use all proper means to encourage parties to consider carefully what matters they will put in issue in their litigation. If parties come to realise that they will not necessarily recover the whole of their costs, even though they have unsuccessfully raised a discrete issue, they are likely better to consider whether the raising of that issue is a justifiable course to take. 24 This approach was essentially adopted by Hodgson CJ in Permanent Trustee Australia Ltd v FAI General Insurance Co Ltd (unreported, Supreme Court of New South Wales, Hodgson CJ, 3 June 1998), where, after discussing the competing considerations of encouraging selectivity of issues and not penalising a party for supporting their case in every reasonable way, his Honour stated at 13: Apart from that consideration, in general terms I accept that if an issue is raised reasonably and is not disproportionate to the whole case, then normally the successful party should get his or her costs. However, particularly in relation to severable issues, the lesser the strength of the point raised and the greater the proportion it bears to the whole case, the more likely it is that the successful party may be deprived of costs; and if the Court comes to the view that it was unreasonable to raise the issue, then the successful party may have to pay the costs of that issue. See also Razzi 30 FCR 64; and Jamal v Secretary, Department of Health (1988) 14 NSWLR 252 at 271-272 per Mahoney JA.
Case: Dr Martens Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602
Outcome: cited
The parties were in agreement that I could and should make a global order for costs relating to the proceedings. I am content to proceed on this basis: see Aiden Shipping Co Ltd v Interbulk Ltd (1986) 2 All ER 409 and Dr Martens Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602. 22 As Goldberg J observed in Dr Martens [2000] FCA 602 at [54] : [A] court should be reluctant to embrace the proposition that, as a general rule, it is appropriate to undertake an enquiry as to who was successful in relation to particular issues in a case to determine whether there should be an apportionment of costs against a successful party. A court should not be too ready to disallow costs simply because a party has failed upon an issue, unless it be quite a separate and distinct issue from the issues in respect of which it succeeded or unless there be some element of unreasonableness or inappropriate conduct in relation to that issue: cf Verna Trading Pty Ltd v New India Assurance Pty Ltd [1991] 1 VR 129 at 152-154. 23 It seems appropriate when considering separate and distinct issues or inquiries, where there is no element of unreasonableness or inappropriate behaviour on behalf of the successful litigant, to consider appropriate case management principles, the relative merits or strengths of the lost issue or inquiry, whether the length of the proceedings had been greatly increased by the lost issue or inquiry on which the successful party failed, and whether the issue or inquiry on which the successful party failed otherwise was of sufficient significance in proportion to the whole case to warrant a special order to deprive that party of the costs of that issue.