mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Emory University v Biochem Pharma Inc [1999] APO 50
Outcome: cited
The 'rule' or 'policy' relied upon by IGT as fettering the delegate's discretion was '... a particular requirement as a pre-condition to the exercise of his power under regulation 5.10(4) namely that the Further Evidence be "crucial" or "vital" to the determination of the opposition or alternatively, that it must "add substantially" to IGT's case ...'. In posing that requirement the delegate is said to have foreclosed the balancing exercise which he was required to undertake in exercising his discretion. Aristocrat accepted, for the purpose of the consent orders, that it was open to the Court so to find. The delegate did refer to another delegate decision in Emory University v Biochem Pharma Inc [1999] APO 50 , if the further evidence '.... did not add substantially to the case compared with previous evidence already served then the further evidence could be refused.' So framed, consideration of the significance and substantiality of the evidence would be perfectly legitimate as a relevant consideration. However, in the reasons the delegate did say (at [16]): It would seem IGT's present application to serve further evidence, with the consequential further delay, could only be justified in this case if the further evidence was significantly different from the initial evidence served in support and crucial to advancing the proper determination of the opposition on its merits. 21 Without determining the point finally, I accept that it is arguable that the delegate, in so expressing himself, could be taken to have elevated the significance of the evidence to a determinative factor effectively excluding consideration of other matters. I emphasise that I do not find that this was the legal effect of the delegate's remark. However, the possibility of error which both parties have accepted, is sufficient to support the consent order which is now sought as being within power and appropriate. I will therefore make the order proposed. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French . Associate: Dated: 17 January 2008 Counsel for the Applicant: Mr P Mallon Solicitor for the Applicant: Mallon &amp; Co Lawyers Pty Ltd Counsel for the Second Respondent: Ms Taliadoros Solicitor for the Second Respondent: Gilbert &amp; Tobin Date of Joint Submissions: 15 January 2008 Date of Judgment: 17 January 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/15.html
Case: MZYBC v Minister for Immigration and Anor [2008] FMCA 1567
Outcome: affirmed
appeal is from a judgment of the Federal Magistrates Court, delivered on 21 November 2008, and published as MZYBC v Minister for Immigration and Anor [2008] FMCA 1567. The learned federal magistrate dismissed with costs an application by the appellant to review a decision of the second respondent to the appeal, the Refugee Review Tribunal ("the Tribunal"). The Tribunal affirmed a decision of a delegate of the first respondent to the appeal, the Minister for Immigration and Citizenship ("the Minister"), to refuse to grant to the appellant a protection visa. The appellant is a citizen of Sri Lanka. She arrived in Australia on 12 April 2007. On 21 May 2007, she applied for a protection visa. On 10 July 2007, the Minister's delegate made a decision refusing to grant her a protection visa. Unfortunately, by letter dated the same date, the appellant's migration agent was mistakenly advised that the appellant had been granted a protection visa. The letter was erroneous in that, although it included in the heading the name of the appellant, following the abbreviation "Ms", the references to the migration agent's client in the letter were all expressed in the male gender. The error was corrected by a subsequent letter dated 16 July 2007, which enclosed a copy of the earlier decision record, giving the delegate's reasons for refusing the application. The appellant applied to the Tribunal for review of the decision. The Tribunal conducted a hearing on 10 October 2007, at which the appellant gave oral evidence through an interpreter in the Sinhalese language, and at which the appellant was represented by a migration agent. The Tribunal's decision was dated 1 May 2008 and handed down, or sent to the appellant, on 3 June 2008.
Case: Coward v Stapleton [1953] HCA 48 ; (1953) 90 CLR 573
Outcome: cited
After attempting to give evidence from the bar table, Mr Morrison ultimately elected to give oral evidence. An alleged contemnor must be allowed a reasonable opportunity to put before the Court any explanation of his or her evidence and any submissions of fact or law relevant to the charge against him or her or any punishment (see: Coward v Stapleton [1953] HCA 48 ; (1953) 90 CLR 573 ; Doyle v The Commonwealth [1985] HCA 46 ; (1985) 156 CLR 510). Although I considered Mr Morrison had been given a reasonable opportunity to put his case before the Court, I allowed him to give evidence because he indicated that there were matters which had only occurred to him during the course of the hearing.
Case: Doyle v The Commonwealth [1985] HCA 46 ; (1985) 156 CLR 510 
Outcome: cited
After attempting to give evidence from the bar table, Mr Morrison ultimately elected to give oral evidence. An alleged contemnor must be allowed a reasonable opportunity to put before the Court any explanation of his or her evidence and any submissions of fact or law relevant to the charge against him or her or any punishment (see: Coward v Stapleton [1953] HCA 48 ; (1953) 90 CLR 573 ; Doyle v The Commonwealth [1985] HCA 46 ; (1985) 156 CLR 510). Although I considered Mr Morrison had been given a reasonable opportunity to put his case before the Court, I allowed him to give evidence because he indicated that there were matters which had only occurred to him during the course of the hearing.
Case: Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201
Outcome: cited
In Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 Gillard J identified the elements which it is necessary for a complainant to establish in order to make good a charge of civil contempt of court. His Honour said: "[31] In order to prove a civil contempt of court involving a breach of an order of the court, the plaintiff has to prove the following: (i) that an order was made by the court; (ii) that the terms of the order are clear, unambiguous and capable of compliance; (iii) that the order was served on the alleged contemnor or excused in the circumstances, or service dispensed with pursuant to the Rules of Court; (iv) that the alleged contemnor has knowledge of the terms of the order; and (v) that the alleged contemnor has breached the terms of the order. [32] It is necessary for the plaintiff to prove each element beyond reasonable doubt. In accordance with the principles of the criminal law, in proving element (v) it must be proven that the act or omission which constituted the breach of the order was deliberate and voluntary."
Case: Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525
Outcome: cited
As noted by his Honour, the standard of proof required for each of the elements of a charge of contempt of this Court is proof beyond reasonable doubt (see: Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 534). 37 There is no dispute, and I am satisfied that: &#8226; Paragraph 1 of the orders I made on 28 September 2007 was an order of the Court. &#8226; The Order was clear, unambiguous and capable of compliance; &#8226; The Order was personally served on Mr Morrison on 4 October 2007 and was served on the respondent on 3 October 2007; and &#8226; Mr Morrison had knowledge of the terms of the Order.
Case: Australian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98
Outcome: cited
In Australian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 Gibbs CJ, Mason, Wilson and Deane JJ said (at 112 113) that: "...lying behind punishment for a contempt which involves wilful disobedience to a court order, is the very substantial purpose of disciplining the defendant and vindicating the authority of the court. ... a deliberate commission or omission which is in breach of an injunctive order or an undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional." 41 It is clear that Mr Morrison's affidavit does not, in terms, comply with the Order. A breach of an order will be considered deliberate if it is not found to be casual, accidental or unintentional. The onus remains on the party seeking to prove the contempt to prove that the alleged contemnor's conduct is not casual, accidental or unintentional.
Case: Hamilton v Whitehead [1988] HCA 65 ; (1988) 166 CLR 121
Outcome: cited
It was not disputed that the respondent had knowledge of the terms of the Order. On the facts of this case, there can be no doubt that Mr Morrison's mind is the mind of the respondent (see: Hamilton v Whitehead [1988] HCA 65 ; (1988) 166 CLR 121 at 127 referring with approval to Tesco Supermarkets Ltd v Nattrass [1971] UKHL 1 ; [1972] AC 153). I am, therefore, satisfied that the respondent had knowledge of the terms of the Order.
Case: Tesco Supermarkets Ltd v Nattrass [1971] UKHL 1 ; [1972] AC 153
Outcome: cited
It was not disputed that the respondent had knowledge of the terms of the Order. On the facts of this case, there can be no doubt that Mr Morrison's mind is the mind of the respondent (see: Hamilton v Whitehead [1988] HCA 65 ; (1988) 166 CLR 121 at 127 referring with approval to Tesco Supermarkets Ltd v Nattrass [1971] UKHL 1 ; [1972] AC 153). I am, therefore, satisfied that the respondent had knowledge of the terms of the Order.
Case: Hocking v Bell [1945] HCA 16 ; (1945) 71 CLR 430
Outcome: cited
respondents do not assert any matter that goes to a triable issue. No controversy of fact has been raised by the respondents and the issues of law raised by the applicant's claim are clear and unarguable. The respondents have failed to depose to facts disclosing a defence on the merits. There is no affidavit which identifies a defence to the applicant's claim as a matter of law nor any facts identified by affidavit or otherwise which might give rise to a controversy of fact which if resolved in the respondents' favour would give rise to a defence to the applicant's claim ( Hocking v Bell [1945] HCA 16 ; (1945) 71 CLR 430 , per Latham CJ at 441-442, adopted by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2007) 236 ALR 720 ; cf., generally, Finkelstein J in Jefferson Ford Pty Ltd v Ford Motor Co. of Australia Ltd [2008] FCAFC 60 ; (2008) 246 ALR 465 , as to the test to be applied in exercising the discretion under s 31A). Rather, the respondents have simply put the applicant to proof. The defence, properly construed, does not reach the threshold of a denial of the claim. In any event, a general denial of the claim is not sufficient. Nor is it sufficient to simply put the applicant to proof in response to an application under s 31A of the Federal Court Act ( Vans, Inc. v Offprice.Com.Au Pty Ltd [2006] FCA 137). Section 31A is directed to the proceeding itself not simply with deficiencies in the pleadings and in that sense the section addresses the substance and not just the form by which the action or proceeding is structured ( White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 at [50] ). Before judgment might be entered pursuant to s 31A of the Federal Court Act, the Court is required to be satisfied that the respondents have no reasonable prospect of successfully defending the proceeding. Even though the defence filed by the respondents need not be hopeless or bound to fail for it to have no reasonable prospect of success, it is clear in the face of the affidavit evidence of the applicant and the terms of the defence filed by the respondents, that the defence is bound to fail. The evidence clearly establishes the case made by the applicant. The Court is satisfied that the respondents have no reasonable prospect of successfully defending the proceeding.
Case: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2007) 236 ALR 720
Outcome: cited
respondents do not assert any matter that goes to a triable issue. No controversy of fact has been raised by the respondents and the issues of law raised by the applicant's claim are clear and unarguable. The respondents have failed to depose to facts disclosing a defence on the merits. There is no affidavit which identifies a defence to the applicant's claim as a matter of law nor any facts identified by affidavit or otherwise which might give rise to a controversy of fact which if resolved in the respondents' favour would give rise to a defence to the applicant's claim ( Hocking v Bell [1945] HCA 16 ; (1945) 71 CLR 430 , per Latham CJ at 441-442, adopted by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2007) 236 ALR 720 ; cf., generally, Finkelstein J in Jefferson Ford Pty Ltd v Ford Motor Co. of Australia Ltd [2008] FCAFC 60 ; (2008) 246 ALR 465 , as to the test to be applied in exercising the discretion under s 31A). Rather, the respondents have simply put the applicant to proof. The defence, properly construed, does not reach the threshold of a denial of the claim. In any event, a general denial of the claim is not sufficient. Nor is it sufficient to simply put the applicant to proof in response to an application under s 31A of the Federal Court Act ( Vans, Inc. v Offprice.Com.Au Pty Ltd [2006] FCA 137). Section 31A is directed to the proceeding itself not simply with deficiencies in the pleadings and in that sense the section addresses the substance and not just the form by which the action or proceeding is structured ( White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 at [50] ). Before judgment might be entered pursuant to s 31A of the Federal Court Act, the Court is required to be satisfied that the respondents have no reasonable prospect of successfully defending the proceeding. Even though the defence filed by the respondents need not be hopeless or bound to fail for it to have no reasonable prospect of success, it is clear in the face of the affidavit evidence of the applicant and the terms of the defence filed by the respondents, that the defence is bound to fail. The evidence clearly establishes the case made by the applicant. The Court is satisfied that the respondents have no reasonable prospect of successfully defending the proceeding.
Case: Jefferson Ford Pty Ltd v Ford Motor Co. of Australia Ltd [2008] FCAFC 60 ; (2008) 246 ALR 465
Outcome: cited
respondents do not assert any matter that goes to a triable issue. No controversy of fact has been raised by the respondents and the issues of law raised by the applicant's claim are clear and unarguable. The respondents have failed to depose to facts disclosing a defence on the merits. There is no affidavit which identifies a defence to the applicant's claim as a matter of law nor any facts identified by affidavit or otherwise which might give rise to a controversy of fact which if resolved in the respondents' favour would give rise to a defence to the applicant's claim ( Hocking v Bell [1945] HCA 16 ; (1945) 71 CLR 430 , per Latham CJ at 441-442, adopted by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2007) 236 ALR 720 ; cf., generally, Finkelstein J in Jefferson Ford Pty Ltd v Ford Motor Co. of Australia Ltd [2008] FCAFC 60 ; (2008) 246 ALR 465 , as to the test to be applied in exercising the discretion under s 31A). Rather, the respondents have simply put the applicant to proof. The defence, properly construed, does not reach the threshold of a denial of the claim. In any event, a general denial of the claim is not sufficient. Nor is it sufficient to simply put the applicant to proof in response to an application under s 31A of the Federal Court Act ( Vans, Inc. v Offprice.Com.Au Pty Ltd [2006] FCA 137). Section 31A is directed to the proceeding itself not simply with deficiencies in the pleadings and in that sense the section addresses the substance and not just the form by which the action or proceeding is structured ( White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 at [50] ). Before judgment might be entered pursuant to s 31A of the Federal Court Act, the Court is required to be satisfied that the respondents have no reasonable prospect of successfully defending the proceeding. Even though the defence filed by the respondents need not be hopeless or bound to fail for it to have no reasonable prospect of success, it is clear in the face of the affidavit evidence of the applicant and the terms of the defence filed by the respondents, that the defence is bound to fail. The evidence clearly establishes the case made by the applicant. The Court is satisfied that the respondents have no reasonable prospect of successfully defending the proceeding.
Case: Vans, Inc. v Offprice.Com.Au Pty Ltd [2006] FCA 137
Outcome: cited
respondents do not assert any matter that goes to a triable issue. No controversy of fact has been raised by the respondents and the issues of law raised by the applicant's claim are clear and unarguable. The respondents have failed to depose to facts disclosing a defence on the merits. There is no affidavit which identifies a defence to the applicant's claim as a matter of law nor any facts identified by affidavit or otherwise which might give rise to a controversy of fact which if resolved in the respondents' favour would give rise to a defence to the applicant's claim ( Hocking v Bell [1945] HCA 16 ; (1945) 71 CLR 430 , per Latham CJ at 441-442, adopted by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2007) 236 ALR 720 ; cf., generally, Finkelstein J in Jefferson Ford Pty Ltd v Ford Motor Co. of Australia Ltd [2008] FCAFC 60 ; (2008) 246 ALR 465 , as to the test to be applied in exercising the discretion under s 31A). Rather, the respondents have simply put the applicant to proof. The defence, properly construed, does not reach the threshold of a denial of the claim. In any event, a general denial of the claim is not sufficient. Nor is it sufficient to simply put the applicant to proof in response to an application under s 31A of the Federal Court Act ( Vans, Inc. v Offprice.Com.Au Pty Ltd [2006] FCA 137). Section 31A is directed to the proceeding itself not simply with deficiencies in the pleadings and in that sense the section addresses the substance and not just the form by which the action or proceeding is structured ( White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 at [50] ). Before judgment might be entered pursuant to s 31A of the Federal Court Act, the Court is required to be satisfied that the respondents have no reasonable prospect of successfully defending the proceeding. Even though the defence filed by the respondents need not be hopeless or bound to fail for it to have no reasonable prospect of success, it is clear in the face of the affidavit evidence of the applicant and the terms of the defence filed by the respondents, that the defence is bound to fail. The evidence clearly establishes the case made by the applicant. The Court is satisfied that the respondents have no reasonable prospect of successfully defending the proceeding.
Case: White Industries Aust. Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298
Outcome: cited
respondents do not assert any matter that goes to a triable issue. No controversy of fact has been raised by the respondents and the issues of law raised by the applicant's claim are clear and unarguable. The respondents have failed to depose to facts disclosing a defence on the merits. There is no affidavit which identifies a defence to the applicant's claim as a matter of law nor any facts identified by affidavit or otherwise which might give rise to a controversy of fact which if resolved in the respondents' favour would give rise to a defence to the applicant's claim ( Hocking v Bell [1945] HCA 16 ; (1945) 71 CLR 430 , per Latham CJ at 441-442, adopted by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2007) 236 ALR 720 ; cf., generally, Finkelstein J in Jefferson Ford Pty Ltd v Ford Motor Co. of Australia Ltd [2008] FCAFC 60 ; (2008) 246 ALR 465 , as to the test to be applied in exercising the discretion under s 31A). Rather, the respondents have simply put the applicant to proof. The defence, properly construed, does not reach the threshold of a denial of the claim. In any event, a general denial of the claim is not sufficient. Nor is it sufficient to simply put the applicant to proof in response to an application under s 31A of the Federal Court Act ( Vans, Inc. v Offprice.Com.Au Pty Ltd [2006] FCA 137). Section 31A is directed to the proceeding itself not simply with deficiencies in the pleadings and in that sense the section addresses the substance and not just the form by which the action or proceeding is structured ( White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 at [50] ). Before judgment might be entered pursuant to s 31A of the Federal Court Act, the Court is required to be satisfied that the respondents have no reasonable prospect of successfully defending the proceeding. Even though the defence filed by the respondents need not be hopeless or bound to fail for it to have no reasonable prospect of success, it is clear in the face of the affidavit evidence of the applicant and the terms of the defence filed by the respondents, that the defence is bound to fail. The evidence clearly establishes the case made by the applicant. The Court is satisfied that the respondents have no reasonable prospect of successfully defending the proceeding.
Case: Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1
Outcome: followed
It was the task of the Tribunal to make findings of fact and no reviewable error is exposed simply because those facts were resolved against the now Appellant. This Court should not go beyond its task of judicial review and trespass into the area of reviewing the merits of the decision as determined by the Tribunal: Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1. Brennan J there observed at 35 6: The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
Case: Chief Executive Officer of Customs v ICB Medical Distributors Pty Ltd [2007] FCA 1538
Outcome: considered
Moreover, an administrative tribunal is not normally required to state what evidence is accepted, rejected or taken into account with respect to findings of fact: cf Guy v Repatriation Commission [2002] FCA 525 , 74 ALD 617. An administrative tribunal is not required to give a subset of reasons as to why it accepted or rejected individual pieces of evidence: cf Chief Executive Officer of Customs v ICB Medical Distributors Pty Ltd [2007] FCA 1538 at [44] , [2007] FCA 1538 ; 97 ALD 746.