mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: De Silva v Minister for Immigration and Multicultural Affairs [2000] FCA 765 ; (2000) 98 FCR 364
Outcome: cited
In my view, there is nothing in the wording or ambit of s 425 of the Act that imposes procedural requirements on a tribunal at the hearing of the character now sought to be imposed by the appellant: see, eg, De Silva v Minister for Immigration and Multicultural Affairs [2000] FCA 765 ; (2000) 98 FCR 364 , 367-68 at [9] and Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 ; (2006) 154 FCR 365 , 416-17 at [211].
Case: Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 ; (2006) 154 FCR 365
Outcome: cited
In my view, there is nothing in the wording or ambit of s 425 of the Act that imposes procedural requirements on a tribunal at the hearing of the character now sought to be imposed by the appellant: see, eg, De Silva v Minister for Immigration and Multicultural Affairs [2000] FCA 765 ; (2000) 98 FCR 364 , 367-68 at [9] and Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 ; (2006) 154 FCR 365 , 416-17 at [211].
Case: Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85 ; (1999) 84 FCR 438
Outcome: cited
Whilst it is important to put the exercise of a discretion in the context of a legally unrepresented litigant, where greater flexibility in the failure to adhere to court orders may be called for (see Platcher v Joseph [2004] FCAFC 68) , I accept that the rules must be obeyed, and one must be careful not to regard a litigant in person as having a special status: see Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85 ; (1999) 84 FCR 438 , 446. I also accept that there is a great reluctance to interfere with procedural orders, particularly as to adjournments. However, the Federal Magistrate had a discretion to exercise in rejecting the evidence being sought to be introduced contrary to a court direction, and in my view, failed to take into account the significance of the evidence, the lack of demonstrated prejudice to the first respondent, and the lack of any other compelling reason to reject the evidence completely.
Case: Platcher v Joseph [2004] FCAFC 68
Outcome: cited
Whilst it is important to put the exercise of a discretion in the context of a legally unrepresented litigant, where greater flexibility in the failure to adhere to court orders may be called for (see Platcher v Joseph [2004] FCAFC 68) , I accept that the rules must be obeyed, and one must be careful not to regard a litigant in person as having a special status: see Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85 ; (1999) 84 FCR 438 , 446. I also accept that there is a great reluctance to interfere with procedural orders, particularly as to adjournments. However, the Federal Magistrate had a discretion to exercise in rejecting the evidence being sought to be introduced contrary to a court direction, and in my view, failed to take into account the significance of the evidence, the lack of demonstrated prejudice to the first respondent, and the lack of any other compelling reason to reject the evidence completely.
Case: Sali v SPC Ltd [1993] HCA 47 ; (1993) 116 ALR 625
Outcome: cited
Allegations of bias impact on the integrity of the Tribunal, and should be carefully and fully considered. Undoubtedly an adjournment would have been necessary if the evidence was accepted. However, while the Federal Magistrates Court has an exceptionally busy case load, there was no indication by his Honour of case management issues impacting on the exercise of his discretion: see, eg, Black Decker (Australasia) Pty Ltd v GMCA Pty Ltd [2007] FCA 1623. There was no suggestion that if an adjournment were granted the first respondent would be prejudiced in the conventional way other than as to costs, although there is a public interest in hearing refugee matters expeditiously: see Sali v SPC Ltd [1993] HCA 47 ; (1993) 116 ALR 625 , 628-29; Bloch v Bloch [1981] HCA 56 ; (1981) 180 CLR 390 , 395-96; and SZKMS v Minister for Immigration and Multicultural Affairs (2008) FCA 499 at [29] .
Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592
Outcome: cited
A general admonition that the truthfulness of the appellant's account is in question is not sufficient to discharge the obligation under s 425 to identify particular issues in circumstances where there would a departure from accepted findings by the Delegate in favour of the appellant: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 , 600-602 at [34]-[44]. 42 The obligation is to give the appellant an opportunity to give evidence or make submissions on a determinative issue. 43 However, as the High Court said in SZBEL [2006] HCA 63 ; 231 ALR 592 , 602 at [47]: First, there may well be cases, perhaps many cases, where either the delegate's decision, or the tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the tribunal considers may be important to the decision and may be open to doubt, the tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted. 44 This is one of those cases alluded to by the High Court. 45 The Third Tribunal stated that it did raise the question of his membership of AL as an issue. It said: I foreshadowed that I would be writing to the applicant in accordance with section 424A of the Act. The applicant's representative asked if I accepted that the applicant was a member of Awami League. I noted that this was clearly an issue in the review. The applicant's representative referred to Ms Petersen's evidence and stressed that the applicant had only been involved at the village level. She submitted that although his title had been 'Publicity Secretary' his role had not been that of a Publicity Secretary in Australia. I noted that the applicant's role as Publications Secretary had been discussed at the previous hearings and that at the hearing before the second Tribunal in October 2006 he had said that he had spoken at meetings so many times that he could not remember. The applicant said that as Publications Secretary he had organised meetings. He said that when he had referred to speaking at meetings he had meant that he had been the MC at meetings.
Case: SZEUI v Minister for Immigration and Citizenship [2008] FCA 1338
Outcome: cited
Therefore, whether or not the appellant was put on notice by the Second Tribunal decision or not (see SZEUI v Minister for Immigration and Citizenship [2008] FCA 1338) , the Third Tribunal certainly did raise in a timely and appropriate way the issue of his membership of AL. 49 Accordingly, the Third Tribunal did not fail to comply with s 425 of the Act in this respect. 50 As to the other basis for breach of s 425 of the Act, I do not consider the Federal Magistrate fell into error.
Case: SZKMS v Minister for Immigration and Multicultural Affairs (2008) FCA 499
Outcome: cited
Allegations of bias impact on the integrity of the Tribunal, and should be carefully and fully considered. Undoubtedly an adjournment would have been necessary if the evidence was accepted. However, while the Federal Magistrates Court has an exceptionally busy case load, there was no indication by his Honour of case management issues impacting on the exercise of his discretion: see, eg, Black Decker (Australasia) Pty Ltd v GMCA Pty Ltd [2007] FCA 1623. There was no suggestion that if an adjournment were granted the first respondent would be prejudiced in the conventional way other than as to costs, although there is a public interest in hearing refugee matters expeditiously: see Sali v SPC Ltd [1993] HCA 47 ; (1993) 116 ALR 625 , 628-29; Bloch v Bloch [1981] HCA 56 ; (1981) 180 CLR 390 , 395-96; and SZKMS v Minister for Immigration and Multicultural Affairs (2008) FCA 499 at [29] .
Case: SZKOB v Minister for Immigration and Citizenship [2007] FCA 1949
Outcome: cited
I do not consider it was incumbent upon the Third Tribunal to accede to the appellant's request for a transcript of previous Tribunal hearings, even if they were available: see generally SZKOB v Minister for Immigration and Citizenship [2007] FCA 1949 at [12] - [14] per Flick J. 53 However, the real question is whether, in circumstances where the appellant had the tapes in his possession, the Third Tribunal was required (as suggested by the appellant) to play that part of the tape of the appellant's evidence on each point the Third Tribunal wished to consider, or possibly contest, because of inconsistencies in the evidence. I do not regard this as necessary in the circumstances of this case. The issue of credibility arose because of inconsistencies in the prior evidence given by the appellant. Accepting the information conveyed by the appellant on the tapes, and not the way the evidence was adduced, gave rise to credibility issues, the important matter was to bring to the appellant's attention such issues. This the Third Tribunal did. How it did this was a matter for the Third Tribunal. It is to be recalled that the appellant had the tapes and the issue of credibility was an issue going to the appellant's very own evidence in the previous hearings, of which he was either familiar with or could re-familiarise himself with by himself playing the tapes prior to the hearing. 54 In my view, the Federal Magistrate's observations on this matter were correct, and provide a proper basis for rejecting this ground of appeal. Fairness did not require, in the circumstances before the Third Tribunal, the playing of the tapes and the identification therein of the parts considered relevant by the Third Tribunal, at the hearing itself. The important requirement, as I have said, was to bring appropriately and fairly the point of contest to the attention of the appellant, so the appellant could respond. This the Tribunal did, and in my view, the procedure suggested by the appellant was unnecessary to achieve fairness.
Case: SZLQD v Minister for Immigration and Citizenship [2008] FCA 739
Outcome: cited
It has been held on a number of occasions in this Court that ss 424AA and 424A provide specifically how certain matters are to be brought to the attention of an applicant by a tribunal, and that s 424AA enables information which would need to be given in writing under s 424A to be given orally if an applicant appears before a tribunal: see SZLQD v Minister for Immigration and Citizenship [2008] FCA 739 at [12] per Marshall J; SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 at [27] per Cowdroy J; SZLWI v Minister for Immigration and Citizenship (2008) 171 FCR 134 , 139 at [19] per Gilmour J; and SZMAE v Minister for Immigration and Citizenship [2008] FCA 1701 at [23] per Edmonds J.
Case: SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270
Outcome: cited
It has been held on a number of occasions in this Court that ss 424AA and 424A provide specifically how certain matters are to be brought to the attention of an applicant by a tribunal, and that s 424AA enables information which would need to be given in writing under s 424A to be given orally if an applicant appears before a tribunal: see SZLQD v Minister for Immigration and Citizenship [2008] FCA 739 at [12] per Marshall J; SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 at [27] per Cowdroy J; SZLWI v Minister for Immigration and Citizenship (2008) 171 FCR 134 , 139 at [19] per Gilmour J; and SZMAE v Minister for Immigration and Citizenship [2008] FCA 1701 at [23] per Edmonds J.
Case: SZLWI v Minister for Immigration and Citizenship (2008) 171 FCR 134
Outcome: cited
It has been held on a number of occasions in this Court that ss 424AA and 424A provide specifically how certain matters are to be brought to the attention of an applicant by a tribunal, and that s 424AA enables information which would need to be given in writing under s 424A to be given orally if an applicant appears before a tribunal: see SZLQD v Minister for Immigration and Citizenship [2008] FCA 739 at [12] per Marshall J; SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 at [27] per Cowdroy J; SZLWI v Minister for Immigration and Citizenship (2008) 171 FCR 134 , 139 at [19] per Gilmour J; and SZMAE v Minister for Immigration and Citizenship [2008] FCA 1701 at [23] per Edmonds J.
Case: SZMAE v Minister for Immigration and Citizenship [2008] FCA 1701
Outcome: cited
It has been held on a number of occasions in this Court that ss 424AA and 424A provide specifically how certain matters are to be brought to the attention of an applicant by a tribunal, and that s 424AA enables information which would need to be given in writing under s 424A to be given orally if an applicant appears before a tribunal: see SZLQD v Minister for Immigration and Citizenship [2008] FCA 739 at [12] per Marshall J; SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 at [27] per Cowdroy J; SZLWI v Minister for Immigration and Citizenship (2008) 171 FCR 134 , 139 at [19] per Gilmour J; and SZMAE v Minister for Immigration and Citizenship [2008] FCA 1701 at [23] per Edmonds J.
Case: Bishop v Taylor [1968] HCA 68 ; (1968) 118 CLR 518
Outcome: cited
The Statement of Claim pleads that Excom breached its employment contract with Mr Patankar by failing to assist him to achieve his potential and goals as provided for by cl 24 of the offer of employment. It is not clear that this claim was pressed. In my view it is clear that the opening words of cl 24 of the terms and conditions upon which Mr Patankar was offered employment by Excom were aspirational in the sense that they merely sought to describe the attitude that would inform the way in which Excom would conduct staff performance reviews ( Whitlock v Brew [1968] HCA 71 ; (1968) 118 CLR 445 ; Bishop v Taylor [1968] HCA 68 ; (1968) 118 CLR 518). The meaning of the words is insufficiently certain to be enforced. They were not, in my view, intended of themselves to give rise to any legal obligation.
Case: Whitlock v Brew [1968] HCA 71 ; (1968) 118 CLR 445
Outcome: cited
The Statement of Claim pleads that Excom breached its employment contract with Mr Patankar by failing to assist him to achieve his potential and goals as provided for by cl 24 of the offer of employment. It is not clear that this claim was pressed. In my view it is clear that the opening words of cl 24 of the terms and conditions upon which Mr Patankar was offered employment by Excom were aspirational in the sense that they merely sought to describe the attitude that would inform the way in which Excom would conduct staff performance reviews ( Whitlock v Brew [1968] HCA 71 ; (1968) 118 CLR 445 ; Bishop v Taylor [1968] HCA 68 ; (1968) 118 CLR 518). The meaning of the words is insufficiently certain to be enforced. They were not, in my view, intended of themselves to give rise to any legal obligation.
Case: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 ; [2006] HCA 46
Outcome: referred to
Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 ; [2006] HCA 46 at [65] , Gummow and Hayne JJ said that it is enough for a plaintiff to show a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending trial; how strong the probability need be depends on the practical consequences likely to flow from the relief.
Case: Australian Communications and Media Authority v Mobilegate Ltd A Company Incorporated in Hong Kong [2009] FCA 539
Outcome: distinguished
accept Mr Webb's submission that the observations of Logan J in Australian Communications and Media Authority v Mobilegate Ltd A Company Incorporated in Hong Kong [2009] FCA 539 at [1] and [28] are distinguishable from the present matter.
Case: Campomar Sociedad Limitada v Nike International Limited (2000) 202 CLR 45 ; [2000] HCA 12
Outcome: referred to
Mr Webb SC who appeared for Clarion conceded that there is a serious question to be tried, he submitted that the likelihood of success at the trial is not great. He pointed in particular to the observations of the High Court in Campomar Sociedad Limitada v Nike International Limited (2000) 202 CLR 45 ; [2000] HCA 12 at [101] to [103], and he emphasised the full wording of the scratch cards and the leisurely circumstances in which a hypothetical, reasonable consumer will be likely to be able to study the full details.
Case: Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533
Outcome: referred to
I am satisfied that there is a sufficient likelihood of success to justify the relief for which the ACCC ultimately contended, or relief substantially in that form. In coming to this view, I have taken into account, in particular, the balance of convenience which, in my opinion, justifies the relief when weighed in the balance with the serious question to be tried. The relief which is sought does not in a practical sense determine the substance of the matter in issue; compare Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533. It merely requires Clarion to send an SMS to a scratch card winner informing him or her that to claim a prize it is necessary to pay the subscription fees to which I have referred, as well as to give some indication of the value of the prize that has been won. The "winner" is then given the opportunity to proceed or withdraw. The cost of complying with this order is relatively minor and it is in conformity with an industry code which is shortly to come into operation. It takes into account the public interest character of the proceedings and the serious questions to which I have referred above. I have heard argument as to the appropriate form of the order and I have taken into account the evidence of Ms Lesley Hynes in her affidavit sworn 9 June 2009. The orders I will make are as set out in the short minutes of order handed up by Ms Higgins for the Commission, save that the form of the SMS message set out in paragraph 1.1 is to be as follows: Free Msg Must subscribe 2 Mobyplanet 2 get prize $10 every 6 days. Flexibreak prize worth $80 or more (min spend reqd). Subscribe reply Yes.
Case: Lion Nathan Australia Pty Ltd v Coopers Brewery Limited (2006) 236 ALR 561
Outcome: cited
applicants submitted that the Court should look at the surrounding circumstances of the Shareholders Agreement, namely that PrixCar was a closely held joint venture corporation and that the purpose or the object of the Shareholders Agreement was that specified persons should carry on business together and only control the joint venture vehicle in specified portions. It was submitted that with this in mind the Court should give the Agreement a commercially, sensible construction. In this context, Kawasaki referred to Lion Nathan Australia Pty Ltd v Coopers Brewery Limited (2006) 236 ALR 561 where Weinberg J (at 563 4) and Kenny J (at 580) considered the principles which apply to the construction of commercial documents. These principles of construction may be accepted but they do not entitle the Court to distort the language used in an agreement or imply into the provisions of an agreement terms which are not there. The applicants submitted that the parties should be taken to have desired no change in the effective ownership and control of PrixCar unless all members first had a pro rata opportunity to participate in that change of ownership or control. However, that desire in those terms was not translated into a specific provision in the Shareholders Agreement nor is it to be implied from the terms used in the Shareholders Agreement. The parties to the Shareholders Agreement turned their minds to the nature of the pre-emptive rights which they wanted to enshrine in the agreement but they did not include a change in control of a shareholder provision.
Case: Safeguard Industrial Investments Ltd v National Westminster Bank [1981] 1 WLR 286, on appeal [1982] 1 WLR 589
Outcome: considered
conclusion that in the context in which it appears in cl 5.1 of the Shareholders Agreement the expression "transfer" means a transfer of the legal interest or estate in shares from one person to another person and not a transfer of the equitable or beneficial interest in the shares is supported in a number of cases. Such a connotation or definition of the expression "transfer" is implicit in the reasoning in Safeguard Industrial Investments Ltd v National Westminster Bank [1981] 1 WLR 286; Scotto v Petch [2000] 2 BCLC 211, on appeal [2001] BCC 889; Lyle &amp; Scott Ltd v Scott's Trustees (supra); Coles Myer Limited v Commissioner of State Revenue [1998] 4 VR 728. In Safeguard Industrial Investments Ltd v National Westminster Bank (supra) the Court was concerned to construe an article of association of a company which provided that: "A member shall not be entitled to transfer an ordinary share except ... in accordance with the following provisions: (a) ... (b) Except where the transfer made is pursuant to article 8 hereof, in order to ascertain whether any member is willing to purchase an ordinary share, the proposing transferor shall give notice in writing (hereinafter called 'the transfer notice') to the company that he desires to transfer the same. ..." The Court held that "transfer" in this article meant a transfer of the legal interest in the shares and did not refer to the transfer of the beneficial interest in the shares. Vinelott J said at 297-298: "A 'transfer of a share' in the ordinary sense of that expression is a transfer of the legal title to the share with the rights and liabilities attaching to it; on registration of the transfer the transferor ceases to be and the transferee becomes a member of the company in right of that share. A member who desires to transfer a share will carry his intention into effect by executing a transfer and lodging it for registration. At that stage the restrictions in the pre-emption provisions come into operation. To treat the references to the transfer of a share as comprehending a transfer or disposition of a beneficial interest in a share is to give the expression 'transfer of a share' a meaning wider than it would ordinarily bear. ..." Vinelott J's reasoning was upheld by the Court of Appeal: Safeguard Industrial Investments Ltd v National Westminster Bank [1982] 1 WLR 589 at 598-599. It was also accepted by the Queensland Court of Appeal in Reef &amp; Rainforest Travel Pty Ltd v Commissioner of Stamp Duties [2002] Qd R 683 at 688.
Case: Scotto v Petch [2002] 2 BCLC 211, on appeal [2001] BCC 889
Outcome: cited
conclusion that in the context in which it appears in cl 5.1 of the Shareholders Agreement the expression "transfer" means a transfer of the legal interest or estate in shares from one person to another person and not a transfer of the equitable or beneficial interest in the shares is supported in a number of cases. Such a connotation or definition of the expression "transfer" is implicit in the reasoning in Safeguard Industrial Investments Ltd v National Westminster Bank [1981] 1 WLR 286; Scotto v Petch [2000] 2 BCLC 211, on appeal [2001] BCC 889; Lyle &amp; Scott Ltd v Scott's Trustees (supra); Coles Myer Limited v Commissioner of State Revenue [1998] 4 VR 728.