mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Confidential and Australian Prudential Regulation Authority [2005] AATA 1264 , 91 ALD 435
Outcome: cited
noted by Brennan J, when he was President of the Administrative Appeals Tribunal, in Re Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634 at 639: Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice. This passage has, not surprisingly, been repeatedly cited: e.g. Apthorpe v Repatriation Commission (1987) 13 ALD 656 at 665 per Davies, Lockhart and Gummow JJ; Pepaj v Minister for Immigration and Multicultural Affairs (unreported, FCA, Merkel J, SG 101 of 1998, 25 November 1998); Re Confidential and Australian Prudential Regulation Authority [2005] AATA 1264 at [22] , [2005] AATA 1264 ; 91 ALD 435 at 439; SZFYW v Minister for Immigration and Citizenship [2008] FCA 1259 at [11] . After citing the passage from the judgment of Brennan J, French J (as he then was) observed that "... decision-makers can be consistently wrong or consistently unjust ... ": Federal Commissioner of Taxation v Swift (1989) 18 ALD 679 at 692.
Case: Re Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634
Outcome: cited
noted by Brennan J, when he was President of the Administrative Appeals Tribunal, in Re Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634 at 639: Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice. This passage has, not surprisingly, been repeatedly cited: e.g. Apthorpe v Repatriation Commission (1987) 13 ALD 656 at 665 per Davies, Lockhart and Gummow JJ; Pepaj v Minister for Immigration and Multicultural Affairs (unreported, FCA, Merkel J, SG 101 of 1998, 25 November 1998); Re Confidential and Australian Prudential Regulation Authority [2005] AATA 1264 at [22] , [2005] AATA 1264 ; 91 ALD 435 at 439; SZFYW v Minister for Immigration and Citizenship [2008] FCA 1259 at [11] . After citing the passage from the judgment of Brennan J, French J (as he then was) observed that "... decision-makers can be consistently wrong or consistently unjust ... ": Federal Commissioner of Taxation v Swift (1989) 18 ALD 679 at 692.
Case: Federal Commissioner of Taxation v Swift (1989) 18 ALD 679
Outcome: cited
noted by Brennan J, when he was President of the Administrative Appeals Tribunal, in Re Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634 at 639: Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice. This passage has, not surprisingly, been repeatedly cited: e.g. Apthorpe v Repatriation Commission (1987) 13 ALD 656 at 665 per Davies, Lockhart and Gummow JJ; Pepaj v Minister for Immigration and Multicultural Affairs (unreported, FCA, Merkel J, SG 101 of 1998, 25 November 1998); Re Confidential and Australian Prudential Regulation Authority [2005] AATA 1264 at [22] , [2005] AATA 1264 ; 91 ALD 435 at 439; SZFYW v Minister for Immigration and Citizenship [2008] FCA 1259 at [11] . After citing the passage from the judgment of Brennan J, French J (as he then was) observed that "... decision-makers can be consistently wrong or consistently unjust ... ": Federal Commissioner of Taxation v Swift (1989) 18 ALD 679 at 692.
Case: NAXD v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 243
Outcome: followed
statements set forth by the present First Appellant do not " provide a sensible framework " within which the appeal may proceed. Why it is said that the Tribunal declined to exercise its jurisdiction is left unspecified; as is the " jurisdictional error " said to have been committed. The content of the present Notice of Appeal is no better than a statement that " the Honorable [sic] Judge failed to follow necessary laws applicable to me ", a statement which likewise was held not to comply with Order 52 r 13(2)(b): NAXD v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 243 at [3] per North, Dowsett and Conti JJ. The repetition of the statements made by the present Appellants and many other appellants before this Court is no better than the " standard form notice of appeal " employed in migration cases which long ago attracted the criticism of Conti J: SZEZJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 946 at [5] ; SZDLQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 696 at [5] ; SZEZE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 122 at [6] .
Case: Nevistic v Minister for Immigration and Ethnic Affairs [1981] FCA 41 ; (1981) 51 FLR 325
Outcome: cited
Nevistic v Minister for Immigration and Ethnic Affairs [1981] FCA 41 ; (1981) 51 FLR 325 at 334 to 335 Deane J, when sitting as a Judge of this Court and when entertaining an appeal from the Administrative Appeals Tribunal, similarly observed: There are many reasons for the desirability of consistency in the making of decisions affecting rights, opportunities and obligations under the law. Paramount among them is the fact that inconsistency in the treatment of those amenable to the law involves an element of injustice. Particularly where there is competition or correlativity between rights, advantages, obligations and disadvantages, equality of treatment under the law is an ingredient of modern concepts of justice and the rule of law. It is important that those who constitute the Tribunal should, in their search for the correct or preferable decision in the particular case, be entitled to pay regard both to decisions of the Tribunal in other matters and to policies enunciated and developed by those entrusted with the primary administration of the relevant law. On the other hand, while consistency may properly be seen as an ingredient of justice, it does not constitute a hallmark of it. As Smithers J pointed out in Gungor and Minister for Immigration and Ethnic Affairs [Unreported (Administrative Appeals Tribunal, 30 th May 1980)] consistency must ultimately be related to policy and is safely sought by reference to policy only when the policy is appropriate and acceptable. Decision makers may be consistently wrong and consistently unjust. The Tribunal is not bound by either its own previous decisions or by the content of government policy. There have been and will be cases in which the Tribunal concludes that it should refuse to follow a previous decision of the Tribunal or reject or disregard the dictates of a relevant policy of the government. The existence of such cases serves to emphasize the fact that each applicant to the Tribunal is entitled to have his or her application for review decided on its own particular merits. The desire for consistency should not be permitted to submerge the ideal of justice in the individual case. " Consistency " is thus not an end in itself a like result reached upon the basis of factually diverse materials may be the hallmark of injustice and not justice. The task of the administrator is to resolve a case upon the materials presently available and in accordance with law.
Case: Pepaj v Minister for Immigration and Multicultural Affairs (unreported, FCA, Merkel J, SG 101 of 1998, 25 November 1998)
Outcome: cited
noted by Brennan J, when he was President of the Administrative Appeals Tribunal, in Re Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634 at 639: Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice. This passage has, not surprisingly, been repeatedly cited: e.g. Apthorpe v Repatriation Commission (1987) 13 ALD 656 at 665 per Davies, Lockhart and Gummow JJ; Pepaj v Minister for Immigration and Multicultural Affairs (unreported, FCA, Merkel J, SG 101 of 1998, 25 November 1998); Re Confidential and Australian Prudential Regulation Authority [2005] AATA 1264 at [22] , [2005] AATA 1264 ; 91 ALD 435 at 439; SZFYW v Minister for Immigration and Citizenship [2008] FCA 1259 at [11] . After citing the passage from the judgment of Brennan J, French J (as he then was) observed that "... decision-makers can be consistently wrong or consistently unjust ... ": Federal Commissioner of Taxation v Swift (1989) 18 ALD 679 at 692.
Case: SZDLQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 696
Outcome: cited
statements set forth by the present First Appellant do not " provide a sensible framework " within which the appeal may proceed. Why it is said that the Tribunal declined to exercise its jurisdiction is left unspecified; as is the " jurisdictional error " said to have been committed. The content of the present Notice of Appeal is no better than a statement that " the Honorable [sic] Judge failed to follow necessary laws applicable to me ", a statement which likewise was held not to comply with Order 52 r 13(2)(b): NAXD v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 243 at [3] per North, Dowsett and Conti JJ. The repetition of the statements made by the present Appellants and many other appellants before this Court is no better than the " standard form notice of appeal " employed in migration cases which long ago attracted the criticism of Conti J: SZEZJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 946 at [5] ; SZDLQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 696 at [5] ; SZEZE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 122 at [6] .
Case: SZEZE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 122
Outcome: cited
statements set forth by the present First Appellant do not " provide a sensible framework " within which the appeal may proceed. Why it is said that the Tribunal declined to exercise its jurisdiction is left unspecified; as is the " jurisdictional error " said to have been committed. The content of the present Notice of Appeal is no better than a statement that " the Honorable [sic] Judge failed to follow necessary laws applicable to me ", a statement which likewise was held not to comply with Order 52 r 13(2)(b): NAXD v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 243 at [3] per North, Dowsett and Conti JJ. The repetition of the statements made by the present Appellants and many other appellants before this Court is no better than the " standard form notice of appeal " employed in migration cases which long ago attracted the criticism of Conti J: SZEZJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 946 at [5] ; SZDLQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 696 at [5] ; SZEZE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 122 at [6] .
Case: SZEZJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 946
Outcome: cited
statements set forth by the present First Appellant do not " provide a sensible framework " within which the appeal may proceed. Why it is said that the Tribunal declined to exercise its jurisdiction is left unspecified; as is the " jurisdictional error " said to have been committed. The content of the present Notice of Appeal is no better than a statement that " the Honorable [sic] Judge failed to follow necessary laws applicable to me ", a statement which likewise was held not to comply with Order 52 r 13(2)(b): NAXD v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 243 at [3] per North, Dowsett and Conti JJ. The repetition of the statements made by the present Appellants and many other appellants before this Court is no better than the " standard form notice of appeal " employed in migration cases which long ago attracted the criticism of Conti J: SZEZJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 946 at [5] ; SZDLQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 696 at [5] ; SZEZE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 122 at [6] .
Case: SZFYW v Minister for Immigration and Citizenship [2008] FCA 1259
Outcome: cited
noted by Brennan J, when he was President of the Administrative Appeals Tribunal, in Re Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634 at 639: Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice. This passage has, not surprisingly, been repeatedly cited: e.g. Apthorpe v Repatriation Commission (1987) 13 ALD 656 at 665 per Davies, Lockhart and Gummow JJ; Pepaj v Minister for Immigration and Multicultural Affairs (unreported, FCA, Merkel J, SG 101 of 1998, 25 November 1998); Re Confidential and Australian Prudential Regulation Authority [2005] AATA 1264 at [22] , [2005] AATA 1264 ; 91 ALD 435 at 439; SZFYW v Minister for Immigration and Citizenship [2008] FCA 1259 at [11] . After citing the passage from the judgment of Brennan J, French J (as he then was) observed that "... decision-makers can be consistently wrong or consistently unjust ... ": Federal Commissioner of Taxation v Swift (1989) 18 ALD 679 at 692.
Case: SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138 , 171 FCR 1
Outcome: cited
difficulty confronting the present First Appellant is that no error is discernible in either the conclusion in fact reached by the Tribunal or the Federal Magistrate. The reasons for decision of the Tribunal disclose that it was well aware of the contrary outcome of the sister's application and it went on to explain the basis upon which it reached that contrary result. As pointed out by the Federal Magistrate, the task of the Tribunal was to resolve the case before it and it was not bound by a decision of a differently constituted Tribunal based upon different factual material. See: SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138 at [18] , [2008] FCAFC 51 ; 171 FCR 1 at 8 per Gray J. There is no " inconsistency " or " inelegance " of the kind envisaged by Brennan J, nor is there any error. A broadly expressed contention that the present Tribunal did not " sufficiently deal " with a claim has been understood as meaning that the factual conclusion reached was a conclusion open to the Tribunal upon the materials presented but that the course whereby that conclusion has been reached has not been exposed. So construed, the contention is that the Tribunal has failed to comply with the obligations imposed by s 430(1) of the Migration Act 1958 (Cth) which provides as follows: Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based.
Case: SZJJC v Minister for Immigration and Citizenship [2008] FCA 614
Outcome: cited
of these two difficulties namely the failure to identify any error committed by the Federal Magistrate nor the failure to identify with acceptable precision the " ground of appeal " is considered to be a mere matter of form: SZJJC v Minister for Immigration and Citizenship [2008] FCA 614 at [15] . Both are considered essential to this Court only exercising such jurisdiction as has been committed to it by the federal legislature. To the extent that meaning can be given to these first two Grounds of Appeal , however, they are in any event without substance. Even if they can be construed as an inelegant way of contending that the Federal Magistrates Court erred in not concluding that the Tribunal had failed to exercise its jurisdiction or committed jurisdictional error, neither contention is sustainable. The first Ground of Appeal also suffers from a further potential difficulty.
Case: SZMIP v Minister for Immigration and Citizenship [2008] FMCA 1665
Outcome: affirmed
application was then filed with the Federal Magistrates Court. That Court on 4 December 2008 published its decision and reasons for decision dismissing the application: SZMIP v Minister for Immigration and Citizenship [2008] FMCA 1665. An application by the First Appellant's younger sister for a protection visa had previously been considered by a differently constituted Tribunal and the sister's application was granted. A Notice of Appeal was filed in this Court on 31 December 2008. The purported Grounds of Appeal are there set forth (without alteration) as follows: 1. The RRT declined to exercise its jurisdiction 2. A jurisdictional error committed by the RRT 3. Breached of procedures as required by the Migration Act Particulars of grounds will be filed and served when required by this court. No " Particulars " have been provided.
Case: Bahonko v Nurses Board of Victoria (No 2) [2007] FCA 351
Outcome: referred to
Application has been made by the applicant to restrain Ms Dominque Saunders and Russell Kennedy (a firm) from acting on behalf of the first respondent in these proceedings. The form of order has not been precisely articulated by the applicant, but I will proceed on the basis that an order is sought that the firm Russell Kennedy and Ms Saunders be restrained from acting as solicitors for the first respondent in these proceedings. The background to these proceedings and the role of each of Ms Saunders and Russell Kennedy have been set out in my judgment delivered on 14 March 2007: see Bahonko v Nurses Board of Victoria (No 2) [2007] FCA 351. Essentially, Russell Kennedy are the solicitors on the record representing the first respondent, and Ms Saunders is a solicitor in the employ of Russell Kennedy and has been involved in these proceedings. Other relevant circumstances are referred to later in these reasons.
Case: Black v Taylor [1993] 3 NZLR 403
Outcome: cited
The Court's jurisdiction to restrain a legal practitioner from acting in proceedings is an exceptional one and discretionary. It must be exercised with appropriate caution and due weight must be given to the public interest in a litigant not being deprived of the legal practitioner of its choice without due or good cause: Grimwade v Meagher &amp; Ors [1995] 1 VR 446 at 452; Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404 at [35] and [51]. The cost, inconvenience or impracticality of requiring a legal practitioner to cease to act may provide a reason for refusing to grant relief: Geelong School [2006] FCA 1404 at [51] ; Kallinicos v Hunt [2005] NSWSC 1181 ; (2005) 64 NSWLR 561; Black v Taylor [1993] 3 NZLR 403 and Bowen v Stott [2004] WASC 94.
Case: Bowen v Stott [2004] WASC 94
Outcome: cited
The Court's jurisdiction to restrain a legal practitioner from acting in proceedings is an exceptional one and discretionary. It must be exercised with appropriate caution and due weight must be given to the public interest in a litigant not being deprived of the legal practitioner of its choice without due or good cause: Grimwade v Meagher &amp; Ors [1995] 1 VR 446 at 452; Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404 at [35] and [51]. The cost, inconvenience or impracticality of requiring a legal practitioner to cease to act may provide a reason for refusing to grant relief: Geelong School [2006] FCA 1404 at [51] ; Kallinicos v Hunt [2005] NSWSC 1181 ; (2005) 64 NSWLR 561; Black v Taylor [1993] 3 NZLR 403 and Bowen v Stott [2004] WASC 94. 13 In Holborow v MacDonald Rudder [2002] WASC 265 at [23] , Heenan J said that the power to exercise supervisory jurisdiction over legal practitioners had been invoked in cases where the subject matter of the litigation was likely to involve an evaluation of the conduct of the legal practitioner. In Bowen v Stott [2004] WASC 94 at [53] and [55], Hasluck J said that it may be appropriate to invoke this power in cases where the legal practitioner may feel compelled to justify or defend his or her conduct in representing a client, or where the practitioner's credibility is at stake as a potential witness.
Case: Carindale Country Club Estate Pty Ltd v Astill &amp; Ors (1993) 42 FCR 307
Outcome: cited
In any event, the alleged confidential information is not described, and therefore this Court cannot determine whether there could be any risk or danger that it may be used to the detriment of the applicant in this proceeding. The authorities are clear that the confidential information must be identified to such an extent that the claim of confidentiality can be assessed by the Court: see Spincode Pty Ltd v Look Software Pty Ltd &amp; Ors [2001] VSCA 248 ; (2001) 4 VR 501 at [22] ; Carindale Country Club Estate Pty Ltd v Astill &amp; Ors (1993) 42 FCR 307 at 314; Sent v John Fairfax Publication Pty Ltd [2002] VSC 429 at [65] to [68].
Case: Freeman v Chicago Musical Instrument Co 689 F2d 715 (1982)
Outcome: cited
The Court must be careful not to intervene unless it is absolutely required in the circumstances of the case. Further, the Court should be mindful that sometimes applications for restraining legal practitioners may be misused or quite inappropriately pursued by a party to proceedings. In Freeman v Chicago Musical Instrument Co 689 F2d 715 (1982), the Court observed at 722: We do not mean to infer that motions to disqualify counsel may not be legitimate, for there obviously are situations where they are both legitimate and necessary; nonetheless, such motions should be viewed with extreme caution for they can be misused as techniques of harassment.
Case: Grimwade v Meagher &amp; Ors [1995] 1 VR 446
Outcome: cited
The Court's jurisdiction to restrain a legal practitioner from acting in proceedings is an exceptional one and discretionary. It must be exercised with appropriate caution and due weight must be given to the public interest in a litigant not being deprived of the legal practitioner of its choice without due or good cause: Grimwade v Meagher &amp; Ors [1995] 1 VR 446 at 452; Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404 at [35] and [51]. The cost, inconvenience or impracticality of requiring a legal practitioner to cease to act may provide a reason for refusing to grant relief: Geelong School [2006] FCA 1404 at [51] ; Kallinicos v Hunt [2005] NSWSC 1181 ; (2005) 64 NSWLR 561; Black v Taylor [1993] 3 NZLR 403 and Bowen v Stott [2004] WASC 94.
Case: Holborow v MacDonald Rudder [2002] WASC 265
Outcome: cited
In Holborow v MacDonald Rudder [2002] WASC 265 at [23] , Heenan J said that the power to exercise supervisory jurisdiction over legal practitioners had been invoked in cases where the subject matter of the litigation was likely to involve an evaluation of the conduct of the legal practitioner. In Bowen v Stott [2004] WASC 94 at [53] and [55], Hasluck J said that it may be appropriate to invoke this power in cases where the legal practitioner may feel compelled to justify or defend his or her conduct in representing a client, or where the practitioner's credibility is at stake as a potential witness.
Case: Kallinicos v Hunt [2005] NSWSC 1181 ; (2005) 64 NSWLR 561
Outcome: cited
The Court's jurisdiction to restrain a legal practitioner from acting in proceedings is an exceptional one and discretionary. It must be exercised with appropriate caution and due weight must be given to the public interest in a litigant not being deprived of the legal practitioner of its choice without due or good cause: Grimwade v Meagher &amp; Ors [1995] 1 VR 446 at 452; Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404 at [35] and [51]. The cost, inconvenience or impracticality of requiring a legal practitioner to cease to act may provide a reason for refusing to grant relief: Geelong School [2006] FCA 1404 at [51] ; Kallinicos v Hunt [2005] NSWSC 1181 ; (2005) 64 NSWLR 561; Black v Taylor [1993] 3 NZLR 403 and Bowen v Stott [2004] WASC 94.