mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Fiorentino v Irons (1997) 79 FCR 327
Outcome: cited
In Fiorentino v Irons (1997) 79 FCR 327, Foster J declined to follow what he characterised as the obiter observations of Lockhart J in Re Sherlock 102 ALR 156. He noted that the decision in the New South Wales Supreme Court turned upon the precise meaning of the Supreme Court Rules . He made the point that they were not framed in the same way as the Federal Court Rules were at that time. In particular, there was then no definition of "originating process" in either the Federal Court Rules or the Federal Court Act. His Honour relied upon the definition of "proceeding" in the Act. He said it was a very wide definition and he was satisfied that the issue of summons for examination was a proceeding. As to the width of the term "proceeding" his Honour referred to Re Interchase Corporation Ltd (1996) 68 FCR 481 at 487 (Kiefel J) and Pasdale Pty Ltd v Concrete Constructions (1995) 59 FCR 446 at 448 (Finn J). In the latter case Finn J said: The definition of 'proceeding' in the Federal Court of Australia Act s 3 [sic], for example, in its reference to 'an incidental proceeding in the course of, or in connexion with, a proceeding', is apt to encompass a motion for security for costs. 52 More recently in Re Strarch International Ltd (in liq) [2005] FCA 829 , Jacobson J held that an examination summons under s 596A of the Corporations Act 2001 was "originating process" within O 8 r 1. It may be noted that at the time his Honour made that decision O 8 r 1 did not define originating process but simply listed the kinds of proceedings in which originating process could be served on a person outside Australia. His Honour followed the reasoning of Foster J in Fiorentino 79 FCR 327 that the different approach which applied in the Supreme Court of New South Wales turned upon the different wording of the rules of that court. He granted leave to the liquidator of the relevant company in that case to serve examination summonses outside the Commonwealth in Malaysia on four named former directors of the company.
Case: Re Interchase Corporation Ltd (1996) 68 FCR 481
Outcome: cited
In Fiorentino v Irons (1997) 79 FCR 327, Foster J declined to follow what he characterised as the obiter observations of Lockhart J in Re Sherlock 102 ALR 156. He noted that the decision in the New South Wales Supreme Court turned upon the precise meaning of the Supreme Court Rules . He made the point that they were not framed in the same way as the Federal Court Rules were at that time. In particular, there was then no definition of "originating process" in either the Federal Court Rules or the Federal Court Act. His Honour relied upon the definition of "proceeding" in the Act. He said it was a very wide definition and he was satisfied that the issue of summons for examination was a proceeding. As to the width of the term "proceeding" his Honour referred to Re Interchase Corporation Ltd (1996) 68 FCR 481 at 487 (Kiefel J) and Pasdale Pty Ltd v Concrete Constructions (1995) 59 FCR 446 at 448 (Finn J). In the latter case Finn J said: The definition of 'proceeding' in the Federal Court of Australia Act s 3 [sic], for example, in its reference to 'an incidental proceeding in the course of, or in connexion with, a proceeding', is apt to encompass a motion for security for costs.
Case: Pasadale Pty Ltd v Concrete Constructions (1995) 59 FCR 446
Outcome: cited
In Fiorentino v Irons (1997) 79 FCR 327, Foster J declined to follow what he characterised as the obiter observations of Lockhart J in Re Sherlock 102 ALR 156. He noted that the decision in the New South Wales Supreme Court turned upon the precise meaning of the Supreme Court Rules . He made the point that they were not framed in the same way as the Federal Court Rules were at that time. In particular, there was then no definition of "originating process" in either the Federal Court Rules or the Federal Court Act. His Honour relied upon the definition of "proceeding" in the Act. He said it was a very wide definition and he was satisfied that the issue of summons for examination was a proceeding. As to the width of the term "proceeding" his Honour referred to Re Interchase Corporation Ltd (1996) 68 FCR 481 at 487 (Kiefel J) and Pasdale Pty Ltd v Concrete Constructions (1995) 59 FCR 446 at 448 (Finn J). In the latter case Finn J said: The definition of 'proceeding' in the Federal Court of Australia Act s 3 [sic], for example, in its reference to 'an incidental proceeding in the course of, or in connexion with, a proceeding', is apt to encompass a motion for security for costs.
Case: Re Strarch International Ltd (in liq) [2005] FCA 829
Outcome: cited
More recently in Re Strarch International Ltd (in liq) [2005] FCA 829 , Jacobson J held that an examination summons under s 596A of the Corporations Act 2001 was "originating process" within O 8 r 1. It may be noted that at the time his Honour made that decision O 8 r 1 did not define originating process but simply listed the kinds of proceedings in which originating process could be served on a person outside Australia. His Honour followed the reasoning of Foster J in Fiorentino 79 FCR 327 that the different approach which applied in the Supreme Court of New South Wales turned upon the different wording of the rules of that court. He granted leave to the liquidator of the relevant company in that case to serve examination summonses outside the Commonwealth in Malaysia on four named former directors of the company.
Case: Cakmak v Minister for Immigration &amp; Multicultural Affairs [2003] FCAFC 257 ; (2003) 135 FCR 183
Outcome: cited
Regulation 1.21 is a definition for the purposes of Div 1.5 of the Regulations, which relates to domestic violence. The effect of Div 1.5 is to institute a mechanical form of proof of domestic violence, a serious allegation, which absolves an applicant from the need to prove domestic violence in the ordinary course. It is therefore appropriate that every element of that mode of proof be satisfied ( Cakmak v Minister for Immigration &amp; Multicultural Affairs [2005] FCA 503 at [40] per Gray J, not the subject of comment on dismissal of the appeal in Cakmak v Minister for Immigration &amp; Multicultural Affairs [2003] FCAFC 257 ; (2003) 135 FCR 183). The specification of a Commonwealth declaration also absolves the decision-maker from having to ascertain whether a statutory declaration meets the requirements of the varied State laws. Perhaps, as a matter of less significance, a single form of declaration exposes a person making a statutory declaration to uniform penalties for a false declaration. 16 The appellant submits that a declaration sworn under State legislation is no less effective or efficacious than a declaration under the Commonwealth Act. In his submission, it has the same effect of imposing on the deponent an awareness of the consequences of a false declaration and the penalties for perjury. That may be the case for awareness but not necessarily for the consequences. 17 The parties referred the Court to reg 1.27 of the Regulations after the hearing, without further comment or submission. That regulation provides that a statutory declaration made under the relevant provisions of Div 1.5 is not admissible in evidence before a court or tribunal otherwise than in an application for judicial review or merits review of a decision to refuse to grant a visa or in a prosecution "under section 11 of the Commonwealth Act" for the making of a false declaration. There is no reference in reg 1.27 to admissibility in prosecutions under relevant State legislation. If State declarations were intended to be included within the meaning of reg 1.21, such a reference would be expected.
Case: Energy Resources of Aust Ltd v Commissioner of Taxation (2003) 52 ATR 120
Outcome: cited
In the context of the Act and Div 1.5 of the Regulations, reg 1.21 refers to a statutory declaration "under", in the ordinary sense of ' in accordance with ' ( Macquarie Dictionary , 4 th ed, 2005, 16) or ' pursuant to ' the Commonwealth Act ( Energy Resources of Aust Ltd v Commissioner of Taxation (2003) 52 ATR 120 at [37] per Lindgren J and the cases there cited), that is a s 8 statutory declaration. The fact that the expression used is "under" rather than "made under" does not mean that statutory declarations made in accordance with legislation other than the Commonwealth Act are or were intended to be included for the purposes of Div 1.5. The appellant contends that Parliament could have stated its intention more explicitly by referring in reg 1.21 to a statutory declaration "made under" or "in a manner prescribed by" the Commonwealth Act. That may be so but it does not mean that the intention was the opposite, to include State declarations. 14 The appellant submits that, if the intention were to specify only Commonwealth declarations in reg 1.21, the intention was not executed. I do not accept that this is so. A statutory declaration under or in accordance with the Commonwealth Act is a Commonwealth declaration which complies with s 8 of the Commonwealth Act.
Case: Minister for Immigration and Citizenship v Ejueyitsi [2007] FCAFC 89
Outcome: cited
For the purposes of Div 1.5 of the Regulations, it was necessary for the appellant to provide a Commonwealth declaration; that is, a statutory declaration in the form prescribed by the Commonwealth Act (s 8). He did not do so. The task of the Tribunal was to determine ' whether the evidence presented to it satisfie [d] the description called for in the delegated legislation ' ( Cakmak 132 FCR 183 at [52] per the Full Court; Minister for Immigration and Citizenship v Ejueyitsi [2007] FCAFC 89 at [24] ). For the reasons given, the evidence did not satisfy that description. The Federal Magistrate was not in error in finding that the Tribunal had correctly concluded that the appellant had not satisfied the requirements of reg 1.24 of the Regulations in relation to his claims of domestic violence. I agree with Hill J in Morgan v Minister for Immigration &amp; Multicultural Affairs [1999] FCA 1059 at [11] that the fact that a declaration was not made under the Commonwealth Act but under a Victorian Act means that, were the matter to go back to the Tribunal, the Tribunal would have to find against the appellant for this reason. Such referral is, therefore, futile.
Case: Morgan v Minister for Immigration &amp; Multicultural Affairs [1999] FCA 1059
Outcome: cited
For the purposes of Div 1.5 of the Regulations, it was necessary for the appellant to provide a Commonwealth declaration; that is, a statutory declaration in the form prescribed by the Commonwealth Act (s 8). He did not do so. The task of the Tribunal was to determine ' whether the evidence presented to it satisfie [d] the description called for in the delegated legislation ' ( Cakmak 132 FCR 183 at [52] per the Full Court; Minister for Immigration and Citizenship v Ejueyitsi [2007] FCAFC 89 at [24] ). For the reasons given, the evidence did not satisfy that description. The Federal Magistrate was not in error in finding that the Tribunal had correctly concluded that the appellant had not satisfied the requirements of reg 1.24 of the Regulations in relation to his claims of domestic violence. I agree with Hill J in Morgan v Minister for Immigration &amp; Multicultural Affairs [1999] FCA 1059 at [11] that the fact that a declaration was not made under the Commonwealth Act but under a Victorian Act means that, were the matter to go back to the Tribunal, the Tribunal would have to find against the appellant for this reason. Such referral is, therefore, futile.
Case: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355
Outcome: cited
There is no definition of "statutory declaration" in the Act to provide a contrary intention. There is, however, the 1.21 definition in the Regulations. There would be no purpose in defining "statutory declaration" in reg 1.21 merely to include a Commonwealth declaration because that has already been provided for by s 27 of the Acts Interpretation Act and s 7 of the Commonwealth Act ( Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at [71] ). 23 Section 27 applies subject to a contrary intention. A contrary intention is evidenced by the 1.21 definition, which purports to exclude a State declaration. There is no other apparent reason for defining "statutory declaration" in reg 1.21. Accordingly, s 27 does not apply to "statutory declaration" in Div 1.5 to include a State declaration.
Case: BRGAB of 2007 v MIAC [2007] FMCA 823
Outcome: considered
The appellant sought judicial review of the Tribunal decision in relation to her application for the protection visa in the Federal Magistrate's Court ( BRGAB of 2007 v MIAC [2007] FMCA 823). Federal Magistrate Jarrett dismissed the appellant's application to set aside the decision of the Refugee Review Tribunal. 33 Federal Magistrate Jarrett cited the Tribunal reasons and found that the Tribunal did not fail to consider the appellant's case that she might be considered by some in Japan to have been convicted of, or guilty of, the offences of which she was charged in Australia ( BRGAB [2007] FMCA 823 at [35] ). The Federal Magistrate noted that the Tribunal concluded that she would not suffer ' serious harm ' even if that assumption were made. Failure to refer to the specific evidence of the detail of Japanese criminal law and procedure did not reveal error. Federal Magistrate Jarrett pointed out at [37] that, with respect to the claim that the Tribunal failed to make a finding as to the chance of prosecution in Japan, no offence was identified and the Tribunal was not obliged to accept speculative assertions unsupported by evidence.
Case: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: cited
I respectfully agree with the Federal Magistrate. It is clear that the Tribunal did consider each of the issues it was required to consider for the purposes of making a decision. Section 430(1)(c) of the Act requires the Tribunal to set out the findings which it made and which it considered to be material. It does not oblige the Tribunal to make findings on every question of fact which is objectively material ( Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at [9] and [67] [68]). There is no jurisdictional error in circumstances where the Tribunal has not specifically made mention of a particular piece of evidence in its reasons. As Jarrett FM said at [36], ' the case put by the [appellant] was considered, but rejected, by the Tribunal '. 35 This ground of appeal has not been established. 36 The appellant's complaint is that the Tribunal failed to identify the relevant principles for the determination of a particular social group within the meaning of Article 1A(2) of the Convention. The Tribunal did not discuss the principles of such determination. Federal Magistrate Jarrett pointed out at [38] that the appellant did not put her case on the basis that she was a member of a particular social group. The Minister concedes that the Tribunal did not follow the usual course when determining whether a group or class to which an appellant claims to belong is capable of constituting a particular social group under the Convention; namely whether there is an identifiable social group and whether the appellant is a member of such a group.
Case: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
Outcome: cited
Section 424A of the Act does not require the Tribunal to give information to the appellant which is information that the appellant has given to the Tribunal for the purposes of the application. Determinations, thought processes or subjective appraisals of the Tribunal in considering the issues involved in this matter are not required by s 424A(1) to be given to the appellant ( SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] citing VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24]).
Case: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
Outcome: cited
Section 424A of the Act does not require the Tribunal to give information to the appellant which is information that the appellant has given to the Tribunal for the purposes of the application. Determinations, thought processes or subjective appraisals of the Tribunal in considering the issues involved in this matter are not required by s 424A(1) to be given to the appellant ( SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] citing VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24]).
Case: Minister for Environment and Heritage v Queensland Conservation Council Inc [2004] FCAFC 190 ; (2004) 139 FCR 24
Outcome: cited
I have proceeded upon the basis that greenhouse gas emissions consequent upon the burning of coal mined in one of these projects might arguably cause an impact upon a protected matter, which impact could be said to be an impact of the proposed action. I have adopted this approach because it appears to have been the approach adopted by Mr Flanigan. However I am far from satisfied that the burning of coal at some unidentified place in the world, the production of greenhouse gases from such combustion, its contribution towards global warming and the impact of global warming upon a protected matter, can be so described. The applicant's concern is the possibility that at some unspecified future time, protected matters in Australia will be adversely and significantly affected by climate change of unidentified magnitude, such climate change having been caused by levels of greenhouse gases (derived from all sources) in the atmosphere. There has been no suggestion that the mining, transportation or burning of coal from either proposed mine would directly affect any such protected matter, nor was there any attempt to identify the extent (if any) to which emissions from such mining, transportation and burning might aggravate the greenhouse gas problem. The applicant's case is really based upon the assertion that greenhouse gas emission is bad, and that the Australian government should do whatever it can to stop it including, one assumes, banning new coal mines in Australia. This case is far removed from the factual situation in Minister for Environment and Heritage v Queensland Conservation Council Inc [2004] FCAFC 190 ; (2004) 139 FCR 24. 73 In the circumstances the application must be dismissed. I will hear submissions as to costs. I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 15 June 2006 Counsel for the Applicant: S Keim SC C McGrath Solicitor for the Applicant: Environmental Defenders Office Counsel for the First Respondent: M Hinson SC M Swan Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent D Jackson QC D Rangiah Solicitor for the Second Respondent Allens Arthur Robinson Counsel for the Third Respondent D Gove QC D Clothier Solicitor for the Third Respondent Clayton Utz Date of Hearing: 28 October 2005 Date of Judgment: 15 June 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/736.html
Case: Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433
Outcome: referred to
Order 35A applies where a party is in default, which is the case here; O 35A r2(2)(b). It permits the Court to give judgment against the respondent in default under r3(2)(c) and r3(2)(d). Speaking of O 35A r3(2)(c), in Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433 at [3] , Heerey J observed: 'the rule does not require proof by way of evidence of the applicant's claim; rather that on the face of the statement of claim there is a claim for the relief sought and, of course, that the court has jurisdiction to grant that relief.'
Case: Australian Securities Commission v Macleod (1994) 54 FCR 309
Outcome: applied
I am satisfied that the conditions of O 35A r3(2)(c) have been met and that I am entitled to make the orders sought. However, the applicants have elected to proceed under O 35A r3(2)(d) and accept that, in accordance with the principles stated in Australian Securities Commission v Macleod (1994) 54 FCR 309 at 314, I must satisfy myself on the evidence before me (uncontested though it may be) that their claims have been made out and I am justified in making the orders sought. On 6 June, after hearing submissions made by Ms Gay, the solicitor for the applicants and considering the evidence to which Ms Gay took me I reached that level of satisfaction and made the requested orders. I said that I would provide reasons at a later date; these are my reasons. 7 In their written submissions the applicants identify the offending conduct of the respondent as follows: '(a) the attempted importation, through his agent Bakhtyar Amani, of a range of clothing bearing the names "Bob the Builder" and "Thomas the Tank Engine" and related images in October 2004 ... (b) the offering for sale and sale of children's clothing featuring the names "Bob the Builder" and "Thomas the Tank Engine", and images of more characters, in October 2004 ... (c) the attempted importation of a range of clothing bearing the names "Bob the Builder" and "Thomas the Tank Engine" and related images in October 2005 ... (d) the offering for sale and sale of children's clothing featuring the names "Bob the Builder" and "Thomas the Tank Engine", and images of those characters in May 2006...' 8 The applicants have filed a number of affidavits in support of their claims. In addition to affidavits of service that I do not need to dwell on, they are: (a) affidavit of Craig Raymond Douglas, a licensed enquiry agent, sworn on 23 May 2006; (b) affidavit of Dani Muntz, Operations Manager for Nationwide Research Group Pty Limited, sworn on 24 May 2006; (c) three affidavits of Rebekah Frances Gay, solicitor, affirmed on 25 May, 5 June and 6 June 2006 respectively; (d) affidavit Joyce D Slocum, General Counsel and Executive Vice President of the HIT Entertainment group of companies, affirmed on 25 May 2006; (e) Luke Muntz, Field Agent for Nationwide Research Group Pty Limited, sworn on 26 May 2006.
Case: Council of the City of Sydney v Goldspar Australia Pty Ltd [2006] FCA 641
Outcome: cited
Order 29 r 2 is most commonly used to allow the Court to resolve preliminary issues or questions, which, once resolved, mean it is unnecessary for the Court to resolve other issues or questions in the proceeding. In such circumstances, splitting the trial can save the Court and the parties the time and expense of dealing with ultimately redundant issues. Here, the respondent's liability for all applicants' claims and quantum of the first applicant's claim could not be described as preliminary issues or questions. However, that does not mean they cannot be determined separately from the quantum of the second applicants' claims. Indeed, it is even possible for an order under O 29 r 2 to be made 'after the event' of the trial, where the Court has only, at that stage, dealt with issues of liability; see Council of the City of Sydney v Goldspar Australia Pty Ltd [2006] FCA 641 at [5] to [6] per Gyles J.