mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Adams v Adams [1971] P 188
Outcome: approved
Even in the absence of provisions such as s 18 of the 1977 Act and s 78A of the Judiciary Act , the Attorney-General has what has been described as " a right of intervention in a private suit whenever it may affect the prerogatives of the Crown ": Adams v Adams [1971] P 188 at 197. Sir Jocelyn Simon P there held at 197 8: In my view the Attorney-General has a right of intervention in a private suit whenever it may affect the prerogatives of the Crown, including its relations with foreign states ... and he certainly has in such circumstances a locus standi at the invitation of the court... I think that the Attorney-General also has the right of intervention at the invitation or with the permission of the court where the suit raises any question of public policy on which the executive may have a view which it may desire to bring to the notice of the court.... See also: Auckland Area Health Board v Attorney-General, [1993] 1 NZLR 235; Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391 at 400 2 per Hutley JA (Reynolds and Glass JJA agreeing). Such decisions remain of assistance in providing instances as to those circumstances in which Courts have recognised the right of an Attorney-General to intervene as a party to proceedings.
Case: Auckland Area Health Board v Attorney-General [1993] 1 NZLR 235
Outcome: cited
Even in the absence of provisions such as s 18 of the 1977 Act and s 78A of the Judiciary Act , the Attorney-General has what has been described as " a right of intervention in a private suit whenever it may affect the prerogatives of the Crown ": Adams v Adams [1971] P 188 at 197. Sir Jocelyn Simon P there held at 197 8: In my view the Attorney-General has a right of intervention in a private suit whenever it may affect the prerogatives of the Crown, including its relations with foreign states ... and he certainly has in such circumstances a locus standi at the invitation of the court... I think that the Attorney-General also has the right of intervention at the invitation or with the permission of the court where the suit raises any question of public policy on which the executive may have a view which it may desire to bring to the notice of the court.... See also: Auckland Area Health Board v Attorney-General, [1993] 1 NZLR 235; Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391 at 400 2 per Hutley JA (Reynolds and Glass JJA agreeing). Such decisions remain of assistance in providing instances as to those circumstances in which Courts have recognised the right of an Attorney-General to intervene as a party to proceedings.
Case: Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391
Outcome: cited
Even in the absence of provisions such as s 18 of the 1977 Act and s 78A of the Judiciary Act , the Attorney-General has what has been described as " a right of intervention in a private suit whenever it may affect the prerogatives of the Crown ": Adams v Adams [1971] P 188 at 197. Sir Jocelyn Simon P there held at 197 8: In my view the Attorney-General has a right of intervention in a private suit whenever it may affect the prerogatives of the Crown, including its relations with foreign states ... and he certainly has in such circumstances a locus standi at the invitation of the court... I think that the Attorney-General also has the right of intervention at the invitation or with the permission of the court where the suit raises any question of public policy on which the executive may have a view which it may desire to bring to the notice of the court.... See also: Auckland Area Health Board v Attorney-General, [1993] 1 NZLR 235; Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391 at 400 2 per Hutley JA (Reynolds and Glass JJA agreeing). Such decisions remain of assistance in providing instances as to those circumstances in which Courts have recognised the right of an Attorney-General to intervene as a party to proceedings.
Case: Eastman v Miles [2004] ACTSC 32 ; (2004) 181 FLR 418
Outcome: cited
Although the Attorney-General initially sought " leave to intervene ", it is considered that s 18(1) of the 1977 Act confers a right to intervene in proceedings. The right to intervene has been invoked by the Attorney-General upon prior occasions: eg Finch v Goldstein (1981) 55 FLR 257 at 270, 36 ALR 287 at 298. The right conferred by s 78A of the Judiciary Act , it may be noted, is a right frequently exercised by the Attorney-General in Constitutional cases before the High Court of Australia: see Campbell, Intervention in Constitutional Cases (1998) 9 Pub L Rev 255 at 256. Where the Attorney-General seeks to intervene in proceedings in this Court, he is deemed to be a party to the proceeding pursuant to s 18(3): see Eastman v Miles [2004] ACTSC 32 at [92] , [2004] ACTSC 32 ; 181 FLR 418 at 445 6 per Gray J.
Case: Finch v Goldstein (1981) 55 FLR 257
Outcome: cited
Although the Attorney-General initially sought " leave to intervene ", it is considered that s 18(1) of the 1977 Act confers a right to intervene in proceedings. The right to intervene has been invoked by the Attorney-General upon prior occasions: eg Finch v Goldstein (1981) 55 FLR 257 at 270, 36 ALR 287 at 298. The right conferred by s 78A of the Judiciary Act , it may be noted, is a right frequently exercised by the Attorney-General in Constitutional cases before the High Court of Australia: see Campbell, Intervention in Constitutional Cases (1998) 9 Pub L Rev 255 at 256. Where the Attorney-General seeks to intervene in proceedings in this Court, he is deemed to be a party to the proceeding pursuant to s 18(3): see Eastman v Miles [2004] ACTSC 32 at [92] , [2004] ACTSC 32 ; 181 FLR 418 at 445 6 per Gray J.
Case: R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13
Outcome: cited
Even had leave been required, leave would have been granted. The basis upon which the Attorney-General sought to intervene was to avoid the prospect of the First, Second and Third Respondents having to " defend " their own conduct or decisions made: cf R v Australian Broadcasting Tribunal, Ex parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13; 29 ALR 289.
Case: Toy Centre Agencies Pty Ltd v Spencer (1983) 67 FLR 458
Outcome: approved
The circumstances in which the Attorney-General may exercise the right conferred by s 18(1) to intervene " on behalf of the Commonwealth " are not, however, confined to those in which named respondents may otherwise be placed in the position of having to defend their own decisions or conduct. The ultimate objective of the Administrative Decisions (Judicial Review) Act 1977 (Cth), it will be recalled: ...is to ensure that decisions of public servants and others which affect the rights, prospects and property of citizens, are made after giving careful consideration to the questions involved in the particular case, so that it is more likely that the decision will be right and justice done to the persons affected by it: Toy Centre Agencies Pty Ltd v Spencer (1983) 67 FLR 458 at 466 per Lockhart J. The manner in which the 1977 Act may impact upon the Commonwealth is thus diverse. Equally diverse are the circumstances in which the Attorney-General may seek to intervene to represent the interests of the Commonwealth. It would thus be far from prudent to attempt to define or categorise in advance those interests of the Commonwealth which would permit the Attorney-General to exercise his right of intervention.
Case: Churche v Australian Prudential Regulation Authority [2006] FCA 613
Outcome: referred to
is an application for leave to appeal from my decision given on 26 May 2006: see Churche v Australian Prudential Regulation Authority [2006] FCA 613 ('the May decision'). Leave is necessary because the decision was delivered in respect of an interlocutory application: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The facts are set out in the May decision, and I will not repeat them at length here. In summary, the judgment related to an application to set aside two paragraphs of a notice to produce which had been issued on an application for preliminary discovery. The two paragraphs sought production of draft versions of a report produced by the respondent ('APRA') under s 60 of the Insurance Act 1973 (Cth). I set aside such paragraphs on two grounds: firstly, that the production of the documents was prohibited under s 56 of the Australian Prudential Regulation Authority Act 1998 (Cth) ('APRA Act'); and secondly, that the reports were not properly the subject of a notice to produce in an application for preliminary discovery under O 15A r 6 of the Federal Court Rules .
Case: Decor Corporation Pty Ltd and Anor v Dart Industries Inc (1991) 33 FCR 397
Outcome: applied
principles relating to leave to appeal from an interlocutory judgment were discussed in Decor Corporation Pty Ltd and Anor v Dart Industries Inc (1991) 33 FCR 397 at 398-9. The Court there accepted that the major considerations in determining whether leave should be granted are: 1) whether the decision is attended by sufficient doubt to warrant its being reconsidered; and 2) whether substantial injustice would result if leave were to be refused, supposing the decision to be wrong. However, the Court in Decor added (at 399-400): 'However, there will continue to be cases raising special considerations, and the court should not regard its hands as tied in any case beyond this; that by s 24(1A) the legislature has evinced a policy against the bringing of interlocutory appeals except where the court, acting judicially, finds reason to grant leave. When the court comes to exercise its discretion on a particular application, an important distinction to be observed is that between the common interlocutory decision on a point of practice concerning which the High Court has given (see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39 ; (1981) 148 CLR 170 at 177) a strong warning that "a tight rein" should be kept on appeals and an interlocutory decision determining a substantive right where leave will more readily be granted. ' The applicant submits that the May decision in respect of the operation of s 56(8) of the APRA Act is attended by sufficient doubt to warrant leave being granted. In the May decision, I held that s 56(8) of the APRA Act prevented disclosure of the draft reports to the Court. The applicant says the doubt arises because the issue is essentially a matter of statutory construction, and there is no other authority dealing with the issue. The applicant submits that the question involves resolving a tension between the apparent prohibition under the APRA Act and the rights of an applicant pursuant to the ADJR Act. The respondent submits that there is clearly no doubt that the May decision is correct and that s 56(8) evinces a clear legislative intention to prohibit production of these documents. It submits that the purposes of the Insurance Act would be subverted if the documents were produced. It refers to s 125 of the Insurance Act which acknowledges that s 56 of the APRA Act prohibits certain disclosures of information under the Insurance Act .
Case: Tyco Australia Pty Ltd v Leighton Contractors Pty Ltd [2005] FCAFC 115 ; (2005) 142 FCR 428
Outcome: referred to
applicant further submits that there is a factual dispute between the parties relating to whether the applicant was subjected to differential treatment. The reports are sought for the purpose of providing evidence to support the applicant's claim. The applicant submits that the Full Federal Court decision in Tyco Australia Pty Ltd v Leighton Contractors Pty Ltd [2005] FCAFC 115 ; (2005) 142 FCR 428 is authority for the proposition that notices to produce may be issued in respect of factual disputes on preliminary discovery applications. In the May decision, I found that there was no relevant factual dispute between the parties. I remain of the opinion that the 'factual dispute' alleged by the applicant is in fact a legal dispute about the effect of facts which are not in dispute, and that the sole purpose of the notice to produce is to elicit further facts on which it can rely and not to resolve any factual disagreement. Nonetheless, I accept that Hill J's judgment in Tyco does not explicitly address the nature and extent of factual disputes which would allow a notice to produce to be issued on an application for preliminary discovery. To my knowledge, there is no other significant authority on this issue and it is a question which is likely to arise in the future. I also accept the respondent's submission that, given the applicant's submission that it has sufficient information to substantiate O 15A r 6(a), it is difficult to see how the applicant could suffer any prejudice if leave to appeal were not granted with respect to the May decision on this point. Further, I consider that the question raised by the applicant on this point is a matter of procedure, for which leave would usually not be granted. If leave were being sought upon this point alone, I would decline to grant leave. However, for the reasons expressed above, I consider it to be appropriate that leave be granted in respect of the s 56(8) point. If leave were granted on that point but not in relation to the notice to produce question, it would make the appeal before the Full Court an academic exercise, because the May decision would be ultimately unaffected regardless of the findings of the Full Court.
Case: Applicant S v Minister for Immigration, Multicultural and Indigenous Affairs [2004] HCA 25 ; (2004) 206 ALR 242
Outcome: referred to
At [16] the Magistrate considered the test of determining a particular social group, for the purposes of the Convention, as stated by the High Court in Applicant A which was considered and clarified in Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 ; (2004) 206 ALR 242.
Case: Bhupinder Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 1014 at [30]
Outcome: cited
It is true that in the present case the Tribunal's finding on relocation was an independent line of reasoning. It rests upon a finding of fact that the appellant would be able to find safety elsewhere in Colombo from those guerrillas who threatened him with death in his home area. Findings of fact are of course not open to review, but if the Tribunal failed to address an integer of the appellant's claim for protection or misunderstood it, those considerations may infect the approach taken to the question of relocation; see Bhupinder Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 1014 at [30] ; see also Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1706 at [10] .
Case: NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 ; (2004) 144 FCR 1
Outcome: cited
In reviewing the appellant's claim, the Tribunal was required to consider a claim that was "squarely" raised on the material before it. The claim must be sufficiently apparent on the material. What is or is not clearly raised is not to be determined by an exercise analogous to parsing and analysing a pleading. Nor is the Tribunal required to be constructive or creative in its approach to the material before it; see NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 ; (2004) 144 FCR 1 at [55] [62]. 38 However, it seems to me that this contention was not "squarely" before the Tribunal within the principles stated in NABE . The statement in the final paragraph of the passage quoted at [4] shows that what was put before the Tribunal was that, in a practical sense, the State was unable to provide protection. It is true that the appellant refers to the lack of resources, and to membership of a social group, but this serves to emphasise that it is the inability of the State to allocate resources to victims of guerrillas that explains the lack of protection. 39 The claim was not put to the Tribunal as one of singling out a group of people to whom protection would be available because of their common characteristics. It was, as submitted by Mr Kennett, counsel for the first respondent, the recognition of reality that the State cannot protect them. 40 Mr Kennett submitted that in any event the Tribunal rejected the claim on an alternative basis, namely that it would have been reasonably open to the appellant to relocate elsewhere in Columbia.
Case: Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565
Outcome: referred to
The Tribunal observed that there was nothing in the evidence to suggest that the appellant feared persecution by reason of his membership of any other "particular social group". The Tribunal did not accept that the persecution which the appellant fears, being "extortion by guerrillas" bears the requisite connection with one of the five Convention reasons. The Tribunal considered the appellant was targeted because he had a lot of money, so was perceived by guerrillas as a "suitable victim", citing Burchett J, with whom O'Loughlin and RD Nicholson JJ agreed, in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 (" Ram ") at 569. 19 He observed at [17] that these authorities clearly establish that persecutory conduct cannot define a particular group, and that the Tribunal found the appellant was targeted because he had a lot of money in cash as a result of his business. His Honour referred to the comment of Burchett J in Ram at 568-569 that if harmful acts are done purely on an individual basis because of what the individual has done or possesses, the Convention does not apply. The Magistrate stated at [18]:- "There is nothing in the material before the Tribunal to suggest to the Tribunal, or that should have suggested to the Tribunal, that the guerrillas' interest in the applicant was specifically because he was one of a group of business persons whose business generated significant quantities of cash... Clearly, as the Tribunal found, it was that this applicant had cash that was the attractor for the guerrillas. There is nothing to show that the attraction was because the applicant was a member of any wider group. It is this individual characteristic that was the basis for the guerrilla's interest in him..." 20 The Magistrate considered the appellant's submission that the Tribunal did not ask the appellant whether there were others in the same category as him, and observed at [19] that on the appellant's account, anyone with money could be a target of extortion, and there was nothing to indicate that it was specific to businesspersons. He stated at [20] that it was not for the Tribunal to "make an applicant's case for him".
Case: Randhawa v Minister for Immigration, Local Government and Ethnic Affai rs (1994) 52 FCR 437
Outcome: referred to
Furthermore, the Tribunal observed that even if it were satisfied that the appellant had a well founded fear of persecution in his local area, it considered he could relocate to somewhere else in Colombia. The Tribunal noted that the appellant had done so in September 1998 and remained in this new location until February 1999, when he left the country. The Tribunal concluded that it would be reasonable in all the circumstances to expect the appellant to relocate elsewhere in Columbia, as there were no language or other practical barriers preventing the appellant from doing so, if he considered he could not continue to live safely in his local area: see Randhawa v Minister for Immigration, Local Government and Ethnic Affai rs (1994) 52 FCR 437 at 440 443. 11 The Tribunal concluded that the appellant did not have a well founded fear of persecution for a Convention reason. 12 The appellant's primary contention before the Federal Magistrate, which bears some relevance to the appeal though the appellant seeks to rely on a new ground on the appeal was that the Tribunal erred in that, having made a finding that the appellant was targeted because he was in possession of cash as a result of his business, it considered the appellant's claim as being based on membership of a social group of "victims of guerrilla groups". The appellant contended that the Tribunal ought to have considered the appellant's membership of another social group, that of "businessmen in cash producing businesses exposing them to increased risk of extortion".
Case: Singh v Minister for Immigration and Multicultural and Indigenous Affairs (2000) FCA 1706
Outcome: referred to
It is true that in the present case the Tribunal's finding on relocation was an independent line of reasoning. It rests upon a finding of fact that the appellant would be able to find safety elsewhere in Colombo from those guerrillas who threatened him with death in his home area. Findings of fact are of course not open to review, but if the Tribunal failed to address an integer of the appellant's claim for protection or misunderstood it, those considerations may infect the approach taken to the question of relocation; see Bhupinder Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 1014 at [30] ; see also Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1706 at [10] .
Case: VBAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965
Outcome: cited
Where a decision of the Tribunal rests on two or more independent lines of reasoning, it is necessary for an applicant to demonstrate error in each line of reasoning in order to succeed on an application for review or on appeal; VBAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [25] , [33].
Case: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158
Outcome: cited
The argument on appeal was not run before the learned Federal Magistrate. However, the argument had some merit and I would give leave to run it in accordance with the principle stated by a Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46] - [48] . 45 The orders of the Court will be that the appeal be dismissed with costs.
Case: Autocaps (Aust) Pty Ltd and Others v Pro-Kit Pty Ltd and Another 46 IPR 339
Outcome: referred to
Court notes that Mr Wynne provided his evidence in chief based upon answers he gave to specific questions from Technicon's solicitors that sought his opinion relating to the differences and similarities between the Technicon pan and the registered design. However, it is not of assistance to catalogue the precise differences and similarities, as this is not the test to be applied. Rather, it is 'the overall appearance of the registered design and the alleged infringing article that must be compared' : see Autocaps (Aust) Pty Ltd and Others v Pro-Kit Pty Ltd and Another 46 IPR 339 per Finkelstein J at [83]; see also Tu and Another v Pakway Australia Pty Ltd (t/as Pakway Plastics) and Others (2004) 62 IPR 637 at [106]-[107]. In Autocaps Finkelstein J held at [83]: To determine whether there has been an obvious imitation (when there is not an exact replication) the question is whether, based on the overall impression to be gained from the design and the alleged infringing article, there is substantial similarity between them. On first impressions, the bases of the Technicon pan and the registered design, with the bolt holes located in the same position on each, are identical; the shrouds with rear humps are the same; and the bowls give the same appearance, as do the rims and the throats.