mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: E v Australian Red Cross Society (1991) 27 FCR 310
Outcome: cited
In Hadid v Lenfest Communications Inc (1996) 70 FCR 403, Hill J at 407 pointed out that, for the purposes of enlivening the Court's power to control access to certain documentation under s 50 of the Federal Court of Australia Act 1976 (Cth), the "hearing of a proceeding" could extend to a directions hearing or an interlocutory process. See also E v Australian Red Cross Society (1991) 27 FCR 310. That view is reflected in, and consistent with, the definition of "hearing" in O1 r 4 of the Rules, namely that "hearing includes any hearing before the Court, whether final or interlocutory, and whether in open court or in chambers". Order 10, referring to the Court's powers at a directions hearing, apparently uses the term "hearing" in r 1(2)(c) in a somewhat more confined sense as a hearing in which the Court proposes to perform an adjudicative function (not necessarily a final adjudication). Order 30 r 1(2)(a) uses the term "trial" to include any interlocutory hearing. In Martin v Abbott Australasia Pty Ltd [1981] 2 NSWLR 430, Hunt J at 434-436 regarded an appeal "after a trial or a hearing on the merits" as including to an appeal from an interlocutory hearing. A similar conclusion was reached by Anderson J in Melbourne &amp; Metropolitan Board of Works v Bevelon Investments Pty Ltd [1977] VR 473 at 475-477.
Case: Martin v Abbott Australasia Ltd [1981] 2 NSWLR 430
Outcome: applied
In Hadid v Lenfest Communications Inc (1996) 70 FCR 403, Hill J at 407 pointed out that, for the purposes of enlivening the Court's power to control access to certain documentation under s 50 of the Federal Court of Australia Act 1976 (Cth), the "hearing of a proceeding" could extend to a directions hearing or an interlocutory process. See also E v Australian Red Cross Society (1991) 27 FCR 310. That view is reflected in, and consistent with, the definition of "hearing" in O1 r 4 of the Rules, namely that "hearing includes any hearing before the Court, whether final or interlocutory, and whether in open court or in chambers". Order 10, referring to the Court's powers at a directions hearing, apparently uses the term "hearing" in r 1(2)(c) in a somewhat more confined sense as a hearing in which the Court proposes to perform an adjudicative function (not necessarily a final adjudication). Order 30 r 1(2)(a) uses the term "trial" to include any interlocutory hearing. In Martin v Abbott Australasia Pty Ltd [1981] 2 NSWLR 430, Hunt J at 434-436 regarded an appeal "after a trial or a hearing on the merits" as including to an appeal from an interlocutory hearing. A similar conclusion was reached by Anderson J in Melbourne &amp; Metropolitan Board of Works v Bevelon Investments Pty Ltd [1977] VR 473 at 475-477.
Case: Melbourne &amp; Metropolitan Board of Works v Bevelon Investments Pty Ltd (1977) VR 473
Outcome: applied
In Hadid v Lenfest Communications Inc (1996) 70 FCR 403, Hill J at 407 pointed out that, for the purposes of enlivening the Court's power to control access to certain documentation under s 50 of the Federal Court of Australia Act 1976 (Cth), the "hearing of a proceeding" could extend to a directions hearing or an interlocutory process. See also E v Australian Red Cross Society (1991) 27 FCR 310. That view is reflected in, and consistent with, the definition of "hearing" in O1 r 4 of the Rules, namely that "hearing includes any hearing before the Court, whether final or interlocutory, and whether in open court or in chambers". Order 10, referring to the Court's powers at a directions hearing, apparently uses the term "hearing" in r 1(2)(c) in a somewhat more confined sense as a hearing in which the Court proposes to perform an adjudicative function (not necessarily a final adjudication). Order 30 r 1(2)(a) uses the term "trial" to include any interlocutory hearing. In Martin v Abbott Australasia Pty Ltd [1981] 2 NSWLR 430, Hunt J at 434-436 regarded an appeal "after a trial or a hearing on the merits" as including to an appeal from an interlocutory hearing. A similar conclusion was reached by Anderson J in Melbourne &amp; Metropolitan Board of Works v Bevelon Investments Pty Ltd [1977] VR 473 at 475-477.
Case: South Australia v Victoria [1911] HCA 17 ; (1911) 12 CLR 667
Outcome: cited
However, O 53 r 1 directs attention not to the District Registry of the AAT in which it heard the matter but to the geographical place, namely the State or Territory, in which the AAT heard the matter. The hearing must be the hearing of the issue in the matter which led to the decision the subject of the appeal. In the present appeal, that issue was the definition of, and extent of, the King Valley wine region. The President sat only in Victoria apart from giving his decision, which he gave in Sydney (so the hearing of the matter may be said to have taken place both in Victoria and New South Wales). The application does not complain of the orders made, or declined, at directions hearings. However, I do not consider it is possible to divorce the location of the directions hearings from "the matter" referred to in O 53 r 1. The hearing to which O 53 r 1 refers is that of the matter itself, and not a particular issue or issues, or a particular step or steps in the process. The term "matter" of course conveys the whole of the controversy before the AAT: South Australia v Victoria [1911] HCA 17 ; (1911) 12 CLR 667 at 675; Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7 ; (1981) 148 CLR 457 at 507-509.
Case: Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7 ; (1981) 148 CLR 457
Outcome: cited
However, O 53 r 1 directs attention not to the District Registry of the AAT in which it heard the matter but to the geographical place, namely the State or Territory, in which the AAT heard the matter. The hearing must be the hearing of the issue in the matter which led to the decision the subject of the appeal. In the present appeal, that issue was the definition of, and extent of, the King Valley wine region. The President sat only in Victoria apart from giving his decision, which he gave in Sydney (so the hearing of the matter may be said to have taken place both in Victoria and New South Wales). The application does not complain of the orders made, or declined, at directions hearings. However, I do not consider it is possible to divorce the location of the directions hearings from "the matter" referred to in O 53 r 1. The hearing to which O 53 r 1 refers is that of the matter itself, and not a particular issue or issues, or a particular step or steps in the process. The term "matter" of course conveys the whole of the controversy before the AAT: South Australia v Victoria [1911] HCA 17 ; (1911) 12 CLR 667 at 675; Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7 ; (1981) 148 CLR 457 at 507-509.
Case: R v Thomson; R v Houlton ( 2000) [2000] NSWCCA 309 ; 49 NSWLR 383
Outcome: cited
her written submissions, the appellant submitted that the Magistrate committed two errors upon sentencing her: (1) Failure to consider all possible alternatives to full-time imprisonment: s 17A of the Crimes Act . That section provides: Restrictions on imposing sentences "(1) A court shall not pass a sentence of imprisonment on any person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case. (2) Where a court passes a sentence of imprisonment on a person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, the court: (a) shall state the reasons for its decision that no other sentence is appropriate; and (b) shall cause those reasons to be entered in the records of the court. (3) The failure of a court to comply with the provisions of this section does not invalidate any sentence. (4) This section applies subject to any contrary intention in the law creating the offence." (2) Failure to apply and properly record the utilitarian discount given for a plea of guilty: R v Thomson; R v Houlton ( 2000) [2000] NSWCCA 309 ; 49 NSWLR 383.
Case: Minister for Immigration; ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57
Outcome: referred to
In Minister for Immigration; ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 the High Court held, when dealing with ss 52 to 63 of the Act , that there was no intention to exclude the operation of common law rules of procedural fairness. In Nais v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 (" Nais" ), Gleeson CJ referred to Bastarache J whom, for the majority in Blencoe v British Columbia (Human Rights Commission) [2000] 2 SCR 307 at 367 [102], said that it was "accepted that the principles of natural justice and the duty of fairness include the right to a fair hearing and that undue delay in the processing of an administrative proceeding that impairs the fairness of the hearing can be remedied". There was, however, no infringement of this principle in this case.
Case: Nais v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77
Outcome: referred to
In Minister for Immigration; ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 the High Court held, when dealing with ss 52 to 63 of the Act , that there was no intention to exclude the operation of common law rules of procedural fairness. In Nais v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 (" Nais" ), Gleeson CJ referred to Bastarache J whom, for the majority in Blencoe v British Columbia (Human Rights Commission) [2000] 2 SCR 307 at 367 [102], said that it was "accepted that the principles of natural justice and the duty of fairness include the right to a fair hearing and that undue delay in the processing of an administrative proceeding that impairs the fairness of the hearing can be remedied". There was, however, no infringement of this principle in this case. 14 Much of the delay in this case can be attributed to the Department's efforts to allow Mr Hassan an opportunity to respond to Ms Kurami's letter of 14 April 2004. Also, the delay must be considered within the context of an application for a spousal visa. Marriage is intended to be a life-long commitment. Thus, a delay of a few months should not prejudice an applicant for a spouse visa. The delay in this case was significantly less than that considered in Nais (41/2 years) where the High Court did find a breach of procedural fairness. In all the circumstances, I do not find that the delay in this case involved a denial of procedural fairness. 15 As the appellant has identified no error in the decisions of the Tribunal or the Federal Magistrate, I would dismiss the appeal with costs. 16 It is open to the appellant to make application to the Minister pursuant to s 351 of the Act , which enables the Minister to make a more favourable decision notwithstanding the decision of the Tribunal. There would be no impediment to him so doing. His would appear to be an appropriate case for making such an application. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate: Dated: 6 April 2006 Applicant appeared in person Counsel for the Respondent: Mr C Symons Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 9 March 2006 Date of Judgment: 9 March 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/379.html
Case: Blencoe v British Columbia (Human Rights Commission) [2000] 2 SCR 307
Outcome: referred to
In Minister for Immigration; ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 the High Court held, when dealing with ss 52 to 63 of the Act , that there was no intention to exclude the operation of common law rules of procedural fairness. In Nais v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 (" Nais" ), Gleeson CJ referred to Bastarache J whom, for the majority in Blencoe v British Columbia (Human Rights Commission) [2000] 2 SCR 307 at 367 [102], said that it was "accepted that the principles of natural justice and the duty of fairness include the right to a fair hearing and that undue delay in the processing of an administrative proceeding that impairs the fairness of the hearing can be remedied". There was, however, no infringement of this principle in this case.
Case: Applicant M172 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 23
Outcome: referred to
Numerous authorities have held that, absent any default by the Tribunal in the fulfilment of its statutory obligations relating to the provision of an invitation to attend a hearing, no ground of procedural unfairness arises because of some default on the part of an agent retained by an applicant. In NBAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1668 , Barnes FM at 33, adopting the observations of Lord Bridge in Regina v Home Secretary; Ex parte Al-Mehdawi (1990) 1 AC 876 at 898, rejected the submission that fraud by an agent constituted jurisdictional error. In SZBSZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 779 Bennett J considered the circumstance in which an applicant claimed his migration agent had acted without consultation or instructions and in consequence an invitation to attend a Tribunal hearing was declined. Her Honour concluded that since the Tribunal's letter was forwarded in accordance with the relevant statutory requirements, there was no failure to give the applicant the opportunity to appear before the Tribunal, even though the applicant claimed that he had never received it. Accordingly the Tribunal was entitled to make a decision on the application for review in the absence of the applicant. The same conclusions were made in Applicant M172 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 23. In SZBBL v Minister for Immigration [2004] FMCA 185 , Driver FM rejected the submission that there had been a denial of natural justice because of default on the part of the migration agent. His Honour's decision was upheld on appeal in this Court by Tamberlin J: see SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834.
Case: Cameron v Cole [1944] HCA 5 ; (1944) 68 CLR 571
Outcome: referred to
In SZFDE the majority found that the legislative scheme contained in Div 4 of the Act required an invitation to be given to the appellant. Such invitation had been provided, and the decision not to attend resulted from the dishonest conduct of the agent. However, such conduct did not corrupt the decision or the statutory process. The majority considered that authorities which have upheld challenges to orders made against a party by a court in their absence through no fault of their own, such as Taylor v Taylor [1979] HCA 38 ; (1979) 143 CLR 1 and Cameron v Cole [1944] HCA 5 ; (1944) 68 CLR 571, are distinguishable because of the absence of the statutory scheme provided by the Act.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553
Outcome: distinguished
The sole basis for the assertion that there has been procedural error arises in consequence of the alleged fraudulent conduct by the appellant's nominated agent arising from his advice to the appellant that he would attend the hearing on his behalf and that it was not necessary for the appellant to attend. The appellant claims that there was a failure to comply with s 425 of the Act because he was not provided with a ' real and meaningful invitation ', as considered in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553 at [37] , because of the conduct of the migration agent. 26 In SCAR the Full Court recognised that under certain circumstances the invitation process prescribed by s 425 of the Act may not have been fulfilled (see also SZFML ). However, in SCAR the Full Court found that the Tribunal innocently provided unfair treatment to the appellant in circumstances where the appellant was ill. In Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050 ; (2002) 122 FCR 322, the Tribunal provided a translator who was unable to speak the appellant's language. In VBAB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804 ; (2002) 121 FCR 100, the appellant was misled by statements of the Tribunal. In Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCR 359, the Tribunal declined to grant an adjournment of the hearing, knowing that the appellant was incapacitated. Although the requirement of s 425 had been followed, the invitation was held to be 'an empty gesture and a denial of procedural fairness'(see Hely J at 366 [36]).
Case: NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24
Outcome: referred to
In NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 the Court referred to the ' degree of irregularity ' that an applicant would need to show in order to obtain relief. Nicholls FM concluded that the details in the MARA Notice and the prospective witness' proposed statement did not ' bridge the gulf between the agent's conduct which led to his deregistration and the elements necessary to prove fraud (or for that matter 'something akin to fraud' whatever that may be) .'
Case: NBAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1668
Outcome: considered
Numerous authorities have held that, absent any default by the Tribunal in the fulfilment of its statutory obligations relating to the provision of an invitation to attend a hearing, no ground of procedural unfairness arises because of some default on the part of an agent retained by an applicant. In NBAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1668 , Barnes FM at 33, adopting the observations of Lord Bridge in Regina v Home Secretary; Ex parte Al-Mehdawi (1990) 1 AC 876 at 898, rejected the submission that fraud by an agent constituted jurisdictional error. In SZBSZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 779 Bennett J considered the circumstance in which an applicant claimed his migration agent had acted without consultation or instructions and in consequence an invitation to attend a Tribunal hearing was declined. Her Honour concluded that since the Tribunal's letter was forwarded in accordance with the relevant statutory requirements, there was no failure to give the applicant the opportunity to appear before the Tribunal, even though the applicant claimed that he had never received it. Accordingly the Tribunal was entitled to make a decision on the application for review in the absence of the applicant. The same conclusions were made in Applicant M172 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 23. In SZBBL v Minister for Immigration [2004] FMCA 185 , Driver FM rejected the submission that there had been a denial of natural justice because of default on the part of the migration agent. His Honour's decision was upheld on appeal in this Court by Tamberlin J: see SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834.
Case: Regina v Home Secretary; Ex parte Al-Mehdawi (1990) 1 AC 876
Outcome: considered
Numerous authorities have held that, absent any default by the Tribunal in the fulfilment of its statutory obligations relating to the provision of an invitation to attend a hearing, no ground of procedural unfairness arises because of some default on the part of an agent retained by an applicant. In NBAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1668 , Barnes FM at 33, adopting the observations of Lord Bridge in Regina v Home Secretary; Ex parte Al-Mehdawi (1990) 1 AC 876 at 898, rejected the submission that fraud by an agent constituted jurisdictional error. In SZBSZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 779 Bennett J considered the circumstance in which an applicant claimed his migration agent had acted without consultation or instructions and in consequence an invitation to attend a Tribunal hearing was declined. Her Honour concluded that since the Tribunal's letter was forwarded in accordance with the relevant statutory requirements, there was no failure to give the applicant the opportunity to appear before the Tribunal, even though the applicant claimed that he had never received it. Accordingly the Tribunal was entitled to make a decision on the application for review in the absence of the applicant. The same conclusions were made in Applicant M172 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 23. In SZBBL v Minister for Immigration [2004] FMCA 185 , Driver FM rejected the submission that there had been a denial of natural justice because of default on the part of the migration agent. His Honour's decision was upheld on appeal in this Court by Tamberlin J: see SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834.
Case: SZBBL v Minister for Immigration [2004] FMCA 185
Outcome: followed
Numerous authorities have held that, absent any default by the Tribunal in the fulfilment of its statutory obligations relating to the provision of an invitation to attend a hearing, no ground of procedural unfairness arises because of some default on the part of an agent retained by an applicant. In NBAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1668 , Barnes FM at 33, adopting the observations of Lord Bridge in Regina v Home Secretary; Ex parte Al-Mehdawi (1990) 1 AC 876 at 898, rejected the submission that fraud by an agent constituted jurisdictional error. In SZBSZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 779 Bennett J considered the circumstance in which an applicant claimed his migration agent had acted without consultation or instructions and in consequence an invitation to attend a Tribunal hearing was declined. Her Honour concluded that since the Tribunal's letter was forwarded in accordance with the relevant statutory requirements, there was no failure to give the applicant the opportunity to appear before the Tribunal, even though the applicant claimed that he had never received it. Accordingly the Tribunal was entitled to make a decision on the application for review in the absence of the applicant. The same conclusions were made in Applicant M172 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 23. In SZBBL v Minister for Immigration [2004] FMCA 185 , Driver FM rejected the submission that there had been a denial of natural justice because of default on the part of the migration agent. His Honour's decision was upheld on appeal in this Court by Tamberlin J: see SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834.