mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Argus Real Estate Holdings Pty Ltd v Lyristakis [2002] FCAFC 256
Outcome: cited
But this Court should not be left to speculate. Grounds of Appeal should be drafted in such a manner as to expose to both the respondents and to this Court the errors alleged to have been committed. An unrepresented party has no licence to not comply with O 52, r 13(2)(b) of the Federal Court Rules 1979 (Cth). That rule provides that a notice of appeal shall state " briefly, but specifically, the grounds relied upon in support of the appeal " . In Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 , 55 IPR 354 Branson J observed of this provision : [4] A ground of appeal is a basis upon which the appellant will contend that the judgment, or a part of the judgment, should be set aside or varied by the Court in the exercise of its appellate jurisdiction. Not every grievance entertained by a party, or its legal advisors, in respect of the factual findings or legal reasoning of the primary judge will constitute a ground of appeal. Findings as to subordinate or basic facts will rarely, if ever, found a ground of appeal. Even were the Full Court to be persuaded that different factual findings of this kind should have been made, this would not of itself lead to the judgment, or part of the judgment, being set aside or varied. This result would be achieved, if at all, only if the Full Court were persuaded that an ultimate fact in issue had been wrongly determined. The same applies with respect to steps in the primary judge's process of legal reasoning. Although alleged errors with respect to findings as to subordinate or basic facts, and as to steps in a process of legal reasoning leading to an ultimate conclusion of law, may be relied upon to support a ground of appeal, they do not themselves constitute a ground of appeal. [5] A useful practical guide is that a notice of appeal which cannot be used to provide a sensible framework for the appellant's submissions to the Full Court is almost certainly a notice of appeal which fails to comply with the requirements of O52 r13(2)(b). Neither the notice of appeal nor the document containing the revised grounds of appeal was, or could have been, so utilised in this case. See also: Commonwealth v Evans [2004] FCA 654 at [35] , 81 ALD 402 ; Argus Real Estate Holdings Pty Ltd v Lyristakis [2002] FCAFC 256 at [10] per Spender and Miles JJ.
Case: Commonwealth v Evans [2004] FCA 654
Outcome: cited
But this Court should not be left to speculate. Grounds of Appeal should be drafted in such a manner as to expose to both the respondents and to this Court the errors alleged to have been committed. An unrepresented party has no licence to not comply with O 52, r 13(2)(b) of the Federal Court Rules 1979 (Cth). That rule provides that a notice of appeal shall state " briefly, but specifically, the grounds relied upon in support of the appeal " . In Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 , 55 IPR 354 Branson J observed of this provision : [4] A ground of appeal is a basis upon which the appellant will contend that the judgment, or a part of the judgment, should be set aside or varied by the Court in the exercise of its appellate jurisdiction. Not every grievance entertained by a party, or its legal advisors, in respect of the factual findings or legal reasoning of the primary judge will constitute a ground of appeal. Findings as to subordinate or basic facts will rarely, if ever, found a ground of appeal. Even were the Full Court to be persuaded that different factual findings of this kind should have been made, this would not of itself lead to the judgment, or part of the judgment, being set aside or varied. This result would be achieved, if at all, only if the Full Court were persuaded that an ultimate fact in issue had been wrongly determined. The same applies with respect to steps in the primary judge's process of legal reasoning. Although alleged errors with respect to findings as to subordinate or basic facts, and as to steps in a process of legal reasoning leading to an ultimate conclusion of law, may be relied upon to support a ground of appeal, they do not themselves constitute a ground of appeal. [5] A useful practical guide is that a notice of appeal which cannot be used to provide a sensible framework for the appellant's submissions to the Full Court is almost certainly a notice of appeal which fails to comply with the requirements of O52 r13(2)(b). Neither the notice of appeal nor the document containing the revised grounds of appeal was, or could have been, so utilised in this case. See also: Commonwealth v Evans [2004] FCA 654 at [35] , 81 ALD 402 ; Argus Real Estate Holdings Pty Ltd v Lyristakis [2002] FCAFC 256 at [10] per Spender and Miles JJ.
Case: Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6
Outcome: considered
Indeed, the Tribunal's reasons set forth a detailed account of the evidence before it and a detailed account as to its " Findings and reasons " based upon the evidence. Findings were made on " material questions of fact " and reference made to the evidence upon which those findings were based. The reasons of the Tribunal, it is considered, " inform " the Appellant (and others) as to why the application for review was unsuccessful. Those reasons are not to be scrutinised in any " over-zealous " manner seeking to discern some inadequacy by the way in which the reasons have been expressed: cf Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 , 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. 29 The second Ground of Appeal is also rejected. 30 The third Ground of Appeal asserts a jurisdictional error by reason of the fact that the Tribunal " mentioned that, ' the Tribunal does not accept that the applicant's business suffered losses as a result of a harm from Hindu' " and thereafter the fact that the Tribunal " mentioned that the Tribunal has accepted that the applicant's business has suffered losses in India and has been forced to close ".
Case: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v NAMW [2004] FCAFC 264
Outcome: followed
This aspect of the first Ground of Appeal also does not prevail. Section 424A(3)(a) excludes from the operation of s 424A information " that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member ". This provision imposes one test and does not contain two disjunctive elements; that is to say, the provision is referring to information that is not specifically about an applicant or another person (such as a witness) but is " by way of contradistinction about a class of persons of which an applicant or the other person is a member ": Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v NAMW [2004] FCAFC 264 at [64] , [2004] FCAFC 264 ; 140 FCR 572 at 586 per Beaumont J; see also Merkel and Hely JJ at [138]. 20 A review of what is understood to be the " information " only exposes information that is " not specifically about " the Appellant. 21 The " information " set forth by the Tribunal contains an outline of the formation of the " People's War Group ", its aims and ideology and an extract of a United States Department of State Country Reports on Human Rights Practices 2000 . Further " information " is also set forth by the Tribunal as to freedom of religion in India and a Report from the UK Home Office on communal violence. None of this " information " refers at all to the Appellant.
Case: Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1
Outcome: followed
The findings of fact made by the Tribunal were findings open to it, especially bearing in mind the adverse findings which had been made as to credit. If a tribunal does not believe a particular witness, no detailed reasons need be given for those adverse findings: Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 , 168 ALR 407. Justice McHugh there concluded: [67] In addition, the prosecutor alleges that the Tribunal breached s430(1) by failing to set out reasons for its finding that the prosecutor's claim that members of PLOTE tried to recruit him were "utterly implausible". However, this was essentially a finding as to whether the prosecutor should be believed in his claim -- a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. ... 34 The final Ground of Appeal is also rejected. 35 The Orders of the Court are : 1. The appeal be dismissed. 2. The Appellant to pay the costs of the First Respondent of and incidental to the appeal. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 6 May 2008 Counsel for the Appellant The Appellant appeared in person Counsel for the First Respondent: T Reilly Solicitor for the First Respondent: N Johnson (Sparke Helmore) Date of Hearing: 6 May 2008 Date of Judgment: 6 May 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/614.html
Case: SAAP v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 24
Outcome: followed
Section 424A(1) requires the Tribunal to provide " clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review ". It is a provision which imposes a mandatory requirement and a breach of that section constitutes jurisdictional error: SAAP v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 24 at [77] per McHugh J, at [173] per Kirby J, at [208] per Hayne J, [2005] HCA 24 ; 228 CLR 294 ; SZBYR v Minister for Immigration &amp; Citizenship [2007] HCA 26 at [13] , [2007] FCA 26 ; 235 ALR 609 at 614 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
Case: Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157
Outcome: followed
But this Court should not be left to speculate. Grounds of Appeal should be drafted in such a manner as to expose to both the respondents and to this Court the errors alleged to have been committed. An unrepresented party has no licence to not comply with O 52, r 13(2)(b) of the Federal Court Rules 1979 (Cth). That rule provides that a notice of appeal shall state " briefly, but specifically, the grounds relied upon in support of the appeal " . In Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 , 55 IPR 354 Branson J observed of this provision : [4] A ground of appeal is a basis upon which the appellant will contend that the judgment, or a part of the judgment, should be set aside or varied by the Court in the exercise of its appellate jurisdiction. Not every grievance entertained by a party, or its legal advisors, in respect of the factual findings or legal reasoning of the primary judge will constitute a ground of appeal. Findings as to subordinate or basic facts will rarely, if ever, found a ground of appeal. Even were the Full Court to be persuaded that different factual findings of this kind should have been made, this would not of itself lead to the judgment, or part of the judgment, being set aside or varied. This result would be achieved, if at all, only if the Full Court were persuaded that an ultimate fact in issue had been wrongly determined. The same applies with respect to steps in the primary judge's process of legal reasoning. Although alleged errors with respect to findings as to subordinate or basic facts, and as to steps in a process of legal reasoning leading to an ultimate conclusion of law, may be relied upon to support a ground of appeal, they do not themselves constitute a ground of appeal. [5] A useful practical guide is that a notice of appeal which cannot be used to provide a sensible framework for the appellant's submissions to the Full Court is almost certainly a notice of appeal which fails to comply with the requirements of O52 r13(2)(b). Neither the notice of appeal nor the document containing the revised grounds of appeal was, or could have been, so utilised in this case. See also: Commonwealth v Evans [2004] FCA 654 at [35] , 81 ALD 402 ; Argus Real Estate Holdings Pty Ltd v Lyristakis [2002] FCAFC 256 at [10] per Spender and Miles JJ.
Case: SZJJC v Minister for Immigration &amp; Citizenship [2007] FMCA 1986
Outcome: cited
A reconstituted Tribunal heard the application and again the decision not to grant a Protection (Class XA) Visa was affirmed. Again the Tribunal made adverse findings as to the applicant's credit. The Federal Magistrates Court dismissed an application to review this subsequent decision of the Tribunal: SZJJC v Minister for Immigration &amp; Citizenship [2007] FMCA 1986. 5 The proceeding presently before this Court is an appeal against the decision of the Federal Magistrates Court. The Grounds of Appeal seek to raise three contentions, namely: (i) that there has been a breach of s 424A(1) and (3) of the Migration Act 1958 (Cth); (ii) that there has been a breach of s 430 of the 1958 Act; and (iii) that the Tribunal made a " jurisdictional error when the Tribunal mentioned that, 'the Tribunal does not accept that the applicant's business suffered losses as a result of a harm from Hindu.' Then the Tribunal mentioned that the Tribunal has accepted that the applicant's business has suffered losses in India and has been forced to close." None of these Grounds has been made out and the appeal is, accordingly, dismissed. No error has been demonstrated in respect to the reasons for decision of the learned Federal Magistrate. 6 The Appellant appeared before the Court this afternoon unrepresented, although he did have the assistance of an interpreter.
Case: VHAJ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 186
Outcome: followed
This class of " information " is that which falls within s 424A(3)(a): VHAJ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 186 , 131 FCR 80. Justice Kenny there referred to information about entry rights of non-nationals and considered that such information was " just about " a class of persons. Her Honour continued: [50] In reaching this conclusion, it is helpful to consider other instances in which a similar question has arisen. One example is country information. It is usual for the Tribunal to have regard to information about the social, political, religious and other conditions prevailing in a country relevant to an applicant's claim for refugee status, with a view to assessing whether other individuals who share his or her racial, religious, political, social or other attributes suffer treatment of a kind amounting to persecution on Convention grounds in that country. Sometimes information of this kind concerns religious practice, government elections, educational opportunities or other matters. This kind of country information is relevant to the Tribunal's decision-making task only because the applicant falls within the class of persons who share an attribute, which, according to his or her claim, gives rise to a well-founded fear of persecution in the country concerned. In this circumstance, the information does not cease to be information "just about" a class of persons simply because it can also be characterised as information about religious practice, government elections or educational opportunities. It has been repeatedly held that information of this kind falls within para424A(3)(a) of the [Migration] Act ... Justice Downes agreed. His Honour considered that " Official and semi-official information contained in documents assessing conditions in countries from which persons seeking refugee status regularly come ... has been held to fall within para 424A(3)(a) ": at [71]. 23 In any event, it should be noted that the Tribunal disbelieved the evidence of the now Appellant as to his association with the " People's War Group ". The Tribunal's relevant finding was as follows: Having considered this evidence, the Tribunal does not accept that the applicant is, or has been, a member of the PWG. Nor does the Tribunal accept that the applicant has been a member of the All India Revolutionary Students Federation (AIRSF) or a member of the Communist Party of India. The Tribunal does not accept that the applicant has been targeted or in any way harmed by police or Hindus generally because of his involvement or association with the PWG or that he has been targeted by the PWG because he has attempted to resign from the PWG and/or because he has attempted to join other political parties. The Tribunal also does not accept that the applicant lost a child as a result of his membership or association with the PWG, that his house was bombed or that his wife was harmed as a result of his membership/association with the PWG. 24 The first Ground of Appeal is thus rejected.
Case: Haydon v Magistrates Court [2001] SASC 65 ; (2001) 87 SASR 448
Outcome: cited
Full Court held that the applicability of PII was a question of substantive law, appellable on its merits and that in applying PII in civil proceedings, the Court should undertake a balancing exercise to determine whether the public interest which requires that documents privileged from production by PII should not be produced outweighs the public interest that a court of justice performing its functions should not be denied access to relevant evidence. Critically, the Full Court conformably with the reasoning in Haydon v Magistrates Court [2001] SASC 65 ; (2001) 87 SASR 448 , held that "the partial disclosure of an informer's identity, even to the person informed against, is not conclusive" and that immunity from further disclosure was not necessarily lost by the partial disclosure of informers' identities. The Full Court decided that the documents were protected from production as they did not have sufficient importance to the applicants' conduct of the litigation to outweigh the importance of not disclosing the identity of the informers. (In the hearing of the present motions, Mr Watson said, and I accept his evidence, that the applicants and their legal advisers were unaware up until delivery of the Full Court's reasons for judgment on 4 July 2008 of the basis of ASIC's claim for PII and, in particular, were unaware that that claim rested solely on the ground of informer privilege. (I analyse his evidence later in these reasons)). The applicants applied for special leave to appeal to the High Court. ASIC filed a summary of its argument for the purpose of the leave application. In that summary ASIC stated: "The basis for ASIC's claim of public interest immunity was that various documents produced on subpoena would (directly or indirectly) identify some informants who had given ASIC information in its investigations."
Case: Guss v Magistrates' Court of Victoria [1998] 2 VR 113
Outcome: cited
and Multiplex submitted that a second interlocutory application will be an abuse of process if it is not based upon fresh material which was not available at the time of the original interlocutory application or a material change in circumstances since that application. In Christie , Brooking JA and Hayne JA held that as the purported new material had been available at the time of the first application and as the applicant had not offered any explanation for the reason why it was not being adduced, that the second application should have been stayed as an abuse of process. Charles JA dissented and said at 610-611: "I do not think it is open to this court to adopt a rule which would preclude, as an abuse of process, the making of a second application for an extension of time simply because the applicant seeks to bring forward additional relevant facts which would not satisfy the 'fresh evidence' rule. ... ... I conclude that it is not possible for this court to adopt a rule which would preclude an unsuccessful applicant for interlocutory orders from repeating the application, on the ground of abuse of process, simply because the applicant sought to rely on additional relevant facts which did not amount to fresh evidence. Some other factor must, in my view, be present before an abuse of process is established, although, since the respondent is being faced a second time with an application for extension of time to bring proceedings, the potential for the second application to amount to an abuse is readily apparent." ASIC's written submissions asserted that Batt J's ruling in Guss v Magistrates' Court of Victoria [1998] 2 VR 113 established Christie as a rule of general application.
Case: Global Realty Development Corp (a Dellaware Company) v Dominion Wines Ltd (in liq) (2005) 225 ALR 361
Outcome: cited
applicants submitted that as a matter of principle, a second interlocutory application may be made where there has been a material change in circumstances since the original application was heard, or where there has been discovery of new material which could not reasonably have been put before the Court on the hearing of the original application referring to Manning . The applicants submitted, however, that recent authorities suggest that the ability to make a subsequent application is not limited only to these circumstances, as has been considered in Manning . The applicants submitted that by a majority, the New South Wales Court of Appeal in that case refused to follow Christie . It was submitted that the Court of Appeal held that whether a second or subsequent application should be stayed was ultimately a matter for the discretion of the Court. Further, the applicants submitted that Christie does not stand as a general authority applicable to all interlocutory applications. Instead, the majority decision of Brooking JA and Hayne JA was said to make it clear that they were not laying down a general rule to be applied carte blanche. The decision of Mandie J in Global Realty Development Corp (a Dellaware Company) v Dominion Wines Ltd (in liq) (2005) 225 ALR 361 was cited in support of this proposition.
Case: CCOM Pty Ltd v Jiejing Pty Ltd (1992) 37 FCR 1
Outcome: followed
33 rule 12 of the Federal Court Rules gives a notice to produce the same effect as a subpoena for production. That is to say, compliance with the notice is required and is mandatory unless excused by the Court: CCOM Pty Ltd v Jiejing Pty Ltd (1992) 37 FCR 1 at 3; Trade Practices Commission v Abbco Iceworks Pty Ltd [1994] FCA 1279 ; (1994) 52 FCR 96 at 132; Microsoft Corporation v CX Computer Pty Ltd [2002] FCA 3 ; (2002) 187 ALR 362 at 369, [36] . Order 27 rule 12(1) of the Federal Court Rules provides the failure to comply with the subpoena is contempt of court.
Case: Trade Practices Commission v Abbco Iceworks Pty Ltd [1994] FCA 1279 ; (1994) 52 FCR 96
Outcome: followed
33 rule 12 of the Federal Court Rules gives a notice to produce the same effect as a subpoena for production. That is to say, compliance with the notice is required and is mandatory unless excused by the Court: CCOM Pty Ltd v Jiejing Pty Ltd (1992) 37 FCR 1 at 3; Trade Practices Commission v Abbco Iceworks Pty Ltd [1994] FCA 1279 ; (1994) 52 FCR 96 at 132; Microsoft Corporation v CX Computer Pty Ltd [2002] FCA 3 ; (2002) 187 ALR 362 at 369, [36] . Order 27 rule 12(1) of the Federal Court Rules provides the failure to comply with the subpoena is contempt of court.