mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: MZWHW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 466
Outcome: referred to
This is the second occasion in which the appellants have instituted proceedings for the judicial review of the RRT's decision in January 2002. The grounds or proposed grounds were (1) the RRT's reliance on out-of-date country information and (2) save before Sundberg J, the first appellant's medical condition at the time of the hearing. At first instance and on appeal, the appellants were unsuccessful. The RRT's reliance on country information was the subject of Sundberg J's and the Full Court's consideration. The appellants seek to raise again the very same ground. I accept the first respondent's submission that there is no error shown in his Honour's conclusion that res judicata applied to preclude the appellants from pursuing a second judicial review application on this ground. Res judicata can operate as a bar to a judicial review application in these circumstances: see MZWHW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 466 (" MZWHW ") at [11] referring to Re Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722 (" Wong ") at [71]. 18 The Federal Magistrate's decision was, so it seems to me, a final decision: see MZWHW at [6]; also SZEEO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 546 at [8] - [11] ; NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 975 at [29] ; and MZWZL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1475 at [11] . Accordingly, the appellant did not require leave to appeal.
Case: Re Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722
Outcome: referred to
This is the second occasion in which the appellants have instituted proceedings for the judicial review of the RRT's decision in January 2002. The grounds or proposed grounds were (1) the RRT's reliance on out-of-date country information and (2) save before Sundberg J, the first appellant's medical condition at the time of the hearing. At first instance and on appeal, the appellants were unsuccessful. The RRT's reliance on country information was the subject of Sundberg J's and the Full Court's consideration. The appellants seek to raise again the very same ground. I accept the first respondent's submission that there is no error shown in his Honour's conclusion that res judicata applied to preclude the appellants from pursuing a second judicial review application on this ground. Res judicata can operate as a bar to a judicial review application in these circumstances: see MZWHW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 466 (" MZWHW ") at [11] referring to Re Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722 (" Wong ") at [71]. 16 The issue concerning the first appellant's medical condition formed part of the appellants' application in the High Court and a ground, or proposed ground, of appeal in the Full Court. The Full Court gave detailed consideration to the 'medically unfit' ground in determining whether, if an application to adduce further evidence were made, there would be any basis for the grant of leave. In substance, the Court held that there was no basis for the grant because the proposed ground was untenable in light of what had occurred at the RRT hearing. Even if this were insufficient to attract res judicata because directed to a different issue (namely, whether there was any basis to grant leave to adduce further evidence) from that which arises here, the history of the various proceedings instituted by the appellants discloses that his Honour correctly held the proceeding in the Federal Magistrates Court constituted an abuse of process. This is because, to the extent the appellants relied on the 'medically unfit' ground, these second judicial review proceedings would attract an Anshun estoppel: see Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589. Such an estoppel bars a party from raising any point which properly belonged to the subject of earlier litigation that the party, exercising reasonable diligence, might have brought forward at the time of the earlier proceeding. Plainly enough, the 'medically unfit' ground might have been brought forward for Sundberg J's consideration. Nothing has been established that would attract the discretion that forms part of the Anshun estoppel doctrine: see generally Wong at [49], [61]-[64], [149].
Case: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589
Outcome: referred to
The issue concerning the first appellant's medical condition formed part of the appellants' application in the High Court and a ground, or proposed ground, of appeal in the Full Court. The Full Court gave detailed consideration to the 'medically unfit' ground in determining whether, if an application to adduce further evidence were made, there would be any basis for the grant of leave. In substance, the Court held that there was no basis for the grant because the proposed ground was untenable in light of what had occurred at the RRT hearing. Even if this were insufficient to attract res judicata because directed to a different issue (namely, whether there was any basis to grant leave to adduce further evidence) from that which arises here, the history of the various proceedings instituted by the appellants discloses that his Honour correctly held the proceeding in the Federal Magistrates Court constituted an abuse of process. This is because, to the extent the appellants relied on the 'medically unfit' ground, these second judicial review proceedings would attract an Anshun estoppel: see Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589. Such an estoppel bars a party from raising any point which properly belonged to the subject of earlier litigation that the party, exercising reasonable diligence, might have brought forward at the time of the earlier proceeding. Plainly enough, the 'medically unfit' ground might have been brought forward for Sundberg J's consideration. Nothing has been established that would attract the discretion that forms part of the Anshun estoppel doctrine: see generally Wong at [49], [61]-[64], [149].
Case: Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62
Outcome: referred to
As the Federal Magistrate noted, the relevant standard for assessing an application for summary dismissal is well established: see, e.g., in Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62. Although it must be very clear that summary dismissal is appropriate, no error is shown in his Honour's decision that this standard was met in this case.
Case: SZEEO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 546
Outcome: cited
The Federal Magistrate's decision was, so it seems to me, a final decision: see MZWHW at [6]; also SZEEO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 546 at [8] - [11] ; NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 975 at [29] ; and MZWZL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1475 at [11] . Accordingly, the appellant did not require leave to appeal.
Case: NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 975
Outcome: cited
The Federal Magistrate's decision was, so it seems to me, a final decision: see MZWHW at [6]; also SZEEO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 546 at [8] - [11] ; NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 975 at [29] ; and MZWZL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1475 at [11] . Accordingly, the appellant did not require leave to appeal.
Case: MZWZL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1475
Outcome: cited
The Federal Magistrate's decision was, so it seems to me, a final decision: see MZWHW at [6]; also SZEEO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 546 at [8] - [11] ; NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 975 at [29] ; and MZWZL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1475 at [11] . Accordingly, the appellant did not require leave to appeal.
Case: Alabama, New Orleans, Texas &amp; Pacific Junction Railway Company, In re [1891] 1 Ch 213
Outcome: applied
brief description of the two schemes for which approval is now sought is to be found in what I said when ordering the convening of the scheme meetings: see In the Application of United Medical Protection Limited [2007] FCA 631. The duty of the court when acting under s 411(6) of the Corporations Act 2001 (Cth) has been explained more than once. Nothing is served by going over old ground. It will be sufficient to refer to two short passages from the leading case: In re Alabama, New Orleans, Texas &amp; Pacific Junction Railway Company [1891] 1 Ch 213. First there is the passage from Lindley LJ 238-239. He said: What the Court has to do is to see, first of all, that the provisions of that statute have been complied with; and, secondly, that the majority has been acting bona fide. The Court also has to see that the minority is not being overridden by a majority having interests of its own clashing with those of the minority whom they seek to coerce. Further than that, the Court has to look at the scheme and see whether it is one as to which persons acting honestly, and viewing the scheme laid before them in the interests of those whom they represent, take a view which can be reasonably taken by business men. The Court must look at the scheme, and see whether the Act has been complied with, whether the majority are acting bona fide, and whether they are coercing the minority in order to promote interests adverse to those of the class whom they purport to represent; and then see whether the scheme is a reasonable one or whether there is any reasonable objection to it, or such an objection to it as that any reasonable man might say that he could not approve of it. The other passage is from Fry LJ who at 247 said: Then the next inquiry is Under what circumstances is the Court to sanction a resolution which has been passed approving of a compromise or arrangement? I shall not attempt to define what elements may enter into the consideration of the Court beyond this, that I do not doubt for a moment that the Court is bound to ascertain that all the conditions required by the statute have been complied with; it is bound to be satisfied that the proposition was made in good faith; and, further, it must be satisfied that the proposal was at least so far fair and reasonable, as that an intelligent and honest man, who is a member of that class, and acting alone in respect of his interest as such a member, might approve of it. What other circumstances the Court may take into consideration I will not attempt to forecast. These passages make clear that the court does not simply act on the views of members. On the other hand, if the members are acting with full knowledge and complete information and, also, are acting honestly, they are in a far better position than a judge to decide what is in their best interests.
Case: Commonwealth v Human Rights and Equal Opportunity Commission (1998) 76 FCR 513
Outcome: cited
There are several difficulties in the matter. The first is that the Commission wishes to submit to such order as the Court might make save for costs based upon the comments of the Full Court in Peacock v Human Rights and Equal Opportunity Commission [2005] FCAFC 45 at [38] [40] which in turn referred to the case of Commonwealth v Human Rights and Equal Opportunity Commission (1998) 76 FCR 513. That case in turn referred to Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74. The fountainhead of this jurisprudence, at least in modern times for Australia, is R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13. It is suggested that the role that the Commission has in this case is no different to the role that it had in the other cases in which its participation has been heavily criticized. I will come back to that point in a moment. The application on the part of the Commonwealth was, in effect, sparked by that problem, bearing in mind again the rather trenchant criticism by the Full Court of the lack of the Commonwealth's participation in Peacock [2005] FCAFC 45.
Case: Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74
Outcome: cited
There are several difficulties in the matter. The first is that the Commission wishes to submit to such order as the Court might make save for costs based upon the comments of the Full Court in Peacock v Human Rights and Equal Opportunity Commission [2005] FCAFC 45 at [38] [40] which in turn referred to the case of Commonwealth v Human Rights and Equal Opportunity Commission (1998) 76 FCR 513. That case in turn referred to Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74. The fountainhead of this jurisprudence, at least in modern times for Australia, is R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13. It is suggested that the role that the Commission has in this case is no different to the role that it had in the other cases in which its participation has been heavily criticized. I will come back to that point in a moment. The application on the part of the Commonwealth was, in effect, sparked by that problem, bearing in mind again the rather trenchant criticism by the Full Court of the lack of the Commonwealth's participation in Peacock [2005] FCAFC 45.
Case: Peacock v Human Rights and Equal Opportunity Commission [2005] FCAFC 45
Outcome: referred to
There are several difficulties in the matter. The first is that the Commission wishes to submit to such order as the Court might make save for costs based upon the comments of the Full Court in Peacock v Human Rights and Equal Opportunity Commission [2005] FCAFC 45 at [38] [40] which in turn referred to the case of Commonwealth v Human Rights and Equal Opportunity Commission (1998) 76 FCR 513. That case in turn referred to Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74. The fountainhead of this jurisprudence, at least in modern times for Australia, is R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13. It is suggested that the role that the Commission has in this case is no different to the role that it had in the other cases in which its participation has been heavily criticized. I will come back to that point in a moment. The application on the part of the Commonwealth was, in effect, sparked by that problem, bearing in mind again the rather trenchant criticism by the Full Court of the lack of the Commonwealth's participation in Peacock [2005] FCAFC 45. 6 Leave is not granted to the solicitor for the Commission to withdraw at this stage. The application of Peacock [2005] FCAFC 45 to this case was questioned by me in argument and can be discussed more fully when the matter comes back. 7 The orders I make are those that I have indicated, namely, that the Commonwealth will be added as a respondent on the terms which I have announced. There will be no order for costs of this application. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 20 December 2007 The Applicant appeared in person Solicitor for the First Respondent: Ms S Bangash of Human Rights and Equal Opportunity Commission Solicitor for the Second Respondent: Ms D Watson of Australian Government Solicitor Date of Hearing: 11 December 2007 Date of Judgment: 11 December 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/2066.html
Case: R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13
Outcome: cited
There are several difficulties in the matter. The first is that the Commission wishes to submit to such order as the Court might make save for costs based upon the comments of the Full Court in Peacock v Human Rights and Equal Opportunity Commission [2005] FCAFC 45 at [38] [40] which in turn referred to the case of Commonwealth v Human Rights and Equal Opportunity Commission (1998) 76 FCR 513. That case in turn referred to Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74. The fountainhead of this jurisprudence, at least in modern times for Australia, is R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13. It is suggested that the role that the Commission has in this case is no different to the role that it had in the other cases in which its participation has been heavily criticized. I will come back to that point in a moment. The application on the part of the Commonwealth was, in effect, sparked by that problem, bearing in mind again the rather trenchant criticism by the Full Court of the lack of the Commonwealth's participation in Peacock [2005] FCAFC 45.
Case: Ireland v The Queen (unreported CCA Sup Ct of A, Library Number 9401656, 6 May 1994)
Outcome: cited
applied to the trial judge for restitution orders under s 717 of The Criminal Code (WA). Those orders were made on 20 August 1993. They took the form of orders directing the transfer of moneys and assets to Norilya from accounts and companies apparently controlled by the prospectors. The prospectors each lodged an appeal against their convictions to the Court of Criminal Appeal. Enforcement of the restitution orders was stayed. However the appeals were dismissed on 6 May 1994 Ireland v The Queen (unreported CCA Sup Ct of WA Library Number 9401656, 6 May 1994). The restitution orders made were thereafter enforced. Norilya recovered $5,782,556.94 upon the execution of the orders. Norilya commenced proceedings in the Supreme Court of Western Australia on 14 August 1990 against the prospectors. In their defence to the civil action filed 3 December 1990, the prospectors denied that the samples submitted for assay from the phase 2 and phase 3 drillings contained gold which had been added to those samples. In August 1993 Norilya applied for summary judgment in the civil action in reliance on the convictions of the prospectors. Summary judgment, for damages to be assessed, was granted against each of the prospectors in August 1994. The calculation of the damages in that case would, of course, have had to take account of sums received under the restitution orders.
Case: Easterday v R (2003) 143 A Crim R 154
Outcome: cited
1998 the prospectors lodged a petition for the exercise of the Royal Prerogative of Mercy. The petition was referred to the Court of Criminal Appeal by the Attorney-General pursuant to s 140(1) of the Sentencing Act 1995 (WA). Such a petition is to be heard and determined under the section as if it were an appeal against the convictions. Upon the hearing of the petition the Court quashed the convictions of each of the applicants on 28 March 2003 Easterday v R (2003) 143 A Crim R 154. The result turned upon non-disclosure by the Crown of a document relating to share trading patterns in the market at the relevant time which might have pointed to other persons as responsible for the alleged salting of the assay samples. The failure by the Crown to disclose the report to the defence in a timely fashion was found by Scott J to have put the prospectors in the position where a relevant line of investigation could not be pursued. He was of the view that the Crown's case was a very strong circumstantial evidence case but that notwithstanding that the appeal should be allowed. Steytler J observed (at [233]): the hearing of the appeal before us, the appellants sought to mount a case which was rather different to that advanced by them at trial. They acknowledged that salting had occurred. They conceded that the evidence was overwhelming in that respect. However, they advanced the proposition that it was not them who had salted the tenements and that the fresh or new evidence now available demonstrates that others had both the motive and opportunity to do so. They contend that the absence of this fresh or new evidence at the trial and at their previous appeal deprived them of a real chance of acquittal which would otherwise have existed.'
Case: Easterday v State of Western Australia (2005) 30 WAR 122
Outcome: cited
Court of Criminal Appeal, in a judgment published on 10 June 2005, declared the restitution orders to be null and void. It also held that it had a discretionary power to order the repayment of moneys paid pursuant to a restitution order. The Court gave the parties the opportunity to make submissions as to further orders that should be made Easterday v State of Western Australia (2005) 30 WAR 122.
Case: Easterday v State of Western Australia [2005] WASCA 202
Outcome: cited
28 October 2005, following submissions, the Court said it would further order that Norilya repay to each of the prospectors the amount received by it from that prospector pursuant to the making of the restitution orders. An application for a stay by Norilya was dismissed. Steytler J said: seems to me that in this case, too, the effect of a stay would be that the applicants would not be restored to all that was lost by them as a consequence of the erroneous judgment ... Instead, Norilya would be allowed to benefit from the judgment by retaining money which it would not otherwise have held and to which it has yet to establish any entitlement ... The position would, in reality, be no different than if the Court had declined to make orders for restitution pending the outcome of the civil action. That being so, and given the potential prejudice which that course might work upon the applicants (as a consequence, at least, of what would then be their inability to resort to any funds, which might otherwise have been repaid by Norilya, for the purpose of funding their defence of the civil action), and given also that no other basis has been put forward to support the imposition of a stay, it seems to me that it would be inappropriate to order a stay and I would decline to do so.' v State of Western Australia [2005] WASCA 202 (at [16]) The formal order of the Court of Criminal Appeal required Norilya to repay to Mr Ireland the sum of $1,898,703.33. The judgment for damages which had been entered against each of the prospectors in the civil action in the Supreme Court was set aside by consent on 7 December 2005. Mr Dean Ireland had lodged a debtors petition on 13 March 1995 pursuant to s 55 of the Bankruptcy Act . He became bankrupt on that date. Norilya lodged a proof of debt in the bankrupt estate for the amount of $980,945. This was for the difference between loss and damage suffered by Norilya and the total amount recovered by it from the prospectors under the restitution orders. On 12 April 1996 Norilya received a distribution of $42,430.75 in the bankrupt estate. Mr Ireland was discharged from bankruptcy with effect from 14 March 1998. The civil action in the Supreme Court of Western Australia was commenced between Norilya (then Noranda) and the prospectors on 14 August 1990 by writ of summons. The indorsement on the writ stated that: Plaintiff's claim is for damages for fraudulent misrepresentation, alternatively damages for misleading or deceptive conduct pursuant to sections 10 and 77 of the Fair Trading Act 1987 arising out of representations made by the defendants in or about May, June or July 1990 concerning certain mining tenements near Mt Gibson.'