mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214
Outcome: cited
In SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at [231] , Allsop J construed this as referring to a consideration of whether the breach of that duty to accord procedural fairness was or was not trivial; in the operation of the principles of procedural fairness (and the statutory provisions providing it) adherence to the mandated process and procedure is vital. It is not a proper basis, in the exercise of discretion, to refuse relief for failure to comply with s 359A of the Act simply because no injustice had resulted or ' because to do so would be in the opinion of the Court futile or that the case is so weak that it does not warrant appellate intervention ' ( SZGPB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (No 2) [2006] FCA 587 at [56] per Rares J). 24 However, relief may be withheld if there is a basis, otherwise unimpeached, upon which the decision was reached, unaffected by the failure to accord procedural fairness or to comply with the required statutory procedure. Aala and SAAP leave open a refusal of relief if it is shown that the decision-maker was bound by the governing statute to refuse the application ( SZEEU at [232] per Allsop J). In those circumstances, the grant of relief would lack utility. 27 In Wang , as here, futility is not to be judged by asking what decision the Tribunal would have made even if it had complied with s 359A of the Act or by asking if a decision by the Tribunal in the future to refuse the application were inevitable because there has been no relevant change of circumstances. Justice Besanko was of the view, consistent with Allsop J in SZEEU , that relief may be refused if, irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse the application (at [32]). In the present case, as in Wang , the Tribunal was so bound and it was not possible that the Tribunal would reach a different result (cf Tran v Minister for Immigration and Multicultural Affairs [2006] FCA 1229 ; (2006) 154 FCR 536). I agree, with respect, with the reasoning of Besanko J.
Case: SZGPB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (No 2) [2006] FCA 587
Outcome: cited
In SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at [231] , Allsop J construed this as referring to a consideration of whether the breach of that duty to accord procedural fairness was or was not trivial; in the operation of the principles of procedural fairness (and the statutory provisions providing it) adherence to the mandated process and procedure is vital. It is not a proper basis, in the exercise of discretion, to refuse relief for failure to comply with s 359A of the Act simply because no injustice had resulted or ' because to do so would be in the opinion of the Court futile or that the case is so weak that it does not warrant appellate intervention ' ( SZGPB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (No 2) [2006] FCA 587 at [56] per Rares J).
Case: SZBYR v Minister for Immigration &amp; Citizenship [2007] HCA 26
Outcome: cited
As Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ said in SZBYR v Minister for Immigration &amp; Citizenship [2007] HCA 26 at [29] , '[t] he present is a case in which no useful result could ensue from the grant of the relief desired by [the appellant] . This is so because...the decision-maker was bound by the governing statute to refuse [the appellant's case]' (see also [87] per Kirby J and [91] per Hayne J). It follows that relief should be refused.
Case: Tran v Minister for Immigration and Multicultural Affairs [2006] FCA 1229 ; (2006) 154 FCR 536
Outcome: distinguished
In Wang , as here, futility is not to be judged by asking what decision the Tribunal would have made even if it had complied with s 359A of the Act or by asking if a decision by the Tribunal in the future to refuse the application were inevitable because there has been no relevant change of circumstances. Justice Besanko was of the view, consistent with Allsop J in SZEEU , that relief may be refused if, irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse the application (at [32]). In the present case, as in Wang , the Tribunal was so bound and it was not possible that the Tribunal would reach a different result (cf Tran v Minister for Immigration and Multicultural Affairs [2006] FCA 1229 ; (2006) 154 FCR 536). I agree, with respect, with the reasoning of Besanko J.
Case: Weerasinghe v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 261
Outcome: followed
Fundamental to the Tribunal's decision was its understanding that the relevant test of "substantial compliance" was as discussed in Baidakova v Minister for Immigration &amp; Multicultural Affairs [1998] FCA 1436 at 6. The Tribunal applied the "substantial compliance" test to Condition 8202(3)(b). However, the requirement in Condition 8202(3)(b) to provide a certificate cannot, logically, be satisfied by substantial compliance. Either Condition 8202(3)(b) is satisfied or it is not; either there is a certificate of an "at least satisfactory" academic result or there is not ( Jayasekara v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCAFC 167 ; (2006) 156 FCR 199 per Heerey and Sundberg JJ). It is not in dispute that the education provider, the University of Sydney ('the University') had not provided the necessary certificate. There was no compliance with Condition 8202(3)(b). There is ' no scope for operation of the distinction between strict compliance and substantial compliance ' in determining whether Item 8202(3)(b) of Sch 8 of the Regulations is satisfied ( Weerasinghe v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 261 at [10] , cited in Jayasekara at [5]).
Case: Australian Competition and Consumer Commission v Australian Securities and Investments Commission [2000] NSWSC 316 ; (2000) 174 ALR 688
Outcome: referred to
In my view, the facts recounted above show that the Commissioner is a person aggrieved by the deregistration of JHAF and has standing to apply for reinstatement of its registration. The public responsibilities of the Commissioner can be compared with those of the Australian Competition and Consumer Commission, which was acknowledged to have standing to apply for a reinstatement under s 601AH in Australian Competition and Consumer Commission v Australian Securities and Investments Commission [2000] NSWSC 316 ; (2000) 174 ALR 688. 17 JHAF reduced its capital and paid a dividend in late 2001 and made a second reduction of its capital in 2003. These three transactions, most significantly the first two in 2001, involved a denuding of the company of its assets. The Commissioner wishes to have all three investigated by a liquidator with a view to the possible replenishment of JHAF's coffers to enable it to pay tax. 18 JHAF was incorporated by registration on 17 September 1999. One share in its capital was issued to its parent company upon incorporation and a further 742,611 shares were issued to its parent on 23 February 2000. All 742,612 shares were of $1,000 each and were issued as having been fully paid in cash. The immediate parent company which held all of the shares was JHFBV, to which I referred at [10] above. 80 In Australian Competition and Consumer Commission v Australian Securities and Investments Commission [2000] NSWSC 316 ; (2000) 174 ALR 688 , Austin J addressed the question "When should the Court be satisfied that it is just that the company's registration be reinstated?". His Honour said (at [27]), with reference to authorities: The wording of the section is very broad, and the cases confirm that it gives the Court a wide discretion. The Court takes into account the circumstances in which the company came to be dissolved; whether, if the order were made, good use could be made of it; and whether any person is likely to be prejudiced by the reinstatement...
Case: JP Morgan Portfolio Services Ltd v Deloitte Touche Tohmatsu [2008] FCA 433 ; (2008) 167 FCR 212
Outcome: approved
Section 509(5) of the Corporations Act provided that ASIC must deregister a company at the end of a period three months after the liquidator lodges with ASIC a return of the holding of the final meeting. Mr Green filed that return on 23 May 2005. ASIC deregistered JHAF on 23 August 2005. As noted earlier, upon deregistration JHAF ceased to exist. Clearly, Mr Green is no longer in office as its liquidator. It is therefore not quite appropriate to speak of his being "replaced". Although I reached this view before becoming aware of Stone J's decision in JP Morgan Portfolio Services Ltd v Deloitte Touche Tohmatsu [2008] FCA 433 ; (2008) 167 FCR 212 , I note that it is totally in conformity with her Honour's. 7 Section 601AH(5) provides expressly that upon a reinstatement, a person who was a director immediately before the reinstatement "becomes a director again as from the time when ASIC or the Court reinstates the company". The existence of this provision suggests, first, that in the absence of such a provision persons in office at the time of deregistration are not automatically reinstated, and, second, that all that is at issue is whether a person should be appointed to an office as from the time of the reinstatement . 8 Mr Green, who has been served, consents to such orders as the Court may make save as to costs, and does not wish to be heard on the application.
Case: Pacanowski v Australian Securities Commission (1995) 57 FCR 173
Outcome: referred to
It has been said that the expression "a person aggrieved by the deregistration" should not be narrowly construed: see Re Proserpine Pty Ltd and the Companies Act [1980] 1 NSWLR 745 at 749 [15]; Pacanowski v Australian Securities Commission (1995) 57 FCR 173 at 175. It does not matter that the person's interest in the decision to deregister arose after the deregistration: Proserpine at 749 [15].
Case: Re Proserpine Pty Ltd and the Companies Act [1980] 1 NSWLR 745
Outcome: referred to
It has been said that the expression "a person aggrieved by the deregistration" should not be narrowly construed: see Re Proserpine Pty Ltd and the Companies Act [1980] 1 NSWLR 745 at 749 [15]; Pacanowski v Australian Securities Commission (1995) 57 FCR 173 at 175. It does not matter that the person's interest in the decision to deregister arose after the deregistration: Proserpine at 749 [15].
Case: Re Steelmaster Pty Ltd (in liq ) (1992) 6 ACSR 494
Outcome: referred to
At [54], his Honour observed that the reported cases establish that the Court will not make an order which is futile, as where the reinstated company would be left without the funding necessary to permit the liquidator to do any work. His Honour noted that in Re Steelmaster Pty Ltd (in liq ) (1992) 6 ACSR 494, the Court made an order, albeit by consent, for the applicant for reinstatement to pay the costs and disbursements of the liquidator incurred as a result of the reinstatement, including the costs of any further proceedings under s 509 of the Corporations Law. 82 The payments by way of return of capital and interim dividend of November 2001 were made to JHFBV, a corporation that no longer exists. The second return of capital, that of September 2003, was to JHIFBV, a company which, so far as the evidence shows, still exists. The second return of capital, however, was in a sum of only $7,608,773 a small fraction of the amount exceeding $150,000,000 which is expected to be the amount of the tax and shortfall penalties (see [46] above). 83 The Commissioner refers to the fact that the two capital reductions divested JHAF of all of its assets, and that the second of them took place in contemplation of the winding up which was resolved upon the following day. He submits that these steps were taken in the knowledge of the Commissioner's interest in the transactions in which JHAF had previously participated, and that "[t]here is ample room to investigate the validity of those transactions".
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: applied
is evident from the reasons of the Federal Magistrates Court that the submissions before that court, understandably enough perhaps with a person appearing for himself, ventured into the factual merits of the visa application. The learned Federal Magistrate correctly observed, by reference to pertinent authority, namely Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 , that merits review before that court was not open. There is certainly nothing inherently implausible about the prospect of strong passions and perhaps even, sadly, acts of violence being engendered in respect of a relationship which bridges a religious divide. However, the assessment of whether or not, in this particular case and against such a background, a visa application ought to be successful was a matter for the Minister and his delegates in the first instance and on external merits review by the independently constituted Refugee Review Tribunal. Where, as here, a Tribunal has made findings based on conclusions as to credit which are not inherently illogical, it would transgress the role consigned to the courts on judicial review to interfere with a conclusion of the Tribunal. Against such a background, there was no error on the part of the Federal Magistrates Court in refusing the judicial review application. Further, whilst it may have been a counsel of perfection for that court to have explained in detail the nature of a judicial review proceeding to an unrepresented person appearing before it, particularly one whose first language was not English and whose culture was different to that of Australia, there was no obligation on that court so to do.
Case: Repatriation Commission v Hendy [2002] FCAFC 424
Outcome: cited
learned member who constituted the Tribunal identified as the only issue before him the question whether the applicant satisfied the requirements of s 24 of the VE Act. After reviewing the vague and contradictory evidence of the applicant's work history, reciting the history of his claims and applications, and summarising the legislative scheme, the Tribunal expressed a finding about the remunerative work that the applicant was undertaking after his military service. In doing so, the Tribunal reminded itself of the proposition found in Repatriation Commission v Hendy [2002] FCAFC 424 (2002) 76 ALD 47 at [36] , where the Court said: The tribunal's task was to assess what the veteran probably would have done, if he had none of his service disabilities during the assessment period. The requirement to consider "remunerative work that the veteran was undertaking" does not mean a particular job with a particular employer but the substantive remunerative work that the veteran had undertaken in the past. The Tribunal found that, after leaving the army, the applicant worked for some 24 years doing plumbing and welding work associated with the installation of commercial air-conditioners. He was then employed by Haden Engineering installing air-conditioning units and ducting in commercial and industrial premises. The applicant has a plumbing certificate from RMIT. The Tribunal found that the relevant remunerative work which the applicant was undertaking was that of an air-conditioning plumber or installer. That task involved significant manual work, including the lifting of heavy items and work in confined spaces and awkward positions. The Tribunal then addressed the cause of the applicant's incapacity for work, particularly the application of the "alone" test, found in s 24(1)(b) and (c) of the VE Act. At [28] of its reasons for decision, the Tribunal said: It should therefore be apparent that if any factors other than Mr Baljas' accepted medical conditions prevent him from continuing to undertake the remunerative work that he was undertaking, he will not be eligible for a pension at the special rate.
Case: Repatriation Commission v Smith (1987) 15 FCR 327
Outcome: cited
for the applicant contended that the Tribunal took the wrong approach to determining what was the remunerative work that the applicant was prevented from continuing to undertake. It was said that the correct approach was to determine, as a matter of hypothetical fact, an assessment of what the applicant "probably would have done if he had none of his service disabilities": Repatriation Commission v Smith (1987) 15 FCR 327 at 337 per Beaumont J, with whom Northrop and Spender JJ concurred. Further, the phrase "remunerative work which the respondent was undertaking" in s 24(1)(c) must be "read as a reference to the type of work which the member previously undertook and not to any particular job": Banovich v Repatriation Commission (1986) 69 ALR 395 at 402. The argument was that the Tribunal had restricted itself to a consideration of the actual job that the applicant had been employed to perform by Haden Engineering, and had not considered either the nature of his work in general, or other work that he might have performed but for his war-caused incapacity.
Case: Banovich v Repatriation Commission (1986) 69 ALR 395
Outcome: cited
for the applicant contended that the Tribunal took the wrong approach to determining what was the remunerative work that the applicant was prevented from continuing to undertake. It was said that the correct approach was to determine, as a matter of hypothetical fact, an assessment of what the applicant "probably would have done if he had none of his service disabilities": Repatriation Commission v Smith (1987) 15 FCR 327 at 337 per Beaumont J, with whom Northrop and Spender JJ concurred. Further, the phrase "remunerative work which the respondent was undertaking" in s 24(1)(c) must be "read as a reference to the type of work which the member previously undertook and not to any particular job": Banovich v Repatriation Commission (1986) 69 ALR 395 at 402. The argument was that the Tribunal had restricted itself to a consideration of the actual job that the applicant had been employed to perform by Haden Engineering, and had not considered either the nature of his work in general, or other work that he might have performed but for his war-caused incapacity.
Case: Giesen v Repatriation Commission [2005] FCA 846 (2005) 87 ALD 347
Outcome: applied
Giesen v Repatriation Commission [2005] FCA 846 (2005) 87 ALD 347 at [19] - [26] , I set out the reasoning that led me to the view that s 24(2)(b) is not construed properly as an ameliorating provision in a case such as the present. Section 24(1)(c) of the VE Act deals with a person who has been "prevented from continuing to undertake remunerative work that the veteran was undertaking", ie with someone who has worked. The purpose of s 24(2)(b) is to enable a person who cannot fit into this category, because of never having worked since his or her relevant war service, to claim pension at the special rate if he or she can satisfy the requirements of s 24(2)(b). For the reasons I gave in Giesen , I remain of the view that s 24(2)(b) has no application to the present case. In Giesen at [27], however, I indicated that I was prepared to consider the application of s 24(2)(b), on the basis that both parties took the view that it was applicable. In the present case, both parties also expressed the view that s 24(2)(b) is an ameliorating provision, applicable even where a veteran has ceased to engage in remunerative work.
Case: Bidald Consulting Pty Ltd v Miles Special Builders Pty Ltd (2005) 226 ALR 510
Outcome: cited
Counsel for the first and second defendants has referred me to a number of authorities which recognise that the time pressures imposed by the Act in relation to administration make it inevitable that investigations and reports by administrators will be less than complete. They also support the proposition that deeds are not to be lightly set aside, stressing the need for materiality of misleading statements in the sense outlined in s 445D(1)(a)(ii) Bidald Consulting Pty Ltd v Miles Special Builders Pty Ltd (2005) 226 ALR 510 ; Khoury v Zambena Pty Ltd (1997) 23 ACSR 344 ; (1997) 15 ACLC 620 affirmed in Joseph Khoury &amp; Sons v Zambena Pty Ltd [1999] NSWCA 402 ; (1999) 217 ALR 527 ; Deputy Commissioner of Taxation v Comcorp Australia Ltd (1996) 70 FCR 356 ; Deputy Commissioner of Taxation v Pddam Pty Ltd (1996) 19 ACSR 498 ; (1996) 14 ACLC 659 ; and Deputy Commissioner of Taxation v Portinex Pty Ltd [2000] NSWSC 99 ; (2000) 156 FLR 453; (2000) 34 ACSR 391.
Case: Deputy Commissioner of Taxation v Comcorp Australia Ltd (1996) 70 FCR 356
Outcome: cited
Counsel for the first and second defendants has referred me to a number of authorities which recognise that the time pressures imposed by the Act in relation to administration make it inevitable that investigations and reports by administrators will be less than complete. They also support the proposition that deeds are not to be lightly set aside, stressing the need for materiality of misleading statements in the sense outlined in s 445D(1)(a)(ii) Bidald Consulting Pty Ltd v Miles Special Builders Pty Ltd (2005) 226 ALR 510 ; Khoury v Zambena Pty Ltd (1997) 23 ACSR 344 ; (1997) 15 ACLC 620 affirmed in Joseph Khoury &amp; Sons v Zambena Pty Ltd [1999] NSWCA 402 ; (1999) 217 ALR 527 ; Deputy Commissioner of Taxation v Comcorp Australia Ltd (1996) 70 FCR 356 ; Deputy Commissioner of Taxation v Pddam Pty Ltd (1996) 19 ACSR 498 ; (1996) 14 ACLC 659 ; and Deputy Commissioner of Taxation v Portinex Pty Ltd [2000] NSWSC 99 ; (2000) 156 FLR 453; (2000) 34 ACSR 391.
Case: Deputy Commissioner of Taxation v Pddam Pty Ltd (1996) 19 ACSR 498 ; (1996) 14 ACLC 659
Outcome: cited
Counsel for the first and second defendants has referred me to a number of authorities which recognise that the time pressures imposed by the Act in relation to administration make it inevitable that investigations and reports by administrators will be less than complete. They also support the proposition that deeds are not to be lightly set aside, stressing the need for materiality of misleading statements in the sense outlined in s 445D(1)(a)(ii) Bidald Consulting Pty Ltd v Miles Special Builders Pty Ltd (2005) 226 ALR 510 ; Khoury v Zambena Pty Ltd (1997) 23 ACSR 344 ; (1997) 15 ACLC 620 affirmed in Joseph Khoury &amp; Sons v Zambena Pty Ltd [1999] NSWCA 402 ; (1999) 217 ALR 527 ; Deputy Commissioner of Taxation v Comcorp Australia Ltd (1996) 70 FCR 356 ; Deputy Commissioner of Taxation v Pddam Pty Ltd (1996) 19 ACSR 498 ; (1996) 14 ACLC 659 ; and Deputy Commissioner of Taxation v Portinex Pty Ltd [2000] NSWSC 99 ; (2000) 156 FLR 453; (2000) 34 ACSR 391.
Case: Deputy Commissioner of Taxation v Portinex Pty Ltd [2000] NSWSC 99 ; (2000) 156 FLR 453; (2000) 34 ACSR 391
Outcome: cited
Counsel for the first and second defendants has referred me to a number of authorities which recognise that the time pressures imposed by the Act in relation to administration make it inevitable that investigations and reports by administrators will be less than complete. They also support the proposition that deeds are not to be lightly set aside, stressing the need for materiality of misleading statements in the sense outlined in s 445D(1)(a)(ii) Bidald Consulting Pty Ltd v Miles Special Builders Pty Ltd (2005) 226 ALR 510 ; Khoury v Zambena Pty Ltd (1997) 23 ACSR 344 ; (1997) 15 ACLC 620 affirmed in Joseph Khoury &amp; Sons v Zambena Pty Ltd [1999] NSWCA 402 ; (1999) 217 ALR 527 ; Deputy Commissioner of Taxation v Comcorp Australia Ltd (1996) 70 FCR 356 ; Deputy Commissioner of Taxation v Pddam Pty Ltd (1996) 19 ACSR 498 ; (1996) 14 ACLC 659 ; and Deputy Commissioner of Taxation v Portinex Pty Ltd [2000] NSWSC 99 ; (2000) 156 FLR 453; (2000) 34 ACSR 391.