mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Johnson v Beitseen (1989) 41 IR 395
Outcome: followed
The 'last in time' argument is novel. It has not been considered expressly by any court previously. It is based on the principle of surrender by implication. That principle has been applied as the doctrine of incompatible offices in cases such as Egan v Maher [No. 2] (1978) 35 FLR 252 at 263, Mellor v Horn (1988) 25 IR 157 at 159 161 and Johnson v Beitseen (1989) 41 IR 395 at 412 413. In Re Cholosznecki; Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union [2006] FCA 452 (2006) 151 IR 218, the principle of implied surrender was applied in determining that a member of an organisation had surrendered her membership of one of its branches by applying to become, and being accepted and treated as, a member of another branch, where membership of more than one branch was expressly prohibited by the rules. The principle operates by implication of law, rather than by implied intention. The intention is imputed to a person, as a result of the assumption of a second position incompatible with the first, to relinquish the first position. The principle is subject to the express provisions of the rules, but not easily displaced by them, because it has been held to apply even where there were express, mandatory provisions about resignation. The principle of implied surrender is analysed in Cholosznecki at [29] [34]. In the present case, counsel for Mr Reid and Mr Wisniewski contended that r 5.5 does nothing more than to bring forward the operation of the doctrine of incompatible offices to the stage where nominations for offices occur. He argued that, just as the assumption of a second office, incompatible with one already held, is taken to be an implied resignation of the first office, so the lodging of a second nomination, incompatible with one already lodged, is taken to be the implied withdrawal of the first nomination.
Case: Re Cholosznecki; Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union [2006] FCA 452 (2006) 151 IR 218
Outcome: followed
The 'last in time' argument is novel. It has not been considered expressly by any court previously. It is based on the principle of surrender by implication. That principle has been applied as the doctrine of incompatible offices in cases such as Egan v Maher [No. 2] (1978) 35 FLR 252 at 263, Mellor v Horn (1988) 25 IR 157 at 159 161 and Johnson v Beitseen (1989) 41 IR 395 at 412 413. In Re Cholosznecki; Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union [2006] FCA 452 (2006) 151 IR 218, the principle of implied surrender was applied in determining that a member of an organisation had surrendered her membership of one of its branches by applying to become, and being accepted and treated as, a member of another branch, where membership of more than one branch was expressly prohibited by the rules. The principle operates by implication of law, rather than by implied intention. The intention is imputed to a person, as a result of the assumption of a second position incompatible with the first, to relinquish the first position. The principle is subject to the express provisions of the rules, but not easily displaced by them, because it has been held to apply even where there were express, mandatory provisions about resignation. The principle of implied surrender is analysed in Cholosznecki at [29] [34]. In the present case, counsel for Mr Reid and Mr Wisniewski contended that r 5.5 does nothing more than to bring forward the operation of the doctrine of incompatible offices to the stage where nominations for offices occur. He argued that, just as the assumption of a second office, incompatible with one already held, is taken to be an implied resignation of the first office, so the lodging of a second nomination, incompatible with one already lodged, is taken to be the implied withdrawal of the first nomination.
Case: Iron Ship Coating Co Ltd v Blunt (1868) LR 3 CP 484
Outcome: cited
Having considered the arguments and the available authorities, I am of the view that the 'last in time' argument is correct. The doctrine of incompatible offices is but an example of the broader principle of surrender by implication. This was made clear by Willes J in the case to which the doctrine of incompatible offices has been traced, Iron Ship Coating Co Ltd v Blunt (1868) LR 3 CP 484 at 488. The principle itself is related to the common law doctrine of election between inconsistent rights. This relationship was explored in the judgment of Northrop J (with whom Evatt J agreed) in Egan at 263 264, where his Honour referred to Tropical Traders Ltd v Goonan [1964] HCA 20 ; (1964) 111 CLR 41 and Sargent v ASL Developments Ltd [1974] HCA 40 ; (1974) 131 CLR 634. In Tropical Traders at 55, Kitto J (with whom Taylor and Menzies JJ agreed) said: 'not that election is a matter of intention. It is an effect which the law annexes to conduct which would be justifiable only if an election had been made one way or the other'. This view was followed by Stephen J in Sargent at 646. Also in Sargent , at 656, Mason J said: 'in some instances election may take place as a matter of conscious choice with knowledge of the existence of the alternative right and in other cases it may occur when the law attributes the character of an election to the conduct of a party.'
Case: Tropical Traders Ltd v Goonan [1964] HCA 20 ; (1964) 111 CLR 41
Outcome: cited
Having considered the arguments and the available authorities, I am of the view that the 'last in time' argument is correct. The doctrine of incompatible offices is but an example of the broader principle of surrender by implication. This was made clear by Willes J in the case to which the doctrine of incompatible offices has been traced, Iron Ship Coating Co Ltd v Blunt (1868) LR 3 CP 484 at 488. The principle itself is related to the common law doctrine of election between inconsistent rights. This relationship was explored in the judgment of Northrop J (with whom Evatt J agreed) in Egan at 263 264, where his Honour referred to Tropical Traders Ltd v Goonan [1964] HCA 20 ; (1964) 111 CLR 41 and Sargent v ASL Developments Ltd [1974] HCA 40 ; (1974) 131 CLR 634. In Tropical Traders at 55, Kitto J (with whom Taylor and Menzies JJ agreed) said: 'not that election is a matter of intention. It is an effect which the law annexes to conduct which would be justifiable only if an election had been made one way or the other'. This view was followed by Stephen J in Sargent at 646. Also in Sargent , at 656, Mason J said: 'in some instances election may take place as a matter of conscious choice with knowledge of the existence of the alternative right and in other cases it may occur when the law attributes the character of an election to the conduct of a party.'
Case: Sargent v ASL Developments Ltd [1974] HCA 40 ; (1974) 131 CLR 634
Outcome: cited
Having considered the arguments and the available authorities, I am of the view that the 'last in time' argument is correct. The doctrine of incompatible offices is but an example of the broader principle of surrender by implication. This was made clear by Willes J in the case to which the doctrine of incompatible offices has been traced, Iron Ship Coating Co Ltd v Blunt (1868) LR 3 CP 484 at 488. The principle itself is related to the common law doctrine of election between inconsistent rights. This relationship was explored in the judgment of Northrop J (with whom Evatt J agreed) in Egan at 263 264, where his Honour referred to Tropical Traders Ltd v Goonan [1964] HCA 20 ; (1964) 111 CLR 41 and Sargent v ASL Developments Ltd [1974] HCA 40 ; (1974) 131 CLR 634. In Tropical Traders at 55, Kitto J (with whom Taylor and Menzies JJ agreed) said: 'not that election is a matter of intention. It is an effect which the law annexes to conduct which would be justifiable only if an election had been made one way or the other'. This view was followed by Stephen J in Sargent at 646. Also in Sargent , at 656, Mason J said: 'in some instances election may take place as a matter of conscious choice with knowledge of the existence of the alternative right and in other cases it may occur when the law attributes the character of an election to the conduct of a party.'
Case: Australasian Meat Industry Employees Union v Troja (unreported, Federal Court of Australia, Keely J, 19 July 1988)
Outcome: cited
Having taken the view that I have as to the validity of the last in time nominations of the candidates concerned, I find it unnecessary to deal with the question whether the invalidity of the other nominations, as a consequence of the application of r 5.5, was such as to amount to a 'defect' for the purposes of the application of r 4.6 of the Union's rules. That rule is intended to conform with the requirement, now found in s 143(1)(c) of Sch 1 to the WR Act, that the rules of an organisation: 'must provide that, if the returning officer conducting an election finds a nomination to be defective, the returning officer must, before rejecting the nomination, notify the person concerned of the defect and, where practicable, give the person the opportunity of remedying the defect within such period as is applicable under the rules, which must, where practicable, be not less than seven days after the person is notified.' On the question of what it means for a nomination to be defective, there is a conflict of authority between Australasian Meat Industry Employees Union v Troja (unreported, Federal Court of Australia, Keely J, 19 July 1988) on the one hand and Wilcox J in Hickson v Australian Electoral Commission (1997) 76 IR 127 and the Full Court in Australian Electoral Commission v Hickson (1997) 76 IR 399 on the other. The conflict is essentially over whether, in a case in which the flaw in a nomination is such that it could not be remedied, the nomination must nevertheless be considered defective, and the requisite notice be given. In the present case, the returning officers considered that nothing could be done to validate the invalid nominations, and that they were therefore not defective for the purposes of r 4.6.
Case: Hickson v Australian Electoral Commission (1997) 76 IR 127
Outcome: cited
Having taken the view that I have as to the validity of the last in time nominations of the candidates concerned, I find it unnecessary to deal with the question whether the invalidity of the other nominations, as a consequence of the application of r 5.5, was such as to amount to a 'defect' for the purposes of the application of r 4.6 of the Union's rules. That rule is intended to conform with the requirement, now found in s 143(1)(c) of Sch 1 to the WR Act, that the rules of an organisation: 'must provide that, if the returning officer conducting an election finds a nomination to be defective, the returning officer must, before rejecting the nomination, notify the person concerned of the defect and, where practicable, give the person the opportunity of remedying the defect within such period as is applicable under the rules, which must, where practicable, be not less than seven days after the person is notified.' On the question of what it means for a nomination to be defective, there is a conflict of authority between Australasian Meat Industry Employees Union v Troja (unreported, Federal Court of Australia, Keely J, 19 July 1988) on the one hand and Wilcox J in Hickson v Australian Electoral Commission (1997) 76 IR 127 and the Full Court in Australian Electoral Commission v Hickson (1997) 76 IR 399 on the other. The conflict is essentially over whether, in a case in which the flaw in a nomination is such that it could not be remedied, the nomination must nevertheless be considered defective, and the requisite notice be given. In the present case, the returning officers considered that nothing could be done to validate the invalid nominations, and that they were therefore not defective for the purposes of r 4.6.
Case: Australian Electoral Commission v Hickson (1997) 76 IR 399
Outcome: cited
Having taken the view that I have as to the validity of the last in time nominations of the candidates concerned, I find it unnecessary to deal with the question whether the invalidity of the other nominations, as a consequence of the application of r 5.5, was such as to amount to a 'defect' for the purposes of the application of r 4.6 of the Union's rules. That rule is intended to conform with the requirement, now found in s 143(1)(c) of Sch 1 to the WR Act, that the rules of an organisation: 'must provide that, if the returning officer conducting an election finds a nomination to be defective, the returning officer must, before rejecting the nomination, notify the person concerned of the defect and, where practicable, give the person the opportunity of remedying the defect within such period as is applicable under the rules, which must, where practicable, be not less than seven days after the person is notified.' On the question of what it means for a nomination to be defective, there is a conflict of authority between Australasian Meat Industry Employees Union v Troja (unreported, Federal Court of Australia, Keely J, 19 July 1988) on the one hand and Wilcox J in Hickson v Australian Electoral Commission (1997) 76 IR 127 and the Full Court in Australian Electoral Commission v Hickson (1997) 76 IR 399 on the other. The conflict is essentially over whether, in a case in which the flaw in a nomination is such that it could not be remedied, the nomination must nevertheless be considered defective, and the requisite notice be given. In the present case, the returning officers considered that nothing could be done to validate the invalid nominations, and that they were therefore not defective for the purposes of r 4.6.
Case: Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63 ; (2001) 208 CLR 199
Outcome: followed
The Court finds that there is no scope for the application of the doctrine of legitimate expectation as claimed since the obligations of Australia concerning extradition are wholly contained in the Extradition Act . There has been no claim of ambiguity in the provisions of the Extradition Act and the decision of the Minister made pursuant to it is not the subject of challenge by the applicant. Further there is no decision in respect of which a writ of prohibition could issue. To obtain a grant of injunctive relief the applicant must show the existence of a legal or equitable right, the protection of which the grant of such relief could ensure: see Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63 ; (2001) 208 CLR 199 at [91] . No such rights exist. For the reasons provided above, the applicant has no basis for relief. 35 It follows that the proceedings must be dismissed. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 14 November 2007 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: N. Beaumont Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 1 November 2007 Date of Judgment: 14 November 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1693.html
Case: Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386
Outcome: followed
The stages in the legislative extradition scheme were described in Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386 at 389, which was referred to by the Full Court in Rivera [2007] FCAFC 123. For convenience, the Court will restate the process as quoted from Harris 52 FCR 389 by the Full Court as follows: The Act contemplates four stages in extradition proceedings as follows: (1) Commencement; (2) Remand; (3) Determination by a magistrate of eligibility for surrender; (4) Executive determination that the person is to be surrendered. In summary form, the scheme is as follows: The commencement of proceedings is by the issue of a provisional warrant under s 12(1) or by the giving of a notice under s 16(1). Once arrested, the person is required by s 15 to be taken before a magistrate and remanded in custody or on bail for such period as may be necessary for eligibility proceedings to be taken under s 19. Where a person is on remand under s 15 and the Attorney-General has given a notice under s 16(1), provision is made under s 19 for a magistrate to conduct proceedings to determine whether the person is eligible for surrender. If eligibility is so determined by the magistrate, provision is made by s 22 for the Attorney-General to decide whether the person is to be surrendered.
Case: Nagaratnam v Minister for Immigration and Multicultural Affairs [1999] FCA 176 ; (1999) 84 FCR 569
Outcome: considered
The applicant further submits that between April 2007 and September 2007 the Minister did not give any indication that he would execute the surrender warrant without first providing the applicant the opportunity of having his communication determined by the UN Committee. Had he had such opportunity, the applicant says he would have sought the application of interim measures which were referred to in the UN letter detailed above. The applicant claims that by implication Australia's obligations would require it to abide by the provisions of Article 3(2) of the Torture Convention. In support of such submission the applicant relies upon Nagaratnam v Minister for Immigration and Multicultural Affairs [1999] FCA 176 ; (1999) 84 FCR 569 at 580 where Lee and Katz JJ referred to Australia's ratification of the Torture Convention and particularly to Australia's obligation under Article 3(1) of the Torture Convention. The applicant also relies upon the inaction of the Minister in failing to avail itself of the opportunity to move to strike out the applicant's present application before this Court upon the ground that it disclosed no reasonable cause of action. 20 Additionally, the applicant submits that he was not able to lodge his communication with the UN Committee prior to the Minister's s 22 decision because, by virtue of Article 22(5)(b) of the Torture Convention, the UN Committee would not consider any communication from an individual until the individual has exhausted all available domestic avenues of review. The applicant says that the torture he suffered in California at the hands of the police before he left the US 'satisfies the definition of torture' in Article 1 of the Torture Convention which includes 'any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person' . 21 Significantly, the applicant has emphasised that he does not challenge the Minister's decision to issue the surrender warrant under s 22(2) of the Extradition Act . If such decision is not challenged, the question remains whether there is another decision made by the Minister in respect of which the relief sought can be granted. 30 The decision of the Full Federal Court in Nagaratnam [1999] FCA 176 ; 84 FCR 569 is not authority for the proposition argued by the applicant, namely that Australia has an obligation to allow the UN Committee to determine communications such as that made by the applicant prior to the execution of a surrender warrant. Whilst reference was made in that decision to Article 3(1) of the Torture Convention, no reference was made to the statutory requirement provided in s 22(3)(b) of the Extradition Act . Even if Australia were in breach of its international obligations under Article 3(1) of the Torture Convention, this is a separate issue which does not impact upon the rights of the applicant which are governed solely by Australian domestic legislation.
Case: Port of Melbourne Authority v Anshun Pty Ltd (1981) 14 7 CLR 589
Outcome: referred to
The Minister submits that the applicant is estopped from now seeking to raise his communication to the UN Committee by the doctrine of res judicata, since it was not raised before Moore J as a ground to challenge the Minister's decision, and relies upon Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 at 598 and 602 and Wong v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 242 ; (2004) 146 FCR 10 at [36] - [54] . The applicant submits that he could not have lodged his communication with the UN prior to the delivery of his Honour's judgment, since he was required by Article 22(5)(b) of the Torture Convention to first 'exhaust all available domestic remedies' .
Case: Rivera v Minister for Justice and Customs [2007] FCAFC 123
Outcome: referred to
On 31 August 2006 the Minister made the surrender determination pursuant to s 22 of Extradition Act ('the surrender decision'). By application filed on 6 September 2007 pursuant to s 39B of the Judiciary Act , the applicant applied to this Court in relation to the surrender decision. Moore J dismissed the application on 21 December 2006: see Rivera v Minister for Justice and Customs [2006] FCA 1784. The applicant appealed from the decision of Moore J to the Full Court of this Court. Such appeal was dismissed on 9 August 2007: see Rivera v Minister for Justice and Customs [2007] FCAFC 123. 22 The stages in the legislative extradition scheme were described in Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386 at 389, which was referred to by the Full Court in Rivera [2007] FCAFC 123. For convenience, the Court will restate the process as quoted from Harris 52 FCR 389 by the Full Court as follows: The Act contemplates four stages in extradition proceedings as follows: (1) Commencement; (2) Remand; (3) Determination by a magistrate of eligibility for surrender; (4) Executive determination that the person is to be surrendered. In summary form, the scheme is as follows: The commencement of proceedings is by the issue of a provisional warrant under s 12(1) or by the giving of a notice under s 16(1). Once arrested, the person is required by s 15 to be taken before a magistrate and remanded in custody or on bail for such period as may be necessary for eligibility proceedings to be taken under s 19. Where a person is on remand under s 15 and the Attorney-General has given a notice under s 16(1), provision is made under s 19 for a magistrate to conduct proceedings to determine whether the person is eligible for surrender. If eligibility is so determined by the magistrate, provision is made by s 22 for the Attorney-General to decide whether the person is to be surrendered.