mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 2) [2006] FCA 364
Outcome: cited
The Shelton survey is dealt with at [69]-[79] of the trial judgment. My ruling on its admissibility is Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 2) [2006] FCA 364. 26 The unexplained failure of Cadbury to comply with a practice note issued by the Chief Justice of this Court is not a matter to be brushed aside. Practice notes are issued for the guidance of practitioners so as to improve the fairness and efficiency of litigation. It is a matter of concern that practitioners have taken a conscious decision to ignore this practice note, presumably because it was thought forensic advantage would thereby be obtained. However, as Cadbury contended, non-compliance with a practice note does not affect the admissibility of evidence and is not like disobedience of a Court order. So I agree with Cadbury's submission that in itself non-compliance does not warrant indemnity costs, although there is perhaps irony in the fact that the unilateral preparation of the survey had the result that it turned out to have little, if any, usefulness. 27 Darrell Lea submitted that by the time of final submissions the only matters of complaint were the "relatively trivial" issues of the (since discontinued) use of purple at Christmas 2000-2004. It was said the only explanation for Cadbury expending the "enormous resources" it had on this litigation was to "place enormous costs pressure on a much smaller entity in the chocolate confectionery trade and thereby achieving a 'positive' result through settlement". There was a "disproportionate application of resources to such a slender case". This contrasted with what was said to be "an inconsistently managed industry-wide campaign" (as to this latter aspect see the trial judgment at [55]-[68]).
Case: Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 16
Outcome: considered
VBAM of 2002 v Minister for Immigration and Multicultural Affairs [2003] FCA 504 at [44] Gray J said: "The evidence of the three witnesses was information that the applicant gave for the purpose of the application." His Honour did not refer to the terms of s 426 when arriving at that conclusion. That decision was followed by Gordon J in SZIAT v Minister for Immigration and Citizenship [2008] FCA 766 at [39] . She also referred to Bennett J's decision in SZAQI v Minister for Immigration and Multicultural Affairs [2006] FCA 1653 at [23] - [24] . There, Bennett J again referred to the concept of an applicant calling a witness to give oral evidence on his or her behalf as being within the scope of s 424A(3)(b). Bennett J distinguished the contrary construction by Branson J in SZECG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 733 at [17] - [22] . In SZECG [2006] FCA 733 at [21] Branson J followed the obiter reasons of Lee and Tamberlin JJ in Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 at [96] - [99] per Lee J, with whose reasons Tamberlin J agreed at [108]. They held that s 424A was engaged where the tribunal relied on alleged inconsistencies between evidence of the applicant's husband and that of the applicant.
Case: Applicant NAAF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 ; (2004) 221 CLR 1
Outcome: cited
the appellant has given no indication of any further material which he might have tendered to the tribunal in order to deal with the position. He had already put before the tribunal the material he wished to rely upon for this aspect of the matter (leaving aside any response to any invitation under s 424A referred to in considering ground 3): cf Applicant NAAF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 ; (2004) 221 CLR 1 at 12 [34] per McHugh, Gummow, Callinan and Heydon JJ. I reject this ground of appeal. This ground asserted that the tribunal assumed or took account of a consideration that the appellant could reasonably have been expected to have taken more steps to be reunited with Ms L and their child and that his failure to do so led to, or contributed to, its adverse assessment of the nature of their relationship. This ground amounts to an attack on the reasoning processes of the tribunal in arriving at its findings of fact. The tribunal explained why it found unpersuasive the appellant's case that he would live together with Ms L. It reasoned was that if the relationship had the strength of commitment that the appellant was asking the tribunal to find, it would have expected that the appellant would have done more to reunite with Ms L and his child. There was no unstated assumption or irrelevant consideration here. The tribunal expressed, in its own language, its lack of satisfaction with the appellant's claim based on its assessment of his conduct. In other words, the tribunal looked at the objective evidence that revealed that the appellant, over 8 years, apparently had not done more to be with Ms L and their child than pursue his protection visa claim here. It was open for the tribunal to find that this was not demonstrative of the level of commitment to the relationship that the appellant asserted.
Case: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88
Outcome: applied
tribunal departed from the procedure to afford procedural fairness mandated by ss 424A and 424AA of the Act. I cannot say that no different result would have ensued had the tribunal afforded the appellant the opportunity which ss 424A(1) and 424AA required him to have, however unlikely it is that he would have been able to dissuade the tribunal from taking the particular view it did of the facts: Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 at 145-146 per Mason, Wilson, Brennan, Deane and Dawson JJ; Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at 95 [14] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53 ; (2006) 231 CLR 1
Outcome: followed
my opinion, the statutory scheme does not permit that construction. First, a witness is not "information". The fact that an applicant for review asked the tribunal to take evidence from a person cannot make everything that the person said, if the tribunal called him or her to give evidence, information that the applicant gave to the tribunal. Self-evidently, the witness gave the information. It is a truism in litigation that there is no property in a witness. Moreover, the procedures of the tribunal are inquisitorial, not adversarial: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53 ; (2006) 231 CLR 1 at 17 [40] per Gummow ACJ, Callinan, Heydon and Crennan JJ, 43 [126] per Kirby J; SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 49 ; (2006) 230 CLR 486 at 491 [4] per Gleeson CJ, Gummow, Hayne, Callinan and Crennan JJ. It would be incongruous to hold that s 424A(3)(b) characterised everything that might be said by a witness nominated by an applicant for review as a person whom he or she wished the tribunal to call to give evidence as being "information ... that the applicant gave for the purpose of the application for review". The only "information" that could possibly be in that category would be the witness's name and contact details. What the witness came to say in evidence would be information that the witness, not the applicant for review, gave to the tribunal. Any other construction of the section would make no sense. The applicant for review, as s 426(3) provides expressly, has no right to require the tribunal to call anybody to give evidence, apart from himself or herself.
Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 228 CLR 294
Outcome: discussed
tribunal used Ms L's evidence of her inquiries and her failure to tell the appellant of them as a basis for its rejection of the appellant's claim. In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 228 CLR 294 , McHugh, Kirby and Hayne JJ held that the tribunal had failed to comply with s 424A(1) because it had not given an applicant for review notice in writing of evidence given by her daughter as a reason to affirm the decision under review: see SAAP 228 CLR at 308 [37] per McHugh J, 338 [144], 345 [170], 345-346 [172]-[173] per Kirby J, 348 [184] per Hayne J. In that case the daughter had been called as a witness by the tribunal of its own motion. As the statutory scheme makes clear, it is the tribunal, and not an applicant for review, which calls witnesses. Thus, s 426 provides that if in response to a notice issued to an applicant for review under ss 425 and 425A, that applicant notifies the tribunal within seven days that he or she "... wants the tribunal to obtain oral evidence from a person or persons named in the notice" pursuant to s 426(2), the tribunal is obliged to have regard to the applicant's wishes, but it is not required to obtain that evidence orally or otherwise from the person named in the applicant's notice (see s 426(3)). As a matter of statutory construction it is not open to suggest that an applicant for review can call any witness, other than himself or herself, pursuant to the right conferred under s 425(1). A number of single judges of the Court have expressed the view that information given by a witness nominated by an applicant for review under s 426(2) and called by the tribunal to give evidence amounted to "information ... that the applicant gave for the purpose of the application for review" so as to fall within the exception provided in s 424A(3)(b). They have held that the witnesses were in fact called by the applicant so that their evidence was information given by the applicant.
Case: Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141
Outcome: applied
tribunal departed from the procedure to afford procedural fairness mandated by ss 424A and 424AA of the Act. I cannot say that no different result would have ensued had the tribunal afforded the appellant the opportunity which ss 424A(1) and 424AA required him to have, however unlikely it is that he would have been able to dissuade the tribunal from taking the particular view it did of the facts: Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 at 145-146 per Mason, Wilson, Brennan, Deane and Dawson JJ; Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at 95 [14] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.
Case: SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 49 ; (2006) 230 CLR 486
Outcome: applied
my opinion, the statutory scheme does not permit that construction. First, a witness is not "information". The fact that an applicant for review asked the tribunal to take evidence from a person cannot make everything that the person said, if the tribunal called him or her to give evidence, information that the applicant gave to the tribunal. Self-evidently, the witness gave the information. It is a truism in litigation that there is no property in a witness. Moreover, the procedures of the tribunal are inquisitorial, not adversarial: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53 ; (2006) 231 CLR 1 at 17 [40] per Gummow ACJ, Callinan, Heydon and Crennan JJ, 43 [126] per Kirby J; SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 49 ; (2006) 230 CLR 486 at 491 [4] per Gleeson CJ, Gummow, Hayne, Callinan and Crennan JJ. It would be incongruous to hold that s 424A(3)(b) characterised everything that might be said by a witness nominated by an applicant for review as a person whom he or she wished the tribunal to call to give evidence as being "information ... that the applicant gave for the purpose of the application for review". The only "information" that could possibly be in that category would be the witness's name and contact details. What the witness came to say in evidence would be information that the witness, not the applicant for review, gave to the tribunal. Any other construction of the section would make no sense. The applicant for review, as s 426(3) provides expressly, has no right to require the tribunal to call anybody to give evidence, apart from himself or herself.
Case: SZECG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 733
Outcome: approved
VBAM of 2002 v Minister for Immigration and Multicultural Affairs [2003] FCA 504 at [44] Gray J said: "The evidence of the three witnesses was information that the applicant gave for the purpose of the application." His Honour did not refer to the terms of s 426 when arriving at that conclusion. That decision was followed by Gordon J in SZIAT v Minister for Immigration and Citizenship [2008] FCA 766 at [39] . She also referred to Bennett J's decision in SZAQI v Minister for Immigration and Multicultural Affairs [2006] FCA 1653 at [23] - [24] . There, Bennett J again referred to the concept of an applicant calling a witness to give oral evidence on his or her behalf as being within the scope of s 424A(3)(b). Bennett J distinguished the contrary construction by Branson J in SZECG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 733 at [17] - [22] . In SZECG [2006] FCA 733 at [21] Branson J followed the obiter reasons of Lee and Tamberlin JJ in Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 at [96] - [99] per Lee J, with whose reasons Tamberlin J agreed at [108]. They held that s 424A was engaged where the tribunal relied on alleged inconsistencies between evidence of the applicant's husband and that of the applicant. Branson J doubted that it could be said that the appellant "gave" the information implicit in his father's evidence. She said that the hearing before the tribunal was not an inter parties judicial hearing but formed part of an administrative enquiry. Her Honour observed that the appellant there did not call his father to give evidence but rather advised the tribunal that he wanted it to take evidence from his father". Branson J did not reach a concluded view on the question although she doubted that s 424A(3)(b) disclosed an intention that every piece of information that the tribunal gleaned from the evidence of the witness called at the request of an applicant for review was to be treated as evidence given to the tribunal by that applicant for the purpose of the application: SZECG [2006] FCA 733 at [22] - [23] . None of these authorities construed s 426 or dealt with the fact that an applicant could not "call a witness". I am of the firm opinion that on the proper construction of the Act, information given orally by a witness, other than the applicant for review, cannot be "information" that the applicant gave for the purpose of the application for review within the meaning of the exception of s 424A(3)(b).
Case: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214
Outcome: cited
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at 259 [205] , Allsop J said: "Information is that of which one is told or apprised; it is knowledge communicated concerning some particular fact, subject or event: the Complete Oxford English Dictionary (2 nd ed, 1991)." And, in SZBYR 235 ALR at 616 [18], the plurality said: "However broadly 'information' be defined, its meaning in this context is related to the existence of evidentiary material or documentation , not the existence of doubts, inconsistencies, or the absence of evidence." (emphasis added)
Case: SZICU v Minister for Immigration and Citizenship [2008] FCAFC 1 ; (2008) 100 ALD 1
Outcome: followed
Finn and Besanko JJ applied that reasoning in SZICU v Minister for Immigration and Citizenship [2008] FCAFC 1 ; (2008) 100 ALD 1 at 7-8 [26] . In that case the Court held that information in an appellant's passport was neutral, and that what undermined his claims was not conveyed by the passport, but by country information. There, the tribunal had used the country information in assessing whether the appellant was of adverse interest to the authorities because he had obtained his passport and was able to leave his country of origin with it. Their Honours, applying SZBYR 235 ALR at 616 [18], said that the relevant "information" within the meaning of s 424A(1) was not to be found in disbeliefs arising from a process of reasoning applied to the evidence.
Case: Leary v Leary [1987] 1 WLR 72
Outcome: cited
62 rule 4 confers what has been called an unlimited discretion, which of course must be exercised in a judicial manner. How the powers are to be used varies widely from case to case and each case must be decided on its own merits: Leary v Leary [1987] 1 WLR 72 at 76. The approach to be adopted to an application under Order 62 rule 4(c) has recently been described in Sony Entertainment v Smith (2005) 215 ALR 788 at 812-813. There Jacobson J quoted (at 813) with approval the following passage from the judgment of Giles J in Harrison v Schipp [2002] NSWCA 213 ; (2002) 54 NSWLR 738 at [22] : approach taken to estimate costs must be logical, fair and reasonable. The power should only be exercised when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available." See also Nine Films &amp; Television Pty Ltd v Ninox Television Ltd [2006] FCA 1046.
Case: Sony Entertainment v Smith (2005) 215 ALR 788
Outcome: cited
62 rule 4 confers what has been called an unlimited discretion, which of course must be exercised in a judicial manner. How the powers are to be used varies widely from case to case and each case must be decided on its own merits: Leary v Leary [1987] 1 WLR 72 at 76. The approach to be adopted to an application under Order 62 rule 4(c) has recently been described in Sony Entertainment v Smith (2005) 215 ALR 788 at 812-813. There Jacobson J quoted (at 813) with approval the following passage from the judgment of Giles J in Harrison v Schipp [2002] NSWCA 213 ; (2002) 54 NSWLR 738 at [22] : approach taken to estimate costs must be logical, fair and reasonable. The power should only be exercised when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available." See also Nine Films &amp; Television Pty Ltd v Ninox Television Ltd [2006] FCA 1046. The Wrigley deponents' claims and contentions are advanced in support of the view that there should be a taxation of Cadbury's costs. I must, however, bear in mind that of its nature, specification of a gross sum is not the result of a process of taxation or assessment of costs: Harrison at [22]. Rather a broader brush must be applied than would be appropriate on taxation. The present relevance of the Wrigley claims and contentions is that their existence, unresolved, has brought me to the clear view that I should not exercise the power to order a lump sum under Order 62 rule 4(c) because I am not satisfied that I can do so fairly between the parties, and with sufficient confidence that I would be arriving at an appropriate sum on a logical and reasonable basis, rather than selecting figures at random on the basis of an arbitrary preference for one expert's view over another's. See Sony Entertainment at [199].
Case: Nine Films &amp; Television Pty Ltd v Ninox Television Ltd [2006] FCA 1046
Outcome: cited
62 rule 4 confers what has been called an unlimited discretion, which of course must be exercised in a judicial manner. How the powers are to be used varies widely from case to case and each case must be decided on its own merits: Leary v Leary [1987] 1 WLR 72 at 76. The approach to be adopted to an application under Order 62 rule 4(c) has recently been described in Sony Entertainment v Smith (2005) 215 ALR 788 at 812-813. There Jacobson J quoted (at 813) with approval the following passage from the judgment of Giles J in Harrison v Schipp [2002] NSWCA 213 ; (2002) 54 NSWLR 738 at [22] : approach taken to estimate costs must be logical, fair and reasonable. The power should only be exercised when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available." See also Nine Films &amp; Television Pty Ltd v Ninox Television Ltd [2006] FCA 1046.
Case: Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1
Outcome: followed
It is important for those who apply to the Federal Magistrates Court seeking review of decisions of the Refugee Review Tribunal, and who subsequently seek to appeal to this Court, to understand that it is the Tribunal that resolves questions of fact. It is no part of the role of a court conducting judicial review to trespass into the realm of reviewing the merits of an administrative decision the subject of review: Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1. Brennan J there observed at 35 6: The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. The confined jurisdiction entrusted to the Federal Magistrates Court is unequivocally set forth in s 476 of the Migration Act 1958 (Cth). 10 The Appellant's grievance, however, need not be resolved upon that basis. It may be more directly answered by reference to the findings of the Tribunal. A reading of those reasons for decision denies any conclusion that it did not assess the claims advanced and the evidence relied upon. 11 The Tribunal held a hearing on 28 June 2007 and the now Appellant appeared. The Tribunal's reasons set forth the evidence relied upon by the now Appellant, the questions asked of him at the hearing and his responses. Those reasons also record that an opportunity was sought to provide the Tribunal with further documents and that that opportunity was extended. Those reasons also record that no further documents were in fact provided.