mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85 ; (1980) 44 FLR 41
Outcome: referred to
the hearing of an appeal the Tribunal stands in the shoes of the original decision maker: see Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85 ; (1980) 44 FLR 41 at 46-7. When doing so it can exercise all of the powers and discretions conferred upon the original decision maker: see s 43 of the AAT Act. As the High Court held in Shi v Migration Agent Registration Authority [2008] HCA 31 ; (2008) 235 CLR 286 , the Tribunal is not required, in the absence of any express contrary statutory prescription, to confine its attention to the material which was before the primary decision maker. As Kirby J said (at 303), the Tribunal is able to exercise its powers "with the benefit of any new, fresh, additional or different material."
Case: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: referred to
if it had been established that the Tribunal had not complied with the requirements of s 43(2B) this would not have constituted a reviewable error of law which would justify the setting aside of the Tribunal's decision: see Repatriation Commission v O'Brien [1985] HCA 10 ; (1985) 155 CLR 422 at 445-6 (per Brennan J); Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 379 (per Kirby J); and see also Comcare v Lees (1997) 151 ALR 647 at 656-9 (per Finkelstein J). Counsel for Mr Culley accepted that this was the legal position.
Case: Murdaca v Australian Securities and Investments Commission (2009) 258 ALR 223
Outcome: cited
for Mr Culley made the formal submission that the answers to both these questions should be "yes". He conceded, however, that the decision of the Full Court in Murdaca v Australian Securities and Investments Commission (2009) 258 ALR 223 bound me to conclude that the first question should be answered "no" and that the second question did not arise. The concession was properly made. The Full Court held (at 250) that a delegate of ASIC could rely on material not appearing in the notice to show cause for the purpose of determining whether or not to disqualify a director provided that it accorded the director natural justice. Specifically the Full Court held (at [127]) that "... we do not agree that ASIC must refer to and address in the show cause notice all matters upon which it might rely in support of disqualification and we do not agree that ASIC is confined to such matters as are contained in the show cause notice when it comes to consider disqualification." In Murdaca at 245, the Full Court identified the two preconditions which must be satisfied before ASIC may exercise its powers under s 206F of the Act. These conditions, prescribed by s 206F(1)(a) are that, within seven years immediately before ASIC gives a notice to show cause: Both parties agreed that these preconditions (or trigger points) had been met, in the present case, on 23 October 2002. On that day ASIC received a report under s 533(1) of the Act from the liquidator appointed to Resources. The report was dated 21 October 2002. The liquidator's report contained the following paragraph: "5.1 The director of the company.,(sic) Brian Francis Culley and former director of the company, Anne Culley, were directors of the following companies which are now in liquidation Company Date of Commencement B M Culley &amp; Associates Pty Ltd 29 th November 2001 Construction Resources Pty Ltd 29 th November 2001 BMC Special Projects Pty Ltd 9 th May 2001 Accordingly, as the directors have been officers of three companies which are now in liquidation and have not paid creditors in full, the ASIC may consider applying the provisions of Section 206F of the Act in seeking an order to disqualify them from acting as directors for an appropriate period." It is to be noted that, although the liquidator referred to Associates having been wound up on 29 November 2001, no liquidator's report had been provided in relation to that company before 23 October 2002. The two relevant companies for the purposes of s 206F(1)(a) were Resources and Special Projects.
Case: Repatriation Commission v O'Brien [1985] HCA 10 ; (1985) 155 CLR 422
Outcome: referred to
if it had been established that the Tribunal had not complied with the requirements of s 43(2B) this would not have constituted a reviewable error of law which would justify the setting aside of the Tribunal's decision: see Repatriation Commission v O'Brien [1985] HCA 10 ; (1985) 155 CLR 422 at 445-6 (per Brennan J); Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 379 (per Kirby J); and see also Comcare v Lees (1997) 151 ALR 647 at 656-9 (per Finkelstein J). Counsel for Mr Culley accepted that this was the legal position.
Case: Shi v Migration Agent Registration Authority [2008] HCA 31 ; (2008) 235 CLR 286
Outcome: referred to
the hearing of an appeal the Tribunal stands in the shoes of the original decision maker: see Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85 ; (1980) 44 FLR 41 at 46-7. When doing so it can exercise all of the powers and discretions conferred upon the original decision maker: see s 43 of the AAT Act. As the High Court held in Shi v Migration Agent Registration Authority [2008] HCA 31 ; (2008) 235 CLR 286 , the Tribunal is not required, in the absence of any express contrary statutory prescription, to confine its attention to the material which was before the primary decision maker. As Kirby J said (at 303), the Tribunal is able to exercise its powers "with the benefit of any new, fresh, additional or different material."
Case: TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175
Outcome: referred to
Culley appealed pursuant to s 44 of the AAT Act. Section 44(1) provides for appeals to this Court "on a question of law" from any decision of the Tribunal: see TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 at 178; Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at 324-5. Mr Culley's further amended notice of appeal identified six questions of law. Some are related to others such that they can be dealt with together. Questions 1 and 2
Case: Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 229 ALR 457
Outcome: applied
The High Court considered the principles applicable to the grant of an interlocutory injunction in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 229 ALR 457. At [65] , Gummow and Hayne JJ applied Beecham Group Limited v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618 at 622-3 where it was observed that the two main enquiries are as follows: 'The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief...The second inquiry is...whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.' 10 GenRx must show sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. This depends on the nature of the rights and the practical consequences likely to flow from the orders sought ( O'Neill at [65] [72] per Gummow and Hayne JJ). It is in this context that the formulation "serious question to be tried" has effect when the Court asks whether an applicant has shown that there is a serious question to be tried as to the applicant's entitlement to relief, that the applicant is likely to suffer injury for which damages will not be an adequate remedy and has shown that the balance of convenience favours the granting of an injunction ( O'Neill at [19] per Gleeson CJ and Crennan J). In considering the balance of convenience, the Court may take into account whichever course appears to carry the lower risk of injustice if the injunction is granted to a party who fails to establish its right at trial or in failing to grant an injunction to a party who succeeds at trial ( Bradto Pty Ltd v State of Victoria [2006] V ConvR 54-722 at [35]). 18 I accept that there is a serious question in the O'Neill sense. 19 There is little evidence on the number of advertisements presently "in the pipeline" or the difficulties faced by Servier if it were ordered not to place further advertisements asserting improved stability. I conclude that no serious inconvenience or injustice would be suffered if no further advertisements referring to stability were to be placed until further order. 20 It is therefore appropriate that Servier be prohibited from placing any further advertisements containing the reference to "improved stability" until further order.
Case: Beecham Group Limited v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618
Outcome: cited
The High Court considered the principles applicable to the grant of an interlocutory injunction in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 229 ALR 457. At [65] , Gummow and Hayne JJ applied Beecham Group Limited v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618 at 622-3 where it was observed that the two main enquiries are as follows: 'The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief...The second inquiry is...whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.'
Case: Bradto Pty Ltd v State of Victoria [2006] V ConvR 54-722
Outcome: cited
GenRx must show sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. This depends on the nature of the rights and the practical consequences likely to flow from the orders sought ( O'Neill at [65] [72] per Gummow and Hayne JJ). It is in this context that the formulation "serious question to be tried" has effect when the Court asks whether an applicant has shown that there is a serious question to be tried as to the applicant's entitlement to relief, that the applicant is likely to suffer injury for which damages will not be an adequate remedy and has shown that the balance of convenience favours the granting of an injunction ( O'Neill at [19] per Gleeson CJ and Crennan J). In considering the balance of convenience, the Court may take into account whichever course appears to carry the lower risk of injustice if the injunction is granted to a party who fails to establish its right at trial or in failing to grant an injunction to a party who succeeds at trial ( Bradto Pty Ltd v State of Victoria [2006] V ConvR 54-722 at [35]).
Case: Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601
Outcome: referred to
The application was remitted to this Court pursuant to orders made by Gaudron J following the delivery of judgment in Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601. 4 By letter dated 12 November 2004, the District Registrar of this Court notified the applicant that the Court proposed to consider whether there was an arguable case on the basis of the written material that the applicant had given to the Court and without any oral hearing. The applicant was invited to file written submissions on the question of whether the Court should make an order nisi . On 7 December 2004, the applicant filed an amended application under the Judiciary Act 1903 (Cth), however, he has not filed any written submissions. 5 I propose to deal with this application on the papers. 18 This claim in form may be prima facie capable of attracting relief under the second limb of the Muin ratio decidendi, that is, that the applicant was misled into thinking that favourable country information had been considered by the Tribunal when in fact it had not. However, the material contained in the draft order nisi and the affidavit in support merely amounts to a pleading or assertion of the right to relief. There are no particulars or evidence of facts that would support the grant of the relief claimed. None of the country information is identified. For orders requiring the respondent to show cause why final relief should not be granted, the applicant must provide material showing that there is at least an arguable case for the grant of the final relief claimed. 19 On the material before me, the applicant has not made out an arguable case that the Tribunal committed jurisdictional error. The application for an order nisi should therefore be dismissed with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 30 May 2006 The Applicant is self-represented. Solicitor for the Respondent: Australian Government Solicitor Date of Judgment: 30 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/651.html
Case: Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27
Outcome: referred to
Subsection 424A(3)(b) provides that s 424A does not apply to information "that the applicant gave for the purposes of the application". In Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27, a Full Court held that information to which ss 424A(3)(b) refers is information given by an applicant to the Tribunal for the purpose of the application for review and not to information given on the original application for a protection visa.
Case: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
Outcome: referred to
The reference to "information" in s 424A does not encompass a failure to mention a matter to the Tribunal. An observation that an applicant failed to refer to a particular matter may constitute no more than an aspect of the Tribunal's reasoning concerning a deficiency in his evidence. In VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24], Finn and Stone JJ commented on the term "information": " ... the word does not encompass the Tribunal's subjective appraisals, thought processes or determinations; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps." See also SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306 at [9] - [15] per Hely J; SZBKB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1811 at [14] - [33] per Bennett J.
Case: SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306
Outcome: referred to
The reference to "information" in s 424A does not encompass a failure to mention a matter to the Tribunal. An observation that an applicant failed to refer to a particular matter may constitute no more than an aspect of the Tribunal's reasoning concerning a deficiency in his evidence. In VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24], Finn and Stone JJ commented on the term "information": " ... the word does not encompass the Tribunal's subjective appraisals, thought processes or determinations; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps." See also SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306 at [9] - [15] per Hely J; SZBKB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1811 at [14] - [33] per Bennett J.
Case: SZBKB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1811
Outcome: referred to
The reference to "information" in s 424A does not encompass a failure to mention a matter to the Tribunal. An observation that an applicant failed to refer to a particular matter may constitute no more than an aspect of the Tribunal's reasoning concerning a deficiency in his evidence. In VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24], Finn and Stone JJ commented on the term "information": " ... the word does not encompass the Tribunal's subjective appraisals, thought processes or determinations; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps." See also SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306 at [9] - [15] per Hely J; SZBKB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1811 at [14] - [33] per Bennett J.
Case: Hill v Repatriation Commission (2005) 218 ALR 251
Outcome: cited
Division 4 of the Administration Act imposes several important limitations upon a Tribunal's review of an objection decision. Two are of particular importance for present purposes. Both are contained in s 14ZZK of that Act. The first is that, unless the Tribunal orders otherwise, an applicant is limited to the grounds stated in the taxation objection to which the decision relates. The significance of this limitation is that the objection circumscribes the issue or issues raised by the applicant which the Tribunal is required to determine. This contrasts with the usual case of Tribunal review where the Tribunal stands in the shoes of the person whose decision is in question, hearing the matter de novo and reaching its own conclusion on the material before it as to what is the correct or preferable decision. The difference between the forms of text review, as will be seen, can become accentuated when, as in this matter, an attack is made upon the adequacy of the Tribunal's reasons for decision: for the ordinary case of review see e.g. Hill v Repatriation Commission (2005) 218 ALR 251 at [105]. 7 The second limitation on an objection decision review is that the applicant bears the burden of proving, if the decision is an assessment, that the assessment is excessive: s 14ZZK(b)(i) of the Administration Act . This onus is of some significance in this proceeding.
Case: Federal Commissioner of Taxation v Munro (1997) 37 ATR 249
Outcome: cited
The parties are in broad agreement as to the manner in which the discharge or non-discharge of the onus can affect a Tribunal's determination of the issues before it. They accept as do I, the correctness of the following observations of Lockhart J in Federal Commissioner of Taxation v Munro (1997) 37 ATR 249 at 258 in referring to the reasons of Gibbs J in McCormack v Federal Commissioner of Taxation [1979] HCA 18 ; (1979) 143 CLR 284: "In McCormack v FCT [1979] HCA 18 ; (1979) 143 CLR 284 ... Gibbs J said that s 190(b) of the Assessment Act placed the burden of proving that the assessment was excessive upon the taxpayer and that on ordinary principles the taxpayer therefore bore the burden of proving the facts necessary to make out his or her case (at CLR 301). To discharge the burden of proving that the assessment is excessive the taxpayer in McCormack (a s 26(a) case) was required to prove affirmatively on the balance of probabilities that the property was not acquired for the purpose of profit making by sale. His Honour said that the burden may be discharged by drawing inferences from the evidence, but he rejected (at CLR 303) the argument that a taxpayer can succeed simply because there is no evidence from which it can be concluded that the relevant purpose of profit making existed; since this would mean that the burden of proving the existence of that purpose lies on the FCT. That would, his Honour said, be to invert the onus of proof." See also Gauci v Federal Commissioner of Taxation [1975] HCA 54 ; (1975) 135 CLR 81 at 89-90 per Mason J. Section 190(b), I would note, was the precursor of s 14ZZK(b).
Case: McCormack v Federal Commissioner of Taxation [1979] HCA 18 ; (1979) 143 CLR 284
Outcome: followed
The parties are in broad agreement as to the manner in which the discharge or non-discharge of the onus can affect a Tribunal's determination of the issues before it. They accept as do I, the correctness of the following observations of Lockhart J in Federal Commissioner of Taxation v Munro (1997) 37 ATR 249 at 258 in referring to the reasons of Gibbs J in McCormack v Federal Commissioner of Taxation [1979] HCA 18 ; (1979) 143 CLR 284: "In McCormack v FCT [1979] HCA 18 ; (1979) 143 CLR 284 ... Gibbs J said that s 190(b) of the Assessment Act placed the burden of proving that the assessment was excessive upon the taxpayer and that on ordinary principles the taxpayer therefore bore the burden of proving the facts necessary to make out his or her case (at CLR 301). To discharge the burden of proving that the assessment is excessive the taxpayer in McCormack (a s 26(a) case) was required to prove affirmatively on the balance of probabilities that the property was not acquired for the purpose of profit making by sale. His Honour said that the burden may be discharged by drawing inferences from the evidence, but he rejected (at CLR 303) the argument that a taxpayer can succeed simply because there is no evidence from which it can be concluded that the relevant purpose of profit making existed; since this would mean that the burden of proving the existence of that purpose lies on the FCT. That would, his Honour said, be to invert the onus of proof." See also Gauci v Federal Commissioner of Taxation [1975] HCA 54 ; (1975) 135 CLR 81 at 89-90 per Mason J. Section 190(b), I would note, was the precursor of s 14ZZK(b).
Case: Gauci v Federal Commissioner of Taxation [1975] HCA 54 ; (1975) 135 CLR 81
Outcome: cited
The parties are in broad agreement as to the manner in which the discharge or non-discharge of the onus can affect a Tribunal's determination of the issues before it. They accept as do I, the correctness of the following observations of Lockhart J in Federal Commissioner of Taxation v Munro (1997) 37 ATR 249 at 258 in referring to the reasons of Gibbs J in McCormack v Federal Commissioner of Taxation [1979] HCA 18 ; (1979) 143 CLR 284: "In McCormack v FCT [1979] HCA 18 ; (1979) 143 CLR 284 ... Gibbs J said that s 190(b) of the Assessment Act placed the burden of proving that the assessment was excessive upon the taxpayer and that on ordinary principles the taxpayer therefore bore the burden of proving the facts necessary to make out his or her case (at CLR 301). To discharge the burden of proving that the assessment is excessive the taxpayer in McCormack (a s 26(a) case) was required to prove affirmatively on the balance of probabilities that the property was not acquired for the purpose of profit making by sale. His Honour said that the burden may be discharged by drawing inferences from the evidence, but he rejected (at CLR 303) the argument that a taxpayer can succeed simply because there is no evidence from which it can be concluded that the relevant purpose of profit making existed; since this would mean that the burden of proving the existence of that purpose lies on the FCT. That would, his Honour said, be to invert the onus of proof." See also Gauci v Federal Commissioner of Taxation [1975] HCA 54 ; (1975) 135 CLR 81 at 89-90 per Mason J. Section 190(b), I would note, was the precursor of s 14ZZK(b).