mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Knight v FP Special Assets Ltd [1992] HCA 28 ; (1992) 174 CLR 178
Outcome: applied
in the absence of an order pursuant to O 43, however, it should be noted that s 43 of the Federal Court of Australia Act 1976 (Cth) confers adequate power to make an order against the father. In Knight v FP Special Assets Ltd [1992] HCA 28 ; (1992) 174 CLR 178 at 192 to 193 Mason CJ and Deane J observed: For our part, we consider it appropriate to recognize a general category of case in which an order for costs should be made against a non-party and which would encompass the case of a receiver of a company who is not a party to the litigation. That category of case consists of circumstances where the party to the litigation is an insolvent person or man of straw, where the non-party has played an active part in the conduct of the litigation and where the non-party, or some person on whose behalf he or she is acting or by whom he or she has been appointed, has an interest in the subject of the litigation. Where the circumstances of a case fall within that category, an order for costs should be made against the non-party if the interests of justice require that it be made. See also: Manton International Pty Ltd (In Liquidation) v Deputy Commissioner of Taxation [2006] FCAFC 76 at [10] per Tamberlin, Weinberg and Allsop JJ; Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 10) [2009] FCA 498 at [20] to [21] per Collier J. Even had an order not been made pursuant to O 43, an order would nevertheless have been made that the father pay the costs of the appeal . The father had filed the Notice of Appeal ostensibly as " guardian " and sought to advance a case which, if successful, would have been of benefit to his children and perhaps himself.
Case: Luu v Renevier (1989) 91 ALR 39
Outcome: cited
some circumstances, a requirement may be imposed upon an administrative decision-maker to make further inquiries or to secure " more information ". One of the first judges of this Court to recognise that such circumstances may arise was Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155 at 169 to 170. See also Luu v Renevier (1989) 91 ALR 39. But in Foxtel Management Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 589 at [214] , [2000] FCA 589 ; 173 ALR 362 at 417, Wilcox J also recognised that: It will be a relatively rare case in which a statutory decision is vitiated because of the decision-maker's failure to make inquiries. It will need to be apparent that relevant material was readily available to the decision-maker, but ignored.
Case: Manton International Pty Ltd (In Liquidation) v Deputy Commissioner of Taxation [2006] FCAFC 76
Outcome: applied
in the absence of an order pursuant to O 43, however, it should be noted that s 43 of the Federal Court of Australia Act 1976 (Cth) confers adequate power to make an order against the father. In Knight v FP Special Assets Ltd [1992] HCA 28 ; (1992) 174 CLR 178 at 192 to 193 Mason CJ and Deane J observed: For our part, we consider it appropriate to recognize a general category of case in which an order for costs should be made against a non-party and which would encompass the case of a receiver of a company who is not a party to the litigation. That category of case consists of circumstances where the party to the litigation is an insolvent person or man of straw, where the non-party has played an active part in the conduct of the litigation and where the non-party, or some person on whose behalf he or she is acting or by whom he or she has been appointed, has an interest in the subject of the litigation. Where the circumstances of a case fall within that category, an order for costs should be made against the non-party if the interests of justice require that it be made. See also: Manton International Pty Ltd (In Liquidation) v Deputy Commissioner of Taxation [2006] FCAFC 76 at [10] per Tamberlin, Weinberg and Allsop JJ; Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 10) [2009] FCA 498 at [20] to [21] per Collier J. Even had an order not been made pursuant to O 43, an order would nevertheless have been made that the father pay the costs of the appeal . The father had filed the Notice of Appeal ostensibly as " guardian " and sought to advance a case which, if successful, would have been of benefit to his children and perhaps himself.
Case: Minister for Immigration and Citizenship v Le [2007] FCA 1318 , 161 FCR 151
Outcome: cited
when entertaining an appeal from the Migration Review Tribunal, in Mohammed v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 47 Moore, North and Emmett JJ concluded at [24] that "... the Tribunal was under no general duty to inquire. It was entitled to act on the material presented by the appellant ... ". It has, however, further been recognised that a failure on the part of the Tribunal to make inquiries may constitute jurisdictional error: Minister for Immigration and Citizenship v Le [2007] FCA 1318 at [60] to [63], 161 FCR 151 at 172 to 174 per Kenny J. Applied: SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372 at [19] , [2008] FCA 1372 ; 104 ALD 22 at 25 to 26.
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
prior applications as made by both the mother and subsequently the father, and the statements made in support of those applications, were matters which the Tribunal could properly take into account when resolving the most recent applications as made by the present Appellants. But the weight to be given to the differing statements being made, and the explanations provided for giving those statements, was a matter entrusted to the Tribunal: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 291 to 292 per Kirby J. Notwithstanding what the Appellants seek to characterise as their mother's " honest explanation " of the claims previously advanced, the Tribunal was not obliged to accept that explanation. The second Ground of Appeal asserts that the Tribunal acted in a " manifestly unreasonable " manner.
Case: Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 , 106 FCR 426
Outcome: applied
The review process ", it may be accepted, " is inquisitorial rather than adversarial ": NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [58] , [2004] FCAFC 263 ; 144 FCR 1 at 18 per Black CJ, French and Selway JJ. And s 427(1)(d) of the Migration Act 1958 (Cth) confers a discretionary power upon the Tribunal to " require the Secretary to arrange for the making of any investigation ...". But that section does not impose any general duty to inquire: Re Minister for Immigration and Multicultural Affairs; Ex parte Cassim [2000] HCA 50 at [12] to [14] [2000] HCA 50 ; , 175 ALR 209 at 212 to 213. See also Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 at [86] [2001] FCA 274 ; , 106 FCR 426 at 445; Gomez v Minister for Immigration and Multicultural Affairs [2002] FCA 480 at [26], 190 ALR 543 at 553 to 554; S1925 of 2003 v Minister for Immigration and Citizenship [2008] FCA 246 at [21] .
Case: Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1 , 84 FCR 411
Outcome: cited
some faulty or irrational finding of fact does not establish an error of law, let alone jurisdictional error: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321. Mason CJ (with whom Brennan, Toohey and Gaudron JJ agreed) there observed at 356 (emphasis in original): Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference &#8212; in other words, the particular inference is reasonably open &#8212; even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place. Findings which are apparently inconsistent may, however, serve to sound a " warning note " such that a decision may be more carefully scrutinised: Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1 , 84 FCR 411. Black CJ, von Doussa and Carr JJ there observed: [25] ... although want of logic in drawing an inference will not of itself constitute error of law, it may sound a warning note to put one on inquiry whether there was indeed any basis for the inference drawn. Likewise, want of logic might in some cases also sound a warning note to put one on inquiry whether there was only a purported, and not a real, exercise of the functions entrusted to the decision-maker. But where different conclusions are reasonably open on the facts, it is the Tribunal that is entrusted with the task of making those findings of fact which it considers appropriate: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 , 197 CLR 611. Gummow J there observed: [137] ... where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way. See also Gleeson CJ and Toohey J at [39] to [46], 197 CLR at 626 to 628. A finding that is a crucial step in the ultimate conclusion reached by a Tribunal for which there is no evidence may, however, constitute jurisdictional error: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 at [19] , [2003] FCAFC 231 ; 77 ALD 402 at 407 per Mansfield, Selway and Bennett JJ, citing Australian Broadcasting Tribunal v Bond , supra . " [O]ne illogical aspect of fact finding in a wider scheme of factual analysis " may not expose jurisdictional error: Minister for Immigration and Multicultural and Indigenous Affairs v NBDS [2006] FCA 265 at [11] , [2006] FCA 265 ; 90 ALD 614 at 618 per Allsop J.
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Cassim [2000] HCA 50 , 175 ALR 209
Outcome: applied
The review process ", it may be accepted, " is inquisitorial rather than adversarial ": NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [58] , [2004] FCAFC 263 ; 144 FCR 1 at 18 per Black CJ, French and Selway JJ. And s 427(1)(d) of the Migration Act 1958 (Cth) confers a discretionary power upon the Tribunal to " require the Secretary to arrange for the making of any investigation ...". But that section does not impose any general duty to inquire: Re Minister for Immigration and Multicultural Affairs; Ex parte Cassim [2000] HCA 50 at [12] to [14] [2000] HCA 50 ; , 175 ALR 209 at 212 to 213. See also Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 at [86] [2001] FCA 274 ; , 106 FCR 426 at 445; Gomez v Minister for Immigration and Multicultural Affairs [2002] FCA 480 at [26], 190 ALR 543 at 553 to 554; S1925 of 2003 v Minister for Immigration and Citizenship [2008] FCA 246 at [21] .
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Eshetu [1999] HCA 21 , 197 CLR 611
Outcome: applied
some faulty or irrational finding of fact does not establish an error of law, let alone jurisdictional error: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321. Mason CJ (with whom Brennan, Toohey and Gaudron JJ agreed) there observed at 356 (emphasis in original): Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference &#8212; in other words, the particular inference is reasonably open &#8212; even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place. Findings which are apparently inconsistent may, however, serve to sound a " warning note " such that a decision may be more carefully scrutinised: Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1 , 84 FCR 411. Black CJ, von Doussa and Carr JJ there observed: [25] ... although want of logic in drawing an inference will not of itself constitute error of law, it may sound a warning note to put one on inquiry whether there was indeed any basis for the inference drawn. Likewise, want of logic might in some cases also sound a warning note to put one on inquiry whether there was only a purported, and not a real, exercise of the functions entrusted to the decision-maker. But where different conclusions are reasonably open on the facts, it is the Tribunal that is entrusted with the task of making those findings of fact which it considers appropriate: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 , 197 CLR 611. Gummow J there observed: [137] ... where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way. See also Gleeson CJ and Toohey J at [39] to [46], 197 CLR at 626 to 628. A finding that is a crucial step in the ultimate conclusion reached by a Tribunal for which there is no evidence may, however, constitute jurisdictional error: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 at [19] , [2003] FCAFC 231 ; 77 ALD 402 at 407 per Mansfield, Selway and Bennett JJ, citing Australian Broadcasting Tribunal v Bond , supra . " [O]ne illogical aspect of fact finding in a wider scheme of factual analysis " may not expose jurisdictional error: Minister for Immigration and Multicultural and Indigenous Affairs v NBDS [2006] FCA 265 at [11] , [2006] FCA 265 ; 90 ALD 614 at 618 per Allsop J.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v NBDS [2006] FCA 265 , 90 ALD 614
Outcome: applied
some faulty or irrational finding of fact does not establish an error of law, let alone jurisdictional error: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321. Mason CJ (with whom Brennan, Toohey and Gaudron JJ agreed) there observed at 356 (emphasis in original): Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference &#8212; in other words, the particular inference is reasonably open &#8212; even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place. Findings which are apparently inconsistent may, however, serve to sound a " warning note " such that a decision may be more carefully scrutinised: Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1 , 84 FCR 411. Black CJ, von Doussa and Carr JJ there observed: [25] ... although want of logic in drawing an inference will not of itself constitute error of law, it may sound a warning note to put one on inquiry whether there was indeed any basis for the inference drawn. Likewise, want of logic might in some cases also sound a warning note to put one on inquiry whether there was only a purported, and not a real, exercise of the functions entrusted to the decision-maker. But where different conclusions are reasonably open on the facts, it is the Tribunal that is entrusted with the task of making those findings of fact which it considers appropriate: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 , 197 CLR 611. Gummow J there observed: [137] ... where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way. See also Gleeson CJ and Toohey J at [39] to [46], 197 CLR at 626 to 628. A finding that is a crucial step in the ultimate conclusion reached by a Tribunal for which there is no evidence may, however, constitute jurisdictional error: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 at [19] , [2003] FCAFC 231 ; 77 ALD 402 at 407 per Mansfield, Selway and Bennett JJ, citing Australian Broadcasting Tribunal v Bond , supra . " [O]ne illogical aspect of fact finding in a wider scheme of factual analysis " may not expose jurisdictional error: Minister for Immigration and Multicultural and Indigenous Affairs v NBDS [2006] FCA 265 at [11] , [2006] FCA 265 ; 90 ALD 614 at 618 per Allsop J.
Case: Mohammed v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 47
Outcome: applied
when entertaining an appeal from the Migration Review Tribunal, in Mohammed v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 47 Moore, North and Emmett JJ concluded at [24] that "... the Tribunal was under no general duty to inquire. It was entitled to act on the material presented by the appellant ... ". It has, however, further been recognised that a failure on the part of the Tribunal to make inquiries may constitute jurisdictional error: Minister for Immigration and Citizenship v Le [2007] FCA 1318 at [60] to [63], 161 FCR 151 at 172 to 174 per Kenny J. Applied: SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372 at [19] , [2008] FCA 1372 ; 104 ALD 22 at 25 to 26.
Case: Odhiambo v Minister for Immigration and Multicultural Affairs [2002] FCAFC 194 , 122 FCR 29
Outcome: cited
written submission was advanced on behalf of the Minister as to whether or not a proceeding such as the present could be brought by the Appellants without the appointment of a guardian or tutor: see X v Minister for Immigration and Multicultural Affairs [1999] FCA 995 , 92 FCR 524 ; Odhiambo v Minister for Immigration and Multicultural Affairs [2002] FCAFC 194 at [106] , [2002] FCAFC 194 ; 122 FCR 29 at 50. The concern of the Respondent Minister may nevertheless be accepted. In the absence of an order being made under O 43 of the Federal Court Rules appointing a " tutor ", it has been said that the resolution of an appeal may not bind the Appellants: SBAH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 426 , 126 FCR 552.
Case: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155
Outcome: applied
some circumstances, a requirement may be imposed upon an administrative decision-maker to make further inquiries or to secure " more information ". One of the first judges of this Court to recognise that such circumstances may arise was Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155 at 169 to 170. See also Luu v Renevier (1989) 91 ALR 39. But in Foxtel Management Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 589 at [214] , [2000] FCA 589 ; 173 ALR 362 at 417, Wilcox J also recognised that: It will be a relatively rare case in which a statutory decision is vitiated because of the decision-maker's failure to make inquiries. It will need to be apparent that relevant material was readily available to the decision-maker, but ignored.
Case: S1925 of 2003 v Minister for Immigration and Citizenship [2008] FCA 246
Outcome: applied
The review process ", it may be accepted, " is inquisitorial rather than adversarial ": NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [58] , [2004] FCAFC 263 ; 144 FCR 1 at 18 per Black CJ, French and Selway JJ. And s 427(1)(d) of the Migration Act 1958 (Cth) confers a discretionary power upon the Tribunal to " require the Secretary to arrange for the making of any investigation ...". But that section does not impose any general duty to inquire: Re Minister for Immigration and Multicultural Affairs; Ex parte Cassim [2000] HCA 50 at [12] to [14] [2000] HCA 50 ; , 175 ALR 209 at 212 to 213. See also Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 at [86] [2001] FCA 274 ; , 106 FCR 426 at 445; Gomez v Minister for Immigration and Multicultural Affairs [2002] FCA 480 at [26], 190 ALR 543 at 553 to 554; S1925 of 2003 v Minister for Immigration and Citizenship [2008] FCA 246 at [21] .
Case: SBAH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 426 , 126 FCR 552
Outcome: applied
written submission was advanced on behalf of the Minister as to whether or not a proceeding such as the present could be brought by the Appellants without the appointment of a guardian or tutor: see X v Minister for Immigration and Multicultural Affairs [1999] FCA 995 , 92 FCR 524 ; Odhiambo v Minister for Immigration and Multicultural Affairs [2002] FCAFC 194 at [106] , [2002] FCAFC 194 ; 122 FCR 29 at 50. The concern of the Respondent Minister may nevertheless be accepted. In the absence of an order being made under O 43 of the Federal Court Rules appointing a " tutor ", it has been said that the resolution of an appeal may not bind the Appellants: SBAH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 426 , 126 FCR 552.
Case: SCAW v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 810
Outcome: applied
is made in O 43 of this Court's Rules for the appointment of " a tutor for a person under disability " for the purposes of conducting a proceeding in this Court. A " tutor " is defined as meaning " a next friend, guardian ad litem or committee of the person ... under disability ". If a " tutor " is to be appointed, it is obviously inappropriate to appoint the Minister as he is a Respondent to the proceeding and a person having an " interest adverse to the interest of the person under disability " within the meaning of O 43 r 4(3): SCAW v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 810 at [2] . The Appellants are infants and, accordingly, persons " under disability " within the meaning of O 43. Order 43 not only confers the power to appoint the Appellants' father as their tutor. That Order, not surprisingly, also provides for a number of procedural requirements to be satisfied prior to such an order being made. Those requirements include the filing and service of a notice of motion (O 43 r 2(2)), the need for a tutor to act by a solicitor (O 43 r 5(2)), and the filing of a certificate by the solicitor stating that " the tutor has no interest in the proceeding adverse to that of the person under disability " (O 43 r 4(6)(b)).