mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
Outcome: cited
The Tribunal's responsibility in the conduct of the hearing was governed by s 422B of the Act. The common law natural justice hearing rule has been excluded by operation of that section. It did not apply in the hearing by the Tribunal: Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61 ; (2006) 151 FCR 214; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62.
Case: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 222 ALR 411
Outcome: referred to
Because of the provisions of s 422B of the Act, there was no common law duty of the kind addressed in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 222 ALR 411. If I am wrong about that and a common law duty arose, notwithstanding the provisions of s 422B, the duty was discharged because the male appellant was given copies of the 'dob in' letters.
Case: QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
Outcome: referred to
Section 424A does not apply to country information: QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 ; WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330. For those reasons, s 424A was not breached by the Tribunal. None of the grounds identified by the appellants have been made out.
Case: WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330
Outcome: referred to
Section 424A does not apply to country information: QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 ; WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330. For those reasons, s 424A was not breached by the Tribunal. None of the grounds identified by the appellants have been made out.
Case: SAAP &amp; Another v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162
Outcome: applied
Section 424A is in mandatory terms. A breach of s 424A will constitute jurisdictional error: SAAP &amp; Another v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162. 79 In VBAM of 2002 v Minister for Immigration and Multicultural Affairs [2003] FCA 504 which was decided before SAAP , Gray J held that there was no obligation on the Tribunal to give notice under s 424A where the Tribunal intended to rely on contradictory evidence of a witness called by the applicant. He held that their evidence was information that the applicant gave for the purposes of the application. That decision is inconsistent with the remarks of Lee J (agreed to by Tamberlin J; Dowsett J dissenting) in the later decision of the Full Court in Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16. Branson J followed that later decision in SZECG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 733. In that case, Branson J held that the appellant had not given information to the Tribunal by advising the Tribunal that he wanted the Tribunal to take evidence from his father. A different conclusion in relation to the evidence of a witness was arrived at in SZAQI v Minister for Immigration and Multicultural Affairs [2006] FCA 1653. The applicant's evidence in that case was contradicted by a witness who the applicant asked to be called in a letter written to the Tribunal. Bennett J contrasted that situation where evidence was 'called by the Tribunal as part of its inquisitorial function (cf SAAP)'. She referred to Applicant M164/2002 and said at [24]: 'Accordingly, I do not take Lee J as finding that evidence of a witness called by the applicant needs to be provided in writing to an applicant by reason of s 424A(1) of the Act. That information is evidence given by the applicant to the Tribunal within s 424A(3)(b) of the Act.'
Case: MZWMQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1263
Outcome: distinguished
Reference was made to a line of cases where the Tribunal had more than one applicant before it and a dependent applicant gave evidence which contradicted or tended to contradict the primary applicant's case. In MZWMQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1263 , the applicant's husband was also an applicant (a dependent applicant) before the Tribunal and gave evidence. Marshall J held that the husband was also an applicant. Section 424A(3)(b) excused the Tribunal from giving the applicant written notice of her husband's evidence. That decision was followed by Young J in Applicant M47/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 176. The proposition was doubted but not finally decided by Nicholson and Emmett JJ in SZBWJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 13. 80 The authorities are not at one in relation to the Tribunal's obligations under s 424A of the Act. However, this is not a case where there was one hearing at which there was more than one applicant including a dependent applicant. These were separate hearings with separate applicants. In those circumstances, this case can be distinguished from MZWMQ and M47/2004 . Nor is this a case where the applicant asked for a witness' evidence to be received during the hearing. For that reason, the decisions in VBAM of 2002 , Applicant M164/2002, SZECG and SZAQI are also not directly relevant to the circumstances of this case.
Case: Applicant M47/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 176
Outcome: distinguished
Reference was made to a line of cases where the Tribunal had more than one applicant before it and a dependent applicant gave evidence which contradicted or tended to contradict the primary applicant's case. In MZWMQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1263 , the applicant's husband was also an applicant (a dependent applicant) before the Tribunal and gave evidence. Marshall J held that the husband was also an applicant. Section 424A(3)(b) excused the Tribunal from giving the applicant written notice of her husband's evidence. That decision was followed by Young J in Applicant M47/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 176. The proposition was doubted but not finally decided by Nicholson and Emmett JJ in SZBWJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 13. 80 The authorities are not at one in relation to the Tribunal's obligations under s 424A of the Act. However, this is not a case where there was one hearing at which there was more than one applicant including a dependent applicant. These were separate hearings with separate applicants. In those circumstances, this case can be distinguished from MZWMQ and M47/2004 . Nor is this a case where the applicant asked for a witness' evidence to be received during the hearing. For that reason, the decisions in VBAM of 2002 , Applicant M164/2002, SZECG and SZAQI are also not directly relevant to the circumstances of this case.
Case: SZBWJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 13
Outcome: distinguished
Reference was made to a line of cases where the Tribunal had more than one applicant before it and a dependent applicant gave evidence which contradicted or tended to contradict the primary applicant's case. In MZWMQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1263 , the applicant's husband was also an applicant (a dependent applicant) before the Tribunal and gave evidence. Marshall J held that the husband was also an applicant. Section 424A(3)(b) excused the Tribunal from giving the applicant written notice of her husband's evidence. That decision was followed by Young J in Applicant M47/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 176. The proposition was doubted but not finally decided by Nicholson and Emmett JJ in SZBWJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 13.
Case: VBAM of 2002 v Minister for Immigration and Multicultural Affairs [2003] FCA 504
Outcome: distinguished
In VBAM of 2002 v Minister for Immigration and Multicultural Affairs [2003] FCA 504 which was decided before SAAP , Gray J held that there was no obligation on the Tribunal to give notice under s 424A where the Tribunal intended to rely on contradictory evidence of a witness called by the applicant. He held that their evidence was information that the applicant gave for the purposes of the application. That decision is inconsistent with the remarks of Lee J (agreed to by Tamberlin J; Dowsett J dissenting) in the later decision of the Full Court in Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16. Branson J followed that later decision in SZECG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 733. In that case, Branson J held that the appellant had not given information to the Tribunal by advising the Tribunal that he wanted the Tribunal to take evidence from his father. A different conclusion in relation to the evidence of a witness was arrived at in SZAQI v Minister for Immigration and Multicultural Affairs [2006] FCA 1653. The applicant's evidence in that case was contradicted by a witness who the applicant asked to be called in a letter written to the Tribunal. Bennett J contrasted that situation where evidence was 'called by the Tribunal as part of its inquisitorial function (cf SAAP)'. She referred to Applicant M164/2002 and said at [24]: 'Accordingly, I do not take Lee J as finding that evidence of a witness called by the applicant needs to be provided in writing to an applicant by reason of s 424A(1) of the Act. That information is evidence given by the applicant to the Tribunal within s 424A(3)(b) of the Act.' 80 The authorities are not at one in relation to the Tribunal's obligations under s 424A of the Act. However, this is not a case where there was one hearing at which there was more than one applicant including a dependent applicant. These were separate hearings with separate applicants. In those circumstances, this case can be distinguished from MZWMQ and M47/2004 . Nor is this a case where the applicant asked for a witness' evidence to be received during the hearing. For that reason, the decisions in VBAM of 2002 , Applicant M164/2002, SZECG and SZAQI are also not directly relevant to the circumstances of this case.
Case: Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16
Outcome: distinguished
In VBAM of 2002 v Minister for Immigration and Multicultural Affairs [2003] FCA 504 which was decided before SAAP , Gray J held that there was no obligation on the Tribunal to give notice under s 424A where the Tribunal intended to rely on contradictory evidence of a witness called by the applicant. He held that their evidence was information that the applicant gave for the purposes of the application. That decision is inconsistent with the remarks of Lee J (agreed to by Tamberlin J; Dowsett J dissenting) in the later decision of the Full Court in Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16. Branson J followed that later decision in SZECG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 733. In that case, Branson J held that the appellant had not given information to the Tribunal by advising the Tribunal that he wanted the Tribunal to take evidence from his father. A different conclusion in relation to the evidence of a witness was arrived at in SZAQI v Minister for Immigration and Multicultural Affairs [2006] FCA 1653. The applicant's evidence in that case was contradicted by a witness who the applicant asked to be called in a letter written to the Tribunal. Bennett J contrasted that situation where evidence was 'called by the Tribunal as part of its inquisitorial function (cf SAAP)'. She referred to Applicant M164/2002 and said at [24]: 'Accordingly, I do not take Lee J as finding that evidence of a witness called by the applicant needs to be provided in writing to an applicant by reason of s 424A(1) of the Act. That information is evidence given by the applicant to the Tribunal within s 424A(3)(b) of the Act.'
Case: SZECG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 733
Outcome: distinguished
In VBAM of 2002 v Minister for Immigration and Multicultural Affairs [2003] FCA 504 which was decided before SAAP , Gray J held that there was no obligation on the Tribunal to give notice under s 424A where the Tribunal intended to rely on contradictory evidence of a witness called by the applicant. He held that their evidence was information that the applicant gave for the purposes of the application. That decision is inconsistent with the remarks of Lee J (agreed to by Tamberlin J; Dowsett J dissenting) in the later decision of the Full Court in Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16. Branson J followed that later decision in SZECG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 733. In that case, Branson J held that the appellant had not given information to the Tribunal by advising the Tribunal that he wanted the Tribunal to take evidence from his father. A different conclusion in relation to the evidence of a witness was arrived at in SZAQI v Minister for Immigration and Multicultural Affairs [2006] FCA 1653. The applicant's evidence in that case was contradicted by a witness who the applicant asked to be called in a letter written to the Tribunal. Bennett J contrasted that situation where evidence was 'called by the Tribunal as part of its inquisitorial function (cf SAAP)'. She referred to Applicant M164/2002 and said at [24]: 'Accordingly, I do not take Lee J as finding that evidence of a witness called by the applicant needs to be provided in writing to an applicant by reason of s 424A(1) of the Act. That information is evidence given by the applicant to the Tribunal within s 424A(3)(b) of the Act.'
Case: SZAQI v Minister for Immigration and Multicultural Affairs [2006] FCA 1653
Outcome: distinguished
In VBAM of 2002 v Minister for Immigration and Multicultural Affairs [2003] FCA 504 which was decided before SAAP , Gray J held that there was no obligation on the Tribunal to give notice under s 424A where the Tribunal intended to rely on contradictory evidence of a witness called by the applicant. He held that their evidence was information that the applicant gave for the purposes of the application. That decision is inconsistent with the remarks of Lee J (agreed to by Tamberlin J; Dowsett J dissenting) in the later decision of the Full Court in Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16. Branson J followed that later decision in SZECG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 733. In that case, Branson J held that the appellant had not given information to the Tribunal by advising the Tribunal that he wanted the Tribunal to take evidence from his father. A different conclusion in relation to the evidence of a witness was arrived at in SZAQI v Minister for Immigration and Multicultural Affairs [2006] FCA 1653. The applicant's evidence in that case was contradicted by a witness who the applicant asked to be called in a letter written to the Tribunal. Bennett J contrasted that situation where evidence was 'called by the Tribunal as part of its inquisitorial function (cf SAAP)'. She referred to Applicant M164/2002 and said at [24]: 'Accordingly, I do not take Lee J as finding that evidence of a witness called by the applicant needs to be provided in writing to an applicant by reason of s 424A(1) of the Act. That information is evidence given by the applicant to the Tribunal within s 424A(3)(b) of the Act.' 80 The authorities are not at one in relation to the Tribunal's obligations under s 424A of the Act. However, this is not a case where there was one hearing at which there was more than one applicant including a dependent applicant. These were separate hearings with separate applicants. In those circumstances, this case can be distinguished from MZWMQ and M47/2004 . Nor is this a case where the applicant asked for a witness' evidence to be received during the hearing. For that reason, the decisions in VBAM of 2002 , Applicant M164/2002, SZECG and SZAQI are also not directly relevant to the circumstances of this case.
Case: Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 225 ALR 541
Outcome: cited
now to the issue of penalty, the applicable principles are not in dispute and it is convenient to deal with them under the following headings which are drawn from those used by Merkel J in Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 225 ALR 541 ; see also Australian Competition and Consumer Commission v World Netsafe Pty Ltd [2003] FCA 1501 ; (2003) 133 FCR 279 at [16] - [17] . (1) The Contemnor's personal circumstances
Case: Australian Competition and Consumer Commission v World Netsafe Pty Ltd [2003] FCA 1501 ; (2003) 133 FCR 279
Outcome: cited
now to the issue of penalty, the applicable principles are not in dispute and it is convenient to deal with them under the following headings which are drawn from those used by Merkel J in Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 225 ALR 541 ; see also Australian Competition and Consumer Commission v World Netsafe Pty Ltd [2003] FCA 1501 ; (2003) 133 FCR 279 at [16] - [17] . (1) The Contemnor's personal circumstances
Case: Real Tech Systems Integration Pty Ltd v Meuross (1998) 82 FCR 150
Outcome: cited
seeks an order for costs in its favour on the motion on an indemnity basis, such costs to be payable forthwith. Initially I was minded to reserve the question of costs. Notwithstanding that it raises a discrete question in the principal proceedings unrelated to the issue awarding final determination, it appeared to me that it was so enmeshed in the circumstances and manner of conduct of the proceeding itself that a wider view of it should be taken when determining the proper incidence of costs. However, this is not a course that is open to me. Notwithstanding that in form the contempt proceeding is an interlocutory one, there is authority in this Court for the view that an order for costs on a motion charging contempt is a final and not an interlocutory order: see Real Tech Systems Integration Pty Ltd v Meuross (1998) 82 FCR 150 and also Nelmac Pty Ltd v Construction, Forestry, Mining and Energy Union [1999] FCA 929. Metcash, as an abundance of caution, has also asked that I make an order that the costs ordered to be paid be payable forthwith. A like course was taken by Lehane J in the Real Tech case.
Case: Nelmac Pty Ltd v Construction, Forestry, Mining and Energy Union [1999] FCA 929
Outcome: cited
seeks an order for costs in its favour on the motion on an indemnity basis, such costs to be payable forthwith. Initially I was minded to reserve the question of costs. Notwithstanding that it raises a discrete question in the principal proceedings unrelated to the issue awarding final determination, it appeared to me that it was so enmeshed in the circumstances and manner of conduct of the proceeding itself that a wider view of it should be taken when determining the proper incidence of costs. However, this is not a course that is open to me. Notwithstanding that in form the contempt proceeding is an interlocutory one, there is authority in this Court for the view that an order for costs on a motion charging contempt is a final and not an interlocutory order: see Real Tech Systems Integration Pty Ltd v Meuross (1998) 82 FCR 150 and also Nelmac Pty Ltd v Construction, Forestry, Mining and Energy Union [1999] FCA 929. Metcash, as an abundance of caution, has also asked that I make an order that the costs ordered to be paid be payable forthwith. A like course was taken by Lehane J in the Real Tech case.
Case: Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employees' Union (No 2) (1987) 15 FCR 64
Outcome: cited
is well accepted, the power to award costs in all proceedings is discretionary. Nonetheless, as is occasionally observed, it is "common or usual practice" to order that the contemnor pay costs on an indemnity basis: see eg Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employees' Union (No 2) (1987) 15 FCR 64 at 86-87. However, there is no general principle or rule of law in contempt cases to this effect: see Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2003] FCAFC 13 ; (2003) 196 ALR 350 at [6] ; and see generally Dal Pont, Law of Costs (2 nd ed, 2009) at [16.65]. As was observed by Moore J in the BHP Steel case at [8] "in a significant number of cases where indemnity costs have been awarded in contempt proceedings, there is a link between the award of indemnity costs and the penalty for contempt. Costs can be explicitly awarded in substitution for or in lieu of a monetary or other penalty". In the present matter as I have indicated I intend to impose what I regard as being a reasonable and adequate pecuniary penalty. I take that matter into account in my consideration of an appropriate costs order. While I have indicated that Mr Bunn's conduct is serious, I do not however regard this matter as one involving significant public interests. It is very much a matter inter partes . In saying this I should acknowledge that Metcash ultimately had to resort to contempt proceedings to secure compliance with a Court order. I nonetheless do not consider the present to be an appropriate proceeding in which to make an indemnity order notwithstanding that one justification advanced for such an order is that the bringing of such proceedings should not result in a party being further prejudiced: see eg Concrete Constructions , at 86. The present is a complex litigation in which there is quite obvious antagonism between the parties. I mean no disrespect in saying that Metcash has fought the matter with considerable vigour as is reflected in the volume of material that has been placed before me. I am not satisfied that, in addition to paying a fine, Mr Bunn should properly be called upon to pay the full costs of the considerable forces arrayed, and of the material presented, against him. An appropriate order in the circumstances in my view would be that the usual order be made and that Mr Bunn pay Metcash's costs on a party and party basis and that the costs be taxable forthwith. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 27 March 2009 Counsel for the Applicants: Mr J Wells QC and Mr I Robertson SC Solicitor for the Applicants: Kelly &amp; Co The Respondent appeared in person. Date of Hearing: 24 March 2009 Date of Judgment: 27 March 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/266.html