mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re South Downs Packers Pty Ltd [1984] 2 Qd R 559
Outcome: cited
The proposition in the first sentence of para 11 in the passage quoted at [21] is correct. A party seeking an order ex parte must disclose all material facts. However, as Campbell CJ said in Re South Downs Packers Pty Ltd [1984] 2 Qd R 559 (Full Court) at 560: "What is material in any case depends, in the first instance, upon the nature of the case sought to be made out and, to that end, must be viewed in the context of all the relevant circumstances." 23 The applicant has taken far too narrow a view of what constituted material facts that should have been disclosed to the Magistrate. His submissions quoted at [21] are, to a large extent, beside the point. A reasonable person in the Magistrate's position who had the benefit of the transcript of the bankrupt's second examination (or an accurate summary thereof) would readily discern that the bankrupt was saying that though she did not own the jewellery in question, and that it was owned by the second respondent , she thought she was "emotionally" or, indeed, morally entitled to it. Mr King's affidavit did not disclose this to the Magistrate. That was a serious omission for an affidavit that purported to give an accurate account of the evidence given by the bankrupt at her second examination. Nor was that omission rectified before the Magistrate. 25 The applicant contended that the Court should apply the test in Re South Downs Packers . In that case, Connolly J said at 566 that "[a] non-disclosure will not be material unless it be likely to influence the court in acceding to the application". (The emphasis is mine.) Though I prefer to follow Milcap Publishing as it is a decision of this Court, the application of the test in Re South Downs Packers would not lead to a different result.
Case: Re Bayliss (1987) 15 FCR 167
Outcome: cited
Finally, the notice of appeal referred to at [3] says that the Magistrate erred in "failing to have regard to, or to apply, the decision in Re Bayliss (1987) 15 FCR 167 to which he was referred, to the case before him". Though the applicant's submissions mention Re Bayliss , the applicant's counsel did not mention it before me. In any case, I cannot see how Re Bayliss could have advanced the applicant's case as it stands for a proposition of a highly general nature. I can see no circumstance in this case that makes that proposition of especial significance.
Case: Applicant VMAO v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 427
Outcome: cited
The Magistrate's decision is not attended with sufficient doubt to warrant its reconsideration. I do not think it necessary to go on to consider whether substantial injustice would result if leave were not granted, supposing that the Magistrate's decision was wrong. The two limbs of the test in D&eacute;cor Corporation cannot be considered in isolation from one another: see D&eacute;cor Corporation at 398-399. The prospect that an appeal, if leave were granted, would be successful is so remote that it would be artificial to suppose that the decision below is wrong. See Applicant VMAO v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 427 at [22] .
Case: Alexander v Cambridge Credit Corporation Ltd (rec apptd) (1985) 2 NSWLR 685
Outcome: cited
Further, if I am incorrect and the Magistrate's orders of 13 April 2006 are final rather than interlocutory, I would nonetheless refuse to grant a stay. For the same reasons that I refused to grant leave to appeal, I would hold that the applicant has not demonstrated "a reason or an appropriate case to warrant the exercise of the discretion in his favour": Alexander v Cambridge Credit Corporation Ltd (rec apptd) (1985) 2 NSWLR 685 (Full Court) at 694 (and see Stirling Harbour Services Pty Ltd v Bunbury Port Authority [2000] FCA 87 at [13] per French J) or that he has a serious case to be tried and that the balance of convenience favours the granting of the stay: Stirling Harbour Services at [15].
Case: Stirling Harbour Services Pty Ltd v Bunbury Port Authority [2000] FCA 87
Outcome: cited
Further, if I am incorrect and the Magistrate's orders of 13 April 2006 are final rather than interlocutory, I would nonetheless refuse to grant a stay. For the same reasons that I refused to grant leave to appeal, I would hold that the applicant has not demonstrated "a reason or an appropriate case to warrant the exercise of the discretion in his favour": Alexander v Cambridge Credit Corporation Ltd (rec apptd) (1985) 2 NSWLR 685 (Full Court) at 694 (and see Stirling Harbour Services Pty Ltd v Bunbury Port Authority [2000] FCA 87 at [13] per French J) or that he has a serious case to be tried and that the balance of convenience favours the granting of the stay: Stirling Harbour Services at [15].
Case: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507
Outcome: followed
As far as Ground 1 is concerned, which is the allegation of bias on the part of the Tribunal, it needs to be remembered that this ground was not argued in the proceedings before the learned Federal Magistrate. Such an allegation must be distinctly made and clearly proven (see Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507. Rarely will bias on the part of the Tribunal be apparent from the written reasons only (see SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358).
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 ; (2000) 74 ALJR 405
Outcome: followed
In oral submissions before me today, the appellant has repeated his contention that the decisions of the delegate, the Tribunal and the learned Federal Magistrate were not fair and did not fairly reflect the merits of his claims. This is a complaint which amounts to the seeking of a merits review of the decisions and, in particular, the decision of the Federal Magistrate and cannot be pursued in this Court on an application such as that presently before me (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 ; (2000) 74 ALJR 405 per McHugh J at [67]). 20 I have come to the view that the appellant has not made out a case for overturning the Federal Magistrate's decision or for judicial review of the Tribunal's decision.
Case: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 ; (2001) 75 ALJR 982
Outcome: followed
In the present case, there was nothing in the material which is before me which indicates bias. Furthermore, there is no evidence upon which a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind to the question of determining the application for review (see Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 ; (2001) 75 ALJR 982 at [27] [32]). 23 Ground 1 has not been made out. 24 Ground 2 and Ground 3 should be considered together. There is no particularity to the grounds, as specified in the Notice of Appeal, no evidence to support them and no submissions which justify them. For these reasons, these grounds also cannot succeed.
Case: SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358
Outcome: cited
As far as Ground 1 is concerned, which is the allegation of bias on the part of the Tribunal, it needs to be remembered that this ground was not argued in the proceedings before the learned Federal Magistrate. Such an allegation must be distinctly made and clearly proven (see Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507. Rarely will bias on the part of the Tribunal be apparent from the written reasons only (see SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358).
Case: Abebe v Commonwealth (1999) 197 CLR 510
Outcome: cited
finding of the Tribunal in this regard was open to it on the evidence. The weight the Tribunal gives to any piece of evidence is a matter for it to decide and there is no scope for judicial review simply because another decision-maker might give greater or lesser weight to a particular matter: see Abebe v Commonwealth (1999) 197 CLR 510 at 580 and NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at 440. The Court may not engage in fact-finding about the merits of the appellant's case.
Case: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321
Outcome: cited
my view his Honour was correct. The findings of the Tribunal were open to it on the evidence before it. This ground invites the Court to undertake a review of the fact finding of the Tribunal. To establish that there is a legal error in connection with a finding of the Tribunal, the appellant must be able to demonstrate that there was no basis whatsoever to support a finding made or inference drawn by the Tribunal: see Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 356. It can not be established that there was no basis for the Tribunal finding. Rather the Tribunal carefully considered the appellant's evidence before arriving at a conclusion, albeit adverse to the appellant. It is well-established that it is no part of the function of the court, in dealing with judicial review of an administrative decision, to engage in fact-finding about the merits of the appellants' case: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10] . The Court must be wary of turning a review of the Tribunal's decision into a reconsideration of the merits of the decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272.
Case: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Outcome: referred to
weight that the Tribunal ultimately gives to a piece of evidence is a matter for it to decide. In such circumstances, there is limited scope for judicial review: see NBKT at 440 and Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [26] . Further, the Tribunal's choice and assessment of independent country information is a factual matter for it: see NAHI at [13].
Case: Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: referred to
my view his Honour was correct. The findings of the Tribunal were open to it on the evidence before it. This ground invites the Court to undertake a review of the fact finding of the Tribunal. To establish that there is a legal error in connection with a finding of the Tribunal, the appellant must be able to demonstrate that there was no basis whatsoever to support a finding made or inference drawn by the Tribunal: see Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 356. It can not be established that there was no basis for the Tribunal finding. Rather the Tribunal carefully considered the appellant's evidence before arriving at a conclusion, albeit adverse to the appellant. It is well-established that it is no part of the function of the court, in dealing with judicial review of an administrative decision, to engage in fact-finding about the merits of the appellants' case: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10] . The Court must be wary of turning a review of the Tribunal's decision into a reconsideration of the merits of the decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272.
Case: MZXNQ v Minister for Immigration and Citizenship [2009] FMCA 197
Outcome: followed
is an appeal against a judgment of a Federal Magistrate delivered on 18 March 2009 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") handed down on 9 April 2008: see MZXNQ v Minister for Immigration and Citizenship [2009] FMCA 197. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant. The appellant is a citizen of Sri Lanka. The appellant entered Australia on 3 February 1999 on a Student visa. On 12 August 2002 he lodged an application for a protection visa with the (now) Department of Immigration and Citizenship. The appellant claimed that he had a well-founded fear of persecution on the basis of his political opinion due to his involvement with the People's Alliance ("PA"). The appellant claimed that he supported a PA candidate ("the candidate"), organised the local youth wing of the PA, and attended protests against the United National Party ("UNP"). He claimed that, as a result of his involvement, he was subjected to a number of incidents of persecution from supporters of the UNP. He claimed that he was assaulted by a mob when attending an anti-UNP protest in 1994 and that people later came with weapons to his aunt's house where he was living in hiding and inquired about him. He further claimed that, in June 1994, he was assaulted by a gang, which resulted in him sustaining an injury to his arm and requiring treatment in hospital. He said that the candidate he supported advised him to leave the country because he was being targeted by the UNP.
Case: NAHI v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 10
Outcome: referred to
my view his Honour was correct. The findings of the Tribunal were open to it on the evidence before it. This ground invites the Court to undertake a review of the fact finding of the Tribunal. To establish that there is a legal error in connection with a finding of the Tribunal, the appellant must be able to demonstrate that there was no basis whatsoever to support a finding made or inference drawn by the Tribunal: see Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 356. It can not be established that there was no basis for the Tribunal finding. Rather the Tribunal carefully considered the appellant's evidence before arriving at a conclusion, albeit adverse to the appellant. It is well-established that it is no part of the function of the court, in dealing with judicial review of an administrative decision, to engage in fact-finding about the merits of the appellants' case: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10] . The Court must be wary of turning a review of the Tribunal's decision into a reconsideration of the merits of the decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272. The weight that the Tribunal ultimately gives to a piece of evidence is a matter for it to decide. In such circumstances, there is limited scope for judicial review: see NBKT at 440 and Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [26] . Further, the Tribunal's choice and assessment of independent country information is a factual matter for it: see NAHI at [13]. In any case, even if it could be established that the Tribunal made an error of fact by relying on incorrect country information, this would not amount to a jurisdictional error: see NAHI at [10]. The findings of the Tribunal regarding the politicians in Sri Lanka, which was based on the DFAT report, were open to it on the evidence before it. There is no apparent error in the Tribunal's reliance on this report. The fourth ground is not made out. GROUND 5 The Tribunal's conclusion that the appellant was not telling the truth about his involvement in the PA youth groups was based on its erroneous conclusions in Grounds 1 through 4 above.
Case: NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419
Outcome: referred to
finding of the Tribunal in this regard was open to it on the evidence. The weight the Tribunal gives to any piece of evidence is a matter for it to decide and there is no scope for judicial review simply because another decision-maker might give greater or lesser weight to a particular matter: see Abebe v Commonwealth (1999) 197 CLR 510 at 580 and NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at 440. The Court may not engage in fact-finding about the merits of the appellant's case. The weight that the Tribunal ultimately gives to a piece of evidence is a matter for it to decide. In such circumstances, there is limited scope for judicial review: see NBKT at 440 and Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [26] . Further, the Tribunal's choice and assessment of independent country information is a factual matter for it: see NAHI at [13].
Case: Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596
Outcome: cited
Telstra contended that the preparation and publication of the report making findings of a breach of s 17 of the Act gave rise to an obligation on the part of Mr Smith to afford procedural fairness to Telstra. Telstra argued that a person has the right to be heard prior to an administrative decision-maker making a decision which adversely affects the legal rights or legitimate expectations of a person (referring to Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596 at 598). Telstra submitted that it was not given any, or adequate, opportunity to provide information and make submissions in respect of matters critical to the decision that it breached s 17 of the Act. Specifically, Telstra argued that, despite a direct request, it was not given notice of the adverse findings before the report was published, nor was Telstra given notice of, or an opportunity to respond to, the matters underlying the findings.
Case: Asiamet (No 1) Resources Pty Ltd v Federal Commissioner of Taxation [2003] FCA 35 ; (2003) 196 ALR 692
Outcome: applied
It is not in all cases a pre-requisite for the according of procedural fairness that a draft of a report containing adverse findings be given for comment to the person the subject of the adverse findings: see, eg, Hoffman La Roche v Trade Secretary [1975] AC 295 at 369; Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074 ; (1994) 49 FCR 576 , at 590-91; Asiamet (No 1) Resources Pty Ltd v Federal Commissioner of Taxation [2003] FCA 35 ; (2003) 196 ALR 692 , at 713-14.
Case: Brinsmead v Commissioner, Tweed Shire Council Public Inquiry (2007) 69 NSWLR 438
Outcome: cited
Telstra relied upon principle adopted in Brinsmead v Commissioner, Tweed Shire Council Public Inquiry (2007) 69 NSWLR 438, 443 to the effect that 'the statutory power to inquire and report is not in the absence of clear words to be read as extending the power to make a finding of criminal guilt or other improper conduct' (at [17]). 93 Accepting this principle, and accepting that the finding that Telstra breached s 17 is equivalent to 'improper conduct', I consider that in the context of the legislative scheme, Mr Smith could find and conclude, as he did, that Telstra breached s 17 of the Act, and include that conclusion in the report. This is for the simple reason that s 41 of the Act empowers an investigator to conduct an investigation concerning a breach or possible breach of the Act, and the report of that investigation (in the case where the investigator considers there to be a breach) must necessarily include his conclusion from conducting the investigation. This seems to me to be the clearest indication, without more, that an investigator is not only empowered to so conclude, but is under a duty to include in his or her report any conclusion reached as to breach, or possible breach, of the Act. 94 Further, I do not accept Telstra's assertion that there was no material available to Mr Smith capable of satisfying him that there was a breach of s 17. There was such material available and Mr Smith properly took it into account.
Case: Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074 ; (1994) 49 FCR 576
Outcome: applied
It is not in all cases a pre-requisite for the according of procedural fairness that a draft of a report containing adverse findings be given for comment to the person the subject of the adverse findings: see, eg, Hoffman La Roche v Trade Secretary [1975] AC 295 at 369; Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074 ; (1994) 49 FCR 576 , at 590-91; Asiamet (No 1) Resources Pty Ltd v Federal Commissioner of Taxation [2003] FCA 35 ; (2003) 196 ALR 692 , at 713-14.
Case: Gill v Donald Humberstone &amp; Co Ltd [1963] 3 AII ER 180
Outcome: cited
English authorities concerning the meaning of a "workplace" were said by Telstra to also reflect the view that the nature of a premises may change, depending upon the use applied to it from time to time. In Gill v Donald Humberstone &amp; Co Ltd [1963] 3 AII ER 180, Lord Evershed considered that a working place must be a place where work was set to take place for an appreciably continuous period of time (at 188). In other cases, working place or workplace has been held to be a place where work is being done. 31 In this proceeding, the question is whether the pit and pit lid are at all times a workplace of Telstra for the purposes of the Act. There seemed no dispute that a pit is capable of being a workplace and that the pit lid could be a 'structure' or 'part' of the pit.
Case: Hoffman La Roche v Trade Secretary [1975] AC 295
Outcome: applied
It is not in all cases a pre-requisite for the according of procedural fairness that a draft of a report containing adverse findings be given for comment to the person the subject of the adverse findings: see, eg, Hoffman La Roche v Trade Secretary [1975] AC 295 at 369; Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074 ; (1994) 49 FCR 576 , at 590-91; Asiamet (No 1) Resources Pty Ltd v Federal Commissioner of Taxation [2003] FCA 35 ; (2003) 196 ALR 692 , at 713-14.
Case: Inspector Campbell v James Gordon Hitchcock [2004] NSWIRComm 87
Outcome: distinguished
Further, in Inspector Campbell v James Gordon Hitchcock [2004] NSWIRComm 87 , Walton J Vice President applied Boral Elevators and held: 304 The decision of Maidment J in Insp Paine v Boral Johns Perry Industries Pty Ltd t/as Boral Elevators (unreported, 8 August 1996) is a case in point on the flexible, transient nature of employers' places of work and effectively endorses the comment of Fisher P, quoted above, that the emphasis of the Act always seems upon the place where work is being done. From time to time the defendant performed maintenance and repair work on an inclinator, but employees of the defendant were not at the premises either at the time of the accident or between the times specified in the summons. The sole question for the Court was whether the inclinator was the defendant's place of work within the meaning of s 16. Maidment J held that it was not, on the basis that the Act was not directed at general product liability, and did not require employers such as (for example) boat repairers to ensure the safety of the end product of their work as a boat, as opposed to as a place of work. However, his Honour considered that during maintenance, the inclinator would have been the employer's place of work (at page 9): Thus it is with an employer engaged in lift maintenance. Under s 16 he is required to conduct that maintenance work such that persons, not in his employment, are safe from risk whilst they are at his place of work. In the present case this includes ensuring that residents are not put at risk by the conduct of his undertaking while they were at his place of work as a place of work. This legislation does not require the employer to ensure that the product of his work is devoid of hazard. Thus, in my view, the obligation cast upon the defendant by s. 16 is confined to the periods during which maintenance work is being conducted.