mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98
Outcome: referred to
Both used as a starting point what was said in the joint judgment (Gibbs CJ, Mason, Wilson and Deane JJ) in Australian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 113 where, after commenting that lying behind punishment for a contempt, which involves wilful disobedience to a court order, is the very substantial purpose of disciplining the defendant and vindicating the authority of the court, their Honours said: 'It follows that a deliberate commission or omission which is in breach of an injunctive order or an undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional.' 33 If by this argument, the respondents are saying that a deliberate act or omission which is in breach of a court order will not constitute contempt unless there is an intention to breach the court order, I cannot agree. The words 'casual, accidental or unintentional' do not introduce such an additional requirement. Viewed in the context of the extract from the joint judgment in Mudginberri cited at [30] above, the qualifications are not so much true exceptions to a deliberate act or omission; rather they are by way of contradiction to such an act or omission. 35 In this context, his Honour's statement at [65] of the propositions he saw as having been established in relation to the general law of contempt by the reasons of the High Court in Mudginberri and in Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 530 534 per Brennan, Deane, Toohey and Gaudron JJ and 538 542 per McHugh J, is instructive: '(a) disobedience of an order of the court, or of an undertaking to the court, is aptly described as a contempt of court; this is so regardless of whether the disobedience is attended by the contumacy previously thought necessary to attract the special description of "criminal contempt"; (b) the dichotomy previously recognised between civil contempt and criminal contempt was based, in part at least, on the different rationales which were understood to inform the different kinds of contempt: civil contempt was understood to be concerned with disciplining the party in breach in vindication of the private interests of the parties to civil litigation while criminal contempt was understood to be concerned with the punishment of the offender in vindication of the public interest in the due administration of justice, and, in particular, the maintenance of the authority of the courts; (c) just as the historical differentiation between discipline and punishment and the vindication of the private interest and the public interest can no longer be sustained, so punishment by way of a fine or imprisonment as a remedy for contempt may be imposed where the disobedience of a court order is more than "casual, accidental or unintentional". It is now not essential to show that the disobedience is contumacious or defiant; (d) because the sanction for any contempt is inevitably to some extent punitive, all contempts must be proved beyond reasonable doubt.'
Case: Lade &amp; Co Pty Ltd v Black [2006] QCA 294 
Outcome: referred to
The applicants submit that it is no answer to proceedings for contempt to say that there was no direct intention to disobey the order. It is enough that the relevant commission or omission was deliberate and not casual, accidental or unintentional. They find support for that in what was said by Jerrard JA in Lade &amp; Co Pty Ltd v Black [2006] QCA 294 at [24] : 'Contempt is established by proof of a deliberate act or omission which breaches an order or undertaking. It is no defence that the party deliberately doing the act honestly believes, or was wrongly advised, that it would not be in breach of the order, if the act was deliberately done.' And at [26]: 'I consider it follows that a deliberate act or omission which is in fact in breach of an order will constitute contempt, and to prove contempt it is necessary and sufficient to prove that much. There will be no contempt proved if the act or omission is "casual, accidental or unintentional".' 32 It is here where the respondents parted company. They submitted that the Court does not look to whether the act of publication itself was more than 'casual, accidental or unintentional'. These qualifications, they say, are placed upon the disobedience, not upon the 'commission or omission which is in breach'. In order to become contemptuous, Mr Chatham's disobedience to the Orders must have been more than 'casual, accidental or unintentional'. He may have published the material in breach of the Orders deliberately, but if the disobedience was merely 'casual, accidental or unintentional', then he is not guilty of contempt. 34 This is not to say that there can be contempt without disobedience. As Keane JA said in Lade at [63]: 'There must, of course, be actual disobedience. There cannot be disobedience if the alleged contemnor does not know of the order which he or she is alleged to have breached. Nor could there be disobedience where the breach of the order occurs by reason of circumstances outside the control of the alleged contemnor. But if the facts of the case enable one fairly to conclude that the alleged contemnor has disobeyed the order or undertaking then that is sufficient to constitute a contempt.'
Case: Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 
Outcome: cited
In this context, his Honour's statement at [65] of the propositions he saw as having been established in relation to the general law of contempt by the reasons of the High Court in Mudginberri and in Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 530 534 per Brennan, Deane, Toohey and Gaudron JJ and 538 542 per McHugh J, is instructive: '(a) disobedience of an order of the court, or of an undertaking to the court, is aptly described as a contempt of court; this is so regardless of whether the disobedience is attended by the contumacy previously thought necessary to attract the special description of "criminal contempt"; (b) the dichotomy previously recognised between civil contempt and criminal contempt was based, in part at least, on the different rationales which were understood to inform the different kinds of contempt: civil contempt was understood to be concerned with disciplining the party in breach in vindication of the private interests of the parties to civil litigation while criminal contempt was understood to be concerned with the punishment of the offender in vindication of the public interest in the due administration of justice, and, in particular, the maintenance of the authority of the courts; (c) just as the historical differentiation between discipline and punishment and the vindication of the private interest and the public interest can no longer be sustained, so punishment by way of a fine or imprisonment as a remedy for contempt may be imposed where the disobedience of a court order is more than "casual, accidental or unintentional". It is now not essential to show that the disobedience is contumacious or defiant; (d) because the sanction for any contempt is inevitably to some extent punitive, all contempts must be proved beyond reasonable doubt.'
Case: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476
Outcome: cited
The Tribunal's decision is a "privative clause decision" within the meaning of s 474 of the Act . This Court cannot set the decision aside except for jurisdictional error: see Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476 at 506-508 and 511 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. A breach of s 360(1) constitutes jurisdictional error: see, for example, Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553 (" SCAR ") at 561 per Gray, Cooper and Selway JJ.
Case: Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 ; (2006) 154 FCR 365
Outcome: referred to
Although the reasoning in SCAR has not met with universal approval (see, for example, Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 ; (2006) 154 FCR 365 at 417 per Graham J), it was a unanimous decision of a Full Court of this Court and has been followed by subsequent Full Courts: see Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 ; and NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 ; and also cf SZFDE at 389 per French J and 400 per Allsop J. In any event SCAR remains binding on me, as on other judges of this Court at first instance: also cf NAQF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 781 ; (2003) 130 FCR 456 (" NAQF ") at 475-476 per Lindgren J and SZBII v Minister for Immigration and Multicultural Affairs [2006] FCA 1477 at [26] per Cowdroy J. In NAQF , at 476, Lindgren J referred to SCAR and observed, by way of illustration of the nature of the s 360(1) obligation, that there would be a breach of this provision "[i]f, at an MRT hearing, the member were to inform the applicant that it was not necessary for the applicant to give evidence or present arguments on such an issue, which, it transpired, in fact remained alive, and thereby dissuaded the applicant from exercising his or her right to give evidence or to present arguments on that issue".
Case: Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230
Outcome: referred to
Although the reasoning in SCAR has not met with universal approval (see, for example, Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 ; (2006) 154 FCR 365 at 417 per Graham J), it was a unanimous decision of a Full Court of this Court and has been followed by subsequent Full Courts: see Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 ; and NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 ; and also cf SZFDE at 389 per French J and 400 per Allsop J. In any event SCAR remains binding on me, as on other judges of this Court at first instance: also cf NAQF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 781 ; (2003) 130 FCR 456 (" NAQF ") at 475-476 per Lindgren J and SZBII v Minister for Immigration and Multicultural Affairs [2006] FCA 1477 at [26] per Cowdroy J. In NAQF , at 476, Lindgren J referred to SCAR and observed, by way of illustration of the nature of the s 360(1) obligation, that there would be a breach of this provision "[i]f, at an MRT hearing, the member were to inform the applicant that it was not necessary for the applicant to give evidence or present arguments on such an issue, which, it transpired, in fact remained alive, and thereby dissuaded the applicant from exercising his or her right to give evidence or to present arguments on that issue".
Case: NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121
Outcome: referred to
Although the reasoning in SCAR has not met with universal approval (see, for example, Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 ; (2006) 154 FCR 365 at 417 per Graham J), it was a unanimous decision of a Full Court of this Court and has been followed by subsequent Full Courts: see Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 ; and NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 ; and also cf SZFDE at 389 per French J and 400 per Allsop J. In any event SCAR remains binding on me, as on other judges of this Court at first instance: also cf NAQF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 781 ; (2003) 130 FCR 456 (" NAQF ") at 475-476 per Lindgren J and SZBII v Minister for Immigration and Multicultural Affairs [2006] FCA 1477 at [26] per Cowdroy J. In NAQF , at 476, Lindgren J referred to SCAR and observed, by way of illustration of the nature of the s 360(1) obligation, that there would be a breach of this provision "[i]f, at an MRT hearing, the member were to inform the applicant that it was not necessary for the applicant to give evidence or present arguments on such an issue, which, it transpired, in fact remained alive, and thereby dissuaded the applicant from exercising his or her right to give evidence or to present arguments on that issue".
Case: NAQF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 781 ; (2003) 130 FCR 456
Outcome: referred to
Although the reasoning in SCAR has not met with universal approval (see, for example, Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 ; (2006) 154 FCR 365 at 417 per Graham J), it was a unanimous decision of a Full Court of this Court and has been followed by subsequent Full Courts: see Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 ; and NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 ; and also cf SZFDE at 389 per French J and 400 per Allsop J. In any event SCAR remains binding on me, as on other judges of this Court at first instance: also cf NAQF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 781 ; (2003) 130 FCR 456 (" NAQF ") at 475-476 per Lindgren J and SZBII v Minister for Immigration and Multicultural Affairs [2006] FCA 1477 at [26] per Cowdroy J. In NAQF , at 476, Lindgren J referred to SCAR and observed, by way of illustration of the nature of the s 360(1) obligation, that there would be a breach of this provision "[i]f, at an MRT hearing, the member were to inform the applicant that it was not necessary for the applicant to give evidence or present arguments on such an issue, which, it transpired, in fact remained alive, and thereby dissuaded the applicant from exercising his or her right to give evidence or to present arguments on that issue". 31 In this case, the Tribunal did not mislead the appellant in the way contemplated by Lindgren J's example in NAQF (see above at [22]). It has, however, deprived the appellant of an in-substance opportunity to present evidence and argument as effectively as the conduct at issue in SZBEL . The Tribunal in this case identified only one subject as an issue arising in relation to the decision under review. This subject, Ms Tong's communications in 2003, monopolized the Tribunal's attention with the result that it did not identify for the appellant the other issues arising on the review, in order that the appellant might address them by evidence or argument. This constituted a breach of s 360(1) of the Act and jurisdictional error.
Case: SZBII v Minister for Immigration and Multicultural Affairs [2006] FCA 1477
Outcome: referred to
Although the reasoning in SCAR has not met with universal approval (see, for example, Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 ; (2006) 154 FCR 365 at 417 per Graham J), it was a unanimous decision of a Full Court of this Court and has been followed by subsequent Full Courts: see Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 ; and NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 ; and also cf SZFDE at 389 per French J and 400 per Allsop J. In any event SCAR remains binding on me, as on other judges of this Court at first instance: also cf NAQF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 781 ; (2003) 130 FCR 456 (" NAQF ") at 475-476 per Lindgren J and SZBII v Minister for Immigration and Multicultural Affairs [2006] FCA 1477 at [26] per Cowdroy J. In NAQF , at 476, Lindgren J referred to SCAR and observed, by way of illustration of the nature of the s 360(1) obligation, that there would be a breach of this provision "[i]f, at an MRT hearing, the member were to inform the applicant that it was not necessary for the applicant to give evidence or present arguments on such an issue, which, it transpired, in fact remained alive, and thereby dissuaded the applicant from exercising his or her right to give evidence or to present arguments on that issue".
Case: Minister for Immigration and Multicultural Affairs v Lat [2006] FCAFC 61 ; (2006) 151 FCR 214
Outcome: referred to
I accept, as the first respondent submitted, that there is no scope for the operation of the common law notions of procedural fairness outside the specific provisions of Div 5 of Pt 5 of the Act because s 357A applies in the present case: cf ss 357A and 422B ; see also Minister for Immigration and Multicultural Affairs v Lat [2006] FCAFC 61 ; (2006) 151 FCR 214 at 225-226 per Heerey, Conti and Jacobson JJ and NKBT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 at [85] per Young J with whom Gyles and Stone JJ agreed. I also accept, as the first respondent submitted, that the reasoning in the joint judgment in SZBEL refers to general principles of procedural fairness. This is unsurprising because s 422B (which is equivalent to s 357A) did not apply in SZBEL . I do not accept, however, that, on account of this, I should have no regard to SZBEL in this case. As I have sought to show, the reasoning in SZBEL in fact depends on the language of s 425(1) , which was said to define the nature of the opportunity to be heard.
Case: NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195
Outcome: referred to
I accept, as the first respondent submitted, that there is no scope for the operation of the common law notions of procedural fairness outside the specific provisions of Div 5 of Pt 5 of the Act because s 357A applies in the present case: cf ss 357A and 422B ; see also Minister for Immigration and Multicultural Affairs v Lat [2006] FCAFC 61 ; (2006) 151 FCR 214 at 225-226 per Heerey, Conti and Jacobson JJ and NKBT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 at [85] per Young J with whom Gyles and Stone JJ agreed. I also accept, as the first respondent submitted, that the reasoning in the joint judgment in SZBEL refers to general principles of procedural fairness. This is unsurprising because s 422B (which is equivalent to s 357A) did not apply in SZBEL . I do not accept, however, that, on account of this, I should have no regard to SZBEL in this case. As I have sought to show, the reasoning in SZBEL in fact depends on the language of s 425(1) , which was said to define the nature of the opportunity to be heard.
Case: SZBCE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 697
Outcome: referred to
Counsel for the first respondent argued that the question of whether a person is a "spouse" is essentially a question of fact and evaluation for the decision-maker. The first respondent submitted that the Tribunal's reasons disclosed that it considered the matters required by reg 1.15A(3) before deciding that it was not satisfied that the appellant was in a spousal relationship with Ms Tong at the date of its decision. Counsel for the first respondent characterised the appellant's complaint as being with the Tribunal's process of reasoning on issues of fact, and submitted that the appellant's argument was simply an invitation to review the merits of the Tribunal's decision. Counsel argued that the Tribunal was not overborne by issues going to credit but properly considered matters relevant to the assessment of credit and, in consequence, made adverse credit findings as it was entitled to do. Further, referring to a passage in the judgment of Bennett J in SZBCE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 697 at [31] , counsel for the first respondent submitted that "there was no particular threshold that was required to be satisfied before the Tribunal was entitled to disbelieve the claims advanced by the appellant".
Case: Re Minister for Immigration and Multicultural Affairs; ex parte Cohen [2001] HCA 10 ; (2001) 177 ALR 473
Outcome: cited
The Tribunal's reasons for decision were detailed. They recited most of the evidence that had been given by Mr Chey and Ms Tong. I accept, as the first respondent submitted, that the question whether Mr Chey was the "spouse" of Ms Tong was essentially a question of fact. There may be errors in the Tribunal's reasoning in finding facts, or errors in the fact-finding, but this will not amount to jurisdictional error (unless there is error in the finding of a jurisdictional fact): see Re Minister for Immigration and Multicultural Affairs; ex parte Cohen [2001] HCA 10 ; (2001) 177 ALR 473 at 481-482 per McHugh J. The appellant's submissions in this part of his case took issue with the Tribunal's process of reasoning on issues of fact. No jurisdictional error is made out under this head. 38 Counsel for the appellant relied on the conduct of the Tribunal before and during the hearing, as well as the decision of the Tribunal as a whole, to support the proposition that a reasonable observer would consider that the Tribunal had brought a closed mind to the issues under consideration. Amongst other things, he referred to the Tribunal's letter of 23 December 2005 and the transcript of the hearing. 39 Counsel for the first respondent submitted that there is nothing in the Tribunal's approach to indicate that it acted with prejudgment. Counsel contended that no conclusion as to an apprehension of bias ought to be drawn based merely on the fact that the transcript of the Tribunal hearing showed some tension between the Tribunal member and the Erskine Rodan representative.
Case: Nassouh v Minister for Immigration and Multicultural Affairs [2000] FCA 788
Outcome: cited
The Tribunal is bound to take into account the considerations set out in reg 1.15A(3): see Nassouh v Minister for Immigration and Multicultural Affairs [2000] FCA 788 , cited with approval in Zhang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 30 (" Zhang ") at [15] per Moore, Mansfield and Dowsett JJ. Failure to do so will amount to jurisdictional error: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at 24 per Gummow and Hayne JJ. The Full Court said in Zhang at [14], where an issue arose as to whether the Tribunal had considered the factors in reg 1.15A(3)(c): "The reasons of the Tribunal are not to be read with an eye attuned to the ready perception of error: Minister for Immigration and Ethnic Affairs v Wu Shal Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272 and 291. On the other hand, it is important to review the Tribunal's reasons to be satisfied that the Tribunal has in fact had regard to the matters which it must address. The routine citation of statutory provisions or authorities will not necessarily demonstrate that regard."