mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Martinez v Minister for Immigration and Citizenship [2009] FCA 528 , 256 ALR 32
Outcome: cited
failure on the part of the Refugee Review Tribunal to consider " a substantial aspect or integer " of a claim being advanced may likewise amount to a constructive failure to exercise its jurisdiction: SZGUW v Minister for Immigration and Citizenship [2008] FCA 91 at [68] to [69] per Jacobson J. In Bhardwaj , supra , Callinan J concluded: [163] ... If one thing is abundantly clear, it is that the Tribunal must, if an application has properly been made as it was here, review the Minister's decision. This means that the Tribunal must exercise the jurisdiction of reviewing the Minister's decision: that is to say, it must make a decision on the application and any documents properly submitted by an applicant, with, as part of, or relevant to it. To fail, or refuse to receive and consider such a document, and to make a decision without regard to it, is a failure to exercise jurisdiction. This is more than a failure to give a party a hearing. It is to proceed on a false basis that such a document simply does not exist or has not been communicated to the Tribunal. The Tribunal would in these circumstances no more be exercising its jurisdiction than a court would be in deciding a case in favour of a defendant without looking at the plaintiff's initiating document and pleading, or even knowing that they had been filed in the registry of the court. Similarly, in HTUN v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [42] , [2001] FCA 1802 ; 194 ALR 244 at 259 Allsop J (with whom Spender J agreed) observed: [42] ... This is not merely one aspect of evidence not being touched. It is not a failure to find a "relevant" fact. The Tribunal failed to address and deal with how the claim was put to it, at least in part. The requirement to review the decision under s 414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration ... It is to be distinguished from errant fact finding. The nature and extent of the task of the Tribunal revealed by the terms of the Act ... make it clear that the Tribunal's statutorily required task is to examine and deal with the claims for asylum made by the applicant. ... See also: MZXQS v Minister for Immigration and Citizenship [2009] FCA 97 at [28] , 107 ALD 33 at 40 per Gray J. So, too, is a decision of the Administrative Appeals Tribunal vitiated by jurisdictional error if it fails to have regard to " important material ": Martinez v Minister for Immigration and Citizenship [2009] FCA 528 at [37] to [52], 256 ALR 32 at 44 to 47 per Rares J.
Case: MZXCL v Minister for Immigration and Citizenship [2008] FCA 1770
Outcome: cited
observations have been repeatedly approved and applied by subsequent decisions of this Court, e.g. SZMHL v Minister for Immigration and Citizenship [2009] FCA 581 at [18] per Perram J; SZMDB v Minister for Immigration and Citizenship [2008] FCA 1937 at [40] , 105 ALD 499 at 506 per Graham J; MZXCL v Minister for Immigration and Citizenship [2008] FCA 1770 at [13] per Buchanan J; Jayasinghe v Minister for Immigration and Multicultural Affairs [2006] FCA 1700 at [39] per Middleton J; Applicant M31 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 533 at [22] per Weinberg J.
Case: MZXQS v Minister for Immigration and Citizenship [2009] FCA 97 , 107 ALD 33
Outcome: cited
failure on the part of the Refugee Review Tribunal to consider " a substantial aspect or integer " of a claim being advanced may likewise amount to a constructive failure to exercise its jurisdiction: SZGUW v Minister for Immigration and Citizenship [2008] FCA 91 at [68] to [69] per Jacobson J. In Bhardwaj , supra , Callinan J concluded: [163] ... If one thing is abundantly clear, it is that the Tribunal must, if an application has properly been made as it was here, review the Minister's decision. This means that the Tribunal must exercise the jurisdiction of reviewing the Minister's decision: that is to say, it must make a decision on the application and any documents properly submitted by an applicant, with, as part of, or relevant to it. To fail, or refuse to receive and consider such a document, and to make a decision without regard to it, is a failure to exercise jurisdiction. This is more than a failure to give a party a hearing. It is to proceed on a false basis that such a document simply does not exist or has not been communicated to the Tribunal. The Tribunal would in these circumstances no more be exercising its jurisdiction than a court would be in deciding a case in favour of a defendant without looking at the plaintiff's initiating document and pleading, or even knowing that they had been filed in the registry of the court. Similarly, in HTUN v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [42] , [2001] FCA 1802 ; 194 ALR 244 at 259 Allsop J (with whom Spender J agreed) observed: [42] ... This is not merely one aspect of evidence not being touched. It is not a failure to find a "relevant" fact. The Tribunal failed to address and deal with how the claim was put to it, at least in part. The requirement to review the decision under s 414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration ... It is to be distinguished from errant fact finding. The nature and extent of the task of the Tribunal revealed by the terms of the Act ... make it clear that the Tribunal's statutorily required task is to examine and deal with the claims for asylum made by the applicant. ... See also: MZXQS v Minister for Immigration and Citizenship [2009] FCA 97 at [28] , 107 ALD 33 at 40 per Gray J. So, too, is a decision of the Administrative Appeals Tribunal vitiated by jurisdictional error if it fails to have regard to " important material ": Martinez v Minister for Immigration and Citizenship [2009] FCA 528 at [37] to [52], 256 ALR 32 at 44 to 47 per Rares J.
Case: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120 , 129 FCR 137
Outcome: cited
expressions have thus been used to attempt to describe the manner in which an unarticulated claim may nevertheless sufficiently emerge from the materials before a Tribunal and thus trigger the necessity to consider that claim if the Tribunal is to properly discharge its jurisdiction. Those expressions have included the phrases " squarely " raised; " sufficiently raised " and " clearly arise ". There thus remains legitimate room for debate as to how " squarely " an alternative case need be raised before it need be considered: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120 at [19] , [2003] FCAFC 120 ; 129 FCR 137 at 146 per Cooper J. Whatever may be the threshold before the Tribunal is required to give consideration to a claim other than that expressly raised, it is not considered that there arose for resolution the more specifically formulated claim now advanced on behalf of the Appellant as to his expressed intention to take " legal action ". Irrespective of whether or not the now formulated claim was expressly raised or whether it was " squarely " raised, the Appellant further contends that the Tribunal itself nevertheless accepted that the claim as now formulated did emerge from the materials before it. No question arises, so the Appellant contends, for the Court to review those materials and for the Court to form any view as to whether in its opinion the newly formulated claim emerged from the materials. Indeed, the Appellant contends that the Tribunal's acceptance and formulation of the claim is conclusive such that the Court should not itself look at the evidence and other materials and go behind the finding of the Tribunal. By failing to resolve the claim, the Tribunal committed jurisdictional error &#8212; or so the argument runs.
Case: Sellamuthu v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 ; (1999) 90 FCR 287
Outcome: cited
failure on the part of the Refugee Review Tribunal to consider " a substantial aspect or integer " of a claim being advanced may likewise amount to a constructive failure to exercise its jurisdiction: SZGUW v Minister for Immigration and Citizenship [2008] FCA 91 at [68] to [69] per Jacobson J. In Bhardwaj , supra , Callinan J concluded: [163] ... If one thing is abundantly clear, it is that the Tribunal must, if an application has properly been made as it was here, review the Minister's decision. This means that the Tribunal must exercise the jurisdiction of reviewing the Minister's decision: that is to say, it must make a decision on the application and any documents properly submitted by an applicant, with, as part of, or relevant to it. To fail, or refuse to receive and consider such a document, and to make a decision without regard to it, is a failure to exercise jurisdiction. This is more than a failure to give a party a hearing. It is to proceed on a false basis that such a document simply does not exist or has not been communicated to the Tribunal. The Tribunal would in these circumstances no more be exercising its jurisdiction than a court would be in deciding a case in favour of a defendant without looking at the plaintiff's initiating document and pleading, or even knowing that they had been filed in the registry of the court. Similarly, in HTUN v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [42] , [2001] FCA 1802 ; 194 ALR 244 at 259 Allsop J (with whom Spender J agreed) observed: [42] ... This is not merely one aspect of evidence not being touched. It is not a failure to find a "relevant" fact. The Tribunal failed to address and deal with how the claim was put to it, at least in part. The requirement to review the decision under s 414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration ... It is to be distinguished from errant fact finding. The nature and extent of the task of the Tribunal revealed by the terms of the Act ... make it clear that the Tribunal's statutorily required task is to examine and deal with the claims for asylum made by the applicant. ... See also: MZXQS v Minister for Immigration and Citizenship [2009] FCA 97 at [28] , 107 ALD 33 at 40 per Gray J. So, too, is a decision of the Administrative Appeals Tribunal vitiated by jurisdictional error if it fails to have regard to " important material ": Martinez v Minister for Immigration and Citizenship [2009] FCA 528 at [37] to [52], 256 ALR 32 at 44 to 47 per Rares J.
Case: SZGUW v Minister for Immigration and Citizenship [2008] FCA 91
Outcome: followed
failure on the part of the Refugee Review Tribunal to consider " a substantial aspect or integer " of a claim being advanced may likewise amount to a constructive failure to exercise its jurisdiction: SZGUW v Minister for Immigration and Citizenship [2008] FCA 91 at [68] to [69] per Jacobson J. In Bhardwaj , supra , Callinan J concluded: [163] ... If one thing is abundantly clear, it is that the Tribunal must, if an application has properly been made as it was here, review the Minister's decision. This means that the Tribunal must exercise the jurisdiction of reviewing the Minister's decision: that is to say, it must make a decision on the application and any documents properly submitted by an applicant, with, as part of, or relevant to it. To fail, or refuse to receive and consider such a document, and to make a decision without regard to it, is a failure to exercise jurisdiction. This is more than a failure to give a party a hearing. It is to proceed on a false basis that such a document simply does not exist or has not been communicated to the Tribunal. The Tribunal would in these circumstances no more be exercising its jurisdiction than a court would be in deciding a case in favour of a defendant without looking at the plaintiff's initiating document and pleading, or even knowing that they had been filed in the registry of the court. Similarly, in HTUN v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [42] , [2001] FCA 1802 ; 194 ALR 244 at 259 Allsop J (with whom Spender J agreed) observed: [42] ... This is not merely one aspect of evidence not being touched. It is not a failure to find a "relevant" fact. The Tribunal failed to address and deal with how the claim was put to it, at least in part. The requirement to review the decision under s 414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration ... It is to be distinguished from errant fact finding. The nature and extent of the task of the Tribunal revealed by the terms of the Act ... make it clear that the Tribunal's statutorily required task is to examine and deal with the claims for asylum made by the applicant. ... See also: MZXQS v Minister for Immigration and Citizenship [2009] FCA 97 at [28] , 107 ALD 33 at 40 per Gray J. So, too, is a decision of the Administrative Appeals Tribunal vitiated by jurisdictional error if it fails to have regard to " important material ": Martinez v Minister for Immigration and Citizenship [2009] FCA 528 at [37] to [52], 256 ALR 32 at 44 to 47 per Rares J.
Case: SZMDB v Minister for Immigration and Citizenship [2008] FCA 1937 , 105 ALD 499
Outcome: cited
observations have been repeatedly approved and applied by subsequent decisions of this Court, e.g. SZMHL v Minister for Immigration and Citizenship [2009] FCA 581 at [18] per Perram J; SZMDB v Minister for Immigration and Citizenship [2008] FCA 1937 at [40] , 105 ALD 499 at 506 per Graham J; MZXCL v Minister for Immigration and Citizenship [2008] FCA 1770 at [13] per Buchanan J; Jayasinghe v Minister for Immigration and Multicultural Affairs [2006] FCA 1700 at [39] per Middleton J; Applicant M31 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 533 at [22] per Weinberg J.
Case: SZMHL v Minister for Immigration and Citizenship [2009] FCA 581
Outcome: cited
observations have been repeatedly approved and applied by subsequent decisions of this Court, e.g. SZMHL v Minister for Immigration and Citizenship [2009] FCA 581 at [18] per Perram J; SZMDB v Minister for Immigration and Citizenship [2008] FCA 1937 at [40] , 105 ALD 499 at 506 per Graham J; MZXCL v Minister for Immigration and Citizenship [2008] FCA 1770 at [13] per Buchanan J; Jayasinghe v Minister for Immigration and Multicultural Affairs [2006] FCA 1700 at [39] per Middleton J; Applicant M31 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 533 at [22] per Weinberg J.
Case: Cellante v G Kallis Industries Pty Ltd (1992) 2 VR 653
Outcome: cited
It is always accepted that a stay should be granted when there is a real risk that the integrity of a controversy, or the subject of the appeal, would otherwise be rendered nugatory. An appeal's subject matter would be rendered nugatory if there exists a real risk that it would not be possible for a successful appellant to be restored substantially to its former position if the judgment against an applicant is executed: see generally, Enterprise Goldmines N L v Mineral Horizons N L (1988) 91 FLR 403 at 410; Scarborough v Lew's Junction Stores Pty Ltd (1963) VR 129 at 130; Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 at 66; and Cellante v G Kallis Industries Pty Ltd (1992) 2 VR 653 at 657.
Case: Enterprise Goldmines N L v Mineral Horizons N L (1988) 91 FLR 403
Outcome: cited
It is always accepted that a stay should be granted when there is a real risk that the integrity of a controversy, or the subject of the appeal, would otherwise be rendered nugatory. An appeal's subject matter would be rendered nugatory if there exists a real risk that it would not be possible for a successful appellant to be restored substantially to its former position if the judgment against an applicant is executed: see generally, Enterprise Goldmines N L v Mineral Horizons N L (1988) 91 FLR 403 at 410; Scarborough v Lew's Junction Stores Pty Ltd (1963) VR 129 at 130; Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 at 66; and Cellante v G Kallis Industries Pty Ltd (1992) 2 VR 653 at 657.
Case: Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65
Outcome: cited
It is always accepted that a stay should be granted when there is a real risk that the integrity of a controversy, or the subject of the appeal, would otherwise be rendered nugatory. An appeal's subject matter would be rendered nugatory if there exists a real risk that it would not be possible for a successful appellant to be restored substantially to its former position if the judgment against an applicant is executed: see generally, Enterprise Goldmines N L v Mineral Horizons N L (1988) 91 FLR 403 at 410; Scarborough v Lew's Junction Stores Pty Ltd (1963) VR 129 at 130; Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 at 66; and Cellante v G Kallis Industries Pty Ltd (1992) 2 VR 653 at 657.
Case: Scarborough v Lew's Junction Stores Pty Ltd (1963) VR 129
Outcome: cited
It is always accepted that a stay should be granted when there is a real risk that the integrity of a controversy, or the subject of the appeal, would otherwise be rendered nugatory. An appeal's subject matter would be rendered nugatory if there exists a real risk that it would not be possible for a successful appellant to be restored substantially to its former position if the judgment against an applicant is executed: see generally, Enterprise Goldmines N L v Mineral Horizons N L (1988) 91 FLR 403 at 410; Scarborough v Lew's Junction Stores Pty Ltd (1963) VR 129 at 130; Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 at 66; and Cellante v G Kallis Industries Pty Ltd (1992) 2 VR 653 at 657.
Case: Sent v John Fairfax Publication Pty Ltd [2002] VSC 429
Outcome: cited
Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 248 ; (2001) 4 VR 501 ( 'Spincode' ) at 521-524 [52]-[58], Brooking JA identified three possible grounds for restraining a solicitor or counsel from acting for a particular party to litigation: the danger of misuse of confidential information; a breach of a fiduciary duty of loyalty not to act against a client, or against a former client in the same matter or a closely related matter; and the inherent jurisdiction of the court to control the conduct of solicitors and counsel as officers of the court. These three grounds represented the orthodox legal position in Australia prior to the decision of the House of Lords in Prince Jefri Bolkiah v KPMG (a firm) [1998] UKHL 52 ; [1999] 2 AC 222 ( 'Bolkiah' ) which held that the duty of loyalty did not survive the termination of the relationship with the client. Brooking JA's analysis in Spincode has been consistently followed and applied in Victoria: see Sent v John Fairfax Publication Pty Ltd [2002] VSC 429 ; Pinnacle Living Pty Ltd v Elusive Image Pty Ltd [2006] VSC 202 ; and Adam 12 Holdings Pty Ltd v Eat &amp; Drink Holdings Pty Ltd [2006] VSC 152. But it has not been followed in New South Wales.
Case: Pinnacle Living Pty Ltd v Elusive Image Pty Ltd [2006] VSC 202
Outcome: cited
Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 248 ; (2001) 4 VR 501 ( 'Spincode' ) at 521-524 [52]-[58], Brooking JA identified three possible grounds for restraining a solicitor or counsel from acting for a particular party to litigation: the danger of misuse of confidential information; a breach of a fiduciary duty of loyalty not to act against a client, or against a former client in the same matter or a closely related matter; and the inherent jurisdiction of the court to control the conduct of solicitors and counsel as officers of the court. These three grounds represented the orthodox legal position in Australia prior to the decision of the House of Lords in Prince Jefri Bolkiah v KPMG (a firm) [1998] UKHL 52 ; [1999] 2 AC 222 ( 'Bolkiah' ) which held that the duty of loyalty did not survive the termination of the relationship with the client. Brooking JA's analysis in Spincode has been consistently followed and applied in Victoria: see Sent v John Fairfax Publication Pty Ltd [2002] VSC 429 ; Pinnacle Living Pty Ltd v Elusive Image Pty Ltd [2006] VSC 202 ; and Adam 12 Holdings Pty Ltd v Eat &amp; Drink Holdings Pty Ltd [2006] VSC 152. But it has not been followed in New South Wales.
Case: Adam 12 Holdings Pty Ltd v Eat &amp; Drink Holdings Pty Ltd [2006] VSC 152
Outcome: cited
Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 248 ; (2001) 4 VR 501 ( 'Spincode' ) at 521-524 [52]-[58], Brooking JA identified three possible grounds for restraining a solicitor or counsel from acting for a particular party to litigation: the danger of misuse of confidential information; a breach of a fiduciary duty of loyalty not to act against a client, or against a former client in the same matter or a closely related matter; and the inherent jurisdiction of the court to control the conduct of solicitors and counsel as officers of the court. These three grounds represented the orthodox legal position in Australia prior to the decision of the House of Lords in Prince Jefri Bolkiah v KPMG (a firm) [1998] UKHL 52 ; [1999] 2 AC 222 ( 'Bolkiah' ) which held that the duty of loyalty did not survive the termination of the relationship with the client. Brooking JA's analysis in Spincode has been consistently followed and applied in Victoria: see Sent v John Fairfax Publication Pty Ltd [2002] VSC 429 ; Pinnacle Living Pty Ltd v Elusive Image Pty Ltd [2006] VSC 202 ; and Adam 12 Holdings Pty Ltd v Eat &amp; Drink Holdings Pty Ltd [2006] VSC 152. But it has not been followed in New South Wales.
Case: British American Tobacco Australia Services Ltd v Blanch [2004] NSWSC 70
Outcome: considered
Belan v Casey [2002] NSWSC 58 ( 'Belan' ) at [15]-[21], Young CJ in Eq held that since the House of Lords decision in Bolkiah the overwhelming weight of authority establishes that the jurisdiction of the court to intervene at the suit of a former client to restrain a solicitor from acting is founded solely on the real risk of disclosure of confidential information, and is not connected with some principle of conflict of interest. The decision in Belan has been followed and applied in New South Wales: British American Tobacco Australia Services Ltd v Blanch [2004] NSWSC 70 (Young CJ in Eq) at [97]-[104]; Asia Pacific Telecommunications Ltd v Optus Networks Pty Ltd [2005] NSWSC 550 (Bergin J) at [51]-[55].
Case: Asia Pacific Telecommunications Ltd v Optus Networks Pty Ltd [2005] NSWSC 550
Outcome: cited
Belan v Casey [2002] NSWSC 58 ( 'Belan' ) at [15]-[21], Young CJ in Eq held that since the House of Lords decision in Bolkiah the overwhelming weight of authority establishes that the jurisdiction of the court to intervene at the suit of a former client to restrain a solicitor from acting is founded solely on the real risk of disclosure of confidential information, and is not connected with some principle of conflict of interest. The decision in Belan has been followed and applied in New South Wales: British American Tobacco Australia Services Ltd v Blanch [2004] NSWSC 70 (Young CJ in Eq) at [97]-[104]; Asia Pacific Telecommunications Ltd v Optus Networks Pty Ltd [2005] NSWSC 550 (Bergin J) at [51]-[55].