mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: The State of Victoria v Sutton [1998] HCA 56 ; (1998) 195 CLR 291
Outcome: cited
In relation to the use of the word 'void' Gaudron, Gummow and Hayne JJ said in The State of Victoria v Sutton [1998] HCA 56 ; (1998) 195 CLR 291 ('Victoria v Sutton') at [38]: 'Windeyer J said of the term "void" that it "has never been an easy word" and pointed out that it did not necessarily mean that the void act had no legal effect at all. In particular, where ... a disposition between two parties is described as "void" at the will of a third, the preferred construction is to read "void" as "voidable". ...' (footnote omitted) 105 In Victoria v Sutton , Kirby J expounded upon the meaning of the word 'void' at [95] as follows: '... The word "void" is inherently ambiguous ... . It sometimes means that the act in question has not, and never has had, any legal effect (void ab initio). But sometimes it means that the act becomes void as against the world or against those who cannot enforce or take advantage of it subsequently (void ex post facto). "Void" is in some contexts treated as synonymous with "voidable" or voidable at the election of the party for whose benefit a legal rule makes the transaction void. The task of a court, in differentiating between the available meanings of the word, is to ascertain the objective of the lawmaker in the particular circumstances. It is to discover the meaning to be attributed to the word which is natural to its context. Many past cases demonstrate that the use of the word "void" presents a problem of statutory construction. There is no settled meaning.' (footnotes omitted) 106 In the foregoing circumstances the question arises as to whether the Court should exercise its discretion to declare the 2007 Agreement void. By virtue of s 412(2) of the Act the Court may exercise its discretion favourably to the applicant only to the extent that the Court considers appropriate to remedy the following: (a) all or part of any loss or damage resulting from the contravention by Karellas of s 341(1) of the Act; (b) prevention or reduction of all or part of that loss or damage. 107 The key words in s 412(2) are 'resulting from' the contravention.
Case: Brooks v Burns Philp Trustee Co. Ltd. [1969] HCA 4 ; (1969) 121 CLR 432
Outcome: cited
The reference to the observations of Windeyer J were to his Honour's judgment in Brooks v Burns Philp Trustee Co. Ltd. [1969] HCA 4 ; (1969) 121 CLR 432 at 458-459 where his Honour said: ' "Void", "Invalid", "Unenforceable". I have in this judgment used the words "invalid", "unenforceable" or "ineffectual", as, in similar cases, other judges have done. Other words and phrases can be used. For example, in the judgment under appeal the appellant's covenant is called "illegal and void". A similar promise was called by Asquith L.J. "void and unenforceable": Gaisberg v. Storr .... The words used do not matter if the actual legal result they are used to express be not in doubt or debate. But it has always seemed to me likely to lead to error, ... to adopt first one of the familiar legal adjectives - "illegal", "void", "unenforceable", "ineffectual", "nugatory" - and then having given an act a label, to deduce from that its results in law. That is to invert the order of inquiry, and by so doing to beg the question, and allow linguistics to determine legal rights. That need not happen if words be used, as Hobbes said that by wise men they should be, only as counters to reckon with; but reckoning becomes difficult if the values of counters are not constant. There may be no difficulty for adherents to Humpty Dumpty's principle as expounded by him to Alice. But his latitude and his command of his words as his servants are not generally allowed to lawyers. They are called upon to interpret other men's words. The word "void" has never been an easy word, as is pointed out in the second Australian edition of Cheshire and Fifoot's Law of Contract , p. 440. It is commonly said that when it describes a juristic act it means that it was always devoid of legal consequences. But this in itself is ambiguous, as witness the difference (which I have emphasized by italics) between the first edition of Sir George Paton's Text Book of Jurisprudence (1946) and the second edition (1951). In the first it was said (at p. 241) that "if the defects [of a juristic act] are such that the act has no legal effect at all , then the act is said to be void". The relevant passage in the latter edition (at p. 250) states - more accurately perhaps, and influenced probably by Professor Cohn's remarks in Law Quarterly Review, vol. 64 (1948), at pp. 325, 326- "A defect may make a juristic act either void or voidable. If the defect is such that the act is devoid of the legal results contemplated then the act is said to be void. A void act is sometimes said to be a nullity in law, but this is not strictly so, as an act void in its primary intent may nevertheless have an effect in another way."' (footnote omitted)
Case: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Outcome: applied
Because the matter was summarily dismissed by the Federal Magistrate, leave to appeal is required. In accordance with the decision in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, I must consider whether, in all the circumstances, the Federal Magistrate's decision is attended with sufficient doubt to warrant it being considered by the Court on appeal and, secondly, whether substantial injustice would result if leave to appeal were refused. 3 After the matter was argued for some time on 6 August 2007, I indicated that I would adjourn the hearing to today for further submissions and that if I was to give leave to appeal, I would also hear and determine the appeal at the same time. The further submissions concerned a particular issue which troubled me during the course of the first hearing. The parties were given an opportunity to consider and make further submissions on that topic. It is referred to below. 4 The applicant is a citizen of the People's Republic of China. He was born in 1965 and worked as a construction worker in various towns in his province until he came to Australia on 3 November 2005. He applied for a protection visa under the Migration Act 1958 (Cth) (the Act) shortly after that time, but his application was refused by a delegate of the first respondent on 12 January 2006. That decision was then reviewed by the Refugee Review Tribunal and affirmed by that Tribunal (the first Tribunal) on 31 March 2006. The first Tribunal hearing and decision was quashed by consent by order of a Federal Magistrate on 21 August 2006 and remitted to the Tribunal for re-hearing by that order. 5 The Tribunal then was differently constituted (the second Tribunal). It conducted a hearing with the applicant on 13 December 2006 and, as I have noted, provided its decision to the applicant on 11 January 2007. It too affirmed the decision of the delegate of the first respondent not to grant to the applicant a protection visa. As I noted earlier, an application to the Federal Magistrates Court to quash the second Tribunal decision was summarily dismissed on 8 May 2007. 6 The applicant's claim to be entitled to a protection visa was based upon him claiming to be a Falun Gong practitioner. At the hearing before the first Tribunal, he said that he had become a member of Falun Gong in about May 1997, and had progressively become more active and more senior in the Falun Gong. He promoted Falun Gong wherever he worked throughout his province. He was a senior member of Falun Gong in his province by 2003. The Falun Gong was banned by the People's Republic of China in 1999. The applicant claimed that in 2003 he was arrested by the authorities and suffered "physical and mental persecution" during the four days of his detention. After his release, he continued to practice Falun Gong secretly but with a great fear of being re-arrested and mistreated by the authorities.
Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162
Outcome: cited
There is one further matter which I referred to above, namely the use by the Tribunal of the recording of the hearing before the first Tribunal on 31 March 2006 by the second Tribunal and its use without the applicant having been given a notice under s 424A of the second Tribunal's intended reliance upon that information. I was concerned that the second Tribunal, by acting in that way, had failed to comply with the procedural prescription of s 424A (see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162).
Case: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
Outcome: cited
That has been the subject of further submissions by the first respondent. I do not accept one of those submissions. It is put that the fact of inconsistency in evidence provided to the Tribunal is not itself information which activates the obligation under s 424A of the Act. That is of course generally correct. So much was explained in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609. However, I think that principle relates to inconsistencies which emerge in the course of a hearing and does not necessarily relate to inconsistencies which the Tribunal discerns from other information available to it. In my view, the application of that principle depends upon the Court being satisfied that the information provided at the earlier hearing before the first Tribunal was generally information before the Tribunal which did not enliven s 424A at all.
Case: SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107
Outcome: considered
In SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 it was decided that upon a case being remitted to the Tribunal, the Tribunal is entitled to rely upon the earlier issue of a notice under s 424A and any response to a previously constituted tribunal. The Full Court at [39] explained in the following terms: In any event, when ss 421 , 422 and 422A refer to ' a particular review ', they identify the review initiated under s 414(1) and culminating in a decision in accordance with s 430 , being the review that a particular person, namely the applicant for review, has initiated in respect of an RRT-Reviewable Decision. The expression does not depend upon the identity of the particular member constituting the Tribunal. Rather, it refers to the function of the Tribunal to review a decision. Until the Tribunal has made a valid decision on the review that has been initiated by a valid application under s 414 , it has a duty to perform that particular review. An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the materials that were obtained when the decision that had been set aside was made. In essence, as I read that passage, there is but one review before the Tribunal under s 422 even if the Tribunal is reconstituted by its decision being quashed. The facts of that case are not identical to the present circumstances.
Case: SZJBE v Minister for Immigration and Citizenship [2007] FCA 190
Outcome: followed
However, in SZJBE v Minister for Immigration and Citizenship [2007] FCA 190 , Emmett J addressed precisely the circumstances to which I have been referring. In that case, the Tribunal as reconstituted relied on inconsistencies with the then applicant's evidence from the first hearing at the second hearing before that reconstituted Tribunal. His Honour concluded at [16] [17] that doing so did not activate s 424A. That is a decision which is plainly directly on point. I should follow it unless I consider that it is plainly wrong. The applicant has not made a submission to me that it is plainly wrong, and I can readily understand the process of reasoning by which that conclusion was reached. In those circumstances I propose to follow that decision. As I regard that point as a significant and arguable one, I propose to give the applicant leave to appeal in respect of it but for the reasons which I have given I do not accept that the appeal should be allowed on that ground. 23 I have dealt with the other matters raised by the applicant. I have found no jurisdictional error on the part of the Tribunal in relation to those matters, nor any error on the part of the Federal Magistrate. Accordingly I have come to the conclusion that to the extent to which leave to appeal is to be given, the appeal should be dismissed. The applicant should pay to the first respondent costs of the application. 24 The orders of the Court are: (1) Leave to the applicant to appeal from the decision of the Federal Magistrate given on 8 May 2007 limited to the issue of whether the Tribunal, in having regard to the information provided by the applicant to the Tribunal as differently constituted at a hearing on 31 March 2006, erred by failing to give to the applicant notice under s 424A(1) of the Migration Act with respect to that information. (2) Appeal dismissed. (3) Applicant to pay to the first respondent costs of the application and of the appeal. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 30 August 2007 Counsel for the Applicant: The applicant appeared in person Counsel for the First Respondent: Mr L Leerdam Solicitor for the First Respondent: DLA Phillips Fox Date of Hearing: 6 August 2007, 9 August 2007 Date of Judgment: 9 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1343.html
Case: Rubibi Community v State of Western Australia (No 5) [2005] FCA 1025
Outcome: cited
In the reasons for judgment in Rubibi Community v State of Western Australia (No 5) [2005] FCA 1025 (' Rubibi No 5 ') and Rubibi Community v State of Western Australia (No 6) [2006] FCA 82 (' Rubibi No 6 '), I concluded that the Yawuru community possesses communal native title rights and interests in the Yawuru claim area. I also concluded that, generally, the evidence supports an inference that the native title rights and interests include a right of exclusive possession and occupation of the Yawuru claim area (excluding the inter-tidal zone) where there has been no extinguishment of that right.
Case: Rubibi Community v State of Western Australia (No 6) [2006] FCA 82
Outcome: cited
In the reasons for judgment in Rubibi Community v State of Western Australia (No 5) [2005] FCA 1025 (' Rubibi No 5 ') and Rubibi Community v State of Western Australia (No 6) [2006] FCA 82 (' Rubibi No 6 '), I concluded that the Yawuru community possesses communal native title rights and interests in the Yawuru claim area. I also concluded that, generally, the evidence supports an inference that the native title rights and interests include a right of exclusive possession and occupation of the Yawuru claim area (excluding the inter-tidal zone) where there has been no extinguishment of that right.
Case: Sampi v State of Western Australia (No 2) [2005] FCA 1567
Outcome: applied
The second issue arose because at [119] of the reasons in Rubibi No 6 , I raised the question of whether the determination should limit the exploitation of the resources in the Yawuru claim area to non-commercial exploitation. The Yawuru claimants opposed any such limitation and contended that that limitation would be inconsistent with their right to exclusive possession, which they claimed entitled the native title holders to determine the purposes for which the land and waters were to be used. The Yawuru claimants relied upon Sampi v State of Western Australia (No 2) [2005] FCA 1567 (' Sampi No 2 '), in which it was contended that the determination of native title fishing rights should expressly exclude 'non-commercial rights'. French J stated (at [90]): 'Given that commercial fishing rights are subject to legislative control and that the native title rights and interests are to be exercisable in accordance with the laws of the State and the Commonwealth, it is difficult to see how the determination as proposed by the applicants would extend to commercial fishing rights.' 9 The Yawuru claimants contended that commercial exploitation of the resources of the land and waters in the Yawuru claim area is likewise the subject of extensive governmental regulation. They also pointed to s 211(2)(a) of the NTA which only exempts native title holders from the restrictions imposed by that regulation for 'non-commercial communal needs'.
Case: Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58 ; (2002) 214 CLR 422
Outcome: cited
The State contended that the native title rights and interests claimed and pursued at trial by the Yawuru claimants did not include any right of commercial exploitation of the resources of the land or waters. The State pointed out that, in relation to a claim under the NTA , the Court is not concerned with the common law rights that might attach to a right of exclusive possession but rather, with the native title rights and interests possessed under traditional laws and customs: see Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58 ; (2002) 214 CLR 422 (' Yorta Yorta ') at 442 [40] and De Rose v State of South Australia [2003] FCAFC 286 ; (2003) 133 FCR 325 (' De Rose FC No 1 ') at 377 [162]. The State then claimed that the evidence adduced at trial did not support a finding of a native title right or interest to commercially exploit the resources of the land or waters.
Case: De Rose v State of South Australia [2003] FCAFC 286 ; (2003) 133 FCR 325
Outcome: applied
The State contended that the native title rights and interests claimed and pursued at trial by the Yawuru claimants did not include any right of commercial exploitation of the resources of the land or waters. The State pointed out that, in relation to a claim under the NTA , the Court is not concerned with the common law rights that might attach to a right of exclusive possession but rather, with the native title rights and interests possessed under traditional laws and customs: see Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58 ; (2002) 214 CLR 422 (' Yorta Yorta ') at 442 [40] and De Rose v State of South Australia [2003] FCAFC 286 ; (2003) 133 FCR 325 (' De Rose FC No 1 ') at 377 [162]. The State then claimed that the evidence adduced at trial did not support a finding of a native title right or interest to commercially exploit the resources of the land or waters.
Case: Bathurst City Council v PWC Properties Pty Ltd [1998] HCA 59 ; (1998) 195 CLR 566
Outcome: cited
It can be accepted that the phrase 'public purposes' has a broad meaning. In Bathurst City Council v PWC Properties Pty Ltd [1998] HCA 59 ; (1998) 195 CLR 566 (' Bathurst ') at 590 [58] Gaudron, McHugh, Gummow, Hayne and Callinan JJ stated that the phrase 'public purposes' connotes 'the giving to the public of some rights in the land which subtract from the Crown's full ownership'. Their Honours stated at 591 [62]: 'the meaning of "public purposes" depends in part upon the scope and purposes of the particular legislation...'
Case: De Rose v South Australia (No 2) [2005] FCAFC 110 ; (2005) 145 FCR 290
Outcome: applied
There remains the question of whether, by constructing a gaol and a police station on the reserves, the Crown 'created in others, or asserted, rights in relation to the land that were inconsistent with native title rights and interests over the land': see [214] in Ward HC . In my view, the exercise of the right to construct a gaol or police station on part only of the reserved land is not necessarily inconsistent with native title rights and interests in the remaining part of the reserved land if that part of the reserve is not reasonably necessary for, or incidental to, the operation or enjoyment of the gaol or police station: cf De Rose v South Australia (No 2) [2005] FCAFC 110 ; (2005) 145 FCR 290 (' De Rose No 2 ') at 332 [152] and 335 [166]. In De Rose No 2 , that formulation was applied in respect of the extinguishment that occurred upon the exercise by the lessee of the lessee's right under a pastoral lease to construct improvements. In the present context, the exercise of the right to construct an improvement on a reserve in pursuance of the reserved purpose is analogous to the exercise of the right to construct an improvement under a pastoral lease. Accordingly, it is appropriate to apply the same criterion. As that criterion is similar to, but not identical with, the criterion that is to be applied to the gaol and police station as public works under s 251D of the NTA , it is appropriate to deal with both criteria in the context of the extinguishment that resulted from the construction of the gaol and the police station as public works. 59 In summary, construction of the gaol and police station on part of the reserves extinguished native title rights and interests in the areas on which the gaol and police station were constructed and on areas adjacent thereto that were reasonably necessary for or incidental to the operation or enjoyment of the gaol or police station. However, the construction did not necessarily extinguish native title rights and interests in respect of the remaining areas of the respective reserves. 60 It was common ground that, as a result of the decision in Ward HC , the grant of valid pastoral or mining leases was inconsistent with, and therefore extinguished, any native title right or interest to exclusive possession of, or to control access to or use of, the areas the subject of the leases. It was also common ground that, as a result of the decision of the Full Court in De Rose No 2 at 329-335 [139]-[165], the exercise by the pastoral lessees of their rights under the leases to construct improvements on the land leased was inconsistent with the continuation of any inconsistent native title rights or interests insofar as they related to the land on which the improvements were constructed and any adjacent land the use of which was reasonably necessary for, or incidental to, the operation or enjoyment of the improvements.
Case: Daniel v State of Western Australia [2003] FCA 1425
Outcome: cited
The Yawuru claimants disputed the State's contentions. They relied upon a later decision of RD Nicholson J in Daniel v State of Western Australia ([2003] FCA 1425 [23]-[25]) to contend that a mining lease is not relevantly distinguishable from a pastoral lease. Under both leases, so it was argued, a native title right to live on the land the subject of the lease is not inconsistent with the rights of the lessees under the relevant leases although the Yawuru claimants accepted that, upon the exercise of some of the lessee's rights, inconsistent native title rights and interests may be extinguished. 80 RD Nicholson J adopted this approach in Daniel at [973] . Although it is not necessary to establish frequent use of the land, it is clear that frequency of the use of the land can be a relevant factor in determining whether or not there is occupation of that land. 82 In Ward FC at 437 [449], use of the land for the reserved purpose was regarded as an indicator of occupation. In Daniel (at [973]), RD Nicholson J also regarded it as significant that the claimants made use of the land 'for its purpose as and when [they wished] to do so'. The references in the cases to the 'purpose' of the use, at least in relation to s 47A, indicate that a traditional use of the area, or a use that is consistent with the purpose of the reservation, being for the benefit of Aboriginal peoples, may be more likely to result in a finding of occupation of 'the area'. The reason for that was explained by Olney J in Hayes in the passage referred to above.