mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90
Outcome: cited
With respect to the claim of actual bias, I can find no evidence to support such a claim. Nothing before me demonstrates a "closed mind" on the part of the Tribunal: see SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [15] , referring to Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at 530 per Gleeson CJ and Gummow J. The appellant has not identified any particular material or findings in support of any claim of bias, actual or apprehended, and I cannot be satisfied that a fair-minded and informed person might reasonably apprehend that the Tribunal might not have brought an impartial mind to bear on the decision: see Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at 344; and NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 214 ALR 264 at [14].
Case: Bluebird Investments Pty Ltd v Graf (1994) 13 ACSR 271
Outcome: distinguished
In my opinion, no such prima facie case has been established. The Agreement is not capable of any reasonable construction which would give Grande Group any power of control of the composition of the Board or any power to cast or control the casting of votes at a general meeting of Akai Australia. Any suggestion that this could be achieved through Akai Electric is speculation not supported by any reasonable evidentiary base. I do not regard the decision of Santow J in Bluebird Investments Pty Ltd v Graf (1994) 13 ACSR 271 at 279 284 as providing any support to Akai in that respect. The case against Grande Holdings cannot rise above that against Grande Group. This affects the whole of paragraph 2 of the Details of Claim in the Application. 28 It is alleged in Paragraph 3 of the Details of Claim that each of Grande Group and Grande Holdings are vicariously liable for the conduct of Ho and Binney as employers and principals. Paragraph 72 of the Statement of Claim carries that allegation no further in substance. There have been no detailed submissions addressed to the point and no authorities cited in support of it. As submitted on behalf of the respondents, vicarious liability is a principle of the law of torts and its application in these circumstances is far from self explanatory. In the absence of an explanation, no prima facie case is established. 29 There is now no challenge to the paragraph 4 of the Details of Claim, being the claim against Grande Group arising out of the Agreement.
Case: Costa Vraca Pty Ltd v Bell Regal Pty Ltd [2003] FCAFC 305 
Outcome: cited
It is necessary to bear in mind that the requirement of a prima facie case has to be met at the outset of proceedings, usually on an ex parte basis. A prima facie case in this sense does not amount to a prediction of an outcome or a conclusion that a finding for the applicant is the likely ultimate result of a case. It is necessary that there be a foundation established for an arguable case ( WSGAL Pty Ltd v Trade Practices Commission (1992) 39 FCR 472 per Beaumont J at 476; Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539 at 549). It has been said that 'a prima facie case is made out if, on the material before the court, inferences are open which if translated into findings of fact, would support the relief claimed' ( Western Australia v Vetter Trittler Pty Ltd (In liq) (Receiver and Manager appointed) (1991) 30 FCR 102 at 110; Bray v F Hoffman-La Roche Ltd (above) per Carr J at [17]; and Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2005) 212 ALR 551 at [23]. See also Merpro Montassa Ltd v Conoco Specialty Products Inc (1991) 28 FCR 387 per Heerey J at 390.) In Costa Vraca Pty Ltd v Bell Regal Pty Ltd [2003] FCAFC 305 at [25] the Full Court cited with approval the following passage from Lee J in Century Insurance Ltd (in provisional liquidation) v New Zealand Guardian Trust Ltd [1996] FCA 376: 'What the Court must determine is whether the case made out on the material presented shows that a controversy exists between the parties that warrants the use of the Court's processes to resolve it and whether causing a proposed respondent to be involved in litigation in the Court in Australia is justified.'
Case: Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2005) 212 ALR 551
Outcome: cited
It is necessary to bear in mind that the requirement of a prima facie case has to be met at the outset of proceedings, usually on an ex parte basis. A prima facie case in this sense does not amount to a prediction of an outcome or a conclusion that a finding for the applicant is the likely ultimate result of a case. It is necessary that there be a foundation established for an arguable case ( WSGAL Pty Ltd v Trade Practices Commission (1992) 39 FCR 472 per Beaumont J at 476; Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539 at 549). It has been said that 'a prima facie case is made out if, on the material before the court, inferences are open which if translated into findings of fact, would support the relief claimed' ( Western Australia v Vetter Trittler Pty Ltd (In liq) (Receiver and Manager appointed) (1991) 30 FCR 102 at 110; Bray v F Hoffman-La Roche Ltd (above) per Carr J at [17]; and Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2005) 212 ALR 551 at [23]. See also Merpro Montassa Ltd v Conoco Specialty Products Inc (1991) 28 FCR 387 per Heerey J at 390.) In Costa Vraca Pty Ltd v Bell Regal Pty Ltd [2003] FCAFC 305 at [25] the Full Court cited with approval the following passage from Lee J in Century Insurance Ltd (in provisional liquidation) v New Zealand Guardian Trust Ltd [1996] FCA 376: 'What the Court must determine is whether the case made out on the material presented shows that a controversy exists between the parties that warrants the use of the Court's processes to resolve it and whether causing a proposed respondent to be involved in litigation in the Court in Australia is justified.'
Case: Merpro Montassa Ltd v Conoco Specialty Products Inc (1991) 28 FCR 387
Outcome: cited
It is necessary to bear in mind that the requirement of a prima facie case has to be met at the outset of proceedings, usually on an ex parte basis. A prima facie case in this sense does not amount to a prediction of an outcome or a conclusion that a finding for the applicant is the likely ultimate result of a case. It is necessary that there be a foundation established for an arguable case ( WSGAL Pty Ltd v Trade Practices Commission (1992) 39 FCR 472 per Beaumont J at 476; Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539 at 549). It has been said that 'a prima facie case is made out if, on the material before the court, inferences are open which if translated into findings of fact, would support the relief claimed' ( Western Australia v Vetter Trittler Pty Ltd (In liq) (Receiver and Manager appointed) (1991) 30 FCR 102 at 110; Bray v F Hoffman-La Roche Ltd (above) per Carr J at [17]; and Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2005) 212 ALR 551 at [23]. See also Merpro Montassa Ltd v Conoco Specialty Products Inc (1991) 28 FCR 387 per Heerey J at 390.) In Costa Vraca Pty Ltd v Bell Regal Pty Ltd [2003] FCAFC 305 at [25] the Full Court cited with approval the following passage from Lee J in Century Insurance Ltd (in provisional liquidation) v New Zealand Guardian Trust Ltd [1996] FCA 376: 'What the Court must determine is whether the case made out on the material presented shows that a controversy exists between the parties that warrants the use of the Court's processes to resolve it and whether causing a proposed respondent to be involved in litigation in the Court in Australia is justified.'
Case: Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539 
Outcome: cited
It is necessary to bear in mind that the requirement of a prima facie case has to be met at the outset of proceedings, usually on an ex parte basis. A prima facie case in this sense does not amount to a prediction of an outcome or a conclusion that a finding for the applicant is the likely ultimate result of a case. It is necessary that there be a foundation established for an arguable case ( WSGAL Pty Ltd v Trade Practices Commission (1992) 39 FCR 472 per Beaumont J at 476; Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539 at 549). It has been said that 'a prima facie case is made out if, on the material before the court, inferences are open which if translated into findings of fact, would support the relief claimed' ( Western Australia v Vetter Trittler Pty Ltd (In liq) (Receiver and Manager appointed) (1991) 30 FCR 102 at 110; Bray v F Hoffman-La Roche Ltd (above) per Carr J at [17]; and Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2005) 212 ALR 551 at [23]. See also Merpro Montassa Ltd v Conoco Specialty Products Inc (1991) 28 FCR 387 per Heerey J at 390.) In Costa Vraca Pty Ltd v Bell Regal Pty Ltd [2003] FCAFC 305 at [25] the Full Court cited with approval the following passage from Lee J in Century Insurance Ltd (in provisional liquidation) v New Zealand Guardian Trust Ltd [1996] FCA 376: 'What the Court must determine is whether the case made out on the material presented shows that a controversy exists between the parties that warrants the use of the Court's processes to resolve it and whether causing a proposed respondent to be involved in litigation in the Court in Australia is justified.'
Case: Western Australia v Vetter Trittler Pty Ltd (In liq) (Receiver and Manager appointed) (1991) 30 FCR 102
Outcome: cited
It is necessary to bear in mind that the requirement of a prima facie case has to be met at the outset of proceedings, usually on an ex parte basis. A prima facie case in this sense does not amount to a prediction of an outcome or a conclusion that a finding for the applicant is the likely ultimate result of a case. It is necessary that there be a foundation established for an arguable case ( WSGAL Pty Ltd v Trade Practices Commission (1992) 39 FCR 472 per Beaumont J at 476; Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539 at 549). It has been said that 'a prima facie case is made out if, on the material before the court, inferences are open which if translated into findings of fact, would support the relief claimed' ( Western Australia v Vetter Trittler Pty Ltd (In liq) (Receiver and Manager appointed) (1991) 30 FCR 102 at 110; Bray v F Hoffman-La Roche Ltd (above) per Carr J at [17]; and Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2005) 212 ALR 551 at [23]. See also Merpro Montassa Ltd v Conoco Specialty Products Inc (1991) 28 FCR 387 per Heerey J at 390.) In Costa Vraca Pty Ltd v Bell Regal Pty Ltd [2003] FCAFC 305 at [25] the Full Court cited with approval the following passage from Lee J in Century Insurance Ltd (in provisional liquidation) v New Zealand Guardian Trust Ltd [1996] FCA 376: 'What the Court must determine is whether the case made out on the material presented shows that a controversy exists between the parties that warrants the use of the Court's processes to resolve it and whether causing a proposed respondent to be involved in litigation in the Court in Australia is justified.'
Case: WSGAL Pty Ltd v Trade Practices Commission (1992) 39 FCR 472
Outcome: cited
It is necessary to bear in mind that the requirement of a prima facie case has to be met at the outset of proceedings, usually on an ex parte basis. A prima facie case in this sense does not amount to a prediction of an outcome or a conclusion that a finding for the applicant is the likely ultimate result of a case. It is necessary that there be a foundation established for an arguable case ( WSGAL Pty Ltd v Trade Practices Commission (1992) 39 FCR 472 per Beaumont J at 476; Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539 at 549). It has been said that 'a prima facie case is made out if, on the material before the court, inferences are open which if translated into findings of fact, would support the relief claimed' ( Western Australia v Vetter Trittler Pty Ltd (In liq) (Receiver and Manager appointed) (1991) 30 FCR 102 at 110; Bray v F Hoffman-La Roche Ltd (above) per Carr J at [17]; and Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2005) 212 ALR 551 at [23]. See also Merpro Montassa Ltd v Conoco Specialty Products Inc (1991) 28 FCR 387 per Heerey J at 390.) In Costa Vraca Pty Ltd v Bell Regal Pty Ltd [2003] FCAFC 305 at [25] the Full Court cited with approval the following passage from Lee J in Century Insurance Ltd (in provisional liquidation) v New Zealand Guardian Trust Ltd [1996] FCA 376: 'What the Court must determine is whether the case made out on the material presented shows that a controversy exists between the parties that warrants the use of the Court's processes to resolve it and whether causing a proposed respondent to be involved in litigation in the Court in Australia is justified.'
Case: Applicant NAFF 2002 v Minister for Immigration [2004] HCA 62 ; (2004) 221 CLR 1
Outcome: cited
Thus, Spender, French and Cowdroy JJ analysed the situation as one in which the tribunal had proceeded on the basis of the apparent consent pursuant to s 425(2)(b) rather than on the basis that the applicant for review had not appeared at the hearing (see also SZFML 154 FCR at 587 [65]). Earlier their Honours had referred to Applicant NAFF 2002 v Minister for Immigration [2004] HCA 62 ; (2004) 221 CLR 1 at 10 where McHugh, Gummow, Callinan and Heydon JJ said at 10 [26]-[27]: ' [26] Although the Tribunal was obliged to provide an informal mechanism of review (s 420(1)) , and although the Tribunal was not bound by "technicalities, legal forms or rules of evidence" (s 420(2)(a)) , the Act established important requirements of a substantive kind, several of which were designed to ensure that applicants for review received procedural fairness. The duty of the Tribunal under s 414(1) to review the delegate's decision (which arose once the appellant had applied for review) continued until one of the outcomes described in s 415(2) was arrived at, for example, the affirming, the varying or the setting aside of the decision. [27] One aspect of the overall duty to review was the duty to invite the appellant to give evidence and present arguments: s 425(1). The duty to review therefore entailed a statutory duty to consider the arguments presented and in that way to afford the appellant procedural fairness. That implied that if the Tribunal thought that the arguments had been presented so inadequately that the review could not be completed until further steps had been directed and performed, it could not be peremptorily concluded by the making of a decision before that direction was complied with or withdrawn.'
Case: ASIC v DB Management Pty Ltd [2000] HCA 7 ; (2000) 199 CLR 321
Outcome: cited
The appellant did not advance any reason why the Parliament would have intended the Act to be construed in a way which prevented the tribunal from coming to a decision in an applicant for review's favour before a hearing either on reconsideration of the original material before it or on subsequently becoming aware, say, of country information, perhaps recent or up to date or from conducting another review, which supported a result favourable to that applicant. This beneficial construction is open. There is no reason to reject it: ASIC v DB Management Pty Ltd [2000] HCA 7 ; (2000) 199 CLR 321 at 338 [34] - [35] .
Case: Minister for Immigration v Bhardwaj (2002) 209 CLR 597
Outcome: cited
Similarly, as Minister for Immigration v Bhardwaj (2002) 209 CLR 597 held, a decision affected by jurisdictional error is treated as being no decision at all (see also Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 506 [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ). There, the tribunal had made a decision in ignorance of a medical certificate provided by the applicant for review to the registrar of the tribunal notifying it that he was unable to attend at the hearing. The Court held that in law no decision had been made and the tribunal was free to exercise its powers on the review, as it had done, once it became apprised of the true position that it had not afforded the applicant for a review hearing in accordance with the Act.
Case: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Outcome: cited
Similarly, as Minister for Immigration v Bhardwaj (2002) 209 CLR 597 held, a decision affected by jurisdictional error is treated as being no decision at all (see also Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 506 [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ). There, the tribunal had made a decision in ignorance of a medical certificate provided by the applicant for review to the registrar of the tribunal notifying it that he was unable to attend at the hearing. The Court held that in law no decision had been made and the tribunal was free to exercise its powers on the review, as it had done, once it became apprised of the true position that it had not afforded the applicant for a review hearing in accordance with the Act.
Case: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389
Outcome: followed
In SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 at 618 [28] Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ said that the grant of a constitutional writ is a matter of discretion. They said that the discretion is exercised by the Federal Magistrates Court and this Court pursuant to s 39B of the Judiciary Act 1903 (Cth) on the same principles as are applicable by the High Court. They approved what Gordon and Gummow JJ had said in Re Refugee Tribunal; Ex parte Aala [2000] FCA 57 ; (2000) 204 CLR 82 at 108 [56] that some, though not exhaustive, guidance as to the circumstances which may attract an exercise of the discretion to refuse relief to an applicant could be found in the judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389 at 400. They held that the writ of mandamus could be withheld if a more convenient and satisfactory remedy existed, if no useful result could ensue, if the applicant had been guilty of unwarrantable delay, or if there had been bad faith on his or her part, either in the transaction out of which the duty to be enforced arose, or towards the Court to which the application was made. They concluded that ( Ozone Theatres 78 CLR at 400): 'The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.'
Case: Re Refugee Tribunal; Ex parte Aala [2000] FCA 57 ; (2000) 204 CLR 82
Outcome: cited
In SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 at 618 [28] Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ said that the grant of a constitutional writ is a matter of discretion. They said that the discretion is exercised by the Federal Magistrates Court and this Court pursuant to s 39B of the Judiciary Act 1903 (Cth) on the same principles as are applicable by the High Court. They approved what Gordon and Gummow JJ had said in Re Refugee Tribunal; Ex parte Aala [2000] FCA 57 ; (2000) 204 CLR 82 at 108 [56] that some, though not exhaustive, guidance as to the circumstances which may attract an exercise of the discretion to refuse relief to an applicant could be found in the judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389 at 400. They held that the writ of mandamus could be withheld if a more convenient and satisfactory remedy existed, if no useful result could ensue, if the applicant had been guilty of unwarrantable delay, or if there had been bad faith on his or her part, either in the transaction out of which the duty to be enforced arose, or towards the Court to which the application was made. They concluded that ( Ozone Theatres 78 CLR at 400): 'The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.' 31 As Gaudron and Gummow JJ went on to say in Aala 204 CLR at 109 [59]: 'The concern is with observance of fair decision making procedures rather than with the character of the decision which emerges from the observance of those procedures.' 32 Here, the tribunal did not do anything to depart from a fair decision-making procedure in light of the notification by the appellant that he consented to the tribunal deciding the review without affording him a hearing. I am of opinion that no useful result could ensue from granting constitutional writ relief to the appellant. 33 For these reasons I would dismiss the appeal with costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 20 March 2008 Counsel for the Appellant: T Owen (pro bono) Counsel for the First Respondent: MP Cleary Solicitor for the First Respondent: DLA Phillips Fox Date of Hearing: 5 March 2008 Date of Judgment: 20 March 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/368.html
Case: SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609
Outcome: followed
In SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 at 618 [28] Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ said that the grant of a constitutional writ is a matter of discretion. They said that the discretion is exercised by the Federal Magistrates Court and this Court pursuant to s 39B of the Judiciary Act 1903 (Cth) on the same principles as are applicable by the High Court. They approved what Gordon and Gummow JJ had said in Re Refugee Tribunal; Ex parte Aala [2000] FCA 57 ; (2000) 204 CLR 82 at 108 [56] that some, though not exhaustive, guidance as to the circumstances which may attract an exercise of the discretion to refuse relief to an applicant could be found in the judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389 at 400. They held that the writ of mandamus could be withheld if a more convenient and satisfactory remedy existed, if no useful result could ensue, if the applicant had been guilty of unwarrantable delay, or if there had been bad faith on his or her part, either in the transaction out of which the duty to be enforced arose, or towards the Court to which the application was made. They concluded that ( Ozone Theatres 78 CLR at 400): 'The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.'
Case: Zimpel v Allard [1904] HCA 56 ; (1904) 2 CLR 117
Outcome: applied
The Court has a discretion to refuse to grant a writ of prohibition where an applicant unjustifiably allows an inferior court to proceed to judgment in excess of its jurisdiction without having set up the objection. The conduct of a party seeking the remedy of prohibition is relevant to the exercise of the discretion to grant it: see Zimpel v Allard [1904] HCA 56 ; (1904) 2 CLR 117 at 120 per Griffith CJ, Barton and O'Connor JJ applying Willes J's advice to the House of Lords in Mayor of London v Cox (1866) LR 2 HL 239 at 283. I am of opinion that the principle applies equally to an administrative body exceeding its jurisdiction when a party before it unjustifiably (in the context of his, her or its subsequent challenge) allows it to do so.