mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Northumberland Insurance Co Ltd (No 3) (1977) 3 ACLR 15
Outcome: cited
The requirement of s 411(17)(a) of the Act that the Court be satisfied that the arrangement has not been proposed for the purpose of enabling the takeover provisions of Ch 6 of the Act to be avoided, obliged the Court to consider whether a "break fee" of $2,600,000.00 that the directors of the plaintiff had bound the plaintiff to pay to IAMGOLD if another offer to buy the shares of the plaintiff caused the members to reject the proposed arrangement, could have affected the market in the plaintiff's shares and have infringed the spirit of the provisions of Ch 6 of the Act . Section 602 of the Act provides that it is a purpose of Ch 6 to ensure that acquisition of control over the voting shares of a corporation "takes place in an efficient, competitive and informed manner". (See: Re Northumberland Insurance Co Ltd (No 3) (1977) 3 ACLR 15). Observations on such a question are made in ASIC Policy Statements PS 60 (at 60.1 60.10) and PS 142 (at 142.18 142.19). In the absence of any relevant evidence, and on the assumption that ASIC has given due consideration to the question and has not elicited any material relevant to the purpose of the proposal that should be put before the Court, the Court may be satisfied that the purpose of IAMGOLD in participating in the proposed arrangement was to implement a merger with the plaintiff in the most efficient way and not to avoid the provisions of Ch 6. (See: Re ACM Gold Ltd per O'Loughlin J at 535-543).
Case: Asciano Services Pty Ltd (formerly Pacific National (ACT) Limited) v Commissioner of Taxation [2008] FCA 1401
Outcome: cited
As I recently noted in a statutory interpretation case, it is always possible in hindsight to think of contractual or statutory language that would have more clearly addressed the issue now in dispute: Asciano Services Pty Ltd (formerly Pacific National (ACT) Limited) v Commissioner of Taxation [2008] FCA 1401 at [22] - [23] . As a general matter, however, hindsight arguments only highlight what is already apparent - in this case, that the Deed was not artfully drafted and cl 2.1(j) did not deal expressly with taking photographs. But I greatly doubt the Deed is properly described as ambiguous. Moreover, even if it is, in the absence of a presumption in favour of either side as to how the ambiguity should be resolved (and neither side sought to argue contra proferentem, likely because that would have required going behind the forbidden veil of the mediation: see [15] below), I do not find such hindsight arguments useful.
Case: Commissioner of Taxation v Hadidi [1994] FCA 1173 ; (1994) 51 FCR 453
Outcome: cited
A settlement agreement is simply a species of contract, and the parties did not dispute that the proper approach to be taken in construing the terms of the Deed is an objective one based on text, purpose and context: Golf Australia Holdings Ltd v Buxton Construction Pty Ltd [2007] VSCA 200 ; Commissioner of Taxation v Hadidi [1994] FCA 1173 ; (1994) 51 FCR 453. Ultimately, the meaning of the Deed must be determined by what a reasonable person would have understood the language to mean, notwithstanding the subjective beliefs or intentions of the parties. Equally important, "[i]t is impermissible to construe a [settlement Deed] by looking at what the parties said or did during the course of the negotiations": Golf Australia at [28]. Indeed, as the parties acknowledged, they and the Court are precluded by statute from inquiring into what was said and done in the course of the mediation: Federal Court of Australia Act 1976 (Cth) s 53B. The upshot is that, while the Court may consider extrinsic evidence to construe the Deed, it may only do so to establish the mutual understandings of the parties forming the background to the transaction, not the back-and-forth of the parties in concluding the transaction.
Case: Golf Australia Holdings Ltd v Buxton Construction Pty Ltd [2007] VSCA 200
Outcome: followed
A settlement agreement is simply a species of contract, and the parties did not dispute that the proper approach to be taken in construing the terms of the Deed is an objective one based on text, purpose and context: Golf Australia Holdings Ltd v Buxton Construction Pty Ltd [2007] VSCA 200 ; Commissioner of Taxation v Hadidi [1994] FCA 1173 ; (1994) 51 FCR 453. Ultimately, the meaning of the Deed must be determined by what a reasonable person would have understood the language to mean, notwithstanding the subjective beliefs or intentions of the parties. Equally important, "[i]t is impermissible to construe a [settlement Deed] by looking at what the parties said or did during the course of the negotiations": Golf Australia at [28]. Indeed, as the parties acknowledged, they and the Court are precluded by statute from inquiring into what was said and done in the course of the mediation: Federal Court of Australia Act 1976 (Cth) s 53B. The upshot is that, while the Court may consider extrinsic evidence to construe the Deed, it may only do so to establish the mutual understandings of the parties forming the background to the transaction, not the back-and-forth of the parties in concluding the transaction.
Case: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473
Outcome: referred to
Another matter referred to by counsel was alluded to in the decision of the Federal Magistrate concerning the possible application of Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 ( " S395/2002 v MIMA") . At page 3 of the Federal Magistrate's judgment in the present case, the Magistrate refers to a statement by in the RRT's decision which reads: 'As noted in the country information cited above there is a history of violence between the Hindu and Muslim communities in India but the applicant's experience in dealing with this situation will, in the Tribunal's view, enable him on return to act with sufficient care as to avoid situations in which he would be likely to suffer violence.'
Case: M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131
Outcome: referred to
Two other matters were raised by counsel for the respondent. Neither of these issues was referred to by the appellant. The first issue raised was whether the decision in Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 applied in the present circumstances. Having regard to the cases referred to by counsel for the respondent, including the decisions of Gray J in M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 (" M55 v MIMIA") and the decision of Jacobson J in NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 ( "NAZY v MIMIA") , I am persuaded that in the present case the material in the file which was before the Department was incorporated in the Application for Review to the RRT. 6 Counsel has also referred me to the recent decision of the Full Court in a number of cases including SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 , which was handed down on 24 February 2006 after the decision of the Federal Magistrate in this matter. In my view, having looked at the reasons for judgment in that case, I am not persuaded that they vary the position in any way from the position taken in NAZY v MIMIA or in M55 v MIMIA . Accordingly, I do not consider that there is any basis for a contention that there has been a breach of s 424A.
Case: Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27
Outcome: referred to
Two other matters were raised by counsel for the respondent. Neither of these issues was referred to by the appellant. The first issue raised was whether the decision in Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 applied in the present circumstances. Having regard to the cases referred to by counsel for the respondent, including the decisions of Gray J in M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 (" M55 v MIMIA") and the decision of Jacobson J in NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 ( "NAZY v MIMIA") , I am persuaded that in the present case the material in the file which was before the Department was incorporated in the Application for Review to the RRT.
Case: NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744
Outcome: referred to
Two other matters were raised by counsel for the respondent. Neither of these issues was referred to by the appellant. The first issue raised was whether the decision in Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 applied in the present circumstances. Having regard to the cases referred to by counsel for the respondent, including the decisions of Gray J in M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 (" M55 v MIMIA") and the decision of Jacobson J in NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 ( "NAZY v MIMIA") , I am persuaded that in the present case the material in the file which was before the Department was incorporated in the Application for Review to the RRT.
Case: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
Outcome: referred to
Counsel has also referred me to the recent decision of the Full Court in a number of cases including SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 , which was handed down on 24 February 2006 after the decision of the Federal Magistrate in this matter. In my view, having looked at the reasons for judgment in that case, I am not persuaded that they vary the position in any way from the position taken in NAZY v MIMIA or in M55 v MIMIA . Accordingly, I do not consider that there is any basis for a contention that there has been a breach of s 424A.
Case: SZHKK v Minister for Immigration and Citizenship [2007] FMCA 842
Outcome: affirmed
The nature of the appellant's claims, the essence of the Tribunal's reasoning and the reasons of the Magistrate are set out in the decision of the court below, which is available on the Internet: SZHHK v Minister for Immigration and Multicultural Affairs [2007] FMCA 842. It is not necessary to repeat that material other than to say that the appellant's claim was that he had a well-founded fear of persecution by reason of his Christianity. He claimed to be the leader of an underground church and that his home had been searched by authorities. 3 Before the Federal Magistrates Court the grounds of review were: first: the Tribunal failed to carry out its statutory duty; and secondly: the Tribunal had bias against the appellant and did not believe that he was a leader of an underground church in China or even a Christian. 4 On the appeal to this Court the appellant's grounds were: first: the Tribunal had bias against him and failed to consider his application according to s 91R of the Migration Act 1958 (Cth); secondly: the Tribunal failed to consider his application according to s 424A of the Act; thirdly: the Tribunal failed to notify him of the reason or part of the reason for affirming the decision; and fourthly: the appellant was not given an opportunity to explain his case.
Case: Fox v Olsen [1999] SASC 411
Outcome: referred to
is likely to be a saving of time if the proceedings are tried together, but it is difficult to quantify the extent of the saving. It would be nowhere near the substantial saving referred to in Fox v Olsen [1999] SASC 411 at [7] per Mullighan J (with whom Doyle CJ and Wicks J agreed). It seems to me that 2 weeks is a reasonable estimate for the trial of the proceeding brought by Mr Humphries. It is difficult to be precise about an estimate of trial time if all proceedings are tried at the same time, but, doing the best I can, I proceed on the basis of an estimate of 4-8 weeks. If tried separately, the proceedings involving Mr Humphries would, as I have said, take 2 weeks and the other 7 proceedings would take 1-2 weeks each. There is a real prospect that the parties in those 7 proceedings would not contest a number of findings of fact made in the first proceeding and therefore, if they did proceed, the estimate for each proceeding would be closer to 1 week than to 2 weeks. Trial management issues are likely to loom large if all proceedings are tried together. It would be necessary to put in place detailed and possibly complex procedural orders to ensure the trial proceeded in an orderly fashion. There is considerable potential for time-consuming arguments about the cross-admissibility of evidence. Counsel would need to be alert to the evidence rulings about cross-admissibility. These problems are by no means insurmountable, but they are a reason not to order that the proceedings be tried together. The proceeding involving Mr Humphries is further advanced, in terms of preparation for trial, than any of the other proceedings.
Case: Australian Education Union v Lawler [2008] FCAFC 135
Outcome: followed
In England it has been suggested that Anshun estoppel does not apply to judicial review proceedings: R v Secretary of State for the Environment; Ex parte Hackney London Borough Council [1984] 1 All ER 358, [1984] 1 All ER 956. But that is not the position in Australia and an Anshun estoppel may be invoked in a proceeding such as the present: Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 ; Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 at [39] , [2004] FCA 51 ; 146 FCR 10 at 18; Australian Education Union v Lawler [2008] FCAFC 135 at [177] per Jessup J (Moore and Lander JJ agreeing); SZBJM v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 404 at [15] [18] per Madgwick J. See also: Campbell E, Relitigation in Government Cases: A Study of the Use of Estoppel Principles in Public Law Litigation (1994) 20 Mon Univ L Rev 21.
Case: Brock v Minister for Justice and Customs [2007] FCA 2091 , 243 ALR 315
Outcome: considered
But the weakness of the position of Mr Tervonen is the fact that any such challenge which sought to impugn the validity of the request was properly the subject-matter of proceedings (in this case) seeking to impugn the decision made by the Minister under s 16 when giving effect to that request. The present proceeding was not commenced at the outset and before any decision authorised by the 1988 Act was made; the present proceeding was commenced only after all other attempts to challenge the decisions to give effect to the request proved unsuccessful. Compare: Brock v Minister for Justice and Customs [2007] FCA 2091 at [72] [74], [2007] FCA 2091 ; 243 ALR 315 at 332. Even if such an application is not itself foreclosed by Kainhofer , it is now too late to allow such an application to be pursued. 40 To now permit such a proceeding to continue would be an abuse of process. 41 The Amended Application should be dismissed pursuant to O 20 r 5 of the Federal Court Rules .
Case: Coffey v Secretary, Department of Social Security [1999] FCA 375 , 86 FCR 434
Outcome: followed
An abuse of process, it may be noted, may arise where the same point has been resolved in earlier litigation in another court, even though there may be no res judicata or issue estoppel: Coffey v Secretary, Department of Social Security [1999] FCA 375 , 86 FCR 434. It was there concluded that it would be an abuse of process to permit the appellant to pursue proceedings in the Federal Court in respect to the recovery of social security benefits in circumstances where the issue had been canvassed by means of a " comprehensive and multi-level process for the review of decisions " under the Social Security Act 1991 (Cth). Von Doussa, Branson and Sundberg JJ there observed: [25] An attempt to litigate in the Court a dispute or issue which has been resolved in earlier litigation in another court or tribunal may constitute an abuse of process even though the earlier proceeding did not give rise to a res judicata or issue estoppel.... Whether it does depends on the facts of the particular case. ... Their Honours went on to conclude: ... In the present case the circumstances are these. First, the Parliament has made available a comprehensive and multi-level process for the review of decisions under the Act. Secondly, the appellant has had three reviews under the procedures thus made available. Thirdly, the respondent and his officers have been vexed already by these reviews, especially those before the two Tribunals. In our view, for the Court to allow the appellant to relitigate his claim that the respondent was not entitled to withhold from his benefits the amount of the alleged overpayment, would be to permit its process to be employed in a manner unfair to the respondent. The maintenance of the debt claim is an abuse of process, and should be dismissed.
Case: Dutton v Republic of South Africa [1999] FCA 1016 , 92 FCR 575
Outcome: followed
There is a public interest in all litigation, including extradition cases, for all issues to be resolved at the one time. In extradition cases it is thus recognised that a person against whom extradition is sought is " obliged, when challenging extradition proceedings ... to bring forward his whole case ": Dutton v Republic of South Africa [1999] FCA 1016 at [9] , [1999] FCA 1016 ; 92 FCR 575 at 577 per Wilcox, Whitlam and Moore JJ. 28 The decision of Gyles J correctly, with respect, concluded that the argument sought to be pursued was foreclosed by the decision in Kainhofer. To now permit the same argument to be advanced, albeit against a different respondent, would be an abuse of process as it would be the pursuit of litigation already resolved against a party and litigation having no prospects of success.
Case: Ling v Cth [1996] FCA 1646 ; (1996) 68 FCR 180
Outcome: considered
The decision thus involves an evaluative judgment as to whether it was " unreasonable " not to have raised an argument in earlier proceedings. See also: Ling v Cth [1996] FCA 1646 ; (1996) 68 FCR 180 at 195 per Sundberg J (Wilcox and Whitlam JJ agreeing).
Case: Minister for Home Affairs v Tervonen [2008] FCAFC 24 , 166 FCR 91
Outcome: cited
The first two notices have been the subject of a proceeding before a judge of this Court at first instance: Tervonen v Minister for Justice and Customs (No 2) [2007] FCA 1684 , 98 ALD 589. And there was then an appeal from that decision: Minister for Home Affairs v Tervonen [2008] FCAFC 24 , 166 FCR 91. An application for special leave to appeal was filed with the Sydney Registry of the High Court of Australia on 19 March 2008. 16 The appeal to the Full Court was allowed in part: Minister for Home Affairs v Tervonen [2008] FCAFC 24 , 166 FCR 91. No argument as to the meaning of the words " accused " or " offence " occurred in the Full Court. No notice of contention was filed on behalf of Mr Tervonen seeking to raise any such argument before the Full Court. 17 The contention of the Minister is simply that the very argument now sought to be raised was either in fact raised and resolved against Mr Tervonen at first instance (notwithstanding the appeal being successful in part) or, if not raised, ought reasonably to have been raised. Moreover, and in the absence of a notice of contention having been filed with the Full Court, the Minister now submits that it is too late for the argument to be raised in this proceeding. 18 Mr Tervonen's contention is equally simple -- he contends that for the purposes of s 16 (and s 19) of the 1988 Act, any conclusion that the warrants, as issued and relied upon by Finland, are in respect to an " offence " is not the task to be undertaken by those provisions. Section 16 entrusts to the Attorney-General the task of reaching an " opinion " and the task entrusted to the Magistrate under s 19 is that of reaching a state of " satisfaction ". It was only the lawfulness of the " opinion " reached by the Minister which was in issue, or so it is contended. Whether the " extradition request " was a request which could lawfully be made, so the argument was understood, was not resolved.
Case: R v Secretary of State for the Environment; Ex parte Hackney London Borough Council [1984] 1 All ER 358, [1984] 1 All ER 956
Outcome: cited
In England it has been suggested that Anshun estoppel does not apply to judicial review proceedings: R v Secretary of State for the Environment; Ex parte Hackney London Borough Council [1984] 1 All ER 358, [1984] 1 All ER 956. But that is not the position in Australia and an Anshun estoppel may be invoked in a proceeding such as the present: Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 ; Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 at [39] , [2004] FCA 51 ; 146 FCR 10 at 18; Australian Education Union v Lawler [2008] FCAFC 135 at [177] per Jessup J (Moore and Lander JJ agreeing); SZBJM v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 404 at [15] [18] per Madgwick J. See also: Campbell E, Relitigation in Government Cases: A Study of the Use of Estoppel Principles in Public Law Litigation (1994) 20 Mon Univ L Rev 21.
Case: SZBJM v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 404
Outcome: followed
In England it has been suggested that Anshun estoppel does not apply to judicial review proceedings: R v Secretary of State for the Environment; Ex parte Hackney London Borough Council [1984] 1 All ER 358, [1984] 1 All ER 956. But that is not the position in Australia and an Anshun estoppel may be invoked in a proceeding such as the present: Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 ; Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 at [39] , [2004] FCA 51 ; 146 FCR 10 at 18; Australian Education Union v Lawler [2008] FCAFC 135 at [177] per Jessup J (Moore and Lander JJ agreeing); SZBJM v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 404 at [15] [18] per Madgwick J. See also: Campbell E, Relitigation in Government Cases: A Study of the Use of Estoppel Principles in Public Law Litigation (1994) 20 Mon Univ L Rev 21.
Case: Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342
Outcome: followed
In England it has been suggested that Anshun estoppel does not apply to judicial review proceedings: R v Secretary of State for the Environment; Ex parte Hackney London Borough Council [1984] 1 All ER 358, [1984] 1 All ER 956. But that is not the position in Australia and an Anshun estoppel may be invoked in a proceeding such as the present: Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 ; Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 at [39] , [2004] FCA 51 ; 146 FCR 10 at 18; Australian Education Union v Lawler [2008] FCAFC 135 at [177] per Jessup J (Moore and Lander JJ agreeing); SZBJM v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 404 at [15] [18] per Madgwick J. See also: Campbell E, Relitigation in Government Cases: A Study of the Use of Estoppel Principles in Public Law Litigation (1994) 20 Mon Univ L Rev 21.