mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: NADH of 2001 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (2005) 214 ALR 264
Outcome: discussed
In my judgment, the transcript does not indicate circumstances such that a fair-minded and informed person might reasonably apprehend that the Tribunal might not have brought an impartial mind to the consideration of the application: Webb v The Queen [1994] HCA 30 ; (1994) 181 CLR 41 at 70-71; Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425. The Tribunal's role required it to question the applicant, and entitled it to express doubts about aspects of the applicant's evidence or claims and to invite his comments upon those matters: NADH of 2001 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (2005) 214 ALR 264 at 269 ( NADH ). The Tribunal went no further than that. It put its concerns to the applicant. It gave him an opportunity to respond. It did not prevent him from responding, or cut off his answers. Its concerns were rational. It does not appear that its manner of questioning was inappropriate. 23 The alternative way the apprehended bias contention was developed is based upon the observations of Allsop J (with whom Moore and Tamberlin JJ agreed) in NADH at 284 where his Honour said: 'By and large fact-finding is a task within jurisdiction, though factual error is not necessarily mutually exclusive of jurisdictional error: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; 73 ALD 1; [2003] HCA 30. Where fact-finding has been conducted in a manner which can be described, as here, as in substantial respects unreasoned, and mere assertion lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way, these considerations may found a conclusion that the posited fair-minded observer might, or indeed would, reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly.' His Honour went on to ask rhetorically, in relation to the circumstances of that case, how else (the fair-minded observer might ask) can the steps taken by the decision-maker be explained. He then continued: 'The answer to these questions might be that the tribunal lacked an appreciation of the need to weigh all the material. If that were the case it would itself support a conclusion of jurisdictional error. The answer might also be the lack of an ability or willingness to deal with the material before it with a mind open to persuasion fairly evaluating all the material.'
Case: SFGB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (2004) 77 ALD 402
Outcome: cited
I do not consider the Tribunal's questioning of the applicant on his knowledge of the exercises and cultivation of Falun Gong is capable of indicating a closed mind on its part. It had to address his claim to have been a Falun Gong practitioner since mid 2002. It had reasons to doubt its accuracy, based upon other aspects of the applicant's evidence. Its questions then were directed to testing his knowledge of Falun Gong exercises and practice. It did so using material which it identified, and which the applicant acknowledged he was aware of. Members of the Tribunal in many instances develop a relatively detailed knowledge of the political or religious situation or of the political or religious beliefs of certain groups in many countries. So long as it acts consistently with the requirements of procedural fairness, the Tribunal informs itself as it thinks fit: s 420(2) and Pt 7 Div 4 of the Act; see also SFGB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (2004) 77 ALD 402 at 408 ( SFGB ). This is not a case where the Tribunal did not disclose the source of its information: cf Collector of Customs, Tasmania v Flinders Island Community Association (1985) 7 FCR 205 at 210-211. Its questioning was not unreasoned or unreasonable. Its conclusions about the applicant's level of knowledge was not shown to be based on selective material, nor to lack a foundation in the material referred to. Indeed the applicant accepted at the conclusion of that sequence of questions that what the Tribunal had put to him was based on what committed practitioners of Falun Gong 'read again and again and again on a daily basis'. 30 If the Tribunal makes a finding which is a critical step in its ultimate conclusion, and there is no evidence to support the finding, there may well be jurisdictional error: SFGB at 407-408, and the cases there cited at [19]-[20]. If the reasons for decision lead to the inference that the Tribunal applied the wrong test, or was not in reality satisfied about the correct text, that too may constitute jurisdictional error: Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59. Such an inference might be drawn if there was no information before the Tribunal from which it could realistically or logically draw the conclusions which it did.
Case: Collector of Customs, Tasmania v Flinders Island Community Association (1985) 7 FCR 205
Outcome: distinguished
I do not consider the Tribunal's questioning of the applicant on his knowledge of the exercises and cultivation of Falun Gong is capable of indicating a closed mind on its part. It had to address his claim to have been a Falun Gong practitioner since mid 2002. It had reasons to doubt its accuracy, based upon other aspects of the applicant's evidence. Its questions then were directed to testing his knowledge of Falun Gong exercises and practice. It did so using material which it identified, and which the applicant acknowledged he was aware of. Members of the Tribunal in many instances develop a relatively detailed knowledge of the political or religious situation or of the political or religious beliefs of certain groups in many countries. So long as it acts consistently with the requirements of procedural fairness, the Tribunal informs itself as it thinks fit: s 420(2) and Pt 7 Div 4 of the Act; see also SFGB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (2004) 77 ALD 402 at 408 ( SFGB ). This is not a case where the Tribunal did not disclose the source of its information: cf Collector of Customs, Tasmania v Flinders Island Community Association (1985) 7 FCR 205 at 210-211. Its questioning was not unreasoned or unreasonable. Its conclusions about the applicant's level of knowledge was not shown to be based on selective material, nor to lack a foundation in the material referred to. Indeed the applicant accepted at the conclusion of that sequence of questions that what the Tribunal had put to him was based on what committed practitioners of Falun Gong 'read again and again and again on a daily basis'.
Case: Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Outcome: cited
The alternative way the apprehended bias contention was developed is based upon the observations of Allsop J (with whom Moore and Tamberlin JJ agreed) in NADH at 284 where his Honour said: 'By and large fact-finding is a task within jurisdiction, though factual error is not necessarily mutually exclusive of jurisdictional error: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; 73 ALD 1; [2003] HCA 30. Where fact-finding has been conducted in a manner which can be described, as here, as in substantial respects unreasoned, and mere assertion lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way, these considerations may found a conclusion that the posited fair-minded observer might, or indeed would, reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly.' His Honour went on to ask rhetorically, in relation to the circumstances of that case, how else (the fair-minded observer might ask) can the steps taken by the decision-maker be explained. He then continued: 'The answer to these questions might be that the tribunal lacked an appreciation of the need to weigh all the material. If that were the case it would itself support a conclusion of jurisdictional error. The answer might also be the lack of an ability or willingness to deal with the material before it with a mind open to persuasion fairly evaluating all the material.' 30 If the Tribunal makes a finding which is a critical step in its ultimate conclusion, and there is no evidence to support the finding, there may well be jurisdictional error: SFGB at 407-408, and the cases there cited at [19]-[20]. If the reasons for decision lead to the inference that the Tribunal applied the wrong test, or was not in reality satisfied about the correct text, that too may constitute jurisdictional error: Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59. Such an inference might be drawn if there was no information before the Tribunal from which it could realistically or logically draw the conclusions which it did.
Case: Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd (1989) 17 NSWLR 734
Outcome: followed
And, this construction is reinforced by O 6 r 11(1)(b) which permits orders for amendment, in effect, consequent upon the joinder of a new party under O 6 r 8: see also Richardson v Trautwein (1942) 64 CLR at 601 per Williams J and Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd (1989) 17 NSWLR 734 at 745E-746C per Mahoney JA, see too at 749F-751C per Priestley JA. So, O 6 r 8 has to do, primarily, with ensuring that the rules of natural justice, entitling a person whose rights may be affected by a decision to be heard before the decision is made, and ensuring that any proper contradictor can be joined so as to assist in the court's discharge of its statutory obligation under s 22 of the Federal Court of Australia Act 1976 (Cth). That provides: 'The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided.'
Case: BHP Billiton Ltd v Schultz [2004] HCA 61 ; (2004) 221 CLR 400
Outcome: applied
In BHP Billiton Ltd v Schultz [2004] HCA 61 ; (2004) 221 CLR 400 at 422 [15] Gleeson CJ, McHugh and Heydon JJ said of a statutory discretion to be exercised according to the interests of justice: 'The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered.' 58 I am of opinion that because O 6 r 2(b) creates a similarly wide discretion, it is appropriate, to consider whether the Bank can bring itself within the terms of O 6 r 2(a) before considering the catch-all discretion in r 2(b).
Case: Birtles v Commonwealth [1960] VR 247
Outcome: approved
In Birtles v Commonwealth [1960] VR 247 at 250 Adam J observed that an overly technical approach to the construction of an analogue to O 6 was "... out of harmony with the modern concept that litigation is no mere game of chess to be lost by one false move ..." and that errors are, usually, curable. That is certainly the case, and in instances involving the related, but distinct, discretion to permit amendment, the court takes a liberal and facultative approach to ensuring that the real issues are litigated. There, an amendment will be allowed in the ordinary case, no matter what kind of error or mistake occurred unless it was fraudulent or intentionally exaggerated: Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 at 152-153; Cropper v Smith (1884) 26 Ch D 700 at 710.
Case: Bishop v Bridges (1990) 25 FCR 311
Outcome: followed
In Bishop v Bridges (1990) 25 FCR 311 at 314, Wilcox J said that as the discretion in r 2(b) is in terms unconfined it would be inappropriate to specify circumstances in which it might be applied. He said, and I agree, that ' [e]verything must depend upon the facts of the particular case '. His Honour continued (25 FCR at 314-315; see too per Austin J in Dean-Willcocks v Air Transit International Pty Ltd [2002] NSWSC 525 ; (2002) 55 NSWLR 64 at 72-74 [28] - [36] ; Carter v Commissioner of Taxation [2001] FCA 575 ; (2001) 109 FCR 215 at 220-221 [22] - [23] per Goldberg J): 'But it is appropriate to consider what principles ought to guide the exercise of such a discretion. The basic principle, as it seems to me, is that the Court should take whatever course seems to be most conducive to a just resolution of the disputes between the parties, but having regard to the desirability of limiting, so far as practicable, the costs and delay of the litigation. Considerations of costs and delay may often support the grant of leave under subr (b); but, in my opinion, leave ought not be granted unless the Court is affirmatively satisfied that joinder is unlikely to result in unfairness to any party. Secondly, regard must be had to practical matters. For example, it would normally be inappropriate to grant leave for the joinder of applicants who were represented by different solicitors. There must be a single solicitor, or firm of solicitors, who is accountable for the conduct of the proceeding on the applicants' side of the case. Similarly, although all applicants might propose to rely upon some common, or similar facts, there may be such differences between the evidence intended to be relied upon in support of the claims of particular applicants as to make it inexpedient to join the claims. The discrete material may overbear that which is common to all the claims. Again, there may be cases in which the sheer number of the claims, if joinder is permitted, will impose an undue burden on the respondent; although it seems to me unlikely that this will be so except in cases where separate evidence is proposed to be adduced in support of individual claims.'
Case: Caboolture Park Shopping Centre Pty Ltd v White Industries (Qld) Pty Ltd (25 May 1988 unreported, Federal Court of Australia)
Outcome: followed
Last, the Bank seeks the exercise of my discretion pursuant to O 6 r 2(b). As already noted the discretion is very wide ( John Cooke &amp; Co Pty Ltd v The Commonwealth [1922] HCA 60 ; (1922) 31 CLR 394 at 411; Caboolture Park Shopping Centre Pty Ltd v White Industries (Qld) Pty Ltd (25 May 1988, unreported, Federal Court of Australia) per Ryan J at 3; Re The Thai Silk Company Ltd and Arkitex Fabrics Pty Ltd (31 May 1989, unreported, Federal Court of Australia) per Hill J at [21]).
Case: Chadwick v Bridge [1951] HCA 11 ; (1951) 83 CLR 314
Outcome: referred to
Of course, it is possible, and indeed a commonplace to allege inconsistent matters in different counts against different parties based on a cause of action arising out of the one transaction. Indeed, s 2(1) of the Law Reform (Miscellaneous Provision) Act 1946 (NSW) specifically envisages that this may occur where it is uncertain which of two or more persons, if not all of them, is responsible for the relief for which the plaintiff or applicant claims ( Chadwick v Bridge [1951] HCA 11 ; (1951) 83 CLR 314 at 319 per Dixon J, Williams, Webb, Fullagar and Kitto JJ agreeing in separate reasons at 320-321). As Dixon J observed (83 CLR at 318) the words of the statutory right to bring an action in tort are similar to O 6 r 2(a). But the issue there was uncertainty as to what the identity of the vehicle which allegedly injured the plaintiff was (see: 83 CLR at 319-320). And there is no analogue to O 6 r 2(b) in that legislative provision which explicitly creates a general discretion in the court to grant leave (see the discussion concerning the relatively recent introduction of the analogues of O 6 r 2(b) in Newman v Hold Pty Ltd [2001] VSC 282 at [2] - [4] and the cases there cited by Mandie J). 55 Here it can be said that the Bank is uncertain as to who has caused it the loss or damage claimed. Dixon J said (83 CLR at 319): 'It is, I think, not a proper way of construing s 2 to take every paragraph of the section separately and deal with it as if each paragraph was to cover a different case. The purpose of the paragraphs is to make plain how the general policy of the provision operates and to ensure as far as language may do that plaintiffs are not to be defeated because of their uncertainty at the commencement of the action as to the correct party against whom they ought to claim.'
Case: Cropper v Smith (1884) 26 Ch D 700
Outcome: followed
In Birtles v Commonwealth [1960] VR 247 at 250 Adam J observed that an overly technical approach to the construction of an analogue to O 6 was "... out of harmony with the modern concept that litigation is no mere game of chess to be lost by one false move ..." and that errors are, usually, curable. That is certainly the case, and in instances involving the related, but distinct, discretion to permit amendment, the court takes a liberal and facultative approach to ensuring that the real issues are litigated. There, an amendment will be allowed in the ordinary case, no matter what kind of error or mistake occurred unless it was fraudulent or intentionally exaggerated: Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 at 152-153; Cropper v Smith (1884) 26 Ch D 700 at 710.
Case: Fernance v Nominal Defendant (1989) 17 NSWLR 710
Outcome: followed
As Gleeson CJ noted in Fernance v Nominal Defendant (1989) 17 NSWLR 710 at 722C-D the analogue of s 22 was relevant to the operation of O 6 r 8 and the phrase 'all matters in dispute in the proceedings' (see O 6 r 8(1)(b)) was not to be construed as limited to matters arising under the existing pleadings.
Case: Marino v Esanda Ltd [1986] VR 735
Outcome: followed
So, if here, the only parties to the Bank proceedings had been Marie and Josephine Saklaoui the Bank's position may have brought it within the words of O 6 r 2(a)(ii). But because the Bank proceedings involve four other existing respondents this is not the case here because the 'transaction' or 'transactions' in which Marie and Josephine Saklaoui are involved is not related to and does not arise from the cases of the other guarantors (see too Marino v Esanda Ltd [1986] VR 735 at 740 per Tadgell J; Re The Thai Silk Company Ltd and Arkitex Fabrics Pty Ltd (31 May 1989 unreported, Federal Court of Australia) per Hill J at [22]-[23]; Dean-Willcocks v Air Transit International Pty Ltd [2002] NSWSC 525 ; (2002) 55 NSWLR 64 at 7-72 [21] - [27] ).
Case: Newman v Hold Pty Ltd [2001] VSC 282
Outcome: referred to
Of course, it is possible, and indeed a commonplace to allege inconsistent matters in different counts against different parties based on a cause of action arising out of the one transaction. Indeed, s 2(1) of the Law Reform (Miscellaneous Provision) Act 1946 (NSW) specifically envisages that this may occur where it is uncertain which of two or more persons, if not all of them, is responsible for the relief for which the plaintiff or applicant claims ( Chadwick v Bridge [1951] HCA 11 ; (1951) 83 CLR 314 at 319 per Dixon J, Williams, Webb, Fullagar and Kitto JJ agreeing in separate reasons at 320-321). As Dixon J observed (83 CLR at 318) the words of the statutory right to bring an action in tort are similar to O 6 r 2(a). But the issue there was uncertainty as to what the identity of the vehicle which allegedly injured the plaintiff was (see: 83 CLR at 319-320). And there is no analogue to O 6 r 2(b) in that legislative provision which explicitly creates a general discretion in the court to grant leave (see the discussion concerning the relatively recent introduction of the analogues of O 6 r 2(b) in Newman v Hold Pty Ltd [2001] VSC 282 at [2] - [4] and the cases there cited by Mandie J).
Case: News Ltd v Australian Rugby Football League (1996) 64 FCR 410
Outcome: discussed
The Bank contended that this showed that Branson J's approach to O 6 r 8 was wrong and, moreover, it submitted that the approach of Glass and Samuels JJA had been approved by the Full Court in News Ltd v Australian Rugby Football League (1996) 64 FCR 410 at 523G-524B. But there, the Full Court referred simply to the decision in Qantas Airways Ltd v AF Little Pty Ltd [1981] 2 NSWLR 34 in the context of considering a different situation; viz , one in which the trial judge had made orders that affected the substantive rights of persons who had not been joined to the proceedings (see 64 FCR at 524E-F). Lockhart, von Doussa and Sackville JJ did say (64 FCR at 524A-B) immediately after their reference in the above context to the decision of the Court of Appeal and FCR O 6 r 8(1)(b): 'The post-Judicature Act rules of court also included provisions of the kind now found in FCR O 6, rr 1 and 2 for the joinder of multiple claims and multiple parties, either plaintiffs or defendants, where the subject matter of the proceedings is in respect of, or arises out of, the same transaction or series of transactions, involving some common question of law or fact. These provisions reflect an intention, which now receives more emphasis than in the past, to avoid where reasonably practicable a multiplicity of proceedings: Montgomery v Foy, Morgan &amp; Co [1895] 2 QB 321; but see Amon v Raphael Tuck &amp; Sons Ltd [1956] 1 QB 357 at 378 per Devlin J.'
Case: Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41
Outcome: followed
It is not alleged that Ms Nader acted as an agent for the Bank, so the question will be, after a finding is made about what explanation, if any, was given, how that affects the Bank's entitlement in all the circumstances to enforce the guarantees and mortgages against Marie and Josephine Saklaoui. A myriad of other discretionary factors will fall to be considered. Indeed, even if Ms Nader gave no explanation, there may be circumstances in which the Bank could succeed in its claim to enforce its contractual and real property rights, such as if Marie and or Josephine Saklaoui from past experience knew what a guarantee or mortgage was and that she was executing such an instrument fully cognizant of the potential consequences for her in doing so. Relief under s 7 of the Contracts Review Act 1980 (NSW) is potentially available because the court can hold a contract to be unjust as Basten JA recently said in Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41 at [119] : '...by reliance on factors of which the other party was ignorant when the contract was entered into, but that such ignorance may be relevant in determining whether to grant relief.' (see too per Spigelman CJ at [90]) 41 In some cases it may be desirable or convenient to join as a party a person in Ms Nader's position, but that addition, in the present, complex, matter, in my opinion, is not necessary to ensure that all matters in dispute in these proceedings can be effectually and completely determined and adjudicated upon under O 6 r 8(1)(b). The enforceability of the guarantees and mortgages can be determined once for all, subject to any appeal, without the need to join, or the joinder of, Ms Nader. 42 Indeed, the significant amendments required if Ms Nader was joined, demonstrate that her addition as a party would expand the matters in dispute, albeit that this would occur because the claim against her is in the alternative to the principal claims against some of the guarantors.