mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Patten v New Holland Credit Australia Pty Ltd [2006] FCA 1724
Outcome: cited
this case however Mr Hunter has sought an order striking out Mr Conde's notice of appeal. As a general proposition the Court may strike out a notice of appeal if the notice does not disclose any arguable basis for granting the appeal: cf Patten v New Holland Credit Australia Pty Ltd [2006] FCA 1724. Such an order is clearly by way of summary judgment. In my view the jurisdiction of the Court under s 25(2B)(aa) contemplates an order striking out a notice of appeal. At the hearing before me Mr Macklin on behalf of Mr Hunter stated that he also relied on s 31A of the Federal Court Act. Section 31A provides that the Court may give judgment if, inter alia , the Court is satisfied that a party has no reasonable prospect of successfully prosecuting a proceeding (s 31A(2)(b)). For the purposes of that section, a proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success: s 31A(3).
Case: QBE Insurance Ltd v Switzerland Insurance Workers Compensation (NSW) Ltd [1996] HCA 1 ; (1996) 134 ALR 433
Outcome: cited
failure of a Court to consider an issue before it and supporting submissions may constitute a miscarriage of justice ( QBE Insurance Ltd v Switzerland Insurance Workers Compensation (NSW) Ltd [1996] HCA 1 ; (1996) 134 ALR 433) I can draw no inference that his Honour had regard only to the submissions filed by Mr Hunter and ignored either the substance of Mr Conde's case or the provisions of the Bankruptcy Act and rules. It is clear from reviewing the decision of the Federal Magistrate ( Conde v Hunter [2009] FMCA 751) that his Honour:
Case: Minister for Immigration and Multicultural and Indigenous Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507
Outcome: cited
Conde correctly submitted that a judge may be disqualified in the event of either actual bias or the reasonable apprehension of bias. However bias is a very serious allegation which must be clearly articulated and proved by admissible evidence. Without more, the fact that a decision records findings adverse to the complainant is insufficient to establish bias: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 ; (2002) 194 ALR 749 at 756, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 ; (2003) 131 FCR 102. This is particularly so where the Court's findings were open on the material before it: Minister for Immigration and Multicultural and Indigenous Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at 519 and 531-532.
Case: Rana v University of Adelaide (No 2) [2008] FCA 941
Outcome: cited
question arises whether, in considering s 25(2B)(aa), it is necessary for the Court to also have recourse to s 31A. In a number of cases the Court has exercised power pursuant to s 25(2B)(aa) and given summary judgment without reference to s 31A: Druett v Department of Families, Community Services &amp; Indigenous Affairs [2007] FCA 995 , Zambini v Secretary, Department of Employment and Workplace Relations [2006] FCA 1773 , Dunstan v Human Rights and Equal Opportunity Commission [2007] FCA 1326 , Rana v University of Adelaide (No 2) [2008] FCA 941. However in other cases the Court has linked the power under s 25(2B)(aa) to the jurisdiction of the Court under s 31A and summarily dismissed an appeal on the basis that the appellant had no reasonable prospect of success in prosecuting its grounds of appeal: Genovese v BGC Construction Pty Ltd [2007] FCA 923 , Bishop v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1118.
Case: re Black ex parte Jeffery (1932) 4 ABC 157
Outcome: cited
this context a "final order" is an order which "finally disposes of the rights of the parties": Bozson v Altrincham Urban District Council [1903] 1 KB 547 at 548-549, Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 per Taylor J at 439-440 (Owen J concurring), Windeyer J at 443-444; Licul v Corney [1976] HCA 6 ; (1976) 50 ALJR 439 at 444; Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20 ; (1981) 147 CLR 246 at 253-254. It is clear however that an order may in one sense be interlocutory but in another sense final: re Black ex parte Jeffery (1932) 4 ABC 157 at 161. There is long-standing authority that a costs order made at an interlocutory stage during proceedings is nonetheless a final order for the purposes of the Bankruptcy Act : re Black ex parte Jeffery (1932) 4 ABC 157 , re McAlister ex parte McAlister (1936) 8 ABC 283 , Kayo Contractors v Fernandez (1984) 71 FLR 34 and Re Gibbs; Ex parte Triscott (1995) 65 FCR 80. This will be the case only if a certificate of taxation has been issued: Stec v Orfanos [1999] FCA 457 at [18] , Franks v Warringah Council, in the matter of Franks [2003] FCA 1047.
Case: Re Gibbs; Ex parte Triscott (1995) 65 FCR 80
Outcome: cited
this context a "final order" is an order which "finally disposes of the rights of the parties": Bozson v Altrincham Urban District Council [1903] 1 KB 547 at 548-549, Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 per Taylor J at 439-440 (Owen J concurring), Windeyer J at 443-444; Licul v Corney [1976] HCA 6 ; (1976) 50 ALJR 439 at 444; Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20 ; (1981) 147 CLR 246 at 253-254. It is clear however that an order may in one sense be interlocutory but in another sense final: re Black ex parte Jeffery (1932) 4 ABC 157 at 161. There is long-standing authority that a costs order made at an interlocutory stage during proceedings is nonetheless a final order for the purposes of the Bankruptcy Act : re Black ex parte Jeffery (1932) 4 ABC 157 , re McAlister ex parte McAlister (1936) 8 ABC 283 , Kayo Contractors v Fernandez (1984) 71 FLR 34 and Re Gibbs; Ex parte Triscott (1995) 65 FCR 80. This will be the case only if a certificate of taxation has been issued: Stec v Orfanos [1999] FCA 457 at [18] , Franks v Warringah Council, in the matter of Franks [2003] FCA 1047.
Case: re McAlister ex parte McAlister (1936) 8 ABC 283
Outcome: cited
this context a "final order" is an order which "finally disposes of the rights of the parties": Bozson v Altrincham Urban District Council [1903] 1 KB 547 at 548-549, Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 per Taylor J at 439-440 (Owen J concurring), Windeyer J at 443-444; Licul v Corney [1976] HCA 6 ; (1976) 50 ALJR 439 at 444; Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20 ; (1981) 147 CLR 246 at 253-254. It is clear however that an order may in one sense be interlocutory but in another sense final: re Black ex parte Jeffery (1932) 4 ABC 157 at 161. There is long-standing authority that a costs order made at an interlocutory stage during proceedings is nonetheless a final order for the purposes of the Bankruptcy Act : re Black ex parte Jeffery (1932) 4 ABC 157 , re McAlister ex parte McAlister (1936) 8 ABC 283 , Kayo Contractors v Fernandez (1984) 71 FLR 34 and Re Gibbs; Ex parte Triscott (1995) 65 FCR 80. This will be the case only if a certificate of taxation has been issued: Stec v Orfanos [1999] FCA 457 at [18] , Franks v Warringah Council, in the matter of Franks [2003] FCA 1047.
Case: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 ; (2002) 194 ALR 749
Outcome: cited
Conde correctly submitted that a judge may be disqualified in the event of either actual bias or the reasonable apprehension of bias. However bias is a very serious allegation which must be clearly articulated and proved by admissible evidence. Without more, the fact that a decision records findings adverse to the complainant is insufficient to establish bias: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 ; (2002) 194 ALR 749 at 756, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 ; (2003) 131 FCR 102. This is particularly so where the Court's findings were open on the material before it: Minister for Immigration and Multicultural and Indigenous Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at 519 and 531-532.
Case: Stec v Orfanos [1999] FCA 457
Outcome: cited
this context a "final order" is an order which "finally disposes of the rights of the parties": Bozson v Altrincham Urban District Council [1903] 1 KB 547 at 548-549, Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 per Taylor J at 439-440 (Owen J concurring), Windeyer J at 443-444; Licul v Corney [1976] HCA 6 ; (1976) 50 ALJR 439 at 444; Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20 ; (1981) 147 CLR 246 at 253-254. It is clear however that an order may in one sense be interlocutory but in another sense final: re Black ex parte Jeffery (1932) 4 ABC 157 at 161. There is long-standing authority that a costs order made at an interlocutory stage during proceedings is nonetheless a final order for the purposes of the Bankruptcy Act : re Black ex parte Jeffery (1932) 4 ABC 157 , re McAlister ex parte McAlister (1936) 8 ABC 283 , Kayo Contractors v Fernandez (1984) 71 FLR 34 and Re Gibbs; Ex parte Triscott (1995) 65 FCR 80. This will be the case only if a certificate of taxation has been issued: Stec v Orfanos [1999] FCA 457 at [18] , Franks v Warringah Council, in the matter of Franks [2003] FCA 1047.
Case: VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 ; (2003) 131 FCR 102
Outcome: cited
Conde correctly submitted that a judge may be disqualified in the event of either actual bias or the reasonable apprehension of bias. However bias is a very serious allegation which must be clearly articulated and proved by admissible evidence. Without more, the fact that a decision records findings adverse to the complainant is insufficient to establish bias: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 ; (2002) 194 ALR 749 at 756, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 ; (2003) 131 FCR 102. This is particularly so where the Court's findings were open on the material before it: Minister for Immigration and Multicultural and Indigenous Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at 519 and 531-532.
Case: Zambini v Secretary, Department of Employment and Workplace Relations [2006] FCA 1773
Outcome: cited
question arises whether, in considering s 25(2B)(aa), it is necessary for the Court to also have recourse to s 31A. In a number of cases the Court has exercised power pursuant to s 25(2B)(aa) and given summary judgment without reference to s 31A: Druett v Department of Families, Community Services &amp; Indigenous Affairs [2007] FCA 995 , Zambini v Secretary, Department of Employment and Workplace Relations [2006] FCA 1773 , Dunstan v Human Rights and Equal Opportunity Commission [2007] FCA 1326 , Rana v University of Adelaide (No 2) [2008] FCA 941. However in other cases the Court has linked the power under s 25(2B)(aa) to the jurisdiction of the Court under s 31A and summarily dismissed an appeal on the basis that the appellant had no reasonable prospect of success in prosecuting its grounds of appeal: Genovese v BGC Construction Pty Ltd [2007] FCA 923 , Bishop v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1118.
Case: NAZY v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 357
Outcome: cited
The Federal Magistrate considered the second claimed breach of s 424A(1) of the Act that country information was not put to the appellant. He held, correctly, that the country information fell within the exception set out in s 424A(3)(b). His Honour accepted that the Tribunal relied in part on the information that the appellant left China legally, that the information was provided in the protection visa application and that the appellant's reference in his review application to the statement in the protection visa application did not refer to that information. However, his Honour found the appellant did provide the information that he left China legally at the hearing before the Tribunal. The Tribunal had asked specific questions about the appellant leaving China legally and the appellant had answered those questions. He held that the appellant would have clearly understood the nature and importance of what he was saying and that he had not only acknowledged the information in his protection visa application but "volunteered" that information as to how he left legally. Accordingly he found that the information was excepted by s 424A(3)(b) of the Act . In so finding he considered relevant authority including particularly: NAZY v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 357; SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 ; SZEEU v Minister for Immigration and Multicultural Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214.
Case: SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627
Outcome: cited
The Federal Magistrate considered the second claimed breach of s 424A(1) of the Act that country information was not put to the appellant. He held, correctly, that the country information fell within the exception set out in s 424A(3)(b). His Honour accepted that the Tribunal relied in part on the information that the appellant left China legally, that the information was provided in the protection visa application and that the appellant's reference in his review application to the statement in the protection visa application did not refer to that information. However, his Honour found the appellant did provide the information that he left China legally at the hearing before the Tribunal. The Tribunal had asked specific questions about the appellant leaving China legally and the appellant had answered those questions. He held that the appellant would have clearly understood the nature and importance of what he was saying and that he had not only acknowledged the information in his protection visa application but "volunteered" that information as to how he left legally. Accordingly he found that the information was excepted by s 424A(3)(b) of the Act . In so finding he considered relevant authority including particularly: NAZY v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 357; SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 ; SZEEU v Minister for Immigration and Multicultural Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214.
Case: SZDXA v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 842
Outcome: cited
Although it is not necessary in the present case in order to establish the application of s 424A(3)(b) , the answers given by the appellant in the course of the oral hearing before the Tribunal also rendered the protection visa application information which the appellant "gave" the Tribunal for the purposes of the review. The appellant gave oral testimony that the statement in the visa application might be inaccurate as well as incomplete. He said he had not read that statement. However he relied on his written submissions to correct the statement if it was inconsistent with the written submissions, and also sought to supplement the statement generally. This testimony also supports the inference that the appellant intended the written submissions to be read with the statement in the protection visa application. In SZDXA v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 842 an appeal determined in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 the appellant submitted that his statement, but not the balance of the visa application form or the copied pages of the passport, had been incorporated into the application for review by the Tribunal. The information critical to succeeding on the basis of non-compliance with s 424A was contained in the copied pages of the passport rather than in the statement. Moore J, with whom Weinberg J and Allsop J agreed, held that the appellant had not established the fact that the copies pages were not incorporated by having been enclosed with the application for review. Moore J also held that information about the appellant having a business visa and travelling for work interests fell within s 424A(3)(b) when that was information given by the appellant in evidence before the Tribunal. 40 The approach taken in SZEEU to the SZEEU appeal itself could be regarded as inconsistent, indicating that Moore J considered that an applicant's adoption at a Tribunal hearing of what is contained in his protection visa application does not transform its contents into information provided by the applicant in his application for review. In VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851 Heerey J considered the SZDXA and SZEEU appeals and concluded that information is given for the purposes of s 424A(3)(b) if the application conveys to the Tribunal, whether in answer to a question posed by the Tribunal, or by volunteering the information to the Tribunal. Where an applicant says at the hearing that he relies on what was said in his protection visa application then what is in the protection visa application is information given for the purposes of the application for review, within s 424A(3)(b).
Case: VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851
Outcome: cited
The approach taken in SZEEU to the SZEEU appeal itself could be regarded as inconsistent, indicating that Moore J considered that an applicant's adoption at a Tribunal hearing of what is contained in his protection visa application does not transform its contents into information provided by the applicant in his application for review. In VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851 Heerey J considered the SZDXA and SZEEU appeals and concluded that information is given for the purposes of s 424A(3)(b) if the application conveys to the Tribunal, whether in answer to a question posed by the Tribunal, or by volunteering the information to the Tribunal. Where an applicant says at the hearing that he relies on what was said in his protection visa application then what is in the protection visa application is information given for the purposes of the application for review, within s 424A(3)(b). 41 In NBKT Young J considered in obiter whether testimony at the Tribunal hearing was given by an applicant for the purposes of s 424A(3)(b) in circumstances where it consisted in responses to questions asked by the Tribunal member. Young J agreed with the approach taken by Heerey J in VWBF .
Case: Abebe v The Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510
Outcome: cited
authorities reveal that an applicant for a protection visa must advance whatever evidence or arguments he or she wishes to rely on in support of his or her claim for a protection visa ( Abebe v The Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at [189] ; NARE of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 135 at [15] ). As Wilcox J observed in Prasad v Minister for Immigration &amp; Ethnic Affairs (1985) 6 FCR 155 at 169-170: 'The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries.'
Case: Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59 ; (1999) 167 ALR 1
Outcome: cited
important aspect of the inquiry as to whether it would be expedient in the interests of justice to allow the appellant to raise before this Court an issue not raised before the Federal Magistrates Court is the apparent merit of the issue. The appellant placed reliance on the High Court decisions in Pyrenees Shire Council v Day [1998] HCA 3 ; (1998) 192 CLR 330 and Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59 ; (1999) 167 ALR 1. These cases concerned the law of negligence; it was in that private law context that the High Court gave consideration in each case to whether an affirmative common law duty of care required a statutory or public authority to exercise a power. The present case by contrast concerns public law principles of judicial review.
Case: Minister for Immigration &amp; Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1
Outcome: applied
the appellant's supplementary written submissions do not suggest that the Tribunal knew or ought to have known that the appellant had approached or would approach the Jordanian Embassy in Canberra. It was at the heart of the appellant's claim to be entitled to a protection visa that he was unable or, owing to a well-founded fear of being persecuted, was unwilling to avail himself of diplomatic or consular protection extended by Jordan to its nationals in Australia ( Minister for Immigration &amp; Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1 at [17] - [21] ). In the circumstances, unless advised to the contrary, the Tribunal might reasonably regard it as unlikely that the appellant had approached or would approach the Jordanian Embassy for any reason. It is also understandable that the appellant's supplementary submissions do not suggest that the Tribunal knew, or ought to have known, that he had arranged, or would arrange, to obtain a new Jordanian passport issued in Jordan at a time when he was in Australia. The appellant accepts that it was unwise and foolish for him to have taken this step. The fresh grounds of appeal upon which the appellant's supplementary submissions indicate that he wishes to rely are all dependent on the contention that the decision of the Tribunal is affected by error because it failed of its own motion to investigate whether the expiry of the appellant's travel documents meant that the appellant had a well-founded fear of persecution for reason of political opinion in Jordan.
Case: NADG of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 893
Outcome: referred to
the appeal was first called for hearing the appellant handed to the Court written submissions which he said had been prepared for him by a lawyer. The content and language of the written submissions are consistent with their having been prepared by a lawyer notwithstanding that they contain the assertion 'I have been unable to obtain legal assistance' and are signed by the appellant personally. For the reason which I gave in NADG of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 893 at [8] - [11] , I consider that if the written submissions were prepared by a lawyer they should have been signed by that lawyer. The written submissions identify three purported errors said to affect the judgment of the Federal Magistrates Court. As the first respondent's legal representative had received no notice of the appellant's intention to rely on these purported errors it was necessary to adjourn the appeal hearing. The first respondent's solicitors thereafter filed written submissions in response to those handed to the Court by the appellant. When the hearing of the appeal resumed the appellant was represented by counsel but his counsel was not the person who had prepared his written submissions.