mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Racecourse Co-operative Sugar Association Ltd v Attorney-General of the State of Queensland [1979] HCA 50 ; (1979) 142 CLR 460
Outcome: cited
On its proper construction, the Act permits the opinion or assessment of the education provider to be provided for in the regulations, to be provided to the Minister and had regard to and be considered correct in the decision making of the Minister (see discussion in Racecourse Co-operative Sugar Association Ltd v Attorney-General of the State of Queensland [1979] HCA 50 ; (1979) 142 CLR 460 at 481 per Gibbs J). 43 The fact that the scheme of the Act results in an absence of discretion in the cancellation of a visa where the Minister has decided that the requirements of Condition 8202 has not been satisfied under s 116 does not determine that there has been a delegation of the power to specify visa conditions to the education provider. It does not convert the specification by the Governor-General of conditions pursuant to s 41 into an impermissible delegation of the specification of the visa condition. 44 Mr Gormly emphasises the misleading nature of the Notice. Specifically, he contends that the Notice implies that there exists a discretion on the part of the Department, so that an explanation for the breach will be taken into account. It does not, he observes, inform the applicant that her visa will be cancelled if a breach of condition did occur and she attends to "explain" that breach in response to the Notice. The applicant was thereby deprived of the opportunity of not responding to the Notice, awaiting the automatic cancellation of her visa and then applying to the Minister under s 137K of the Act, where exceptional circumstances can be taken into consideration (s 137L(1)(b)). This represents the alleged practical unfairness of the denial of natural justice.
Case: Turner v Owen (1990) 26 FCR 366
Outcome: cited
Mr Gormly relies upon the conclusion by French J in Turner v Owen (1990) 26 FCR 366 that delegating to the Minister the power to prohibit goods, which in his opinion ' are of a dangerous character and a menace to the community ' constituted an unlawful delegation because those words ' are not indicative of a factual criterion or class description limited by any intelligible boundary ' and were legislative in character (at 389). French J concluded that the regulations in that case impermissibly asked the Minister to prohibit, rather than the Governor-General. 37 Here, the delegation is not of the decision to decide whether a visa holder satisfies the criterion. Section 41 provides that the regulations may provide that visas are subject to specified conditions. Condition 8202 is such a condition specified in the Regulations. The Minister decides whether to grant a visa, subject to satisfaction that the criteria are satisfied (s 65). The Minister decides whether a visa holder satisfies the specified condition (s 116(1) of the Act, reg 2.43(2)(b)(ii) of the Regulations). Further, as a matter of reality, an academic result that, for a specified course, is "at least satisfactory" is limited ' by an intelligible boundary ' and is not legislative in character (cf Turner at [389]). 38 Section 505, which refers specifically to such matters for visa applicants, does not delegate the whole of power to decide whether an applicant for a visa satisfies the relevant criterion. The section provides for the making of regulations under which the Minister, when required to decide whether an applicant for a visa satisfies a specified criterion, may obtain the opinion, assessment, finding or decision of a specified person or organisation and have regard to it and to take it to be correct. 39 The sub-delegation in s 505 is not of a legislative but of an administrative character. It is not the delegation of a wide field of operation but, rather, a narrow question of fact.
Case: Twinn v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 242 ; (2005) 147 FCR 490
Outcome: cited
A sub-delegation under s 504 is of the same character. The Act does not reserve any of the delegated functions in Condition 8202 to the Governor-General. The Governor-General has exercised the power conferred by the Act to make regulations, within the limits laid down by the Act ( Twinn v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 242 ; (2005) 147 FCR 490 at [22] ). The authorisation given by s 504 encompasses the making of regulations by the Governor-General to allow administrative functions to be undertaken by the Minister for the purposes of the regulations ( Twinn at [23]). For the purposes of deciding whether an applicant for a visa satisfies the condition for a visa, the regulations may make provision for the Minister to have consideration of the matters enunciated in s 505 of the Act. The fact that this was particularised in s 505, "to avoid doubt", indicates a statutory acknowledgment that the power to make regulations in respect of those matters already existed by reason of s 504 and s 41(1) of the Act. 41 Once the Minister is satisfied that the condition has not been met, there is a mandatory cancellation by reason of s 116(3) but that does not convert the sub-delegation into an effective abdication of powers (see generally Pearce D and Argument S, Delegated Legislation in Australia (3 rd ed, Butterworths, 2005) Ch 23).
Case: Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 218 ; (2005) 149 FCR 1
Outcome: cited
There is no basis for permitting the latest amendment and leave to amend should be refused. Apart from the general discretionary factors that would apply to an application to amend after the conclusion of the hearing, the applicant elected to seek merits review in the Tribunal of the Delegate's decision. The fact that such a review cured, in a legal sense, any defect in the hearing before the Delegate attributable to a denial of natural justice is now settled ( Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 ; (2004) 139 FCR 344; Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 218 ; (2005) 149 FCR 1 (special leave to appeal refused); Humayun v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 35 ; (2006) 149 FCR 558 at [30] ; Cheng v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1028 at [67] ). There is no reason to permit the applicant to amend to seek orders against the Delegate. 48 Further, in Mr Gormly's submission, Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58 ; (2005) 143 FCR 314, Zubair , and Uddin have no application because the Tribunal in this case could not cure the denial of procedural fairness occasioned by the Notice. The Notice was not part of the hearing before the Tribunal. To the extent that existing authority of this Court suggests otherwise, Mr Gormly seeks to distinguish this case which, he says, raises matters not considered by the Full Court in Zhou and Zubair or by Siopis J in Cheng. 57 The Minister submits that, as the hearing before the Tribunal is a merits review, the Tribunal can, in a legal sense, "cure" any defects leading to the decision of the Delegate under review ( Zubair ; Ahmed ; Uddin ; Hamayun ). Mr Gormly submits, however, that the Tribunal cannot cure any defects in the Notice because it formed no part of the Tribunal's review of the decision to cancel made under s 116. He submits that this was not considered in Cheng and that this inability on the part of the Tribunal to cure the denial of procedural fairness invalidates the Tribunal decision.
Case: Re Colina; Ex parte Torney [1999] HCA 57 ; (1999) 200 CLR 386
Outcome: cited
This Court's jurisdiction to punish contempts arises from s 31 of the Federal Court of Australia Act 1976 (Cth). Section 31(1) confers upon the Court the same power to punish contempts as the High Court possesses. The section effectively declares that this Court has the contempt powers which are inherent in the judicial power of the Commonwealth: Re Colina; Ex parte Torney [1999] HCA 57 ; (1999) 200 CLR 386 at 395 [16] per Gleeson CJ and Gummow J. 23 The contempt charges in this case were laid in accordance with O 40 r 5 and r 6 of the Federal Court Rules . Counsel for Mr Spencer, Mr Bailey, argued that service of the Orders on Mr Spencer was irregular having regard to the provisions of O 37 r 2(1). However, that argument fails to take account of r 2(5). Sub-rule (5) permits a judgment or order to be enforced against a person by committal for contempt, notwithstanding that service has not been effected in accordance with r 2, where the person has notice of the judgment or order either by being present when the judgment is pronounced or when the order is made, or by being notified of the terms of the judgment or order by telephone, telegram or otherwise. In this case, Mr Spencer was represented by counsel when the Orders were made by Weinberg J. He had previously consented to and signed copies of the relevant orders. And shortly after the Orders were made, he was notified by his solicitor of the terms of the Orders. There was no failure to comply with O 37.
Case: Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525
Outcome: cited
The applicant carries the onus of proof. The charges must be proved beyond reasonable doubt: see Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 (' Holloway' ) at 534; Australian Competition and Consumer Commission v INFO4PC.com Pty Ltd [2002] FCA 949 ; (2002) 121 FCR 24 (' ACCC v INFO4PC' ) at 27-28 [4]. 26 It is not necessary to prove any subjective intent to disobey an order of the Court: ACCC v INFO4PC at 28 [10]; ACCC v Hughes at [20]. A deliberate commission or omission in breach of an injunctive order constitutes wilful disobedience and will amount to a contempt. Such a contempt is usually classed as a civil contempt. Depending on the circumstances, a deliberate act in disobedience of an order can amount to a criminal contempt. A contempt which is the result of an act of defiance, resulting in a deliberate breach of a court order, can be described as contumacious and as criminal in character: see Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 (' Mudginberri' ) at 108; Holloway at 530.
Case: Deputy Commissioner of Taxation (Cth) v Hickey and Horne (1999) 42 ATR 229
Outcome: cited
Any contempt of court, including any wilful disobedience of the orders of the Court, is a very serious matter. In Australian Competition and Consumer Commission v Hughes [2001] FCA 38 (' ACCC v Hughes '), Tamberlin J said at [15]: 'Ultimately, in the case of mandatory or prohibitory orders made by it, the sanction which the Court has in order to enforce its decisions is the power to punish for contempt. This is the way in which the Court preserves respect for its role and the rule of law. Without the enforcement of court orders the whole process of adjudication becomes a hollow exercise. If a losing party can defy the orders of the Court then such disobedience renders futile, in the perception of the community, the remedy secured by the successful party. Orders are not made simply to suggest or advise persons that they ought to keep to the law as proclaimed but to ensure that the law is carried out as determined by the decision pursuant to which the order is made. Defiance of court orders diminishes the authority of courts and removes the incentive of parties, if such conduct is left unpunished, to comply with the requirements of the courts.' Courts have repeatedly made statements to similar effect: see Australian Competition and Consumer Commission v Globex Systems Pty Ltd (2005) 27 ATPR 42-069 (' ACCC v Globex' ) at 43,102 [54]; and Deputy Commissioner of Taxation (Cth) v Hickey and Horne (1999) 42 ATR 229 (' Hickey' ) at 243 [35]. 55 The Court has a range of remedies available to it to ensure compliance with its Orders, including fines, sequestration of property and imprisonment: Australian Securities and Investments Commission v Matthews (1992) 32 ACSR 404 at 411; ACCC v Hughes at [28]; and Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 67 IPR 611 (' Louis Vuitton '). Imprisonment is reserved for the most serious criminal contempt cases and is not appropriate here: see Keeley v Mr Justice Brooking [1979] HCA 28 ; (1979) 143 CLR 162 at 179; Gallagher v Durack [1983] HCA 2 ; (1983) 152 CLR 238 at 245; Hickey at 245-246 [38]-[39].
Case: Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98
Outcome: considered
It is not necessary to prove any subjective intent to disobey an order of the Court: ACCC v INFO4PC at 28 [10]; ACCC v Hughes at [20]. A deliberate commission or omission in breach of an injunctive order constitutes wilful disobedience and will amount to a contempt. Such a contempt is usually classed as a civil contempt. Depending on the circumstances, a deliberate act in disobedience of an order can amount to a criminal contempt. A contempt which is the result of an act of defiance, resulting in a deliberate breach of a court order, can be described as contumacious and as criminal in character: see Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 (' Mudginberri' ) at 108; Holloway at 530. 27 In Mudginberri, the High Court said at 113: 'It follows that a deliberate commission or omission which is in breach of an injunctive order or an undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional.' In Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 (' Advan' ) at [45], Gillard J said that it is not a defence to a contempt proceeding to show that the disobedience came about by some casual or accidental or unintentional act; put another way, it is no part of the prosecution's proof to establish that the act or omission which breached the order was something that was not casual or accidental and was intentional. Gillard J said that the true meaning of the High Court's observation in Mudginberri is that if the evidence revealed that the breach was casual or accidental and unintentional, that would be relevant to whether or not the court should exercise its contempt jurisdiction. If the court is of the view that the charge of contempt is trivial or minor and lacks substance, or that the alleged contempt was casual or inadvertent and unintentional, even though technically established, the court would have a discretion to decline to exercise its jurisdiction. This accords with the views expressed by the Court of Appeal in Victoria in Re Perkins; Mesto v Galpin [1998] 4 VR 505 at 512-513.
Case: Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201
Outcome: cited
In Mudginberri, the High Court said at 113: 'It follows that a deliberate commission or omission which is in breach of an injunctive order or an undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional.' In Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 (' Advan' ) at [45], Gillard J said that it is not a defence to a contempt proceeding to show that the disobedience came about by some casual or accidental or unintentional act; put another way, it is no part of the prosecution's proof to establish that the act or omission which breached the order was something that was not casual or accidental and was intentional. Gillard J said that the true meaning of the High Court's observation in Mudginberri is that if the evidence revealed that the breach was casual or accidental and unintentional, that would be relevant to whether or not the court should exercise its contempt jurisdiction. If the court is of the view that the charge of contempt is trivial or minor and lacks substance, or that the alleged contempt was casual or inadvertent and unintentional, even though technically established, the court would have a discretion to decline to exercise its jurisdiction. This accords with the views expressed by the Court of Appeal in Victoria in Re Perkins; Mesto v Galpin [1998] 4 VR 505 at 512-513. 51 Counsel for Mr Spencer submitted that it is a condition of proving civil contempt that the terms of the relevant order are clear, unambiguous and capable of compliance: see Advan at [31]. In his submission, paragraph 12 of the Orders is unclear and ambiguous, and there is real doubt whether it was capable of being complied with by Mr Spencer on or after 8 February 2006.
Case: Re Perkins; Mesto v Galpin [1998] 4 VR 505
Outcome: cited
In Mudginberri, the High Court said at 113: 'It follows that a deliberate commission or omission which is in breach of an injunctive order or an undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional.' In Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 (' Advan' ) at [45], Gillard J said that it is not a defence to a contempt proceeding to show that the disobedience came about by some casual or accidental or unintentional act; put another way, it is no part of the prosecution's proof to establish that the act or omission which breached the order was something that was not casual or accidental and was intentional. Gillard J said that the true meaning of the High Court's observation in Mudginberri is that if the evidence revealed that the breach was casual or accidental and unintentional, that would be relevant to whether or not the court should exercise its contempt jurisdiction. If the court is of the view that the charge of contempt is trivial or minor and lacks substance, or that the alleged contempt was casual or inadvertent and unintentional, even though technically established, the court would have a discretion to decline to exercise its jurisdiction. This accords with the views expressed by the Court of Appeal in Victoria in Re Perkins; Mesto v Galpin [1998] 4 VR 505 at 512-513.
Case: McNair Anderson Associates Pty Ltd v Hinch [1985] VR 309
Outcome: cited
Thus, it will be sufficient to establish a contempt if it is proved beyond reasonable doubt that the person in question was aware of the order and intentionally did an act, or omitted to perform an act, with the result that there was a breach of the order. An honest belief that a failure to act does not constitute a breach of an injunction is not a defence, but it may be relevant to penalty: see McNair Anderson Associates Pty Ltd v Hinch [1985] VR 309 at 313-314; ACCC v INFO4PC at 28 [10].
Case: Australian Securities and Investments Commission v Matthews (1992) 32 ACSR 404
Outcome: cited
The Court has a range of remedies available to it to ensure compliance with its Orders, including fines, sequestration of property and imprisonment: Australian Securities and Investments Commission v Matthews (1992) 32 ACSR 404 at 411; ACCC v Hughes at [28]; and Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 67 IPR 611 (' Louis Vuitton '). Imprisonment is reserved for the most serious criminal contempt cases and is not appropriate here: see Keeley v Mr Justice Brooking [1979] HCA 28 ; (1979) 143 CLR 162 at 179; Gallagher v Durack [1983] HCA 2 ; (1983) 152 CLR 238 at 245; Hickey at 245-246 [38]-[39].
Case: Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 67 IPR 611
Outcome: cited
The Court has a range of remedies available to it to ensure compliance with its Orders, including fines, sequestration of property and imprisonment: Australian Securities and Investments Commission v Matthews (1992) 32 ACSR 404 at 411; ACCC v Hughes at [28]; and Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 67 IPR 611 (' Louis Vuitton '). Imprisonment is reserved for the most serious criminal contempt cases and is not appropriate here: see Keeley v Mr Justice Brooking [1979] HCA 28 ; (1979) 143 CLR 162 at 179; Gallagher v Durack [1983] HCA 2 ; (1983) 152 CLR 238 at 245; Hickey at 245-246 [38]-[39]. 57 As discussed by Merkel J in Louis Vuitton at 616-617 [25], the range of factors to be considered in deciding the appropriate penalty include the following: (a) the contemnor's personal circumstances; (b) the nature and circumstances of the contempt; (c) the effect of the contempt on the administration of justice; (d) the contemnor's culpability; (e) the need to deter the contemnor and others from repeating contempt; and (f) any prior conviction for contempt. I would emphasise that the Court's power in relation to contempt is to be exercised so as to ensure that orders are complied with, and to deter conduct in contravention of its orders.
Case: Keeley v Mr Justice Brooking [1979] HCA 28 ; (1979) 143 CLR 162
Outcome: cited
The Court has a range of remedies available to it to ensure compliance with its Orders, including fines, sequestration of property and imprisonment: Australian Securities and Investments Commission v Matthews (1992) 32 ACSR 404 at 411; ACCC v Hughes at [28]; and Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 67 IPR 611 (' Louis Vuitton '). Imprisonment is reserved for the most serious criminal contempt cases and is not appropriate here: see Keeley v Mr Justice Brooking [1979] HCA 28 ; (1979) 143 CLR 162 at 179; Gallagher v Durack [1983] HCA 2 ; (1983) 152 CLR 238 at 245; Hickey at 245-246 [38]-[39].
Case: Gallagher v Durack [1983] HCA 2 ; (1983) 152 CLR 238
Outcome: cited
The Court has a range of remedies available to it to ensure compliance with its Orders, including fines, sequestration of property and imprisonment: Australian Securities and Investments Commission v Matthews (1992) 32 ACSR 404 at 411; ACCC v Hughes at [28]; and Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 67 IPR 611 (' Louis Vuitton '). Imprisonment is reserved for the most serious criminal contempt cases and is not appropriate here: see Keeley v Mr Justice Brooking [1979] HCA 28 ; (1979) 143 CLR 162 at 179; Gallagher v Durack [1983] HCA 2 ; (1983) 152 CLR 238 at 245; Hickey at 245-246 [38]-[39].
Case: Smith v The Queen (1991) 25 NSWLR 1
Outcome: cited
In deciding the amount of any fine, the Court will take into account the contemnor's financial means: Smith v The Queen (1991) 25 NSWLR 1. The Court may suspend a fine on terms. In fixing the appropriate penalty, the Court will also take into account whether or not there is genuine contrition and whether or not a full and genuine apology has been given. 59 Having regard to my findings, I consider that the present case warrants a substantial penalty. There is an element in Mr Spencer's conduct that borders on defiance of the Orders. He deliberately adopted a series of steps that were designed to deny the benefit of the Court's Orders to the intended recipients of the documents. In my view, a penalty must be imposed that demonstrates to Mr Spencer, and to others, that the Court's orders cannot be disobeyed with impunity. 60 In his affidavit, Mr Spencer proffered an apology in these terms: 'If, as a result of my misunderstanding, I have failed to comply in sufficient time with the orders I apologise to the Court. In all the relevant circumstances I believe I should be excused.'