mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Hepples v Federal Commissioner of Taxation (1990) 22 FCR 1
Outcome: cited
The Commissioner further submitted that '[t]he parties have clearly intended [Lend Lease's contractual rights] to be assignable, in the light of clause 20 of the FPA ( ante ). Moreover I was referred by the Commissioner to clause 22 of the FPA, headed 'No Merger', which stipulates as follows: 'The rights and obligations of the parties will not merge on completion of any transaction under the [FPA]. They will survive the execution and delivery of any assignment or other document entered into for the purpose of implementing any transaction.' In that context it was said by the Commissioner that labelling the contractual rights and obligations of each party as 'personal' did not conclude the issue, and that whether contractual rights 'are truly to be seen as "personal" is a question of construction in all the circumstances', citing in that regard well-known authority. I was also referred to the observations of Gummow J (as a member of a Full Federal Court) in Hepples v Federal Commissioner of Taxation (1990) 22 FCR 1. In relation to the operation of the statutory definition of asset , his Honour observed (at 27): 'In my view, rights which are not proprietary in character... whether because they are personal rights or because they are "rights" merely in some popular sense, are not "assets" within the meaning of s 160A of the Act.' It was submitted that the foregoing position so adopted by the Commissioner was '... not at odds with the observations' of his Honour.
Case: Dawson v Deputy Commissioner of Taxation (1984) 56 ALR 367
Outcome: cited
general principle is that once a trial date is set, the trial should proceed. It was pointed out by the Full Court of the Supreme Court of South Australia in Dawson v Deputy Commissioner of Taxation (1984) 56 ALR 367 at 370: It is essential to the orderly conduct of the business of the court that trial dates be adhered to. When a case comes before the trial judge on the date fixed for trial, the parties are entitled to come to court with an assurance that the trial will commence and will proceed, so far as possible, without interruption, to its conclusion. The court, which is in this respect the protector of the public interest, is also entitled to that assurance. (I also refer to another decision of that court Sarunic Brothers Pty Ltd v AFG Insurances Ltd , unreported Full Court Supreme Court of South Australia, 12 March 1984.)
Case: Sarunic Brothers Pty Ltd v AFG Insurances Ltd , unreported Full Court Supreme Court of South Australia, 12 March 1984
Outcome: cited
general principle is that once a trial date is set, the trial should proceed. It was pointed out by the Full Court of the Supreme Court of South Australia in Dawson v Deputy Commissioner of Taxation (1984) 56 ALR 367 at 370: It is essential to the orderly conduct of the business of the court that trial dates be adhered to. When a case comes before the trial judge on the date fixed for trial, the parties are entitled to come to court with an assurance that the trial will commence and will proceed, so far as possible, without interruption, to its conclusion. The court, which is in this respect the protector of the public interest, is also entitled to that assurance. (I also refer to another decision of that court Sarunic Brothers Pty Ltd v AFG Insurances Ltd , unreported Full Court Supreme Court of South Australia, 12 March 1984.)
Case: The State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1996) 189 CLR 146
Outcome: cited
as pointed out by Dawson, Gaudron and McHugh JJ in The State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1996) 189 CLR 146 at 154: Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim for a court is the attainment of justice and no principle of case management can be allowed to supplant that aim. In the submissions put to me yesterday it seems that, at least from the view point of the applicants, a considerable volume of material has been put to them days before trial. I note the claim of the respondents that most of the documents to which reference is made in the Schedule provided by the applicants to me in court yesterday were disclosed. The statements delivered during that time were made in response to the allegations of fraud made by the applicants. However, in view of the timing of delivery of this documentation and its considerable length (in particular the lengthy signed affidavit of the second applicant filed and served 12 July 2006 which in itself, including the annexures, totals 1685 pages) it appears at least from their submissions very difficult for the applicants to ascertain whether the documentation has been previously disclosed. I am not persuaded on the facts before me that the documents which have been delivered ought not to cause the applicants difficulty as urged by the respondents. The position before me as of yesterday is that there appears to be a large volume of evidence which the applicant has either not had a proper opportunity to read and if necessary, respond to, or, possibly, evidence which is still not before the applicant.
Case: de Bruyn v Minister for Justice and Customs [2004] FCAFC 334 ; (2004) 143 FCR 162
Outcome: referred to
The Minister submitted that the matters alleged by the applicant concerning prison conditions could not amount to torture, relying on de Bruyn v Minister for Justice and Customs [2004] FCAFC 334 ; (2004) 143 FCR 162 at 163 per Kiefel J, with whom Spender J (expressly) and Emmett J (by necessary implication) agreed. 64 In relation to the applicant's complaints concerning the Departmental submission's use of HIV statistics, the Minister submitted that the Departmental submissions had relied on a clearly appropriate and probative source, which was the Centre for Disease Control. 65 One of the grounds identified in the applicant's first affidavit was that the Minister's power under s 22 was unconstitutional. However, this ground was not touched upon at all in oral submissions. Further, the applicant stated on a number of occasions at the hearing that he relied upon pages 1 to 71 of his supplementary book, whereas his written submissions under the heading 'Constitutional challenge' commence at page 71. From this I infer that his constitutional challenge was not pressed. 71 There is no general entitlement to an oral inquiry and none arose in this case. Nor was the Minister obliged to pursue lines of inquiry proposed by the applicant by contacting and speaking to people. There is no substance, in my opinion, in the contention that the extradition request was made in bad faith. In addition, there is no substance, in my opinion, to the contention that the Minister was biased in any sense. As to the ongoing litigation of the applicant, it is not apparent to me that this was a matter the Minister had to take into account. Indeed it appears to me to be irrelevant. It is not for this Court to determine whether the applicant might be tortured (an issue not raised by a mere allegation of mistreatment or abuse in prison: see de Bruyn at [55]) or whether the applicant could mount a successful extradition objection based on his race or religion. They were matters to be considered by the Minister. They were. No reviewable error on the part of the Minister has been demonstrated. 72 The application should be dismissed with costs. I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore. Associate: Dated: 21 December 2006 The Applicant appeared in person Counsel for the Respondent: Mr N J Beaumont Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 2 and 6 November 2006 Last date for Submissions: 5 December 2006 Date of Judgment: 21 December 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1784.html
Case: Chan v Minister for Justice and Customs [2001] FCA 718
Outcome: referred to
In the result, there was material before the Minister which indicated that by reference to the applicable laws of the United States, the undertaking given by the United States , had the character of an undertaking by virtue of which the penalty of death would not be carried out, if indeed an undertaking was required. In the absence of evidence to the contrary, it can be assumed that the Minister read this material and considered the issues raised by it: see Chan v Minister for Justice and Customs [2001] FCA 718 at [29] .
Case: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212
Outcome: applied
Counsel for the Minister submitted that the Minister was not obliged to provide the applicant with a copy of the Departmental submissions as a matter of natural justice. Where the Department evaluated material, and that material had been made available to someone in the applicant's position as it had here to the applicant, it was not correct to say that natural justice also required the comments or submissions themselves to be provided: see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212 at 219 to 220. 70 I turn to consider other issues. It appears from the joint judgment of Gleeson CJ and Gummow and Heydon JJ in Ex parte Palme (at [16] to [26]) that, in a case such as the present, the applicant is not entitled to see and comment on the Departmental submissions and that the mere failure to make them available does not constitute a denial of procedural fairness without more. In certain circumstances a person affected by a decision may be entitled to see submissions made to a decision maker. But that could well depend on the contents of the submissions and the extent to which the person was otherwise aware of material that would be provided to the decision maker. However there is no requirement, as a matter of general principle that submissions be made available irrespective of their contents and the circumstances in which they come to be considered by the decision maker. None arose in this case.
Case: Attorney-General v Tomline [1880] 14 Ch.D 58
Outcome: cited
Joyce , the diplomatic duty of protection had a practical consequence in law because it generated the corresponding duty of allegiance by Mr Joyce, for contravention of which Mr Joyce was hung. It cannot therefore be suggested that the duty of imperfect obligation is incapable of having significant consequences in law: see also Attorney-General v Tomline [1880] 14 Ch.D 58 at 67. In this case, Mr Hicks submits that the non-enforceable 'duty' of protection operates to render as irrelevant those considerations based on the desirability of a citizen being prosecuted and punished.
Case: Attorney-General (UK) v Heinemann Publishers Australia Pty Limited [1988] HCA 25 ; (1988) 165 CLR 30
Outcome: considered
interrelation of the two principles can be seen from this extract. The principles in Buttes were applied by the High Court of Australia in Attorney-General (UK) v Heinemann Publishers Australia Pty Limited [1988] HCA 25 ; (1988) 165 CLR 30. That case involved an action in Australia by the Attorney-General of the United Kingdom to prevent disclosure of information in Australia by a publisher in breach of a claimed fiduciary duty of secrecy owed to the United Kingdom Government. The High Court held that the Attorney-General's claim was not maintainable in an Australian court on the ground that it sought to vindicate the governmental interests of a foreign state, and that it was a rule of international law that such a claim was not enforceable. The Court said at 44: 'But there are some claims for which the very subject-matter of the claims and the issues which they are likely to generate present a risk of embarrassment to the court and of prejudice to the relationship between its sovereign and the foreign sovereign.' The respondents submit that this principle applies in this case in respect of a request to the United States, given the complex considerations that attach to the making of a request for the return of Mr Hicks.
Case: Boston Commercial Services Pty Ltd v G E Capital Finance Australia Pty Ltd [2006] FCA 1352
Outcome: cited
a case where evidence can give colour and content to allegations and where questions of fact and degree are important, the Court should be more reluctant to dismiss a proceeding on the face of a pleading: see Boston Commercial Services Pty Ltd v G E Capital Finance Australia Pty Ltd [2006] FCA 1352 at [45] . The underlying principle is that the need for a summary judgment must be clear before the court will intervene to prevent a plaintiff submitting a case for determination in the usual way. Once it appears that there is a real issue to be determined, whether it be of fact or law, and that the rights of the parties depend on it, the court should not terminate the action by way of summary judgment. As Barwick CJ said in General Steel at 129-130, great care must be exercised to be sure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of the opportunity to have his or her case tried by the appointed tribunal. The general principle that a person should not lightly be shut out from a hearing is cogent the onus on the party applying for summary judgment is heavy.
Case: China Navigation Co Ltd v The Attorney-General (1931) 40 Ll L R 110
Outcome: considered
China Navigation Co Ltd v The Attorney-General (1931) 40 Ll L R 110, Rowlatt J spoke at 112-113 of a duty cast on the Crown to protect his Majesty's subjects in British ships upon the high seas: 'It is a different sort of thing in a different region altogether. It is merely what I venture to call a political duty , using the word 'political' in its proper and original sense. It is what any government would be expected to do for its people, but the court cannot examine it. Nobody could come to the Court and say whether the government of any country did or did not perform its duty in that respect. That confusion with the double use of the word 'duty' lies at the bottom of the whole argument in this case.' (Emphasis added) This does not, however, mean that a right of imperfect obligation can have no legal consequences.
Case: Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6 ; [1985] AC 374
Outcome: referred to
Lordships at [83]-[85] referred to the House of Lords decision in Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6 ; [1985] AC 374, where the Court accepted the proposition that the controlling factor in considering whether a particular exercise of prerogative power was subject to review was not its source but its subject matter. The issue of justiciability was seen by their Lordships to depend not on a broad general principle, but on subject matter and suitability in particular circumstances. They referred to statements in the Council of Civil Service Unions case relating to the fact that at the top of the scale of executive functions under the prerogative were matters of high policy, examples of which included making treaties, making war, dissolving Parliament and mobilising armed forces. By contrast, they referred to the grant or refusal of a passport as simply a matter of an administrative decision affecting the rights of individuals. These remarks indicate that there is a range of fact and degree in relation to particular matters which needs to be examined before an informed decision can be made. As to the obligation of the Executive to give consideration to the question of whether to make any representations at all, their Lordships observed at [99] that the process is not immune from judicial scrutiny. Persons may have a legitimate expectation that a request to make a representation should be 'considered,' and that during that consideration, all relevant factors will be thrown into the balance. One factor seen as vital by their Lordships at [100] was the nature and extent of the injustice which the requesting party claims to have suffered. It is arguable that the greater the injustice, the clearer is the duty to consider whether to make representations. This duty may, however, be subject to overriding considerations of foreign policy.
Case: Fay v Moia (1963) 372 US 391
Outcome: referred to
fundamental principle of English law is that no member of the executive can interfere with the liberty of a British subject, except on the condition that the legality of the interference is established as lawful before a court of justice: R v Home Secretary, Ex parte Khawaja [1984] 1 AC 74 at 110 per Lord Scarman. This principle is deeply embedded in the common law. It applies in war as in peace: see Liversidge v Anderson [1941] UKHL 1 ; [1942] AC 206 at 244. The writ of habeas corpus was described by Supreme Court Justice Brennan in Fay v Moia (1963) 372 US 391 at 400, quoting Lord Birkenhead in Secretary of State for Home Affairs v O'Brien [1923] AC 603 at 609, in these terms: 'It is a writ antecedent to statutes, and throwing its roots deep into the genius of our common law... It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift remedy in all cases of illegal restraint or confinement.'
Case: General Steel Industries Inc v Commissioner of Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: referred to
31A of the Federal Court Act 1976 (Cth) was introduced to impose a lower requirement to dismiss an action by way of summary judgment than that which was imposed in General Steel Industries Inc v Commissioner of Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125. In that case, the requirement was expressed in terms of "manifestly groundless" or "obviously untenable". In a case where evidence can give colour and content to allegations and where questions of fact and degree are important, the Court should be more reluctant to dismiss a proceeding on the face of a pleading: see Boston Commercial Services Pty Ltd v G E Capital Finance Australia Pty Ltd [2006] FCA 1352 at [45] . The underlying principle is that the need for a summary judgment must be clear before the court will intervene to prevent a plaintiff submitting a case for determination in the usual way. Once it appears that there is a real issue to be determined, whether it be of fact or law, and that the rights of the parties depend on it, the court should not terminate the action by way of summary judgment. As Barwick CJ said in General Steel at 129-130, great care must be exercised to be sure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of the opportunity to have his or her case tried by the appointed tribunal. The general principle that a person should not lightly be shut out from a hearing is cogent the onus on the party applying for summary judgment is heavy.
Case: Greene v Home Secretary [1942] AC 824
Outcome: cited
support the proposition that in habeas corpus applications, the detaining party bears the onus of showing the lawfulness of that detention: Abbasi v Secretary of State [2002] EWCA Civ. 1598 at [66] (and cases cited therein); The King v Carter; Ex parte Kisch [1934] HCA 50 ; (1934) 52 CLR 221 at 227 per Evatt J; Regina v Governor of Brixton Prison; Ex parte Ashan (1969) 2 QB 222 at 233, 237, and 248; R v Governor of Metropolitan Gaol; Ex parte Di Nardo [1963] VR 61 at 62; and, regarding the need for evidence, Greene v Home Secretary [1942] AC 824. See also Aronson, Dyer and Groves, Judicial Review of Administrative Action (3 rd ed., 2004) at 777-779.
Case: Joyce v Director of Public Prosecutions [1946] AC 347
Outcome: considered
observation of his Honour was referable to the House of Lords decision in Joyce v Director of Public Prosecutions [1946] AC 347, where it was held that the duty of allegiance owed to the United Kingdom by Mr Joyce was a counterpart to the duty of the United Kingdom to protect him, and that this was sufficient to expose Mr Joyce to treason charges. The considerations which brought Mr Joyce within the Treason Act 1351 (Eng) were his long term residence in the United Kingdom; the duty of allegiance which he owed; his request for and obtaining of a British passport; his leaving the Realm; and his aiding the King's enemies during World War II. Lord Jowitt at 371 accepted it as a universally recognised rule of customary international law that each state has a right of protection over its nationals abroad, and that such a rule may be invoked by the holder of a passport which is an official document title as to his rights. It sits uncomfortably with the protection of a citizen that the respondents should take account of the desirability of allowing a citizen to be subjected to punishment as the consequence of a decision of a foreign tribunal which, it is said, does not proceed in accordance with basic internationally agreed standards. The measure to which the state protects the citizen is at its discretion. The observations of Lord Jowitt proceed on the basis that the state must consider the request for protection but that the response is entirely at the discretion of the state. Counsel for Mr Hicks argues that this 'diplomatic duty' of protection cannot be enforced as of right at the instance of Mr Hicks but, nevertheless, says that its existence has the consequence that, in the present circumstances, the respondents cannot take into account a consideration which is inconsistent with the 'duty'. He says that it would be irrelevant in the exercise of their discretion for the respondents to take into account the desirability of Mr Hicks being subject to prosecution, or give weight to the further consideration that Mr Hicks could not be prosecuted in Australia. Such a course, he submits, would be inconsistent with the counterpart 'duty' of protection arising as a consequence of the allegiance referred to in Te and Joyce. In Joyce , the diplomatic duty of protection had a practical consequence in law because it generated the corresponding duty of allegiance by Mr Joyce, for contravention of which Mr Joyce was hung. It cannot therefore be suggested that the duty of imperfect obligation is incapable of having significant consequences in law: see also Attorney-General v Tomline [1880] 14 Ch.D 58 at 67. In this case, Mr Hicks submits that the non-enforceable 'duty' of protection operates to render as irrelevant those considerations based on the desirability of a citizen being prosecuted and punished.
Case: Liversidge v Anderson [1941] UKHL 1 ; [1942] AC 206
Outcome: cited
fundamental principle of English law is that no member of the executive can interfere with the liberty of a British subject, except on the condition that the legality of the interference is established as lawful before a court of justice: R v Home Secretary, Ex parte Khawaja [1984] 1 AC 74 at 110 per Lord Scarman. This principle is deeply embedded in the common law. It applies in war as in peace: see Liversidge v Anderson [1941] UKHL 1 ; [1942] AC 206 at 244. The writ of habeas corpus was described by Supreme Court Justice Brennan in Fay v Moia (1963) 372 US 391 at 400, quoting Lord Birkenhead in Secretary of State for Home Affairs v O'Brien [1923] AC 603 at 609, in these terms: 'It is a writ antecedent to statutes, and throwing its roots deep into the genius of our common law... It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift remedy in all cases of illegal restraint or confinement.'
Case: Mutasa v Attorney-General (1980) 1 QB 114
Outcome: considered
notion of a non-enforceable duty to protect was discussed in Mutasa v Attorney-General (1980) 1 QB 114, where Boreham J held that although the Crown had a "duty" to protect a citizen from unlawful detention, this duty was one of imperfect obligation and could not be enforced at the instance of the detained person. In the case put by Mr Hicks, the claim is not to enforce the duty but rather to set aside the executive decision because extraneous matters were considered.