mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Munn for and on behalf of the Gunggari People v State of Queensland [2001] FCA 1229 ; (2001) 115 FCR 109
Outcome: cited
The Land Council says that the standard of proof does not change or become more onerous than the civil standard because these proceedings concern native title. It acknowledges that, in considering whether that standard has been satisfied, the Court will have regard to the objects and purposes of the Act ( Munn for and on behalf of the Gunggari People v State of Queensland [2001] FCA 1229 ; (2001) 115 FCR 109 at [28] ) and acknowledges that it is required to prove the negative proposition: that there is no native title over Lot 576. The Land Council does contend, however, that once it adduces evidence which, if accepted, establishes the negative proposition, the evidential onus to adduce evidence to show that the negative proposition is incorrect shifts to Worimi. The Land Council does not accept that it is required to establish the negative proposition by establishing the absence of each of the elements necessary to prove the existence of native title. 42 The Land Council and Worimi appear to agree that the evidential burden shifts to Worimi if the Land Council establishes sufficient evidence from which the negative proposition of no native title may be inferred. The real difference between the parties relates to their submissions regarding what evidence is sufficient to establish the negative proposition.
Case: Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135 ; (2005) 145 FCR 442
Outcome: cited
Where individual native title rights are claimed, they arise out of and depend upon the traditional laws and customs of the community in question ( Bodney at [148]). Rights may be communally held or held by a sub-group or, indeed, by an individual, depending on the nature of the society said to be the repository of the traditional laws and customs that give rise to the native title rights and interests ( Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135 ; (2005) 145 FCR 442 at [79] and [80]). In the present case, the native title rights over a Worimi women's site would be held by Worimi women. They deny such rights for Lot 576.
Case: Western Australia v Sebastian (2008) 248 ALR 61
Outcome: referred to
The fact that Worimi describes some of the practices, such as hunting and fishing methods, differently from the description given by the other witnesses does not derogate from his evidence. It could well be the case that there were different ways of observing traditions. As was pointed out in Western Australia v Sebastian (2008) 248 ALR 61 at [84], a ' body of laws and customs ' does not require identical practice, nor that each member of a group has precisely the same knowledge or comprehends the laws and customs in precisely the same way. 174 Worimi submits that native title rights and interests may be possessed by individuals or by a group of individuals in circumstances where other members of the same community or society do not possess those or other native title rights and interests in relation to that area (citing De Rose (No 2) at [33], [34] and [44]; Sebastian ). Whether Worimi can establish native title where other members of the Worimi tribe state that there is no native title over the Land is, Worimi submits, not to the point. He says that his individual rights and interests have been recognised, inter alia in De Rose (No 2) at [30], as sufficient to cast doubt on the Land Council's case of no native title. 175 Worimi has given evidence. His case as to who holds the relevant native title rights and interests has changed throughout the course of these proceedings. In his affidavit of 18 December 2007, he claims that the native title rights and interests are held by his immediate family. However, in cross-examination and in his affidavit of 1 May 2008, Worimi claimed that all Worimi people hold native title in the Land. 176 As to the assertion that Worimi and his immediate family hold the native title rights and interests, I note that three members of his family, namely his brother Kelvin Dates, his sister Ms Quinlan and his daughter Priscilla Dates do not support his case. However, other members of his family have supported his claimant applications. Worimi says candidly that he would have expected other Worimi women to have knowledge of the laws and customs of which he speaks and accepts that they do not. However, the fact remains that Worimi has only adduced his own evidence of the detail of the beliefs and practices that he says relate to the Land. None of his family members have given evidence of the knowledge of or practice of traditional laws and customs.
Case: Worimi v Minister for Lands for the State of New South Wales [2006] FCA 1770
Outcome: referred to
I have recorded the history of this matter in Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales [2007] FCA 1357 (' Worimi 2007 '). That history includes the striking out of two claimant applications filed by the third respondent, Mr Gary Dates, who prefers to be called Worimi. I will refer to him as Worimi. Each application was struck out pursuant to s 84C of the Act for failure to comply with s 61 ( Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115 ; Worimi v Minister for Lands for the State of New South Wales [2006] FCA 1770 (' Worimi 2006 ')). Worimi did not give notice within the notification period that he wanted to be a party to the non-claimant application. On 30 March 2007, Worimi filed an amended notice of motion to be joined as a party to the non-claimant application pursuant to s 84(5) of the Act. For the reasons set out in Worimi 2007 , I made an order that he be joined as a respondent to these proceedings.
Case: Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales [2007] FCA 1357
Outcome: related
I have recorded the history of this matter in Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales [2007] FCA 1357 (' Worimi 2007 '). That history includes the striking out of two claimant applications filed by the third respondent, Mr Gary Dates, who prefers to be called Worimi. I will refer to him as Worimi. Each application was struck out pursuant to s 84C of the Act for failure to comply with s 61 ( Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115 ; Worimi v Minister for Lands for the State of New South Wales [2006] FCA 1770 (' Worimi 2006 ')). Worimi did not give notice within the notification period that he wanted to be a party to the non-claimant application. On 30 March 2007, Worimi filed an amended notice of motion to be joined as a party to the non-claimant application pursuant to s 84(5) of the Act. For the reasons set out in Worimi 2007 , I made an order that he be joined as a respondent to these proceedings.
Case: Gray v Associated Publishers (Aust) Pty Limited [2002] FCA 1045 
Outcome: followed
Gray v Associated Publishers (Aust) Pty Limited [2002] FCA 1045 , Branson J considered a similar claim for confidentiality where the respondents produced on discovery documents with the identity and personal details of external editors masked. Her Honour accepted that the respondents wished to protect the privacy of the external editors in the belief that they would object to the disclosure of their personal details to the applicant without their prior knowledge and consent. However, her Honour noted at [13] that, as recognised by Lord Wilberforce in Science Research Council v Nasse [1980] AC 1028 at 1065 cited by Spender J in Mackay Sugar Co-operative Association Limited v CSR Limited (1996) 63 FCR 408: There is no principle in English law by which documents are protected from discovery by reason of confidentiality alone.
Case: Mackay Sugar Co-operative Association Limited v CSR Limited (1996) 63 FCR 408
Outcome: cited
Gray v Associated Publishers (Aust) Pty Limited [2002] FCA 1045 , Branson J considered a similar claim for confidentiality where the respondents produced on discovery documents with the identity and personal details of external editors masked. Her Honour accepted that the respondents wished to protect the privacy of the external editors in the belief that they would object to the disclosure of their personal details to the applicant without their prior knowledge and consent. However, her Honour noted at [13] that, as recognised by Lord Wilberforce in Science Research Council v Nasse [1980] AC 1028 at 1065 cited by Spender J in Mackay Sugar Co-operative Association Limited v CSR Limited (1996) 63 FCR 408: There is no principle in English law by which documents are protected from discovery by reason of confidentiality alone.
Case: Sabre Corporation Pty Ltd v Russ Kalvin's Hair Care Company [1993] FCA 557 ; (1993) 46 FCR 428
Outcome: cited
agreed to discover documents constituting or recording the process description for the synthesis of Intermediate B and the operating procedure for that process. While API is not subject to the obligation of discovery, Servier had raised with Apotex the possibility of a Sabre order ( Sabre Corporation Pty Ltd v Russ Kalvin's Hair Care Company [1993] FCA 557 ; (1993) 46 FCR 428). API then voluntarily provided the documents to Apotex, redacted to remove information that would identify the supplier. This provision was on the basis that the supplier's identity would be protected. Apotex produced documents provided to it by API with the name, address and contact details of the supplier redacted ('API documents'). From the correspondence between the parties, it does not seem to be in dispute that Freehills (Apotex's solicitors) have in their possession documents disclosing the identity of the supplier. Freehills has stated in correspondence that it caused the documents to be redacted in accordance with instructions that the supplier does not wish to be identified. In no document provided to Servier has the identity of the supplier been revealed. API had requested documents, relevant to the discovery categories, from the supplier. For some time no documents were received from the supplier and Servier asked Apotex for the name, address and contact details of the supplier in order to pursue an application under the Hague Convention. Apotex indicated in correspondence that it could not provide the identity of the supplier as that was the confidential information of API and API did not consent to its disclosure. Eventually, the supplier provided two documents to API, which were produced by Apotex on discovery to Servier ('supplier documents'). Both of those documents were provided on a confidential basis and on the assurance by API that the supplier's identity would be kept confidential. Any redactions on the supplier documents were made by the supplier before they were provided to API. Subsequently, in response to Servier's requests, API made further approaches to the supplier for documents. At one stage, the supplier expressed a willingness to cooperate in providing further documents but subsequently informed API that no further documents will be provided. When the matter first came before the Court, I requested Apotex to make one further request of the supplier for ten batch records for Intermediate B which the supplier had previously indicated it would review and provide. Apotex was also given the opportunity to make contact with the supplier to advise it of Servier's application to obtain its identity and to determine whether any further documentation or information would be provided in the absence of an order of the Court. To date, no further documentation or information has been produced by the supplier. Servier's reasons for seeking the identity of the supplier
Case: Science Research Council v Nasse [1980] AC 1028 at 1065
Outcome: cited
Gray v Associated Publishers (Aust) Pty Limited [2002] FCA 1045 , Branson J considered a similar claim for confidentiality where the respondents produced on discovery documents with the identity and personal details of external editors masked. Her Honour accepted that the respondents wished to protect the privacy of the external editors in the belief that they would object to the disclosure of their personal details to the applicant without their prior knowledge and consent. However, her Honour noted at [13] that, as recognised by Lord Wilberforce in Science Research Council v Nasse [1980] AC 1028 at 1065 cited by Spender J in Mackay Sugar Co-operative Association Limited v CSR Limited (1996) 63 FCR 408: There is no principle in English law by which documents are protected from discovery by reason of confidentiality alone.
Case: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321
Outcome: followed
Had I not formed the opinion that s 424A had not been complied with, I would have granted relief under s 75(v) because the Tribunal used its erroneous understanding, that is, irrelevant material, to come to the conclusion that the appellant was lying about the loss of her house. That conclusion materially affected its reasoning process about her credibility generally so as to lead to the dismissal of her claims. As Mason CJ held in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 355-356 at common law '...the making of findings and the drawing of inferences in the absence of evidence is an error of law. (see too: Minister for Immigration and Multicultural and Indigenous Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222 at 232-233 [25] - [28] , 238 [49], 251[99].)
Case: Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163
Outcome: applied
The problem here is that the Tribunal failed to identify the original claim in relation to the burning of the appellant's house and instead attributed to her a claim of a markedly different character: namely one in which that assertion had not been made. The Tribunal thus identified a wrong issue and committed a jurisdictional error ( Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179). It is when the Tribunal seeks to use information which it considers would be the reason or part of the reason for affirming the decision that the requirements of s 424A(1) are engaged. 31 By s 424(1) of the Act the Tribunal was authorized to get the information in the material given to the Registrar by the Secretary of the Minister's department pursuant to s 418. Section 424(1) provides: 'In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.' 32 Since, here, the Tribunal got the information in the departmental file given to it pursuant to s 418 , the Tribunal was required by dint of s 424(1) to have regard to that information in making the decision on the review. Two consequences followed: first, s 424(1) made the information in the file relevant and, secondly, s 424A(1)(a) applied to any of that information which the Tribunal considered would be the reason or part of the reason for affirming the decision under review. 34 The Tribunal in so acting did not 'have regard to that information' in contravention of its obligation under s 424(1) to do so. As the High Court said in Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179: 'If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.'
Case: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389
Outcome: referred to
The Minister also referred me to more recent authority including Stone J's decision in SZGIZ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1739 [31] to like effect. The Minister submitted that the Tribunal had a duty to consider all the material before it for the purposes of identifying what claim or claims an applicant for review had made in support of the claim for a protection visa, relying on the decision of the High Court in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 (see e.g. at 393-394 [23]-[24] and [26]). For that purpose it was said that the Tribunal was entitled to have regard to all of the material before it. 37 Of course, the Tribunal is entitled to make erroneous findings of fact and would commit no jurisdictional error by doing so. In Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26 ; (2003) 197 ALR 389 at 394 [24] - [25] , Gummow and Callinan JJ held that a failure to respond to a substantial, clearly articulated argument relying upon established facts not only amounted to a failure at common law to accord natural justice but also was a constructive failure to exercise jurisdiction. The former category or error was shielded from judicial review by s 476(2)(a) of the Act but the latter attracted jurisdiction pursuant to s 75(v) of the Constitution . Of course, the grant of relief under s 75(v) is discretionary (see eg 197 ALR at 395 [33]). 38 The Tribunal did respond to some claim as to the loss of the appellant's house but misconceived what she had asserted. The function of the Tribunal was to review, pursuant to s 414(2) of the Act, the decision of the Minister on the claim made. It was not entitled to reframe that claim by materially altering it and then to proceed to decide the reframed claim while ignoring or overlooking the claim actually made. Yet, that is what happened in the present case for the Tribunal only purported to consider the original claim because it misconceived it. Therefore, the Tribunal committed a jurisdictional error, and did not simply make an error of fact, because the actual claim made by the appellant was never considered. The Act required the decision on that claim to be reviewed. What happened here was that the Tribunal considered and decided a claim the appellant had never made, namely one which omitted mention of the loss of her house.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222
Outcome: followed
Lord Wilberforce said in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] UKHL 6 ; [1977] AC 1014 at 1047D-E: ' If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the Court must enquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self-direction as to those facts, whether the judgment has not been made upon other facts which ought not to have been taken into account. If these requirements are not met, then the exercise of judgment, however bona fide it may be, it becomes capable of challenge ...' (see too Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222 at 233 [27] , 241 [58], 250 [97]) 42 Had I not formed the opinion that s 424A had not been complied with, I would have granted relief under s 75(v) because the Tribunal used its erroneous understanding, that is, irrelevant material, to come to the conclusion that the appellant was lying about the loss of her house. That conclusion materially affected its reasoning process about her credibility generally so as to lead to the dismissal of her claims. As Mason CJ held in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 355-356 at common law '...the making of findings and the drawing of inferences in the absence of evidence is an error of law. (see too: Minister for Immigration and Multicultural and Indigenous Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222 at 232-233 [25] - [28] , 238 [49], 251[99].)
Case: NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 ; (2004) 144 FCR 1
Outcome: followed
As the Full Court said in NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 ; (2004) 144 FCR 1 at 20 [63] : '... if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant's claim, may be of no consequence to the outcome. It may be "subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected": Applicant WAEE (v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630] (at [47]. But as the Full Court said in WAEE (at [45]): If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal's published reasons for decision.'
Case: NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744
Outcome: followed
In NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 Jacobson J considered the position where an applicant for review had been asked by the Tribunal when giving oral evidence as to whether the material in that applicant's original visa application was true and correct. He held that the answer and the matter to which it referred was not information given by that applicant within the meaning of the exception in s 424A(3)(b) (at [39]-[40]). I agree with his analyis for the reasons his Honour gave. 28 Where the Tribunal seeks to use the way in which an applicant for review formulated his or her claim originally as part of the reason for rejecting the claim, whether by reason of omissions or not, I am of opinion that in the natural and ordinary meaning of the language of the section, the original application or grounds stated by the applicant for review cannot be other than a part of the reason for rejecting the claim when that rejection is expressed in the language used in the Tribunal's reasons in the present case. 29 Accordingly, I am of opinion that there has been a jurisdictional error established in the reasons of the Tribunal in that it failed to give the appellant particulars in accordance with or otherwise comply with s 424A(1) in coming to the conclusion that the appellant had not suffered harm, inter alia , because she had been untruthful regarding the destruction of her house. That conclusion was based, at least in part, on the Tribunal taking into account the information which the appellant originally put before the delegate in the visa application.