mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Slack v Bottoms English Solicitors [2003] FCA 1337
Outcome: cited
is clear that a power of attorney as held by Mr Kerr from Ms Kerr does not provide a lawful basis for a non-lawyer to act for a party in litigation in a Federal Court (cf Slack v Bottoms English Solicitors [2003] FCA 1337). However the Court has discretion to grant leave to a person who is not a qualified legal practitioner to represent a litigant. Such a person is commonly known as a "Mackenzie friend". I note that I consider it inappropriate that an application should be made by Mr Kerr to represent Ms Kerr without Ms Kerr being present. However I understand that in previous proceedings in this Court Mr Kerr has represented Ms Kerr in her absence. For the purposes of today's hearing, which is procedural only, I am prepared to entertain Mr Kerr's application to represent Ms Kerr.
Case: Teese v State Bank of New South Wales [2002] NSWCA 219
Outcome: cited
pointed out by Ipp AJA in Teese v State Bank of New South Wales [2002] NSWCA 219 at [15] , the usual ground for granting leave to a person, not properly qualified, to represent a litigant is impecuniosity, namely where the litigant cannot afford to pay a properly qualified lawyer. In this case Ms Kerr's impecuniosity was the reason for seeking that Mr Kerr should speak for her in Court. In the circumstances I was prepared to grant leave to Mr Kerr to represent Ms Kerr for the purposes of today's proceedings. There was no appearance in Court by either American Express or the Insolvency Trustee Service Australia (ITSA) which is Ms Kerr's trustee in bankruptcy. I understand that American Express has informed Deputy District Registrar Baldwin of the Queensland Registry of this Court that it would not appear either in respect of this notice of motion or in the appeal more generally having regard to the substantial costs already incurred by the company to date, and in light of the fact that Ms Kerr's estate has no funds. At my request Deputy District Registrar Belcher informed the appellant prior to today's hearing that I currently hold an American Express credit card, and inquired whether, from the appellant's perspective, this gave rise to any concerns as to perceived bias on my part. I understand that my possession of this card has not caused the appellant any concern in relation to me hearing this notice of motion.
Case: Thornberry v R (1995) 69 ALJR 777
Outcome: cited
decision of a judge to adjourn a hearing is not only an interlocutory decision, it is a discretionary decision ( Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 ; (2009) 258 ALR 14 , Goldberg v Morrow [2004] FCA 1490 at [36] ). There is authority that the discretion in respect of ordering or refusing an adjournment miscarries where the refusal of an adjournment results in one of the parties being unable adequately to present his case ( Thornberry v R (1995) 69 ALJR 777). Where there is a proper basis for an application for an adjournment, and refusal would seriously prejudice the party seeking the adjournment and not prejudice the other party, there is authority that adjournment should ordinarily be granted: Jordan v Smart [1961] NSWR 735.
Case: Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510
Outcome: considered
In relation to the claim that the Tribunal was biased, there is no evidence to support such a finding. The Tribunal is entitled to form adverse conclusions as to the appellant's credibility on the evidence that the appellant presented. The finding of the appellant's credibility is a finding of fact, and it is well established that the Court cannot review the merits of the Tribunal's decision: Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272. In any event, there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: see Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at 560, [137] .
Case: Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707 ; (2005) 148 FCR 446
Outcome: considered
In my view, the evidence sought to be adduced would not be admissible in this proceeding, and in the course of the proceeding I so ruled. In an appropriate case it may well be permissible to tender evidence on review. However, whether it is an appropriate case will depend upon the grounds of review and the circumstances of the case. I refer to the judgment of Weinberg J in Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707 ; (2005) 148 FCR 446 where at 564, [454] he stated: I accept that, ordinarily, material not before the decision-maker at the time of the making of the decision will not be admissible in proceedings for judicial review.
Case: Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: considered
In relation to the claim that the Tribunal was biased, there is no evidence to support such a finding. The Tribunal is entitled to form adverse conclusions as to the appellant's credibility on the evidence that the appellant presented. The finding of the appellant's credibility is a finding of fact, and it is well established that the Court cannot review the merits of the Tribunal's decision: Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272. In any event, there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: see Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at 560, [137] .
Case: NAMM of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 32
Outcome: applied
Further, I reject the claim that the Tribunal's findings were not based on a logical and rational foundation. The appellant's complaints do not rise above criticisms of the Tribunal's fact finding process. As such, these complaints cannot succeed: see NAMM of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 32 at [46] . 11 The affidavit in support of the notice of appeal seeks to make unparticularised complaints about the Tribunal's decision. It appears that the appellant is alleging, consistent with the only ground advanced before the Federal Magistrate, that the Tribunal breached s 424A of the Act when deciding his application. 12 It is clear that the Tribunal considered and rejected the appellant's claims. It was satisfied that the appellant was not a Christian. The Tribunal specifically found that the appellant did not face any chance of persecution for reasons of his religion.
Case: Gough &amp; Gilmour Holdings Pty Ltd v Caterpillar of Australia Pty Ltd [2009] FCA 1429
Outcome: referred to
application previously made by the Applicant for orders pursuant to O 8 r 3(2) of the Federal Court Rules to serve its originating process filed in the present proceeding on the Second, Third and Fourth Respondents overseas was rejected: Gough &amp; Gilmour Holdings Pty Ltd v Caterpillar of Australia Pty Ltd [2009] FCA 1429. Matters of concern addressed in that judgment focussed upon the manner in which the causes of action were sought to be advanced against one or other of those Respondents and the jurisdiction of the Court. The Applicant thereafter filed an Amended Application and a Further Amended Statement of Claim . A further Notice of Motion has also been filed, again seeking orders pursuant to O 8 r 3(2) in respect to the amended documents. Notwithstanding continuing reservation as to the manner in which the Further Amended Statement of Claim is expressed, it is nevertheless not considered that those reservations provide a sufficient basis upon which the discretion conferred by O 8 r 3(2) should be exercised adversely to the Applicant. Such evidential material as is now before the Court, it is concluded, provides an adequate basis upon which the Court can be satisfied that: (i) the Court has jurisdiction in the proceeding; (ii) the proceeding is of a kind mentioned in r 2, being a proceeding of a " kind " falling within Item 1, 2, 3, 6(b), 11 and/or 12; and (iii) the Applicant has a " prima facie case " for the relief claimed. As previously noted, the requirement imposed by O 8 r 3(2)(c) that the person seeking leave satisfy the Court as to a " prima facie case " is a requirement to be assessed " in proportion to the nature of such an interlocutory issue ": [2009] FCA 1429 at [13] , citing WSGAL Pty Ltd v Trade Practices Commission [1992] FCA 510 ; (1992) 39 FCR 472 at 476. The evidence upon which that state of satisfaction has presently been reached is the Affidavits of Michael Daniel Harmer affirmed on 30 November 2009, 2 December 2009 and 11 December 2009 together with exhibits to his Affidavit of 30 November 2009, being Exhibits MDH 8, 63, 64 and 65.
Case: WSGAL Pty Ltd v Trade Practices Commission [1992] FCA 510 ; (1992) 39 FCR 472
Outcome: cited
evidential material as is now before the Court, it is concluded, provides an adequate basis upon which the Court can be satisfied that: (i) the Court has jurisdiction in the proceeding; (ii) the proceeding is of a kind mentioned in r 2, being a proceeding of a " kind " falling within Item 1, 2, 3, 6(b), 11 and/or 12; and (iii) the Applicant has a " prima facie case " for the relief claimed. As previously noted, the requirement imposed by O 8 r 3(2)(c) that the person seeking leave satisfy the Court as to a " prima facie case " is a requirement to be assessed " in proportion to the nature of such an interlocutory issue ": [2009] FCA 1429 at [13] , citing WSGAL Pty Ltd v Trade Practices Commission [1992] FCA 510 ; (1992) 39 FCR 472 at 476. The evidence upon which that state of satisfaction has presently been reached is the Affidavits of Michael Daniel Harmer affirmed on 30 November 2009, 2 December 2009 and 11 December 2009 together with exhibits to his Affidavit of 30 November 2009, being Exhibits MDH 8, 63, 64 and 65.
Case: Abebe v The Commonwealth of Australia [1999] HCA 14 ; (1999) 197 CLR 510
Outcome: referred to
applicant suggests that the Tribunal should have drawn his attention to specific passages in the independent country information. It was submitted that those passages were directly related to the applicant's experiences and, had he been able to explain his relationship with those events, the Tribunal would have assessed his risk of persecution differently. This submission must fail. It is not the function of the Tribunal to establish the applicant's case for him. As Gummow and Hayne JJ observed in Abebe v The Commonwealth of Australia [1999] HCA 14 ; (1999) 197 CLR 510 at 576 [187] : 'The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.' The applicant was obliged to raise all of the factual matters which were relevant to his case. That included providing the Tribunal with sufficient details of his personal experiences to allow the Tribunal to make an assessment of his claim. The Tribunal could not have known whether the independent country information referred to arrests of people close to the applicant (such as Dr Rajab) unless the applicant provided specific details of his associates which would enable the Tribunal to recognise circumstances referred to in the country information. The applicant raised the arrests of university colleagues only briefly and vaguely, and did not provide any particular information. If the applicant had additional material which he wished to place before the Tribunal then it was incumbent upon him to place it before the Tribunal. Furthermore, the vast majority of the independent country information which was relied upon by the Tribunal had in fact been provided by the applicant himself, and following the Tribunal hearing, the applicant was offered the opportunity to provide further information. The applicant took up the offer and provided further independent country information to the Tribunal. It is clear that the applicant was not only afforded the opportunity but also exercised his right to comment before the Tribunal.
Case: Ainsworth and Anor v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564
Outcome: referred to
applicant submits that the failure to comply with s 431 of the Migration Act gives rise to procedural unfairness. He submits that procedural fairness arises at the pre-hearing stage of the Tribunal hearing and continues during and beyond the hearing and until the Tribunal fulfils its statutory functions by the provisions and publication of its decision. He claims the Tribunal's decision was vitiated by its failure to afford him procedural fairness. The applicant relies upon Ainsworth and Anor v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 and Johns v Australian Securities Commission and Ors [1993] HCA 56 ; (1993) 178 CLR 408 as authority for the proposition that procedural fairness may require an opportunity to oppose publication of a decision. The applicant's reliance on Ainsworth is misplaced. In that case, the Criminal Justice Commission published a report which made adverse factual findings against Ainsworth, in circumstances where Ainsworth had never been given the opportunity to be heard upon the basis for those findings. The report attracted a duty of procedural fairness because its contents had the potential to ' destroy, defeat or prejudice a person's rights, interests or legitimate expectations ' (see Annetts and Anor v McCann and Ors [1990] HCA 57 ; (1990) 170 CLR 596 at 598 per Mason CJ, Deane and McHugh JJ). In contrast, in these proceedings the applicant was given an opportunity to be heard upon the findings which were included in the Tribunal's decision. The Tribunal had invited the applicant to a hearing, which he attended. Accordingly the Tribunal's duty of procedural fairness was discharged in respect of the factual and legal findings which it made in that decision, and ultimately its decision that the applicant was not a refugee.
Case: Annetts and Anor v McCann and Ors [1990] HCA 57 ; (1990) 170 CLR 596
Outcome: cited
applicant's reliance on Ainsworth is misplaced. In that case, the Criminal Justice Commission published a report which made adverse factual findings against Ainsworth, in circumstances where Ainsworth had never been given the opportunity to be heard upon the basis for those findings. The report attracted a duty of procedural fairness because its contents had the potential to ' destroy, defeat or prejudice a person's rights, interests or legitimate expectations ' (see Annetts and Anor v McCann and Ors [1990] HCA 57 ; (1990) 170 CLR 596 at 598 per Mason CJ, Deane and McHugh JJ). In contrast, in these proceedings the applicant was given an opportunity to be heard upon the findings which were included in the Tribunal's decision. The Tribunal had invited the applicant to a hearing, which he attended. Accordingly the Tribunal's duty of procedural fairness was discharged in respect of the factual and legal findings which it made in that decision, and ultimately its decision that the applicant was not a refugee.
Case: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 80 ALJR 228
Outcome: discussed
applicant has submitted that the failure by the Tribunal to provide the file note to the applicant was a breach of procedural fairness by the Tribunal. He relies upon the decision of the High Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 80 ALJR 228. The decision in VEAL also concerned a decision made by the Refugee Review Tribunal. In that case, the Department had received an unsolicited letter which contained allegations relating to the appellant. The letter was passed on to the Tribunal by the Department, but the Tribunal did not tell the appellant about the letter or about the allegations contained in it. The Tribunal made a decision refusing a protection visa on the basis that the applicant lacked credibility, but explicitly indicated in its reasons that it had given no weight to the letter in arriving at its decision. The High Court held that the Tribunal had failed to afford the applicant procedural fairness. The Court held that information that was credible, relevant and significant must be provided to an affected person and that an opportunity must be given to the person to deal with the information before a decision was reached: see at [17]. It stated that credible, relevant and significant information was information ' that cannot be dismissed from further consideration by the decision-maker before making the decision ' and noted that whether information is credible, relevant and significant does not depend ' upon whatever characterisation of the information the decision-maker may later have chosen to apply to the information when expressing reasons for the decision that has been reached ': see at [17]. At [19] in VEAL , the Court said: 'As has later been rightly said, " the necessity to disclose such material in order to accord procedural fairness is not based on answering a causal question as to whether the material did in fact play a part in influencing the decision " . It follows that asking whether, despite what was said in its reasons, the Tribunal may have been subconsciously affected by the information distracts attention from the relevant inquiry. The relevant inquiry is: what procedures should have been followed? The relevant inquiry is neither what decision should the decision-maker have made, nor what reasons did the decision-maker give for the conclusion reached.' The second respondent submits that VEAL is distinguishable from the present case on the basis of Bennett J's decision in SZECD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 31 ; (2006) 150 FCR 53. In that decision, Bennett J distinguished the decision in VEAL on the basis that although procedural unfairness had been established in respect of one basis of the Tribunal's decision, there was a separate and independent basis for its conclusion which was not affected by procedural unfairness: see at [28], [40]-[41].
Case: Kioa and Ors v West and Anor [1985] HCA 81 ; (1985) 159 CLR 550
Outcome: referred to
content of procedural fairness requirements will depend upon the circumstances of the exercise of the power: see Wilson J in Kioa and Ors v West and Anor [1985] HCA 81 ; (1985) 159 CLR 550 at 584-5 per Mason J; 601 per Wilson J; 611-2 per Brennan J; 633 per Deane J. However, common law procedural fairness will generally require that an applicant be given the opportunity to comment upon information held by the Tribunal which is adverse to his or her interest. As Mason J said in Kioa at 582: 'It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it ...' I do not accept this submission. The obligations of procedural fairness at common law relate to two 'rules': the bias rule and the hearing rule: see M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action , 3 rd ed, Lawbook Co, 2004 at 370. The bias rule prevents a Tribunal from acting in a way which shows actual or apprehended bias towards an applicant. The hearing rule acts to ensure that an individual is given an opportunity to be heard before a decision is taken and to meet the case which is put against him or her: see the passage in Kioa cited at [19] above. The precise content of the hearing rule is dependent upon the context in which the decision is being made. In any event, if an allegation of procedural fairness is to be made out, the applicant must demonstrate that either the bias rule or the hearing rule has been breached by the Tribunal. The decision of the Tribunal to publish its reasons upon the internet, in the form in which it did so, could not vitiate the decision which had already been made by the Tribunal relating to the applicant's refugee status. No suggestion has been made that the Tribunal's decision to publish its reasons indicated bias on the part of the Tribunal. Nor is there any suggestion that the hearing given by the Tribunal had been in some way deficient. If a breach of neither of these principles is alleged, a claim of procedural unfairness is not made out.
Case: Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61
Outcome: referred to
obligations of the Tribunal are to be determined by reference to the Migration Act as it existed on 7 January 1999, the date of its decision. The Migration Act did not then include s 422B , which provides that Div 4 of Pt 7 of the Migration Act (which relates to the conduct of the Tribunal's review) is taken to be an exhaustive statement of the natural justice hearing rule. It is clear that s 422B of the Migration Act now operates to exclude the requirement for decision-makers to abide by common law principles of procedural fairness: see Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61. However, it is equally clear from decisions of the High Court that common law principles of procedural fairness were not excluded from the Migration Act as it existed prior to the enactment of s 422B: see Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476 at [37] - [38] per Gleeson CJ; at [83] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; Re Minister for Immigration and Multicultural Affairs and Anor; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 at [26] per Gleeson CJ and Hayne J; at [95] per Gaudron J; at [128] per McHugh J; at [188] per Kirby J. Accordingly, it is open to the applicant to raise a breach of common law procedural fairness.
Case: NAVM v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 99
Outcome: applied
it is not always necessary for the Tribunal to provide to an applicant copies of any country information upon which it relies. The Tribunal's obligations may be discharged if it provides to the applicant orally the substance of adverse material: see NAVM v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 99 at [31] [33]. The important element is that the information provided by the Tribunal enables a person to make a submission concerning its relevance or to adduce competing material. In the present case, it is apparent from the transcript that the Tribunal discussed the independent country information at some length with the applicant. In particular, it raised its concerns that the independent country information did not support the contention that the Libyan government persecuted devout Muslims who were not fundamentalists. In my opinion, the applicant clearly was provided with the substance of the information which was contained in independent country information.