mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 ; (2004) 221 CLR 1
Outcome: cited
Further, A promise by an inquisitor to give material to a party affected can be highly relevant to whether procedural fairness has been denied, notwithstanding the overall merits of the case: Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 ; (2004) 221 CLR 1. 59 It should be noted that the Act has, since the hearing of this case, been amended so that the exception within the definition of injury extends to "reasonable administrative action". This exception is broader and more clearly defined: see s 5A of the Act. These amendments came into force on 13 April 2007, and address many of the issues of principle which were raised as primary issues of concern to the applicant during the hearing. However, these amendments have no effect on the present decision. 60 For these reasons the appeal will be dismissed with costs. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate: Dated: 1 April 2008 Counsel for the Applicant: Ms S Maharaj QC Solicitor for the Applicant: DLA Phillips Fox Counsel for the Respondent: Mr W L Sharwood Solicitor for the Respondent: Pamela Coward &amp; Associates Date of Hearing: 23 April 2007 Date of Judgment: 1 April 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/422.html
Case: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Outcome: cited
The foundation of the Senior Member's view that the action, now held to be disciplinary, was not "reasonable" rested entirely upon an opinion that the inquisitor had not accorded Ms Eames procedural fairness in circumstances where there was plainly a duty to afford it. At least in such circumstances, whether procedural fairness was given is to be categorised as a question of law, even though it obviously depends on factual findings. In Clements 131 FCR at [6]-[8] the Full Court held that whether the Tribunal itself denied procedural fairness is a question of law and, with respect, this must be so. In general, questions of law are those which are inescapably for a judge to decide. In many instances, these actually involve inquiry into and assessment of factual matters by the judge. Judgments on the admissibility of evidence are often examples of this. Whether procedural fairness has been given is such a question because, if procedural fairness has not been given, the administrative action in question (and not just disciplinary action) is affected by jurisdictional error: eg Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. Whether there has been a jurisdictional error is, ex hypothesi, a question of law.
Case: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355
Outcome: cited
This implies another consideration: Cooper J in Chenhall [1992] FCA 535 ; 37 FCR 75 indicated (rightly, in my respectful view) that, among other things, to be "disciplinary action" in terms of the statute, the action needed to be "lawfully" taken. If procedural fairness be denied, the action will not be lawful, whether or not some circumstances may exist (about which I say nothing) in which the action might nevertheless be "reasonable". Not only will the action be unlawful but unlawfulness in decision-making should have practical consequences even if it does not always lead to outright invalidity: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355 at [100] .
Case: Bridges v Minister for Immigration and Multicultural Affairs [2001] FCA 1647 ; (2001) 67 ALD 306
Outcome: followed
The misapplication of the phrase "reasonable disciplinary action" by the Tribunal thus does not authorise the upholding of this appeal. The Full Court in Bridges v Minister for Immigration and Multicultural Affairs [2001] FCA 1647 ; (2001) 114 FCR 456 at [10] said that [t]he governing principle is that a decision of an administrative tribunal will be set aside for error of law if it can be shown that the error could have affected the outcome of the case, that is that a different result might have been reached had no error of law been made: X v Commonwealth [1999] HCA 63 ; (1999) 200 CLR 177. 53 There are other matters.
Case: Schmid v Comcare [2003] FCA 1057 ; (2003) 77 ALD 782
Outcome: cited
I agree with the parties that Chenhall [1992] FCA 535 ; 37 FCR 75 correctly and helpfully discusses the law as to what is necessary to constitute "disciplinary action". Whether particular conduct amounts to "reasonable disciplinary action" has previously been treated as a question of law: Chenhall [1992] FCA 535 ; 37 FCR 75 ; Schmid v Comcare [2003] FCA 1057 ; (2003) 77 ALD 782 , [84]. The question is: at what point in the regulatory regime in the present case did disciplinary action begin? This requires an analysis of that regime.
Case: Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 ; (2003) 131 FCR 28
Outcome: cited
The content of a duty to accord procedural fairness in a particular case is also a question of law, relying on Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 ; (2003) 131 FCR 28 at 31-2 per Gray ACJ and North J. 54 The foundation of the Senior Member's view that the action, now held to be disciplinary, was not "reasonable" rested entirely upon an opinion that the inquisitor had not accorded Ms Eames procedural fairness in circumstances where there was plainly a duty to afford it. At least in such circumstances, whether procedural fairness was given is to be categorised as a question of law, even though it obviously depends on factual findings. In Clements 131 FCR at [6]-[8] the Full Court held that whether the Tribunal itself denied procedural fairness is a question of law and, with respect, this must be so. In general, questions of law are those which are inescapably for a judge to decide. In many instances, these actually involve inquiry into and assessment of factual matters by the judge. Judgments on the admissibility of evidence are often examples of this. Whether procedural fairness has been given is such a question because, if procedural fairness has not been given, the administrative action in question (and not just disciplinary action) is affected by jurisdictional error: eg Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. Whether there has been a jurisdictional error is, ex hypothesi, a question of law.
Case: O'Reilly v Alderson [1849] EngR 680 ; (1849) 8 Hare 101 (68 ER 289)
Outcome: cited
correct analysis seems to be that while MCA is in liquidation, it is disqualified from performing its duties and exercising its powers under the Unit Trust Deed, but continues to hold the property of the Trust upon a constructive trust by the operation of general law principles. It is an interesting question what the terms of the constructive trust are. It may be that MCA simply holds the property upon a passive constructive trust for these unit holders in equal shares. It may also be that upon termination of the winding up, MCA again assumes the role of trustee under the express terms of the Unit Trust Deed: cf O'Reilly v Alderson [1849] EngR 680 ; (1849) 8 Hare 101 (68 ER 289). I am not called upon to decide these questions. In one way or another, it is clear that MCA will resume its position as trustee under the express terms of the Unit Trust Deed. Clause 11.4.3 of that Deed provides that with the unanimous consent of the unit holders in writing or by special resolution of the unit holders in general meeting, the unit holders are entitled to appoint a trustee in place of any trustee who is disqualified. It would not be in the interests of any of the unit holders to obstruct the passing of such a resolution if it should be thought necessary. Moreover, RSW and MMI have paid SC the purchase price for its units, and could compel SC to join with them in reappointing MCA as trustee, if this should be thought necessary in order to enable the unit transfers to be registered. It was for the above reasons that I was satisfied that MCA was solvent and that I ordered the winding up should be terminated. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 9 June 2009 Solicitor for the Plaintiffs: Mr D M Crompton of Church &amp; Grace Date of Hearing: 29 May 2009 Date of Judgment: 29 May 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/625.html
Case: Bahonko v Sterjov [2007] FCA 1244
Outcome: referred to
Appellant has leave to amend her Notice of Appeal of 16 August 2007 to include Justice Goldberg's orders of 27 August 2007, Justice Jessup's orders and reasons given to the Registrar in the VID 114/06 and Justice Finkelstein's orders and reasons given to the Registrar in VID 114/06." 2 For the reasons below, I would dismiss the Notice of Motion. BACKGROUND Substantive Proceedings 3 The events which give rise to the Notice of Motion have a long and complicated history. In general terms, they relate to Ms Bahonko's employment at a kindergarten operated by the first and second respondents which was managed by the third respondent ("Ms McEwan"). Ms Bahonko had been employed, on a trial basis, at La Kosta Child Care Centre &amp; Kindergarten Pty Ltd ("La Kosta") on 7 November 2005. Her employment was terminated just 4 days later on 10 November 2005 on grounds of "serious misconduct" relating to allegations of physical and psychological abuse by Ms Bahonko of children at the kindergarten and verbal abuse of other staff members, including Ms McEwan: see [2007] FCA 1244 at [3] - [8] . 4 Ms Bahonko filed two applications: (1) an application pursuant to s 170CP of the Workplace Relations Act 1996 (Cth) ("the WR Act") (in the form it took in November 2005) alleging contraventions of ss 170CK(2) and 170CM of the WR Act and other unlawful or tortious conduct ("the WR Act application"); and (2) an application pursuant to s 46PO of the Human Rights and Equal Opportunity Act 1996 (Cth) ("the HREOC Act") alleging unlawful discrimination under the Racial Discrimination Act 1975 (Cth) ("the RD Act "). 5 The two applications were consolidated on 6 November 2006. The hearing of the applications occupied 9 separate hearing days before Jessup J between April and July 2007. Evidence relating to Ms Bahonko's appointment at La Kosta, the period of her employment and the termination of her employment were considered at length by Jessup J: see [2007] FCA 1244 at [24] - [93] . Jessup J dismissed the applications. 6 In addition, the Ms Bahonko also made claims against the Respondents in the Court's accrued jurisdiction: see [123]ff. Ms Bahonko's claim in defamation against La Kosta was upheld and Ms Bahonko was awarded $50 in damages: see [126] and [186]. The other claims in the accrued jurisdiction were dismissed. 7 On 15 August 2007, substantive orders were made by Jessup J in the following terms: "1. To the extent not previously dealt with by the court, the motion of which the applicant gave notice on 4 May 2007 be dismissed. 2. The fourth respondent pay the applicant damages in the sum of $50. 3. The application otherwise be dismissed. 4. The parties have leave to file and serve: (a) on or before 22 August 2007, their written submissions as to costs; (b) on or before 24 August 2007, any submission in reply to the costs submission of another party." ("the Substantive Orders") 8 On 16 August 2007, Ms Bahonko filed a notice of appeal ("the Notice of Appeal") against the Substantive Orders ("the Appeal").
Case: Bahonko v Sterjov [2007] FCA 1341
Outcome: referred to
On 31 August 2007, Jessup J made orders as to costs in the substantive proceedings ("the Costs Orders"): see Bahonko v Sterjov [2007] FCA 1341. On 21 September 2007, Ms Bahonko amended her Notice of Appeal to appeal the Costs Orders ("the Amended Notice of Appeal").
Case: Bahonko v Sterjov [2007] FCA 1377
Outcome: referred to
On 27 August 2007, Goldberg J heard and dismissed an application by Ms Bahonko for a stay of the Substantive Orders: see Bahonko v Sterjov [2007] FCA 1377. 13 As set out in [1] above, by the Notice of Motion Ms Bahonko seeks the following relief: (1) leave to appeal against the orders of Goldberg J of 27 August 2007 ("the Application for Leave to Appeal"). This concerns the first three paragraphs of the Notice of Motion; (2) leave to further amend the Amended Notice of Appeal. This concerns paragraph 4 of the Notice of Motion; I will deal with each in turn. 14 Leave is required to appeal Goldberg J's refusal to grant a stay of the Substantive Orders because that judgment is interlocutory in nature: ss 24(1)(a) and (1A) of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act "). It did not " finally " determine " the parties' substantive rights " ( Cubillo v Commonwealth [2001] FCA 1213 ; (2001) 112 FCR 455 and Carr v Finance Corp of Australia Ltd (No 1) [1981] HCA 20 ; (1981) 147 CLR 246 at 248 per Gibbs CJ and 253-54 per Mason J) but dealt with questions about whether the Substantive Orders would be stayed pending the hearing and determination of the Appeal. An application for leave to appeal may be heard and determined by a single judge: ss 24(1A) and 25 (2) of the Federal Court Act . 18 As Goldberg J identified, O 52 r 17(1) of the Federal Court Rules provides that an appeal " shall not" operate as a stay of execution of the orders appealed from " except so far as ... a Judge... may direct" . Goldberg J was entitled to determine, in light of all the circumstances, whether the matter was an appropriate case for the grant of a stay: Powerflex Services Pty Ltd v Data Access Co (1996) 67 FCR 65. Clearly, it was not. First, his Honour correctly identified that paras 1, 2 and 3 of the Substantive Orders were not the appropriate subject of a stay: see [2007] FCA 1377 at [7] - [10] , [15] and [16]. Neither was it appropriate for Ms Bahonko to seek to suspend the resolution of the substantive applications by seeking a stay of para 4 of the Substantive Orders dealing with submissions on costs. In any event, the Costs Orders were made by Jessup J on 31 August 2007. There is no utility in Ms Bahonko seeking leave to appeal from Goldberg J's refusal to stay para 4 of the Substantive Orders.
Case: Bahonko v Sterjov [2007] FCA 867
Outcome: referred to
On 24 May 2007, following the closure of the respondents' evidentiary case on the two applications (see [4] above) before Jessup J, Ms Bahonko attempted to make a range of oral applications including an application to file a statement of charge for contempt of court against the respondent and the respondents' legal representatives, Mr McKenney and Mr Vitiello, and sought to challenge the competency of two of the witnesses called on behalf of the respondents, the fourth respondent and Ms Esther Matthews. Jessup J did not grant leave to file these applications: see [8] at paras (2) and (4) and [9] of Bahonko v Sterjov [2007] FCA 867. 12 On 30 May 2007, Ms Bahonko sought leave to appeal Jessup J's decision not to grant leave to file the statement of charge for contempt of Court. On 9 June 2007, Finkelstein J made a direction to a Registrar under O 46 r 7A of the Federal Court Rules that the notice of motion dated 30 May 2007 be refused for filing.
Case: Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42 ; (2003) 128 FCR 353
Outcome: applied
Ms Bahonko seeks leave to amend her Notice of Appeal to include an appeal from a direction by Jessup J and a further direction by Finkelstein J to a Registrar pursuant to O 46 r 7A of the Federal Court Rules that the Registrar refuse to accept an application presented by Ms Bahonko for issue by the Registrar. The application is dismissed. A direction under O 46 r 7A is not a judgment able to be subjected to an appeal by Ms Bahonko: Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42 ; (2003) 128 FCR 353 at [19] per Lee, Whitlam and Jacobson JJ. See also Paramasivam v Randwick City Council [2005] FCA 369 at [40] and [41] per Sackville J.
Case: Carr v Finance Corp of Australia Ltd (No 1) [1981] HCA 20 ; (1981) 147 CLR 246
Outcome: cited
Leave is required to appeal Goldberg J's refusal to grant a stay of the Substantive Orders because that judgment is interlocutory in nature: ss 24(1)(a) and (1A) of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act "). It did not " finally " determine " the parties' substantive rights " ( Cubillo v Commonwealth [2001] FCA 1213 ; (2001) 112 FCR 455 and Carr v Finance Corp of Australia Ltd (No 1) [1981] HCA 20 ; (1981) 147 CLR 246 at 248 per Gibbs CJ and 253-54 per Mason J) but dealt with questions about whether the Substantive Orders would be stayed pending the hearing and determination of the Appeal. An application for leave to appeal may be heard and determined by a single judge: ss 24(1A) and 25 (2) of the Federal Court Act .
Case: Cubillo v Commonwealth [2001] FCA 1213 ; (2001) 112 FCR 455
Outcome: cited
Leave is required to appeal Goldberg J's refusal to grant a stay of the Substantive Orders because that judgment is interlocutory in nature: ss 24(1)(a) and (1A) of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act "). It did not " finally " determine " the parties' substantive rights " ( Cubillo v Commonwealth [2001] FCA 1213 ; (2001) 112 FCR 455 and Carr v Finance Corp of Australia Ltd (No 1) [1981] HCA 20 ; (1981) 147 CLR 246 at 248 per Gibbs CJ and 253-54 per Mason J) but dealt with questions about whether the Substantive Orders would be stayed pending the hearing and determination of the Appeal. An application for leave to appeal may be heard and determined by a single judge: ss 24(1A) and 25 (2) of the Federal Court Act .
Case: D&eacute;cor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Outcome: applied
To obtain leave to appeal from Goldberg J's refusal to grant a stay of the Substantive Orders, Ms Bahonko is required to satisfy the Court that: (1) it is attended by sufficient doubt to warrant reconsideration by a Full Court; and (2) substantial injustice would result if leave were refused, D&eacute;cor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-99 (per Sheppard, Burchett and Heerey JJ). 16 It is well established that in cases where the interlocutory decision does not determine substantive rights, particular caution is required and "a tight rein" must be kept on appeals ( D&eacute;cor at 400). This is such a case. Ms Bahonko must satisfy both limbs of the test. She does not. 17 The decision is not attended with any doubt, let alone sufficient doubt to warrant reconsideration by a Full Court. Even if the decision was attended with doubt, I am not satisfied that Ms Bahonko would suffer any injustice let alone " substantial injustice" in the event that leave was refused.
Case: Paramasivam v Randwick City Council [2005] FCA 369
Outcome: referred to
Ms Bahonko seeks leave to amend her Notice of Appeal to include an appeal from a direction by Jessup J and a further direction by Finkelstein J to a Registrar pursuant to O 46 r 7A of the Federal Court Rules that the Registrar refuse to accept an application presented by Ms Bahonko for issue by the Registrar. The application is dismissed. A direction under O 46 r 7A is not a judgment able to be subjected to an appeal by Ms Bahonko: Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42 ; (2003) 128 FCR 353 at [19] per Lee, Whitlam and Jacobson JJ. See also Paramasivam v Randwick City Council [2005] FCA 369 at [40] and [41] per Sackville J.
Case: Powerflex Services Pty Ltd v Data Access Co (1996) 67 FCR 65
Outcome: applied
As Goldberg J identified, O 52 r 17(1) of the Federal Court Rules provides that an appeal " shall not" operate as a stay of execution of the orders appealed from " except so far as ... a Judge... may direct" . Goldberg J was entitled to determine, in light of all the circumstances, whether the matter was an appropriate case for the grant of a stay: Powerflex Services Pty Ltd v Data Access Co (1996) 67 FCR 65. Clearly, it was not. First, his Honour correctly identified that paras 1, 2 and 3 of the Substantive Orders were not the appropriate subject of a stay: see [2007] FCA 1377 at [7] - [10] , [15] and [16]. Neither was it appropriate for Ms Bahonko to seek to suspend the resolution of the substantive applications by seeking a stay of para 4 of the Substantive Orders dealing with submissions on costs. In any event, the Costs Orders were made by Jessup J on 31 August 2007. There is no utility in Ms Bahonko seeking leave to appeal from Goldberg J's refusal to stay para 4 of the Substantive Orders.
Case: Young v Secretary for Department of Family and Community Services (2003) 76 ALD 118 
Outcome: applied
Ms Bahonko in her affidavit of 3 September 2007, and during the course of her oral submissions, made allegations which are properly described as scandalous. They include allegations of criminal conduct and conduct constituting abuse of office. Those allegations are unsupported and insupportable. Ms Bahonko submitted that she required access to the transcript of the hearing before Goldberg J to make good her allegations. That access is refused on a number of bases. First, access to transcript has never been regarded as an indisputable requirement of a fair trial: see Young v Secretary for Department of Family and Community Services (2003) 76 ALD 118 at [30]. Secondly, the hearing before Goldberg J did not involve viva voce evidence. Both parties were present at the hearing and made submissions. Moreover, by reason of the nature of the application before me (an application for leave to appeal from the orders of Goldberg J), it was necessary for me to consider the correctness of the decision of Goldberg J. As stated above, that decision is not attended with any doubt. Access to the transcript of proceedings before Goldberg J would be futile. For those reasons, access is refused. 21 In the circumstances, I would not grant Ms Bahonko leave to appeal Goldberg J's refusal to grant a stay of the Substantive Orders. I would dismiss paras 1, 2 and 3 of the Notice of Motion and order Ms Bahonko to pay the respondents' costs of and incidental to those paragraphs in the Notice of Motion. 22 Finally, there was no doubt that Goldberg J correctly refused to grant an injunction in the alternative to a grant of a stay. As Goldberg J said the appropriate process was for Ms Bahonko to appeal against the Substantive Orders and the Costs Orders, as she has now done.