mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Sneddon v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (2005) 88 ALD 84
Outcome: cited
The note supports the interpretation that s 483 bears on its face, that the section excludes an appeal under s 44 of the AAT Act for privative clause decisions and purported privative clause decisions ( Sneddon v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (2005) 88 ALD 84 at [3]). The applicant does not contend to the contrary. 13 Thus, s 476A(1)(d) confers jurisdiction on the Federal Court in relation to such appeals from the Tribunal as can continue to arise under the Migration Act , given the limitation imposed by s 483. The Federal Court has jurisdiction to undertake judicial review of Tribunal decisions under the Migration Act where the decision on review is a privative clause decision or a purported privative clause decision under s 500 of the Migration Act , or a non-privative clause decision the subject of an appeal under s 44(3) of the AAT Act, or a referral by the Tribunal under s 45(2) of the AAT Act. 14 The Federal Magistrates Court has jurisdiction to undertake judicial review of any other decision of the Tribunal in relation to a migration decision, including the decision of the Tribunal in this case (s 476 of the Migration Act ). Symmetrically, s 476(2) provides that the Federal Magistrates Court does not have jurisdiction in relation to decisions described as in s 476A(1). The applicant is, however, out of time to make an application to the Federal Magistrates Court. 15 To overcome this result, the applicant makes a number of submissions. 16 First, he submits that as s 483 of the Migration Act does not specifically refer to business visas, they are excluded from the ambit of that section. I reject that submission. Section 483 does not refer to any particular category of privative clause decision or purported privative clause decision. There is no reason to put business visas into a special category.
Case: Yang v Minister for Immigration &amp; Multicultural Affairs [2006] FCA 1159
Outcome: considered
The applicant also relies on two decisions of the Court which considered appeals on a question of law under s 44 of the AAT Act from business visa decisions of the Tribunal, Koosasi v Minister for Immigration &amp; Multicultural Affairs (2006) 43 AAR 462 and Yang v Minister for Immigration &amp; Multicultural Affairs [2006] FCA 1159. The applicant accepts that neither decision canvassed the effect of s 483, although other aspects of the Court's jurisdiction were discussed. It is likely that the effect of that section on jurisdiction was simply not raised for consideration. In any event, there was no determination that the Court did have jurisdiction despite s 483 of the Migration Act .
Case: Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201
Outcome: referred to
In Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 Gillard J identified the elements which it is necessary for a complainant to establish in order to make good a charge of civil contempt of Court. His Honour said: "[31] In order to prove a civil contempt of Court involving a breach of an order of the Court, the plaintiff has to prove the following: (i) that an order was made by the Court; (ii) that the terms of the order are clear, unambiguous and capable of compliance; (iii) that the order was served on the alleged contemnor or excused in the circumstances, or service dispensed with pursuant to the Rules of Court; (iv) that the alleged contemnor has knowledge of the terms of the order; (v) that the alleged contemnor has breached the terms of the order. [32] It is necessary for the plaintiff to prove each element beyond reasonable doubt. In accordance with the principles of the criminal law, in proving element (v) it must be proven that the act or omission which constituted the breach of the order was deliberate and voluntarily." 16 There is no dispute, and I am satisfied that: &#8226; Order 2 was made by the Full Court on 19 July 2006. &#8226; The terms of the order were clear and unambiguous. &#8226; A copy of the Full Court's orders was served on Mr Siminton on 27 July 2006. The endorsement required by O 37 r 2(3) of the Federal Court Rules appeared on the order. &#8226; Mr Siminton had knowledge of the terms of the order. Mr Siminton has put in issue the question of whether, at relevant times, he had the capacity to pay all or any of the $50,000 fine and the related question of whether, in the absence of any capacity to pay, it can be said that he deliberately and voluntarily failed to comply with the Full Court's order.
Case: Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries of Australia (2001) 188 ALR 653
Outcome: referred to
The area of disagreement between the parties was thus narrowed to the question of whether it was necessary for the District Registrar to establish that Mr Siminton had the capacity to pay the full $50,000 fine at relevant times or whether, if he had the capacity to pay part of the fine (as it was conceded he did) and did not do so he could be found guilty of contempt. It was not disputed that a failure to comply with an order of the Court to pay a money amount could constitute a contempt (a proposition supported by decisions of the Court in Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries of Australia (2001) 188 ALR 653 at 658 and World Netsafe at [29]) or that the Court had power to deal with such a contempt under s 31(1) of the Federal Court of Australia Act 1976 (Cth) and s 24 of the Judiciary Act 1903 (Cth) (as to which see Mudginberri Station at 105-6).
Case: Australian Prudential Regulation Authority v Siminton (No 5) [2006] FCA 1340
Outcome: referred to
The second objection was framed thus: "(a) The Contempt Charges herein have been brought in the wrong proceeding and in the wrong Court, and should have been brought either in matter number 376 of 2006 or, alternatively, in a new separate a discretely numbered proceeding and, in any event, in the Full Court. (b) The Victorian District Registrar proceeded on Directions which were incorrectly made in matter number 1607 of 2005, by Tracey J, sitting in the Trial Division, rather than on a Direction given by a Member of the Full Court in matter number 376 of 2006 ..." A submission to like effect had been made to me when the Registrar sought directions on 6 October 2006. I rejected the submissions for reasons which I gave in Australian Prudential Regulation Authority v Siminton (No 5) [2006] FCA 1340 at [5] . Proceeding number 376 of 2006 was the file number assigned to Mr Siminton's appeal from the finding and orders of Merkel J. Proceeding number 1607 of 2005 is the file number assigned to the principal proceeding in which the ex parte orders of Sundberg J were made. In my view Order 2(c) of the Full Court's orders empowered the District Registrar to make application to a single judge of the Court. It did not require her to make application to a member of the Full Court. It was appropriate for her to seek such directions by resort to a notice of motion filed in the principal proceeding. This is what she did. 11 The third preliminary matter was an application that I disqualify myself from dealing with this contempt charge. It was submitted that I should disqualify myself because I had: &#8226; previously rejected an application by Mr Siminton for a further extension of time in which to pay the fine; and &#8226; directed the District Registrar to bring contempt charges. I refused to disqualify myself. Neither of these decisions involved any prejudgment of any issue arising on the present notice of motion. Nor have I, in making those decisions, had occasion to form or express any judgment as to Mr Siminton's credit. I was not referred to any authority which would require me to disqualify myself.
Case: Australian Prudential Regulation Authority v Siminton [2007] FCA 1608
Outcome: referred to
The first objection was that s 65A of the Act was "unconstitutional" and that this precluded the laying of contempt charges. I rejected this contention for reasons which I gave when dealing with the principal proceeding: see Australian Prudential Regulation Authority v Siminton [2007] FCA 1608 at [7] to [11]. 12 The fourth objection was that the principal application was an abuse of process which should permanently be stayed or struck-out. This submission was also made in the principal proceeding. I rejected it then: see Australian Prudential Regulation Authority v Siminton (No 6) [2007] FCA 1608 at [25] to [27]. I reject it now.
Case: Heatons Transport v TGWU [1973] AC 15
Outcome: referred to
In Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 149 FCR 494 at 497-8 Merkel J summarised the current state of the law on when disobedience of a Court order will constitute a contempt of court. His Honour said: "Deliberate conduct which is in breach of a court order will constitute wilful disobedience of the order, and therefore a civil contempt, unless the conduct be casual, accidental or unintentional: see Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 106 to 107 and 112 to 113. However, the disobedience will amount to a criminal contempt if it involves 'deliberate defiance or, as it is sometimes said, if it is contumacious': see Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 530 ... However, as all proceedings for contempt are now regarded as criminal in nature, all of the charges must be proved beyond reasonable doubt: see Witham at 534." See also AMIEU v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 112-3; Heatons Transport v TGWU [1973] AC 15 at 109.
Case: Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 149 FCR 494
Outcome: referred to
In Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 149 FCR 494 at 497-8 Merkel J summarised the current state of the law on when disobedience of a Court order will constitute a contempt of court. His Honour said: "Deliberate conduct which is in breach of a court order will constitute wilful disobedience of the order, and therefore a civil contempt, unless the conduct be casual, accidental or unintentional: see Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 106 to 107 and 112 to 113. However, the disobedience will amount to a criminal contempt if it involves 'deliberate defiance or, as it is sometimes said, if it is contumacious': see Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 530 ... However, as all proceedings for contempt are now regarded as criminal in nature, all of the charges must be proved beyond reasonable doubt: see Witham at 534." See also AMIEU v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 112-3; Heatons Transport v TGWU [1973] AC 15 at 109.
Case: Pattison v Bell [2007] FCA 137
Outcome: referred to
Counsel for the District Registrar accepted that his client bore the onus of establishing that Mr Siminton had the capacity to comply with the Full Court's order and that his failure to comply with that order was wilful. He was correct to do so: see Australian Competition and Consumer Commission v World Netsafe Pty Ltd [2003] FCA 159 at [51] ; Pattison v Bell [2007] FCA 137 at [34] .
Case: Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118 ; (2006) 152 FCR 129
Outcome: referred to
In any event, these arguments cannot avail Mr Siminton in contempt proceedings. As the Full Court pointed out in Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118 ; (2006) 152 FCR 129 and 137-8: "An order made by a superior court of record stands and is bound to be observed even though it may ultimately be determined that the order should not have been made or was made without jurisdiction. Whilst the order stands, and it is not set aside, it must be observed and obeyed and any breach of contravention of such an order can give rise to a charge of contempt of failing to comply with it or observe it." Mr Siminton was, and remains, bound to comply with the order made by the same Full Court.
Case: ASIC v Southcorp Ltd [2003] FCA 804 , 46 ACSR 438
Outcome: followed
In ASIC v Southcorp Ltd [2003] FCA 804 at [21] , [2003] FCA 804 ; 46 ACSR 438 at 441 2 Lindgren J helpfully formulated the principles to be applied in a case such as the present. In particular, His Honour there formulated two of those principles as being: (3) Documents generated unilaterally by the expert witness, such as working notes, field notes, and the witness's own drafts of his or her report, do not attract privilege because they are not in the nature of, and would not expose, communications: cf Interchase [Corp Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 1) [1999] 1 Qd R 141] at 161 2 per Thomas J. (4) Ordinarily disclosure of the expert's report for the purpose of reliance on it in the litigation will result in an implied waiver of the privilege in respect of the brief or instructions or documents referred to in (1) and (2) above, at least if the appropriate inference to be drawn is that they were used in a way that could be said to influence the content of the report, because, in these circumstances, it would be unfair for the client to rely on the report without disclosure of the brief, instructions or documents... 9 For the purposes of resolving the present claims for privilege, an inference may be drawn that the " handwritten annotations " of Ms Chylek most probably contain observations in respect to the email or the draft expert report then before her. The onus upon the Fifth Respondent of establishing privilege, albeit on minimal material, has been made out. Those handwritten annotations it is thus considered are privileged, as is Document 2, the email from Ms Chylek to the expert. 10 The documents, it may generally be accepted, were confidential. 12 Documents 9 and 11 are draft expert reports. The draft expert reports, however, are not considered to be privileged and the onus imposed upon the Fifth Respondent to establish the claim has not been discharged. A draft report from an expert, together with a communication from an expert to a solicitor, " do not attract privilege because they are not in the nature of, and would not expose, communications " per Lindgren J. Nor, if it be relevant, is there any evidence that the draft reports were given for the purpose of obtaining the input of the solicitors: New Cap Reinsurance Corp Ltd (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258. That was a case arising under s 119 of the Evidence Act 1995 (Cth) and not the common law. All that is known of the draft reports in the present proceeding is simply that, namely they are " draft reports ". Nothing is known as to the reasons why such drafts were prepared and nothing is known as to whether the disclosure of a draft report prepared by the independent expert would disclose anything other than the contents of a draft of a report which was subsequently filed and served. Indeed, Senior Counsel for the Fifth Respondent accepted that privilege would not attach to a document if all that was known was that it was a " Draft Report " which was forwarded in confidence.
Case: Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674
Outcome: followed
In Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 688 9, it will be recalled that Stephen, Mason and Murphy JJ summarised the position as follows: It is well accepted that the court in allowing production and inspection of documents exercises a judicial discretion. In so doing it needs to scrutinize with care claims of privilege made on the ground now under consideration. It is for the party claiming privilege to show that the documents for which the claim is made are privileged. He may succeed in achieving this objective by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence. But it should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual. The court has power to examine the documents for itself, a power which has perhaps been exercised too sparingly in the past, springing possibly from a misplaced reluctance to go behind the formal claim of privilege. It should not be forgotten that in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence. This passage was cited with approval by Lockhart J in Trade Practices Commission v Sterling (1979) 36 FLR 244 at 247.
Case: National Crime Authority v S (1991) 29 FCR 203
Outcome: followed
The description of the documents for which privilege has been claimed has been brief. But there was no cross-examination of Ms Chylek on her Affidavi t, as there could have been: National Crime Authority v S (1991) 29 FCR 203 at 211 per Lockhart J.
Case: New Cap Reinsurance Corp Ltd (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258
Outcome: followed
Documents 9 and 11 are draft expert reports. The draft expert reports, however, are not considered to be privileged and the onus imposed upon the Fifth Respondent to establish the claim has not been discharged. A draft report from an expert, together with a communication from an expert to a solicitor, " do not attract privilege because they are not in the nature of, and would not expose, communications " per Lindgren J. Nor, if it be relevant, is there any evidence that the draft reports were given for the purpose of obtaining the input of the solicitors: New Cap Reinsurance Corp Ltd (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258. That was a case arising under s 119 of the Evidence Act 1995 (Cth) and not the common law. All that is known of the draft reports in the present proceeding is simply that, namely they are " draft reports ". Nothing is known as to the reasons why such drafts were prepared and nothing is known as to whether the disclosure of a draft report prepared by the independent expert would disclose anything other than the contents of a draft of a report which was subsequently filed and served. Indeed, Senior Counsel for the Fifth Respondent accepted that privilege would not attach to a document if all that was known was that it was a " Draft Report " which was forwarded in confidence.
Case: Trade Practices Commission v Sterling (1979) 36 FLR 244
Outcome: cited
In Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 688 9, it will be recalled that Stephen, Mason and Murphy JJ summarised the position as follows: It is well accepted that the court in allowing production and inspection of documents exercises a judicial discretion. In so doing it needs to scrutinize with care claims of privilege made on the ground now under consideration. It is for the party claiming privilege to show that the documents for which the claim is made are privileged. He may succeed in achieving this objective by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence. But it should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual. The court has power to examine the documents for itself, a power which has perhaps been exercised too sparingly in the past, springing possibly from a misplaced reluctance to go behind the formal claim of privilege. It should not be forgotten that in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence. This passage was cited with approval by Lockhart J in Trade Practices Commission v Sterling (1979) 36 FLR 244 at 247.
Case: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191
Outcome: cited
relevant principles to applications under ss 52 and 53(e) of the TP Act are well established: see eg Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 ( Parkdale ); Taco Company of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136 ; (1982) 42 ALR 177 ( Taco Bell ). Whether a representation is likely to mislead or deceive is an objective question of fact, to be determined in all the circumstances: Taco Bell . It is sufficient if there is a real chance that the conduct or representation will mislead or deceive: Global Sportsman Pty Ltd v Mirror Newspapers Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 87. Importantly, whether conduct is misleading or deceptive or is likely to mislead or deceive must be determined in context. In Parkdale it was said at 199: It seems clear enough that consideration must be given to the class of consumers likely to be affected by the conduct. Although it is true, as has often been said, that ordinarily a class of consumers may include the inexperienced as well as the experienced, and the gullible as well as the astute, the section must in my opinion by (sic) regarded as contemplating the effect of the conduct on reasonable members of the class. The heavy burdens which the section creates cannot have been intended to be imposed for the benefit of persons who fail to take reasonable care of their own interests. What is reasonable will or (sic) course depend on all the circumstances. In my view, it is unlikely that a reasonable group of persons seeing those communications would think about the place of origin of those artworks. There is no express representation about their place of origin. There is no real reason why, beyond the clear representation as to the Aboriginality of the artist, the reasonable consumer would advert to their place of origin. In other words, the particular conduct which is said to give rise by implication to the representation that the place of origin of the particular artworks is Australia does not, in my judgment, give rise to that representation. Indeed, as was pointed out in Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) [1988] FCA 40 ; (1988) 39 FCR 546 at 555, s 52 is not expressed in terms of, and is not confined to, representations. The question is one of fact, namely whether the conduct complained of is likely "to lead into error" (per Gibbs CJ in Parkdale [1982] HCA 44 ; 149 CLR 191 at 198). Relevantly here, the question is whether the conduct, tested against ordinary and reasonable members of a section of the public, may have led into error those persons as to the place of origin of those particular artworks (as distinct from the Aboriginality of the artist). Campomar would indicate that the appropriate question is what would be the likely reaction of that section of the public to the particular conduct.