mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Pomare v Minister for Immigration and Citizenship [2008] FCA 458
Outcome: considered
The applicant applied to the Tribunal for a review of the delegate's decision on 11 February 2008. However as the application was made outside of the nine day time limit prescribed by s 500(6B) of the Act the Tribunal dismissed the application on the ground of lack of jurisdiction. Subsequently, as a result of this Court's decision in Pomare v Minister for Immigration and Citizenship [2008] FCA 458 , the applicant was renotified of the decision to cancel the visa on 8 May 2008. The applicant then reapplied to the Tribunal for a review of the delegate's decision on 14 May 2008. 7 In its reasons for decision the Tribunal referred to the 'Visa Refusal and Cancellation under Section 501 of the Migration Act Direction No. 21' made by the Minister under s 499 of the Act ('Ministerial Direction No. 21'). Such Direction sets out three primary considerations which a decision-maker is required to address, namely: (a) the protection of the Australian community, and members of the community; (b) the expectations of the Australian community; and (c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interest of the child or children. 8 In applying Ministerial Direction No. 21 the Tribunal gave detailed consideration to the factual circumstances surrounding the applicant's family arrangements, the best interests of his children and the interests and expectations of the community. Having done so, the Tribunal concluded that 'the strength of community protection and expectations' outweighed the best interests of the children.
Case: Renton v Bradbury &amp; Anor [2001] QSC 167
Outcome: considered
The Court observes that the recognised sources of legitimate expectations have generally been restricted to material emanating from or adopted by Parliament: see for example Teoh (legitimate expectation arising from the Commonwealth Executive's ratification of an international treaty); Renton v Bradbury &amp; Anor [2001] QSC 167 (legitimate expectation arising from rules or regulations made in the exercise of a statutory power); Century Metals and Mining NL v Yeomans and Another [1989] FCA 273 ; (1989) 40 FCR 564 (legitimate expectation arising from a public promise made by a Minister); Haoucher v Minister of State for Immigration and Ethnic Affairs [1990] HCA 22 ; (1990) 169 CLR 648 and Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 per Gummow J (legitimate expectation arising from a policy statement made by a Minister).
Case: Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525
Outcome: followed
Contempt of court, including that species of contempt which consists of the breach of orders or of the court or undertakings to the court, must be proved beyond reasonable doubt: Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 534, 548. 22 All contempts are criminal in nature (183 CLR at 534). The court approaches in the adjudication of charges of contempt on the basis that criminal standards of proof and specificity apply. In this case the respondent, as was his right, did not himself give evidence although he tendered some documents. 23 The genesis of the orders made by Wilcox J appears to have been a handwritten heads of agreement signed by the director of the applicant, Mr Dowe, and Mr Monamy following the conclusion of mediation conducted with registrars of the court on 12 December 2005. The respondent has referred to that document as informing his interpretation of the orders. 24 Paragraph 3 of the handwritten document has a number of interlineations in different handwriting but significantly it sets out, in what appears to me to be unarguably clear words, the requirement that the respondent change his registered business name to 'Simply Natural Floor Coverings' (with 'Floor' and 'Coverings' written as two words each commencing with a capital letter) and use this business name on all advertising, letterhead, promotions and the like in lieu of 'Simply Natural Floorcoverings' (written as three words). 25 The respondent raised issues as to the fact that he was not personally present when Wilcox J made the orders and that he was in dispute with his then solicitor as to whether he had agreed to the orders being made in the terms in which they were made. Exhibit 7 contains some material which supports the proposition that there was some dispute between Mr Monamy and his solicitor on that topic.
Case: Johnson v Miller [1937] HCA 77 ; (1937) 59 CLR 467
Outcome: applied
The difficulty with the formulation of the finding of contempt contained in paragraph 2 of the statement of charge is that it relies on evidence of a number of disparate acts which changed over a period. There is a real possibility that there may be some duplicity in the charge as formulated, having regard to the evidence that I have recited. In Johnson v Miller [1937] HCA 77 ; (1937) 59 CLR 467 at 489-491 Dixon J made clear that a prosecutor had to specify with precision the precise act or omission relied on to constitute the particular contravention charged. That case involved a situation in which a prosecution had been brought alleging that within a particular time period a person had left licensed premises in breach of s 209(1) in the Licensing Act 1932-1935 (SA). The evidence tendered at the hearing revealed that there were many persons who had left during that time, but the prosecutor could not identify which of those many persons was relied on as the person whose departure evidenced the contravention. The charge was found bad for duplicity on that basis. 35 Here it seems to me that the applicant is relying on a number of events and different appearances of the website. I think that in fairness to the respondent the applicant must elect which particular instance it wishes to claim is a contravention and to allow the respondent an opportunity to answer in respect of that instance. I will defer making any final decision on that matter because I did not raise this issue with Mr Freeman when he was addressing. 36 This charge relates to order 3. It is plain beyond reasonable doubt that the respondent used the word 'Floorcoverings' as one word on his [advertising or] webpage until some time prior to 4 April 2006. If I am wrong in my conclusion that the ordinary reasonable person would not perceive a difference in the depiction because of the small space on the website that now appears between the word 'floor' and the word 'covering', I am satisfied beyond a reasonable doubt that, in fact, for the reasons, that I have expressed the respondent, to date, uses 'Floorcoverings' as one word. I am fortified in that conclusion by the fact that I regard the construction of order 3 as being relevantly aided by reference to order 4 which required the respondent immediately to change his business name to one in which the words 'Floor Coverings' appeared as two words with their first letters capitalised.
Case: Dow Jones &amp; Company Inc v Gutnick [2002] HCA 56 ; (2002) 210 CLR 575
Outcome: applied
I am satisfied beyond reasonable doubt that the respondent has failed to publish any form of disclaimer on the website and that the use of the HTML meta tag is a deliberate evasion of the obligation to publish something that is able to be read in the ordinary way on the website. The contents of the HTML meta tag are not and at no time have been published on the website. What was required by order 5 was that there be published a disclaimer, that is it, be put forward in a form which actually communicated it. The act of publication in a bilateral act of someone putting forward a message and another person being able to read it and actually reading it. In this context it was clear beyond reasonable doubt that the order required that that the publication, in the sense of something which the person accessing the page would see and be able to read then and there, would occur whenever the page was opened. See Dow Jones &amp; Company Inc v Gutnick [2002] HCA 56 ; (2002) 210 CLR 575 at 600-601 [26] - [28] . 44 The order in my view, beyond reasonable doubt, should be construed as requiring the disclaimer referred to appear in a way which is immediately apparent on the website in words that can be read in the English language by anyone who opens the webpage. An ordinary and natural reading of the order dictates that construction. 45 I did raise with Mr Freeman the possibility that order 5 was or contained an ambiguity in the sense that the words 'above the fold' were to my mind, and I think on the evidence, meaningless without expert evidence or other evidence as to what they conveyed. I have seen in the evidence copies of the website and I am unable to detect from viewing them what it is that might be referred to as 'above the fold' in the order. However, I am satisfied that this ambiguity makes no difference whatsoever to the construction of the order in the sense that it was a requirement of the order that there be prominence on the website in the position of the disclaimer and that it be published.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v Godley [2005] FCAFC 10 ; (2005) 141 FCR 552
Outcome: cited
next ground is that the fifth sentence of the passage quoted at [11] disregards the precept that "continuing conduct must be demonstrated that shows a lack of enduring moral quality". That is a quotation from the reasons of Lee J in Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411 ( Godley ) at [56], approved on appeal in Minister for Immigration and Multicultural and Indigenous Affairs v Godley [2005] FCAFC 10 ; (2005) 141 FCR 552 at [34] . The whole passage is as follows: Before past and present general conduct may be taken to reveal indicia that a visa applicant is not of good character continuing conduct must be demonstrated that shows a lack of enduring moral quality. Although in some circumstances isolated elements of conduct may be significant and display lack of moral worth they will be rare, and as with consideration of criminal conduct there must be due regard given to recent good conduct. The applicant contends that there is no continuing conduct of the kind of which Mr Selimi was guilty previously. The present case is quite different from Godley (2004) 83 ALD 411. What Lee J there described as "weaknesses or blemishes in character" were trivial matters and matters uninformative as to whether Mr Godley was not of good character. The matters the Tribunal in the present case so described were not of that nature. Paragraph [22] of the Tribunal's reasons begins: "If not already apparent, I cannot find Mr Selimi has enduring moral qualities ". This refers to the incidents recorded elsewhere in the reasons, especially in [21]. The offences of which he was convicted, his conduct in relation to the claim for a protection visa, making or allowing to be made false statements for many years intended to conceal that his marriage was a sham, and his recent false evidence at the Tribunal hearing, were not trivial or uninformative matters that Lee J described in globo as "weaknesses or blemishes in character". They were serious matters that went to the core of whether Mr Selimi was a person not of good character. The Tribunal twice referred to the offences as "serious". It also stressed "the gravity and extent" of the past criminal and general conduct. It noted that in the Direction the Minister regarded serious crimes against the Act as being "very serious". In those circumstances the Tribunal's conclusion that it could not find that Mr Selimi had enduring moral qualities would, but for the balance of the sentence at [22], be unassailable. The "enduring moral qualities" test applied by the Tribunal is endorsed by Full Courts in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431 and Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277 at [8] , to which the Tribunal referred, and by Full Courts in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 and Godley [2005] FCAFC 10 ; (2005) 141 FCR 552 at [35] , to which it did not refer.
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: followed
have referred at [13] and [14] to the Tribunal's observations about Mr Selimi's evidence at the hearing on 21 May 2008. This confirmed for the Tribunal the continuing nature of Mr Selimi's unsatisfactory moral qualities, and that his behaviour had not changed sufficiently since he engaged in his previous temporally extended criminal and generally dishonest behaviour. I do not accept the applicant's submission that reliance cannot be placed on these observations because they were made in the course of considering the discretionary issue. The Tribunal's reasons must be considered in full in order to determine whether it committed reviewable error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 291. The Tribunal did not fail to consider Mr Selimi's continuing conduct.
Case: Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Outcome: cited
present case is quite different from Godley (2004) 83 ALD 411. What Lee J there described as "weaknesses or blemishes in character" were trivial matters and matters uninformative as to whether Mr Godley was not of good character. The matters the Tribunal in the present case so described were not of that nature. Paragraph [22] of the Tribunal's reasons begins: "If not already apparent, I cannot find Mr Selimi has enduring moral qualities ". This refers to the incidents recorded elsewhere in the reasons, especially in [21]. The offences of which he was convicted, his conduct in relation to the claim for a protection visa, making or allowing to be made false statements for many years intended to conceal that his marriage was a sham, and his recent false evidence at the Tribunal hearing, were not trivial or uninformative matters that Lee J described in globo as "weaknesses or blemishes in character". They were serious matters that went to the core of whether Mr Selimi was a person not of good character. The Tribunal twice referred to the offences as "serious". It also stressed "the gravity and extent" of the past criminal and general conduct. It noted that in the Direction the Minister regarded serious crimes against the Act as being "very serious". In those circumstances the Tribunal's conclusion that it could not find that Mr Selimi had enduring moral qualities would, but for the balance of the sentence at [22], be unassailable. The "enduring moral qualities" test applied by the Tribunal is endorsed by Full Courts in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431 and Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277 at [8] , to which the Tribunal referred, and by Full Courts in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 and Godley [2005] FCAFC 10 ; (2005) 141 FCR 552 at [35] , to which it did not refer.
Case: BAE Systems Australia (New South Wales) Pty Ltd v Commissioner of Taxation (2008) 69 ATR 567
Outcome: considered
has been observed in prior authority that the purpose of the appeal statement is one of informing a taxpayer of the Commissioner's view, at that time, of the bases of the Commissioner's rejection of an assessment objection. In this regard, it has been said that its purpose is a practical one: see BAE Systems Australia (New South Wales) Pty Ltd v Commissioner of Taxation (2008) 69 ATR 567. It has also been observed that the appeal statement is not a pleading: McDonald's Australia Limited v Commissioner of Taxation (No 2) (2008) 69 ATR 898. So much may be accepted. It is nonetheless a feature of an appeal statement that it forms part of an obligation which the Court has to afford the parties to a proceeding procedural fairness. One of the ways in which that particular obligation is fulfilled is by ensuring that a party to a proceeding knows the case it has to meet.
Case: Commissioner of Taxation v ANZ Savings Bank [1994] HCA 58 ; (1994) 181 CLR 466
Outcome: considered
in time, in Commissioner of Taxation v ANZ Savings Bank [1994] HCA 58 ; (1994) 181 CLR 466 at 479, Brennan, Deane, Dawson and Toohey JJ remarked, in their joint judgment: In several decisions it has been held that the Commissioner may support the amount of the assessment on a ground not taken into account at the time the assessment was made. The Commissioner will be required to give proper notice to the taxpayer and, where appropriate, will be directed to furnish particulars. But, as Kitto J observed in Federal Commissioner of Taxation v Wade : "No conduct on the part of the commissioner could operate as an estoppel against the operation of the Act." [ emphasis added ]
Case: Commissioner of Taxation v Wade [1951] HCA 66 ; (1951) 84 CLR 105
Outcome: considered
is a line of authority, the origins of which may be traced to remarks made by Kitto J in Commissioner of Taxation v Wade [1951] HCA 66 ; (1951) 84 CLR 105 at 117, which stands for this proposition: No conduct on the part of the commissioner could operate as an estoppel against the operation of the Act. Later in time, in Commissioner of Taxation v ANZ Savings Bank [1994] HCA 58 ; (1994) 181 CLR 466 at 479, Brennan, Deane, Dawson and Toohey JJ remarked, in their joint judgment: In several decisions it has been held that the Commissioner may support the amount of the assessment on a ground not taken into account at the time the assessment was made. The Commissioner will be required to give proper notice to the taxpayer and, where appropriate, will be directed to furnish particulars. But, as Kitto J observed in Federal Commissioner of Taxation v Wade : "No conduct on the part of the commissioner could operate as an estoppel against the operation of the Act." [ emphasis added ]
Case: Jupiters Limited v Deputy Commissioner of Taxation (2002) ATC 4022
Outcome: distinguished
of the submissions made on behalf of the Commissioner as to why it was not procedurally unfair for the appeal statement in its amended form to be the subject of a grant of leave was put in these terms: The fact the Commissioner had not alleged sham or relied upon the tax avoidance provisions of the legislation prior to the filing of the applicant's material does not mean that the Court is obliged to accept PEC had completely subjected itself to an obligation under the purported "Participation Agreement" or that the alleged payments had the characterisation of an outgoing for the purposes of ss 51(1)/8- 1 . Goldberg J, with whom the other members of the Full Court agreed, dismissed a similar proposition by the taxpayer in Star City [2009] FCAFC 19 by reference, inter alia, to Jupiters Limited v Deputy Commissioner of Taxation (2001) 148 ATR 511. Jupiters Limited v Deputy Commissioner of Taxation (2002) ATC 4022 though, was not a case in which "sham", as that term was used by Mustill LJ, was in any way a feature. Rather, it was a case where, against wider surrounding circumstances, a conclusion was able to be reached that a particular outgoing was one of capital rather than on revenue account. It is quite irrelevant to the present case. When an allegation of sham is made, it is tantamount to an allegation of fraud. As it is made in this case, it is certainly such an allegation, and a serious one indeed. It has been made at a time when, having regard to the ordinary residence of key witnesses or potential witnesses in the Philippines, it is difficult to see how the granting of leave would do other than carry with it, as a corollary, an adjournment of the hearing of a taxation appeal, the trial of which has been fixed for many months.
Case: McDonald's Australia Limited v Commissioner of Taxation (No 2) (2008) 69 ATR 898
Outcome: considered
has been observed in prior authority that the purpose of the appeal statement is one of informing a taxpayer of the Commissioner's view, at that time, of the bases of the Commissioner's rejection of an assessment objection. In this regard, it has been said that its purpose is a practical one: see BAE Systems Australia (New South Wales) Pty Ltd v Commissioner of Taxation (2008) 69 ATR 567. It has also been observed that the appeal statement is not a pleading: McDonald's Australia Limited v Commissioner of Taxation (No 2) (2008) 69 ATR 898. So much may be accepted. It is nonetheless a feature of an appeal statement that it forms part of an obligation which the Court has to afford the parties to a proceeding procedural fairness. One of the ways in which that particular obligation is fulfilled is by ensuring that a party to a proceeding knows the case it has to meet.
Case: Jupiters Ltd v Neurizon Pty Limited (2005) 65 IPR 86
Outcome: followed
The principles of construction of a patent specification are well-settled. The general approach is summarised by the Full Court of the Federal Court in Jupiters Ltd v Neurizon Pty Limited (2005) 65 IPR 86 at [67] and [68]. It is not necessary to repeat the Full Court's comments here. 118 In the event that I am incorrect and the document does anticipate all the integers of Claims 7 and 18, the issue is whether the novelty destroying disclosure was made "publicly available" before the priority date: s 7(1) of the Act . NSI bears the onus of establishing that the document was made publicly available: see Jupiters Ltd v Neurizon Pty Ltd (2005) 65 IPR 86 at 118. If this is established, then, in order to uphold the validity of the patent, the University must establish that it did not consent to the disclosure of the document: s 24(1)(b) of the Act . In this case, I am satisfied that the document was not made publicly available and also that the University did not consent to it being publicly disclosed.
Case: Baygol Pty Ltd v Foamex Polystyrene Pty Ltd (2005) 64 IPR 437
Outcome: followed
In constructing a patent claim, the ordinary meaning of the language selected to define the claim is of prime importance: see Baygol Pty Ltd v Foamex Polystyrene Pty Ltd (2005) 64 IPR 437. Although a claim must be understood in the light and context of the whole specification, as a general rule, the words of a claim are not to be altered by a gloss taken from the body of the specification and essential integers are determined by a common sense assessment of what the words of the claim convey in the context of the existing published knowledge at the time: see Rehm Pty Ltd v Websters Securities Systems (International) Pty Ltd (1988) 81 ALR 79 at 92; Kimberley-Clark Australia Pty Ltd v Arico Trading International Pty Ltd [2001] HCA 8 ; (2001) 207 CLR 1. It is not legitimate to narrow or expand the boundaries of an anomaly as fixed by the words of a claim by adding words drawn from other parts of the specification: see Flexible Steel Lacing Co v Beltreco Ltd (2000) 49 IPR 331 at [74]. In addition, claims are not to be construed by reference to the actual intentions or opinions of the inventor: see Sartas (No 1) Pty Limited v Koukourou &amp; Partners Pty Ltd (1994) 30 IPR 479 at 485-6.