mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZDEG v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 748
Outcome: followed
Branson J followed that decision in SZDEG v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 748 and said: '8 It does not appear that either the Full Court of this Court or the High Court has given express consideration to the present status of Anshun No 1 . I am thus placed in the difficult position of deciding which of the above decisions of my colleagues I should follow. With some hesitation, and with great respect to Kenny J, I have concluded that the view adopted by Selway J is the preferable view. The unqualified nature of the statement in Re Luck at [9] which is highlighted in [4] above seems to me to carry considerable weight as it was made in a case decided after Anshun No 1. Additionally, I note that the Full Court in Wride v Schulze [2004] FCAFC 216 placed reliance on Re Luck at [9] and made no reference to Anshun No 1. 9 I conclude that the judgment of the Federal Magistrates Court in respect of which the notice of appeal was filed is an interlocutory judgment. As mentioned above, s 24(1A) of the Federal Court of Australia Act 1976 (Cth) operates to prevent an appeal being brought from an interlocutory judgment of the Federal Magistrates Court unless the Court or a judge gives leave.'
Case: Lashansky v Bruvecchis Pty Ltd [2005] FCAFC 64
Outcome: cited
The respondent, on this application, has urged me to follow the decisions which followed Luck rather than Anshun (No 1) . In Lashansky v Bruvecchis Pty Ltd [2005] FCAFC 64 , the Full Court of the Federal Court, of which I was a member (Madgwick, Lander and Crennan JJ), considered the decision of the High Court in Luck , the earlier decision of the Privy Council in Tampion v Anderson , and the earlier decision of the English Court of Appeal in Hunt v Allied Bakeries Ltd , and concluded that an order dismissing an action because it does not disclose a reasonable cause of action was interlocutory. In that case, the decision in Anshun (No 1) was not cited to the Court.
Case: Bienstein v Bienstein [2003] HCA 7 ; (2003) 195 ALR 225
Outcome: cited
In a later decision of the High Court, Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 (' Luck '), Gleeson CJ had refused Ms Luck leave to issue a writ of summons and statement of claim which had been the subject of a direction made by Callinan J pursuant to O 58 r 4(3) of the High Court Rules. The question before the Court was whether Gleeson CJ's order was final or interlocutory. 43 The disagreement amongst judges was adverted to by Selway J in S1000 of 2003 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 285 where he said: '2 The original application made by the applicant was by Notice of Appeal. There may be some disagreement in the cases as to whether an order dismissing an action on the basis that it is vexatious and or an abuse of process is an interlocutory order, contrast Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 at 4, [9] , and Port of Melbourne Authority v Anshun [1980] HCA 41 ; (1980) 147 CLR 35. As the decision of the High Court in Re Luck is the most recent, I should follow it. This is consistent with other recent practice in this court. I refer, for example, to the decisions of the Full Court of this Court in Wride v Schulze [2004] FCAFC 216 , Lindsey v Philip Morris Limited [2004] FCAFC 40 , and in Johnson Tiles Pty Limited v Esso Australia Pty Limited [2000] FCA 1572 ; (2000) 104 FCR 564, [43].' 46 Of course, as the High Court has said in Bienstein v Bienstein [2003] HCA 7 ; (2003) 195 ALR 225 at 230, the test for whether an order is final or interlocutory is whether the order made finally determines the rights of the parties in the principal action before the Court.
Case: MZWHN v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 491
Outcome: cited
In my opinion, the Court can have regard to the jurisdiction which was exercised by the Court below in determining whether the effect of the order which was sought is to finally determine the issues between the parties. Where the Court is exercising its summary jurisdiction to dispose of the matter without proceeding to examine the matter on its merits it is more likely that the order made is not a final order but an interlocutory order because the order does not usually finally determine the legal rights of the parties: MZWHN v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 491 per Crennan J.
Case: D&eacute;cor Corporation Pty Ltd v Dart Industries (1991) 33 FCR 397
Outcome: applied
The tests that have to be considered in an application for leave to appeal are well know: D&eacute;cor Corporation Pty Ltd v Dart Industries (1991) 33 FCR 397. On an application such as this, an applicant must establish that the decision is attended with sufficient doubt to warrant it being reconsidered by the Court of Appeal. If so, the applicant must also satisfy the Court considering the question of leave that substantial injustice would result if leave were refused. Of course, the two tests are not considered independently of each other but are interrelated. 51 In my opinion, there can be no doubt that the applicant has failed to satisfy the Court that the decision is attended with sufficient doubt to warrant it being re considered by the Full Court. Except for the claim of bias, the grounds which gave rise to the order dismissing the application were in substance the same grounds which had previously been ventilated before Smith FM in the Federal Magistrates Court and on appeal to this Court, and in the application for special leave to the High Court. 52 The Magistrate was right to conclude that the application was in that respect an abuse of process.
Case: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476
Outcome: cited
The Tribunal's decision was a "privative clause decision" within the meaning of s 474 of the Act. As a result, it can only be set aside on judicial review if jurisdictional error is shown: see Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476 at 506-508 and 511. 42 The Federal Magistrate based his decision principally on s 360 of the Act. This provision requires the Tribunal to "invite the applicant to appear before the Tribunal to give evidence and present argument relating to the issues arising in relation to the decision under review". The Act, in s 425, imposes an equivalent obligation on the Refugee Review Tribunal. The Tribunal is bound to extend an invitation under s 360 where the documentary material before it would not lead it to make a decision in the review applicant's favour: see ss 360(2) and 425(2). 57 Part of the Minister's challenge to the judgment under appeal involves a challenge to findings, if this is what they were, that were in the nature of findings of fact or mixed fact and law. This Court must make its own assessment in light of the judgment under appeal. In a case of this kind, the appellate court is in as good a position as the Federal Magistrate to form a view about any facts in issue: compare Warren v Coombes [1979] HCA 9 ; (1979) 142 CLR 531 at 551-552 per Gibbs ACJ, Jacobs and Murphy JJ and Fox v Percy [2003] HCA 22 ; (2003) 214 CLR 118 at 127 per Gleeson CJ, Gummow and Kirby JJ.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 552
Outcome: referred to
The Minister accepted that an invitation under s 360 of the Act must be a genuine invitation to attend a hearing that affords a real opportunity to present evidence and arguments on the issues raised in relation to the decision under the review: see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 552 at 560-561 per Gray, Cooper and Selway JJ; Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 356 at 388-389 per French J and 400 per Allsop J; and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 at 600. The Minister conceded that the obligation to which s 360 gave rise was a continuing one.
Case: Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 356
Outcome: referred to
The Minister accepted that an invitation under s 360 of the Act must be a genuine invitation to attend a hearing that affords a real opportunity to present evidence and arguments on the issues raised in relation to the decision under the review: see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 552 at 560-561 per Gray, Cooper and Selway JJ; Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 356 at 388-389 per French J and 400 per Allsop J; and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 at 600. The Minister conceded that the obligation to which s 360 gave rise was a continuing one. 59 Since there was no basis to impute negligence to Mr Oladejo, this is not a suitable occasion to consider whether relief would be available if it were shown that a review applicant lost an opportunity to present evidence on account of an adviser's negligence: for a discussion of the question, see French J's discussion in Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 356 (" SZFDE ") at 383-392. It suffices to note that, as his Honour said, in a passage subsequently referred to with approval by the High Court, there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision: SZFDE at 399 referred to in SZFDE v Minister for Immigration and Multicultural Affairs [2007] HCA 35 at [53] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon, and Crennan JJ. For the reasons stated, I would say no more about the other arguments that arose under the third and fourth grounds of appeal.
Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592
Outcome: referred to
The Minister accepted that an invitation under s 360 of the Act must be a genuine invitation to attend a hearing that affords a real opportunity to present evidence and arguments on the issues raised in relation to the decision under the review: see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 552 at 560-561 per Gray, Cooper and Selway JJ; Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 356 at 388-389 per French J and 400 per Allsop J; and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 at 600. The Minister conceded that the obligation to which s 360 gave rise was a continuing one.
Case: Rose v Bridges (1997) 79 FCR 378
Outcome: distinguished
I accept that, as the Minister contended, it was incumbent on Ms Le, as an applicant for judicial review, to present some evidence that Mr Oladejo had not communicated to her that the Tribunal was prepared to convene a further hearing if the failure so to communicate was part of her case: compare Rose v Bridges (1997) 79 FCR 378 at 386 per Finn J. There was, as the Minister said, no evidence before the Federal Magistrate that Mr Oladejo had failed to inform Ms Le, through an interpreter, that the Tribunal was willing to reconvene to hear the evidence from the remaining witnesses. Ms Le did not seek to adduce any evidence to this effect. Accordingly, it was not open to his Honour to proceed (as he apparently did) on the basis that Mr Oladejo had not conveyed this information to Ms Le, in breach of his obligations to her. To the extent that his Honour did so proceed, he was in error. I would accept the Minister's submissions under the second ground of appeal.
Case: Warren v Coombes [1979] HCA 9 ; (1979) 142 CLR 531
Outcome: cited
Part of the Minister's challenge to the judgment under appeal involves a challenge to findings, if this is what they were, that were in the nature of findings of fact or mixed fact and law. This Court must make its own assessment in light of the judgment under appeal. In a case of this kind, the appellate court is in as good a position as the Federal Magistrate to form a view about any facts in issue: compare Warren v Coombes [1979] HCA 9 ; (1979) 142 CLR 531 at 551-552 per Gibbs ACJ, Jacobs and Murphy JJ and Fox v Percy [2003] HCA 22 ; (2003) 214 CLR 118 at 127 per Gleeson CJ, Gummow and Kirby JJ.
Case: Fox v Percy [2003] HCA 22 ; (2003) 214 CLR 118
Outcome: cited
Part of the Minister's challenge to the judgment under appeal involves a challenge to findings, if this is what they were, that were in the nature of findings of fact or mixed fact and law. This Court must make its own assessment in light of the judgment under appeal. In a case of this kind, the appellate court is in as good a position as the Federal Magistrate to form a view about any facts in issue: compare Warren v Coombes [1979] HCA 9 ; (1979) 142 CLR 531 at 551-552 per Gibbs ACJ, Jacobs and Murphy JJ and Fox v Percy [2003] HCA 22 ; (2003) 214 CLR 118 at 127 per Gleeson CJ, Gummow and Kirby JJ.
Case: SZFDE v Minister for Immigration and Multicultural Affairs [2007] HCA 35
Outcome: referred to
Since there was no basis to impute negligence to Mr Oladejo, this is not a suitable occasion to consider whether relief would be available if it were shown that a review applicant lost an opportunity to present evidence on account of an adviser's negligence: for a discussion of the question, see French J's discussion in Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 356 (" SZFDE ") at 383-392. It suffices to note that, as his Honour said, in a passage subsequently referred to with approval by the High Court, there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision: SZFDE at 399 referred to in SZFDE v Minister for Immigration and Multicultural Affairs [2007] HCA 35 at [53] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon, and Crennan JJ. For the reasons stated, I would say no more about the other arguments that arose under the third and fourth grounds of appeal.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12
Outcome: referred to
This takes me to the sixth of the Minister's grounds on the hearing of the appeal. On the one hand, the authorities establish that the Tribunal has no general obligation to initiate enquiries or to make out an applicant's case for him or her. These authorities stretch back over the life of the Tribunal: see, for example, Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at 21-22 per Gummow and Hayne JJ (with whom Gleeson CJ agreed) and 49 per Callinan J; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ; SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 (" SBBA ") at [8] per Weinberg, Stone and Jacobson JJ; Mohammed v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 47 at [24] per Moore, North and Emmett JJ; SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [16] per Ryan, Jacobson and Lander JJ; WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277 at [25] per Heerey, RD Nicholson and Mansfield JJ; NBDF v Minister for Immigration and Multicultural Affairs [2006] FCA 1355 at [24] - [25] per Branson J ; Tide Sequence Industries Pty Ltd v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 751 ; (2005) 145 FCR 155 at 174 per Conti J; Hong v Minister for Immigration and Indigenous Affairs [2004] FCA 1308 at [40] per Finn J; NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 528 at [20] - [21] per Jacobson J; Rahman v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 1277 (" Rahman ") at [29] per French J; Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 ; (2001) 106 FCR 426 (" Anthonypillai ") at 445 per Heerey, Goldberg and Weinberg JJ; Kabir v Minister for Immigration and Multicultural Affairs (2001) 184 ALR 295 at 305-306 per Katz J; Re Minister for Immigration and Multicultural Affairs; Ex parte Cassim [2000] HCA 50 ; (2000) 175 ALR 209 at 212-213 per McHugh J; Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 560-561 per Lee J; and Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 (" Prasad ") at 169-170 per Wilcox J. On the other hand, there is authority for the limited proposition that, in certain rare or exceptional circumstances, the Tribunal's failure to enquire may ground a finding of jurisdictional error because the failure may render the ensuing decision manifestly unreasonable in the sense used in Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223 (" Wednesbury Corporation ").
Case: Minister for Immigration and Multicultural and Indigenous Affairs v VSAF [2005] FCAFC 73
Outcome: referred to
This takes me to the sixth of the Minister's grounds on the hearing of the appeal. On the one hand, the authorities establish that the Tribunal has no general obligation to initiate enquiries or to make out an applicant's case for him or her. These authorities stretch back over the life of the Tribunal: see, for example, Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at 21-22 per Gummow and Hayne JJ (with whom Gleeson CJ agreed) and 49 per Callinan J; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ; SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 (" SBBA ") at [8] per Weinberg, Stone and Jacobson JJ; Mohammed v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 47 at [24] per Moore, North and Emmett JJ; SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [16] per Ryan, Jacobson and Lander JJ; WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277 at [25] per Heerey, RD Nicholson and Mansfield JJ; NBDF v Minister for Immigration and Multicultural Affairs [2006] FCA 1355 at [24] - [25] per Branson J ; Tide Sequence Industries Pty Ltd v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 751 ; (2005) 145 FCR 155 at 174 per Conti J; Hong v Minister for Immigration and Indigenous Affairs [2004] FCA 1308 at [40] per Finn J; NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 528 at [20] - [21] per Jacobson J; Rahman v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 1277 (" Rahman ") at [29] per French J; Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 ; (2001) 106 FCR 426 (" Anthonypillai ") at 445 per Heerey, Goldberg and Weinberg JJ; Kabir v Minister for Immigration and Multicultural Affairs (2001) 184 ALR 295 at 305-306 per Katz J; Re Minister for Immigration and Multicultural Affairs; Ex parte Cassim [2000] HCA 50 ; (2000) 175 ALR 209 at 212-213 per McHugh J; Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 560-561 per Lee J; and Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 (" Prasad ") at 169-170 per Wilcox J. On the other hand, there is authority for the limited proposition that, in certain rare or exceptional circumstances, the Tribunal's failure to enquire may ground a finding of jurisdictional error because the failure may render the ensuing decision manifestly unreasonable in the sense used in Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223 (" Wednesbury Corporation ").
Case: Mohammed v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 47
Outcome: referred to
This takes me to the sixth of the Minister's grounds on the hearing of the appeal. On the one hand, the authorities establish that the Tribunal has no general obligation to initiate enquiries or to make out an applicant's case for him or her. These authorities stretch back over the life of the Tribunal: see, for example, Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at 21-22 per Gummow and Hayne JJ (with whom Gleeson CJ agreed) and 49 per Callinan J; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ; SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 (" SBBA ") at [8] per Weinberg, Stone and Jacobson JJ; Mohammed v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 47 at [24] per Moore, North and Emmett JJ; SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [16] per Ryan, Jacobson and Lander JJ; WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277 at [25] per Heerey, RD Nicholson and Mansfield JJ; NBDF v Minister for Immigration and Multicultural Affairs [2006] FCA 1355 at [24] - [25] per Branson J ; Tide Sequence Industries Pty Ltd v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 751 ; (2005) 145 FCR 155 at 174 per Conti J; Hong v Minister for Immigration and Indigenous Affairs [2004] FCA 1308 at [40] per Finn J; NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 528 at [20] - [21] per Jacobson J; Rahman v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 1277 (" Rahman ") at [29] per French J; Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 ; (2001) 106 FCR 426 (" Anthonypillai ") at 445 per Heerey, Goldberg and Weinberg JJ; Kabir v Minister for Immigration and Multicultural Affairs (2001) 184 ALR 295 at 305-306 per Katz J; Re Minister for Immigration and Multicultural Affairs; Ex parte Cassim [2000] HCA 50 ; (2000) 175 ALR 209 at 212-213 per McHugh J; Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 560-561 per Lee J; and Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 (" Prasad ") at 169-170 per Wilcox J. On the other hand, there is authority for the limited proposition that, in certain rare or exceptional circumstances, the Tribunal's failure to enquire may ground a finding of jurisdictional error because the failure may render the ensuing decision manifestly unreasonable in the sense used in Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223 (" Wednesbury Corporation ").