mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940
Outcome: referred to
Counsel for the Minister drew attention to Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 52 at [36] (O'Connor J), Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 at [24] (Spender, O'Connor and Emmett JJ), and Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at [64] - [66] (McHugh J sitting as a single justice of the High Court), in support of the contention that s 430 of the Act does not impose any duty to deal with adverse material. Counsel submitted in that regard that '[t]he significance of these authorities is that it is not open to a court to infer from the fact that evidence adverse to the findings made by a Tribunal has not been mentioned that it has not been properly considered'. 22 In Durairajasingham [2000] HCA 1 ; 168 ALR 407 at [64] - [66] , McHugh J observed as follows: '[64] There is some authority in the Full Court of the Federal Court for the proposition that s 430(1) requires the reasons of the tribunal to refer to evidence contrary to findings of the tribunal. However, the contrary view was taken by differently constituted Full Courts in Ahmed v Minister for Immigration and Multicultural Affairs , Addo v Minister for Immigration and Multicultural Affairs and Sivaram v Minister for Immigration and Multicultural Affairs. In Addo, the court said : Section 430 (1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with s 430(1) of the Act. ... It is not necessary, in order to comply with s 430(1) , for the tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made. [65] In my opinion, this passage correctly sets out the effect of s 430(1)(c) and (d). However, the obligation to set out "the reasons for the decision" (s 430(1)(b)) will often require the tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the tribunal must set that out as one of its reasons. But that said, it is not necessary for the tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal... . [66] In this case, the tribunal made an express finding that it did not accept the prosecutor's wife's evidence. That was sufficient to comply with the requirements of s 430(1). '
Case: Lei Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568
Outcome: cited
In his Statement of Reasons, the Minister refers to the children cumulatively, singling out only one child (Darryl Holani). This in itself would not necessarily mean that the Minister has not taken into account the best interests of each of the applicant's children, in particular Larni and Joshua as submitted by the applicant, if the reasons of the Minister indicated that their interests had been taken into account: cf Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273 at 292; Burchett J in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 at 614, Lei Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 at [283] . Primary consideration 23 The key issue in this case is whether, in making findings concerning the best interests of Larni and Joshua, the Minister has in fact given the best interests of the children "proper, genuine and realistic consideration" (Branson J in Vaitaiki 150 ALR at 631; Branson, North and Stone JJ in Lei Wan [2001] FCA 568 at [34] ). Material before the Minister 30 In my view this not a case where the interests of Larni and Joshua are "dismissed with...almost perfunctory curtness" (cf Burchett J in Vaitaiki 150 ALR at 614). Further, this is not a case where the Minister has failed to identify anywhere in his Statement of Reasons what the best interests of the children indicated that he should decide with respect to the applicant's visa (cf Branson, North and Stone JJ in Lei Wan [2001] FCA 568 at [26] - [27] ): the Minister clearly stated that the best interests of the children required that the applicant's visa not be cancelled. The only real information of relevance before the Minister concerning Larni and Joshua other than their ages concerned their close relationship with their father and the support he provided them, and this issue was clearly taken into account.
Case: Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273
Outcome: cited
In his Statement of Reasons, the Minister refers to the children cumulatively, singling out only one child (Darryl Holani). This in itself would not necessarily mean that the Minister has not taken into account the best interests of each of the applicant's children, in particular Larni and Joshua as submitted by the applicant, if the reasons of the Minister indicated that their interests had been taken into account: cf Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273 at 292; Burchett J in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 at 614, Lei Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 at [283] . Primary consideration
Case: Minister for Immigration and Multicultural and Indigenous Affairs v Lorenzo [2005] FCAFC 13
Outcome: cited
It is not in dispute that, in making his decision, the Minister was bound to take into account as a primary consideration the best interests of the children of the applicant under the age of 18. Failure to do so as a primary consideration would result in the decision of the Minister being affected by jurisdictional error: Minister for Immigration and Multicultural and Indigenous Affairs v Lorenzo [2005] FCAFC 13 at [57] - [58] . 12 Guidance for decision-makers in making decisions to refuse or cancel a visa under s 501(2) is found in the Minister's "Direction under section 499 - Visa Refusal and Cancellation under section 501 of the Migration Act - No 21" ("Direction No 21"). Although not binding on the Minister himself, the Minister indicated at para 5 of the Statement of Reasons that he had followed his usual practice and proceeded in accordance with Direction No 21. It is not in dispute that it is relevant for the Minister to have regard to the contents of Direction No 21 in making his decision. 13 Paragraph 2.3 of Direction No 21 states the primary considerations for the decision-maker in respect of a decision to refuse or cancel a visa: "2.3 In making a decision whether to refuse or cancel a visa, there are three primary considerations: (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 interests of the child or children."
Case: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: cited
It is not in dispute that the Minister's decision is a privative clause decision within the meaning of s 474(2) , or at least a purported privative clause decision within the meaning of s 5E. The Federal Court therefore has original jurisdiction in relation to this decision in accordance with s 476A of the Act . However, the jurisdiction of the Court is limited to the same as the jurisdiction of the High Court under para 75(v) of the Constitution (s 476A(2)). Accordingly, in this case the Court can only set aside the Minister's decision for jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476 at 506-508 and 511 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 172 at [8] . An error of fact which may have been made by the Minister is not reviewable by this Court unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 351-352 per McHugh, Gummow and Hayne JJ; NABE v Minister for Immigration and Indigenous Affairs (No 2) [2004] FCAFC 263 at [53] .
Case: NABE v Minister for Immigration and Indigenous Affairs (No 2) [2004] FCAFC 263
Outcome: cited
It is not in dispute that the Minister's decision is a privative clause decision within the meaning of s 474(2) , or at least a purported privative clause decision within the meaning of s 5E. The Federal Court therefore has original jurisdiction in relation to this decision in accordance with s 476A of the Act . However, the jurisdiction of the Court is limited to the same as the jurisdiction of the High Court under para 75(v) of the Constitution (s 476A(2)). Accordingly, in this case the Court can only set aside the Minister's decision for jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476 at 506-508 and 511 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 172 at [8] . An error of fact which may have been made by the Minister is not reviewable by this Court unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 351-352 per McHugh, Gummow and Hayne JJ; NABE v Minister for Immigration and Indigenous Affairs (No 2) [2004] FCAFC 263 at [53] .
Case: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476
Outcome: cited
It is not in dispute that the Minister's decision is a privative clause decision within the meaning of s 474(2) , or at least a purported privative clause decision within the meaning of s 5E. The Federal Court therefore has original jurisdiction in relation to this decision in accordance with s 476A of the Act . However, the jurisdiction of the Court is limited to the same as the jurisdiction of the High Court under para 75(v) of the Constitution (s 476A(2)). Accordingly, in this case the Court can only set aside the Minister's decision for jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476 at 506-508 and 511 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 172 at [8] . An error of fact which may have been made by the Minister is not reviewable by this Court unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 351-352 per McHugh, Gummow and Hayne JJ; NABE v Minister for Immigration and Indigenous Affairs (No 2) [2004] FCAFC 263 at [53] .
Case: Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 172
Outcome: cited
It is not in dispute that the Minister's decision is a privative clause decision within the meaning of s 474(2) , or at least a purported privative clause decision within the meaning of s 5E. The Federal Court therefore has original jurisdiction in relation to this decision in accordance with s 476A of the Act . However, the jurisdiction of the Court is limited to the same as the jurisdiction of the High Court under para 75(v) of the Constitution (s 476A(2)). Accordingly, in this case the Court can only set aside the Minister's decision for jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476 at 506-508 and 511 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 172 at [8] . An error of fact which may have been made by the Minister is not reviewable by this Court unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 351-352 per McHugh, Gummow and Hayne JJ; NABE v Minister for Immigration and Indigenous Affairs (No 2) [2004] FCAFC 263 at [53] .
Case: Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388
Outcome: cited
In his Statement of Reasons, the Minister states that he gave primary consideration to the best interests of the children and that he gave that consideration "substantial weight". The weight given by the Minister to a relevant factor can not be the subject of judicial review: Taylor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 208 at [19] . However the issue of whether the Minister actually undertook the task is a matter for this Court. As noted by Toohey J in Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 at 392: "In many cases it will be clear whether or not the decision maker has taken a relevant consideration into account. That is not to say that the mere assertion by the decision maker that he has done so will conclude the matter. It may be possible to demonstrate from a consideration of all the reasons leading to the decision, or indeed from the decision itself, that a consideration has not been taken into account in any real sense. Conversely the omission of an express reference to some consideration will not lead inevitably to a conclusion that it was not taken into account. An examination of the reasons for decision and of the decision itself may justify the inference that it was ." (emphasis added) (cf Branson J in Vaitaiki 150 ALR at 631)
Case: Benson Communications Pty Limited v Carroll [2009] FCA 632
Outcome: cited
Statutory Demand Proceeding and the Summary Dismissal Motion were listed for hearing on 1 June 2009 on which date I ordered that the Statutory Demand Proceeding be dismissed and that BCPL pay Mr Carroll's costs of that Proceeding: see Benson Communications Pty Limited v Carroll [2009] FCA 632. The hearing therefore continued on the basis that it was only the Summary Dismissal Motion that was to be dealt with. The claims made in the ASC Against this background, the material facts as alleged in the ASC can be summarised. I will use abbreviated forms of reference in the ASC. Numerals in bold in square brackets are references to paragraphs so numbered in the ASC.
Case: Benson v Carroll [2008] FCA 1729
Outcome: cited
6 November 2008, I dealt with the motion brought by the applicants in this proceeding to set aside the order of dismissal of 23 April 2008, and ordered that the order of dismissal be set aside: see Benson v Carroll [2008] FCA 1729. On 26 May 2009, Mr Carroll as respondent in the Statutory Demand Proceeding filed a notice of motion seeking an order that the Statutory Demand Proceeding be heard concurrently with the present Summary Dismissal Motion.
Case: Gordon v Gibbons (1873) 12 SCR (NSW)(L) 40
Outcome: followed
applicants rely on Gordon v Gibbons (1873) 12 SCR (NSW)(L) 40. That case concerned an unincorporated mining company formed under a deed of settlement. In accordance with the terms of the deed, the directors sued a member for calls. It was held (by majority) that the action did not lie because any recovery would be partnership property and the defendant was a member of the partnership. The Court distinguished a claim for damages or money which, when recovered, would be the plaintiff's own property. This case lends support to the applicants. The damages that they seek to recover would not be partnership property but would be their own property (in the case of BCPL, as trustee for the Grantham Project (Trust), but that is beside the point). For the above reasons, the respondents' motion for summary dismissal should be dismissed with costs. The proceeding will be listed for the making of directions. I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 11 November 2009 Counsel for the Applicants: Mr R W Evans Solicitor for the Applicants: McKells Solicitors Counsel for the Respondents: Mr K G Oliver Solicitor for the Respondents: Kemp Strang Date of Hearing: 1, 5 June 2009 Date of Judgment: 28 October 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1217.html
Case: Henderson v Henderson [1843] EngR 917 ; (1843) 3 Hare 100 (67 ER 313)
Outcome: cited
summary, the respondents submit, first, that the claims or some of the claims made in this proceeding could only have been made in the Supreme Court Proceeding, and, second, that the subject matter of this proceeding properly belonged to the Supreme Court Proceeding so that the applicants are precluded from pursuing this proceeding by reason of the principle commonly associated with Henderson v Henderson [1843] EngR 917 ; (1843) 3 Hare 100 (67 ER 313) and Port of Melbourne Authority v Anshun Proprietary Limited [1981] HCA 45 ; (1981) 147 CLR 589 ( Anshun ). In Spencer Bower, Turner and Handley, The Doctrine of Res Judicata (3 rd ed, Butterworths, 1996) the learned authors state (at [452]): There is no doubt that the Henderson principle and the Kilbrandon test (a reference to Lord Kilbrandon's remarks in delivering the judgment of the Privy Council in Yat Tung Investment Co. Ltd. v Dao Heng Bank Ltd. [1975] AC 581) apply with full rigour to proceedings for an account. A simple account may be taken at the trial, and where this occurs, the nature of the proceedings may be obscured. A judicial account involves the offsetting of credit items on both sides to reach a balance in favour of one party. The result can only be final if all relevant claims and cross-claims are either brought forward for adjudication or treated as abandoned. Again, this passage leaves open the question what are "all relevant claims and cross-claims". Clearly, it would not be open to a partner to advance a later claim to recover property that had been treated as partnership property in the taking of accounts or to contend in a later proceeding that the partners' "loan accounts" in the partnership books, on the basis of which the partnership accounts had been taken, were otherwise than what they had been treated as being in the taking of those accounts. The claims for unliquidated damages made by the applicants outside the scope of the partnership are of a different kind.
Case: Public Trustee v Kenward [1967] 1 WLR 1062
Outcome: distinguished
Trustee v Kenward [1967] 1 WLR 1062 was also a case of the taking of partnership accounts. The plaintiff was judicial trustee of a deceased's estate. He sued the defendant for the balance found due by the defendant to the estate on an account and inquiry taken in earlier administration proceedings to which the defendant was a party. The defendant had not challenged the Master's certificate in that proceeding. The enquiry before the Master had related to a farming business carried on by the defendant in partnership with the deceased, in whom the farm was vested, and no evidence was adduced before the Master to suggest that the land was not the sole property of the deceased. On the plaintiff's application for summary judgment, the defendant sought leave to defend on the ground that he had a valid counterclaim for a share in the proceeds of sale of the farm land and the income thereof since the deceased's death and for the cost of certain improvements, on the basis that the land was an asset of the partnership. He offered an explanation of his failure to raise this point before the Master on the taking of partnership accounts. Buckley J held that the defendant was estopped by the Master's certificate from setting up the claim that the land was a partnership asset, since an allegation that it was would have been germane to the accounts and enquiry before the Master, which was directed to determining finally what sum the defendant should pay to the estate. At 1067C, His Lordship stated: I think the question in the present case must be whether it is right to regard the claim which the defendant now wants to raise as something which properly belonged to the subject-matter of the account and inquiry directed by the order of March 21, 1962. If it were a matter which can be said properly to have belonged to that investigation of the relative rights of the defendant and testatrix's estate, then the fact that the defendant, whether it be by inadvertence or accident or as the result of his being unwisely advised or lacking advice, did not raise the point on any of those grounds would be no justification for allowing him to raise it now.
Case: Sheaffe v Hungerford (1879) 1 QLJ (Supp) 51
Outcome: distinguished
present case has some similarity to Sheaffe v Hungerford (1879) 1 QLJ (Supp) 51. In that case the plaintiff and the defendant agreed to enter into a partnership to form and carry on the business of a cattle station. The plaintiff was to provide the grazing country; the defendant 5200 head of cattle by instalments. After supplying some of the cattle, the defendant refused to supply any more. The plaintiff sought: (1) that the parties' rights and interests under the partnership agreement might be defined; (2) damages for breach of the agreement consisting of the defendant's failure to send the cattle; (3) a dissolution of the partnership if any had been created. Lilley CJ said (at 53) in relation to the claim for damages: The action is substantially for damages, and under the old system the defendant would be entitled to a verdict. But the plaintiff has asked that the suit may be treated as one for the administration of the partnership affairs, and for a dissolution. There are in my opinion sufficient grounds to grant this application, but I need not state them as the defendant does not oppose a decree on this point." In view of the consent and the absence of reasons on the point, the case is weak or no authority for the proposition that a claim for damages by one partner against another can, let alone should, be dealt with in a suit for the taking of partnership accounts. In any event, the claim for damages was one between the partners alone and was for breach or repudiation of the partnership agreement itself. The complexities to which I have already referred show that the circumstances of the present case are far removed from those in Sheaffe v Hungerford .