mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Jess v Scott (1986) 12 FCR 187
Outcome: cited
Minister's notice of appeal should have been filed and served by 27 March 2009. It was filed and served six days late. Order 52 rule 15(2) empowers the Court to extend time for "special reasons". In Jess v Scott (1986) 12 FCR 187 at 195 the Full Court said that "special reasons": is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served. In my view the Minister has sufficiently explained the short delay in filing the notice of appeal. In several cases an extension of time has been granted where there has been a short delay caused by reliance on incorrect advice as to time limits. Jess v Scott was such a case. Prospects of success Section 494B of the Act provides in part: (1) For the purposes of provisions of this Act or the regulations that: (a) require or permit the Minister to give a document to a person (the recipient ); and (b) state that the Minister must do so by one of the methods specified in this section; the methods are as follows. ... (4) Another method consists of the Minister dating the document, and then dispatching it: (a) within 3 working days (in the place of dispatch) of the date of the document; and (b) by prepaid post or by other prepaid means; and (c) to: (i) the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or (ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents. Regulation 2.16(3) of the Regulations requires the Minister to notify an applicant of a decision to refuse to grant a visa by one of the methods in s 494B.
Case: Kim v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 64
Outcome: cited
recent decisions are to the same effect: SZBMF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1427 ; (2005) 147 FCR 485 ; Kim v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 64 ; SZJUA v Minister for Immigration and Cultural Affairs [2007] FCA 1184.
Case: Minister for Immigration and Multicultural Affairs v Watson [2005] FCAFC 181 ; (2005) 145 FCR 542
Outcome: cited
observations of Hely J in Minister for Immigration and Multicultural Affairs v Watson [2005] FCAFC 181 ; (2005) 145 FCR 542 at 547 are to the same effect: In my view, s 33(1) ... (assuming it applies) does not have the effect that once there is a valid exercise of the s 501(2) power to cancel a visa, the visa can be effectively restored to the former holder by a second exercise of that power. Whilst the Minister has a discretion whether or not to exercise the s 501(2) power, the power in question is simply a power to cancel a visa which, if validly exercised, results in the former holder acquiring the status of an unlawful non-citizen with the consequences prescribed by the Act. There is no occasion for the re-exercise of the power once it has been validly exercised.
Case: Nguyen v Minister for Immigration and Citizenship [2007] FCAFC 38
Outcome: applied
main factors relevant to the exercise of the discretion are the applicant's prospects of success on an appeal, and whether a sufficient explanation for the delay has been provided: Nguyen v Minister for Immigration and Citizenship [2007] FCAFC 38 at [20] and [27]. Explanation for delay I will deal first with the explanation that has been provided for the delay. On 6 March 2009, the date of the Magistrate's decision, the Minister's solicitors advised him that the last day to file and serve a notice of appeal was 3 April 2009. According to the solicitor handling the matter, that date was calculated by reference to s 477A of the Act. Reliance on that section was misplaced, because the section applies to applications to the Court in its original jurisdiction and not its appellate jurisdiction. The Minister acted on that advice, and within the advised appeal period, on 1 April instructed his solicitors to file a notice of appeal. That was done on 2 April. As I have said, later that day the Registry informed the Minister's solicitors that the notice was out of time. The solicitors informed the Minister of that fact, and the Minister said he would consider his position and provide instructions by 6 April. On that day the Minister decided to seek an extension of time. That application was filed on 7 April together with a supporting affidavit setting out the matters recorded in this paragraph.
Case: Sargent v ASL Developments Ltd [1974] HCA 40 ; (1974) 131 CLR 634
Outcome: applied
part of this first discretionary consideration, the respondent contended that the Minister made an election by not seeking a stay of the Magistrate's orders and indeed complying with them, and that he cannot resile from the consequences of that conduct. In Sargent v ASL Developments Ltd [1974] HCA 40 ; (1974) 131 CLR 634 at 655 Mason J said: A person is said to have a right of election when events occur which enable him to exercise alternative and inconsistent rights. ... Essential to the making of an election is communication to the party affected by words or conduct of the choice thereby made and it is accepted that once an election is made it cannot be retracted ... A person confronted with a choice between the exercise of alternative and inconsistent rights is not bound to elect at once. He may keep the question open, so long as he does not affirm the contract or continuance of the estate and so long as the delay does not cause prejudice to the other side. Apart from saying that the Minister did not seek a stay of the Magistrate's order, the respondent did not identify the Minister's two alternative and inconsistent rights. Presumably the right other than the right to seek a stay is the right to appeal. In my view these rights are not inconsistent rights. Unsuccessful litigants frequently comply with orders which they intend to challenge without thereby losing their right of appeal. For example a litigant ordered to repay money to the Commonwealth is unlikely to be advised to seek a stay, because there would be no risk of the Commonwealth being unable to repay the money in the event of a successful appeal. The notion that the consequence of not applying for a stay and complying with an adverse order is the loss of the right to appeal is quite foreign to the way in which appellate litigation is conducted. That the right to apply for a stay and the right to appeal are not inconsistent is shown by the fact that they so often travel together. For example, an unsuccessful party who is ordered to pay money to an opponent he thinks will use it to pay heavy debts so as to make it unlikely he will be able to repay it if the appeal is successful, will both appeal and seek a stay. The second discretionary consideration relied on by the respondent is that the legal issues the Minister wishes to raise on an appeal are of academic interest. She relies on s 494C(7) of the Act which provides: If: (a) the Minister purports to give a document to a person in accordance with a method specified in section 494B ... but makes an error in doing so; and (b) the person nonetheless receives the document or a copy of it; then the person is taken to have received the document at the times mentioned in this section as if the Minister had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.
Case: Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 626
Outcome: considered
Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 626 the Minister refused to grant a temporary entry permit. Later the applicant asked that the refusal be reviewed in the light of additional material. That request was refused. The applicant sought judicial review of both refusals. The ground of review of present relevance concerned the second refusal, which was attacked on the ground that the decision maker erroneously concluded that he did not have power to reconsider his decision. French J considered whether the power to grant or refuse to grant an entry permit carried with it a power to reconsider an earlier exercise of the power. His Honour concluded it did not. He said at 444: While it may be accepted that a power to reconsider a decision made in exercise of a statutory discretion will have the advantage of convenience, it cannot always claim the virtue of necessity. And in the context of the Migration Act as it presently stands with specific provisions for review of decisions and the making of regulations relating thereto, I do not consider, in the absence of clear words, that it would be proper to imply such a power.
Case: SZBMF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1427 ; (2005) 147 FCR 485
Outcome: cited
recent decisions are to the same effect: SZBMF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1427 ; (2005) 147 FCR 485 ; Kim v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 64 ; SZJUA v Minister for Immigration and Cultural Affairs [2007] FCA 1184.
Case: SZJUA v Minister for Immigration and Cultural Affairs [2007] FCA 1184
Outcome: cited
recent decisions are to the same effect: SZBMF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1427 ; (2005) 147 FCR 485 ; Kim v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 64 ; SZJUA v Minister for Immigration and Cultural Affairs [2007] FCA 1184.
Case: Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172
Outcome: applied
Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 at [13] - [14] the Full Court said: Subsection 494C(4) does not purport to create a rebuttable presumption of fact. It provides that in certain circumstances, a person is to be "taken to have received the document ...". Nothing in the section suggests that this is merely a rebuttable presumption... Spender J, in Murphy v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 657 ; (2004) 135 FCR 550 at [69] observed: The person is "taken to have received the document", in the circumstances of this case, seven working days after the date of the document. In my view this provision manifests an intention that a person is taken to have received the document seven working days after the date of the document, without qualification. There is nothing to indicate that the effect of the subsection is to be read as if there was a proviso that the person was not taken to have received the document where the document had been returned undelivered to the sender within seven working days after the date of the document, or that the subsection operates in its terms only "until the contrary is proved". We agree. The sequence of statutory and regulatory provisions to which we have referred prescribes with precision the steps to be taken in notifying a visa applicant of the outcome of his or her application.
Case: Zhang v Minister for Immigration and Citizenship [2007] FCAFC 151 ; (2007) 161 FCR 419
Outcome: considered
Zhang v Minister for Immigration and Citizenship [2007] FCAFC 151 ; (2007) 161 FCR 419 the appellant relied on the second basis in H , which the Full Court described at [23] as an "ambitious claim". At [25] their Honours said it was unnecessary to express any view on the correctness or otherwise of the second basis in H and in particular "whether there can be two operative and effective notifications made". They were of the opinion that in the case before them two methods of notification were not utilised giving rise to inconsistent timetables. In my view the Full Court in H was not endorsing both alternative bases. Only one can be the correct approach. An assumption is part of each of them. I understand the Court to have said that on whichever of the two bases argued was the correct one, the application for review was within time. It was thus unnecessary to decide which was the true view. For the reasons I have given, the first basis is to be preferred. That would appear to have been the opinion of the Court in Zhang .
Case: Agar v Hyde [2000] HCA 41 ; (2000) 201 CLR 552
Outcome: considered
Agar v Hyde [2000] HCA 41 ; (2000) 201 CLR 552 at 575-576 [57] - [58] Gaudron, McHugh, Gummow and Hayne JJ held that the old test for summary disposal had been expressed in various ways but that all had described a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way. They said that a less demanding test should not be applied where a defendant sought to have service of proceedings overseas set aside. The fundamental reason why their Honours rejected the general law adoption of a more lenient test was because it was unclear as to what new criterion was to be applied. They said: 'Are proceedings to be terminated upon a prediction (on what would almost invariably be less evidence and argument than would be available to trial) of the "likely" or "probable" outcome of the proceeding? That cannot be so. It would be wrong to deny a plaintiff resort to the ordinary processes of a court on the basis of a prediction made at the outset of a proceeding if that prediction is to be made simply on a preponderance of probabilities. And if it is not to be enough to persuade the court that it is more probable than not that the case against a defendant will fail, and some higher test (less than that now applied in applications for summary judgment) is to be applied, how is that test to be described? The attachment of intensifying epithets, such as "very" or "highly", offers little useful guidance for those judicial officers who would have to apply the test and who would have to do so, often enough, in a busy practice list. Such a test would be unworkable.' And, more recently, in Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 ; (2006) 227 ALR 425 at 437 [46] , Gleeson CJ, Gummow, Hayne and Crennan JJ said that the statements by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129-130 ' ... should not be given canonical force'. They then referred with approval to the joint judgment in Agar v Hyde (2000) 201 CLR at 575-576 [57]. Gleeson CJ, Gummow, Hayne and Crennan JJ later said that the Court had an obligation owed to both sides to quell the controversy according to law (227 ALR at 441 [63]) and continued: 'The "right" of the plaintiff with a common law claim to institute an action is not at large. It is subject to the operation of the whole of the applicable procedural and substantive law administered by the court, whose processes are enlivened in the particular circumstances. This includes the principles respecting abuse of process.'
Case: Allstate Life Insurance Co v Australia &amp; New Zealand Banking Group Limited [1994] FCA 814
Outcome: followed
Allstate Life Insurance Co v Australia &amp; New Zealand Banking Group Limited [1994] FCA 814 at 18 (unreported, Beaumont J, 7 November 1994) Beaumont J followed Park v Allied Mortgage Corporation Ltd (1993) ATPR (Digest) 46-105 at 53,467 and 54,469; [1993] FCA 404 at 3-4 where Davies J said: 'In my opinion, a right to claim damages under ss. 82 and 87 of the Trade Practices Act 1974 (Cth) is, in general, a bare right of action which cannot be assigned. I am not speaking of an assignment such as may occur on the bankruptcy or death of a person or on the merger of a company into another entity. Absent such special circumstances, a right to claim under ss. 82 and 87 cannot, in my opinion, be assigned. Section 82 provides:- "(1) A person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part IV or V may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention." The section does not allow for the award of damages in respect of a loss which was not suffered by any party to the proceedings. Both the terms of the statutory provision and the principle as enunciated in cases such as Dawson v Great Northern &amp; City Railway Co. [1905] 1 KB 260 at 270-1, Defries v Milne [1913] 1 Ch 98 and Pulton v The Commonwealth [1952] HCA 70 ; (1953) 89 CLR 540 at 602, preclude Mrs Regan from suing for damages in respect of any loss suffered by Mr and Mrs Park. Mr and Mrs park have discontinued their claims and that is an end to them. The assignment has effect, however, insofar as it assigns to Mrs Regan all the entitlement of Mr and Mrs Park under the mortgage into which all the applicants had entered as mortgagees. Thus, if any ancillary relief under s. 87 depends upon the approval or request of the mortgagors, the remaining applicants now hold all interests in respect thereof.'
Case: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 ; (2006) 227 ALR 425
Outcome: cited
more recently, in Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 ; (2006) 227 ALR 425 at 437 [46] , Gleeson CJ, Gummow, Hayne and Crennan JJ said that the statements by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129-130 ' ... should not be given canonical force'. They then referred with approval to the joint judgment in Agar v Hyde (2000) 201 CLR at 575-576 [57]. Gleeson CJ, Gummow, Hayne and Crennan JJ later said that the Court had an obligation owed to both sides to quell the controversy according to law (227 ALR at 441 [63]) and continued: 'The "right" of the plaintiff with a common law claim to institute an action is not at large. It is subject to the operation of the whole of the applicable procedural and substantive law administered by the court, whose processes are enlivened in the particular circumstances. This includes the principles respecting abuse of process.'
Case: Bernstrom v National Australia Bank [2003] 1 Qd R 469
Outcome: followed
number of cases have looked at how s 31A of the Federal Court Act might work. GE Capital argued that the Court should engage in a predictive assessment as to whether the proceedings had no reasonable prospect of success. It relied upon the analogy with the similar wording of s 345 of the Legal Profession Act 2004 (NSW) (and their analogues) although it accepted that there were differences in the way that that legislation worked. However, the concept of a claim so lacking in merit or substance as to be not fairly arguable was suggested as being helpful ( Lemoto v Able Technical Pty Ltd [2005] NSWCA 153 ; (2005) 63 NSWLR 300 at 331 [132] per McColl JA). In addition, reliance was placed on Bernstrom v National Australia Bank [2003] 1 Qd R 469 at [41] that a party who seeks to resist a claim for summary judgment on rr 292 and 293 of the Uniform Civil Procedure Rules 1999 (Qld), which are similar to, but not identical to s 31A, should provide evidence of this basic material to support the arguability of its claim. I now turn to the claim for breach of contract. New Boston was correct in arguing that in an application under s 31A the Court should take the allegations in the disputed pleading at their highest ( Bernstrom v National Australia Bank Ltd [2003] 1 Qd R 469 at [39]). In that context it is possible to see an argument that an express representation may have been made as to the volume of business which GE Capital would provide to old Boston under the GE Capital contract. It is also possible that new Boston may be able to establish, as it alleges, that an effective assignment occurred of the rights which old Boston had under the GE Capital contract. However, the claim sought to be assigned is of a right to sue for unliquidated damages for breach of contract which new Boston claims to have acquired only because of the effect of the transaction in which it acquired old Boston's business. Old Boston is not a party to the proceedings. It does not exist. New Boston has made no application to amend, to reinstate it or join it. For the reasons given above, I do not consider there are any reasonable prospects of success of an argument for new Boston that an effective assignment of contractual rights can be proved. The claim in contract alleges that GE Capital was in breach of the GE Capital contract because 'the entire agreement was for [GE Capital] to provide [old Boston] with instructions in respect of 25% of defaulting customers per State in Australia to effect the field agent's services based on representations made by [GE Capital]'.
Case: Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 218 CLR 592
Outcome: cited
the High Court has not specifically determined this issue, I am of opinion that it is not reasonably arguable, having regard to the decisions to which I have referred and the authorities on which they are based, that new Boston could succeed in the enforcement of any assignment under the sale agreement of causes of action under s 82 of the Act to recover loss or damage suffered by old Boston. Only a person who suffers loss or damage by the conduct done in contravention of a relevant provision of the Act can recover under s 82. As Gleeson CJ, Hayne and Heydon JJ said in Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 218 CLR 592 at 604 [37] , in a case where monetary relief is sought by a plaintiff who alleges that a particular misrepresentation was made to an identified person, of whom the plaintiff was one: 'The plaintiff must establish a causal link between the impugned conduct and the loss that is claimed. That depends on analysing the conduct of the defendant in relation to that plaintiff alone.' Of course, here, new Boston does not claim a misrepresentation was made to it, but rather to old Boston. However, I do not consider that in the circumstances of the pleading in the present case, any material difference can be established so as to entitle new Boston, which did not exist at the time that the alleged representations were made, to assert some freestanding cause of action under the Act quite divorced from anything to do with old Boston.
Case: Chapman v Luminis Pty Ltd (No 4) [2001] FCA 1106 ; (2001) 123 FCR 62
Outcome: followed
J agreed saying that in his view the contrary was not reasonably arguable. Lindgren J followed both these decisions in National Mutual Property Services (Australia) v CitiBank Ltd (1995) 132 ALR 514 at 539, as did von Doussa J in Chapman v Luminis (No 4) [2001] FCA 1106 ; (2001) 123 FCR 62 at 116-117 [204] - [207] . And, in Pritchard v Racecage Pty Ltd (1997) 72 FCR 203 at 218F-G Branson J (with whom Spender and Olney JJ agreed) applied the reasoning of Davies and Lindgren JJ to hold that the estate of a deceased person could not satisfy the statutory requirement of s 82 of being a 'person' who suffered loss or damage. Her Honour also held that the estate could not satisfy the statutory requirements of s 87 of the Act of being 'a person who is a party to the proceeding' or 'a person who has suffered, or is likely to suffer, loss or damage'.