mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (No 4) (1986) 6 NSWLR 674
Outcome: applied
respondent's submissions may be summarised as follows: (a) There is no principle of law to the effect that a judge who expresses views in deciding an interlocutory application about matters of impression should not hear the same proceedings on a final basis and that the principles concerning disqualification on the ground of apprehended bias have no application in the present circumstances; (b) Judicial officers are under a duty to hear and determine matters allocated to them ( Re JRL; Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342 at 352); (c) Judges should not too readily accede to applications for disqualification, otherwise litigants may succeed in effectively influencing the choice of the judge in their own cause by sidelining a judge who the particular litigant may see as likely not to determine the case favourably to them; (d) Judges should resist being driven from their courts by the conduct or assertion of parties, including assertions of actual or imputed bias (see Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (No 4) (1986) 6 NSWLR 674 at 689); (e) The pre-judgment principle is that a judge ought not hear a case if, in all the circumstances, the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the questions involved in the proceedings (see Livesey v New South Wales Bar Association [1983] HCA 17 ; (1983) 151 CLR 288 at 293 294; Re Watson; Ex parte Armstrong [1976] HCA 39 ; (1976) 136 CLR 248 at 258 263; Johnson v Johnson [2000] HCA 48 ; (2000) 201 CLR 488 at [11] [14] (pp 492 494), at [29] [54] (pp 498 509) and at [71] [81] (pp 514 518). (f) The attributes of the fictitious bystander discussed in the cases were recently articulated by a Full Court of this Court in Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2009] FCAFC 8 at [75] [82] and [85] [88]; (g) There is no suggestion of actual bias in the present case; (h) The evaluation undertaken by me of the applicant's trade mark and the Titan chair and the observations which I made concerning the class of likely purchasers of the parties' chairs were not matters which could attract the pre-judgment principle; (i) It was clear from the principal judgment that the views which I expressed were preliminary and taken only so far as the relevant principles concerning the requirements for the ground of interlocutory injunctions required; and (j) In all the circumstances, the reasonable bystander would not apprehend bias in the form of pre-judgment on the issues to be determined at the final hearing.
Case: Re Watson; Ex parte Armstrong [1976] HCA 39 ; (1976) 136 CLR 248
Outcome: applied
respondent's submissions may be summarised as follows: (a) There is no principle of law to the effect that a judge who expresses views in deciding an interlocutory application about matters of impression should not hear the same proceedings on a final basis and that the principles concerning disqualification on the ground of apprehended bias have no application in the present circumstances; (b) Judicial officers are under a duty to hear and determine matters allocated to them ( Re JRL; Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342 at 352); (c) Judges should not too readily accede to applications for disqualification, otherwise litigants may succeed in effectively influencing the choice of the judge in their own cause by sidelining a judge who the particular litigant may see as likely not to determine the case favourably to them; (d) Judges should resist being driven from their courts by the conduct or assertion of parties, including assertions of actual or imputed bias (see Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (No 4) (1986) 6 NSWLR 674 at 689); (e) The pre-judgment principle is that a judge ought not hear a case if, in all the circumstances, the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the questions involved in the proceedings (see Livesey v New South Wales Bar Association [1983] HCA 17 ; (1983) 151 CLR 288 at 293 294; Re Watson; Ex parte Armstrong [1976] HCA 39 ; (1976) 136 CLR 248 at 258 263; Johnson v Johnson [2000] HCA 48 ; (2000) 201 CLR 488 at [11] [14] (pp 492 494), at [29] [54] (pp 498 509) and at [71] [81] (pp 514 518). (f) The attributes of the fictitious bystander discussed in the cases were recently articulated by a Full Court of this Court in Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2009] FCAFC 8 at [75] [82] and [85] [88]; (g) There is no suggestion of actual bias in the present case; (h) The evaluation undertaken by me of the applicant's trade mark and the Titan chair and the observations which I made concerning the class of likely purchasers of the parties' chairs were not matters which could attract the pre-judgment principle; (i) It was clear from the principal judgment that the views which I expressed were preliminary and taken only so far as the relevant principles concerning the requirements for the ground of interlocutory injunctions required; and (j) In all the circumstances, the reasonable bystander would not apprehend bias in the form of pre-judgment on the issues to be determined at the final hearing.
Case: Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510
Outcome: cited
The first respondent contended in written submissions that it is well established that the Tribunal is not required to make the appellant's case or require the appellant to remedy a deficiency in his or her case: see Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510, Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1522 and Naidu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1692 ; (2004) 140 FCR 284. Furthermore, the Tribunal is not required to put to the appellant its disbelief in her claims: see SZAFJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 291 at [31] - [32] , WABY v Refugee Review Tribunal [2005] FCA 209 at [69] and SZATB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 274 at [39] - [40] . The first respondent submitted that the Tribunal is not required to investigate for itself whether the appellant's claims were true and is not required to ask the appellant to clarify any issues that the Tribunal finds to be vague, confused and contradictory. The Tribunal assessed the appellant's claims and set out its reasons why it did not accept them in the first respondent's submission, there can be no suggestion that the Tribunal is required to act otherwise. Additionally, the first respondent submitted that a finding on a credibility issue that was open to the Tribunal on the material before it does not give rise to an error of law: see Mashyekhi v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 321 ; (2000) 97 FCR 381 and W148 v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 185 ALR 703.
Case: Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1522
Outcome: cited
The first respondent contended in written submissions that it is well established that the Tribunal is not required to make the appellant's case or require the appellant to remedy a deficiency in his or her case: see Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510, Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1522 and Naidu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1692 ; (2004) 140 FCR 284. Furthermore, the Tribunal is not required to put to the appellant its disbelief in her claims: see SZAFJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 291 at [31] - [32] , WABY v Refugee Review Tribunal [2005] FCA 209 at [69] and SZATB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 274 at [39] - [40] . The first respondent submitted that the Tribunal is not required to investigate for itself whether the appellant's claims were true and is not required to ask the appellant to clarify any issues that the Tribunal finds to be vague, confused and contradictory. The Tribunal assessed the appellant's claims and set out its reasons why it did not accept them in the first respondent's submission, there can be no suggestion that the Tribunal is required to act otherwise. Additionally, the first respondent submitted that a finding on a credibility issue that was open to the Tribunal on the material before it does not give rise to an error of law: see Mashyekhi v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 321 ; (2000) 97 FCR 381 and W148 v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 185 ALR 703.
Case: Naidu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1692 ; (2004) 140 FCR 284
Outcome: cited
The first respondent contended in written submissions that it is well established that the Tribunal is not required to make the appellant's case or require the appellant to remedy a deficiency in his or her case: see Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510, Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1522 and Naidu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1692 ; (2004) 140 FCR 284. Furthermore, the Tribunal is not required to put to the appellant its disbelief in her claims: see SZAFJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 291 at [31] - [32] , WABY v Refugee Review Tribunal [2005] FCA 209 at [69] and SZATB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 274 at [39] - [40] . The first respondent submitted that the Tribunal is not required to investigate for itself whether the appellant's claims were true and is not required to ask the appellant to clarify any issues that the Tribunal finds to be vague, confused and contradictory. The Tribunal assessed the appellant's claims and set out its reasons why it did not accept them in the first respondent's submission, there can be no suggestion that the Tribunal is required to act otherwise. Additionally, the first respondent submitted that a finding on a credibility issue that was open to the Tribunal on the material before it does not give rise to an error of law: see Mashyekhi v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 321 ; (2000) 97 FCR 381 and W148 v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 185 ALR 703.
Case: SZAFJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 291
Outcome: cited
The first respondent contended in written submissions that it is well established that the Tribunal is not required to make the appellant's case or require the appellant to remedy a deficiency in his or her case: see Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510, Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1522 and Naidu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1692 ; (2004) 140 FCR 284. Furthermore, the Tribunal is not required to put to the appellant its disbelief in her claims: see SZAFJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 291 at [31] - [32] , WABY v Refugee Review Tribunal [2005] FCA 209 at [69] and SZATB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 274 at [39] - [40] . The first respondent submitted that the Tribunal is not required to investigate for itself whether the appellant's claims were true and is not required to ask the appellant to clarify any issues that the Tribunal finds to be vague, confused and contradictory. The Tribunal assessed the appellant's claims and set out its reasons why it did not accept them in the first respondent's submission, there can be no suggestion that the Tribunal is required to act otherwise. Additionally, the first respondent submitted that a finding on a credibility issue that was open to the Tribunal on the material before it does not give rise to an error of law: see Mashyekhi v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 321 ; (2000) 97 FCR 381 and W148 v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 185 ALR 703.
Case: WABY v Refugee Review Tribunal [2005] FCA 209
Outcome: cited
The first respondent contended in written submissions that it is well established that the Tribunal is not required to make the appellant's case or require the appellant to remedy a deficiency in his or her case: see Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510, Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1522 and Naidu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1692 ; (2004) 140 FCR 284. Furthermore, the Tribunal is not required to put to the appellant its disbelief in her claims: see SZAFJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 291 at [31] - [32] , WABY v Refugee Review Tribunal [2005] FCA 209 at [69] and SZATB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 274 at [39] - [40] . The first respondent submitted that the Tribunal is not required to investigate for itself whether the appellant's claims were true and is not required to ask the appellant to clarify any issues that the Tribunal finds to be vague, confused and contradictory. The Tribunal assessed the appellant's claims and set out its reasons why it did not accept them in the first respondent's submission, there can be no suggestion that the Tribunal is required to act otherwise. Additionally, the first respondent submitted that a finding on a credibility issue that was open to the Tribunal on the material before it does not give rise to an error of law: see Mashyekhi v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 321 ; (2000) 97 FCR 381 and W148 v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 185 ALR 703.
Case: SZATB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 274
Outcome: cited
The first respondent contended in written submissions that it is well established that the Tribunal is not required to make the appellant's case or require the appellant to remedy a deficiency in his or her case: see Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510, Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1522 and Naidu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1692 ; (2004) 140 FCR 284. Furthermore, the Tribunal is not required to put to the appellant its disbelief in her claims: see SZAFJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 291 at [31] - [32] , WABY v Refugee Review Tribunal [2005] FCA 209 at [69] and SZATB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 274 at [39] - [40] . The first respondent submitted that the Tribunal is not required to investigate for itself whether the appellant's claims were true and is not required to ask the appellant to clarify any issues that the Tribunal finds to be vague, confused and contradictory. The Tribunal assessed the appellant's claims and set out its reasons why it did not accept them in the first respondent's submission, there can be no suggestion that the Tribunal is required to act otherwise. Additionally, the first respondent submitted that a finding on a credibility issue that was open to the Tribunal on the material before it does not give rise to an error of law: see Mashyekhi v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 321 ; (2000) 97 FCR 381 and W148 v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 185 ALR 703.
Case: Mashyekhi v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 321 ; (2000) 97 FCR 381
Outcome: cited
The first respondent contended in written submissions that it is well established that the Tribunal is not required to make the appellant's case or require the appellant to remedy a deficiency in his or her case: see Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510, Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1522 and Naidu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1692 ; (2004) 140 FCR 284. Furthermore, the Tribunal is not required to put to the appellant its disbelief in her claims: see SZAFJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 291 at [31] - [32] , WABY v Refugee Review Tribunal [2005] FCA 209 at [69] and SZATB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 274 at [39] - [40] . The first respondent submitted that the Tribunal is not required to investigate for itself whether the appellant's claims were true and is not required to ask the appellant to clarify any issues that the Tribunal finds to be vague, confused and contradictory. The Tribunal assessed the appellant's claims and set out its reasons why it did not accept them in the first respondent's submission, there can be no suggestion that the Tribunal is required to act otherwise. Additionally, the first respondent submitted that a finding on a credibility issue that was open to the Tribunal on the material before it does not give rise to an error of law: see Mashyekhi v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 321 ; (2000) 97 FCR 381 and W148 v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 185 ALR 703.
Case: W148 v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 185 ALR 703
Outcome: cited
The first respondent contended in written submissions that it is well established that the Tribunal is not required to make the appellant's case or require the appellant to remedy a deficiency in his or her case: see Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510, Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1522 and Naidu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1692 ; (2004) 140 FCR 284. Furthermore, the Tribunal is not required to put to the appellant its disbelief in her claims: see SZAFJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 291 at [31] - [32] , WABY v Refugee Review Tribunal [2005] FCA 209 at [69] and SZATB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 274 at [39] - [40] . The first respondent submitted that the Tribunal is not required to investigate for itself whether the appellant's claims were true and is not required to ask the appellant to clarify any issues that the Tribunal finds to be vague, confused and contradictory. The Tribunal assessed the appellant's claims and set out its reasons why it did not accept them in the first respondent's submission, there can be no suggestion that the Tribunal is required to act otherwise. Additionally, the first respondent submitted that a finding on a credibility issue that was open to the Tribunal on the material before it does not give rise to an error of law: see Mashyekhi v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 321 ; (2000) 97 FCR 381 and W148 v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 185 ALR 703.
Case: VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178
Outcome: cited
In oral submissions, counsel for the respondents asserted that this Court is bound to follow that decision unless it can be shown that it was 'plainly wrong' and the appellant has not put anything to the Court to indicate that the decision of Marshall J was plainly wrong: see VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [16] . Additionally, counsel submitted that the statutory context of s 424A(3)(b) supports Marshall J's interpretation. Counsel referred me to Pt IV of Sch 1 of the Migration Regulations 1994 (Cth) ("the Regulations ") . Regulation 1401(3)(c) provides that '[a]pplication by a person claiming to be a member of the family unit of a person who is an applicant...may be made at the same time and place as, and combined with, the application by that person.' Counsel also sought to rely on s 48A(2)(ab) of the Act which defines 'application for a protection visa' for the purposes of the section as including 'an application for a visa, a criterion for which is that the applicant is a non-citizen in Australia who is the spouse or a dependant of a non-citizen in Australia (i) to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol and (ii) who holds a protection visa.'
Case: Peniche v Minister for Immigration and Multicultural Affairs [1999] FCA 709
Outcome: cited
Counsel also referred to two additional cases that address the status of dependant applicants. In Peniche v Minister for Immigration and Multicultural Affairs [1999] FCA 709 , Weinberg J treated dependant family members as applicants in their own right for the purposes of s 425 of the Act, the section which gives the applicants an opportunity to give evidence to the Tribunal. However, in VBAM v Minister for Immigration and Multicultural Affairs [2003] FCA 504 , Gray J interpreted s 424A(3)(b) widely so as to include evidence given by witnesses called on behalf of the applicant to the Tribunal. As counsel for the respondents noted, the proposition that the exception in s 424A(3)(b) extends to all evidence given on behalf of the appellant, including that given by other unrelated witnesses, goes further than MZWMQ , and beyond the issue raised by this case.
Case: VBAM v Minister for Immigration and Multicultural Affairs [2003] FCA 504
Outcome: cited
Counsel also referred to two additional cases that address the status of dependant applicants. In Peniche v Minister for Immigration and Multicultural Affairs [1999] FCA 709 , Weinberg J treated dependant family members as applicants in their own right for the purposes of s 425 of the Act, the section which gives the applicants an opportunity to give evidence to the Tribunal. However, in VBAM v Minister for Immigration and Multicultural Affairs [2003] FCA 504 , Gray J interpreted s 424A(3)(b) widely so as to include evidence given by witnesses called on behalf of the applicant to the Tribunal. As counsel for the respondents noted, the proposition that the exception in s 424A(3)(b) extends to all evidence given on behalf of the appellant, including that given by other unrelated witnesses, goes further than MZWMQ , and beyond the issue raised by this case.