mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: NACU v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 1444
Outcome: cited
In NACU v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 1444 the appellant was the wife of the appellant in NACT . In the husband's case an application for special leave to appeal to the High Court had taken the point that the application should have been heard by a Full Court. In NACU Hill J at [8] expressed "some misgivings" about jurisdiction, but apparently on the basis that following a discontinuance the proceedings were at an end and there is nothing that could go before a Full Court. If there was power to set aside a discontinuance, to his Honour it was "not immediately apparent how the application (was) one that really resides in the Full Court". If it did, his Honour did not think that s 25 would permit the Full Court jurisdiction to be exercised by a single judge. In any event, his Honour decided to follow Jacobson J, partly because the husband was seeking special leave from the High Court and that the two cases "should be kept together" (at [10]). 16 As identified by Hill J, there are really two questions: &#8226; Once a notice of discontinuance of an appeal has been filed and served, does the Court have any jurisdiction at all? &#8226; If yes, can that jurisdiction be exercised by a single judge?
Case: Goodwin v Southern Tablelands Finance Co Pty Ltd (1968) 42 ALJRn 309
Outcome: cited
As to the first question, there is strong authority to the effect that non-compliance with an order that an appeal be dismissed in default of some procedural step being taken by the appellant is terminal; in the event of non-compliance the appeal cannot be revived: Goodwin v Southern Tablelands Finance Co Pty Ltd (1968) 42 ALJR 309n, Bailey v Marinoff [1971] HCA 49 ; (1971) 125 CLR 529; see the discussion by Wilson J, with whom Brennan, Deane and Dawson JJ agreed, in FAI Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13 ; (1988) 165 CLR 268 at 278-286. However, as FAI Insurance shows, particular rules of court may produce a different result.
Case: Bailey v Marinoff [1971] HCA 49 ; (1971) 125 CLR 529
Outcome: cited
As to the first question, there is strong authority to the effect that non-compliance with an order that an appeal be dismissed in default of some procedural step being taken by the appellant is terminal; in the event of non-compliance the appeal cannot be revived: Goodwin v Southern Tablelands Finance Co Pty Ltd (1968) 42 ALJR 309n, Bailey v Marinoff [1971] HCA 49 ; (1971) 125 CLR 529; see the discussion by Wilson J, with whom Brennan, Deane and Dawson JJ agreed, in FAI Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13 ; (1988) 165 CLR 268 at 278-286. However, as FAI Insurance shows, particular rules of court may produce a different result.
Case: FAI Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13 ; (1988) 165 CLR 268 at 278-286
Outcome: cited
As to the first question, there is strong authority to the effect that non-compliance with an order that an appeal be dismissed in default of some procedural step being taken by the appellant is terminal; in the event of non-compliance the appeal cannot be revived: Goodwin v Southern Tablelands Finance Co Pty Ltd (1968) 42 ALJR 309n, Bailey v Marinoff [1971] HCA 49 ; (1971) 125 CLR 529; see the discussion by Wilson J, with whom Brennan, Deane and Dawson JJ agreed, in FAI Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13 ; (1988) 165 CLR 268 at 278-286. However, as FAI Insurance shows, particular rules of court may produce a different result.
Case: Mpwetyerre Aboriginal Corporation v Alice Springs Town Council (1996) 132 FLR 1
Outcome: cited
general history of the town camps is set out in the judgment of Kearney J in Mpwetyerre Aboriginal Corporation v Alice Springs Town Council (1996) 132 FLR 1 at 4-5, and by Angel J in Tangentyere Council Inc v Commissioner of Taxes (NT) (1990) 99 FLR 363 at 366-70. It is not necessary to espouse fully the accuracy of those descriptions. The first and second respondents do not accept that they are fully accurate. It is sufficient to accept that the applicants in each proceeding see their tenure in the Alice Springs town camps as of great significance, and as the product of the claim for land rights by Aboriginal people.
Case: Tangentyere Council Inc v Commissioner of Taxes (NT) (1990) 99 FLR 363
Outcome: cited
general history of the town camps is set out in the judgment of Kearney J in Mpwetyerre Aboriginal Corporation v Alice Springs Town Council (1996) 132 FLR 1 at 4-5, and by Angel J in Tangentyere Council Inc v Commissioner of Taxes (NT) (1990) 99 FLR 363 at 366-70. It is not necessary to espouse fully the accuracy of those descriptions. The first and second respondents do not accept that they are fully accurate. It is sufficient to accept that the applicants in each proceeding see their tenure in the Alice Springs town camps as of great significance, and as the product of the claim for land rights by Aboriginal people.
Case: Shaw v Minister for Families, Housing, Community Services and Indigenous Affairs [2009] FCA 844
Outcome: cited
Honour granted the interlocutory relief on 6 August 2009, pending the hearing of the trial, effectively preserving the status quo until this matter could be heard: see Shaw v Minister for Families, Housing, Community Services and Indigenous Affairs [2009] FCA 844. Whether the proceedings should continue as representative proceedings Both proceedings were commenced as representative proceedings pursuant to the provisions of Part IVA of the FCA Act. The applicant in the Section 47 proceeding is Ms Shaw. The group members were defined in the amended application at paragraph 2 as the persons who have been granted rights of occupancy of houses in the Alice Springs town camps under agreements entered into by them with the Housing Associations, which in turn have been granted Special Purposes Leases or Crown Leases in perpetuity over the town camps land.
Case: South Australia v Slipper [2004] FCAFC 164 ; (2004) 136 FCR 259
Outcome: cited
correct starting point is the NTNER Act itself. Whilst the NTNER Act and, broadly speaking, what it (and other legislative provisions) authorised as part of the Intervention in response to what is described in the long title to the NTNER Act as a "national emergency", is a matter of legislative policy, it does not routinely follow that each and every administrative decision made under the NTNER Act is thereby immune from the obligations of according procedural fairness to those whose rights or interests may be adversely affected by such decisions: see eg South Australia v Slipper [2004] FCAFC 164 ; (2004) 136 FCR 259 at 280 per Finn J, with whom Branson and Finkelstein JJ agreed. The Minister's contention was not as broad or as coarse as that.
Case: Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550
Outcome: cited
starting point for the exercise of a power such as that contained in s 47, when its exercise is likely to affect the rights and interests of a particular group of persons, is that its exercise is to be conditioned on the observance of the principles of procedural fairness: unless they are excluded by plain words or necessary intendment: see Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 per Mason J at 584; and per Brennan J at 620; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 per McHugh J at 93 [126]. It is apparent that the legislature was aware of the procedures under the Lands Acquisition Act 1989 (Cth) requiring notice of a decision proposing to acquire land, and requiring then an opportunity to be heard, to be given to the person whose land is proposed to be acquired. Such procedures have been expressly eschewed. So too, by reference to the written or unwritten law referred to in s 50(1) , have the procedural fairness requirements which were given effect to in cases such as Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596 and Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 been considered by the legislature. The wording of the provisions in Subdivisions A, B and C of Division 2, and Division 3 of Part 4 of the NTNER Act indicate that the legislature was aware that s 47 may lead to the compulsory acquisition of the Alice Springs town camps, and was aware by s 48 that necessarily rights, titles and interests of persons such as the residents may thereby be lost. Nevertheless, s 47 requires only notice to the Northern Territory before it takes effect. That cannot have been by oversight. The particular interests of persons such as the residents may be catered for, in the Minister's discretion, by s 48. But, even then, s 49 shows that such preserved rights may be terminated on effectively no notice.
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57
Outcome: cited
starting point for the exercise of a power such as that contained in s 47, when its exercise is likely to affect the rights and interests of a particular group of persons, is that its exercise is to be conditioned on the observance of the principles of procedural fairness: unless they are excluded by plain words or necessary intendment: see Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 per Mason J at 584; and per Brennan J at 620; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 per McHugh J at 93 [126].
Case: Salemi v MacKellar (No 2) [1977] HCA 26 ; (1997) 137 CLR 396
Outcome: cited
it is necessary to consider the construction of the NTNER Act, including s 47, to determine whether the exercise of the power under s 47 is one which is attended by the obligation to accord procedural fairness to Ms Shaw (and the other residents): see Salemi v MacKellar (No 2) [1977] HCA 26 ; (1997) 137 CLR 396 at 400-1 per Barwick CJ; at 419-20 per Gibbs J; and at 451 per Jacobs J. There are some general features of the NTNER Act which provide the context for the particular issue, as well as the general context in which it came to be enacted. Its object under s 5 is to improve the well-being of certain communities in the Northern Territory. It specifies by s 4 and Schedule 1 the "prescribed areas" to which it applies; they expressly include the Alice Springs town camps: cl 69 of Part 4 of Schedule 1. It is therefore clear that the NTNER Act reflects the legislative view that improving the well-being of the residents of the town camps, including by improving their living conditions, is a significant element of the response to the "national emergency". The events leading to these proceedings, set out above, show that the Minister had the desire to bring the accommodation and other infrastructure and services in the town camps to the level available to all Australians. Division 2 of Part 4 of the NTNER Act deals specifically with the acquisition of rights, titles and interests relating to the town camps. Subdivisions A and B deal with resumption and forfeiture of leases or land under the SPL Act and the CL Act respectively. In each instance, the Minister is given the powers of the Northern Territory Minister or Administrator in relation to resumption and forfeiture of such leases or land.
Case: Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6 ; (1999) 46 NSWLR 78
Outcome: cited
the Minister points out, that process contrasts sharply with the process specified for the compulsory acquisition of land under the Lands Acquisition Act 1989 (Cth). Under that process, persons whose interests are affected are given an opportunity to be heard before the decision to acquire the land is finally made. Indeed, section 50(2) of the NTNER Act provides, inter alia, that ss 47 and 49 have effect despite anything contained in the Lands Acquistion Act 1989 (Cth). Section 50(1) more generally provides, inter alia, that ss 47 and 49 have effect despite any other law of the Commonwealth or of the Northern Territory, whether written or unwritten. The express reference in s 50(1) to "written or unwritten" laws is, in my view, an expression of the intention that the provisions in (relevantly) Division 2 of Part 4 of the NTNER Act, including s 47, are not to be taken to carry within them the rules of procedural fairness in the face of the meaning of, for example, s 47 as construed in its terms and in its statutory content. Whilst s 50 does not, in express terms, exclude the obligation to give procedural fairness when a decision under s 47 is contemplated, in conjunction with the other provisions to which I have referred that is, I think, the necessary intention of the legislature. See also Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6 ; (1999) 46 NSWLR 78 per Spigelman CJ at 91 [50]. In my judgment, s 47 in its terms and in its context demonstrates an intention that the rules of procedural fairness (relevantly here at least reasonable notice of a decision proposed to be made under s 47 and an opportunity to be heard before the decision is made) be excluded.
Case: Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596
Outcome: cited
is apparent that the legislature was aware of the procedures under the Lands Acquisition Act 1989 (Cth) requiring notice of a decision proposing to acquire land, and requiring then an opportunity to be heard, to be given to the person whose land is proposed to be acquired. Such procedures have been expressly eschewed. So too, by reference to the written or unwritten law referred to in s 50(1) , have the procedural fairness requirements which were given effect to in cases such as Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596 and Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 been considered by the legislature. The wording of the provisions in Subdivisions A, B and C of Division 2, and Division 3 of Part 4 of the NTNER Act indicate that the legislature was aware that s 47 may lead to the compulsory acquisition of the Alice Springs town camps, and was aware by s 48 that necessarily rights, titles and interests of persons such as the residents may thereby be lost. Nevertheless, s 47 requires only notice to the Northern Territory before it takes effect. That cannot have been by oversight. The particular interests of persons such as the residents may be catered for, in the Minister's discretion, by s 48. But, even then, s 49 shows that such preserved rights may be terminated on effectively no notice.
Case: Jarratt v Commissioner of Police for New South Wales [2005] HCA 50 ; (2005) 224 CLR 44
Outcome: cited
Jarratt v Commissioner of Police for New South Wales [2005] HCA 50 ; (2005) 224 CLR 44 , Gleeson CJ at 56 [25] referred to the "very breadth of the statutory power" as an argument in favour of inferring the intention to preserve procedural fairness in the making of the decision then under challenge, under s 51 of the Police Service Act 1990 (NSW). In the case of s 47 of the NTNER Act, however, I think there are clear words indicating a legislative intention necessarily to exclude such processes.
Case: Gerhardy v Brown [1985] HCA 11 ; (1985) 159 CLR 70
Outcome: followed
Shaw also contended that s 47 of the NTNER Act should be read as requiring procedural fairness to be given to the residents, including Ms Shaw, before a decision is made because s 132(1) declares the provisions of the NTNER Act and actions taken under it for the purposes of those provisions as "special measures" for the purposes of the Racial Discrimination Act 1975 (Cth). As explained in Gerhardy v Brown (1985) 159 CLR 70, s 8(1) of that Act has the consequence that other provisions of that Act (in particular, those that prohibit racial discrimination in various forms) do not apply to "special measures" as described in Art 1 paragraph 4 of the International Convention on the Elimination of All Forms of Racial Discrimination (defined in s 3 of that Act). Relevantly, special measures are ones "taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups ... as may be necessary in order to ensure such groups ... equal enjoyment" of human rights and fundamental freedoms. It was argued that Indigenous wishes about their lands and their participation in such decision-making as may occur under s 47 is of great importance, and so s 132 supports the preservation of procedural fairness when such a decision is to be made. I do not think that s 132 supports the contention in that way. It is a legislative confirmation that the NTNER Act, in its terms as properly construed, and acts which it authorises, will not breach the Racial Discrimination Act 1975 (Cth) because what is authorised by and under the NTNER Act are "special measures". In other words, I consider s 132 is a legislative declaration that the NTNER Act, and the conduct it authorises, has each of the characteristics described by Brennan J in Gerhardy v Brown 159 CLR at 133. In respect of the town camps, that view is also evidenced also from the Second Reading Speech of the Northern Territory National Emergency Response Bill 2007 (Hansard, House of Representatives, 7 August 2007, pages 26-7). Further, and more fundamentally, s 132(2) of the NTNER Act specifically excludes the operation of Part II of the Racial Discrimination Act 1975 (Cth). Section 132(2) provides: The provisions of this Act, and any acts done under or for the purposes of those provisions, are excluded from the operation of Part II of the Racial Discrimination Act 1975 (Cth). In my view, the combination of s 132(1) and (2) evinces a clear intention on the part of the legislature to ensure that the NTNER Act and acts done in accordance with that Act, do not contravene the Racial Discrimination Act 1975 (Cth). Did the Minister give procedural fairness to the residents in the circumstances? My conclusion on the first issue means that it is not necessary to determine this issue. However, as the evidence on this aspect of the case was quite extensive, it is appropriate at least to record my findings on what the Minister and her officers did do in relation to Ms Shaw and the residents and to express my views about it.
Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152
Outcome: cited
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 the High Court (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) at 160-1 [26] said that: It has long been established that the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires. It is also clear that the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case. See also Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at [20] , [25].
Case: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88
Outcome: cited
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 the High Court (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) at 160-1 [26] said that: It has long been established that the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires. It is also clear that the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case. See also Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at [20] , [25].
Case: Rolled Steel Products (Holdings) Ltd v British Steel Corporation [1986] 1 Ch 246
Outcome: cited
my view, there are two steps required to address the primary proposition: (1) determining what is authorised by the Constitutions or Rule Books of the Housing Associations; and (2) determining whether the proposed conduct of perfecting the grant of the proposed subleases is, in the circumstances, within the scope of that which is authorised or required. Another way of describing those steps might be to ask whether the grant of the proposed subleases is beyond the express or implied power of the Housing Associations under their Constitutions and Rule Books, whatever organ of the Housing Associations might have made the decision to do so, and secondly whether their grant, although within the express or implied power of the Housing Association under their Constitutions and Rule Books, was not within the powers of the Management Committees or the directors to undertake. In Rolled Steel Products (Holdings) Ltd v British Steel Corporation [1986] 1 Ch 246 , Browne-Wilkinson CJ at 302-5 described the distinction as between ultra vires in the "narrow sense" and ultra vires in the "wider sense". His Lordship at 303 noted that Cotman v Brougham [1918] AC 514 recognised that "the objects of a company and the powers conferred on a company to carry out those objects are two different things" (at 303) and remarked at 304: The critical distinction is, therefore, between acts done in excess of the capacity of the company on the one hand and acts done in excess or abuse of the powers of the company on the other. Mason CJ in Northside Developments Pty Ltd v Registrar-General [1990] HCA 32 ; (1990) 170 CLR 146 at 162-3 referred with apparent approval to that distinction.
Case: Cotman v Brougham [1918] AC 514
Outcome: cited
my view, there are two steps required to address the primary proposition: (1) determining what is authorised by the Constitutions or Rule Books of the Housing Associations; and (2) determining whether the proposed conduct of perfecting the grant of the proposed subleases is, in the circumstances, within the scope of that which is authorised or required. Another way of describing those steps might be to ask whether the grant of the proposed subleases is beyond the express or implied power of the Housing Associations under their Constitutions and Rule Books, whatever organ of the Housing Associations might have made the decision to do so, and secondly whether their grant, although within the express or implied power of the Housing Association under their Constitutions and Rule Books, was not within the powers of the Management Committees or the directors to undertake. In Rolled Steel Products (Holdings) Ltd v British Steel Corporation [1986] 1 Ch 246 , Browne-Wilkinson CJ at 302-5 described the distinction as between ultra vires in the "narrow sense" and ultra vires in the "wider sense". His Lordship at 303 noted that Cotman v Brougham [1918] AC 514 recognised that "the objects of a company and the powers conferred on a company to carry out those objects are two different things" (at 303) and remarked at 304: The critical distinction is, therefore, between acts done in excess of the capacity of the company on the one hand and acts done in excess or abuse of the powers of the company on the other. Mason CJ in Northside Developments Pty Ltd v Registrar-General [1990] HCA 32 ; (1990) 170 CLR 146 at 162-3 referred with apparent approval to that distinction.