mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: White Constructions (ACT) Pty Ltd (in liq) v White (2004) 49 ACSR 220
Outcome: cited
In Iso Lilodw' Aliphumeleli Pty Ltd (in liq) v Commissioner of Taxation [2002] NSWSC 644 , Davies AJ, though he accepted Palmer J's first, second and third propositions, said at [14]: "I do not cite principles (iv), (v) and (vi) as enunciated by his Honour ... as I consider that, as enunciated, the principles may imply a legality or inflexibility which is inconsistent with the point that the ultimate issue is a question of fact." In White Constructions (ACT) Pty Ltd (in liq) v White (2004) 49 ACSR 220, McDougall J said at [291]-[293]: "I do not think that Palmer J, in the fourth, fifth and sixth propositions that he stated, was seeking to lay down exhaustively the circumstances in which indulgences that creditors may allow will be taken into account, or the manner in which such indulgences will be taken into account. It is certainly possible to read the fifth proposition as being expressed in prescriptive terms; but even there, I think, his Honour was stating, in effect, the basis upon which the courts have generally assessed the significance of indulgences that were shown to have been granted. If, contrary to my understanding, his Honour were intending, in the fourth, fifth and sixth propositions, to state exhaustively the circumstances in which indulgences will be considered relevant, and the weight that will be attributed to them, then I would share the reservations expressed by Davies AJ. But I do not so read what Palmer J said. Of course, as Palmer J pointed out at NSWLR 220-1; ALR 120-1; ACSR 312-13, the significance of indulgences granted by creditors will vary according to whether the question for consideration is 'actual' insolvency or 'reasonable grounds to suspect' insolvency. The case before his Honour fell into the former category. The case before me, on the pleading, is likewise a case of actual insolvency; as the defendants point out in para 2 of their written submissions 'this is not a case of insolvent trading'."
Case: Post, Re; Re Election for Offices in Transport Workers Union of Australia, Western Australian Branch (1992) 40 IR 162
Outcome: cited
approach taken by the Court to the preliminary issue identified by s 201(b) of the Act was explained by French J in Re Post; Re Election for Offices in Transport Workers Union of Australia, Western Australian Branch (1992) 40 IR 162 at 166-7 as follows: "The question for the Court ... is whether it is satisfied that there is reasonable ground for the application. It will not be so satisfied if the grounds relied upon could not, even if made out, constitute "an irregularity in relation to an election for an office in the organisation". The question whether there is such an irregularity lies at the heart of this jurisdiction. Nor will it be so satisfied if the allegations of fact relied upon in the application do not at least offer good grounds for suspicion that there has been such an irregularity. The Court will not entertain an application of a speculative nature based upon the applicant's opinion that there has been an irregularity unless that opinion rests upon some substantial factual foundation. Necessary conditions to establish the requisite state of satisfaction can be multiplied. It is harder to state what is sufficient to satisfy the Court beyond the words of the section itself which require a an evaluative judgment at this preliminary stage". Much of the affidavit evidence relied upon by the applicant contained hearsay. Insofar as it dealt with the sending of SMS messages to the mobile phones of members, it suggested that a small number of members had received messages supporting the Bolano team. It is not clear, on the evidence, how, whoever it was who sent the messages, obtained the mobile telephone numbers of the members to whom messages were sent. In the few cases in which the deponent of an affidavit received a message, the deponent said that he or she had provided Mr Bolano or some other person associated with his campaign with his or her telephone number but had not done so for the purpose of receiving campaign material. Some of these deponents were shop stewards at their workplaces and it is understandable that they would have provided Mr Bolano, an organiser, with their telephone numbers to facilitate contact on Union business. What is important, for present purposes, is that there is no evidence that enables me to infer that Mr Bolano or anyone else obtained mobile telephone numbers of members by resort to Union records. The evidence relied on by the applicant supports the allegation that Union meetings were convened at some hospitals using notices on Union letterhead. Those meetings were attended by some Union employees who, although supposedly on leave, were said to be present on Union (as distinct from electoral) business. Those employees used the meetings to encourage members to vote for the Bolano team. Mr Bolano and other employees said to have been involved have not, as yet, denied that such conduct occurred. In fairness to them, it must be said that some of the affidavits on which the applicant relies were not served until late on 4 November 2009.
Case: Jarman, Re; Ex parte Cook (No 2) [1996] HCA 7 ; (1996) 136 ALR 233
Outcome: referred to
Kirby J said in Re Jarman; Ex parte Cook (No 2) [1996] HCA 7 ; (1996) 136 ALR 233 at 241, the institution of an inquiry under s 201 is a serious matter. The onus is on an applicant to persuade the Court that there exist reasonable grounds for the application. For the reasons given I am not satisfied that there are reasonable grounds to consider that any irregularity has occurred in relation to the election. I would, therefore, dismiss the application by the applicant for an inquiry. It follows that no interim orders can or should be made in the proceeding. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY. Associate: Dated: 6 November 2009 Counsel for the Applicant: Ms A Duffy Solicitor for the Applicant: Holding Redlich Counsel for Mr M Bolano and Others: Mr M McKillop Solicitor for Mr M Bolano and Others: Earl &amp; Associates Counsel for the Health Services Union: Mr D Langmead Solicitor for the Health Services Union: Slater &amp; Gordon Counsel for Mr D Byron Mr H Borenstein SC Solicitor for Mr D Byron Macpherson + Kelley Counsel for the Administrator (Mr J Vines): Mr S Moore Solicitor for the Administrator (Mr J Vines): Maurice Blackburn Counsel for the Returning Officer: Mr R McClure Solicitor for the Returning Officer: Australian Government Solicitor Date of Hearing: 6 November 2009 Date of Judgment: 6 November 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1294.html
Case: Australian Securities &amp; Investment Commission v Bowesco [2009] FCA 257
Outcome: referred to
was a further motion in a related matter also seeking that I recuse myself. There, the only issue for determination was the question of costs. The motion was, by consent, discontinued on 23 March 2009. I then delivered judgment in the matter: Australian Securities &amp; Investment Commission v Bowesco [2009] FCA 257. History of proceeding The proceedings were instituted in early 2006. The trial of the action took place over three days between 25 and 27 March 2008. Thereafter there were further hearings in respect to the case on the following dates: (i) 11 April 2008; (ii) 11 June 2008; (iii) 8 August 2008; (iv) 3 September 2008; (v) 13 November 2008; (vi) 10 February 2009.
Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 228 CLR 294
Outcome: cited
In all therefore, the Tribunal did not accept that the applicant had suffered any Convention related harm, nor did it accept that there was a real chance of Convention related harm befalling the applicant if he were to return to China in the reasonably foreseeable future. On this basis, the Tribunal found the applicant did not have a well-founded fear of Convention related persecution, and affirmed the decision under review. (Federal Magistrate's Court Book references omitted). 9 At the hearing in the Federal Magistrates Court for review of the decision of the Tribunal, the applicant was represented by Mr J Gormly of Counsel, and the Minister was represented by Mr T Reilly of Counsel. Counsel for the appellant was granted leave to file an amended application, in which the appellant claimed that the Tribunal did not comply with s 424A of the Act as the letter sent to the applicant by the Tribunal pursuant to that section was sent after the Tribunal hearing. 10 It was contended for the appellant, on the basis of the remarks made in SZBYR v Minister for Immigration &amp; Citizenship (2007) 235 ALR 609 ; [2007] HCA 26 ( SZBYR ) at [17]-[19], that s 424A required a letter to be sent prior to any Tribunal hearing. 11 Nicholls FM dismissed this argument for two reasons. First, his Honour held that s 424A was not to be so construed, holding that SZBYR had not overturned comments in SAAP v Minister for Immigration &amp; Multicultural Affairs (2005) 228 CLR 294 ; [2005] HCA 24 ( SAAP ) indicating that s 424A could be complied with after the Tribunal hearing. Secondly, his Honour accepted the submission on behalf of the Minister that s 424A(1) was not engaged by any material relied on by the appellant, given what was said about the meaning of "information" in SZBYR , at [17]-[18].
Case: SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609
Outcome: considered
In all therefore, the Tribunal did not accept that the applicant had suffered any Convention related harm, nor did it accept that there was a real chance of Convention related harm befalling the applicant if he were to return to China in the reasonably foreseeable future. On this basis, the Tribunal found the applicant did not have a well-founded fear of Convention related persecution, and affirmed the decision under review. (Federal Magistrate's Court Book references omitted). 9 At the hearing in the Federal Magistrates Court for review of the decision of the Tribunal, the applicant was represented by Mr J Gormly of Counsel, and the Minister was represented by Mr T Reilly of Counsel. Counsel for the appellant was granted leave to file an amended application, in which the appellant claimed that the Tribunal did not comply with s 424A of the Act as the letter sent to the applicant by the Tribunal pursuant to that section was sent after the Tribunal hearing. 10 It was contended for the appellant, on the basis of the remarks made in SZBYR v Minister for Immigration &amp; Citizenship (2007) 235 ALR 609 ; [2007] HCA 26 ( SZBYR ) at [17]-[19], that s 424A required a letter to be sent prior to any Tribunal hearing. 11 Nicholls FM dismissed this argument for two reasons. First, his Honour held that s 424A was not to be so construed, holding that SZBYR had not overturned comments in SAAP v Minister for Immigration &amp; Multicultural Affairs (2005) 228 CLR 294 ; [2005] HCA 24 ( SAAP ) indicating that s 424A could be complied with after the Tribunal hearing. Secondly, his Honour accepted the submission on behalf of the Minister that s 424A(1) was not engaged by any material relied on by the appellant, given what was said about the meaning of "information" in SZBYR , at [17]-[18]. 14 The High Court in SZBYR at [18] endorsed what was said by the Full Federal Court in VAF v Minister of Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 ; (2004) 206 ALR 471 at 476-477 per Finn and Stone JJ that the word "information": ... does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
Case: SZKLG v Minister for Immigration and Citizenship [2007] FCAFC 198 ; (2007) 164 FCR 578
Outcome: followed
Subsequent to the decision by Nicholls FM, a Full Court of the Federal Court has confirmed that s 424A is not limited to compliance before a Tribunal hearing: SZKLG v MIAC (2007) 164 FCR 578 ; [2007] FCAFC 198 at [34] - [36] . The point rejected by the Full Court in that case was argued by the same counsel who appeared for the appellant before Nicholls FM. 19 It follows that Ground 4 must fail. 20 It is for these reasons that, on 20 May 2008, I made the orders dismissing the appeal and ordering the appellant pay the respondents' costs to be taxed, if not agreed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender . Associate: Dated: 20 August 2008 Counsel for the Appellant: Appellant appeared in person Counsel for the Respondents: Mr T Reilly Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 20 May 2008 Date of Judgment: 20 August 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1280.html
Case: SZKNB v Minister for Immigration and Citizenship [2007] FMCA 2012
Outcome: affirmed
On 20 May 2008, I dismissed an appeal from a judgment of Nicholls FM in SZKNB v Minister for Immigration &amp; Citizenship [2007] FMCA 2012. 2 Nicholls FM, on 10 December 2007, dismissed an application to review a decision of the Refugee Review Tribunal (the Tribunal), which had been signed on 22 March 2007 and handed down on 23 March 2007, affirming a decision of a delegate of the first respondent to refuse to grant the applicant a protection visa. 3 I ordered that the appeal be dismissed; the appellant pay the respondents' costs to be taxed, if not agreed, and I indicated that I would deliver reasons for the making of those orders at a later date. These are those reasons.
Case: VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 ; (2004) 206 ALR 471
Outcome: followed
The High Court in SZBYR at [18] endorsed what was said by the Full Federal Court in VAF v Minister of Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 ; (2004) 206 ALR 471 at 476-477 per Finn and Stone JJ that the word "information": ... does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
Case: SZLQD v Minister for Immigration and Citizenship [2008] FMCA 190
Outcome: cited
The applicant seeks leave to appeal from an interlocutory judgment of Federal Magistrate Smith dismissing the applicant's application for judicial review of a decision by the second respondent Refugee Review Tribunal not to grant him a protection visa: see SZLQD v Minister for Immigration and Citizenship [2008] FMCA 190. The Tribunal had earlier affirmed the first respondent Minister's decision to refuse the grant of a protection visa. Leave to appeal is required from this Court because the Federal Magistrate dismissed the application on the ground that it does not raise an arguable case for the relief claimed pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). Such a procedure is interlocutory in nature: see r 44.12(2) of the Rules . 2 The applicant is a citizen of India who arrived in Australia on 27 March 2007. He claims to be an active member of the Bharatiya Janta Party in Kerala State. He claims a well founded fear of persecution due to his support for the BJP. He claims that because of his political views, imputed or otherwise, he has suffered arrest, attacks and mistreatment. 3 The applicant applied for a protection visa on 10 April 2007. A delegate of the first respondent Minister rejected that application. The delegate noted that the applicant was free to relocate to another part of India where the applicant's localised problems would not continue.
Case: D&eacute;cor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397
Outcome: applied
Grounds one and two of the draft notice of appeal are drafted in the broadest terms and have not been particularised by the applicant. Ground one states: The single Judge of the Federal Magistrates Court in his Honours judgment delivered on the 12 February 2008 failed to find error of law, jurisdictional error, procedural fairness and relief under section 39B of the judiciary Act 1903. Assuming that the ground should read that the Magistrates "erred" when his Honour "failed to find error of law...", without further submission on why that is so, the ground does not suggest that the judgment is attended with sufficient doubt to warrant it being reconsidered on appeal or that a substantial injustice would result if leave were refused, supposing it to be wrong: see D&eacute;cor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 at 398. 8 The second ground of appeal is similarly vague and broadly stated. It states that: The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal. That is not the case. The Federal Magistrate considered all the grounds for review contained in the applicant's amended application. This proposed ground lacks merit.
Case: SZLTC v Minister for Immigration and Citizenship [2008] FMCA 384
Outcome: referred to
In any event, s 424AA only applies to applications for review lodged after 29 June 2007. This is the effect of ss 2 and 33(b) of the Migration Amendment (Review Provisions) Act 2007 (Cth), which commenced on 29 June 2007. The applicant lodged his application for review on 25 June 2007. Section 424AA did not apply to his review. In this regard see SZLTC v Minister for Immigration and Citizenship [2008] FMCA 384 at [15] per Driver FM. 14 This new argument was not raised before the court below and is not mentioned in the proposed notice of appeal. As the applicant was previously unrepresented, the Court was prepared to allow the issue to be raised as the matter was the subject of submissions served on the Minister earlier in the week. In any event, it is a submission which has no merit. It does not disclose an arguable case for review of the Tribunal's decision or any arguable appeal point in the proposed appeal. 15 The applicant has not demonstrated that the decision below is attended with sufficient doubt to warrant its reconsideration on appeal, or that a substantial injustice would result if leave to appeal were refused.
Case: Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62
Outcome: referred to
s 31A was, as Lindgren J held in White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 at 310, designed "to lower the bar for obtaining summary judgment" from the level that had been fixed by the High Court in Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91-2 and General Steel Industries Inc. v Commissioner for Railways (N.S.W.) [1964] HCA 69 ; (1964) 112 CLR 125 at 128-130. Although the standard which must be met by a respondent who seeks summary judgment under the FCA Act has been expressed in a variety of different ways, where, as here, an application is made under s 31A, the Court is required to give close attention to the statutory language and to apply that test to the exclusion of all others: see PZ Cussons (International) Ltd v Rosa Dora Imports Pty Ltd [2007] FCA 1642 ; (2007) 74 IPR 372 at 375 (per Kenny J).
Case: Ditfort, Re; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347
Outcome: cited
Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 at 370, Gummow J said that: "... there will be no "matter" if the plaintiff seeks an extension of the court's true function into a domain that does not belong to it, namely the consideration of undertakings and obligations depending entirely on political sanctions. Such non-justiciable issues include agreements and understandings ... between the Australian and foreign governments... Those issues do not give rise to "matters" in the sense necessary for the exercise of federal jurisdiction". This passage was referred to with approval by Black CJ and Hill J in Petrotimor Companhia de Petroleos SARL v Commonwealth [2003] FCAFC 3 ; (2003) 126 FCR 354 at 373.
Case: General Steel Industries Inc. v Commissioner for Railways (N.S.W.) [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: referred to
s 31A was, as Lindgren J held in White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 at 310, designed "to lower the bar for obtaining summary judgment" from the level that had been fixed by the High Court in Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91-2 and General Steel Industries Inc. v Commissioner for Railways (N.S.W.) [1964] HCA 69 ; (1964) 112 CLR 125 at 128-130. Although the standard which must be met by a respondent who seeks summary judgment under the FCA Act has been expressed in a variety of different ways, where, as here, an application is made under s 31A, the Court is required to give close attention to the statutory language and to apply that test to the exclusion of all others: see PZ Cussons (International) Ltd v Rosa Dora Imports Pty Ltd [2007] FCA 1642 ; (2007) 74 IPR 372 at 375 (per Kenny J).
Case: Hinchcliffe v Commissioner of Australian Federal Police [2001] FCA 1747 ; (2001) 118 FCR 308
Outcome: followed
Hinchcliffe v Commissioner of Australian Federal Police [2001] FCA 1747 ; (2001) 118 FCR 308 , the applicants had complained to the AFP that third parties had contravened certain legislative provisions. AFP officers examined the circumstances and sought advice from the Director of Public Prosecutions. On being advised that the material disclosed no offence, the AFP advised the applicants that it would take no further action. The applicants applied for writs of mandamus to require the AFP to investigate their complaint. The application was summarily dismissed by Kenny J on the ground that it was bound to fail. This was because the AFP was not under any relevant duty and, in any event, no tenable basis had been shown for the allegation that the AFP officers were in breach of any duty.
Case: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372
Outcome: referred to
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372 , Gordon J noted (at 406) that, 31A was introduced in order to extend "the power of the court to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases". The section empowers the Court to give summary judgment in favour of a respondent if it is satisfied that the applicant "has no reasonable prospect of successfully prosecuting the proceeding". This will be the case even if the application cannot be characterised as either hopeless or bound to fail.
Case: Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274
Outcome: followed
which are not justiciable and fall outside the proper domain of federal courts include "issues arising out of international relations": see Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274 at 307 (per Wilcox J, with whom Bowen CJ agreed).