mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: McKenzie v South Australia (2005) 214 ALR 214
Outcome: cited
Justice Finn considered directly whether the Court has jurisdiction under the Act to make a determination of native title in favour of a person (or group of persons) that has not made a native title determination application under s 61 of the Act and is a respondent to the proceedings. As in Kokatha , the context was a claim to native title by the Kokatha people ('the Kokatha native title claim'). Mr McKenzie initially became a respondent to the Kokatha native title claim pursuant to s 84(3) of the Act. He was also the named applicant in separate proceedings ('the first Kuyani native title claim') that overlapped the Kokatha native title claim. The first Kuyani native title claim was struck out after six amendments which altered substantially the composition of the claim group and lands the subject of the claim. The claim was struck out as Finn J found that there was no arguable basis on which the requirements of ss 61(4), 62(1)(iv) and (v) relating to Mr McKenzie's authorisation to bring the claim, could be satisfied ( McKenzie v South Australia (2005) 214 ALR 214). A second Kuyani native title claim was then brought by Mr McKenzie. Orders were made in the Kokatha native title claim for it to be dealt with in that proceeding to the extent that there was overlap. The second Kuyani native title claim was discontinued but Mr McKenzie remained as a respondent to the Kokatha native title claim ' apparently on the basis that, notwithstanding the discontinuance, he claimed to hold native title in relation to land in the area covered by the proceedings...or else his interests might be affected by a determination in it ' (at [9]). In addition to opposing a determination that the Kokatha people held exclusive native title rights and interests in the claim area, Mr McKenzie sought a determination that the native title in respect of the area was held by the Kokatha people on a shared basis with Kuyani people.
Case: Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58 ; (2002) 214 CLR 422
Outcome: cited
To prevent the making of the declaration sought by the Land Council, Worimi would need to advance a case that establishes that native title does exist or to cast doubt on the Land Council's evidence. Native title exists under the Act as a community title capable of recognition by the common law. Individual non-proprietary rights can be recognised where they are derived from the community's laws and customs and are dependent on community title ( Mabo at [52] per Brennan J). Laws and customs in which rights or interests find their origins must be laws or customs having a normative content and deriving from a body of norms or normative system, that existed before sovereignty ( Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58 ; (2002) 214 CLR 422 at [38] per Gleeson CJ, Gummow and Hayne JJ). If the normative system has not existed throughout that period, if it has not had a continuous existence and vitality, if the laws and customs cease to be acknowledged and observed by that society as a group, the rights and interests will have ceased to exist and cannot be revived or reconstituted ( Yorta Yorta at [47] [50]). It is not necessary to show that every member of a community or group has acknowledged and observed the relevant traditional laws and customs but the Act requires that a native title claimant group establish rights and interests possessed under the traditional laws acknowledged and the traditional customs observed by that group as a whole ( De Rose v South Australia (No 2) [2005] FCAFC 110 ; (2005) 145 FCR 290 at [58] ). As discussed in Hillig (No 2) at [60] [62], a sub-group that accepts that it is only part of a larger group of native title holders is not the group that holds the common or group rights within s 61 of the Act. Worimi and his family are such a sub-group.
Case: Moses v State of Western Australia [2007] FCAFC 78
Outcome: cited
The Court has a discretion under s 84(5) whether or not to join a person whose interests may be affected by a determination in the proceedings. That discretion is not, however, "at large" ( Gamogab at [56]). Where the interest claimed is a positive claim to native title, it is relevant to that discretion that no such determination can be made unless the requirements of ss 61, 62 and 251B are complied with ( Kokatha at [22] [23]; Moses v State of Western Australia [2007] FCAFC 78 at [18] ; Kokatha People at [45]) and the person or group of persons has a s 61 application on foot in the proceedings ( Kokatha at [23]; Kokatha People at [46]).
Case: Munn v State of Queensland [2002] FCA 486
Outcome: cited
A holder of a native title interest in the Land is entitled to be joined to the proceedings (s 84(5) of the Act; Munn v State of Queensland [2002] FCA 486). A claim to native title is ordinarily, of itself, sufficient to justify joinder under s 84(5) of the Act ( Munn at [8]). While the interests relied upon for joinder need not be proprietary or legal or equitable in nature, they must be ' not indirect, remote or lacking substance...the interests must be capable of clear definition ' ( Byron Environment Centre Incorporated v Arakwal People (1997) 78 FCR 1 at [7]-[8] per Black CJ) ('the Byron test'). The Byron test does not recognise interests of an emotional kind ( Byron at [8] per Black CJ). The nature and content of the right to become a party to proceedings for a determination of native title suggest that the interests asserted must be of such a character that they may be affected in a demonstrable way by the determination ( Byron at [7] per Black CJ). 25 Justice Emmett recognised in Munn at [8] that the holder of a native title interest may have sufficient interest to warrant participation in proceedings, notwithstanding that the Court could not make a determination in relation to that interest in the proceeding in question. Justice Branson joined Mr Kemp, who asserted native title, to the Davis-Hurst proceedings as a respondent, notwithstanding that Mr Kemp did not wish himself to advance a claim for a determination of native title.
Case: Risk v National Native Title Tribunal [2000] FCA 1589
Outcome: cited
In Risk v National Native Title Tribunal [2000] FCA 1589 , O'Loughlin J considered the correct interpretation of "a native title claim group" in the context of an application for a determination of native title and the principle that native title is communally held ( Mabo v State of Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1 at [109] [10] per Deane and Gaudron JJ). A native title claim group is not established or recognised merely because a group of people call themselves a native title claim group ( Risk at [60]). In Risk , as here, the family that Worimi represents is, on his own evidence, only part of the group which, according to traditional laws and customs, could hold native title over the Land. Worimi accepts that the members of that group do not claim native title and concludes that they are unaware of the traditional laws and customs.
Case: Worimi v Minister for Lands for the State of New South Wales [2006] FCA 1770
Outcome: cited
The Worimi Local Aboriginal Land Council ('the Land Council'), previously represented by an administrator, Mr Hillig, seeks a declaration that no native title exists over land at Port Stephens, being Lot 576 in Deposited Plan 48823 ('the Land'). By notice of motion filed on 23 August 2005, Mr Gary Dates, also known as Worimi, sought to become a party to the proceedings. Worimi has previously filed two claimant applications for a determination that native title exists over the Land. I struck out each application pursuant to s 84C of the Native Title Act 1993 (Cth) ('the Act') for failure to comply with s 61 of the Act ( Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115 ; Worimi v Minister for Lands for the State of New South Wales [2006] FCA 1770). Worimi had previously indicated that he intended to file a further claimant application. That has not occurred and there is no present suggestion of any intention on Worimi's part to do so. By an amended notice of motion filed on 30 March 2007, Worimi seeks to be joined as a respondent to this non-claimant application under s 84(5) of the Act. The application for joinder is opposed by the Land Council.
Case: F Hoffman-La Roche &amp; Co AG v Secretary of State for Trade and Industry [1975] AC 295
Outcome: followed
That may have been the " impression " of the now Appellant at the time. But there was no obligation imposed upon the Tribunal to raise with him whatever reservations may have been experienced at the time as to the explanations being provided by the now Appellant, let alone any obligation to raise whatever reservations may subsequently have emerged when the evidence in its entirety was being considered and the reasons being drafted. As was recognised by Lord Diplock in F Hoffman-La Roche &amp; Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369: ... the rules of natural justice do not require the decision-maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished. And, after having cited these observations, in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 , 228 CLR 152 at 166 Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ further observed: [48] ... Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment. See also: SZHBP v Minister for Immigration and Citizenship [2008] FCA 1299 at [11] , 103 ALD 595 at 597.
Case: Premalal v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 82 ; (1993) 41 FCR 117
Outcome: followed
To the extent that the " Particulars " raise a separate contention that the Tribunal failed to " give any weight " to the now Appellant's position as a refugee and his " difficulties to obtain relevant documents ", again the contention is rejected. It may be accepted that applicants for refugee status may well face difficulties in both advancing their claims and in securing documents in support of their claims: Premalal v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 82 ; (1993) 41 FCR 117 at 141. 9 Difficulties in obtaining information in support of a refugee claim have been the subject of comment. See: Taylor S, Informational Deficiencies Affecting Refugee Status Determinations: Sources and Solutions (1994) 13 Univ Tas L Rev 43.
Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 , 228 CLR 152
Outcome: applied
That may have been the " impression " of the now Appellant at the time. But there was no obligation imposed upon the Tribunal to raise with him whatever reservations may have been experienced at the time as to the explanations being provided by the now Appellant, let alone any obligation to raise whatever reservations may subsequently have emerged when the evidence in its entirety was being considered and the reasons being drafted. As was recognised by Lord Diplock in F Hoffman-La Roche &amp; Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369: ... the rules of natural justice do not require the decision-maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished. And, after having cited these observations, in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 , 228 CLR 152 at 166 Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ further observed: [48] ... Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment. See also: SZHBP v Minister for Immigration and Citizenship [2008] FCA 1299 at [11] , 103 ALD 595 at 597.
Case: SZCQA v Minister for Immigration [2008] FMCA 1300
Outcome: cited
When remitted, the matter came before the Refugee Review Tribunal differently constituted. A hearing before the reconstituted Tribunal took place in October 2007 and on 13 December 2007 the Tribunal as reconstituted again affirmed the decision not to grant the protection visa. That Tribunal made adverse findings as to the credibility of the now Appellant. It concluded that the now Appellant " did not provide an accurate account of his circumstances to either the former or current Tribunal, because he was fabricating his claims throughout the processing of his protection visa application ". It was " not satisfied as to the applicant's general credibility ". An application for review of that decision of the Tribunal was dismissed by the Federal Magistrates Court: SZCQA v Minister for Immigration [2008] FMCA 1300. 4 The Appellant now appeals to this Court. He appeared unrepresented although he did have the assistance of an interpreter. The Grounds of Appeal (without alteration) are expressed as follows: 1. The Refugee Review Tribunal failed to accord my natural justice: Particulars A. I stated before the Tribunal that some documents I could not provided to the Tribunal as it would be difficult to obtain those documents. But the Tribunal did not give any weight to my situation that as a refugee I could obviously face difficulties to obtain relevant documents those support my entire claim as a refugee. As a result the Tribunal ignore the adverse circumstance that did significant impact to my decision. 2. The Refugee Review Tribunal made a wrong assumption in relation to my fear of persecution in my home country: Particulars A. The Tribunal made a wrong assumption in relation to my fear of persecution in my home country by making the following comment: i) the applicant has fabricated the essential claims. 3. The Refugee Review Tribunal's finding about the inconsistency was wrong and unsupported: Particulars A. The Tribunal's finding about the inconsistency was wrong and unsupported. The Tribunal also did not disclose to me the country information that had the element of adverse information and did not support my claim. These Grounds , it may be noted, are expressed in terms of errors allegedly made by the Refugee Review Tribunal. The jurisdiction of this Court, however, is an appellate jurisdiction to entertain an appeal from a decision of the Federal Magistrates Court. 5 No error is alleged in respect to any aspect of the decision of the Federal Magistrates Court. The appeal should be dismissed for that reason alone.
Case: SZHBP v Minister for Immigration and Citizenship [2008] FCA 1299 , 103 ALD 595
Outcome: followed
That may have been the " impression " of the now Appellant at the time. But there was no obligation imposed upon the Tribunal to raise with him whatever reservations may have been experienced at the time as to the explanations being provided by the now Appellant, let alone any obligation to raise whatever reservations may subsequently have emerged when the evidence in its entirety was being considered and the reasons being drafted. As was recognised by Lord Diplock in F Hoffman-La Roche &amp; Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369: ... the rules of natural justice do not require the decision-maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished. And, after having cited these observations, in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 , 228 CLR 152 at 166 Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ further observed: [48] ... Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment. See also: SZHBP v Minister for Immigration and Citizenship [2008] FCA 1299 at [11] , 103 ALD 595 at 597.
Case: Taylor v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 319
Outcome: considered
An application made by the now Appellant during the course of his oral submissions was for the provision of legal assistance. That application was construed as an application for a referral pursuant to O 80 of the Federal Court Rules . Rule 4(1) and (2) provide as follows: Referral to a legal practitioner (1) The Court or a Judge may, if it is in the interests of the administration of justice, refer a litigant to the Registrar for referral to a legal practitioner on the Pro Bono Panel for legal assistance in relation to a proceeding before the Court. (2) For subrule (1), the Court or Judge may take into account: (a) the means of the litigant; and (b) the capacity of the litigant to obtain legal assistance outside the scheme; and (c) the nature and complexity of the proceeding; and (d) any other matter that the Court, or Judge, considers appropriate. Left to one side is whether or not a referral should or could be made after the commencement of the hearing of the proceeding in which the referral is sought. Even if such a referral could then be made, in the circumstances of the present appeal it is not considered to be " in the interests of the administration of justice " to make such a referral. Although the phrase " the interests of justice " is " wide " ( Taylor v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 319 at [10] per French J), the " nature and complexity of the proceeding " does not warrant the making of any such referral. And it is not considered that either the application for review as made to the Federal Magistrates Court or to this Court on appeal exposes any argument which has any real prospects of success. An assessment as to prospects of success is relevant to the exercise of the " broad discretion " conferred by O 80 r 4: Rivera v Minister for Home Affairs [2008] FCA 1 at [6] [8] per Tamberlin J. Moreover, the now Appellant had the benefit of legal assistance prior to the hearing before the Federal Magistrates Court. Such assistance as may otherwise have been warranted was most appropriately received at the hearing before the Federal Magistrates Court rather than on appeal.
Case: Abebe v The Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510
Outcome: cited
It was for the applicant to satisfy the Tribunal that the applicant met each of the relevant criteria for the grant of the visa. It was for the applicant to put forward any evidence in support of her application and make whatever submissions she wished to establish that she came within the relevant criteria in the Regulations: Abebe v The Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at 576. 33 The applicant's application did not require the Tribunal to review the decision of the Minister's delegate to refuse Shark Australia's nomination. In my opinion, no separate duty rested upon the Tribunal to inquire into the decision to refuse Shark Australia's nomination. It would have been pointless for the Tribunal to further inquire into that other decision. That is so because no-one who could seek a review had done so. 34 The question before the Tribunal was whether the decision made by the delegate of the Minister in relation to the refusal of the applicant's application for a visa ought to be affirmed or otherwise. On the information that was before the delegate, it was inevitable that the decision had to be affirmed, as it was. The appellant did not put any material before the Tribunal which the Tribunal failed to consider. The appellant did not attend the Tribunal hearing and her claims were limited to the very brief statements in the letter of 29 May 2005.
Case: Tvarkovski v Minister for Immigration and Multicultural Affairs [2001] FCA 375
Outcome: distinguished
In Tvarkovski v Minister for Immigration and Multicultural Affairs [2001] FCA 375 , Goldberg J said at [30]-[31]: ' 30 It is an accepted principle of administrative law that the jurisdiction given to a body to review an administrative decision generally extends to a consideration of the decision maker's findings or conclusions which contribute to the final or operative decision: see Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 338 per Mason CJ. The application of this principle to the Tribunal's decision means that the Tribunal was entitled to review, and should have reviewed, the whole process of decision making in relation to the applicant's visa, which included that part of the decision making process which determined that the applicant had not been nominated in accordance with reg 5.19. 31 I am satisfied that the Tribunal had the power to consider the reg 5.19 issues as part of its review of the decision to refuse the visa application. The Tribunal fell into an error of law by failing to turn its mind to whether the visa criteria were satisfied by reference to the reg 5.19 definitions. The Tribunal precluded itself from considering the reg 5.19 issues by misconstruing the regulations and determining that there was no right of review in respect of employment nominations before 1 July 1999.' 31 In this case, the decision to refuse Shark Australia's nomination was not reviewable by the Tribunal for the two reasons which I have mentioned. First, it was not an MRT-reviewable decision. Secondly, if it was, it was only reviewable at the instigation of Shark Australia.
Case: Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 2) [2009] FCA 237
Outcome: cited
review also disclosed a prospect, though not, as yet the actuality, of what was memorably described in an earlier edition of Bullen &amp; Leake &amp; Jacob's Precedents of Pleadings (12 th Ed, 1975, Sweet &amp; Maxwell at 113-114) as "the particulars game", i.e. where parties deliberately engage in mutual brinkmanship as to the concealing and revealing of their respective cases, see, further, Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 2) [2009] FCA 237 at [7] and [8]. Be this as it may, the ACCC and Mr Day have each filed notices of motion which require determination of the applications they respectively make in respect of these issues of practice and procedure. The issues raised are not unrelated but I shall nonetheless consider each in turn. The Amended Defence Whether any of the many complaints made by the ACCC in respect of the adequacy of the amended defence are warranted requires a consideration of the whole of that pleading in the context of the response it makes to the statement of claim. That makes it desirable to set out in full each of these pleadings. It would detract from continuity and ready comprehensibility of reasoning so to do in the main body of this judgement. I therefore annex the pleadings to it.