mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Livesey v The New South Wales Bar Association [1983] HCA 17 ; (1983) 151 CLR 288
Outcome: referred to
An alternative ground for the conclusion that I should not disqualify myself from hearing the present application on the ground of apparent bias is this. The test for apparent bias is well-known and it is "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide": Johnson v Johnson (2000) 201 CLR 488 at 492 [11] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. In this case, if there is apparent bias, it takes the form of prejudgment. That form of bias was considered by the High Court in Livesey v The New South Wales Bar Association [1983] HCA 17 ; (1983) 151 CLR 288. In assessing that form of apparent bias in this case, the nature of the respondents' application is important. The respondents' application is not one in which I was called upon to make findings as to credit or, indeed, to make any findings of fact. The applicant's allegations of fact may be accepted for the purposes of the respondents' application. The questions raised by the respondents' application are, in substance, questions of law, and, having regard to all the circumstances, I do not think it can be said that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the question I am required to decide: Sydney Refractive Surgery Centre Pty Ltd v Federal Commissioner of Taxation (2007) 68 ATR 19 ; Commonwealth Bank of Australia v Taylor [2008] VSC 3.
Case: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589
Outcome: applied
Save and except for the alleged breaches of the deed of settlement (see the earlier judgment at [15]), all the causes of action in the present proceeding are different from those advanced in the earlier proceeding. Nevertheless, all the causes of action are based on the conduct of the second respondent acting for the first respondent on 27 March 2006 and its aftermath. The doctrine of res judicata may apply in relation to the cause of action in the present proceeding based on breaches of the deed of settlement but it does not apply to the other causes of action in the present proceeding. The doctrine of issue estoppel in the strict sense may apply to those causes of action, although it is difficult to be at all certain because of the lack of coherence in the applicant's pleadings in the present proceeding. The extended doctrine of issue estoppel as articulated in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 ("Anshun estoppel") certainly applies in relation to all of the other claims and there is no reason they could not have been brought in the earlier proceeding. In the circumstances, the pursuit of the other claims is an abuse of process. 33 I turn now to consider the claim for unlawful discrimination. 34 In his amended statement of claim, the applicant alleges breaches or contraventions by the respondents of ss 5 , 6 , 22 and 24 of the DD Act . Section 22(1) plainly does not apply because, on any view, the alleged discrimination is not of a type which falls within the terms of that subsection. Subsection (2) provides: It is unlawful for an educational authority to discriminate against a student on the ground of the student's disability or a disability of any of the student's associates: (a) by denying the student access, or limiting the student's access, to any benefit provided by the educational authority; or (b) by expelling the student; or (c) by subjecting the student to any other detriment.
Case: Rana v University of South Australia [2007] FCAFC 188
Outcome: referred to
The applicant lodged an appeal against the order I made dismissing the proceeding but, on 4 December 2007, the Full Court of this Court dismissed the appeal and ordered that the appellant in the appeal pay the respondent's costs thereof: Rana v University of South Australia [2007] FCAFC 188. 12 The applicant then applied to the High Court for special leave to appeal against the orders made by the Full Court but, on 15 May 2008, that application was dismissed. 13 One other point to note about the earlier proceeding is this. Before the present proceeding was instituted, the applicant made a complaint about the respondent's conduct to the Human Rights and Equal Opportunity Commission ("the Commission") (as it then was). In the course of a directions hearing in the earlier proceeding held on 14 July 2006, I fixed 17 and 18 August 2006 for the trial of the earlier proceeding. Those dates were subsequently vacated and, as I have said, the proceeding was heard on 5 and 6 October 2006. The point to be made is that at the directions hearing held on 14 July 2006, the applicant said that he had a complaint of "disability discrimination on the same fact by the University". He said that the complaint had been lodged with the Commission. He said that the first respondent had asked for an extension of time to respond. The applicant raised the possibility of the proceeding then before the Court (that is, the earlier proceeding) being delayed so that it could be dealt with at the same time as any proceeding following the applicant's complaint to the Commission. In response, counsel for the first respondent said: Your Honour, we sought an extension of time from the Human Rights Commission. Perhaps we ought more properly have explained to them that these proceedings were on foot because, as I understand it, that would forestall the progression of any complaint stage in the Commission, and that is their policy, that is my understanding of their policy. The matter is only at the complaint stage; no proceedings have been issued. ... ... as I understand it the complaint stage needs to be worked through the Commission and examined by the Commissioner before formal proceedings are able to be initiated. We have undertaken mediation unsuccessfully. I think that the parties are some great difference apart in terms of the legal basis of the claim, but the mediation did crystallise some of the issues and we would seek that the matter be brought to trial as expeditiously as possible because we see that the trial is the only way to resolve those matters.
Case: Rana v University of South Australia [2007] FCA 816
Outcome: referred to
The trial of the earlier proceeding was held on 5 and 6 October 2006. On 31 May 2007, I made an order that the proceeding be dismissed and I delivered reasons for judgment: Rana v University of South Australia [2007] FCA 816. I will refer to those reasons as the earlier judgment. 9 One point to note, and the relevance of this will become apparent, is that in the course of the earlier judgment I said (at [4]) that I found the applicant "a most unsatisfactory witness" and that I did not accept his evidence except where it accorded with other evidence which I accepted. I said that the applicant's evidence as to important events changed during the course of the proceeding, that some of his evidence was highly improbable and a good deal of his evidence was inconsistent with evidence which I accepted.
Case: Rana v University of South Australia (No 2) [2007] FCA 941
Outcome: referred to
On 19 June 2007, I made an order that the applicant pay the respondent's costs of the proceeding on an indemnity basis: Rana v University of South Australia (No 2) [2007] FCA 941. I said the following (at [6]): In my opinion, this is an appropriate case for the award of indemnity costs. Mr Rana made allegations about payment for the tickets and what occurred at the Convention Centre which were critical to his case and he must have known were untrue. Those allegations should not have been made. He claimed that he had suffered loss and damage of $1 million but he proved no loss or damage. He altered a document, namely, a receipt, so that his case would appear stronger. These circumstances alone justify an award of indemnity costs. A further and probably independent reason for awarding indemnity costs is that he refused an offer of $400 in relation to a claim which I dismissed. In all the circumstances, it is appropriate to order that costs be paid on an indemnity basis.
Case: Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699
Outcome: applied
First, in my opinion, to relitigate the events of 27 March 2006 is an abuse of process and the pursuit of the claim for unlawful discrimination would involve a relitigation of the events of 27 March 2006. The Court has a wide jurisdiction to protect a party from an abuse of process constituted by an attempt to relitigate a case already disposed of: Walton v Gardiner [1993] HCA 77 ; (1993) 177 CLR 378 at 392-393 per Mason CJ, Deane and Dawson JJ. It seems clear on the authorities that a proceeding may constitute an abuse of process because it involves an attempt to relitigate a dispute already judicially determined even though none of the doctrines of res judicata , issue estoppel in the strict sense or an Anshun estoppel are made out: Coffey v Secretary, Department of Social Security [1999] FCA 375 ; (1999) 86 FCR 434 at 443 [25] ; Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 at [58] - [70] per French J; SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410 at 423 [37]-[39] per French J (with whom Tracey J agreed at 437 [114]); Brock v Minister for Home Affairs (2008) 170 FCR 434 at 447 [74] per Lindgren and Tracey JJ. The claim for unlawful discrimination represents an attempt to relitigate the events of 27 March 2006 and is an abuse of process. I am mindful of the fact that, as events transpired, the claim for unlawful discrimination could not have been brought in the earlier proceeding, but that does not dissuade me from reaching the conclusion that I have expressed. The fact is that it was the applicant who decided to institute the earlier proceeding the day after the relevant events, to lodge his complaint with the Commission about three weeks after the relevant events, and to wait until 14 July 2006 before advising the Court that he had lodged a complaint with the Commission.
Case: Sydney Refractive Surgery Centre Pty Ltd v Federal Commissioner of Taxation (2007) 68 ATR 19
Outcome: referred to
An alternative ground for the conclusion that I should not disqualify myself from hearing the present application on the ground of apparent bias is this. The test for apparent bias is well-known and it is "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide": Johnson v Johnson (2000) 201 CLR 488 at 492 [11] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. In this case, if there is apparent bias, it takes the form of prejudgment. That form of bias was considered by the High Court in Livesey v The New South Wales Bar Association [1983] HCA 17 ; (1983) 151 CLR 288. In assessing that form of apparent bias in this case, the nature of the respondents' application is important. The respondents' application is not one in which I was called upon to make findings as to credit or, indeed, to make any findings of fact. The applicant's allegations of fact may be accepted for the purposes of the respondents' application. The questions raised by the respondents' application are, in substance, questions of law, and, having regard to all the circumstances, I do not think it can be said that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the question I am required to decide: Sydney Refractive Surgery Centre Pty Ltd v Federal Commissioner of Taxation (2007) 68 ATR 19 ; Commonwealth Bank of Australia v Taylor [2008] VSC 3.
Case: SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410
Outcome: applied
First, in my opinion, to relitigate the events of 27 March 2006 is an abuse of process and the pursuit of the claim for unlawful discrimination would involve a relitigation of the events of 27 March 2006. The Court has a wide jurisdiction to protect a party from an abuse of process constituted by an attempt to relitigate a case already disposed of: Walton v Gardiner [1993] HCA 77 ; (1993) 177 CLR 378 at 392-393 per Mason CJ, Deane and Dawson JJ. It seems clear on the authorities that a proceeding may constitute an abuse of process because it involves an attempt to relitigate a dispute already judicially determined even though none of the doctrines of res judicata , issue estoppel in the strict sense or an Anshun estoppel are made out: Coffey v Secretary, Department of Social Security [1999] FCA 375 ; (1999) 86 FCR 434 at 443 [25] ; Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 at [58] - [70] per French J; SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410 at 423 [37]-[39] per French J (with whom Tracey J agreed at 437 [114]); Brock v Minister for Home Affairs (2008) 170 FCR 434 at 447 [74] per Lindgren and Tracey JJ. The claim for unlawful discrimination represents an attempt to relitigate the events of 27 March 2006 and is an abuse of process. I am mindful of the fact that, as events transpired, the claim for unlawful discrimination could not have been brought in the earlier proceeding, but that does not dissuade me from reaching the conclusion that I have expressed. The fact is that it was the applicant who decided to institute the earlier proceeding the day after the relevant events, to lodge his complaint with the Commission about three weeks after the relevant events, and to wait until 14 July 2006 before advising the Court that he had lodged a complaint with the Commission.
Case: Walton v Gardiner [1993] HCA 77 ; (1993) 177 CLR 378
Outcome: applied
First, in my opinion, to relitigate the events of 27 March 2006 is an abuse of process and the pursuit of the claim for unlawful discrimination would involve a relitigation of the events of 27 March 2006. The Court has a wide jurisdiction to protect a party from an abuse of process constituted by an attempt to relitigate a case already disposed of: Walton v Gardiner [1993] HCA 77 ; (1993) 177 CLR 378 at 392-393 per Mason CJ, Deane and Dawson JJ. It seems clear on the authorities that a proceeding may constitute an abuse of process because it involves an attempt to relitigate a dispute already judicially determined even though none of the doctrines of res judicata , issue estoppel in the strict sense or an Anshun estoppel are made out: Coffey v Secretary, Department of Social Security [1999] FCA 375 ; (1999) 86 FCR 434 at 443 [25] ; Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 at [58] - [70] per French J; SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410 at 423 [37]-[39] per French J (with whom Tracey J agreed at 437 [114]); Brock v Minister for Home Affairs (2008) 170 FCR 434 at 447 [74] per Lindgren and Tracey JJ. The claim for unlawful discrimination represents an attempt to relitigate the events of 27 March 2006 and is an abuse of process. I am mindful of the fact that, as events transpired, the claim for unlawful discrimination could not have been brought in the earlier proceeding, but that does not dissuade me from reaching the conclusion that I have expressed. The fact is that it was the applicant who decided to institute the earlier proceeding the day after the relevant events, to lodge his complaint with the Commission about three weeks after the relevant events, and to wait until 14 July 2006 before advising the Court that he had lodged a complaint with the Commission.
Case: Wilson v United Counties Bank Ltd [1920] AC 102
Outcome: referred to
In Cox v Journeaux (No 2) [1935] HCA 48 ; (1935) 52 CLR 713 , Dixon J (as his Honour then was) considered the meaning of personal injury or wrong done to the bankrupt within s 63(3) of the Bankruptcy Act 1924-1933 (Cth). His Honour applied Wilson v United Counties Bank Ltd [1920] AC 102 and described (at 721) the relevant test in the following terms: The test appears to be whether the damages or part of them are to be estimated by immediate reference to pain felt by the bankrupt in respect of his mind, body or character and without reference to his rights of property.
Case: A pplicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 ; (2004) 217 CLR 387
Outcome: referred to
The Minister submitted that the Federal Magistrate's conclusion that a social group cannot be constituted by victims or potential victims of crime 'is consistent with authority that a social group cannot be defined merely by a shared fear of persecution'. In support of that proposition, the Minister referred to A pplicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 ; (2004) 217 CLR 387 at [36] , where Gleeson CJ, Gummow and Kirby JJ observed as follows: '...the determination of whether a group falls within the definition of "particular social group" in Art 1A(2) of the Convention can be summarised as follows. First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A (59), a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". As this Court has repeatedly emphasised, identifying accurately the "particular social group" alleged is vital for the accurate application of the applicable law to the case in hand (60).'
Case: NABE v Minister for Immigration and Indigenous Affairs (No2) [2004] FCAFC 263 ; (2004) 144 FCR 1
Outcome: referred to
Reiterating the reasoning of Scarlett FM, the Minister made the further submission that 'the Tribunal is not obliged to deal with a case not put to it or that does not clearly arise on the material before it', and that the 'social groups suggested by the appellant before His Honour were never put to the Tribunal'. The Minister referred to NABE v Minister for Immigration and Indigenous Affairs (No2) [2004] FCAFC 263 ; (2004) 144 FCR 1 in support of that contention. 20 After articulating the Minister's case with his usual precision, and pointing out why no jurisdictional error in the Tribunal's reasons for decision could be distilled, in line of course with the Federal Magistrate's decision, counsel for the Minister concluded as follows: 'The social group that the appellant now suggests doesn't fall into either of those categories and, in any event, even leaving those two matters aside, the Tribunal's conclusions as to effective protection in the Ukraine would be another answer to them. Your Honour, plainly there are humanitarian aspects in this case. They were referred to by the learned Magistrate. I'm sure your Honour is fully cognisant of them, but all we can do is draw the remarks of the Magistrate and if your Honour makes any similar remarks, your Honour's remarks to the attention of the Department. Ultimately there is nothing more we can do because it's a matter purely for the Minister.' 21 I find the Minister's submissions persuasive and, consequently, find no error in the Tribunal's decision or that of the Federal Magistrate below. It is also my opinion that the observations made by counsel for the Minister were entirely apposite, and I would wholly endorse what he thus frankly and responsibly indicated. I would respectfully recommend to the Minister that there be a reconsideration of the evident plight of the appellant and the understandable concern and anxiety of her only close relatives, who now live in Australia as Australian citizens. The appellant's case is in my respectful view very strong on compassionate grounds, being an opinion in line with that of the Federal Magistrate below. 22 The appeal must be dismissed. I also make an order, nunc pro tunc, that the Refugee Review Tribunal, which was a party to the proceedings below, be joined as a respondent to the application. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: 30 January 2007 Appellant appeared in person Counsel for the Respondent: Mr T Reilly Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 14 November 2006 Date of Judgment: 30 January 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/32.html
Case: Dunstan v Human Rights and Equal Opportunity Commission (No 2) [2005] FCA 1885
Outcome: related
application relates to a purported appeal from a decision of Mansfield J delivered on 21 December 2005 ( Dunstan v Human Rights and Equal Opportunity Commission (No 2) [2005] FCA 1885). On 6 November 2006 I struck out the notice of appeal in ACD 4 of 2006 but granted leave to Mr Dunstan to re-plead by filing an amended notice of appeal on or before 2 February 2007, and the matter was stood over until today with costs reserved. I indicated to Mr Dunstan on that occasion that the notice of appeal simply did not comply with the Rules of Court in relation to the form and substance of such a document, and explained that it was fundamental that there be a notice of appeal in proper form. I then adverted to the fact that legal advice in a situation of this kind is very helpful, if not essential. I also mentioned the possibility of some pro bono assistance. I have given some consideration to that again but I do not think that it is appropriate to take any steps in relation to that. This is a very particular case which Mr Dunstan presented himself before the trial judge, and to bring anybody in to deal with this on a pro bono basis is, I think on reflection, not likely to be helpful.
Case: SZJXC v the Minister for Immigration and Citizenship [2006] FMCA 545
Outcome: affirmed
This is an appeal from a decision of the Federal Magistrates Court which dismissed an application for review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister to refuse the appellant a protection visa. The nature of the appellant's protection visa application, the reasons of the Tribunal and the Federal Magistrate are set out in more detail in the Federal Magistrate's decision, SZJXC v the Minister for Immigration and Citizenship [2006] FMCA 545 , which is available on the internet. 2 The appellant is a citizen of the People's Republic of China and his claim to be a refugee rests on an alleged fear of persecution based on his involvement in the practice of Falun Gong. 3 In his protection visa application he claimed to have been a member of Falun Gong since 1999. He said that after Falun Gong was banned by the authorities he would transport members for meetings and gatherings and provide emergency transportation. He claimed that in March 2005 while assisting the leader to escape from detention he was caught by police and held and interrogated for eight days and suffered "serious mental and physical torment". He claimed to have been forced to attend re-education classes and be supervised by what was called the 610 office. His job was "interfered many times," [ sic ] the truck he drove was checked frequently, members of his family were questioned many times and "we all lost our freedom".