mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Cashman &amp; Partners v Secretary, Department of Human Services and Health [1995] FCA 1730 ; (1995) 61 FCR 301
Outcome: applied
authority be needed to support the proposition, it is found in Cashman &amp; Partners v Secretary, Department of Human Services and Health [1995] FCA 1730 ; (1995) 61 FCR 301 at 306. In that case, the recipient of a request for access to documents had not made a decision within the 30 day period. The person making the request applied to the Tribunal for review of the deemed refusal. The Tribunal directed the recipient of the request to make a decision. The recipient did not comply with the direction, but filed an affidavit identifying documents as falling within the request. The Tribunal made a decision setting aside the deemed decision to refuse access by consent. It remitted the matter to the recipient of the request with a direction to grant access to certain designated documents. The question then arose as to whether the Tribunal should make a recommendation, pursuant to s 66 of the FOI Act, for the payment of costs of the proceeding in the Tribunal. The Tribunal declined to make a recommendation. The proceeding in the Court was an appeal from the decision to decline to make a recommendation for the payment of costs. On the appeal, at 305, Beazley J found that the Tribunal had identified what she described as "the second decision" as the relevant decision for its review. Her Honour then proceeded at 306 to hold that the relevant decision was the deemed decision refusing to grant access to the documents, not the decision to make the affidavit setting out the documents access to which was granted. In doing so, her Honour declined to distinguish Hounslow v Department of Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Sweeney J, 20 December 1985) on the basis that, in that case, there had been an actual decision to refuse access to documents. Her Honour said: I do not consider the ground upon which counsel sought to distinguish Sweeney J's decision in Hounslow to be a relevant point of distinction. An applicant is in no different position in the case of a deemed refusal than in the case of a considered refusal. In each case, the applicant is not granted access to documents. In each case, the applicant has the right to apply to the Tribunal for review of the decision although the relevant factors on review will, of course, be different. In my opinion, subject to the respondent's s 56(5) submission, Sweeney J's decision in Hounslow applies to this case. It is not entirely clear what her Honour meant by the proposition that the relevant factors on review will be different as between an actual decision to refuse access and a deemed decision to refuse access. In each case, the task of the Tribunal will be to make the correct or preferable decision on the material before the Tribunal. Cashman is clear authority for the view that the Tribunal's task in the case of a deemed decision to refuse access to documents is no different from its task in the case of an actual decision to refuse access.
Case: Director-General of Social Services v Chaney [1980] FCA 87 ; (1980) 47 FLR 80
Outcome: cited
31 October 2007, the Tribunal gave directions, requiring the Attorney-General and the Minister to file and serve a summary of all the evidence detailing the searches conducted and any other documents on which they intended to rely at the hearing. The Tribunal scheduled a directions hearing for 26 November 2007. By letter dated 12 November 2007, Ms Bienstein submitted that the directions were inconsistent with the law. She submitted that the Tribunal should have directed that "a decision be furnished and a section 37 statement be filed and served in support of that decision." Ms Bienstein sought amendment of the directions accordingly. There was argument about this issue at a telephone directions hearing on 26 November 2007. Following that, on 4 January 2008, the Tribunal published a decision expressed in the following terms: The Tribunal has decided that: (1) it has no power to direct the Attorney-General or the Justice Minister to make a decision; (2) it has jurisdiction to review the decisions deemed to have been made by the Attorney-General and the Justice Minister i.e. decisions to refuse Mrs Bienstein's request for access to documents; (3) the Attorney-General and Justice Minister have a duty to comply with s 37(1) of the AAT Act and, under that section, the time within which they must do so to is extended until 1 February 2008; and (4) it is under no obligation to order that the directions hearing be recorded. At the same time, the Tribunal gave written reasons for that decision. See Bienstein v Attorney-General (Commonwealth of Australia) [2008] AATA 7. On 4 February 2008, Ms Bienstein filed in this Court a purported appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") in respect of this decision of the Tribunal. That proceeding became number VID 65 of 2008. Ms Bienstein subsequently discontinued it, probably as a result of becoming aware of authorities such as Director-General of Social Services v Chaney [1980] FCA 87 ; (1980) 47 FLR 80 , in which it has been held that an interlocutory ruling or decision by the Tribunal is not necessarily a "decision" from which an appeal lies pursuant to s 44 of the AAT Act.
Case: Hounslow v Department of Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Sweeney J, 20 December 1985)
Outcome: cited
authority be needed to support the proposition, it is found in Cashman &amp; Partners v Secretary, Department of Human Services and Health [1995] FCA 1730 ; (1995) 61 FCR 301 at 306. In that case, the recipient of a request for access to documents had not made a decision within the 30 day period. The person making the request applied to the Tribunal for review of the deemed refusal. The Tribunal directed the recipient of the request to make a decision. The recipient did not comply with the direction, but filed an affidavit identifying documents as falling within the request. The Tribunal made a decision setting aside the deemed decision to refuse access by consent. It remitted the matter to the recipient of the request with a direction to grant access to certain designated documents. The question then arose as to whether the Tribunal should make a recommendation, pursuant to s 66 of the FOI Act, for the payment of costs of the proceeding in the Tribunal. The Tribunal declined to make a recommendation. The proceeding in the Court was an appeal from the decision to decline to make a recommendation for the payment of costs. On the appeal, at 305, Beazley J found that the Tribunal had identified what she described as "the second decision" as the relevant decision for its review. Her Honour then proceeded at 306 to hold that the relevant decision was the deemed decision refusing to grant access to the documents, not the decision to make the affidavit setting out the documents access to which was granted. In doing so, her Honour declined to distinguish Hounslow v Department of Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Sweeney J, 20 December 1985) on the basis that, in that case, there had been an actual decision to refuse access to documents. Her Honour said: I do not consider the ground upon which counsel sought to distinguish Sweeney J's decision in Hounslow to be a relevant point of distinction. An applicant is in no different position in the case of a deemed refusal than in the case of a considered refusal. In each case, the applicant is not granted access to documents. In each case, the applicant has the right to apply to the Tribunal for review of the decision although the relevant factors on review will, of course, be different. In my opinion, subject to the respondent's s 56(5) submission, Sweeney J's decision in Hounslow applies to this case. It is not entirely clear what her Honour meant by the proposition that the relevant factors on review will be different as between an actual decision to refuse access and a deemed decision to refuse access. In each case, the task of the Tribunal will be to make the correct or preferable decision on the material before the Tribunal. Cashman is clear authority for the view that the Tribunal's task in the case of a deemed decision to refuse access to documents is no different from its task in the case of an actual decision to refuse access.
Case: Hepples v Federal Commissioner of Taxation [1992] HCA 3 ; (1992) 173 CLR 492
Outcome: cited
Mr Steward for Orica drew attention to obstacles he maintained the Commissioner will need to overcome in order to establish some of the alternative formulations of his case. However, I do not regard any of the new bases upon which the Commissioner desires to proceed as bound to fail. Because I will in due course have to hear full argument on the various points, I do not propose to say any more about the Commissioner's prospects of success on the various alternatives. The argument on the merits of the proposed new paragraphs occupied only 40 minutes or thereabouts. It is more appropriate that the merits be ruled on after more sustained submissions at trial. In this connection Mason CJ's observations in Hepples v Federal Commissioner of Taxation [1992] HCA 3 ; (1992) 173 CLR 492 at 497 are pertinent: The provisions of s 160M(5)(6) and (7) ... and provisions to which they are related are extraordinarily complex. They must be obscure, if not bewildering, both to the taxpayer who seeks to determine his or her liability to capital gains tax by reference to them and to the lawyer who is called upon to interpret them. 12 Other parts of the Statement were attacked on the basis of form or lack of particularity. These complaints are best dealt with, not by disallowing the amendments or giving leave subject to the Commissioner accommodating the complaints, but by Orica requesting clarifications or particulars. 13 Many of the amendments and additions to the "Facts" paragraphs of the Statement are useful clarifications and particularisations which will assist the parties and the Court more readily to understand the way the Commissioner's case is put.
Case: Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146
Outcome: cited
I have taken into account the discretionary considerations Orica has relied on, in particular the Commissioner's failure to provide an explanation for the delay in seeking to amend, and Orica's ongoing liability to general interest charge. On the other hand, I bear in mind what was said in the joint judgment in Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 , and the desirability of permitting a litigant to raise the issues he wishes to pursue even though, by doing so at a later stage, it causes inconvenience and expense to his opponent. I have also taken into account the complex nature of the provisions of Part IIIA that are involved in the case. See [11]. Unlike some of the cases relied on by Orica, the amendments are not sought shortly before trial. The Commissioner has always contended that Orica's rights under the Distribution Agreement are an asset for the purposes of Part IIIA , that Orica disposed of that asset in circumstances where there was a capital gain, and that the disposition of that asset was a taxable event. The proposed changes do not alter that stand. Rather they amplify the ways in which the Commissioner will contend that the events that happened, most of which are not controversial, gave rise to a taxable event. In this connection I note that the "Facts" paragraphs of the Statement ([1] to [29]) are not significantly altered. Apart from the added particularisations to which I have referred, and cosmetic changes to make certain paragraphs accord more closely with the underlying documents, only pars 17 and 20A are new. Those two paragraphs are, however, of no particular significance, and neither of them will disclose to Orica anything of which it was not already well aware. 15 I will give the Commissioner leave to file the Statement. However, he may wish to consider whether, in view of the new paragraphs dealing with the separate asset ([38A] to [38E]), par 33A should retain its present form. 16 The Commissioner must pay Orica's costs of the motion notice of which was filed on 21 April 2008. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg. Associate: Dated: 17 June 2008 Counsel for the Applicant: S Steward Solicitor for the Applicant: Mallesons Stephen Jaques Counsel for the Respondent: M Wheelahan SC and F Alpins Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 30 May 2008 Date of Judgment: 17 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/906.html
Case: Connell v Auckland City Council [1977] 1 NZLR 630
Outcome: followed
In Connell v Auckland City Council [1977] 1 NZLR 630, Chilwell J helpfully provided a further reminder as to the value that reasons serve in the administration of justice. His Honour there observed, at 634: A matter which I have not mentioned, which is another reason for requiring the stating of reasons, is this: every litigant who loses his action, whether it be in the civil or criminal jurisdiction, is a disappointed litigant. That is inevitable and is a logical result of our judicial system. There is all the world of difference between a disappointed litigant and a disturbed litigant. In the latter category come litigants who cannot understand why the decision went against him. In this case the appellant would be justified in feeling disturbed as he presumably does because he has brought this appeal. He is disturbed that justice did not appear to him to have been done. It is of the utmost importance that Her Majesty's subjects should have faith in our judicial system. By far the greatest number of civil and criminal cases come before the lower court. One should not draw distinctions between courts but it is of fundamental importance that the lower courts, which deal with so much work and with whom the average citizen has greater contact, should maintain respect for and faith in the judicial system.
Case: Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 , 168 ALR 407
Outcome: followed
Nor would a reader be better informed as to the finding made as to credibility or the basis upon which it was made. It may readily be accepted that findings of credibility are usually findings of fact which are findings par excellence within the province of the Tribunal and that no detailed reasons need be given as to why a particular witness was not believed: Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67] , 168 ALR 407 at 423 per McHugh J. In the present proceedings, however, little is disclosed other than that credibility apparently played a part in the finding being alluded to. 33 A further consideration taken into account in concluding that the reasons of the Federal Magistrate in the present proceedings do not adequately explain the basis upon which his Honour proceeded is the very fact that the grounds advanced were within a comparatively limited compass. Frequently it may be found that a challenge to a decision of the Refugee Review Tribunal is a challenge to substantially the entirety of the findings made by that Tribunal. In the present proceedings, the now Appellants attempted to confine the grounds upon which review was sought. The more confined the grounds, the easier it may be to address the reasons why they do or do not prevail. 34 The decision of the Federal Magistrate essentially sets forth a series of conclusions with little explanation, other than concurrence being expressed with the decision of the Tribunal. 35 Although it has been concluded that the reasons provided by the Federal Magistrate did not adequately set forth the basis upon which his Honour proceeded or the decision in fact reached, it is considered that any inadequacy in those reasons does not provide any basis for concluding that the Federal Magistrate was biased or otherwise prejudiced against the Appellants. 36 The final ground of review has not been made out and is rejected. 37 The inadequacy in the reasons provided is a basis upon which an appeal could be allowed. 38 The Respondent Minister, however, has submitted that that course should be resisted. It is contended that such reasons as have been provided, albeit inadequately, do provide a sound basis upon which it should be concluded that an order remitting the proceedings to the Federal Magistrate for further consideration is but an exercise in futility. It is contended that in all likelihood, the Federal Magistrate would reach the same conclusion albeit for reasons more expansively provided.
Case: Penhall-Jones v State of New South Wales [2006] FCA 934
Outcome: followed
The Respondent Minister in the present appeal accepted that the Federal Magistrate was under an obligation to provide reasons for his decision. It is thus an error of law for a Federal Magistrate to fail to give reasons for dismissing an application to review a decision of the Refugee Review Tribunal: SZDCJ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 1500 at [16] per Jacobson J. Albeit in a different statutory context, it has also been recognised that a Federal Magistrate should give sufficient reasons for reaching a conclusion that an application should be summarily dismissed: Penhall-Jones v State of New South Wales [2006] FCA 934 at [25] . Tamberlin J there said that the reasons: ... do not have to be elaborate or excessively detailed, but the touchstone is that the reasons must indicate to the parties why the decision was made in order to allow them to exercise such rights as may be available in respect of that decision ...
Case: SZBYR v Minister for Immigration &amp; Citizenship [2007] HCA 26 , 235 ALR 609
Outcome: followed
No explanation was provided in the present appeal as to why the alleged breach of s 424A was not relied upon before the Federal Magistrate. Counsel for the Respondent Minister correctly submitted that the new ground had no prospects of success. The now Appellants' written submission sought to expand the ground by contending that there should have been notification and an opportunity to make submissions given " the relative importance of the information to the reasoning process ". Section 424A(1) , however, imposes no obligation upon the Tribunal to allow an applicant an opportunity to comment on its reasoning process or how it has proceeded to assess particular pieces of information advanced before it for consideration: SZBYR v Minister for Immigration &amp; Citizenship [2007] HCA 26 at [18] , [2007] FCA 26 ; 235 ALR 609 at 616. Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ there held: [18] ... if the reason why the tribunal affirmed the decision under review was the tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of para (a) of s 424A(1). Again, if the tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs 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. If the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself. 48 It is thus considered that the additional ground sought to be raised is without merit and that leave to amend to raise an alleged breach of s 424A(1) should be refused. 49 It is concluded that the reasons for decision of the Federal Magistrates Court fail to adequately address the issues before that Court for resolution. The Appellants, it is considered, would justifiably be left with a " real sense of grievance " that they did not know why the Federal Magistrate rejected their claims.
Case: SZDCJ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 1500
Outcome: followed
The Respondent Minister in the present appeal accepted that the Federal Magistrate was under an obligation to provide reasons for his decision. It is thus an error of law for a Federal Magistrate to fail to give reasons for dismissing an application to review a decision of the Refugee Review Tribunal: SZDCJ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 1500 at [16] per Jacobson J. Albeit in a different statutory context, it has also been recognised that a Federal Magistrate should give sufficient reasons for reaching a conclusion that an application should be summarily dismissed: Penhall-Jones v State of New South Wales [2006] FCA 934 at [25] . Tamberlin J there said that the reasons: ... do not have to be elaborate or excessively detailed, but the touchstone is that the reasons must indicate to the parties why the decision was made in order to allow them to exercise such rights as may be available in respect of that decision ...
Case: SZIBR v Minister for Immigration &amp; Citizenship [2008] FCA 50
Outcome: followed
So understood, objection was taken on behalf of the Respondent Minister. Leave to amend requires an adequate explanation to be provided as to why the new ground was not previously relied upon before the Federal Magistrate and may only be granted if the new ground has some merit: VUAX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 158 at [46] [48]; SZIBR v Minister for Immigration &amp; Citizenship [2008] FCA 502 at [38] [41]; SZLBJ v Minister for Immigration &amp; Citizenship [2008] FCA 609.
Case: SZKLO v Minister for Immigration &amp; Citizenship [2008] FMCA 48
Outcome: cited
On 4 April 2007 the now Appellants applied to the Federal Magistrates Court for a review of the Tribunal's decision. That Court, in what appears to be an ex tempore judgment, dismissed the application on 17 January 2008: SZKLO v Minister for Immigration &amp; Citizenship [2008] FMCA 48. 5 The Appellants now appeal to this Court. 6 The Grounds of Appeal , in summary form, assert that: (i) the " Federal Magistrate failed to address the real issues raised by the Applicants in the Original Application "; (ii) the Federal Magistrate erred in the manner in which that Court dealt with the submissions before it and " took 'a least path of resistance' to uphold in favour of the Respondent "; and (iii) the Federal Magistrate was manifestly prejudiced against the claims being advanced.
Case: SZLBJ v Minister for Immigration &amp; Citizenship [2008] FCA 609
Outcome: followed
So understood, objection was taken on behalf of the Respondent Minister. Leave to amend requires an adequate explanation to be provided as to why the new ground was not previously relied upon before the Federal Magistrate and may only be granted if the new ground has some merit: VUAX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 158 at [46] [48]; SZIBR v Minister for Immigration &amp; Citizenship [2008] FCA 502 at [38] [41]; SZLBJ v Minister for Immigration &amp; Citizenship [2008] FCA 609.