mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162
Outcome: referred to
The respondents advanced an alternative argument to address the contingency that the husband's evidence might fall outside the exception in s 424A(3)(b). The respondents submitted that McInnis FM was correct in applying the decision in VBAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 ( "VBAP" ). In VBAP , the Tribunal had rejected the applicant's claim on four separate bases. North J accepted at [31] that, in relation to one of these bases, s 424A may not have been complied with. However, his Honour held that, despite this non-compliance, he could not accept a submission that the Tribunal's decision must be set aside. His Honour distinguished SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 (" SAAP "), pointing out that SAAP was a case in which the only ground relied upon was a ground on which jurisdictional error was established. In his Honour's view, SAAP does not stand for the proposition that, if there is a breach of s 424A in relation to one ground upon which a decision is made, and there exist one or more grounds upon which the decision is not or cannot be impeached, the decision nevertheless fails.
Case: SZEEU v Minister for Immigration and Multicultural Affairs [2006] FCAFC 2
Outcome: referred to
It is unnecessary for me to deal with this argument because I have reached the conclusion that s 424A does not apply to the husband's evidence. In these circumstances, and having regard to the recent decision of the Full Court (Moore, Weinberg and Allsop JJ) in SZEEU v Minister for Immigration and Multicultural Affairs [2006] FCAFC 2 , I wish to reserve my opinion on the argument, both generally and in relation to its application in a case where the allegedly independent findings underpin a conclusion that the applicant's claims are not credible.
Case: Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558
Outcome: cited
As Kenny J observed in Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558 at [4] , on an appeal conducted by way of re-hearing, such as an appeal from a judgment of the Federal Magistrates Court, 'the powers of an appellate court are exercisable only if the appellant can demonstrate that, having regard to the evidence before the appellate court, the judgment under appeal is a consequence of some legal, factual or discretionary error'. The appellant has failed to point to any error in the decisions of the Tribunal and McInnis FM. 28 In my opinion, for the above reasons, the notice of appeal and the appellant's submissions, both written and oral, do not disclose any error in the decision of McInnis FM, or for that matter in the decision of the Tribunal. 29 I dismiss the appeal and order that the appellant pay the respondents' costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Young. Associate: Dated: 9 March 2006 Counsel for the Appellant: Appeared in person with interpreter Counsel for the Respondents: Mr M. Felman Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 23 February 2006 Date of Judgment: 9 March 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/176.html
Case: Lota Warria ( on behalf of the Poruma and Masig Peoples) v Queensland (2005) 223 ALR 62
Outcome: cited
The next question is whether it appears to be appropriate to make the orders consented to by the parties. As noted by Black CJ in Lota Warria ( on behalf of the Poruma and Masig Peoples) v Queensland (2005) 223 ALR 62 at [7], the discretion conferred by s 87(1) must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act. That includes the resolution of native title disputes by mediation and agreement. 9 As in the Poruma and Masig Peoples case, the requisite continuous physical, spiritual and cultural connection of the Eastern Guruma people with Determination Area A is common ground and there is evidence to support that connection. Orders may be made under s 87 where the Court is not provided with all of the evidence of the primary facts substantiating native title where the Court is satisfied that the parties have freely and on an informed basis come to an agreement ( Ward v State of Western Australia [2006] FCA 1848 at [8] ).
Case: Ward v State of Western Australia [2006] FCA 1848
Outcome: cited
As in the Poruma and Masig Peoples case, the requisite continuous physical, spiritual and cultural connection of the Eastern Guruma people with Determination Area A is common ground and there is evidence to support that connection. Orders may be made under s 87 where the Court is not provided with all of the evidence of the primary facts substantiating native title where the Court is satisfied that the parties have freely and on an informed basis come to an agreement ( Ward v State of Western Australia [2006] FCA 1848 at [8] ).
Case: Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (No 2) [2000] FCA 2 ; (2000) 96 FCR 491
Outcome: referred to
In Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (No 2) [2000] FCA 2 ; (2000) 96 FCR 491, French J indicated (at [20] [21]) that the expression "unconscionable", in the context of s 51AA , might extend to include, at least, duress and undue influence. However, in GPG (Australia Trading) Pty Ltd v GIO Australia Holdings Ltd [2001] FCA 1761 ; (2001) 117 FCR 23, Gyles J expressed the more narrow view that the provision did not extend to encompass all equitable grounds of relief in which unconscionable or unconscientious conduct was an element. His Honour considered that the section was instead limited in its reference to the recognised "unconscionable dealing" ground of relief. In the High Court Berbatis decision, Gummow and Hayne JJ noted that they were not required to resolve the conflict between these two views. Accordingly, the issue remains unresolved. See the discussion in Paul Vout (ed), Unconscionable Conduct: The Laws of Australia (2006), [35.9:35]; and Russell V Miller, Miller's Annotated Trade Practices Act : Australian Competition and Consumer Law (2007, 28 th ed), 486.
Case: Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd [2003] HCA 18 ; (2003) 214 CLR 51
Outcome: applied
Mr Parncutt's argument was quite simple. He submitted that the conduct alleged against his clients amounted to nothing more than various breaches of contract. He submitted that in order to amount to unconscionable conduct there had to be something more than a mere breach of contract. He referred to a number of authorities, including, in particular, Commercial Bank of Australia Limited v Amadio [1983] HCA 14 ; (1983) 151 CLR 447; Australian Competition &amp; Consumer Commission v Samton Holdings Pty Ltd [2002] FCA 62 ; (2002) 117 FCR 301; and Australian Competition &amp; Consumer Commission v C G Berbatis Holdings Pty Ltd [2003] HCA 18 ; (2003) 214 CLR 51.
Case: Australian Competition and Consumer Commission v Samton Holdings Pty Ltd [2002] FCA 62 ; (2002) 117 FCR 301
Outcome: applied
Mr Parncutt's argument was quite simple. He submitted that the conduct alleged against his clients amounted to nothing more than various breaches of contract. He submitted that in order to amount to unconscionable conduct there had to be something more than a mere breach of contract. He referred to a number of authorities, including, in particular, Commercial Bank of Australia Limited v Amadio [1983] HCA 14 ; (1983) 151 CLR 447; Australian Competition &amp; Consumer Commission v Samton Holdings Pty Ltd [2002] FCA 62 ; (2002) 117 FCR 301; and Australian Competition &amp; Consumer Commission v C G Berbatis Holdings Pty Ltd [2003] HCA 18 ; (2003) 214 CLR 51. 17 Mr Marantelli's response was equally straightforward. He submitted that the categories of unconscionability were not closed. He argued that the Court should not apply strike out procedures in a way that might stultify the development of the law. He contended that this was a case in which, on the facts as pleaded, not only had the ninth to fifteenth respondents been involved in deliberately causing the first to fifth respondents to breach their contractual obligations, they had also facilitated putting the assets of those first five respondents out of the reach of the applicant. He relied in particular upon HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822 , where he submitted Einfeld J had accepted the proposition that a breach of contract alone could give rise to unconscionable conduct. He also placed some reliance upon the decision of the Full Court of the Federal Court in Samton . 19 Following Amadio , there were a number of cases that discussed the doctrine of unconscionability. However, it was not until Samton that the Full Court of the Federal Court held that unconscionability in the context of s 51AA requires conduct to be identified that supports the grant of relief on principles set out in specific equitable doctrines, rather than requiring unconscionability at large.
Case: Commercial Bank of Australia Limited v Amadio [1983] HCA 14 ; (1983) 151 CLR 447
Outcome: applied
Mr Parncutt's argument was quite simple. He submitted that the conduct alleged against his clients amounted to nothing more than various breaches of contract. He submitted that in order to amount to unconscionable conduct there had to be something more than a mere breach of contract. He referred to a number of authorities, including, in particular, Commercial Bank of Australia Limited v Amadio [1983] HCA 14 ; (1983) 151 CLR 447; Australian Competition &amp; Consumer Commission v Samton Holdings Pty Ltd [2002] FCA 62 ; (2002) 117 FCR 301; and Australian Competition &amp; Consumer Commission v C G Berbatis Holdings Pty Ltd [2003] HCA 18 ; (2003) 214 CLR 51. 18 As is well-known, the High Court confirmed the doctrine of unconscionability in Amadio . In that case, Mason J (as his Honour then was) stated (at 461): "But relief on the ground of "unconscionable conduct" is usually taken to refer to the class of case in which a party makes unconscientious use of his superior position or bargaining power to the detriment of a party who suffers from some special disability or is placed in some special situation of disadvantage, e.g., a catching bargain with an expectant heir or an unfair contract made by taking advantage of a person who is seriously affected by intoxicating drink. Although unconscionable conduct in this narrow sense bears some resemblance to the doctrine of undue influence, there is a difference between the two. In the latter the will of the innocent party is not independent and voluntary because it is overborne. In the former the will of the innocent party, even if independent and voluntary, is the result of the disadvantageous position in which he is placed and of the other party unconscientiously taking advantage of that position." 19 Following Amadio , there were a number of cases that discussed the doctrine of unconscionability. However, it was not until Samton that the Full Court of the Federal Court held that unconscionability in the context of s 51AA requires conduct to be identified that supports the grant of relief on principles set out in specific equitable doctrines, rather than requiring unconscionability at large. 22 In Berbatis , the High Court upheld a decision of the Full Court of this Court. It did so on the basis that the facts found fell short of what would attract the operation of the principles expounded in Amadio and therefore a breach of s 51AA could not be established.
Case: GPG (Australia Trading) Pty Ltd v GIO Australia Holdings Ltd [2001] FCA 1761 ; (2001) 117 FCR 23
Outcome: referred to
In Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (No 2) [2000] FCA 2 ; (2000) 96 FCR 491, French J indicated (at [20] [21]) that the expression "unconscionable", in the context of s 51AA , might extend to include, at least, duress and undue influence. However, in GPG (Australia Trading) Pty Ltd v GIO Australia Holdings Ltd [2001] FCA 1761 ; (2001) 117 FCR 23, Gyles J expressed the more narrow view that the provision did not extend to encompass all equitable grounds of relief in which unconscionable or unconscientious conduct was an element. His Honour considered that the section was instead limited in its reference to the recognised "unconscionable dealing" ground of relief. In the High Court Berbatis decision, Gummow and Hayne JJ noted that they were not required to resolve the conflict between these two views. Accordingly, the issue remains unresolved. See the discussion in Paul Vout (ed), Unconscionable Conduct: The Laws of Australia (2006), [35.9:35]; and Russell V Miller, Miller's Annotated Trade Practices Act : Australian Competition and Consumer Law (2007, 28 th ed), 486.
Case: HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822
Outcome: discussed
Mr Marantelli's response was equally straightforward. He submitted that the categories of unconscionability were not closed. He argued that the Court should not apply strike out procedures in a way that might stultify the development of the law. He contended that this was a case in which, on the facts as pleaded, not only had the ninth to fifteenth respondents been involved in deliberately causing the first to fifth respondents to breach their contractual obligations, they had also facilitated putting the assets of those first five respondents out of the reach of the applicant. He relied in particular upon HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822 , where he submitted Einfeld J had accepted the proposition that a breach of contract alone could give rise to unconscionable conduct. He also placed some reliance upon the decision of the Full Court of the Federal Court in Samton . 29 Further, I reject the contention that Einfeld J in HECEC held that a breach of contract alone could give rise to unconscionable conduct. The case is replete with references to the economic disadvantage of the applicant as against the respondents who were various government ministers, and State instrumentalities. Mr Marantelli could point to no case in which a mere breach of contract had been held to give rise to unconscionable conduct. That is not surprising. The High Court has made it abundantly clear that there are limits upon the doctrine of unconscionability, and that the term is not to be used simply as a synonym for general unfairness. 30 It was for these reasons that I concluded that the mere allegation that the ninth to fifteenth respondents had caused the first to fifth respondents to breach their contractual obligations to the applicant, and facilitated the sixth to eighth respondents in gaining the benefits of those breaches, could not of itself amount to unconscionable conduct. In effect, all that was alleged against the ninth to fifteenth respondents is that they were responsible, in various ways, for the failure of the first to fifth respondents to comply with the terms of the various licence agreements. 31 There was no suggestion in the further amended statement of claim of any inequality of position, or bargaining power, between the applicant and the ninth to fifteenth respondents. It was also not suggested that the applicant was in a position of special vulnerability. Although it was pleaded that those respondents had been in business with the applicant, it was not suggested that that fact alone gave rise to a fiduciary relationship. Nor was it suggested that the conduct of those respondents amounted to a breach of fiduciary duty. Although it was pleaded that the respondents had extensive knowledge of the business from their involvement in it, it was not suggested that they misused that information when they facilitated the transfer of the business from the first to fifth respondents to the sixth to eighth respondents.
Case: Campbell v Bogar (unreported, Full Court of the Industrial Relations Court of Australia, Ryan, Moore and North JJ, 3 July 1996)
Outcome: considered
Counsel for the Union, whose submissions on this point were adopted by counsel for Mr Nicolaides and other candidates for whom she also appeared by leave, suggested that the 'nothing valid' contention found support in two authorities. In Campbell v Bogar (unreported, Full Court of the Industrial Relations Court of Australia, Ryan, Moore and North JJ, 3 July 1996), the Court referred to what is in effect the current r 5.5 of the Union's rules, which was then numbered as r 3(7). The Court's examination of this rule was in the context of transitional rules that were designed to facilitate the amalgamation of earlier registered organisations to become the Union. At issue was the question whether the office of Federal Secretary, Food and Confectionery Division, was a full-time office. The Court's examination of r 3(7) was in the context of determining this question. In the course of setting out its reasoning as to the relationship between provisions of a transitional rule and provisions that were of more permanent duration, the Court said: "the combined effect of r 3(7) [and other provisions of rule 3] is to prohibit a person nominating for the office of both Regional Secretary and Assistant National Secretary Food and Confectionery Division." This was simply a statement of the effect of r 3(7), in conjunction with other provisions of the Union's rules. The Court did not deal at all with the consequences of a person nominating for more than one office, in contravention of r 3(7).
Case: Re Bogar and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, Food and Confectionery Division (unreported, Federal Court of Australia, North J, 28 August 1998)
Outcome: considered
Counsel for the Union also argued that the 'nothing valid' view drew support from the judgment of North J in Re Bogar and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, Food and Confectionery Division (unreported, Federal Court of Australia, North J, 28 August 1998). In that case, his Honour dealt with the provisions of what appear by then to have become r 3(8) of the rules of the Union, which were the same as the relevant provisions of the current r 5.5. It appeared that one candidate had been nominated for both Tasmanian Regional Secretary and Federal Secretary of the Food and Confectionery Division of the Union. The candidate had been declared elected unopposed as Tasmanian Regional Secretary. The inquiry before North J was solely into the election for the office of Federal Secretary of the Food and Confectionery Division. The question was whether the candidate's nomination for that office should have been accepted. In the course of his reasons for judgment, North J referred to the judgment of the Full Court of the Industrial Relations Court of Australia in the earlier Bogar case, quoting substantial passages, including the passage I have quoted above. His Honour went on to say: 'The decision of the Full Court is clear authority that r 3(8) prohibits a person nominating for the offices of Federal Secretary of the Division and Regional Secretary of the Division outside the transitional period.' 17 North J then held that the nomination of the relevant candidate for the position of Federal Secretary of the Food and Confectionery Division had been accepted in breach of r 3(8), and that this was an irregularity in the election. His Honour does not appear to have made any finding as to the order in which the two nominations had been received by the returning officer. It is not clear that the conclusion was based either on the assumption that the 'first in time' view should prevail, or that the 'nothing valid' view was correct. His Honour did not attempt to deal with the question of the validity of the candidate's election to the position of Tasmanian Regional Secretary. In other words, what his Honour said simply restated the effect of what is now r 5.5, but did not deal in any way with the consequences of a contravention of that rule, other than to hold that the acceptance of the one nomination relevant to the proceeding before him amounted to an irregularity. The result is explicable on the basis that it was unclear whether there was any difference in the time of lodging of the two nominations but, having been declared elected as Tasmanian Regional Secretary, the candidate must have been taken to have elected to treat the nomination for that office as valid, which necessitated that the nomination for Federal Secretary of the Food and Confectionery Division was invalid.
Case: Mellor v Horn (1988) 25 IR 157
Outcome: followed
The 'last in time' argument is novel. It has not been considered expressly by any court previously. It is based on the principle of surrender by implication. That principle has been applied as the doctrine of incompatible offices in cases such as Egan v Maher [No. 2] (1978) 35 FLR 252 at 263, Mellor v Horn (1988) 25 IR 157 at 159 161 and Johnson v Beitseen (1989) 41 IR 395 at 412 413. In Re Cholosznecki; Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union [2006] FCA 452 (2006) 151 IR 218, the principle of implied surrender was applied in determining that a member of an organisation had surrendered her membership of one of its branches by applying to become, and being accepted and treated as, a member of another branch, where membership of more than one branch was expressly prohibited by the rules. The principle operates by implication of law, rather than by implied intention. The intention is imputed to a person, as a result of the assumption of a second position incompatible with the first, to relinquish the first position. The principle is subject to the express provisions of the rules, but not easily displaced by them, because it has been held to apply even where there were express, mandatory provisions about resignation. The principle of implied surrender is analysed in Cholosznecki at [29] [34]. In the present case, counsel for Mr Reid and Mr Wisniewski contended that r 5.5 does nothing more than to bring forward the operation of the doctrine of incompatible offices to the stage where nominations for offices occur. He argued that, just as the assumption of a second office, incompatible with one already held, is taken to be an implied resignation of the first office, so the lodging of a second nomination, incompatible with one already lodged, is taken to be the implied withdrawal of the first nomination.