mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Pearson v Arcadia Stores, Guyra, Limited (No 1) [1935] HCA 41 ; (1935) 53 CLR 571
Outcome: cited
Nylex cited Pearson v Arcadia Stores, Guyra, Limited (No 1) [1935] HCA 41 ; (1935) 53 CLR 571 at 583.7 and at 585 586. In that case, the High Court considered certain grounds that might be available to a party against whom an interlocutory injunction is sought as grounds for resisting the grant of such an injunction. In particular, the Court considered whether, as a matter of principle, the fact that the claimant for the interlocutory injunction is in breach of the relevant contract or some closely related contract is a matter which might go to the exercise of the Court's discretion to grant or refuse the injunction when the basis of the claim is in contract. In that context their Honours said (53 CLR at 585 586): It is not every failure by the covenantee to observe stipulations entered into as part of transactions in which the covenant was given that disentitles the covenantee to an injunction. If, by reason of the covenantee's own failure to perform interdependent covenants made by him, the covenant has ceased to bind the covenantor at law, there is no obligation to enforce by injunction. It is, of course, plain that in the present case the contract of service could not operate to create a collateral condition upon which the covenant depended. But there may be cases, both in covenant and in simple contract, where, although the obligation for the enforcement of which an injunction is sought continues to subsist at law, either because there has been an election to affirm, or because a right to treat the obligation as discharged did not arise, yet in equity an injunction would be refused because it would be inequitable to require the obligation to be carried out specifically by a person who has through the default of the other contracting party failed to obtain a material part of the consideration which induced him to enter into the obligation. But the present case is not of that description. 131 I do not think that it can seriously be suggested in the present case that, by breaching the Distribution Agreement, as alleged by Nylex, Gardena has denied to Nylex a material part of the consideration which induced Nylex to enter into the contract in the first place. 132 Taking Nylex's submissions at their highest, they do not warrant such a conclusion. 133 Nylex has had the benefit of the Distribution Agreement and the Licence Agreement over a long period of time. Even if everything which it asserted before me were true insofar as Gardena's recent conduct was concerned, in my view, Nylex continued to receive the benefit of those contracts throughout 2007 and 2008. 134 When one appreciates that the particular matters relied upon by Nylex have either not been proven at all or are substantially in contest, Nylex's submissions fall away.
Case: Auckland Harbour Board v R [1924] AC 318
Outcome: referred to
Court is not satisfied that the Tribunal considered itself ' legally bound ' by such a consideration. Rather it referred to the fact that it was ' the starting point in considering exercise of discretion ', that is, that the Tribunal expressly acknowledged that despite such initial position, the discretion continues to exist. There is authority for the proposition that a payment made from consolidated revenue, unsupported by a valid appropriation, should be recovered: see Auckland Harbour Board v R [1924] AC 318 ; see also Sheppard J in Director General of Social Services v Hales [1983] FCA 81 ; (1983) 47 ALR 281 at 322-323 where his Honour said that a ' paramount consideration ' in such cases is the receipt by the person of monies unlawfully paid to them from consolidated revenue and that therefore it ought to, unless other circumstances exist, be repaid. Mere reference to such proposition as a starting point of consideration did not suggest that such proposition unduly fettered the Tribunal's decision.
Case: Defence Force Retirement and Death Benefits Authority v Chapman (2000) 63 ALD 351
Outcome: followed
is also instructive to consider the judgment of Weinberg J at first instance in Defence Force Retirement and Death Benefits Authority v Chapman (2000) 63 ALD 351. The Full Federal Court's decision in Chapman [2001] FCA 594 ; 108 FCR 537 does not bring into question the reasoning of Weinberg J at first instance. Rather, it affirms it. The reasoning of Wilcox J in the Full Federal Court decision is consistent with Weinberg J's observations in relation to s 5A(1)(a) of the DFRDB Act and the majority decision in Chapman [2001] FCA 594 ; 108 FCR 537 does not challenge such reasoning as their Honours, considering s 5A(1)(b) was applicable to Major Chapman's circumstances, said ' it is unnecessary to consider other bases for ineligibility '. That is, the majority did not make any finding in relation to s 5A(1)(a). Therefore, Weinberg J's decision, and reasons, are still good law in respect of his interpretation of s 5A(1)(a). Chapman [2001] FCA 594 ; 108 FCR 537 was silent on the interpretation of s 5(3) of the DFRDB Act. None of their Honours considered the section. The majority did not need to as s 5 as a whole was irrelevant for the purposes of s 5A(1)(b). It can be assumed that Wilcox J considered that Weinberg J's findings in relation to that section were correct as he did not mention s 5(3) even though he relied on s 5A(1)(a).
Case: Director General of Social Services v Hales [1983] FCA 81 ; (1983) 47 ALR 281
Outcome: referred to
Court is not satisfied that the Tribunal considered itself ' legally bound ' by such a consideration. Rather it referred to the fact that it was ' the starting point in considering exercise of discretion ', that is, that the Tribunal expressly acknowledged that despite such initial position, the discretion continues to exist. There is authority for the proposition that a payment made from consolidated revenue, unsupported by a valid appropriation, should be recovered: see Auckland Harbour Board v R [1924] AC 318 ; see also Sheppard J in Director General of Social Services v Hales [1983] FCA 81 ; (1983) 47 ALR 281 at 322-323 where his Honour said that a ' paramount consideration ' in such cases is the receipt by the person of monies unlawfully paid to them from consolidated revenue and that therefore it ought to, unless other circumstances exist, be repaid. Mere reference to such proposition as a starting point of consideration did not suggest that such proposition unduly fettered the Tribunal's decision. The Authority does not challenge the proposition that a discretion was vested in the Tribunal when it applied s 126(4) of the DFRDB Act. In the exercise of that discretion it was open to the decision maker to have regard to an unlimited range of matters, subject to their relevance, including the question whether compassionate considerations should apply: see Sheppard J in Hales at 321.
Case: Lokan and Defence Force Retirement and Death Benefits Authority [2007] AATA 1652
Outcome: distinguished
Tribunal cited the decision of Deputy President Hack in Lokan and Defence Force Retirement and Death Benefits Authority [2007] AATA 1652. In that decision his Honour said at [13]-[15], ' Mr Lokan got no benefit from the PAYG instalments because they represented tax payable on monies to which he was not entitled... In my view, there is no practical benefit that would be achieved by requiring Mr Lokan to repay the PAYG instalments '. However, the Full Federal Court on appeal in Lokan [2008] FCAFC 43 made the following consent orders: The appeal be allowed. The decision of the Administrative Appeals Tribunal dated 9 August 2007 that the respondent repay to the applicant the sum of $21,352.86 be set aside. The respondent repay to the applicant by way of fortnightly instalments of $300.00 the sum of $29,791.86, commencing 28 days after the date the Court affixes the stamp of the Court to these orders. The decisions of the applicant dated 31 October 2006 and 23 March 2007 be affirmed. There be no order as to costs. Their Honours were aware of the deficiencies in the Tribunal decision before them, stating at [7] ' there was no evidence before the Tribunal that would support that conclusion [namely that there would be no ' practical benefit ']'. The Full Federal Court decision thus overturned the decision of Deputy President Hack and the decision should not have been relied upon by the Tribunal.
Case: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Outcome: cited
Court finds that there is no evidence that the Tribunal erroneously exercised its discretion because it considered the Debt Recovery Policy. Rather, the Tribunal had regard to such policy as relevant policy instrument. Such reference results in consistency in administrative decision-making: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 680. In ground 2.9 the respondent submits that the Tribunal erred at [47] when considering itself ' legally bound ' to adopt a prima facie position that ' monies must be repaid unless there is some strong or cogent reason why policy may be overcome '. The respondent submits the Tribunal so erred because there is no such prima facie rule and the discretion at s 126(4) of the DFRDB Act contains no such fetter.
Case: VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 ; (2003) 131 FCR 102 
Outcome: referred to
second ground for review raised below by the appellants in their notice of appeal was that of actual bias or apprehension of bias 'in the making of the purported decision'. The notice of appeal raised a purported natural justice issue based on actual bias or apprehension of bias. Nicholls FM cited a number authorities of the Federal Court and the High Court upon that subject, and concluded on that issue adversely to the appellants, as follows: can see no basis for review of the Tribunal's decision on the basis of actual or apprehended bias. The [appellants] have brought no evidence whatsoever to ground a complaint that the Tribunal did not bring an open mind to the assessment of the claims. It is rarely the case that bias can be made out with reference to the decision record alone, and no further evidence has been provided by the applicant in this respect... .' In that context his Honour made reference to VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 ; (2003) 131 FCR 102 as an exemplification of those principles, where Kenny J found that a case of apprehended bias had been established adversely to a decision of the Refugee Review Tribunal, but which authority was said to exemplify the difficulty of establishing bias. I am unable to discern any viable footing for the appellants' case on bias, or reasonable apprehension of bias, to the extent that the same was ultimately pursued (if at all) on the present appeal, which was not entirely clear. As his Honour emphasised in any event, the doctrine of actual bias in the form of prejudgment seemingly invoked by the appellants required evidence of any such prejudgment by the decision-maker, to the extent that he or she is alleged to have been ' so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or argument may be presented', his Honour citing thereby Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at [72] (Gleeson CJ and Gummow J). No such evidence was adduced by the appellants.
Case: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 
Outcome: referred to
second ground for review raised below by the appellants in their notice of appeal was that of actual bias or apprehension of bias 'in the making of the purported decision'. The notice of appeal raised a purported natural justice issue based on actual bias or apprehension of bias. Nicholls FM cited a number authorities of the Federal Court and the High Court upon that subject, and concluded on that issue adversely to the appellants, as follows: can see no basis for review of the Tribunal's decision on the basis of actual or apprehended bias. The [appellants] have brought no evidence whatsoever to ground a complaint that the Tribunal did not bring an open mind to the assessment of the claims. It is rarely the case that bias can be made out with reference to the decision record alone, and no further evidence has been provided by the applicant in this respect... .' In that context his Honour made reference to VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 ; (2003) 131 FCR 102 as an exemplification of those principles, where Kenny J found that a case of apprehended bias had been established adversely to a decision of the Refugee Review Tribunal, but which authority was said to exemplify the difficulty of establishing bias. I am unable to discern any viable footing for the appellants' case on bias, or reasonable apprehension of bias, to the extent that the same was ultimately pursued (if at all) on the present appeal, which was not entirely clear. As his Honour emphasised in any event, the doctrine of actual bias in the form of prejudgment seemingly invoked by the appellants required evidence of any such prejudgment by the decision-maker, to the extent that he or she is alleged to have been ' so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or argument may be presented', his Honour citing thereby Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at [72] (Gleeson CJ and Gummow J). No such evidence was adduced by the appellants.
Case: VNAA v Minister for Immigration and Indigenous Affairs [2004] FCAFC 134 ; (2004) 136 FCR 407 
Outcome: referred to
the reasons which I have thus far outlined, Nicholls FM observed that he had been unable to distil any indication of a denial of procedural fairness on the part of the Tribunal below, notwithstanding the case foreshadowed to the Federal Magistrates Court to that effect. His Honour additionally observed on that subject that the Tribunal, in its later letter of 13 March 2003, had put the first appellant on notice that if he did not attend the Tribunal hearing, the consequences might be that the Tribunal would 'make a decision on your case without further notice' (see in that regard what appears in the first paragraph of the Tribunal's reasons for decision of 28 April 2003 under the heading 'Finding and Reasons' ). So much was described by his Honour as an indication by the Tribunal that any rejection of the invitation would lead to the kind of ' inevitable consequence ' spoken of by the Full Federal Court in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5] (French, Emmett and Dowsett JJ). However as Nicholls FM recorded, there was no attendance by or on behalf of any one or more of the present appellants, being a non-attendance which was unexplained, with the consequence of the Tribunal being '... authorised to proceed to decide the review in the applicant's absence' , his Honour citing ( inter alia ) VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 ; (2004) 136 FCR 407 at [16] (Sundberg and Hely JJ), and referring to s 426A of the Migration Act .
Case: VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559 
Outcome: referred to
further element of the case for denial of natural justice advanced by the appellants against the Minister in the Federal Magistrates Court below related to the use made beforehand by the Tribunal of the country information upon which it purportedly relied relevantly to its decision-making. The complaints made in that regard, as Nicholls FM recorded in the course of his reasons for decision, were that the Tribunal did not give to the appellants the country information on which it relied, and further that the Tribunal did not extend to the appellants an opportunity to evaluate or make submissions otherwise concerning the use of that information. By reason of those omissions of the Tribunal complained of, the appellants asserted denial of natural justice. His Honour observed that the appellants' application for review of the Tribunal decision predated the enactment of s 422B of the Migration Act headed 'Exhaustive statement of natural justice hearing rule' , with the consequence that '[t]he common law rules of procedural fairness are not excluded from applying in the case before me' . Nevertheless as his Honour proceeded to record, '... there is no general proposition that the failure to put adverse country information to an applicant, on its own, amounts to a breach of natural justice' , citing thereby the Full Federal Court's decision in VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559 at [17] (Gyles and Conti JJ) and [27]-[28] (Allsop J).
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437 
Outcome: referred to
should add for completeness, in relation to what the Tribunal had determined in the light of the country information available to it, that Nicholls FM further pointed out that '... the Tribunal is not required to invite comment on its thought processes on the way to its decision-making' , the Minister citing in support of that tenet what was said in Re Minister for Immigration and Multicultural Affairs Ex parte Applicant S154/2002 (2003) 201 ALR 437 by Gummow and Heydon JJ at [54] and [57]-[58], and by Kirby J at [85]-[86], and further in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592 by Northrop, Miles and French JJ. It was pointed out further in the joint judgment of Gummow and Heydon JJ in S154/2002 at [56]-[58] that the evidentiary rule in Browne v Dunn 'has no application to proceedings in the tribunal', except to the extent that the rule might be exemplified in the requirements of s 424A. In the present case however, so Nicholls FM further pointed out, the Tribunal had foreshadowed explicitly to the appellants the conclusions which were open to be reached on the material in evidence placed before it, and which would be possibly adverse to them, and accordingly that '... the applicant could not have been left in the dark as to the risk of an adverse finding being made' .
Case: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 
Outcome: referred to
should add for completeness, in relation to what the Tribunal had determined in the light of the country information available to it, that Nicholls FM further pointed out that '... the Tribunal is not required to invite comment on its thought processes on the way to its decision-making' , the Minister citing in support of that tenet what was said in Re Minister for Immigration and Multicultural Affairs Ex parte Applicant S154/2002 (2003) 201 ALR 437 by Gummow and Heydon JJ at [54] and [57]-[58], and by Kirby J at [85]-[86], and further in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592 by Northrop, Miles and French JJ. It was pointed out further in the joint judgment of Gummow and Heydon JJ in S154/2002 at [56]-[58] that the evidentiary rule in Browne v Dunn 'has no application to proceedings in the tribunal', except to the extent that the rule might be exemplified in the requirements of s 424A. In the present case however, so Nicholls FM further pointed out, the Tribunal had foreshadowed explicitly to the appellants the conclusions which were open to be reached on the material in evidence placed before it, and which would be possibly adverse to them, and accordingly that '... the applicant could not have been left in the dark as to the risk of an adverse finding being made' .
Case: SZHJR v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 203
Outcome: referred to
was placed by the appellants upon what was said by Sackville J in SZHJR v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 203 , where his Honour held at [19] and [22] as follows (so far as is material): ...It seems to me that the Magistrate proceeded on an erroneous assumption, namely, that the appellant had to persuade the Court to exercise a discretion in his favour before it could consider whether the RRT had indeed committed a jurisdictional error. The correct position was that the Magistrate had a discretion to withhold relief on various grounds, including unjustified delay, even if the appellant established that the RRT's decision was affected by a jurisdictional error. The difficulty with the approach of the Magistrate is that he did not ask whether the circumstances of the delay justified the withholding of relief in the event that the appellant established that the RRT had committed a jurisdictional error. Rather, the cases upon which he relied suggest that he required the appellant to satisfy the Court that discretion should be exercised in his favour, having regard to the fact that the delay exceeded one year. On any view, the appellant was guilty of long delay and no satisfactory excuse was or could be proffered for that delay. But the question asked by the Magistrate, in my view, was not the correct one and this led to his miscarrying of this issue.' In my opinion and contrary to the thrust of the appellants' submissions, Nicholls FM did enquire as to whether the circumstance of the delay justified the withholding of the relief in the event that the appellants established that the Tribunal had committed a jurisdictional error, and hence his Honour did meet the substance of the test as articulated by Sackville J above. Nicholls FM invited the appellants to comment on why their application was delayed, an invitation that ultimately led the first appellant to respond 'I have nothing to say regarding this matter'. His Honour proceeded thereafter to explore the issue of jurisdictional error. Incidentally I do not understand Nicholls FM to have relied merely on the fact of 13&#189; months per se, but rather upon the circumstances which he had otherwise comprehensively reviewed in his reasons for judgment contextually to that delay.
Case: R v Commonwealth Court of Conciliation and Arbitration: Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389 
Outcome: referred to
appellants contended next that what his Honour was primarily required to consider was whether 'the circumstances of the case made the withholding of [relief] the proper course', given that '[t]he writ issues as of right unless it is unjust to withhold it', the appellants citing in that regard R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389 at 400, and Aala at [51]-[52] and [56] per Gaudron and Gummow JJ. In cases of unwarrantable delay, so the appellants' submissions on the subject of delay proceeded, the exercise the Court was required to undertake included 'weighing the primary consideration of ensuring the legality of government action against the secondary consideration of the finality of litigation', the appellants further citing respectively Aala at [55] (Gaudron and Gummow JJ). That scope of finding by Nicholls J referrable to delay was however in my opinion clearly open to his Honour to find, at least in the circumstances to which his Honour referred. I am unable to accept that his Honour did not pay regard to considerations that were appropriate to the circumstances of the case.