mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: The "Pan Oak" [1992] 2 Lloyd's Rep 36
Outcome: considered
On the other hand, the submissions of the Bank of Kuwait and the Middle East acknowledge that there are decisions concerning the construction of ship mortgages to the effect that the word "ship" does not include the bunkers and further that the word "appurtenances" in the description of the secured property also does not include the bunkers: see The "Eurosun"and "Eurostar" [1993] 1 Lloyd's Rep 106 per Sheen J at 111; The "Honshu Gloria" [1986] 2 Lloyd's Rep 67; The "Pan Oak" [1992] 2 Lloyd's Rep 36. The text referred to above, Meeson at [10.73], also makes a similar comment based upon those decisions. 23 The words "component", "appendage", and "annexe" do not in their natural meaning extend to the bunkers, because each has the feature of being a physical part of or of being physically attached to or a functioning feature of the ship. It is not necessary, nor usual, that the bunkers to be part of the property of the ship owners. They are commonly the property of the charterers. In The "Pan Oak" [1992] 2 Lloyd's Rep 36 at 39, Sheen J said: The problem which has arisen in this case can only arise when the lender lends more than the value of the ship. Most lenders do not contemplate lending more than the value of their security and would not want to look to variable security which would depend upon the quantity of oil in a ship when the ship is arrested, and upon whether the ship is on charter. For these, and perhaps many other reasons the bunkers are not usually part of the security for a mortgage. 24 In my judgment, therefore, the funds remaining in the bunker account should be distributed pro rata between those entities with an outstanding in rem judgment against the ship. The Bank of Kuwait and the Middle East is entitled to participate in that distribution to the extent that its judgment remains unsatisfied after it has received as a priority payment on the balance of the funds remaining in the ship account secured by its mortgage. 25 The amounts to be paid out proportionately cannot presently be calculated with exactitude. That is because, firstly, the amount of the claim of the Bank of Kuwait and the Middle East upon which its proportion of the balance of the bunker account cannot be precisely known until the amount it receives from the ship account is known, and, secondly, because the precise amount available in the bunker account for distribution will only be known when a final date for payment is determined.
Case: Weigand v Comcare Australia (No 2) (2007) 94 ALD 154
Outcome: referred to
provision made it forensically desirable for Comcare to seek to prove that Mr Caldwell's psychological issues were caused by disciplinary action rather than the electrical accident. In response, Mr Caldwell contended that the disciplinary process to which he had been subjected had not contributed to his condition in a material way. The necessity for the disciplinary process to contribute to the injury in a material degree in order to be excluded from the definition of "injury" was established by this Court's decision in Weigand v Comcare Australia (No 2) (2007) 94 ALD 154. The medical evidence before the Tribunal on the question of whether the disciplinary action had contributed to his condition in a material degree was varied. That variation was a function, in part, of obscurity in the expert evidence about when precisely it was that the disciplinary action had commenced. The Tribunal concluded that the disciplinary process commenced on 30 May 2002 when the formal letter was sent. It also concluded, however, that it had not contributed to Mr Caldwell's condition in a material degree. Comcare made two complaints about the Tribunal's process of reasoning. First, it claimed that the reasons which were proffered by the Tribunal for this conclusion were inadequate. Secondly, it claimed that the manner in which the Tribunal had dealt with the medical evidence was unreasonable in a Wednesbury sense. In his notice of contention, Mr Caldwell submitted that the Tribunal should not have concluded that the disciplinary action had commenced on 30 May 2002 when the formal letter was sent but, rather, that it had commenced shortly after the accident when the meetings and investigations took place. The respondent also submitted that if the disciplinary action had commenced shortly after the accident it could not be characterised as reasonable disciplinary action.
Case: Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1
Outcome: cited
The first respondent has submitted that the grounds of appeal before this Court were not raised in the Court below, and that the appellant must demonstrate that it is expedient and in the interests of justice that these new grounds be raised: O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at 319, Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7. The respondent has submitted further that these conditions are not satisfied in this case because: 1. The appellant was legally represented by counsel in the Court below. 2. The appellant has not sought to explain why the new grounds were not raised in the Court below. 3. In respect of the new grounds, the law in respect of those grounds was settled and not in a confused or fluid state at the time that the matter was heard by Smith FM in September 2006. 4. The new grounds have little or no prospects of success on appeal; and 5. When these matter are weighed in the balance with the interests of the Court in maintaining the integrity of the appeal process, the interests of other litigants whose appeals require hearing and determination, and the broad public interest in efficient judicial administration, it is not expedient and in the interests of justice to allow the new grounds to be argued and determined.
Case: O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310
Outcome: cited
The first respondent has submitted that the grounds of appeal before this Court were not raised in the Court below, and that the appellant must demonstrate that it is expedient and in the interests of justice that these new grounds be raised: O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at 319, Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7. The respondent has submitted further that these conditions are not satisfied in this case because: 1. The appellant was legally represented by counsel in the Court below. 2. The appellant has not sought to explain why the new grounds were not raised in the Court below. 3. In respect of the new grounds, the law in respect of those grounds was settled and not in a confused or fluid state at the time that the matter was heard by Smith FM in September 2006. 4. The new grounds have little or no prospects of success on appeal; and 5. When these matter are weighed in the balance with the interests of the Court in maintaining the integrity of the appeal process, the interests of other litigants whose appeals require hearing and determination, and the broad public interest in efficient judicial administration, it is not expedient and in the interests of justice to allow the new grounds to be argued and determined.
Case: Australian Prudential Regulation Authority v Rural &amp; General Insurance Limited (ACN 000 007 492) (Subject to Deed of Company Arrangement) [2005] FCA 1548
Outcome: related
On 21 October 2005 I dealt with one aspect of a motion by Aaron Stephenson for access to subpoenaed documents for the purpose of use in other proceedings and for related relief. I stood over the motion in order to give further consideration to the wider issues involved ( Australian Prudential Regulation Authority v Rural &amp; General Insurance Limited (ACN 000 007 492) (Subject to Deed of Company Arrangement) [2005] FCA 1548). 2 In 2003 and 2004, Australian Prudential Regulation Authority (APRA) was proceeding in this Court seeking to wind up Rural &amp; General Insurance Limited (as it then was) (Rural &amp; General) pursuant to s 462(3) of the Corporations Act 2001 (Cth). Rural &amp; General was represented by solicitors and counsel and actively opposed the winding up. APRA had earlier appointed Peter John McCarthy of the accountancy firm of Ernst &amp; Young to make an investigation in respect of the company under s 52 of the Insurance Act 1973 . In the course of the proceeding several sets of documents were subpoenaed from McCarthy and his firm and a significant volume of documents was produced. Stephenson was the Managing Director of Rural &amp; General and was actively involved in instructing solicitors and counsel. Leave to discontinue the proceeding was granted on 17 March 2004 following the execution by Rural &amp; General of a Deed of Company Arrangement on 15 March 2004. The documents produced on subpoena on behalf of McCarthy and his firm should have been returned promptly. Due to an administrative oversight they were not. 3 Stephenson is the applicant in proceedings in the Administrative Appeals Tribunal (AAT) against APRA appealing against APRA's decision to disqualify him under s 25A of the Insurance Act 1973 . On 15 June 2005 he signed a statement in connection with that proceeding to which were annexed a number of documents, being copies of communications which passed between McCarthy and officers of APRA prior to the disqualification. Stephenson wishes to rely upon those communications to contend that the decision to disqualify him was affected by extraneous considerations. APRA took exception to the use of those documents contending, amongst other things, that they had been obtained as a result of inspection of documents produced to this Court in the course of the winding up proceeding in breach of the implied undertaking as to proper use of such documents.
Case: British American Tobacco Australia Services Ltd v Cowell (No 2) [2003] VSCA 43 ; (2003) 8 VR 571
Outcome: cited
It is well established that the implied undertaking can, in appropriate circumstances, be released or modified by the Court. There are many cases discussing the exercise of that power in differing circumstances, a recent example being the decision of the Full Court in Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) ALR 283; [2005] FCAFC 3 at [31] [33]. (See also, for example, Esso Australia Resources Ltd v Plowman (Minister for Energy &amp; Minerals) [1995] HCA 19 ; (1995) 183 CLR 10 per Brennan J at 36 37; and the authorities cited in British American Tobacco Australia Services Ltd v Cowell (No 2) [2003] VSCA 43 ; (2003) 8 VR 571 at [52] .)
Case: Esso Australia Resources Ltd v Plowman (Minister for Energy &amp; Minerals) [1995] HCA 19 ; (1995) 183 CLR 10
Outcome: cited
It is well established that the implied undertaking can, in appropriate circumstances, be released or modified by the Court. There are many cases discussing the exercise of that power in differing circumstances, a recent example being the decision of the Full Court in Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) ALR 283; [2005] FCAFC 3 at [31] [33]. (See also, for example, Esso Australia Resources Ltd v Plowman (Minister for Energy &amp; Minerals) [1995] HCA 19 ; (1995) 183 CLR 10 per Brennan J at 36 37; and the authorities cited in British American Tobacco Australia Services Ltd v Cowell (No 2) [2003] VSCA 43 ; (2003) 8 VR 571 at [52] .)
Case: Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) ALR 283; [2005] FCAFC 3 at [31] [33]
Outcome: cited
It is well established that the implied undertaking can, in appropriate circumstances, be released or modified by the Court. There are many cases discussing the exercise of that power in differing circumstances, a recent example being the decision of the Full Court in Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) ALR 283; [2005] FCAFC 3 at [31] [33]. (See also, for example, Esso Australia Resources Ltd v Plowman (Minister for Energy &amp; Minerals) [1995] HCA 19 ; (1995) 183 CLR 10 per Brennan J at 36 37; and the authorities cited in British American Tobacco Australia Services Ltd v Cowell (No 2) [2003] VSCA 43 ; (2003) 8 VR 571 at [52] .)
Case: Creevey v Deputy Commissioner of Taxation (1996) 19 ACSR 456
Outcome: cited
There is no evidence as to how the defendant could continue to trade without the plaintiff's support. Indeed, the inference must be that it could not. There is no evidence that the defendant could pay for any of the stock in advance or at all. I am not therefore persuaded that the creditors would receive a better or earlier dividend by the administration continuing, rather than the company being liquidated: Creevey v Deputy Commissioner of Taxation (1996) 19 ACSR 456. At the very highest, from the defendant's point of view, the defendant's case is one of speculation rather than of possibilities which is not sufficient to engage section 440A: Deputy Commissioner of Taxation v Yates Security Services Pty Limited (1997) 26 ACSR 629.
Case: Deputy Commissioner of Taxation v Yates Security Services Pty Limited (1997) 26 ACSR 629
Outcome: cited
There is no evidence as to how the defendant could continue to trade without the plaintiff's support. Indeed, the inference must be that it could not. There is no evidence that the defendant could pay for any of the stock in advance or at all. I am not therefore persuaded that the creditors would receive a better or earlier dividend by the administration continuing, rather than the company being liquidated: Creevey v Deputy Commissioner of Taxation (1996) 19 ACSR 456. At the very highest, from the defendant's point of view, the defendant's case is one of speculation rather than of possibilities which is not sufficient to engage section 440A: Deputy Commissioner of Taxation v Yates Security Services Pty Limited (1997) 26 ACSR 629.
Case: Plaintiff S157/2002 v The Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476
Outcome: cited
The appellant applied to the Federal Magistrates Court to quash the RRT's decision on the basis that it was tainted with jurisdictional error: see Plaintiff S157/2002 v The Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476. On 30 June 2006 that application was dismissed. This is an appeal from that decision.
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
The appellant appeared in person before the Federal Magistrate and on this appeal. Clearly, he was at some disadvantage in identifying precisely the jurisdictional error which he claimed the RRT had committed. His contentions lapsed at times into an attempt to re-argue the merits of the case, even though neither the Federal Magistrates Court nor this Court on appeal can inquire into the merits of the case. The Court's jurisdiction is limited to determining whether jurisdictional error is established. Review of the factual merits of the decision of the RRT in order that the Court substitute its view of the facts is not within the jurisdiction of either Court: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272.
Case: Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34 ; (2001) 179 ALR 513
Outcome: cited
In the appellant's submissions to this Court, I discerned two threads of asserted jurisdictional error which, if established, might lead to the appeal being allowed and the RRT decision being set aside so that the protection visa application should be reheard by the RRT differently constituted. Those grounds were: 1. that the RRT had not approached its review with a mind open to persuasion, or at least that it approached its task in a way which gave rise to a reasonable apprehension of bias on its part; 2. that the RRT, although it recited the applicable law correctly, somehow then misapplied the law so that it did not in fact address the question which it was required to address. Either of those matters, if made out, may constitute jurisdictional error: see e.g. per Kirby J in Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34 ; (2001) 179 ALR 513; Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128. The first of those matters remains available as a ground of jurisdictional error, notwithstanding s 422B of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v Lat [2006] FCAFC 61 ; (2006) 151 FCR 214.
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128
Outcome: cited
In the appellant's submissions to this Court, I discerned two threads of asserted jurisdictional error which, if established, might lead to the appeal being allowed and the RRT decision being set aside so that the protection visa application should be reheard by the RRT differently constituted. Those grounds were: 1. that the RRT had not approached its review with a mind open to persuasion, or at least that it approached its task in a way which gave rise to a reasonable apprehension of bias on its part; 2. that the RRT, although it recited the applicable law correctly, somehow then misapplied the law so that it did not in fact address the question which it was required to address. Either of those matters, if made out, may constitute jurisdictional error: see e.g. per Kirby J in Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34 ; (2001) 179 ALR 513; Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128. The first of those matters remains available as a ground of jurisdictional error, notwithstanding s 422B of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v Lat [2006] FCAFC 61 ; (2006) 151 FCR 214.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v Lat [2006] FCAFC 61 ; (2006) 151 FCR 214
Outcome: cited
In the appellant's submissions to this Court, I discerned two threads of asserted jurisdictional error which, if established, might lead to the appeal being allowed and the RRT decision being set aside so that the protection visa application should be reheard by the RRT differently constituted. Those grounds were: 1. that the RRT had not approached its review with a mind open to persuasion, or at least that it approached its task in a way which gave rise to a reasonable apprehension of bias on its part; 2. that the RRT, although it recited the applicable law correctly, somehow then misapplied the law so that it did not in fact address the question which it was required to address. Either of those matters, if made out, may constitute jurisdictional error: see e.g. per Kirby J in Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34 ; (2001) 179 ALR 513; Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128. The first of those matters remains available as a ground of jurisdictional error, notwithstanding s 422B of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v Lat [2006] FCAFC 61 ; (2006) 151 FCR 214.
Case: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425
Outcome: applied
The test for apprehended bias in relation to a body such as the RRT is whether a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias might reasonably apprehend that the RRT might not bring, or might not have brought, an impartial mind to the resolution of the question to be decided: see per Gleeson CJ, Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at 434-435, at [27]-[28] and the cases cited at fn 7. 39 There is nothing to suggest the RRT conducted the hearing in a way which might indicate a closed mind on its part. The only evidence as to how it conducted its hearing is from its own recital of those events. They disclose only a firm testing of the claims made by the appellant, in some instances by confronting him with inconsistencies in documentary materials and in the statements of himself and others.
Case: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749
Outcome: cited
It will be rare that an allegation of ostensible bias will be made out on an analysis of evidentiary materials before the RRT and its assessment of them, where otherwise no legal error is disclosed in its reasoning: see SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at 756, at [44] and the cases cited there. 41 I do not consider that the RRT's reasons demonstrate that it may have approached its task with a closed mind. It has carefully analysed the evidentiary material. Where there is apparently genuine documentary material, it has accepted that material. The difficulty confronting the appellant was that that material did not accord in significant respects with his evidence, or with his and others' evidence, so as to present a consistent and cogent detailed version of events. It is only by taking the appellant's evidence at a high level of generality that the inconsistencies pointed out by the RRT would be of no significance. The RRT, when concerned about the credibility of a claimant, does not demonstrate ostensible bias by a firm and sometimes vigorous testing of the evidence. It was entitled to compare the detail of the evidence to assess whether it is consistent both with the appellant's own claims and internally. It was entitled to look carefully at the appellant's own claims and the material which related to them to assess whether that material was itself consistent. If there were discrepancies in that material, even of detail, it was entitled to explore those discrepancies to see if there were satisfactory responses to them and to assess their cumulative significance. 42 Of course, the existence of discrepancies in detail is not necessarily of great moment. Experience shows that records are not necessarily always complete; the person making the record may not fully record information or may record information inaccurately. Human memory is not perfect. In stressful circumstances such as those the appellant asserts, and especially with the passage of time, perfect consistency of detail is not to be routinely expected. The RRT would be aware of such matters, and sympathetic to them.
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Outcome: applied
I have not overlooked the extent to which the appellant's claims were supported by independent witness statements. The RRT has not overlooked them. It has rejected them, including the evidence of Sadaunichy who now resides in Australia. It is not sufficient for the appellant to demonstrate legal error to assert that others may have given more weight to that evidence. Nor is it an error of law to have rejected Sadaunichy's evidence corroborating parts of the appellant's claim, in effect because it rejected the appellant's evidence: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [11]-[19] per Gleeson CJ, [46]-[52] per McHugh and Gummow JJ, [173] per Callinan J. Even though the corroborative statements were quite extensive, the RRT's approach to them does not demonstrate in my view ostensible bias on its part. 45 The general description of the RRT having misapplied the law can be addressed in particular respects, and by way of a general overview.