mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Technical Products Pty Ltd v State Government Insurance Office (Queensland) [1989] HCA 24 ; (1989) 167 CLR 45
Outcome: cited
The expression "in relation to" has been the subject of judicial consideration in a number of different contexts. A consistent theme running through the case is that the expression "in relation to" gathers its meaning from the context in which it appears and the purpose for which it appears: see, eg, Oceanic Life Ltd v Chief Commissioner of Stamp Duties [1999] NSWCA 416 ; (1999) 168 ALR 211 at 225, per Fitzgerald JA. The words "in relation to" have a very wide meaning, but like the expression "in respect of", they do not extend to "any relationship however tenuous": Technical Products Pty Ltd v State Government Insurance Office (Queensland) [1989] HCA 24 ; (1989) 167 CLR 45 at 51; The Workers' Compensation Board of Queensland v Technical Products Pty Ltd [1988] HCA 49 ; (1988) 165 CLR 642 at 653-654. See generally, D C Pearce and R S Geddes, Statutory Interpretation in Australia (6th ed, 2006), pp 359-367 and the cases there cited. 69 In Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549 ; (2001) 114 FCR 472, Hill J was concerned to interpret s 6(2)(b)(ii) of the Trade Practices Act 1974 (Cth) which confined the operation of s 60 of that Act to conduct which took place in the course of or in relation to trade or commerce between Australia and places outside Australia. Hill J said at 487-488: "It may be accepted that there will always be a question of degree involved where the issue is the relationship between two subject matters. The words 'in relation to' are wide words which do no more, at least without reference to context, than signify the need for there to be some relationship or connection between two subject matters: see Smith v Commissioner of Taxation (Cth) [1987] HCA 48 ; (1987) 164 CLR 513 at 533 per Toohey J and PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service [1995] HCA 36 ; (1995) 184 CLR 301 at 328 per Toohey and Gummow JJ. But the phrase is both 'vague and indefinite': see per Taylor J in Tooheys Ltd v Commissioner of Stamp Duties (NSW) [1961] HCA 35 ; (1961) 105 CLR 602 at 620. Like the phrase 'in respect of', the phrase 'in relation to' will not, at least normally, apply to any connection or relationship no matter how remote: see Technical Products Pty Ltd v State Government Insurance Office (Qld) [1989] HCA 24 ; (1989) 167 CLR 45 at 51 per Dawson J. The extent of the relationship required will depend upon the context in which the words are used. As Beaumont and Lehane JJ said in Joye v Beach Petroleum NL (1996) 67 FCR 275 at 285 in discussing a number of the cases dealing with 'relates to': ' ... it will depend upon context whether it is necessary that the relationship be direct or substantial, or whether an indirect or less than substantial connection will suffice.' (References omitted.)"
Case: Parkin v O'Sullivan [2006] FCA 1413
Outcome: cited
The applicant Director-General of Security seeks leave to appeal from a decision of Sundberg J: Parkin v O'Sullivan [2006] FCA 1413. His Honour directed that the parties confer as to the appropriate orders for discovery and if they were unable to agree that they should file written submissions as to the orders that should be made. In substance, there was an order directing discovery and it is that order against which the Director-General of Security seeks leave to appeal. 2 Under s 24(1A) of the Federal Court of Australia Act 1976 (Cth), I have to exercise a discretion as to the grant of leave. 3 There are two proceedings: Parkin v O'Sullivan (VID 1594 of 2005), and Sagar and Faisal v O'Sullivan (VID 188 of 2006), the discovery applications in which were heard together because they raised similar questions of law. The respondent Mr Parkin is a citizen of the United States of America who entered Australia in June 2005 with a tourist visa valid for six months. According to a public report by the Inspector-General of Intelligence and Security dated 29 November 2005, Mr Parkin describes himself as "a proponent of non-violent direct action and peaceful civil disobedience against the war in Iraq". 4 His visa was cancelled in September 2005 because of an adverse security assessment issued by the Director-General appointed pursuant to s 7 Australian Security Intelligence Organisation Act 1979 (Cth). He was then detained. Some days later, at his own request, he was removed from Australia. 5 In his statement of claim he alleges in par 6 that from time to time, after he entered Australia pursuant to his visa, he "exercised his right to engage in lawful advocacy, protest or dissent within the meaning of s 17A of the ASIO Act".
Case: Church of Scientology Inc v Woodward [1980] HCA 38 ; (1982) 154 CLR 25
Outcome: considered
First, there is an arguable case that his Honour did not correctly apply authorities binding on him which say that the bare assertion of a claim without any factual foundation will not justify an order for discovery: Church of Scientology v Woodward [1980] HCA 38 ; (1982) 154 CLR 25, Lloyd and Costigan (1983) 82 FLR 104 at 113-114, WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 at 181, Minister for Immigration v Wong [2002] FCAFC 327 at [30] and Jilani v Wilhelm [2005] FCAFC 269 ; (2005) 148 FCR 255 at 273-274. The last mentioned authority, senior counsel for the Director-General submits, was relied on before his Honour, but not mentioned in the judgment. Moreover, this approach is the more justified in cases where questions of national security are involved; see the Church of Scientology case.
Case: Lloyd and Costigan (1983) 82 FLR 104 at 113-114
Outcome: considered
First, there is an arguable case that his Honour did not correctly apply authorities binding on him which say that the bare assertion of a claim without any factual foundation will not justify an order for discovery: Church of Scientology v Woodward [1980] HCA 38 ; (1982) 154 CLR 25, Lloyd and Costigan (1983) 82 FLR 104 at 113-114, WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 at 181, Minister for Immigration v Wong [2002] FCAFC 327 at [30] and Jilani v Wilhelm [2005] FCAFC 269 ; (2005) 148 FCR 255 at 273-274. The last mentioned authority, senior counsel for the Director-General submits, was relied on before his Honour, but not mentioned in the judgment. Moreover, this approach is the more justified in cases where questions of national security are involved; see the Church of Scientology case.
Case: WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 at 181
Outcome: considered
First, there is an arguable case that his Honour did not correctly apply authorities binding on him which say that the bare assertion of a claim without any factual foundation will not justify an order for discovery: Church of Scientology v Woodward [1980] HCA 38 ; (1982) 154 CLR 25, Lloyd and Costigan (1983) 82 FLR 104 at 113-114, WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 at 181, Minister for Immigration v Wong [2002] FCAFC 327 at [30] and Jilani v Wilhelm [2005] FCAFC 269 ; (2005) 148 FCR 255 at 273-274. The last mentioned authority, senior counsel for the Director-General submits, was relied on before his Honour, but not mentioned in the judgment. Moreover, this approach is the more justified in cases where questions of national security are involved; see the Church of Scientology case.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v Wong [2002] FCAFC 327 at [30]
Outcome: considered
First, there is an arguable case that his Honour did not correctly apply authorities binding on him which say that the bare assertion of a claim without any factual foundation will not justify an order for discovery: Church of Scientology v Woodward [1980] HCA 38 ; (1982) 154 CLR 25, Lloyd and Costigan (1983) 82 FLR 104 at 113-114, WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 at 181, Minister for Immigration v Wong [2002] FCAFC 327 at [30] and Jilani v Wilhelm [2005] FCAFC 269 ; (2005) 148 FCR 255 at 273-274. The last mentioned authority, senior counsel for the Director-General submits, was relied on before his Honour, but not mentioned in the judgment. Moreover, this approach is the more justified in cases where questions of national security are involved; see the Church of Scientology case.
Case: Jilani v Wilhelm [2005] FCAFC 269 ; (2005) 148 FCR 255 at 273-274
Outcome: considered
First, there is an arguable case that his Honour did not correctly apply authorities binding on him which say that the bare assertion of a claim without any factual foundation will not justify an order for discovery: Church of Scientology v Woodward [1980] HCA 38 ; (1982) 154 CLR 25, Lloyd and Costigan (1983) 82 FLR 104 at 113-114, WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 at 181, Minister for Immigration v Wong [2002] FCAFC 327 at [30] and Jilani v Wilhelm [2005] FCAFC 269 ; (2005) 148 FCR 255 at 273-274. The last mentioned authority, senior counsel for the Director-General submits, was relied on before his Honour, but not mentioned in the judgment. Moreover, this approach is the more justified in cases where questions of national security are involved; see the Church of Scientology case.
Case: Foster v Australian Competition and Consumer Commission [2006] FCAFC 21 ; [2006] 149 FCR 135
Outcome: considered
The third and fourth categories of proposed restraint are broad, and the Court must be satisfied that there is an appropriate nexus between the contravening conduct as alleged and the orders. As Mr Couper for the applicant submitted, this issue in the context of restraining orders pursuant to s 80 TPA was addressed recently by the Full Court in Foster v Australian Competition and Consumer Commission [2006] FCAFC 21 ; [2006] 149 FCR 135 at 149 where their Honours observed: In our view, the need, suggested by the authorities, for a nexus between the contravention of the Act which the Court has found and the terms of the restraint which it then decides to impose is a specific reflection of Lockhart J's insistence that the power be exercised 'judicially and sensibly'. It goes to the appropriateness of the relief contemplated by the concluding words of s 80(1), not to the extent of the power to grant it. If the Court considers that a complete prohibition, whether permanently or for a specified period, on a respondent's engaging in a particular field of commercial activity or industry is required to protect the public from conduct of the kind which constituted the contravention, s 80 is wide enough to support such a prohibition as a matter of power... 11 Given the history of this matter, the conduct alleged, and the proposed consent to this restraint by the third, fourth and fifth respondents, I am satisfied that the proposed orders as detailed in the draft Consent Orders are appropriate in the circumstances, and I set them out in full in the orders of this judgment. 12 Finally, the parties have also submitted that the contempt charges against the respondents be resolved in accordance with the proposal contained in the draft Consent Order filed on Monday. I note that these charges relate only to breaches of the orders of Cooper J in respect of which the statement of charge alleges contempt. Otherwise they do not relate to the substance of the matters alleged in the primary application. 13 The details of the proposal to resolve the contempt charges against the respondents are as follows: First respondent 14 As the first respondent is in liquidation, the applicant seeks the leave of the Court to withdraw the contempt charges against it. Second respondent
Case: NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285
Outcome: applied
Relevant principles for the Court when a negotiated resolution of contraventions of the law is advanced by the parties were considered by the Full Court in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 and Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72. So far as are applicable to this case, the principles articulated in these cases are as follows: 1) It is the responsibility of the court to determine the appropriate penalty to be imposed. 2) Determining the quantum of a penalty is not an exact science. Within a permissible range, the courts have acknowledged that a particular figure cannot necessarily be said to be more appropriate than another. 3) There is a public interest in promoting settlement of litigation, particularly where it is likely to be lengthy. Accordingly, when the regulator and contravenor have reached agreement, they may present to the Court a statement of facts and opinions as to the effect of those facts, together with joint submissions as to the appropriate penalty to be imposed. 4) The view of the regulator, as a specialist body, is a relevant, but not determinative consideration on the question of penalty. 5) In determining whether the proposed penalty is appropriate, the court examines all the circumstances of the case. Where the parties have put forward an agreed statement of facts, the Court may act on that statement if it is appropriate to do so. 6) Where the parties have jointly proposed a penalty, it will not be useful to investigate whether the Court would have arrived at that precise figure in the absence of agreement. The question is whether that figure is, in the Court's view, appropriate in the circumstances of the case. In answering that question, the Court will not reject the agreed figure simply because it would have been disposed to select some other figure. It will be appropriate if within the permissible range.
Case: Applicants A233 of 2003 v Refugee Review Tribunal [2004] FCAFC 296
Outcome: referred to
Smith FM noted that it was not necessary for the Tribunal to discuss the chance of harm occurring which it found was less than probable, provided the Tribunal made findings of fact which permitted a conclusion that the fear of persecution was not well-founded: see Minister for Immigration and Multicultural Affairs v Rajalingam and Others [1999] FCA 794 ; (1999) 93 FCR 220 at 239-241; Applicants A233 of 2003 v Refugee Review Tribunal [2004] FCAFC 296 at [11] - [14] . His Honour noted that such a factual finding had been made by the Tribunal, and accordingly found that the Tribunal had not failed to appreciate or apply the 'real chance' test.
Case: Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Outcome: referred to
Under this ground, three separate issues are raised. Firstly, the appellant submits that the Tribunal erred by failing to consider whether there was a real chance that the appellant would suffer persecution if he returned to Lebanon. The appellant submits that the Tribunal's finding that '... those targeted were easily identifiable members of SLA, mostly from Southern Lebanon...' did not take account of former SLA members who do not satisfy such profile. It is submitted that the Tribunal failed to apply the correct test because it did not take account of a person who did not have the characteristics relied upon by the Tribunal to reach its conclusion that there was no chance of persecution, and that its finding left open the possibility that the appellant could be the subject of persecution. The appellant submits that the Tribunal accordingly failed to apply the test in Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 where Mason CJ said at 389: If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring.
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: followed
Smith FM was not persuaded that the Tribunal failed to apply the 'real chance' test. His Honour, in rejecting the appellant's submissions, observed that the appellant had concentrated attention on particular parts of the Tribunal's reasoning in isolation from its general expression. His Honour noted that such approach had been discouraged in Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others [1996] HCA 6 ; (1996) 185 CLR 259 at 291. The Court is unable to find any error in his Honour's reasoning.
Case: Minister for Immigration and Multicultural Affairs v Rajalingam and Others [1999] FCA 794 ; (1999) 93 FCR 220
Outcome: referred to
Smith FM noted that it was not necessary for the Tribunal to discuss the chance of harm occurring which it found was less than probable, provided the Tribunal made findings of fact which permitted a conclusion that the fear of persecution was not well-founded: see Minister for Immigration and Multicultural Affairs v Rajalingam and Others [1999] FCA 794 ; (1999) 93 FCR 220 at 239-241; Applicants A233 of 2003 v Refugee Review Tribunal [2004] FCAFC 296 at [11] - [14] . His Honour noted that such a factual finding had been made by the Tribunal, and accordingly found that the Tribunal had not failed to appreciate or apply the 'real chance' test.
Case: SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572
Outcome: followed
Secondly, the appellant submits that the Tribunal considered the risk of persecution in the past and present but did not consider that the appellant could suffer harm in the future. The appellant relies upon the decision of this Court in SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572 at [28] - [30] which held that the Court must have an 'adequately forward-looking analysis' (see SZGHS per Allsop J at [30]) when considering the prospects of persecution. 22 The Tribunal's reasons show that in reaching its conclusion it considered external information together with information supplied subsequent to the hearing in a letter from the appellant's adviser. Such letter included an extract from an Amnesty International report which referred to the possibility of reprisal attacks by Hezbollah against former Israeli collaborators. The Tribunal found: The adviser argued that Hezbollah was subjecting former SLA members to persecution and the threat of harm has increased significantly since the outbreak of hostilities with Israel in 2006. The adviser referred the Tribunal to several reports dealing with reprisals against SLA members who were suspected of collaborating with Israel before and after the 2006 conflict. The adviser argued that the applicant will be at risk of imprisonment and denied protection by the State because he was with the SLA. 23 The Federal Magistrate excerpted the above passage and concluded that the Tribunal had considered whether, in the future, the appellant would be subjected to the same risk.
Case: SZHBX v Minister for Immigration and Citizenship [2007] FCA 1169
Outcome: cited
Smith FM said at [40]-[41]: In my opinion, it should have been apparent to him [the appellant] and his advisers when doing so, that the Tribunal might draw inferences from the absence of any identification of particular persons who were feared, or of incidents or circumstances which suggested that there were particular persons who had an interest in pursuing him after 20 years (compare Bennett J in SZJUB v Minister for Immigration &amp; Citizenship [2007] FCA 1486 at [21] and SZHBX v Minister for Immigration &amp; Citizenship [2007] FCA 1169 at [14] ). In my opinion, the obligations on the Tribunal under s.425 to warn an applicant as to the issues in the review did not, in the present case, require it to alert the applicant to the possibility that it might draw an inference from his evidence that he could not name or identify the persons whom he claimed to fear.
Case: SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486
Outcome: cited
Smith FM said at [40]-[41]: In my opinion, it should have been apparent to him [the appellant] and his advisers when doing so, that the Tribunal might draw inferences from the absence of any identification of particular persons who were feared, or of incidents or circumstances which suggested that there were particular persons who had an interest in pursuing him after 20 years (compare Bennett J in SZJUB v Minister for Immigration &amp; Citizenship [2007] FCA 1486 at [21] and SZHBX v Minister for Immigration &amp; Citizenship [2007] FCA 1169 at [14] ). In my opinion, the obligations on the Tribunal under s.425 to warn an applicant as to the issues in the review did not, in the present case, require it to alert the applicant to the possibility that it might draw an inference from his evidence that he could not name or identify the persons whom he claimed to fear.
Case: Re RUDDOCK (in his capacity as Minister for Immigration and Multicultural Affairs; Ex parte applicant S154/2002 [2003] HCA 60 ; (2003) 201 ALR 437
Outcome: cited
The purpose of a provision such as s 420(2) was explained by Gummow and Heydon JJ, with whose reasons Gleeson CJ agreed, in Re RUDDOCK (in his capacity as Minister for Immigration and Multicultural Affairs; Ex parte applicant S154/2002 [2003] HCA 60 ; (2003) 201 ALR 437 ('Ruddock') at [56] as follows: '56 ... The purpose of a provision such as s 420(2) is to free bodies such as the tribunal from certain constraints otherwise applicable in courts of law which the legislature regards as inappropriate. Further, ... administrative decision-making is of a different nature from decisions to be made on civil litigation conducted under common law procedures. There, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have considered it in their respective interests to adduce at trial.' 26 The relevant criterion for the grant of a protection visa to which s 65(1)(a)(ii) refers is to be found in s 36(2) of the Act, which relevantly, for present purposes, provides as follows: '36(2) A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or (b) a non-citizen in Australia who is the spouse ... of a non-citizen who: (i) is mentioned in paragraph (a); and (ii) holds a protection visa.' The Refugees Convention means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Refugees Protocol means the Protocol relating to the Status of Refugees done at New York on 31 January 1967. Hereafter I will refer to the Refugees Convention as amended by the Refugees Protocol as 'the Convention'. 28 As has been said many times, proceedings in the Tribunal are not adversarial, but rather, inquisitorial. The Tribunal is not in the position of a contradictor of the case being advanced by an applicant. The Tribunal member conducting the relevant inquiry is not an adversarial cross-examiner, but an inquisitor obliged to be fair (see per Gummow and Heydon JJ in Ruddock at [57]). The Tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which an applicant chooses not to embark on. It is for an applicant to advance whatever evidence or argument he or she may wish to advance before the Tribunal and for the Tribunal to decide whether the relevant claim has been made out (see per Gummow and Heydon JJ in Ruddock at [57]-[58]).