mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Bienstein v Bienstein [2003] HCA 7 ; (2003) 195 ALR 225
Outcome: referred to
mere fact that a judge before his or her appointment was instructed by a solicitor, or firm of solicitors, or acted or appeared for a client, is incapable of being a reasonable basis on which a fair minded and informed lay person could form a reasonable apprehension of bias: Bienstein v Bienstein [2003] HCA 7 ; (2003) 195 ALR 225 at 232 [33] per McHugh, Kirby and Callinan JJ. Everyone knows that most judges have been appointed from private practice, and indeed that most of them have been barristers. Barristers, as a matter of professional practice, obey the cab rank rule, namely that they must accept instructions to appear where they are available and practice in the field, unless they have some proper basis to refuse the instructions. At the bar, barristers frequently appear in unrelated cases for and against the same clients, and barristers frequently are instructed by a firm of solicitors one day, and appear the next day in another case where that firm acts for or instructs the barrister's opponent, or his or her former client. Upon assuming judicial office, those past dealings are at an end for the judge. The judge is, and must be, independent of the past associations. That is the essence of judicial independence. It is not tenable to suggest that any mere association Ms Luck has raised provides any possible ground for a reasonable apprehension of bias by the fair-minded and informed lay observer: Bienstein 195 ALR at 232 [33]. I need say no more than there is no substance in any of the assertions that Ms Luck relies upon to claim an apprehension of bias. A fair-minded and informed lay observer would not reasonably apprehend, on the bases relied on by Ms Luck, that I might not bring an impartial mind to the resolution of her matter. For these reasons, I reject Ms Luck's application that I disqualify myself from hearing her matter. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 20 May 2009 Appellant: Appeared in person Counsel for the Respondent: JD Pizer Solicitor for the Respondent: Clayton Utz Date of Hearing: 7 May 2009 Date of Judgment: 7 May 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/521.html
Case: Concrete Pty Limited v Parramatta Design &amp; Developments Pty Limited [2006] HCA 55 ; (2006) 229 CLR 577
Outcome: cited
fair minded lay observer will also be a person who is informed: Webb v The Queen [1994] HCA 30 ; (1994) 181 CLR 41 at 51-52, 55 per Mason CJ and McHugh J, 57 per Brennan J agreeing on this point, 87-88 per Toohey J, see too at 76 per Deane J; see also Concrete Pty Limited v Parramatta Design &amp; Developments Pty Limited [2006] HCA 55 ; (2006) 229 CLR 577 at 609-619 [110] - [112] per Kirby and Crennan JJ, 635 636 [177] per Callinan J, 582 [4] per Gummow ACJ and 612 [120] per Hayne J agreeing.
Case: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337
Outcome: applied
principle upon which a judge will be disqualified from participating in judicial proceedings on the ground of apprehended bias was explained by Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at 344 [6] . Their Honours said: "... a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide." Significantly, their Honours went on to explain ( Ebner 205 CLR at 345 [8]) how the principle is applied in two steps, namely: "First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed." The procedures laid down in s 72 of the Constitution assure that, relevantly, a judge of a court established by the Parliament can only be removed from office by the Governor-General, on an address by both Houses of the Parliament, on the ground of proved misbehaviour or incapacity. Mere untested and unsubstantiated allegations cannot ordinarily provide a reasonable basis for disquiet in the community that a judge may or may not perform his or her constitutional functions. Such allegations ordinarily cannot be a reasonable, proper or legitimate basis for any litigant to ask a judge to disqualify himself or herself. The more this is so when the allegations are not said to relate to anything to do with the case of the litigant seeking the judge's disqualification, or to lead to any connection between the allegations and the judge's performance of his or her function to hear and determine that or any other matter in accordance with the judicial oath: see Ebner 205 CLR at 348 [19]-[20]. Indeed, as Gleeson CJ, McHugh, Gummow and Haynes JJ said in Ebner 205 CLR at 348 [20]: "... if the mere making of an insubstantial objection was sufficient to lead to a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable." The bare assertion that someone has published a complaint about a judge on the internet or elsewhere does not provide a logical connection between the matters to which Ms Luck has referred, and my ability, constitutional function and duty to decide her matter impartially, in accordance with its legal and factual merits. Nor has Ms Luck articulated any such logical connection.
Case: Johnson v Johnson [2000] HCA 48 ; (2000) 201 CLR 488
Outcome: discussed
in Johnson v Johnson [2000] HCA 48 ; (2000) 201 CLR 488 at 493 [12] Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ emphasised that the hypothetical reasonable observer of a judge's conduct is an objective person who is taken to be reasonable and the judge being observed is a professional judge whose training tradition and oath or affirmation require the judge to discard the irrelevant, the immaterial and the prejudicial.
Case: Kartinyeri v Commonwealth (1998) 156 ALR 300
Outcome: cited
a judge's duty is to hear and determine the litigation before him or her. In Livesey v New South Wales Bar Association [1983] HCA 17 ; (1983) 151 CLR 288 at 294, Mason, Murphy, Brennan, Deane and Dawson JJ said that: "... it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of pre-judgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court." see too Kartinyeri v Commonwealth (1998) 156 ALR 300 at 302-303 [16]-[18] per Callinan J.
Case: Livesey v New South Wales Bar Association [1983] HCA 17 ; (1983) 151 CLR 288
Outcome: followed
a judge's duty is to hear and determine the litigation before him or her. In Livesey v New South Wales Bar Association [1983] HCA 17 ; (1983) 151 CLR 288 at 294, Mason, Murphy, Brennan, Deane and Dawson JJ said that: "... it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of pre-judgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court." see too Kartinyeri v Commonwealth (1998) 156 ALR 300 at 302-303 [16]-[18] per Callinan J.
Case: Webb v The Queen [1994] HCA 30 ; (1994) 181 CLR 41
Outcome: affirmed
fair minded lay observer will also be a person who is informed: Webb v The Queen [1994] HCA 30 ; (1994) 181 CLR 41 at 51-52, 55 per Mason CJ and McHugh J, 57 per Brennan J agreeing on this point, 87-88 per Toohey J, see too at 76 per Deane J; see also Concrete Pty Limited v Parramatta Design &amp; Developments Pty Limited [2006] HCA 55 ; (2006) 229 CLR 577 at 609-619 [110] - [112] per Kirby and Crennan JJ, 635 636 [177] per Callinan J, 582 [4] per Gummow ACJ and 612 [120] per Hayne J agreeing.
Case: National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155
Outcome: cited
power available to the Court under s 48 is unfettered. Relevant factors for consideration include the residence of parties and of witnesses, expense to parties, the place where the cause of action arose and the convenience of the Court. The balance of convenience will generally be a relevant consideration, but not necessarily determinative of each case. The Court must, however, be satisfied, after considering all relevant matters, that there is sound reason to direct that the proceeding be conducted or continued elsewhere: National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155. Mr Garrett recently moved to Western Australia in order to gain employment. Apart from the fact that Mr Garrett now resides in Western Australia there is no connection between this proceeding and Western Australia. However, the issues arising in this proceeding have a significant connection with South Australia as set out in the affidavit of Mr Macks sworn on 15 December 2008 in support of this application. They are in summary as follows: (a) Mr Macks was appointed trustee of Mr Garrett's bankrupt estate in South Australia on 27 September 2004 pursuant to s 156A(3) of the Act. (b) Mr Macks has administered the Estate from his offices in Adelaide, where all of the books and records relevant to the administration are located. These comprise some 33 archive boxes and about 20-30 arch lever files. (c) Mr Garrett's business and personal affairs that have been the subject of Mr Macks' investigations took place primarily in South Australia. (d) All of the debts the subject of the proofs of debt, which Mr Garrett seeks to challenge, arose in South Australia. (e) The decisions of Mr Macks which Mr Garrett seeks to review, being the principal subject matter of this proceeding, were made by Mr Macks in Adelaide. (f) The National Australia Bank affidavits which Mr Garrett seeks to challenge were sworn in Adelaide and the deponent resides there. There are additional considerations. Mr Macks and Mr Garrett are involved, as opponents, in two separate but related proceedings in the South Australian District Registry of this Court. Following the trial in respect of the first action, SAD29 of 2005, judgment was reserved on 7 March 2006 by Lander J. Judgment remains reserved in that matter pending determination of the second action, SAD5 of 2006 (the SA Proceedings). The trial of the SA Proceedings is listed before Lander J for four days to commence on 10 March 2009. The cross-claim filed by Mr Macks in the SA Proceedings seeks a declaration from the Court as to his entitlement to an equitable charge over assets of the Andrew Garrett Family Trust constituted by Deed of Trust dated 31 May 1993 to secure a right of indemnity in respect of liabilities of Mr Garrett. These are the same liabilities for which proofs of debt have been lodged and admitted in Mr Garrett's bankruptcy, and which, subject to the correction of the stated amount of two of those debts, are the subject of the relief sought in this proceeding by Mr Garrett.
Case: SZHFX v Minister for Immigration &amp; Citizenship [2007] FMCA 1575
Outcome: considered
This is an appeal from orders made by Scarlett FM on 17 September 2007 dismissing an application for review of a decision of the Refugee Review Tribunal ("the RRT"): see SZHFX v Minister for Immigration &amp; Citizenship [2007] FMCA 1575. On 10 August 2005 the RRT had affirmed a decision by a delegate of the then Minister of Immigration and Multicultural and Indigenous Affairs refusing the appellants a protection visa. 2 The appellants, a mother and her three sons, are Bangladeshi citizens. The second appellant made independent claims for protection, although they were based on the same facts as those relied upon by his mother. The third and fourth appellants made no independent protection claims. They relied solely instead upon the claims made by their mother. 3 The appellants arrived in Australia on 30 July 2004. Within a month, they applied for protection visas. On 20 October 2004 the Minister's delegate refused their application.
Case: SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609
Outcome: considered
The Minister referred to the recent decision of the High Court in SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 in support of that conclusion. In that case, the Court held that s 424A was not engaged in circumstances where there was a discrepancy between what the appellant had said in a statutory declaration and his evidence given orally before the RRT. That was because the relevant parts of the statutory declaration were not "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". 37 The Minister submitted that, as a result of SZBYR, the scope formerly given to the term "information" in s 424A had narrowed. Moreover, by expressly approving the reasoning in the joint judgment of Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 ; (2004) 206 ALR 471 , the High Court made it clear that disbelief of a claimant's evidence arising from inconsistencies therein could hardly be characterised as constituting "information". In the words of their Honours in VAF (at 477), the word "information": "... does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc ..." 38 The Minister submitted, by reference to SZBYR, that the Federal Magistrate did not err in finding that the "independent reports" to which the RRT referred were not part of its reasons for decision. 39 The Minister submitted that if contrary to its primary submission, the independent reports did form part of the RRT's reasons for decision, the substance of what was contained in those reports was in fact provided to the appellants by the RRT in its s 424A letter. 40 In my opinion, the RRT's finding that the behaviour, which the first appellant attributed to Jahangir in her claims and which bore no resemblance to the "cunning and ruthless" behaviour ascribed to him in independent reports, was not "information" of a kind that had to be provided in writing pursuant to s 424A(1). The reference to "independent reports", in context, was not intended to suggest that Jahangir's reputation for being "cunning and ruthless" came solely from those reports. Indeed, a fair reading of the material before the RRT in its entirety suggests quite the reverse.
Case: VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 965
Outcome: cited
Finally, there is a wholly independent basis for the RRT's decision. See generally VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 965 at [32] - [33] . The RRT found that any threats made by Jahangir were in the nature of criminal acts unrelated to any political motivation. That finding does not turn upon questions of credibility and would inevitably lead to the rejection of the appellants' claim. There is nothing to controvert such a finding, which was open on the material before the RRT. That being so, the appeal must in any event fail. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg. Associate: Dated: 23 May 2008 Counsel for the Appellants : Mr L.J. Karp Solicitor for the Appellants: Parish Patience Immigration Counsel for the First Respondent: Mr J. Knackstredt Solicitor for the First Respondent: Clayton Utz Date of Hearing: 19 May 2008 Date of Judgment: 23 May 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/726.html
Case: Holland v Jones [1917] HCA 26 ; (1917) 23 CLR 149
Outcome: cited
The first basis was that it was unnecessary to adduce evidence to the effect that it is critical to refrigerate temperature-sensitive goods in the course of being transported; so much was described by Lindsay as 'so generally known that every ordinary person may be reasonably presumed to be aware of it'. In my opinion that first asserted basis is soundly conceived on Lindsay's part. I was referred in that regard to the evidentiary principle enunciated in Holland v Jones [1917] HCA 26 ; (1917) 23 CLR 149 at 153, where Isaacs J (with whose reasons Barton ACJ concurred) said as follows: 'The basic essential is that the fact is to be of a class that is so generally known as to give rise to the presumption that all persons are aware of it. This excludes from the operation of judicial notice what are not "general" but "particular" facts... . To import knowledge of a particular fact in issue would be to import evidence in the strict sense regarding a matter as to which the Court is supposed to have no knowledge whatever of its own.' More recently in Woods v Multi-Sport Holdings Pty Limited [2002] HCA 9 ; (2002) 208 CLR 460, McHugh J reviewed the doctrine of judicial notice generally at 478-481, at [64]-[70], of his reasons for judgment, and in so doing cited the above dictum of Isaacs J at 478, at [64], in particular. Under the heading 'Notorious facts judicially noticed without injury' at 479, at [66], his Honour exemplified the following as '[f]acts that have been judicially noticed without inquiry..., (namely) that cancer is a major health problem in the community and, despite research, little progress has been made in controlling it; that HIV is a life-endangering disease; that a child victim of sexual assault may be reluctant to resist, protest or complain about the sexual assault, due to fear of punishment or rejection; and that many lawyers now charge hundreds of dollars an hour for their services, that legal aid is often unavailable to litigants in tort cases and that the cost of those services is substantially increased when lawyers cannot give advice to their clients because the law is unpredictable'.
Case: Woods v Multi-Sport Holdings Pty Limited [2002] HCA 9 ; (2002) 208 CLR 460
Outcome: cited
The first basis was that it was unnecessary to adduce evidence to the effect that it is critical to refrigerate temperature-sensitive goods in the course of being transported; so much was described by Lindsay as 'so generally known that every ordinary person may be reasonably presumed to be aware of it'. In my opinion that first asserted basis is soundly conceived on Lindsay's part. I was referred in that regard to the evidentiary principle enunciated in Holland v Jones [1917] HCA 26 ; (1917) 23 CLR 149 at 153, where Isaacs J (with whose reasons Barton ACJ concurred) said as follows: 'The basic essential is that the fact is to be of a class that is so generally known as to give rise to the presumption that all persons are aware of it. This excludes from the operation of judicial notice what are not "general" but "particular" facts... . To import knowledge of a particular fact in issue would be to import evidence in the strict sense regarding a matter as to which the Court is supposed to have no knowledge whatever of its own.' More recently in Woods v Multi-Sport Holdings Pty Limited [2002] HCA 9 ; (2002) 208 CLR 460, McHugh J reviewed the doctrine of judicial notice generally at 478-481, at [64]-[70], of his reasons for judgment, and in so doing cited the above dictum of Isaacs J at 478, at [64], in particular. Under the heading 'Notorious facts judicially noticed without injury' at 479, at [66], his Honour exemplified the following as '[f]acts that have been judicially noticed without inquiry..., (namely) that cancer is a major health problem in the community and, despite research, little progress has been made in controlling it; that HIV is a life-endangering disease; that a child victim of sexual assault may be reluctant to resist, protest or complain about the sexual assault, due to fear of punishment or rejection; and that many lawyers now charge hundreds of dollars an hour for their services, that legal aid is often unavailable to litigants in tort cases and that the cost of those services is substantially increased when lawyers cannot give advice to their clients because the law is unpredictable'.
Case: Federal Commissioner of Taxation v Hamersley Iron Pty Ltd (1981) 33 ALR 251
Outcome: cited
Lindsay drew attention furthermore to what was described as the leading authority on the meaning of the combined expression process or treatment, as appears in the context of sub-paragraph (a)(iii) of the definition of 'aids to manufacture' contained in the legislative precursor to the STEC Act, being the Sales Tax (Exemptions and Classifications) Act 1935 (Cth), the words process or treatment appearing of course in each of pars (a), (b) and (c) of the Item 18(5) definition of manufacture-related activity. That authority is Federal Commissioner of Taxation v Hamersley Iron Pty Ltd (1981) 33 ALR 251, which was decided by the Supreme Court of Victoria (Gobbo J) at first instance, and which decision was upheld on appeal to a Full Court (Lush, Kaye and Brooking JJ) (1981) 37 ALR 595. At first instance, Gobbo J reviewed (at 268) dictionary meanings of processing and treatment , as follows: 'Turning first to the meaning of "processing or treatment", there is nothing in the context of Item 113C to suggest that the ordinary meaning of treatment found for Item 14 should not be adopted. Treatment was there taken to mean the act of subjecting to chemical or physical action so as to bring about a change in form nature or condition. I further found that in its context such treatment had to be directed to a relevant result, namely to use or marketability. As to processing this in my view should in its context in Item 113C and Reg 4 be taken to have a different and probably wider meaning than treatment.... These meanings all suggest that a change in nature form or condition is effected. I am disposed to the view that even in processing some change must result if this procedure is to be regarded as a process.' Lindsay drew attention in particular to 'subjecting to... physical action... [and] condition' , and also to 'use or marketability', appearing above, being expressions reflected explicitly or implicitly in Item 18(5)(a) to (c) within the definition of manufacture-related activity . After referring to Davies Coop and Company Limited v Federal Commissioner of Taxation [1947] HCA 64 ; (1948) 77 CLR 299, Gobbo J observed at 269 in Hamersley Iron that authority 'supports a meaning of processing that does not require that there be a change producing a commercially distinct article...', and his Honour referred to recent English authority which had 'adopted the view... that alteration of the material was not necessary to involve subjecting it to a process'. That submission was soundly conceived.