mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Minister for Immigration and Multicultural Affairs v Ibrahim [2000] HCA 55 ; (2000) 204 CLR 1
Outcome: cited
The notion of 'systematic conduct' was referred to in Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62 ; (1989) 169 CLR 379, at 429-430, per McHugh J. As McHugh J observed in Minister for Immigration and Multicultural Affairs v Ibrahim [2000] HCA 55 ; (2000) 204 CLR 1, at [95], the use of this expression proved somewhat unfortunate in that some RRT decisions read it as meaning that there can be no persecution for the purposes of the Convention unless there has been a systematic course of conduct by the oppressor. McHugh J made it clear in Ibrahim that that had not been his meaning. Rather, he intended the expression to be a synonym for 'non-random'. McHugh J also said this (at [99]): ' It is an error to suggest that the use of the expression "systematic conduct" in ... Chan was intended to require, as a matter of law, that an applicant had to fear organised or methodical conduct, akin to the atrocities committed by the Nazis in the Second World War. Selective harassment, which discriminates against a person for a Convention reason, is inherent in the notion of persecution. Unsystematic or random acts are non-selective. It is therefore not a prerequisite to obtaining refugee status that a person fears being persecuted on a number of occasions or "must show a series of co-ordinated acts directed at him or her which can be said to be not isolated but systematic". The fear of a single act of harm done for a Convention reason will satisfy the Convention definition of persecution if it is so oppressive that the individual cannot be expected to tolerate it so that refusal to return to the country of the applicant's nationality is the understandable choice of that person. ' [Citations omitted.] 26 In the present case, the RRT used the expression 'a course of systematic conduct', or its equivalent, on three separate occasions. On each occasion, the RRT cited the observations of McHugh J in Chan . Of course, the RRT's decision in the present case was handed down long before the clarification of the law in Ibrahim .
Case: Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1
Outcome: cited
The RRT's reasoning seems to me to amount to an independent basis for the conclusion it ultimately reached. That is to say, even if the appellant feared a repeat of mob violence directed at people of Chinese ethnicity, the Government of Indonesia was willing and able to take effective steps to prevent the violence or to minimise the consequences of it. The approach taken by the RRT seems to me to be unexceptional and is in accord with the more recent authorities: Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1; Minster for Immigration and Multicultural Affairs v Respondents S152/ 2003 (2004) 205 ALR 487, at [26] [29] per Gleeson CJ, Hayne and Heydon JJ. To use the language of the joint judgment in S152/2003 , at [29], the RRT must be understood as having found: ' [T]hat the information did not justify a conclusion that the government would not or could not provide citizens in the position of [the appellant] with the level of protection which they were entitled to expect according to international standards. That being so, he was not a victim of persecution, and he could not justify his unwillingness to seek the protection of his country of nationality. It was not enough for [the appellant] to show that there was a real risk that, if he returned to his country, he might suffer further harm. He had to show that the harm was persecution, and he had to justify his unwillingness to seek the protection of his country of nationality. '
Case: Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487
Outcome: cited
The RRT's reasoning seems to me to amount to an independent basis for the conclusion it ultimately reached. That is to say, even if the appellant feared a repeat of mob violence directed at people of Chinese ethnicity, the Government of Indonesia was willing and able to take effective steps to prevent the violence or to minimise the consequences of it. The approach taken by the RRT seems to me to be unexceptional and is in accord with the more recent authorities: Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1; Minster for Immigration and Multicultural Affairs v Respondents S152/ 2003 (2004) 205 ALR 487, at [26] [29] per Gleeson CJ, Hayne and Heydon JJ. To use the language of the joint judgment in S152/2003 , at [29], the RRT must be understood as having found: ' [T]hat the information did not justify a conclusion that the government would not or could not provide citizens in the position of [the appellant] with the level of protection which they were entitled to expect according to international standards. That being so, he was not a victim of persecution, and he could not justify his unwillingness to seek the protection of his country of nationality. It was not enough for [the appellant] to show that there was a real risk that, if he returned to his country, he might suffer further harm. He had to show that the harm was persecution, and he had to justify his unwillingness to seek the protection of his country of nationality. '
Case: Murray v Figge (1974) 4 ALR 612
Outcome: cited
The defendants' application requires the Court to exercise a discretion to grant the defendants leave to re-open their case after final submissions have been concluded and the Court has reserved its decision. That jurisdiction is well recognised and has been exercised on a number of occasions, not only where a party has closed its case and the trial is continuing but also where all parties have closed their case, final submissions have been made and concluded and the Court has reserved its decision: Murray v Figge (1974) 4 ALR 612; Smith v New South Wales Bar Association [1992] HCA 36 ; (1992) 176 CLR 256 at 266-267.
Case: Re Australasian Meat Industry Employees' Union (WA Branch); Ex parte Ferguson (1986) 67 ALR 491
Outcome: cited
In Re Australasian Meat Industry Employees' Union (WA Branch); Ex parte Ferguson (1986) 67 ALR 491, Toohey J said at 493-494: "In situations where a hearing has concluded but judgment has been reserved and not delivered, it has been said that fresh evidence should be admitted only when it is so material that the interests of justice require it; the evidence if believed would most probably affect the result; the evidence could not by reasonable diligence have been discovered before; and perhaps that no prejudice would ensue to the other party by reason of the introduction of the evidence so late ..." In that case the evidence which was sought to be adduced after judgment was reserved was not fresh evidence but was rather evidence readily available to the respondent but it was evidence in respect of which it was thought it was unnecessary to call. However, in the particular circumstances of that case which involved a union election, Toohey J concluded that the interests of justice warranted a re-opening of the inquiry in relation to the election.
Case: White Industries (Qld) Pty Ltd v Flower &amp; Hart (A Firm) (1998) 156 ALR 169
Outcome: cited
The rule in Browne v Dunn is a rule of fairness. It requires a party who intends to contradict or challenge the evidence of an opposing party's witness to put to that witness that his or her evidence on a particular matter will be challenged. The purpose of the rule is to give the witness an opportunity to answer or to respond to the allegation or submission which will be made against the witness. The rule in Browne v Dunn will be complied with where the substance of the version or submission challenging the witness' evidence is put to the witness. It is not necessary that every detail of the challenge which will be made to the witness' evidence be put to the witness: White Industries (Qld) Pty Ltd v Flower &amp; Hart (A Firm) (1998) 156 ALR 169 at 217; Jardein Pty Ltd v Stathakis [2007] FCAFC 148 at par [29] .
Case: Jardein Pty Ltd v Stathakis [2007] FCAFC 148
Outcome: cited
The rule in Browne v Dunn is a rule of fairness. It requires a party who intends to contradict or challenge the evidence of an opposing party's witness to put to that witness that his or her evidence on a particular matter will be challenged. The purpose of the rule is to give the witness an opportunity to answer or to respond to the allegation or submission which will be made against the witness. The rule in Browne v Dunn will be complied with where the substance of the version or submission challenging the witness' evidence is put to the witness. It is not necessary that every detail of the challenge which will be made to the witness' evidence be put to the witness: White Industries (Qld) Pty Ltd v Flower &amp; Hart (A Firm) (1998) 156 ALR 169 at 217; Jardein Pty Ltd v Stathakis [2007] FCAFC 148 at par [29] . 24 In Jardein Pty Ltd v Stathakis (supra) at par [32], the Full Court of the Federal Court said: "A possible consequence of a breach of the rule may be that the party in breach will be prevented from suggesting that the witness' testimony should be disbelieved. Another possible consequence will be the exclusion of evidence that challenges the witness' account with respect to those matters upon which there was no cross-examination. A third possible consequence will be to permit the witness to be recalled so that the breach can be remedied. One thing is clear. The rule is not simply to be ignored." 25 I observe, in passing, that the rule in Browne v Dunn still applies notwithstanding s 46 of the Evidence Act 1995 (Cth). That section presupposes the existence and application of the rule in Browne v Dunn because it enables the Court to give leave to recall a witness in particular circumstances where the rule has not been complied with: Jardein Pty Ltd v Stathakis (supra) at par [33].
Case: Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219
Outcome: cited
Where the rule in Browne v Dunn has not been complied with there are a number of alternative courses of action which may be adopted. In Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219; Mahoney JA said at 236-237: "This kind of problem may arise at different times in the litigation. It may arise during the trial. Thus, where a party fails to cross-examine a witness at all or on a particular matter, it may be prudent for the trial judge at the time to draw the attention of counsel in an appropriate way to the effect this may have on the later conduct of the trial. It may be that the question arises at a later stage in the trial when counsel seeks to call evidence contradicting the witness or discrediting his evidence, or seeks to address upon the basis that the witness' evidence is untrue. The trial judge may then have to determine what course should be followed. Sometimes the interests of justice may be served by having the witness recalled for cross-examination. Sometimes the circumstances may be such that the only way in which justice can be achieved is by directing that, for example, it is not open to counsel, in address, to make such suggestion. What is to be done will depend, as I have said, upon the circumstances of the case." 26 In Payless Superbarn (NSW) Pty Ltd v O'Gara (1990) 19 NSWLR 551 Clarke JA (with whom Priestley and Meagher JJA agreed), said at 556: "... there is no universal rule laying down the consequences of a failure to comply with the rule in Browne . Obviously breaches of the rule may occur in many different circumstances and it would be quite inappropriate for the courts to endeavour to lay down a specific procedure to remedy the problems flowing from a breach no matter in what circumstances the breach occurs. Different situations will call for different remedies and in my opinion the precise procedures to be adopted when a breach of the rule occurs lies within the discretion of the trial judge. It is for him to determine whether a breach has occurred and, if so, what steps should be taken to ensure that the trial does not miscarry. He may, for example, require the relevant witness to be recalled for further cross-examination before allowing the contradictory evidence to be given or he may decline to allow the party in default to address upon a particular subject upon which the opposing party was not cross-examined: see, eg, Precision Plastics Pty Ltd v Demir [1975] HCA 27 ; (1975) 132 CLR 362. The decision will, in each case, involve a balancing of competing considerations and lies essentially within the discretion of the trial judge." See also Seymour v Australian Broadcasting Commission (supra) at 225, 235 6, Marelic v Comcare (1993) 47 FCR 437 at 442-443; Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1 at 26-27; Dolan v Australian &amp; Overseas Telecommunications Corporation (1993) 42 FCR 206 at 207-208.
Case: McCarthy v McIntyre [2000] FCA 1250
Outcome: cited
In McCarthy v McIntyre [2000] FCA 1250 , the Full Court of the Federal Court said at par [30]: "Where an application is made to reopen on the basis that new or additional evidence is available, it would be relevant to enquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application. Even if that hurdle is passed, different considerations will apply depending upon whether the case is simply one in which the hearing is complete or one in which reasons for judgment have been delivered. In the former situation, the primary consideration should be that of embarrassment or prejudice to the other side. However, in the latter situation, the appeal rules relating to fresh evidence provide a useful guide as to the manner in which the discretion to reopen should be exercised Smith v NSW Bar Association [1992] HCA 36 ; (1992) 176 CLR 256 at 266-7."
Case: Payless Superbarn (NSW) Pty Ltd v O'Gara (1990) 19 NSWLR 551
Outcome: cited
In Payless Superbarn (NSW) Pty Ltd v O'Gara (1990) 19 NSWLR 551 Clarke JA (with whom Priestley and Meagher JJA agreed), said at 556: "... there is no universal rule laying down the consequences of a failure to comply with the rule in Browne . Obviously breaches of the rule may occur in many different circumstances and it would be quite inappropriate for the courts to endeavour to lay down a specific procedure to remedy the problems flowing from a breach no matter in what circumstances the breach occurs. Different situations will call for different remedies and in my opinion the precise procedures to be adopted when a breach of the rule occurs lies within the discretion of the trial judge. It is for him to determine whether a breach has occurred and, if so, what steps should be taken to ensure that the trial does not miscarry. He may, for example, require the relevant witness to be recalled for further cross-examination before allowing the contradictory evidence to be given or he may decline to allow the party in default to address upon a particular subject upon which the opposing party was not cross-examined: see, eg, Precision Plastics Pty Ltd v Demir [1975] HCA 27 ; (1975) 132 CLR 362. The decision will, in each case, involve a balancing of competing considerations and lies essentially within the discretion of the trial judge." See also Seymour v Australian Broadcasting Commission (supra) at 225, 235 6, Marelic v Comcare (1993) 47 FCR 437 at 442-443; Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1 at 26-27; Dolan v Australian &amp; Overseas Telecommunications Corporation (1993) 42 FCR 206 at 207-208.
Case: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1
Outcome: cited
In Payless Superbarn (NSW) Pty Ltd v O'Gara (1990) 19 NSWLR 551 Clarke JA (with whom Priestley and Meagher JJA agreed), said at 556: "... there is no universal rule laying down the consequences of a failure to comply with the rule in Browne . Obviously breaches of the rule may occur in many different circumstances and it would be quite inappropriate for the courts to endeavour to lay down a specific procedure to remedy the problems flowing from a breach no matter in what circumstances the breach occurs. Different situations will call for different remedies and in my opinion the precise procedures to be adopted when a breach of the rule occurs lies within the discretion of the trial judge. It is for him to determine whether a breach has occurred and, if so, what steps should be taken to ensure that the trial does not miscarry. He may, for example, require the relevant witness to be recalled for further cross-examination before allowing the contradictory evidence to be given or he may decline to allow the party in default to address upon a particular subject upon which the opposing party was not cross-examined: see, eg, Precision Plastics Pty Ltd v Demir [1975] HCA 27 ; (1975) 132 CLR 362. The decision will, in each case, involve a balancing of competing considerations and lies essentially within the discretion of the trial judge." See also Seymour v Australian Broadcasting Commission (supra) at 225, 235 6, Marelic v Comcare (1993) 47 FCR 437 at 442-443; Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1 at 26-27; Dolan v Australian &amp; Overseas Telecommunications Corporation (1993) 42 FCR 206 at 207-208.
Case: Dolan v Australian &amp; Overseas Telecommunications Corporation (1993) 42 FCR 206
Outcome: cited
In Payless Superbarn (NSW) Pty Ltd v O'Gara (1990) 19 NSWLR 551 Clarke JA (with whom Priestley and Meagher JJA agreed), said at 556: "... there is no universal rule laying down the consequences of a failure to comply with the rule in Browne . Obviously breaches of the rule may occur in many different circumstances and it would be quite inappropriate for the courts to endeavour to lay down a specific procedure to remedy the problems flowing from a breach no matter in what circumstances the breach occurs. Different situations will call for different remedies and in my opinion the precise procedures to be adopted when a breach of the rule occurs lies within the discretion of the trial judge. It is for him to determine whether a breach has occurred and, if so, what steps should be taken to ensure that the trial does not miscarry. He may, for example, require the relevant witness to be recalled for further cross-examination before allowing the contradictory evidence to be given or he may decline to allow the party in default to address upon a particular subject upon which the opposing party was not cross-examined: see, eg, Precision Plastics Pty Ltd v Demir [1975] HCA 27 ; (1975) 132 CLR 362. The decision will, in each case, involve a balancing of competing considerations and lies essentially within the discretion of the trial judge." See also Seymour v Australian Broadcasting Commission (supra) at 225, 235 6, Marelic v Comcare (1993) 47 FCR 437 at 442-443; Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1 at 26-27; Dolan v Australian &amp; Overseas Telecommunications Corporation (1993) 42 FCR 206 at 207-208.
Case: Marelic v Comcare (1993) 47 FCR 437
Outcome: cited
In Payless Superbarn (NSW) Pty Ltd v O'Gara (1990) 19 NSWLR 551 Clarke JA (with whom Priestley and Meagher JJA agreed), said at 556: "... there is no universal rule laying down the consequences of a failure to comply with the rule in Browne . Obviously breaches of the rule may occur in many different circumstances and it would be quite inappropriate for the courts to endeavour to lay down a specific procedure to remedy the problems flowing from a breach no matter in what circumstances the breach occurs. Different situations will call for different remedies and in my opinion the precise procedures to be adopted when a breach of the rule occurs lies within the discretion of the trial judge. It is for him to determine whether a breach has occurred and, if so, what steps should be taken to ensure that the trial does not miscarry. He may, for example, require the relevant witness to be recalled for further cross-examination before allowing the contradictory evidence to be given or he may decline to allow the party in default to address upon a particular subject upon which the opposing party was not cross-examined: see, eg, Precision Plastics Pty Ltd v Demir [1975] HCA 27 ; (1975) 132 CLR 362. The decision will, in each case, involve a balancing of competing considerations and lies essentially within the discretion of the trial judge." See also Seymour v Australian Broadcasting Commission (supra) at 225, 235 6, Marelic v Comcare (1993) 47 FCR 437 at 442-443; Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1 at 26-27; Dolan v Australian &amp; Overseas Telecommunications Corporation (1993) 42 FCR 206 at 207-208.
Case: Raben Footwear Pty Ltd v Polygram Records Inc (1997) 75 FCR 88
Outcome: cited
As noted earlier, it is not necessary, in order to comply with the rule in Browne v Dunn , that a party put to a witness in cross-examination every detail of the evidence or submission upon which that party intends to rely in order to discredit the witness' evidence. As was said by the Full Court of the Federal Court in Raben Footwear Pty Ltd v Polygram Records Inc (1997) 75 FCR 88 at 101-102 (per Tamberlin J): "In commercial litigation (including intellectual property matters), where issues are clearly defined, there will often be no point in formally challenging every aspect of the evidence which is contested. There will often be a large number of matters in respect of which it will be apparent from the pleadings and particulars there is clearly a contest. Where this is the case the principle need not be applied in an unduly technical way. ... The rule may be satisfied where the witness is on notice that the version given is disputed and such notice may come from pleadings, the opponent's evidence or opening, or from the general manner in which the case is conducted." (at 102)