mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Tzovaras v Nufeno Pty Ltd [2003] FCA 1152
Outcome: cited
requirement imposed by s 40(1)(g) that the " counter-claim, set-off or cross demand " be one which " could not have [been] set up in the action or proceeding in which the judgment or order was obtained " is a requirement which refers to the ability to set up the claim, set-off or demand as a matter of law. A mere failure to take advantage of an opportunity to do so does not fall within s 40(1)(g): Re Vicini; Ex parte E A Sealey &amp; Co (1982) 64 FLR 323. Fisher J there usefully summarised as follows some of the relevant authorities (at 326): The relevant words of the Act were considered by Lockhart J in Re Brink; Ex parte The Commercial Banking Company of Sydney Ltd. (1980) 44 F.L.R. 135, at p. 139, when he said: "The words 'that he could not have set up in the action or proceeding in which the judgment or order was obtained' mean 'which he could not by law set up in the action': see Re Jocumsen (1929) 1 A.B.C. 82 , at p. 85; Re A Debtor [1914] 3 K.B. 726 , at p. 730 per Avory J.; Re Stockvis (1934) 7 A.B.C 53 , at p. 57, especially per Lukin J. where his Honour said: 'I take as a counterclaim, set off or cross demand which could not be set up as one which, from point of time, or from its nature, or from absence of empowering provisions, or from positive inhibition so to do, could not be set up in the particular case in which judgment was obtained .... Mere failure to take advantage of the opportunity can hardly be said to be inability.'" In Re A Debtor the circumstances were that, at the time of judgment, the debtor was not the assignee of a debt, which debt he in answer to the bankruptcy notice relied upon as constituting a counterclaim which he could not have set up in the proceedings. Thus at the time of judgment he could not have as a matter of law set up the counterclaim. It was nothing to the point that he might have earlier taken an assignment. At p. 730 Avory J said: "I think that upon the true interpretation of the section a debtor is entitled to set up in answer to a bankruptcy notice a counter-claim which rebus sic stantibus he could not in law have set up in the action in which the judgment was obtained, even though he could, if he had chosen, have taken steps which would have rendered the counter-claim available to him in the action. "I think it means a counter-claim which as things then stood the debtor could not set up in the action." Whether a claim " could not have [been] set up " is to be determined " by reference to legal considerations " and not " by reference to practicalities ": Re Ling; Ex parte Ling v Commonwealth [1995] FCA 1410 ; (1995) 58 FCR 129 at 132. See also: Smart v Esanda Finance Corp Ltd [2000] FCA 235 at [17] per Lee, Goldberg and Kenny JJ; Tzovaras v Nufeno Pty Ltd [2003] FCA 1152 at [34] [35] per Jacobson J; and Massih v Esber [2008] FCA 1452 at [28] [29].
Case: M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131
Outcome: referred to
A written submission was made to the Tribunal on behalf of the appellant. Although no express reference was made, in that submission, to the alleged political interference with the police investigation, the Tribunal's attention was directed to the appellant's statement in support of her protection visa application. Part of the submission read: "She has also been politically involved as can be seen from the statement she made in support of her protection visa application." As already noted, one aspect of the appellant's political involvement was her work for the UNP which it was said led to the interference by a political opponent. She thereby expressly relied on the information and invited the Tribunal to have regard to it: see M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25] . The Tribunal was, therefore seized of the political interference claim. Was it also seized of the "information" that the claim had not been reiterated during the hearing which it conducted? Although there are some decisions of the Court (see for example VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471) which may be understood as supporting the view that omissions from an appellant's account do not constitute "information" for the purposes of s 424A of the Act , the weight of authority supports the conclusion reached by Weinberg J in NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 174 ; (2006) 156 FCR 205 at 212-13 that: "There is no reason in principle why such an omission (which the Tribunal views as important, and which is plainly adverse to the applicant's case) should be treated any differently, when it comes to s 424A , than a positive statement. This is particularly so when, as the Tribunal seems to have done here, it treats the omission as though it provides implicit support for a positive assertion that is detrimental to an applicant's case. It makes no difference whether the omission is to be found in a prior statement of an applicant or as in this case in a statement provided by a third party." See also SZEEU at 252, 262-3; SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 at [72] . Although his Honour was dealing with a case in which the relevant omission was made in the original application, there is no reason, in principle, why the failure to mention a particular matter when advancing a case before the Tribunal should not also constitute "information" for the purposes of s 424A.
Case: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214
Outcome: referred to
I am prepared to assume, in the appellant's favour, that the fact that the claim of political interference with the police investigation was made in support of the original applications but not reiterated at the hearing before the Tribunal constitutes "information" for the purposes of s 424A(1) of the Act . However, the Tribunal is only bound to provide particulars of information "that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review." Information will not be "a part of the reason" for affirming a decision unless it is established that the information "contributed in some way, which renders it an operative causal link, to the decision itself": see SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at 256 [182] ; NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 174 ; (2006) 156 FCR 205 at 224 [79] . 15 Moreover, there is force in the Minister's contention that the claim about political interference had formed part of the claims made in support of the appellant's visa applications and that these claims had been republished to the Tribunal when review of the delegate's decision was sought. Section 424A(3)(b) provides that the requirements of s 424A(1) do not apply to information which an applicant "gave" for the purpose of the application. Most, if not all, cases in which s 424A(3)(b) has been invoked have been cases in which an applicant makes a significant claim before the Tribunal which was not made in support of the original protection visa application. This case differs because a claim which was made in the original application was not repeated during the oral hearing before the Tribunal. Section 424A(3)(b) could only operate in this case if the claims made in support of the original visa application were made (given) to the Tribunal by the appellant: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at 222, 252, 256.
Case: SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435
Outcome: referred to
A written submission was made to the Tribunal on behalf of the appellant. Although no express reference was made, in that submission, to the alleged political interference with the police investigation, the Tribunal's attention was directed to the appellant's statement in support of her protection visa application. Part of the submission read: "She has also been politically involved as can be seen from the statement she made in support of her protection visa application." As already noted, one aspect of the appellant's political involvement was her work for the UNP which it was said led to the interference by a political opponent. She thereby expressly relied on the information and invited the Tribunal to have regard to it: see M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25] . The Tribunal was, therefore seized of the political interference claim. Was it also seized of the "information" that the claim had not been reiterated during the hearing which it conducted? Although there are some decisions of the Court (see for example VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471) which may be understood as supporting the view that omissions from an appellant's account do not constitute "information" for the purposes of s 424A of the Act , the weight of authority supports the conclusion reached by Weinberg J in NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 174 ; (2006) 156 FCR 205 at 212-13 that: "There is no reason in principle why such an omission (which the Tribunal views as important, and which is plainly adverse to the applicant's case) should be treated any differently, when it comes to s 424A , than a positive statement. This is particularly so when, as the Tribunal seems to have done here, it treats the omission as though it provides implicit support for a positive assertion that is detrimental to an applicant's case. It makes no difference whether the omission is to be found in a prior statement of an applicant or as in this case in a statement provided by a third party." See also SZEEU at 252, 262-3; SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 at [72] . Although his Honour was dealing with a case in which the relevant omission was made in the original application, there is no reason, in principle, why the failure to mention a particular matter when advancing a case before the Tribunal should not also constitute "information" for the purposes of s 424A.
Case: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
Outcome: cited
A written submission was made to the Tribunal on behalf of the appellant. Although no express reference was made, in that submission, to the alleged political interference with the police investigation, the Tribunal's attention was directed to the appellant's statement in support of her protection visa application. Part of the submission read: "She has also been politically involved as can be seen from the statement she made in support of her protection visa application." As already noted, one aspect of the appellant's political involvement was her work for the UNP which it was said led to the interference by a political opponent. She thereby expressly relied on the information and invited the Tribunal to have regard to it: see M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25] . The Tribunal was, therefore seized of the political interference claim. Was it also seized of the "information" that the claim had not been reiterated during the hearing which it conducted? Although there are some decisions of the Court (see for example VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471) which may be understood as supporting the view that omissions from an appellant's account do not constitute "information" for the purposes of s 424A of the Act , the weight of authority supports the conclusion reached by Weinberg J in NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 174 ; (2006) 156 FCR 205 at 212-13 that: "There is no reason in principle why such an omission (which the Tribunal views as important, and which is plainly adverse to the applicant's case) should be treated any differently, when it comes to s 424A , than a positive statement. This is particularly so when, as the Tribunal seems to have done here, it treats the omission as though it provides implicit support for a positive assertion that is detrimental to an applicant's case. It makes no difference whether the omission is to be found in a prior statement of an applicant or as in this case in a statement provided by a third party." See also SZEEU at 252, 262-3; SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 at [72] . Although his Honour was dealing with a case in which the relevant omission was made in the original application, there is no reason, in principle, why the failure to mention a particular matter when advancing a case before the Tribunal should not also constitute "information" for the purposes of s 424A.
Case: NBBD v Minister for Immigration and Multicultural Affairs [2006] FCA 1029
Outcome: cited
application was filed approximately 3 weeks outside the 21 day time limit prescribed by the Federal Court Rules (O 52 r 15(1)(a)(i)). No explanation for the delay is given, other than an assertion by the applicant that she believed that the time limit had not expired. That explanation does not constitute special reasons for the grant of an extension of time. Nevertheless, it is appropriate to consider the merits of the appeal in determining whether leave should be granted ( NBBD v Minister for Immigration and Multicultural Affairs [2006] FCA 1029 at [12] ). Federal Magistrate Smith set out the history of this matter in his decision at [4] to [14]. In summary, the applicant lodged an application for a protection visa. That application was refused by a delegate of the Minister and the applicant sought review of the Minister's decision before the Refugee Review Tribunal. The application form to the Tribunal included an authority for a migration agent (Mr Mollah) to act for the applicant in relation to her application. The form indicated that correspondence was to be sent to the applicant's residential address and that her agent was authorised to receive correspondence in connection with the review by the Tribunal. The form explained that, if such a person was nominated, all correspondence would be sent to that person, identified by the form as the "authorised recipient". Letters addressed to the applicant were sent to Mr Mollah regarding the Tribunal proceeding. One such letter informed the applicant that the Tribunal had considered the material before it but was unable to make a decision in her favour and invited her to attend a hearing. Smith FM summarised the steps taken by the Tribunal to notify the applicant of the hearing date through Mr Mollah (at [10] to [14]).
Case: Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564
Outcome: applied
The power conferred by s 21 is a discretionary power which is not to be limited by the laying down of rules as to the manner of its exercise: Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564. Mason CJ, Dawson, Toohey and Gaudron JJ there observed (at 581 2): It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which "[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise." However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have "a real interest" and relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that [have] not occurred and might never happen" or if "the Court's declaration will produce no foreseeable consequences for the parties". (citations omitted) 22 Given the functions entrusted to Comcare by the 1991 Act, there can be no question but that Comcare has " a real interest " in securing the relief which is sought. Indeed, cl 5 to sch 2 of the 1991 Act expressly provides that either Comcare or an investigator may apply for a declaration of contravention. 23 The manner in which the Court is to inform itself as to whether or not there has been a breach of the 1991 Act is not surprisingly left unspecified. Whether or not there has been a breach may involve, in some cases, a contested and lengthy hearing. Alternatively, and as in the present proceeding, the parties may provide to the Court a statement of agreed facts and limited further evidence .
Case: Australian Competition and Consumer Commission v Australian Abalone Pty Ltd [2007] FCA 1834 , ATPR 42-199
Outcome: followed
Of particular concern is the need to ensure that this Court is " not merely giving effect to the wishes of the parties ": cf Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18 at [18] , [1999] FCA 18 ; 161 ALR 79 at 86 per French J. The Court is not to be regarded as a " rubber stamp ": Australian Competition and Consumer Commission v Australian Abalone Pty Ltd [2007] FCA 1834 at [121] , ATPR 42-199 per Weinberg J.
Case: Australian Competition and Consumer Commission v EDirect Pty Ltd [2008] FCA 65 , ATPR 42 216
Outcome: cited
In regulatory contexts comparable to the present, this Court has informed itself as to those facts necessary for the granting of declaratory relief by reference to agreed facts and indeed the consent of the parties: Bank of Kuwait and the Middle East v Ship MV 'Mawashi Al Gasseem' (No 2) [2007] FCA 815 at [10] [16], [2007] FCA 815 ; 240 ALR 120 at 122 4; Australian Competition &amp; Consumer Commission v Info4PC.com Pty Ltd [2006] FCA 1534 at [10] per Nicholson J; Australian Competition and Consumer Commission v EDirect Pty Ltd [2008] FCA 65 at [20] [30], ATPR 42 216; Secretary, Department of Health &amp; Ageing v Pagasa Australia Pty Ltd [2008] FCA 1545 at [74] [79]; Australian Competition and Consumer Commission v Goldy Motors Pty Ltd [2000] FCA 1885 at [30] , [34], ATPR 41 801.
Case: Australian Competition and Consumer Commission v Goldy Motors Pty Ltd [2000] FCA 1885 , ATPR 41 801
Outcome: cited
In regulatory contexts comparable to the present, this Court has informed itself as to those facts necessary for the granting of declaratory relief by reference to agreed facts and indeed the consent of the parties: Bank of Kuwait and the Middle East v Ship MV 'Mawashi Al Gasseem' (No 2) [2007] FCA 815 at [10] [16], [2007] FCA 815 ; 240 ALR 120 at 122 4; Australian Competition &amp; Consumer Commission v Info4PC.com Pty Ltd [2006] FCA 1534 at [10] per Nicholson J; Australian Competition and Consumer Commission v EDirect Pty Ltd [2008] FCA 65 at [20] [30], ATPR 42 216; Secretary, Department of Health &amp; Ageing v Pagasa Australia Pty Ltd [2008] FCA 1545 at [74] [79]; Australian Competition and Consumer Commission v Goldy Motors Pty Ltd [2000] FCA 1885 at [30] , [34], ATPR 41 801.
Case: Australian Competition &amp; Consumer Commission v Info4PC.com Pty Ltd [2006] FCA 1534
Outcome: cited
In regulatory contexts comparable to the present, this Court has informed itself as to those facts necessary for the granting of declaratory relief by reference to agreed facts and indeed the consent of the parties: Bank of Kuwait and the Middle East v Ship MV 'Mawashi Al Gasseem' (No 2) [2007] FCA 815 at [10] [16], [2007] FCA 815 ; 240 ALR 120 at 122 4; Australian Competition &amp; Consumer Commission v Info4PC.com Pty Ltd [2006] FCA 1534 at [10] per Nicholson J; Australian Competition and Consumer Commission v EDirect Pty Ltd [2008] FCA 65 at [20] [30], ATPR 42 216; Secretary, Department of Health &amp; Ageing v Pagasa Australia Pty Ltd [2008] FCA 1545 at [74] [79]; Australian Competition and Consumer Commission v Goldy Motors Pty Ltd [2000] FCA 1885 at [30] , [34], ATPR 41 801.
Case: Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18 , 161 ALR 79
Outcome: followed
Of particular concern is the need to ensure that this Court is " not merely giving effect to the wishes of the parties ": cf Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18 at [18] , [1999] FCA 18 ; 161 ALR 79 at 86 per French J. The Court is not to be regarded as a " rubber stamp ": Australian Competition and Consumer Commission v Australian Abalone Pty Ltd [2007] FCA 1834 at [121] , ATPR 42-199 per Weinberg J.
Case: Australian Prudential Regulation Authority v Derstepanian [2005] FCA 1121
Outcome: cited
In the statutory context of the Trade Practices Act 1974 (Cth), French J (as he then was) has attempted to summarise some of these considerations: Trade Practices Commission v CSR Ltd (1991) ATPR 41-076. When assessing the penalty to be imposed pursuant to s 76(1) of the 1974 Act His Honour observed (at 52,152 52,153): The assessment of a penalty of appropriate deterrent value will have regard to a number of factors which have been canvassed in the cases. These include the following: 1. The nature and extent of the contravening conduct. 2. The amount of loss or damage caused. 3. The circumstances in which the conduct took place. 4. The size of the contravening company. 5. The degree of power it has, as evidenced by its market share and ease of entry into the market. 6. The deliberateness of the contravention and the period over which it extended. 7. Whether the contravention arose out of the conduct of senior management or at a lower level. 8. Whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention. 9. Whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention. These considerations have since been applied to other legislative contexts: eg, Minister for the Environment and Heritage v Greentree (No 3) [2004] FCA 1317 at [51] , [2004] FCA 1317 ; 136 LGERA 89 ; Australian Prudential Regulation Authority v Derstepanian [2005] FCA 1121 at [30] ; Secretary, Department of Health &amp; Ageing v Pagasa Australia Pty Ltd [2008] FCA 1545 at [24] .
Case: Bank of Kuwait and the Middle East v Ship MV 'Mawashi Al Gasseem' (No 2) [2007] FCA 815 , 240 ALR 120
Outcome: cited
In regulatory contexts comparable to the present, this Court has informed itself as to those facts necessary for the granting of declaratory relief by reference to agreed facts and indeed the consent of the parties: Bank of Kuwait and the Middle East v Ship MV 'Mawashi Al Gasseem' (No 2) [2007] FCA 815 at [10] [16], [2007] FCA 815 ; 240 ALR 120 at 122 4; Australian Competition &amp; Consumer Commission v Info4PC.com Pty Ltd [2006] FCA 1534 at [10] per Nicholson J; Australian Competition and Consumer Commission v EDirect Pty Ltd [2008] FCA 65 at [20] [30], ATPR 42 216; Secretary, Department of Health &amp; Ageing v Pagasa Australia Pty Ltd [2008] FCA 1545 at [74] [79]; Australian Competition and Consumer Commission v Goldy Motors Pty Ltd [2000] FCA 1885 at [30] , [34], ATPR 41 801.