mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZLAH v Minister for Immigration &amp; Citizenship [2007] FCA 1807
Outcome: cited
That submission was that the second and third grounds were but " pro forma " grounds of appeal. Counsel for the Minister referred the Court to the fact that these two grounds had a disturbing correspondence with those grounds advanced in SZLAH v Minister for Immigration &amp; Citizenship [2007] FCA 1807 and SZINJ v Minister for Immigration &amp; Citizenship [2007] FCA 1742. In the former decision North J, in his Honour's reasons refusing an application for leave to appeal, recorded: [6] On 3 September 2007, the applicant filed an application for leave to appeal and attached a draft notice of appeal to the application. The grounds of appeal there stated were as follows: ... 2. That the Appellants submitted the evidence to the effect the amount of the persecution which has been committed to the applicant, the RRT did not give any consideration, instead the appearance of the applicant was made the issue before the RRT, which in accordance with the law is not required. The appellant made out a case which really requires the judicial inference of this honourable Court to meet the ends of justice. 3. That the Respondents have failed to assess the claims made by the appellant as per the refugee laws as laid down by the handbook of the UNHCR. The real meanings were not taken into the consideration by the RRT &amp; by the learned Court below. In the latter decision, Collier J dismissed an appeal and similarly recorded the grounds before her Honour as follows: [12] The appellant raised the following grounds of appeal: ... 2. That the Appellants submitted the bundle of evidence before the RRT, the RRT did not gave (sic) any consideration, instead the appearance of the (sic) was said to not (sic) plausible, as such the evidence was not taken in to consideration, the appellant made out a case which really requires the judicial inference of this honourable Court to meet the ends of justice. 3. That the Respondents have failed to assess the claims made by the appellant as per the refugee laws as laid down by the hand book of the UNHCR. The real threat to the life of the Appellant was not considered in the instant case.
Case: SZLHM v Minister for Immigration &amp; Citizenship [2008] FMCA 62
Outcome: cited
On 16 August 2007 the Tribunal affirmed the decision not to grant the visa. That decision of the Tribunal was affirmed by the Federal Magistrates Court on 18 January 2008: SZLHM v Minister for Immigration &amp; Citizenship [2008] FMCA 62. 4 The Appellant now appeals to this Court. He appeared at the hearing of the appeal unrepresented but with the assistance of an interpreter. He had previously filed written submissions, as had the Respondent Minister. At the request of the Court, further submissions were also filed on behalf of the Respondent Minister on 19 May 2008. All submissions have now been considered. 5 The Grounds of Appeal are set forth in the Notice of Appeal (without alteration) as follows: GROUNDS OF APPEAL: (Specify grounds of appeal) 1. That the Learned Federal Magistrate simply dismissed the application by not assessing the applicants claim which are purely based on the Refugee Convention of the religion . The applicant produced the bundle of the evidence , which was not considered by the learned Federal Magistrate. The learned Federal Court committed the legal errors coupled with the jurisdictional errors by not taking the evidence in to account . 2. That the Appellants submitted the evidence to the effect the amount of the persecution which has been committed to the applicant, the RRT did not gave any consideration, the RRT even did admitted the facts and verified the circumstances of the applicant from different sources . The appellant made out a case which really requires the judicial inference of this honorable Court to meet the ends of justice . 3. That the Respondents have failed to assess the claims and the evidence so forwarded by the appellant as per the refugee laws as laid down by the hand book of the UNHCR . The real meanings were not taken in to the consideration by the RRT &amp; by the learned Court below.
Case: SZINJ v Minister for Immigration &amp; Citizenship [2007] FCA 1742
Outcome: cited
That submission was that the second and third grounds were but " pro forma " grounds of appeal. Counsel for the Minister referred the Court to the fact that these two grounds had a disturbing correspondence with those grounds advanced in SZLAH v Minister for Immigration &amp; Citizenship [2007] FCA 1807 and SZINJ v Minister for Immigration &amp; Citizenship [2007] FCA 1742. In the former decision North J, in his Honour's reasons refusing an application for leave to appeal, recorded: [6] On 3 September 2007, the applicant filed an application for leave to appeal and attached a draft notice of appeal to the application. The grounds of appeal there stated were as follows: ... 2. That the Appellants submitted the evidence to the effect the amount of the persecution which has been committed to the applicant, the RRT did not give any consideration, instead the appearance of the applicant was made the issue before the RRT, which in accordance with the law is not required. The appellant made out a case which really requires the judicial inference of this honourable Court to meet the ends of justice. 3. That the Respondents have failed to assess the claims made by the appellant as per the refugee laws as laid down by the handbook of the UNHCR. The real meanings were not taken into the consideration by the RRT &amp; by the learned Court below. In the latter decision, Collier J dismissed an appeal and similarly recorded the grounds before her Honour as follows: [12] The appellant raised the following grounds of appeal: ... 2. That the Appellants submitted the bundle of evidence before the RRT, the RRT did not gave (sic) any consideration, instead the appearance of the (sic) was said to not (sic) plausible, as such the evidence was not taken in to consideration, the appellant made out a case which really requires the judicial inference of this honourable Court to meet the ends of justice. 3. That the Respondents have failed to assess the claims made by the appellant as per the refugee laws as laid down by the hand book of the UNHCR. The real threat to the life of the Appellant was not considered in the instant case.
Case: SZJJC v Minister for Immigration &amp; Citizenship [2008] FCA 614
Outcome: considered
If there were to be a more focussed source of advice being proffered to unrepresented litigants, being advice which is merely " pro forma " in nature and divorced from the merits of an individual case, it may be appropriate for costs to be ordered against those providing such advice rather than the unrepresented appellant: SZJJC v Minister for Immigration &amp; Citizenship [2008] FCA 614. Even more fundamental issues may emerge if advice were being provided contrary to legal practitioners' legislation. 40 Reference was also helpfully made by Counsel for the Respondent to ss 486E 486K of the Migration Act 1958 (Cth). Section 486E provides in part that " a person must not encourage another person ... to commence or continue migration litigation in a court if the migration litigation has no reasonable prospects of success ". And s 486F provides an additional and more specific power to order costs against a person who contravenes s 486E. At some stage, and in an appropriate case, consideration may have to be given to invoking that power.
Case: McDonald v Dennys Lascelles Limited [1933] HCA 25 ; (1933) 48 CLR 457
Outcome: referred to
The Capital companies contend that the payments in this case did not give rise to a preference because there was never any debtor-creditor relationship between LSE and Capital Finance. It is submitted that that when the dealings between the Capital companies, LSE and the NAB are considered as a whole, there was no debtor-creditor relationship between LSE and Capital Finance at the time of the payments. The Capital companies say that the payments represented a "sale" transaction between NAB and Capital Finance, where NAB agreed to buy out and pay for the equipment and rights which were the property of the Capital companies. It is then submitted that because the true characterisation of the transaction was a "sale," a failure to comply with an obligation to acquire goods or property at a specified price can only give rise to an action for damages: see McDonald v Dennys Lascelles Limited [1933] HCA 25 ; (1933) 48 CLR 457 at 475; Box Valley Pty Limited v Kidd [2006] NSWCA 26. An action for damages is not a "debt": Jelin Pty Ltd v Johnson (1987) 5 ACLC 463 at 464; Molit (No. 55) Pty Ltd v Lam Soon (Australia) Pty Limited (1996) 21 ACSR 157 at 159. The Capital companies say that the payments in question were part of the purchase price and were made by NAB on its own account as purchaser of the leased equipment from Capital Finance.
Case: Box Valley Pty Limited v Kidd [2006] NSWCA 26
Outcome: referred to
The Capital companies contend that the payments in this case did not give rise to a preference because there was never any debtor-creditor relationship between LSE and Capital Finance. It is submitted that that when the dealings between the Capital companies, LSE and the NAB are considered as a whole, there was no debtor-creditor relationship between LSE and Capital Finance at the time of the payments. The Capital companies say that the payments represented a "sale" transaction between NAB and Capital Finance, where NAB agreed to buy out and pay for the equipment and rights which were the property of the Capital companies. It is then submitted that because the true characterisation of the transaction was a "sale," a failure to comply with an obligation to acquire goods or property at a specified price can only give rise to an action for damages: see McDonald v Dennys Lascelles Limited [1933] HCA 25 ; (1933) 48 CLR 457 at 475; Box Valley Pty Limited v Kidd [2006] NSWCA 26. An action for damages is not a "debt": Jelin Pty Ltd v Johnson (1987) 5 ACLC 463 at 464; Molit (No. 55) Pty Ltd v Lam Soon (Australia) Pty Limited (1996) 21 ACSR 157 at 159. The Capital companies say that the payments in question were part of the purchase price and were made by NAB on its own account as purchaser of the leased equipment from Capital Finance.
Case: Jelin Pty Ltd v Johnson (1987) 5 ACLC 463
Outcome: referred to
The Capital companies contend that the payments in this case did not give rise to a preference because there was never any debtor-creditor relationship between LSE and Capital Finance. It is submitted that that when the dealings between the Capital companies, LSE and the NAB are considered as a whole, there was no debtor-creditor relationship between LSE and Capital Finance at the time of the payments. The Capital companies say that the payments represented a "sale" transaction between NAB and Capital Finance, where NAB agreed to buy out and pay for the equipment and rights which were the property of the Capital companies. It is then submitted that because the true characterisation of the transaction was a "sale," a failure to comply with an obligation to acquire goods or property at a specified price can only give rise to an action for damages: see McDonald v Dennys Lascelles Limited [1933] HCA 25 ; (1933) 48 CLR 457 at 475; Box Valley Pty Limited v Kidd [2006] NSWCA 26. An action for damages is not a "debt": Jelin Pty Ltd v Johnson (1987) 5 ACLC 463 at 464; Molit (No. 55) Pty Ltd v Lam Soon (Australia) Pty Limited (1996) 21 ACSR 157 at 159. The Capital companies say that the payments in question were part of the purchase price and were made by NAB on its own account as purchaser of the leased equipment from Capital Finance.
Case: Molit (No. 55) Pty Ltd v Lam Soon (Australia) Pty Limited (1996) 21 ACSR 157
Outcome: referred to
The Capital companies contend that the payments in this case did not give rise to a preference because there was never any debtor-creditor relationship between LSE and Capital Finance. It is submitted that that when the dealings between the Capital companies, LSE and the NAB are considered as a whole, there was no debtor-creditor relationship between LSE and Capital Finance at the time of the payments. The Capital companies say that the payments represented a "sale" transaction between NAB and Capital Finance, where NAB agreed to buy out and pay for the equipment and rights which were the property of the Capital companies. It is then submitted that because the true characterisation of the transaction was a "sale," a failure to comply with an obligation to acquire goods or property at a specified price can only give rise to an action for damages: see McDonald v Dennys Lascelles Limited [1933] HCA 25 ; (1933) 48 CLR 457 at 475; Box Valley Pty Limited v Kidd [2006] NSWCA 26. An action for damages is not a "debt": Jelin Pty Ltd v Johnson (1987) 5 ACLC 463 at 464; Molit (No. 55) Pty Ltd v Lam Soon (Australia) Pty Limited (1996) 21 ACSR 157 at 159. The Capital companies say that the payments in question were part of the purchase price and were made by NAB on its own account as purchaser of the leased equipment from Capital Finance.
Case: Re Emanuel (No. 14) Pty Ltd (in liq) ; Macks &amp; Anor v Blacklaw &amp; Shadforth Pty Ltd (1997) 147 ALR 281
Outcome: followed
The expression "transaction" is defined in s 9 of the Corporations Act 2001 (Cth) to include the disposition of property, payments made and obligations incurred. The case law indicates that the term "transaction" is a word of wide connotations. A transaction in its totality may include a series of events in a course of dealings initiated by a debtor intended to extinguish the debt: Re Emanuel (No. 14) Pty Ltd (in liq) ; Macks &amp; Anor v Blacklaw &amp; Shadforth Pty Ltd (1997) 147 ALR 281 at 288. The events can occur at different points of time and need not occur simultaneously. The Court must consider the transaction in its entirety so that it can determine the ultimate effect of the transaction.
Case: V.R. Dye &amp; Co v Peninsula Hotels Pty Ltd (in liq) [1999] VSCA 60 ; [1999] 3 VR 201
Outcome: followed
In V.R. Dye &amp; Co v Peninsula Hotels Pty Ltd (in liq) [1999] VSCA 60 ; [1999] 3 VR 201, Ormiston J at [39] pointed out that to properly characterise a transaction, it is necessary to look at the totality of the business relationship between the parties in order to see whether there is a true preference in favour of a creditor by the insolvent company. The Court will look at what the parties are intending to effectuate and how that was effectuated in part or in whole by the transactions in question: see also Mann v Sangria Pty Ltd (2001) 38 ACSR 307.
Case: Mann v Sangria Pty Ltd (2001) 38 ACSR 307
Outcome: followed
In V.R. Dye &amp; Co v Peninsula Hotels Pty Ltd (in liq) [1999] VSCA 60 ; [1999] 3 VR 201, Ormiston J at [39] pointed out that to properly characterise a transaction, it is necessary to look at the totality of the business relationship between the parties in order to see whether there is a true preference in favour of a creditor by the insolvent company. The Court will look at what the parties are intending to effectuate and how that was effectuated in part or in whole by the transactions in question: see also Mann v Sangria Pty Ltd (2001) 38 ACSR 307.
Case: Walsh v Natra Pty Limited [2000] VSCA 60 ; (2000) 1 VR 523
Outcome: followed
In order for there to be an unfair preference, the statutory language requires that a creditor must receive more from the company in respect of an unsecured debt than that creditor would receive from the company in relation to that debt if the transaction were set aside and the creditor made to prove for the debt in a winding up of the company. The "winding up" as referred to in the statute is the actual winding up, and not a hypothetical winding up or series of windings up as at the date of each payment: see Walsh v Natra Pty Limited [2000] VSCA 60 ; (2000) 1 VR 523. 41 In this case, the unsecured debt owed by LSE to Corporate Finance under the Second Deed was discharged in full as a result of the challenged payments, whereas unsecured debts to other creditors were not reduced. 42 The affidavit of Mr Tolcher of 23 August 2006 shows that Capital would have received substantially less if it had proved in the winding up of LSE as unsecured creditor. He states that the Capital companies will have received as a result of the transactions a net value of $3,751,861.40, whereas if they had proved in the winding up they would have received either $1.345 million or a lesser amount. It is not necessary, having regard to the language of the section, to direct attention to the effect on other creditors: see Walsh at [47] and Sheldrake v Paltoglou [2006] QCA 52 at [9] .
Case: Sheldrake v Paltoglou [2006] QCA 52
Outcome: cited
The affidavit of Mr Tolcher of 23 August 2006 shows that Capital would have received substantially less if it had proved in the winding up of LSE as unsecured creditor. He states that the Capital companies will have received as a result of the transactions a net value of $3,751,861.40, whereas if they had proved in the winding up they would have received either $1.345 million or a lesser amount. It is not necessary, having regard to the language of the section, to direct attention to the effect on other creditors: see Walsh at [47] and Sheldrake v Paltoglou [2006] QCA 52 at [9] .
Case: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298
Outcome: followed
Mr Tolcher also relies on the fact that Ms Foreman, who was the addressee of Memoranda from Mr Vendrell, was not called to give evidence. Ms Foreman was a Capital Finance employee who was involved with LSE in relation to the transactions. In my view, the principles in Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 and Cook's Construction Pty Limited v Brown [2004] 49 ACSR 62 at [31]-[36] and [41]-[42] are applicable in the present circumstances to reinforce the available inference that officers of Capital Finance had reasonable grounds to suspect insolvency. Cook's Construction is of specific relevance because it considers the operation of s 588FG. Mr Tolcher also points out Mr Joseph, who was the solicitor for the Capital companies as at December 2000, was not called to give evidence in relation to this matter.
Case: Cook's Construction Pty Limited v Brown [2004] 49 ACSR 62
Outcome: followed
Mr Tolcher also relies on the fact that Ms Foreman, who was the addressee of Memoranda from Mr Vendrell, was not called to give evidence. Ms Foreman was a Capital Finance employee who was involved with LSE in relation to the transactions. In my view, the principles in Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 and Cook's Construction Pty Limited v Brown [2004] 49 ACSR 62 at [31]-[36] and [41]-[42] are applicable in the present circumstances to reinforce the available inference that officers of Capital Finance had reasonable grounds to suspect insolvency. Cook's Construction is of specific relevance because it considers the operation of s 588FG. Mr Tolcher also points out Mr Joseph, who was the solicitor for the Capital companies as at December 2000, was not called to give evidence in relation to this matter.
Case: Williams v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 548
Outcome: cited
have been referred to the penalties imposed in numerous cases. However many were pursuant to the WR Act which provided for significantly lower maximum penalties. The penalties which I have imposed are generally consistent with those imposed by Jessup J in Williams v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 548. The conduct in that case was somewhat more serious than in this. However the penalties for individual breaches were reduced to reflect the overall extent of the misconduct. I will make declarations in terms of paras 48 and 49 of the applicant's submissions as follows: Upon the admissions which the respondents made in the amended defence filed on 7 July 2009 and agreed statement of facts filed on 29 July 2009, it is declared that: (a) On 23 June 2008, [the first respondent] contravened section 44(1) of the Building and Construction Industry Improvement Act 2005 (Cth) by asking an employer to: (i) terminate its current workplace agreement; and (ii) enter into a new workplace agreement with the CFMEU; (iii) on the basis that if the employer did not do so, the employer would be: (A) banned from building sites across Australia; and (B) subjected to a workplace health and safety audit which would result in the employer spending a significant amount of money, at least $30,000, in that [the first respondent] intended to coerce the employer to terminate its existing workplace agreement and enter into a new workplace agreement with the CFMEU. (b) On 23 June 2008, the CFMEU contravened section 44(1) of the Building and Construction Industry Improvement Act 2005 (Cth) by virtue of the conduct of its officer, Tim Nesbit, in asking an employer to: (i) terminate its current workplace agreement; and (ii) enter into a new workplace agreement with the CFMEU; (iii) on the basis that if the employer did not do so, the employer would be: (A) banned from building sites across Australia; and (B) subjected to a workplace health and safety audit which would result in the employer spending a significant amount of money, at least $30,000, in that [the first respondent] intended to coerce the employer to terminate its existing workplace agreement and enter into a new workplace agreement with the CFMEU. I order that the first respondent pay to the Commonwealth of Australia a pecuniary penalty fixed at $9,000. I further order that the third respondent pay to the Commonwealth of Australia a pecuniary penalty fixed at $40,000. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 23 December 2009 Counsel for the Applicant: Mr CJ Murdoch Solicitor for the Applicant: Deacons Counsel for the First and Third Respondents: Mr DR Kent Solicitor for the First and Third Respondents: Hall Payne Lawyers Date of Hearing: 18 September 2009 Date of Judgment: 23 December 2009 Annexure "A" AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1574.html
Case: Abebe v Commonwealth Re Minister for Immigraiton [1999] HCA 14 ; (1999) 197 CLR 510
Outcome: followed
This appeal essentially turns on the issue of whether the appellant has been able to establish a jurisdictional error on the part of the Tribunal. Unless a jurisdictional error is established, section 474(1) of the Migration Act 1958 (Cth) ('the Act') provides that, in effect, the decision of the Tribunal is final and conclusive and must not be challenged, appealed against, reviewed, quashed or called in to question in any court. It is clear from the decisions of the High Court of Australia that the window for correction of errors in what the Tribunal did is narrow: see Abebe v Commonwealth Re Minister for Immigraiton [1999] HCA 14 ; (1999) 197 CLR 510 at p 534 [50] per Gleeson CJ and McHugh J; Re Minister for Immigraiton and Immigration and Multicultural Affairs: Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at p 409 [7] per McHugh J.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004)140 FCR 572
Outcome: followed
The decisions of Full Courts of this Court referred to in his Honour's reasons, namely, Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572 and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 , show that no jurisdictional error was committed by the Tribunal in failing to give particulars to the appellant of the information contained in the country information to which I have referred.