mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Htun v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 1802 (2001) 194 ALR 244
Outcome: applied
of the appellants made two separate and distinct claims that were not considered by the Tribunal. They were claims based on imputed political opinion as a result of the appellants' sister's position, and claims based on the proposition that they would be members of a particular social group, being citizens returning to Sri Lanka after making unsuccessful claims to be refugees in other countries. It is well-established that the Tribunal is obliged to deal with each and every claim made by an applicant for review of a decision refusing to grant a protection visa. Failure to do so amounts to jurisdictional error. As Allsop J (with whom Spender J concurred) said in Htun v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 1802 (2001) 194 ALR 244 at [42] : The requirement to review the decision under s 414 of the [ Migration ] Act requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of the jurisdiction embarked on. See also Merkel J at [8] and SCAT v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 80 (2003) 76 ALD 625 at [26] and [30] per Madgwick and Conti JJ.
Case: Carey v Australian Securities and Investments Commission [2008] FCA 963
Outcome: cited
These proceedings were commenced following a decision by Finkelstein J in judicial review proceedings in Carey v Australian Securities and Investments Commission, VID57 of 2008, that ASIC was not authorised under s 50 of the ASIC Act to cause previous Federal Court proceedings, VID 351 of 2007, brought in the name of the company in liquidation, and existing Federal Court proceedings, VID 386 of 2007, to be carried on by it in the name of Ann Street: Carey v Australian Securities and Investments Commission [2008] FCA 963. 3 The decision by Finkelstein J was made at a time that applications for interlocutory freezing orders had been listed for hearing in the Perth Registry of the Court in VID 386 of 2007. On 27 June 2008, ASIC brought an urgent application in the earlier proceedings WAD 83 of 2006, which had been brought under s 1323 of the Corporations Act , seeking an extension of orders which had been made against Mr Carey and others in those proceedings and which were due to expire today. Those orders had been made in March of this year. That application was adjourned to today. In the meantime, the proceedings presently before the Court were commenced by ASIC in the name of Ann Street pursuant to what is, on Finkelstein J's judgment, the proper application of ASIC's powers under s 50. 4 In that proceeding, VID 485 of 2008, ASIC has brought an interlocutory process in which it seeks Mareva-style relief against various of the defendants and a variety of other entities which are set out in Schedule C, inter alia, to that application, and they are being referred to as "the Carey entities". Those are companies which, as I understand it for the most part, have not been served and so I do not propose to make any orders in relation to them. I have heard debate on the question whether I can make an order under s 1323 of the kind which ASIC seeks or directly under s 23 of the Federal Court of Australia Act 1976 (Cth) . 5 There is a question about whether or not an application for relief under s 1323 can be brought as an interlocutory process in a pending civil proceeding. Plainly, the power under s 1323 can be exercised where there is a civil proceeding pending but the structure of the section, which includes provision for interim orders and the absence of any requirement to offer an undertaking as to damages in interim orders in proceedings under that section, rather suggests that it is to be treated as self-contained and collateral to, rather than an element of, the civil proceeding upon which it may rely. I do not need to give a concluded opinion on that matter.
Case: Minister for Immigration and Citizenship v SZKTI [2009] HCA 30
Outcome: discussed
the invitation to the appellant under s 424A in relation to the information from DFAT and the appellant's response, the Tribunal placed no reliance upon any information received from DFAT that was not put to the appellant in that invitation. Accordingly, there was no breach of s 424A. The High Court's decision in Minister for Immigration and Citizenship v SZKTI These reasons were written prior to the decision of the High Court, handed down this morning, to allow the appeal in SZKTI ( Minister for Immigration and Citizenship v SZKTI [2009] HCA 30). The High Court there accepted (at [28]) the Minister's submissions (at [27] [28]) that s 424(2) does not operate to limit the general facultative power given by s 424(1) in aid of the inquisitorial functions of the Tribunal. The limitation on that general power is that the Tribunal ' must have regard ' to that information in making its decision (at [37]). Procedural fairness is assured by, inter alia , the requirements of s 424A. The High Court concluded (at [48]) that the procedural restrictions on the specific power to issue an invitation to give additional information do not qualify the Tribunal's general power in s 424(1) to ' get any information that it considers relevant '. It follows that the method adopted by the Tribunal to obtain the information did not give rise to jurisdictional error. I see no jurisdictional error in the decision of the Tribunal or error on the part of the Federal Magistrate.
Case: Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 ; (2003) 201 ALR 437
Outcome: cited
to the appellant's complaints about the Tribunal's use of independent country information, his Honour observed at [60] that, if there was particular information which the appellant considered relevant, it was up to him to bring that material to the Tribunal's attention. As his Honour observed, the Tribunal is not obliged to make the appellant's case for him ( Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 ; (2003) 201 ALR 437 at [57] ).
Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Outcome: cited
Magistrate Scarlett concluded that the Tribunal had also complied with s 425 of the Act and with the procedures otherwise required by the Act and the Regulations. His Honour noted that the credibility of the appellant's claims, which had been an issue before the delegate, was also a significant factor in the Tribunal hearing and that ' there was no issue that would have taken the [appellant] by surprise '. In that respect also, his Honour found compliance with s 425 of the Act ( SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152).
Case: SZJHP v Minister for Immigration and Citizenship [2008] FCA 119
Outcome: cited
the grounds of the application were, his Honour said, seeking merits review or complaints as to the use of independent country information, the use of which was a matter for the Tribunal ( SZJHP v Minister for Immigration and Citizenship [2008] FCA 119 per Tamberlin J). The ground of bias was not, his Honour said, made out.
Case: SZKCQ v Minister for Immigration and Citizenship (2008) 170 FCR 236
Outcome: cited
s 424A letter sent to the appellant following receipt of the response from DFAT did not fail adequately to set out clear particulars of the information obtained or fail to ensure, as far as reasonably practicable, that the appellant understood why it was relevant to the review (cf. SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119 ; (2008) 170 FCR 236).
Case: SZKTI v Minister for Immigration and Citizenship (2008) 168 FCR 256
Outcome: referred to
to s 424B, Scarlett FM considered that the request to DFAT about the authenticity of the document purportedly from the Supreme Court of Bangladesh should be distinguished from SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83 ; (2008) 168 FCR 256 and that there was no prejudice to the appellant, who had been given the opportunity to comment on the response from DFAT in accordance with s 424A of the Act. His Honour did not explicitly find that s 424(2) had not been engaged by the request to DFAT about the authenticity of the document but that finding is implicit in his Honour's finding that SZKTI should be distinguished. Accordingly, given that s 424(2) was not engaged, there was no need for the Tribunal to comply with s 424B in making that request. Federal Magistrate Scarlett found no jurisdictional error and dismissed the application. The appellant raises three grounds of appeal: The Federal Magistrates Court failed to follow the rules of natural justice and procedural fairness when making decision. The Federal Magistrates Court was in improper exercise of its power conferred by the enactment in pursuance of which it was purported; therefore the decision on 11 th September 2008 should be sat aside. The Federal Magistrates Court an error of law and jurisdictional error when it made its decision.
Case: SZLPO v Minister for Immigration and Citizenship (2009) 255 ALR 407
Outcome: followed
to his Honour's consideration of the Full Court decision in SZKTI , the decision of the Full Court in SZLPO v Minister for Immigration and Citizenship (2009) 255 ALR 407 at [88] [114] and at [123] [124] makes it clear that the request from the Tribunal to DFAT did not enliven s 424(2) of the Act. It was not an invitation to give "additional information" for the purposes of that subsection (as then in force). It was not an invitation for additional information from DFAT.
Case: Chief Commissioner of Stamp Duties v Paliflex Pty Ltd [1999] NSWSC 889 ; (1999) 47 NSWLR 382
Outcome: referred to
Chief Commissioner of Stamp Duties v Paliflex Pty Ltd [1999] NSWSC 889 ; (1999) 47 NSWLR 382 at [49] Austin J identified three matters relevant to whether leave should be granted under s 459S. They are as follows: '(i) a preliminary consideration of the defendant's basis for disputing the debt which was the subject of the demand; (ii) an examination of the reason why the issue of indebtedness was not raised in an application to set aside the demand, and the reasonableness of the party's conduct at that time; and (iii) an investigation of whether the dispute about the debt is material to proving that the company is solvent.'
Case: Expile Pty Ltd v Jabb's Excavations Pty Ltd (2003) 45 ACSR 711
Outcome: referred to
above principles were recognised as the relevant principles by the New South Wales Court of Appeal in Expile Pty Ltd v Jabb's Excavations Pty Ltd (2003) 45 ACSR 711 per Santow JA (with whom Meagher and Handley JJA agreed) at 718 [16]. It is to be presumed until the contrary is proved that Helimount is not able to pay all its debts as and when they become due and payable. Helimount submits that it has discharged the onus of proving that it is solvent. It submits that it has at most only a couple of creditors and a substantial excess of assets over liabilities. It points to three matters in particular. First, it submits that three of the valuations of the land it has produced are more reliable than the liquidator's estimates and should be preferred to the liquidator's estimates. It seems to me that the answer to this submission is that it is a matter of small consequence because even if it is correct it increases the upper limit of the liquidator's estimates by no more than $40,000. Secondly, Helimount submits the debt owed by it to Mr Callipari (which on Helimount's case is now in the order of $1,000,000) is not presently due and owing. The answer to this submission is that even if it is correct, on the liquidator's figures there is still an excess of liabilities over assets. In saying this I am assuming as liabilities the full debt to the ANZ and the principal amount of the debt claimed by Web Wealth. Thirdly, Helimount refers to the values placed on properties owned by Helimount in a letter from NFFA Finance Warehouse Pty Ltd to it dated 31 August 2006. It is said that the letter embodies an offer of finance to Helimount. I do not place any weight on the values referred to in the letter first, because I do not know who is putting forward the values and secondly, because the letter specifically states that 'the properties are being revalued and values may change'. Furthermore, I note that the figures put forward in the letter suggest that in some cases there have been very significant increases in what Helimount said were the value of various properties in early 2005.
Case: HVAC Construction (Qld) Pty Ltd v Energy Equipment Engineering Pty Ltd (2002) 44 ACSR 169
Outcome: referred to
this case Mr Callipari has caused the company to make an application for review under s 35A(5) of the Federal Court of Australia Act 1976 (Cth). For the purposes of the application of s 471A(1), I do not think that any distinction should be drawn between an application for review and an appeal although in the case of an application for review what French J called the 'constitutional imperative' in HVAC Construction (Qld) Pty Ltd v Energy Equipment Engineering Pty Ltd (2002) 44 ACSR 169 may be relevant to whether approval to cause a company to bring an application for review should be granted. That consideration would not be relevant in the case of an appeal. In HVAC Construction (Qld) Pty Ltd v Energy Equipment Engineering Pty Ltd (supra) at 184 [53] French J was inclined to agree with that approach saying that s 459S should be given a strict construction in order that the purpose of the legislative scheme could best be served.
Case: Lane Cove Council v Geebung Polo Club Pty Ltd (No 2) [2002] NSWSC 118 ; (2002) 167 FLR 175
Outcome: referred to
application for approval can be made before a proceeding is commenced or sought nunc pro tunc after the proceeding has been commenced but before the substantive proceeding (be it an application for review or an appeal) is heard. A key consideration when an application is made at either of these stages is the preservation of the company's assets and the importance of avoiding a situation whereby the company's assets are diminished by an unsuccessful appeal ( Lane Cove Council v Geebung Polo Club Pty Ltd (No 2) [2002] NSWSC 118 ; (2002) 167 FLR 175. Therefore, in deciding whether to grant approval a court will consider the solvency of the company and whether the director offers to undertake to pay the costs if the appeal is unsuccessful (see Lightburn Pty Ltd v Kama Power Products Pty Ltd (supra) at [24]-[33]).
Case: Lightburn Pty Ltd v Kama Power Products Pty Ltd (2003) 226 LSJS 61
Outcome: referred to
Callipari caused Helimount to bring the application for review. At the time the application was made Helimount was subject to a winding up order and, by reason of s 471A(1) of the Corporations Act , Mr Callipari did not have the power to cause the company to bring the application. For the reasons I gave in Lightburn Pty Ltd v Kama Power Products Pty Ltd (2003) 226 LSJS 61 at [24] there is no longer a residual power at common law in directors to cause a company to appeal against a winding up order. In my opinion, the same applies in the case of an application for review under s 35A(5) of the Federal Court of Australia Act 1976 (Cth). However, the Court is able to grant approval under s 471A(1A) of the Corporations Act nunc pro tunc for Mr Callipari to cause the company to bring the application. The first question before me is whether approval under s 471A(1A) should be granted. As I have said, Helimount did not make an application to set aside the statutory demand under s 459G of the Corporations Act . However, it disputes the debt, or at least the quantum of the debt, it is said to owe to Web Wealth. By reason of s 459S of the Corporations Act Helimount may not, without the leave of the Court, oppose the application for it to be wound up in insolvency on a ground that it could have relied on but did not so rely on for the purposes of an application by it for the statutory demand to be set aside. The second question before me is whether Helimount should be granted leave under s 459S. By reason of Helimount's failure to comply with the statutory demand it is presumed to be insolvent: s 459C(2) of the Corporations Act . It seeks to establish that it is not insolvent and whether it has discharged the onus of proving that it is not insolvent is the third question before me. An application for approval can be made before a proceeding is commenced or sought nunc pro tunc after the proceeding has been commenced but before the substantive proceeding (be it an application for review or an appeal) is heard. A key consideration when an application is made at either of these stages is the preservation of the company's assets and the importance of avoiding a situation whereby the company's assets are diminished by an unsuccessful appeal ( Lane Cove Council v Geebung Polo Club Pty Ltd (No 2) [2002] NSWSC 118 ; (2002) 167 FLR 175. Therefore, in deciding whether to grant approval a court will consider the solvency of the company and whether the director offers to undertake to pay the costs if the appeal is unsuccessful (see Lightburn Pty Ltd v Kama Power Products Pty Ltd (supra) at [24]-[33]).
Case: Shakespeares Pie Co Australia Pty Ltd v Multipye Pty Ltd [2005] NSWSC 1338
Outcome: referred to
these principles to the facts, I do not think that leave under s 459S should be granted. I have divided the grounds upon which the debt might be disputed into those which relate to the principal amount and those which relate to interest. Leave should not be granted in relation to the grounds which bear on the principal amount because even on a preliminary consideration there is no genuine dispute in relation to the principal amount and, furthermore, Helimount's explanation for not applying to set aside the statutory demand is unsatisfactory. Leave should not be granted in relation to the grounds which bear upon the interest because the explanation for not applying to set aside the statutory demand is unsatisfactory and, more importantly, it is not clear to me (and in terms of s 459S(2) I am not satisfied: see Shakespeares Pie Co Australia Pty Ltd v Multipye Pty Ltd [2005] NSWSC 1338 per Barrett J at [10]) that grounds bearing upon the interest are material in proving Helimount is solvent. In other words, it is not clear to me that Helimount is not saying that it is solvent irrespective of Web Wealth's claim for interest. I decline to grant leave under s 459S. Section 95A of the Corporations Act provides: '95A(1) A person is solvent if, and only if, the person is able to pay all the person's debts, as and when they become due and payable. 95A(2) A person who is not solvent is insolvent.'
Case: Switz Pty Ltd v Glowbind Pty Ltd [2000] NSWCA 37 ; (2000) 48 NSWLR 661
Outcome: referred to
matter referred to in (iii) is an express limit on the power to grant leave (s 459S(2)) and its scope and operation have been considered in later cases. The issue which has arisen is whether s 459S(2) means that the debt must on the company's case make the difference between a finding of solvency and a finding of insolvency, or is it sufficient that depending on what other findings are made it may be relevant to the question of solvency? The New South Wales Court of Appeal in Switz Pty Ltd v Glowbind Pty Ltd [2000] NSWCA 37 ; (2000) 48 NSWLR 661 favoured the former interpretation. Spigelman CJ (with whom Handley and Giles JJA agreed) said (at 674 [53]-[54]): 'By the time an application under s 459s is made, the company will be presumed to be insolvent and will have the burden of proving that it is not. In my opinion s 459s(2) directs attention, in part, to what it is that the company intends to prove and how it intends to prove it. If the company is not prepared to contemplate the possibility that its assertion of solvency is subject to qualification, then the Court cannot be "satisfied" of the mandatory precondition in s 459s(2). An objective element is introduced by the word "material" but that can only be determined after identifying the company's contentions. If, as here, the company intends to prove that it is solvent whether or not a debt is payable, then with respect to a ground based on dispute about the debt, the test of materiality to it "proving" its solvency, cannot be satisfied.'
Case: Distillers Co (Biochemicals) v Thompson [1971] AC 458
Outcome: cited
The causes of action pleaded are based on conduct engaged in in the United States. Even though the duties pleaded depend upon conduct in Australia that does not mean that their breach by acts outside Australia gives rise to a cause of action 'arising in the Commonwealth' under O 8 r 1(a). As von Doussa J observed in Delco Australia Pty Ltd v Equipment Enterprises Incorporated trading as Kukla Trenchers [2000] FCA 821 , the authorities establish that 'cause of action' within the meaning of O 8 r 1(a) does not refer to all the elements of the cause of action. It refers rather to the act on the part of the defendant which gave the plaintiff his cause for complaint. In Distillers Co (Biochemicals) v Thompson [1971] AC 458 at 467, Lord Pearson said (at 468): It is not the right approach to say that, because there was no complete tort until the damage occurred, therefore the cause of action arose wherever the damage happened to occur. The right approach is, when the tort is complete, to look back over the series of events constituting it and ask the question, where in substance did this cause of action arise? Theory no (iii) is that the cause of action arose within the jurisdiction if the act on the part of the defendant, which gives the plaintiff his cause of complaint has occurred within the jurisdiction. That is the rule laid down in Jackson v Spittal (1870) LR 5CP 542, which is an authoritative case, and the rule is inherently reasonable, as the defendant is called upon to answer for his wrong in the courts of the country where he did the wrong.' In my opinion the causes of action in breach of confidence and breach of fiduciary duty are not demonstrated, on the current state of the pleadings, to be proceedings to which O 8 r 1 applies.