mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337
Outcome: applied
I am satisfied that in the circumstances disclosed in this matter a fair minded lay observer might reasonably apprehend that the Tribunal member might not have brought an impartial mind to the resolution of the question the Tribunal was required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at [6] . Background 4 The facts are not in issue, the following being drawn largely from the applicant's submissions. 5 The applicant is a citizen of Bangladesh who was born on 2 June 1986. He first entered Australia on 23 April 1991 when he was 5 years old as a dependent of his father, who was employed with the Bangladesh Embassy in Canberra. On 27 April 2006 he lodged an application for a subclass 457 Business (Long stay) visa, as a dependent of his mother. 32 While judges of the High Court have questioned the actual suitability to private and non-curial proceedings, of the test for reasonably apprehended bias that has evolved in curial settings: see Re Refugee Review Tribunal; ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at [27] - [28] ; it is that "double might" test that is to be applied, albeit with the understanding that the hypothetical fair-minded lay observer in question requires some informed appreciation of the nature of the processes and proceeding of the body whose judgment is being called into question. The test to be applied is whether a fair-minded lay observer might reasonably apprehend that the Tribunal member might not have brought an impartial mind to the resolution of the question to be decided: Ebner , at [6].
Case: Re Refugee Review Tribunal; ex parte H [2001] HCA 28 ; (2001) 179 ALR 425
Outcome: cited
While judges of the High Court have questioned the actual suitability to private and non-curial proceedings, of the test for reasonably apprehended bias that has evolved in curial settings: see Re Refugee Review Tribunal; ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at [27] - [28] ; it is that "double might" test that is to be applied, albeit with the understanding that the hypothetical fair-minded lay observer in question requires some informed appreciation of the nature of the processes and proceeding of the body whose judgment is being called into question. The test to be applied is whether a fair-minded lay observer might reasonably apprehend that the Tribunal member might not have brought an impartial mind to the resolution of the question to be decided: Ebner , at [6].
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
Because, as will be seen, the application of this test in this matter does require an examination, amongst other things of the Tribunal's reasons, it is important to emphasise that the lay observer would be scrutinising those reasons through a quite different prism and by reference to a quite different contingency, than a judge would be when scrutinising a decision-maker's reasons for decision for the purpose of discerning an error justifying judicial review: cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272. To say this is not to accord the hypothetical observer licence to indulge in implausible or improbable interpretations of reasons for decision. The lay observer is expected first and foremost to be "fair minded".
Case: Vakauta v Kelly [1989] HCA 44 ; (1989) 167 CLR 568
Outcome: cited
While the evidence in the matter is that the Tribunal member who issued the listening device warrant was named in an AFP statement of facts given to the applicant in August 2008, it has not been suggested that he was aware at the time of the Tribunal hearing that the member hearing the review application was the person who issued the warrant. Neither did the Tribunal member disclose that fact if he was then actually aware of it. In consequence, and counsel for the Minister accepted, there was no issue of waiver of bias in this matter: see Vakauta v Kelly [1989] HCA 44 ; (1989) 167 CLR 568 at 572-573; see also Shingles v Defence Force Retirement and Death Benefits Authority [2009] FCA 1211.
Case: Shingles v Defence Force Retirement and Death Benefits Authority [2009] FCA 1211
Outcome: cited
While the evidence in the matter is that the Tribunal member who issued the listening device warrant was named in an AFP statement of facts given to the applicant in August 2008, it has not been suggested that he was aware at the time of the Tribunal hearing that the member hearing the review application was the person who issued the warrant. Neither did the Tribunal member disclose that fact if he was then actually aware of it. In consequence, and counsel for the Minister accepted, there was no issue of waiver of bias in this matter: see Vakauta v Kelly [1989] HCA 44 ; (1989) 167 CLR 568 at 572-573; see also Shingles v Defence Force Retirement and Death Benefits Authority [2009] FCA 1211.
Case: R v George (1987) 9 NSWLR 527
Outcome: cited
The authorities most immediately relevant in a factual setting such as the present on the applicant's contentions are R v Eastman (1994) 121 FLR 150 and R v George (1987) 9 NSWLR 527. In each case, at some time prior to the criminal proceedings in question, the judge who respectively became the trial judge authorised the use of a listening device in relation to the person who was ( Eastman ), or subsequently became ( George ), the accused in the proceedings. In George the particular matter before the judge under the Listening Devices Act did not involve anything to do with the subject of the later charges. In Eastman the contrary was the case and, when the matter was drawn to his attention, the trial judge disqualified himself on the ground of reasonable apprehension of bias. As he said (at 153): What distinguishes this application from the application made in R v George is that the warrants were issued by me on the application of one or more police officers so as to facilitate the acquisition of evidence against the accused. In two instances the exercises were successful, because the Crown proposes to lead evidence of having installed listening devices under the authority of two warrants and the evidence thereby obtained. The ground for disqualifying myself is much stronger than that confronted by the trial judge in R v George . In George in contrast, an appeal challenging a conviction of the ground of apprehended bias was dismissed, the Court having regard to the nature of a criminal trial, the various activities in which judges may be involved in the administration of criminal justice and particularly "to the absence of any association [of the listening device matter] with this particular case. (ii) Procedural Fairness
Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152
Outcome: cited
In light of the delegate's decision adverse to Mr Islam which, seemingly, relied upon the 1 May 2008 charge in relation to the likelihood of re-offending. Mr Islam ought have expected that that charge would be an issue arising in the Tribunal that was potentially prejudicial to him: cf SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 at [35] (a Refugee Review Tribunal review under Part 7 of the Migration Act ). Accordingly he would have been entitled, if such was an issue against him, "to be given an opportunity of replying to it": Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 582. The existence of the charge was raised by the applicant and he asserted his innocence. The Tribunal member, first told him "we don't want to go into too much detail about that", but then later told Mr Islam that as he had not been convicted of it "I will not be taking that into account". Whether or not the Tribunal erred by so excluding this information (given the requirements of Direction No 21) is not in issue before me and I express no view on it.
Case: Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550
Outcome: cited
In light of the delegate's decision adverse to Mr Islam which, seemingly, relied upon the 1 May 2008 charge in relation to the likelihood of re-offending. Mr Islam ought have expected that that charge would be an issue arising in the Tribunal that was potentially prejudicial to him: cf SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 at [35] (a Refugee Review Tribunal review under Part 7 of the Migration Act ). Accordingly he would have been entitled, if such was an issue against him, "to be given an opportunity of replying to it": Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 582. The existence of the charge was raised by the applicant and he asserted his innocence. The Tribunal member, first told him "we don't want to go into too much detail about that", but then later told Mr Islam that as he had not been convicted of it "I will not be taking that into account". Whether or not the Tribunal erred by so excluding this information (given the requirements of Direction No 21) is not in issue before me and I express no view on it.
Case: Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1
Outcome: applied
Whatever may have been the Tribunal's obligation to Mr Islam in relation to the charge prior to the second of the above comments, the charge thereafter was not itself an issue potentially prejudicial to Mr Islam on the review. He could suffer no "practical injustice": Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 at [38] ; "[he] lost no opportunity to advance his case": ibid. The marginalisation of the charge did not in any way impede Mr Islam from advancing positive reasons for why the Tribunal's discretion should be exercised in his favour. He was not denied procedural fairness.
Case: Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401
Outcome: followed
Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401 the Full Court examined the origins, meaning and effect of s 31A of the FCA Act. The Full Court stated (at 408, [25]): The effect of s 31A was to soften the test for a successful application for summary judgment as stated by the High Court in Theseus Exploration NL v Foyster [1972] HCA 41 ; (1972) 126 CLR 507 ... and also the test for a successful application for summary dismissal as stated by Dixon J, as his Honour then was, in Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 and by Barwick CJ in General Steel Industries Inc v Cmr for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125.... See also Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372 at [45] , [57], [63], [124].
Case: White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298
Outcome: followed
effect noted and by reference to secondary materials, the Full Court counselled that "a generally cautious approach should still be adopted to the exercise of the court's powers under s 31A" (at 408, [28]). The Full Court particularly endorsed an observation concerning s 31A made by Lindgren J in White Australia Industries Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 at 310, [50] that the section is concerned with "the bringing and defending of proceedings, not just with pleadings, with substance, not just with form". Section 31A consigns to the Court a discretion as to whether the questions of law raised in a case are of such difficulty as to make it preferable not to resolve them summarily. It was not submitted that this was such a case in relation to issues related to the NTA. Rather, each of the parties invited the determination of them insofar as pertinent to the respondents' summary judgment application. In the event that I concluded that there was jurisdiction and standing, I was not asked to determine either summarily or as a separate question of law the merits of the State law issue as to the ability now of officers of the State under the Petroleum Act to grant petroleum leases on the strength of ATP 259P. For the purpose of the summary judgment application, the parties assumed that the factual foundation of the Applicants' case was as alleged in the amended statement of claim. I have done likewise.
Case: Re Judiciary and Navigation Acts [1921] HCA 20 ; (1921) 29 CLR 257
Outcome: applied
root authority in respect of what constitutes a "matter" for the purposes of a law conferring Federal jurisdiction is Re Judiciary and Navigation Acts [1921] HCA 20 ; (1921) 29 CLR 257. In that case (at 265) the following pronouncement was made in relation to s 76 of the Constitution : It was suggested in argument that "matter" meant no more than legal proceeding, and that Parliament might at its discretion create or invent a legal proceeding in which this Court might be called on to interpret the Constitution by a declaration at large. We do not accept this contention; we do not think that the word "matter" in sec. 76 means a legal proceeding, but rather the subject matter for determination in a legal proceeding. In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court. If the matter exists, the Legislature may no doubt prescribe the means by which the determination of the Court is to be obtained, and for that purpose may, we think, adopt any existing method of legal procedure or invent a new one. But it cannot authorize this Court to make a declaration of the law divorced from any attempt to administer that law. Put shortly, the giving of an advisory opinion is antithetical to an exercise of Federal jurisdiction. The Applicants do not (and could not) contest that the relevant test reposes in this pronouncement. Rather, they submit that, in terms of the course of authority with respect to that pronouncement, a "matter" does exist. They point to the existence of present negotiations and submit that there is an issue between them and the Respondents, evident from the relief sought, which is and will remain real and not hypothetical unless and until: (a) Santos and Delhi Petroleum disclaim any right to have the State grant to them as a pre-existing rights based act a petroleum lease in respect of the claimed land under the Petroleum Act or indicate that they will not be seeking the grant of such a lease; or (b) The State indicates that it agreed with the Applicants that the grant of such a lease was not a pre-existing rights based act and that it would not grant such a lease to Santos and Delhi Petroleum.
Case: Australian Institute of Private Detectives Ltd v Privacy Commissioner [2004] FCA 1440 ; (2004) 139 FCR 394
Outcome: considered
and Delhi Petroleum contend that there is an absence of any pleading in this case of material facts giving rise to a specific dispute. In that absence, they submit, is to be found a crucial difference between a "matter", albeit one arising in respect of conduct yet to take place, in which declaratory relief may permissibly be sought in the exercise of Federal jurisdiction and the seeking of such relief on a purely hypothetical basis. An example of the presence of such a difference telling against the existence of jurisdiction is, they submit, to be found in Australian Institute of Private Detectives Ltd v Privacy Commissioner [2004] FCA 1440 ; (2004) 139 FCR 394 ( Private Detectives Case ).
Case: Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591
Outcome: distinguished
unlike in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 , the Applicants do not have the benefit of any provision affording them any particular standing to seek any of the relief claimed in the application. While the position would be different if they had the benefit of a native title determination in their favour or even if the relief were sought in the context of an application for a determination of native title, the Applicants are strangers to any dealings between the State and Santos and Delhi Petroleum with respect to the granting of a particular petroleum lease. Their mere status as a registered native title claimant does not, in my opinion, give them standing to claim any of the relief sought, including any part which relies only on State law.
Case: Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7 ; (1981) 148 CLR 457
Outcome: cited
the mere assertion of a cause of action under the NTA would not sufficient to bring the State law causes of action sought to be raised in the amended statement of claim within the "accrued jurisdiction" of the Court if the NTA claim were "colourable" and "not genuine": Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7 ; (1981) 148 CLR 457 at 498-499; Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219; Fitzroy Motors Pty Ltd v Hyundai Automotive Distributors Australia Pty Ltd (1995) 133 ALR 445 at 450; WG &amp; B Manufacturing Pty Ltd v Tesla Farad Pty Ltd [1999] FCA 1776 ; (1999) 48 IPR 111 at [11] ; Cook v Pasminco Ltd [2000] FCA 677 ; (2000) 99 FCR 548 at 550; and see Lane's Commentary on the Australian Constitution (1997), pp 516-517.
Case: Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212
Outcome: cited
the mere assertion of a cause of action under the NTA would not sufficient to bring the State law causes of action sought to be raised in the amended statement of claim within the "accrued jurisdiction" of the Court if the NTA claim were "colourable" and "not genuine": Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7 ; (1981) 148 CLR 457 at 498-499; Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219; Fitzroy Motors Pty Ltd v Hyundai Automotive Distributors Australia Pty Ltd (1995) 133 ALR 445 at 450; WG &amp; B Manufacturing Pty Ltd v Tesla Farad Pty Ltd [1999] FCA 1776 ; (1999) 48 IPR 111 at [11] ; Cook v Pasminco Ltd [2000] FCA 677 ; (2000) 99 FCR 548 at 550; and see Lane's Commentary on the Australian Constitution (1997), pp 516-517.
Case: Fitzroy Motors Pty Ltd v Hyundai Automotive Distributors Australia Pty Ltd (1995) 133 ALR 445
Outcome: cited
the mere assertion of a cause of action under the NTA would not sufficient to bring the State law causes of action sought to be raised in the amended statement of claim within the "accrued jurisdiction" of the Court if the NTA claim were "colourable" and "not genuine": Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7 ; (1981) 148 CLR 457 at 498-499; Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219; Fitzroy Motors Pty Ltd v Hyundai Automotive Distributors Australia Pty Ltd (1995) 133 ALR 445 at 450; WG &amp; B Manufacturing Pty Ltd v Tesla Farad Pty Ltd [1999] FCA 1776 ; (1999) 48 IPR 111 at [11] ; Cook v Pasminco Ltd [2000] FCA 677 ; (2000) 99 FCR 548 at 550; and see Lane's Commentary on the Australian Constitution (1997), pp 516-517.
Case: WG &amp; B Manufacturing Pty Ltd v Tesla Farad Pty Ltd [1999] FCA 1776 ; (1999) 48 IPR 111
Outcome: cited
the mere assertion of a cause of action under the NTA would not sufficient to bring the State law causes of action sought to be raised in the amended statement of claim within the "accrued jurisdiction" of the Court if the NTA claim were "colourable" and "not genuine": Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7 ; (1981) 148 CLR 457 at 498-499; Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219; Fitzroy Motors Pty Ltd v Hyundai Automotive Distributors Australia Pty Ltd (1995) 133 ALR 445 at 450; WG &amp; B Manufacturing Pty Ltd v Tesla Farad Pty Ltd [1999] FCA 1776 ; (1999) 48 IPR 111 at [11] ; Cook v Pasminco Ltd [2000] FCA 677 ; (2000) 99 FCR 548 at 550; and see Lane's Commentary on the Australian Constitution (1997), pp 516-517.
Case: Cook v Pasminco Ltd [2000] FCA 677 ; (2000) 99 FCR 548
Outcome: applied
the mere assertion of a cause of action under the NTA would not sufficient to bring the State law causes of action sought to be raised in the amended statement of claim within the "accrued jurisdiction" of the Court if the NTA claim were "colourable" and "not genuine": Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7 ; (1981) 148 CLR 457 at 498-499; Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219; Fitzroy Motors Pty Ltd v Hyundai Automotive Distributors Australia Pty Ltd (1995) 133 ALR 445 at 450; WG &amp; B Manufacturing Pty Ltd v Tesla Farad Pty Ltd [1999] FCA 1776 ; (1999) 48 IPR 111 at [11] ; Cook v Pasminco Ltd [2000] FCA 677 ; (2000) 99 FCR 548 at 550; and see Lane's Commentary on the Australian Constitution (1997), pp 516-517. Claims purporting to give the Court jurisdiction are "colourable" and "not genuine" if they are obviously doomed to fail: Cook v Pasminco Ltd [2000] FCA 677 ; (2000) 99 FCR 548 at 550. To invoke the Court's jurisdiction, claims must be "real and not mere pleading allegations" Hopper v Egg and Egg Pulp Marketing Board of Victoria [1939] HCA 24 ; (1939) 61 CLR 665 at 677 (Starke J).
Case: Hopper v Egg and Egg Pulp Marketing Board of Victoria [1939] HCA 24 ; (1939) 61 CLR 665
Outcome: applied
purporting to give the Court jurisdiction are "colourable" and "not genuine" if they are obviously doomed to fail: Cook v Pasminco Ltd [2000] FCA 677 ; (2000) 99 FCR 548 at 550. To invoke the Court's jurisdiction, claims must be "real and not mere pleading allegations" Hopper v Egg and Egg Pulp Marketing Board of Victoria [1939] HCA 24 ; (1939) 61 CLR 665 at 677 (Starke J).
Case: McKeown v Cavalier Yachts Pty Ltd (1988) 13 NSWLR 303
Outcome: followed
is one thing; whether or not it is appropriate to exercise it is another. There is no right to declaratory relief. In Platypus Leasing Inc v Commissioner of Taxation (No 2) (2005) 189 FLR 411 Gzell J of the New South Wales Supreme Court referred (at [81]) to the undesirability of the use of declaratory relief as a "staging post" in litigation. In refusing, as a matter of discretion, to grant declaratory relief in respect of a goods and services tax controversy not yet the subject of an assessment his Honour referred with approval to the following observation made by Young J in McKeown v Cavalier Yachts Pty Ltd (1988) 13 NSWLR 303 at 312: The plaintiff's summons asks for a declaration that the yacht is the property of the plaintiff. I do not believe that such a declaration should be made. Declarations should not be made as a staging post in litigation, and in a case where some executive orders have to be made, it is usually best to proceed to consider those executive orders rather than making declarations.
Case: Castlemaine Tooheys v The State of South Australia [1986] HCA 58 ; (1986) 161 CLR 148
Outcome: applied
Federal Court has power to grant interlocutory relief pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) and s 122(1) Patents Act 1990 (Cth). The principles relevant to the exercise of that power are: 1. There must be a serious question to be tried or a prima facie such that if the evidence remains the same there is a probability that at a final hearing it will be entitled to relief. 2. The applicant will suffer irreparable harm for which damages will not be an adequate compensation, unless an injunction is granted. 3. The balance of convenience favours the granting of an injunction. ( Hexall Australia Pty Ltd v Roche Therapeutics Inc [2005] FCA 1218 ; Pharmacia Italia SPA v Interpharma Pty Ltd [2005] FCA 1675 , and Castlemaine Tooheys v The State of South Australia [1986] HCA 58 ; (1986) 161 CLR 148 per Mason ACJ at 153.)