mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Secretary, Department of Employment and Workplace Relations v Homewood (2006) 91 ALD 103
Outcome: applied
French J in Secretary, Department of Employment and Workplace Relations v Homewood (2006) 91 ALD 103 made the following relevant observations, at 111: [40] The obligations set out in s 43 are not necessarily discharged by merely setting out findings on material questions of fact, referring to the evidence on which those findings are based and then stating a conclusion. There will always be some legal rule or principle or discretion to apply. It may be that a rule or principle, like the major premise of a syllogism, will embody the factual circumstance necessary to give rise to a right or liability. Then it may be sufficient to state that rule or principle in the reasons, the facts found as the minor premise, the evidence on which they are based and the result which follows. Not all, and perhaps not many results are so easily explained. Whether the reasoning is syllogistic or otherwise, the tribunal will have discharged its duty under s 43 if its reasons disclose its findings of fact, the evidence on which they were based and the logical process by which it moved from those findings to the result in the case. [41] Where a case involves the exercise of a discretion, the tribunal's duty is not discharged by setting out the findings of fact necessary to enliven the relevant discretion. That is so even in a case in which the enlivening facts are of an evaluative character, such as the existence of special circumstances. What must appear from the reasons is why the discretion was exercised in the way it was.
Case: Trimboli v Secretary, Department of Social Security (1989) 86 ALR 64
Outcome: cited
As Beadle, Hales and Riddell indicate, the wording of the section is broad and does not, financial hardship alone aside, impose a fetter on the matters which may be considered by the decision maker. See also Trimboli v Secretary, Department of Social Security (1989) 86 ALR 64 at 73, and Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9 at [33]).
Case: Vock v Repatriation Commission [2005] FCA 967
Outcome: considered
In Vock v Repatriation Commission [2005] FCA 967 , Tamberlin J said, at [17]: The rationale for the requirement that a decision-maker spell out the reasons for its conclusions on substantial issues is the need to inform the public and the parties with an immediate interest in the outcome of the proceedings of the manner in which the decision was arrived at. This, in turn, enables a determination to be made as to whether an error of law has been committed by the decision-maker. ...
Case: Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1
Outcome: followed
The third ground of appeal, raising as it does a contention that there has been an " improper exercise of the power conferred " was not further developed. It should be rejected. It was not a ground advanced for resolution before the Federal Magistrate and, for that reason alone, it should not now be entertained -- especially in the absence of any explanation as to why it was not previously relied upon ( Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1) and because of the uncertainty as to what is intended to be embraced within its terms. Moreover, whether the proposed ground is directed to the Tribunal or, as expressed, the Federal Magistrates Court, it is not made out. 19 Accordingly, the appeal must be dismissed and there is no reason why the usual approach should not be adopted in respect to costs. 20 The orders of the Court are: 1. Appeal dismissed. 2. The Appellant to pay the costs of the First Respondent of and incidental to the appeal. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 5 March 2008 The Appellant: In person Counsel for the First Respondent: J D Smith Solicitor for the First Respondent: Z McDonald (DLA Phillips Fox) Date of Hearing: 5 March 2008 Date of Judgment: 5 March 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/256.html
Case: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v Lay Lat [2006] FCAFC 61 , 151 FCR 214
Outcome: followed
Section 422B , contained within Division 4, is of present significance and provides as follows: Exhaustive statement of natural justice hearing rule (1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. (2) Sections 416 , 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. (3) In applying this Division, the Tribunal must act in a way that is fair and just. The legislative intent was to set forth a comprehensive procedural code containing detailed provisions for procedural fairness and an exclusion of the common law natural justice hearing rule, although not other aspects of the common law rules such as the bias rule: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v Lay Lat [2006] FCAFC 61 at [66] , [2006] FCA 61 ; 151 FCR 214 at 225. See also: SZINJ v Minister for Immigration &amp; Citizenship [2007] FCA 1742 at [19] .
Case: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v SGLB [2004] HCA 32 , 207 ALR 12
Outcome: followed
The Tribunal simply did not accept the materials advanced on behalf of the now Appellant as making out his claims. Thus, for example, the Tribunal in its reasons addressed the claims advanced by reason of the Appellant being a Muslim married to a Christian woman. The Tribunal continued: ...However, the Applicant has presented no information to indicate that members of such a particular social group experience harm in Bangladesh, let alone that any such harm is experienced for reason of their membership of that group. In the absence of any information on which to base a consideration of this claim I am not satisfied that there is a real chance that the Applicant would suffer serious harm amounting to persecution for this reason if he were to return to Bangladesh. There is no procedural unfairness or contravention of any provision within Part 7 Div 4 of the 1958 Act in the Tribunal so proceeding. The Tribunal conducts an inquisitorial review of the claim made and has a power " to get any information that it considers relevant ": s 424(1). But the Tribunal is under no general duty or obligation to obtain further information: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v SGLB [2004] HCA 32 at [43] , [2004] HCA 32 ; 207 ALR 12 at 21 per Gummow and Hayne JJ. 15 The Tribunal, moreover, simply did not accept in identified respects the account given. The Tribunal thus finds, for example: ... I do not accept that the Applicant did, in fact live in hiding in the nine months before he left Bangladesh. I am strengthened in this view by the inconsistency between the Applicant's claimed fear of arrest and the fact that he stayed on in Bangladesh for this nine month period ...
Case: SZBYR v Minister for Immigration &amp; Citizenship [2007] HCA 26 , 235 ALR 609
Outcome: followed
It may be accepted that compliance with s 424A is mandatory and that a breach of that provision constitutes jurisdictional error: SZBYR v Minister for Immigration &amp; Citizenship [2007] HCA 26 at [13] , [2007] FCA 26 ; 235 ALR 609. 13 But there has been no contravention of s 424A. 17 A tribunal's disbelief of evidence arising from inconsistencies cannot be characterised as " information " within the meaning of s 424A(1): SZBYR v Minister for Immigration &amp; Citizenship [2007] HCA 26 at [18] , [2007] FCA 26 ; 235 ALR 609 at 616 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
Case: SZFDE v Minister for Immigration &amp; Citizenship [2007] HCA 35 , 237 ALR 64
Outcome: followed
The grounds thus refer to " jurisdictional error ", " procedural fairness " and " natural justice ." To put this terminology into context, Part 7 of the Migration Act 1958 (Cth) provides for the review of protection visa decisions. Division 4 of that Part deals with the conduct of review undertaken by the Refugee Review Tribunal. This Division establishes a detailed regime for the review by the Tribunal and differs significantly from the procedures of inter partes civil litigation: SZFDE v Minister for Immigration &amp; Citizenship [2007] HCA 35 at [30] , [2007] HCA 35 ; 237 ALR 64 at 72.
Case: SZINJ v Minister for Immigration &amp; Citizenship [2007] FCA 1742
Outcome: followed
Section 422B , contained within Division 4, is of present significance and provides as follows: Exhaustive statement of natural justice hearing rule (1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. (2) Sections 416 , 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. (3) In applying this Division, the Tribunal must act in a way that is fair and just. The legislative intent was to set forth a comprehensive procedural code containing detailed provisions for procedural fairness and an exclusion of the common law natural justice hearing rule, although not other aspects of the common law rules such as the bias rule: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v Lay Lat [2006] FCAFC 61 at [66] , [2006] FCA 61 ; 151 FCR 214 at 225. See also: SZINJ v Minister for Immigration &amp; Citizenship [2007] FCA 1742 at [19] .
Case: Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 , 168 ALR 407
Outcome: followed
Reference may also be made to other like findings made by the Tribunal. Previously, for example, the Tribunal had expressed its lack of satisfaction " as to the truth of the Applicant's claim that he was falsely accused of murder, that an arrest warrant was issued for him and that he was convicted and sentenced in absentia after he left Bangladesh ." The Tribunal also set forth what it considered to be inconsistencies in the account being provided to it. These are findings " on credibility which is the function of the primary decision-maker par excellence ": Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67] , 168 ALR 407 at 423 per McHugh J. Such findings are not susceptible of review by either this Court or the Federal Magistrates Court.
Case: State of Western Australia v Vetter Trittler Pty Ltd (In liq) (Receiver and Manager Appointed) (1991) 30 FCR 102
Outcome: referred to
prima facie case is made out if, on the material before the court, inferences are open which, if translated into findings of fact, would support the relief claimed (per French J, as his Honour then was, in State of Western Australia v Vetter Trittler Pty Ltd (In liq) (Receiver and Manager Appointed) (1991) 30 FCR 102 at 110).
Case: Merpro Montassa Limited v Conoco Speciality Products Inc [1991] FCA 70 ; (1991) 28 FCR 387
Outcome: referred to
matter stipulated in respect of which the court is to be satisfied does not call for the kind of scrutiny that would occur in a submission of 'no case to answer' following the closure of an applicant's case at trial. A court may, when confronted with an application for leave, draw inferences more readily in favour of an applicant, bearing in mind, amongst other things, that the applicant will not have had the advantage of discovery, subpoenas and other procedural aids to the making out of a prima facie case at trial (per Heerey J in Merpro Montassa Limited v Conoco Speciality Products Inc [1991] FCA 70 ; (1991) 28 FCR 387 at 390).
Case: WSGAL Pty Limited v Trade Practices Commission [1992] FCA 510 ; (1992) 39 FCR 472
Outcome: referred to
relation to satisfying the court that an applicant has a prima facie case for the relief claimed by it, such a preliminary question should not call for a substantial inquiry. The kind of evidence adduced on a preliminary inquiry of this kind should be in proportion to the nature of such an interlocutory issue. The purpose of the inquiry is to determine by way of a mini rather than a mega trial whether the applicant has a prima facie case (per Beaumont J in WSGAL Pty Limited v Trade Practices Commission [1992] FCA 510 ; (1992) 39 FCR 472 at 476). Whatever is required to satisfy the court that there is a prima facie case, that satisfaction should leave open the possibility that the respondent could move to strike out the statement of claim or invoke s 31A of the Federal Court of Australia Act 1976 (Cth) ('Federal Court Act'), which makes provision for orders for, amongst other things, summary dismissal or provisions of the Rules which provide for the summary disposition of proceedings. To do otherwise may be setting too high a threshold for service out of the jurisdiction.
Case: Cell Tech Communications Pty Ltd v Nokia Mobile Phones (UK) Ltd (1995) 58 FCR 365
Outcome: cited
in extreme cases, Order 8 rule 3(2)(c) will not require a prima facie case in respect of each cause of action pleaded or contended for. If a prima facie case for a particular form of relief is made out on one cause of action, it is immaterial that a prima facie case for the same relief on another cause of action may not be made out (per Lindgren J in Cell Tech Communications Pty Ltd v Nokia Mobile Phones (UK) Ltd (1995) 58 FCR 365 ('Cell Tech') at 373; see also per Carr J in Bray v F Hoffman-La Roche Ltd (2003) 130 FCR 317 ('Bray') at [47]-[55] and per Branson J at [176]-[191]). In Cell Tech a joint venture business had failed. Cell Tech's application was accompanied by a statement of claim seeking damages. Three causes of action were relevantly pleaded, two of which were against Nokia. As against Nokia, Cell Tech pleaded that it breached implied terms and conditions as to fitness for purpose and merchantable quality in respect of goods which it sold to Cell Tech. The other cause of action pleaded against Nokia was that it breached the terms and conditions of a Licence Agreement between Cell Tech and Nokia. Lindgren J observed that there was a significant overlap between the facts on which the two causes of action were based. His Honour proceeded on the basis that: '...if a prima facie case against Nokia for damages based on either cause of action is established it becomes unnecessary ... to decide whether a prima facie case for the same relief based upon the other cause of action [was] also made out.' (at page 373) Lindgren J held that Nokia's claim for relief under Order 9 rule 7(1)(a), (b), (c) and (d) should be dismissed. Conclusions Contrary to Fujitsu Limited's submission, Lindgren J did not hold that a court could not be satisfied in respect of the matter covered by Order 8 rule 3(2)(c) of the Federal Court Rules unless the applicant satisfied the court that it had a prima facie case for 'the relief claimed by it' in the sense of each and every element of the relief claimed. Apart from other considerations such a construction would be absurd. How, one might task, could a prima facie case for relief which is at the discretion of the court under s 87 of the Trade Practices Act or under s 51A of the Federal Court Act or for costs, be the subject of the requisite satisfaction.
Case: Ho v Akai Pty Limited (in liquidation) [2006] FCAFC 159 ; (2006) 24 ACLC 1526
Outcome: considered
v Akai Pty Limited (in liquidation) [2006] FCAFC 159 ; (2006) 24 ACLC 1526 ('Ho') was an appeal from a judgment of Gyles J given under Order 9 rule 7 of the Federal Court Rules . The only issue before Gyles J was whether Akai Holdings and its liquidator had established a prima facie case for the relief sought in the proceeding against Mr Ho which satisfied Order 8 rule 3(2)(c) or its predecessor. Questions arose as to whether Mr Ho had a liability as a 'shadow director' and also whether he had a liability as an 'officer' of Akai Australia. Gyles J concluded that there was no sufficient basis for raising an arguable case that Mr Ho was a shadow director, but that there was an arguable case that he was an 'officer' of Akai Australia. Because of the construction given to Order 8 rule 3(2)(c), or its predecessor in Bray , the finding that there was a prima facie case that Ho was an officer of Akai had the consequence that he could be proceeded against on both the 'officer' and 'shadow director' bases, Gyles J having held that a prima facie case had been made out 'for the relief sought'. In Ho Finn, Weinberg and Rares JJ granted leave to appeal from the judgment of Gyles J but proceeded to dismiss each appeal. At [56] their Honours observed, by way of obiter dicta, that: '...[A]ccording to Bray , it is not the similarity in elements of the cause of action that is brought into question for O 8 r 2(2)(c) purposes. Rather it is similarity in the relief sought.'
Case: Voth v Manildra Flour Mills Proprietary Ltd [1990] HCA 55 ; (1990) 171 CLR 538
Outcome: cited
Mason CJ, Deane, Dawson and Gaudron JJ said in Voth v Manildra Flour Mills Proprietary Ltd [1990] HCA 55 ; (1990) 171 CLR 538 at 568: 'If a statement is directed from one place to another place where it is known or even anticipated that it will be received by the [applicant] , there is no difficulty in saying that the statement was, in substance, made at the place to which it was directed, whether or not it is there acted upon. ...'
Case: NMFM Property Pty Ltd v Citibank Ltd [2000] FCA 1558 ; (2000) 107 FCR 270
Outcome: referred to
any event, I would respectfully adopt the view expressed by Lindgren J in NMFM Property Pty Ltd v Citibank Ltd [2000] FCA 1558 ; (2000) 107 FCR 270 at [1244] which accorded with the view taken by Kiefel J in Lisciandro v Official Trustee in Bankruptcy [1995] FCA 1527 ; [1995] ATPR 41-436 at 40,903-40,904. Lindgren J's view was that an act is done 'on behalf of' a corporation for the purpose of s 84(2) of the Trade Practices Act if, relevantly, the actor engaged in the conduct intending to do so 'for' the corporation. In this case it could be said that Mr Rixon handed over brochures provided by Fujitsu Limited to the applicant 'for' Fujitsu Limited, whose brochures they were, even though he was himself an employee of Fujitsu Australia Limited. Why else, one might ask, would Fujitsu Limited have made the brochures available in Australia if not to assist in promotion of the sale of its MPG3 hard disk drives? It would seem to me that, on an interlocutory basis, it could be said that Mr Rixon's conduct was conduct engaged in with, at least, the implied consent of the director, servant or agent of Fujitsu Limited responsible for the promotion of the sale of Fujitsu MPG3 hard disk drives in Australia, sufficient to constitute Mr Rixon's conduct, conduct of Fujitsu Limited in accordance with s 84(2)(b) of the Trade Practices Act .
Case: Lisciandro v Official Trustee in Bankruptcy [1995] FCA 1527 ; [1995] ATPR 41-436
Outcome: referred to
any event, I would respectfully adopt the view expressed by Lindgren J in NMFM Property Pty Ltd v Citibank Ltd [2000] FCA 1558 ; (2000) 107 FCR 270 at [1244] which accorded with the view taken by Kiefel J in Lisciandro v Official Trustee in Bankruptcy [1995] FCA 1527 ; [1995] ATPR 41-436 at 40,903-40,904. Lindgren J's view was that an act is done 'on behalf of' a corporation for the purpose of s 84(2) of the Trade Practices Act if, relevantly, the actor engaged in the conduct intending to do so 'for' the corporation. In this case it could be said that Mr Rixon handed over brochures provided by Fujitsu Limited to the applicant 'for' Fujitsu Limited, whose brochures they were, even though he was himself an employee of Fujitsu Australia Limited. Why else, one might ask, would Fujitsu Limited have made the brochures available in Australia if not to assist in promotion of the sale of its MPG3 hard disk drives? It would seem to me that, on an interlocutory basis, it could be said that Mr Rixon's conduct was conduct engaged in with, at least, the implied consent of the director, servant or agent of Fujitsu Limited responsible for the promotion of the sale of Fujitsu MPG3 hard disk drives in Australia, sufficient to constitute Mr Rixon's conduct, conduct of Fujitsu Limited in accordance with s 84(2)(b) of the Trade Practices Act .
Case: Duralla Pty Ltd v Plant [1984] FCA 146 ; (1984) 2 FCR 342
Outcome: cited
There was once a time when an appeal to a Full Court of this Court was conceived to be an appeal in a strict sense than rather than an appeal by way of rehearing, the root authority for the former proposition being Duralla Pty Ltd v Plant [1984] FCA 146 ; (1984) 2 FCR 342. That early conception is now regarded as erroneous: Minister for Immigration v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 , at 533, [75], 544, [120] fn (98); Branir Pty Ltd v Owston Nominees (No 2 ) Pty Ltd [2001] FCA 1833 ; (2001) 117 FCR 424 at 434-435, [20] . Even so, that is not a licence to conduct a case in the appellate jurisdiction of this Court as if there had been no exercise of an original jurisdiction or as if an appellant had not chosen to conduct his case in a particular way and on particular grounds in that jurisdiction. The conduct of the Appellant's case on appeal exhibited a tendency, by no means unique in appeals in matters arising under the Migration Act , to treat an appeal to this Court as if it were an exercise in the direct supervision by judicial review of an Administrative Tribunal, rather than an appeal from a judicial decision. Subject to s 75(v) of the Constitution and to exceptions in the Act which are not presently material, the judicial review role in respect of a decision of the Tribunal is consigned by s 476 of the Migration Act to the Federal Magistrates Court. It is that court which is invested with the relevant original jurisdiction.
Case: Minister for Immigration v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507
Outcome: cited
There was once a time when an appeal to a Full Court of this Court was conceived to be an appeal in a strict sense than rather than an appeal by way of rehearing, the root authority for the former proposition being Duralla Pty Ltd v Plant [1984] FCA 146 ; (1984) 2 FCR 342. That early conception is now regarded as erroneous: Minister for Immigration v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 , at 533, [75], 544, [120] fn (98); Branir Pty Ltd v Owston Nominees (No 2 ) Pty Ltd [2001] FCA 1833 ; (2001) 117 FCR 424 at 434-435, [20] . Even so, that is not a licence to conduct a case in the appellate jurisdiction of this Court as if there had been no exercise of an original jurisdiction or as if an appellant had not chosen to conduct his case in a particular way and on particular grounds in that jurisdiction. The conduct of the Appellant's case on appeal exhibited a tendency, by no means unique in appeals in matters arising under the Migration Act , to treat an appeal to this Court as if it were an exercise in the direct supervision by judicial review of an Administrative Tribunal, rather than an appeal from a judicial decision. Subject to s 75(v) of the Constitution and to exceptions in the Act which are not presently material, the judicial review role in respect of a decision of the Tribunal is consigned by s 476 of the Migration Act to the Federal Magistrates Court. It is that court which is invested with the relevant original jurisdiction.