mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Estate of Roberts (1983) 20 NTR 13
Outcome: cited
The important consideration for the Trustee and, subject to s 37(6) of the Act, for the Tribunal is the best interests of the beneficiary or the beneficiaries and the security of the trust property: Miller v Cameron [1936] HCA 13 ; (1936) 54 CLR 572 at 580 581. In circumstances such as the present, it would be appropriate for the Trustee to be guided by the sorts of considerations to which the Court might have regard when exercising its powers under s 36 of the Trustee Act 1936 (SA). The Trustee must therefore have regard to all the particular facts; cf Re Estate of Roberts (1983) 20 NTR 13 at 17 18; Re Henderson [1940] Ch 764. In Re Grace [1955] QWN 81 the trustee was appointed showed that the putative trustee could secure a better income than the existing trustee.
Case: Re Henderson [1940] Ch 764
Outcome: cited
The important consideration for the Trustee and, subject to s 37(6) of the Act, for the Tribunal is the best interests of the beneficiary or the beneficiaries and the security of the trust property: Miller v Cameron [1936] HCA 13 ; (1936) 54 CLR 572 at 580 581. In circumstances such as the present, it would be appropriate for the Trustee to be guided by the sorts of considerations to which the Court might have regard when exercising its powers under s 36 of the Trustee Act 1936 (SA). The Trustee must therefore have regard to all the particular facts; cf Re Estate of Roberts (1983) 20 NTR 13 at 17 18; Re Henderson [1940] Ch 764. In Re Grace [1955] QWN 81 the trustee was appointed showed that the putative trustee could secure a better income than the existing trustee.
Case: Re Grace [1955] QWN 81
Outcome: cited
The important consideration for the Trustee and, subject to s 37(6) of the Act, for the Tribunal is the best interests of the beneficiary or the beneficiaries and the security of the trust property: Miller v Cameron [1936] HCA 13 ; (1936) 54 CLR 572 at 580 581. In circumstances such as the present, it would be appropriate for the Trustee to be guided by the sorts of considerations to which the Court might have regard when exercising its powers under s 36 of the Trustee Act 1936 (SA). The Trustee must therefore have regard to all the particular facts; cf Re Estate of Roberts (1983) 20 NTR 13 at 17 18; Re Henderson [1940] Ch 764. In Re Grace [1955] QWN 81 the trustee was appointed showed that the putative trustee could secure a better income than the existing trustee.
Case: Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1292
Outcome: cited
The applicant submits that the fact that he still received the Minister's correspondence is irrelevant. In support he cited Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1292 and Vean of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 311. The applicant submitted that he was not notified in accordance with the Migration Act and consequently a precondition of the exercise of the Minister's power to cancel his visa had not been satisfied.
Case: Ex parte Walsh and Johnson; Re Yates [1925] HCA 53 ; (1925) 37 CLR 36
Outcome: cited
In his affidavit the applicant appears to argue that in taking into account the nature and severity of the offences for which he was imprisoned and in considering the need to protect the Australian community, the Minister is usurping the role of the court which has the obligation to impose an appropriate sentence. The reference to a Chapter III court is misplaced. The applicant was tried, convicted and sentenced in the District Court of New South Wales which is not a federal court and there is no suggestion that any federal offence was involved. There is ample authority that in cancelling the applicant's visa, the Minister is not imposing any further punishment for the applicant's crimes or exercising judicial power; see Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292 at 306; Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 172 at [44] ; Ex parte Walsh and Johnson; Re Yates [1925] HCA 53 ; (1925) 37 CLR 36 at 95-96.
Case: Osborne v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1113 ; (2002) 124 FCR 416
Outcome: discussed
The Migration Act does not impose any express obligation on the Minister to give written notice of an intention to cancel a visa although in this case the Minister did so. In Osborne v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1113 ; (2002) 124 FCR 416 at 423, French J held that there is an implied obligation to give prior notice of the Minister's intention to cancel a visa under s 501. As his Honour observed, the power to cancel a visa cannot be exercised unless the visa holder "fails to satisfy the Minister that the person passes the character test". His Honour continued: It is not to be supposed that the Parliament intended that condition to be met by the silence of the visa holder in the absence of any notice of the Minister's intention to cancel. Some process of notification is therefore contemplated even thought [sic] the Act does not set it out. Indeed the regulations seem to assume as much. The implied condition of notification is not absolute. It could not be. For otherwise a person could defeat the cancellation provisions simply by moving to an address not known to the Minister or his officers. The implied condition requires only that reasonable steps be taken to notify the visa holder. 11 The notice of intention dated 30 April 2007 was sent to the applicant at the Long Bay Correctional Complex, PO Box 13 Anzac Parade, Matraville, NSW 2036 . The applicant submits that "at all times relevant to the cancellation ... his correct address for service was Locked (Mail) Bag 20, MATRAVILLE NSW 2036 ". He submits that the Minister "was informed of this address as early as July 27 th 2006". The applicant does not dispute that he actually received the notice and that he responded to it. He signed an acknowledgment of its receipt on 7 May 2007 and he sent a two page submission to the Department on 28 June 2007. At the hearing he was not able to point to any prejudice that resulted from the document being sent to the above address. In my view the applicant was given reasonable notice of the intention to consider cancellation of his visa. 12 The position with regard to the notice of cancellation of the applicant's visa is different. Section s 501G(1) requires the Minister to give a person written notice of the decision to cancel a visa and sets out the information that must be included in such a notice. Section 501G(3) provides that the notice is to be given in "the prescribed manner". Regulation 2.55 of the Migration Regulations 1994 (Cth) prescribes several methods for giving the notice to the person whose visa has been cancelled. One method is delivery by prepaid post to the person's last known residential address, business address or post box address known to the Minister. The address to which the notice of cancellation dated 11 November 2007 was sent was Long Bay Complex, Locked Bag 21, Matraville NSW 2036 . The applicant signed an acknowledgement of receipt of the notice on 21 November 2007.
Case: Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 172
Outcome: cited
In his affidavit the applicant appears to argue that in taking into account the nature and severity of the offences for which he was imprisoned and in considering the need to protect the Australian community, the Minister is usurping the role of the court which has the obligation to impose an appropriate sentence. The reference to a Chapter III court is misplaced. The applicant was tried, convicted and sentenced in the District Court of New South Wales which is not a federal court and there is no suggestion that any federal offence was involved. There is ample authority that in cancelling the applicant's visa, the Minister is not imposing any further punishment for the applicant's crimes or exercising judicial power; see Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292 at 306; Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 172 at [44] ; Ex parte Walsh and Johnson; Re Yates [1925] HCA 53 ; (1925) 37 CLR 36 at 95-96.
Case: Vean of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 311
Outcome: cited
The applicant submits that the fact that he still received the Minister's correspondence is irrelevant. In support he cited Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1292 and Vean of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 311. The applicant submitted that he was not notified in accordance with the Migration Act and consequently a precondition of the exercise of the Minister's power to cancel his visa had not been satisfied.
Case: Australian Broadcasting Corporation v O'Neil [2006] HCA 46 ; (2006) 229 ALR 457
Outcome: cited
To succeed in its interlocutory claim for relief, Telstra must make out a prima facie case in the sense that if the evidence remains as it is, there is a probability that at the trial in the action Telstra will be held entitled to relief. The balance of convenience must also favour the grant of interlocutory relief sought. These propositions have recently been emphasised by the High Court in Australian Broadcasting Corporation v O'Neil [2006] HCA 46 ; (2006) 229 ALR 457. At this point, the facts need a little more explanation. 20 Premier Media Group is the exclusive licensee of what can be conveniently referred to, as it was by the applicant in its written submissions, as the exclusive licensee of the pay TV slice of the rights in NRL audio-visual footage. Publishing and Broadcasting Limited, a half-owner of Premier Media Group, has the so-called free-to-air slice. The other half-owner of Premier Media Group, News Limited, through its subsidiary, National Rugby League Investments Limited, half owns the NRL, which has been responsible for licensing out these rights. It was submitted by Telstra that in a so-called fully negotiated, high-priced deal, the NRL partnership licensed the new media slice, so-called - that is, internet and telephony - to Telstra in an agreement under which Telstra also became the six-year sponsor of the NRL Partnership's rugby league competition. 21 These facts, in particular, expressed in this way - that is, in a manner taken from the applicant's submissions - were relied upon by the applicant to show that it had paid for a significant grant of a body of rights. That proposition was, in effect, the premise for the applicant's complaint that the grant to it was being derogated from by the respondents and, through them, indirectly, those that controlled the respondents, who also partly controlled those who supplied the grant. In evaluating this submission of derogation from grant, the terms of clause 8.5 of the agreement between the applicant and the two members of the NRL partnership should be borne in mind at all times.
Case: British Broadcasting Corporation v British Satellite Broadcasting Ltd [1992] Ch 141
Outcome: cited
It is unnecessary to compare minutely the length of time taken in these examples of other media, given the respondents' evidence as to the impugned broadcasts. It may be, and I do not make a finding about this now, that even by these standards, that is the standards of pay television and free to air television, it will be found, that the respondents have, to put it bluntly, been a little greedy in what they have taken for the dealing to be fair as well as newsworthy. Ultimately, that will be a matter of judgment and impression, see British Broadcasting Corporation v British Satellite Broadcasting Ltd [1992] Ch 141 and Hubbard v Vosper [1972] 2 QB 84 and other cases. It is not clear to me that that judgment ought be made, that is, that there has been a taking of too much by reference to the benchmark of free to air and pay television. As I said, it is unnecessary to pursue this judgmental analysis given the way the matter has been argued. My doubts and uncertainties about whether what has been done, goes beyond fair dealing, is strengthened by some evidence concerning the approach of Telstra itself in negotiating with the Australian Football League (the "AFL") in December 2005. Telstra in those negotiations was seeking to reach agreement with that other sporting code about the same kind of rights that it has been able to extract by agreement from the NRL.
Case: De Garis v Neville Jeffress Pidler Pty Ltd (1990) 37 FCR 99
Outcome: cited
There was a separate and distinct argument that the provision by Fox Sports News to third parties, Hutchison and Vodafone, precludes a fair dealing defence. This was based on the news clippings case, De Garis v Neville Jeffress Pidler Pty Ltd (1990) 37 FCR 99. The applicant, in this connection said that the respondents were simply broking or selling content, not delivering news. That point may be made good on a final hearing; at this point, I am not persuaded that that conduct - that is, the on-passing of the Fox Sports News to the third parties - is not a fair dealing associated with the reporting of news by Vodafone and Hutchison for the purposes of s 103B(1)(b). 52 I turn to the balance of convenience. I am prepared to accept that if I am not to grant interlocutory relief, and if the respondents have overstepped the mark on fair dealing, real and substantial impairment will occur to the applicant's rights. Some evidence was given in a form which I did not find satisfactory and which I rejected. However, I am prepared to approach the application on the basis that the respondents exceeding their entitlement under s 103B would cause a real impairment of valuable commercial rights to the applicant. Whether this is in any way permanent or otherwise irreparable may perhaps be doubted. If there has been infringement, the profit derived by the respondents from Hutchison and Vodafone would be readily able to be ascertained. Any difficulty in that ascertainment would almost certainly work against the respondents rather than in their favour in accordance with well-understood principle. And as to the use by the respondents themselves on the Foxsports website, a putative licence fee could, no doubt, be calculated. 53 On the other hand, if I grant an injunction and if it turns out that the applicant fails, whilst there would be an undertaking as to damages the interference with the businesses, not only of the respondents but also Hutchison and Vodafone, would be extremely difficult to quantify. The respondents, Hutchison and Vodafone, would not have the ability to call upon the kind of account of profits that the applicant would if the reverse were the case. Further, the nature of the status quo ante favours, in my view, withholding any relief. The evidence reflects that the footage of NRL matches on internet and mobile phones in 2007 is at least comparable to that which occurred in 2006.
Case: Hubbard v Vosper [1972] 2 QB 84
Outcome: cited
It is unnecessary to compare minutely the length of time taken in these examples of other media, given the respondents' evidence as to the impugned broadcasts. It may be, and I do not make a finding about this now, that even by these standards, that is the standards of pay television and free to air television, it will be found, that the respondents have, to put it bluntly, been a little greedy in what they have taken for the dealing to be fair as well as newsworthy. Ultimately, that will be a matter of judgment and impression, see British Broadcasting Corporation v British Satellite Broadcasting Ltd [1992] Ch 141 and Hubbard v Vosper [1972] 2 QB 84 and other cases. It is not clear to me that that judgment ought be made, that is, that there has been a taking of too much by reference to the benchmark of free to air and pay television. As I said, it is unnecessary to pursue this judgmental analysis given the way the matter has been argued. My doubts and uncertainties about whether what has been done, goes beyond fair dealing, is strengthened by some evidence concerning the approach of Telstra itself in negotiating with the Australian Football League (the "AFL") in December 2005. Telstra in those negotiations was seeking to reach agreement with that other sporting code about the same kind of rights that it has been able to extract by agreement from the NRL.
Case: MZXMD v Minister for Immigration and Citizenship [2007] FCA 769
Outcome: cited
The judgment that the appellant seeks to appeal was apparently made under O 13.03A of the Federal Magistrates Court Rules. Order 13.03A(c) permits the Court to dismiss an application if a party fails to appear at a hearing. The judgment is in the nature of an interlocutory judgment: see recently, for example, MZXMD v Minister for Immigration and Citizenship [2007] FCA 769 at [7] per Weinberg J and the cases there cited. Accordingly, pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth), the appellant requires leave to appeal. The appellant has not sought leave, notwithstanding that the defect is apparent from the first respondent's notice of objection to competency. I note too that leave must be sought within 21 days of the pronouncement of the interlocutory decision or an extension of time sought in which to seek such leave. The appeal is incompetent in the absence of a grant of leave.
Case: MZWHW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 460
Outcome: cited
Even if leave were sought, I would not be disposed to grant it. The present is a hopeless case. This is the second occasion in which the appellant has instituted proceedings for judicial review of the Tribunal's decision in March 2004. There is no suggestion that the appellant seeks to challenge the decision on any new ground. Res judicata can operate as a bar to a judicial review application in these circumstances: see, for example, MZWHW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 466 at [11] referring to Wong v Minster for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722 at [71]; and MZXEF v Minister for Immigration and Multicultural Affairs [2006] FCA 507 at [15] . Even if the circumstances did not give rise to res judicata, these second judicial review proceedings would attract an Anshun estoppel: see Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589. Such an estoppel bars a party from raising any point which properly belonged to the subject of earlier litigation that the party, exercising reasonable diligence, might have brought forward at the time of the earlier proceeding. Furthermore, there is nothing to support the appellant's contention that the course taken by the Federal Magistrate on this occasion was so unfair or otherwise affected by error that it ought be set aside on appeal.
Case: Wong v Minster for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722
Outcome: referred to
Even if leave were sought, I would not be disposed to grant it. The present is a hopeless case. This is the second occasion in which the appellant has instituted proceedings for judicial review of the Tribunal's decision in March 2004. There is no suggestion that the appellant seeks to challenge the decision on any new ground. Res judicata can operate as a bar to a judicial review application in these circumstances: see, for example, MZWHW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 466 at [11] referring to Wong v Minster for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722 at [71]; and MZXEF v Minister for Immigration and Multicultural Affairs [2006] FCA 507 at [15] . Even if the circumstances did not give rise to res judicata, these second judicial review proceedings would attract an Anshun estoppel: see Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589. Such an estoppel bars a party from raising any point which properly belonged to the subject of earlier litigation that the party, exercising reasonable diligence, might have brought forward at the time of the earlier proceeding. Furthermore, there is nothing to support the appellant's contention that the course taken by the Federal Magistrate on this occasion was so unfair or otherwise affected by error that it ought be set aside on appeal.
Case: MZXEF v Minister for Immigration and Multicultural Affairs [2006] FCA 50
Outcome: referred to
Even if leave were sought, I would not be disposed to grant it. The present is a hopeless case. This is the second occasion in which the appellant has instituted proceedings for judicial review of the Tribunal's decision in March 2004. There is no suggestion that the appellant seeks to challenge the decision on any new ground. Res judicata can operate as a bar to a judicial review application in these circumstances: see, for example, MZWHW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 466 at [11] referring to Wong v Minster for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722 at [71]; and MZXEF v Minister for Immigration and Multicultural Affairs [2006] FCA 507 at [15] . Even if the circumstances did not give rise to res judicata, these second judicial review proceedings would attract an Anshun estoppel: see Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589. Such an estoppel bars a party from raising any point which properly belonged to the subject of earlier litigation that the party, exercising reasonable diligence, might have brought forward at the time of the earlier proceeding. Furthermore, there is nothing to support the appellant's contention that the course taken by the Federal Magistrate on this occasion was so unfair or otherwise affected by error that it ought be set aside on appeal.
Case: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589
Outcome: referred to
Even if leave were sought, I would not be disposed to grant it. The present is a hopeless case. This is the second occasion in which the appellant has instituted proceedings for judicial review of the Tribunal's decision in March 2004. There is no suggestion that the appellant seeks to challenge the decision on any new ground. Res judicata can operate as a bar to a judicial review application in these circumstances: see, for example, MZWHW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 466 at [11] referring to Wong v Minster for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722 at [71]; and MZXEF v Minister for Immigration and Multicultural Affairs [2006] FCA 507 at [15] . Even if the circumstances did not give rise to res judicata, these second judicial review proceedings would attract an Anshun estoppel: see Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589. Such an estoppel bars a party from raising any point which properly belonged to the subject of earlier litigation that the party, exercising reasonable diligence, might have brought forward at the time of the earlier proceeding. Furthermore, there is nothing to support the appellant's contention that the course taken by the Federal Magistrate on this occasion was so unfair or otherwise affected by error that it ought be set aside on appeal.