mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Robb v Green [1895] 2 QB 316
Outcome: referred to
An employee owes a duty of fidelity and good faith to his employer. That duty arises as a matter of an implied term of the contract of employment: Robb v Green [1895] 2 QB 315 at 317 per Lord Esher MR. As part of the duty of fidelity and good faith, an employee owes certain duties of confidentiality: Blyth Chemicals v Bushnell [1933] HCA 8 ; (1933) 49 CLR 66. 155 Marks J then considered the allegation that the defendant had breached her duty of fidelity to the plaintiff. He accepted that this could be described as a duty to serve faithfully the plaintiff and to act in its interests and not against them. There was an allegation that the defendant's decision to tender while still employed by the plaintiff created a conflict between her own interest and that of the plaintiff. In dealing with that allegation he said (at 613-614): In Robb v Green [1895] 2 QB 1, at p 15 Hawkins J (who was the Judge at first instance) said: 'In what I have said I do not intend to convey that while the contract of service exists a person intending to enter into business for himself may not do anything by way of preparation, provided only that he does not, when serving his master, fraudulently undermine him by breaking the confidence reposed in him. For instance, he may legitimately canvass, issue his circulars, have his place of business in readiness, hire his servants, etc. Each case must depend on its own circumstances'. This passage was quoted with approval by Maugham LJ as a member of the Court of Appeal in Wessex Dairies v Smith [1935] 2 KB 80, at 87 although he qualified his acceptance of the reference to canvassing. I think the essence of the matter is that the plaintiff must satisfy me there was some conduct on the part of the defendant which, to use the phrase of Hawkins J, 'fraudulently undermined' the plaintiff whilst the defendant was in its employ. For the reasons I have stated, the plaintiff has failed to do so. 156 Like the contractual duty, the fiduciary duty ends on cessation of the employment. The qualification to this statement is that a transaction current when the employee leaves his or her employment cannot be exploited by the employee after the employment has ended. Absent a restrictive covenant an employee can compete with his employer after the employment has ended. 157 Another duty an employee may owe the employer is the equitable duty of confidence.
Case: Rosetex Company Pty Ltd v Licata (1994) 12 ACSR 779
Outcome: referred to
In Forkserve Pty Ltd v Pachiaratta (2000) 40 IPR 74, Young J considered the obligations of a former employee in terms of general knowledge and skills acquired while he was an employee and confidential information acquired while he was an employee. Two propositions emerge from the case which I accept as correctly stating the law. First, Young J said, after referring to the Restraint of Trade Doctrine , JD Heydon (2 nd ed, 1999) at 80, that an employee can approach a customer or client whose name he can recall without a list or deliberate memorisation. Secondly, by reference to one of his own previous decisions Rosetex Company Pty Ltd v Licata (1994) 12 ACSR 779 his Honour said that the general coverage of the predecessors of ss 182 and 183 "are not to any major extent wider than the duties under the general rules of equity".
Case: Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142
Outcome: cited
In the Federal Magistrates Court, the appellants gave evidence that they did not open the post box where the invitation was sent until after the hearing date. Emmett FM did not accept that the letter was late in arriving. However, the authorities are clear that the reason for non-attendance at a hearing does not matter. If the Tribunal has complied with ss 425 and 425A of the Migration Act in inviting an applicant to attend a hearing, it may proceed under s 426A of the Act to consider and decide the matter without conducting any further inquiries. See NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184 , NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 , VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407; [2004] FCAFC 134 , NASF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 162 , Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 and Others [2005] FCAFC 73 , Minister for Immigration and Multicultural Affairs and Indigenous Affairs and Another v SZFHC (2006) 150 FCR 439; [2006] FCAFC 73 , SZDPB v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2006] FCAFC 110 and Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142. In several of these cases the invitation was allegedly never received by the applicant. See VNAA v MIMIA , MIMIA v SZFHC and SZDPB v MIMIA .
Case: Minister for Immigration and Multicultural Affairs and Indigenous Affairs and Another v SZFHC (2006) 150 FCR 439; [2006] FCAFC 73
Outcome: cited
In the Federal Magistrates Court, the appellants gave evidence that they did not open the post box where the invitation was sent until after the hearing date. Emmett FM did not accept that the letter was late in arriving. However, the authorities are clear that the reason for non-attendance at a hearing does not matter. If the Tribunal has complied with ss 425 and 425A of the Migration Act in inviting an applicant to attend a hearing, it may proceed under s 426A of the Act to consider and decide the matter without conducting any further inquiries. See NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184 , NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 , VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407; [2004] FCAFC 134 , NASF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 162 , Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 and Others [2005] FCAFC 73 , Minister for Immigration and Multicultural Affairs and Indigenous Affairs and Another v SZFHC (2006) 150 FCR 439; [2006] FCAFC 73 , SZDPB v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2006] FCAFC 110 and Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142. In several of these cases the invitation was allegedly never received by the applicant. See VNAA v MIMIA , MIMIA v SZFHC and SZDPB v MIMIA .
Case: NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184
Outcome: cited
In the Federal Magistrates Court, the appellants gave evidence that they did not open the post box where the invitation was sent until after the hearing date. Emmett FM did not accept that the letter was late in arriving. However, the authorities are clear that the reason for non-attendance at a hearing does not matter. If the Tribunal has complied with ss 425 and 425A of the Migration Act in inviting an applicant to attend a hearing, it may proceed under s 426A of the Act to consider and decide the matter without conducting any further inquiries. See NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184 , NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 , VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407; [2004] FCAFC 134 , NASF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 162 , Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 and Others [2005] FCAFC 73 , Minister for Immigration and Multicultural Affairs and Indigenous Affairs and Another v SZFHC (2006) 150 FCR 439; [2006] FCAFC 73 , SZDPB v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2006] FCAFC 110 and Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142. In several of these cases the invitation was allegedly never received by the applicant. See VNAA v MIMIA , MIMIA v SZFHC and SZDPB v MIMIA .
Case: NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121
Outcome: cited
In the Federal Magistrates Court, the appellants gave evidence that they did not open the post box where the invitation was sent until after the hearing date. Emmett FM did not accept that the letter was late in arriving. However, the authorities are clear that the reason for non-attendance at a hearing does not matter. If the Tribunal has complied with ss 425 and 425A of the Migration Act in inviting an applicant to attend a hearing, it may proceed under s 426A of the Act to consider and decide the matter without conducting any further inquiries. See NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184 , NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 , VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407; [2004] FCAFC 134 , NASF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 162 , Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 and Others [2005] FCAFC 73 , Minister for Immigration and Multicultural Affairs and Indigenous Affairs and Another v SZFHC (2006) 150 FCR 439; [2006] FCAFC 73 , SZDPB v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2006] FCAFC 110 and Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142. In several of these cases the invitation was allegedly never received by the applicant. See VNAA v MIMIA , MIMIA v SZFHC and SZDPB v MIMIA .
Case: NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
Outcome: followed
These grounds cannot succeed. The facts of this case are quite close to the facts of three unanimous decisions of Full Courts of this Court. The members of each court were different. The decisions are NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 (Beaumont, Merkel and Hely JJ), NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (French, Emmett and Dowsett JJ) and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (Black CJ, Sundberg and Bennett JJ). In each case the court emphasised the proposition that the task of the Minister, through his delegate, and the Refugee Review Tribunal on appeal, pursuant to s 65 of the Migration Act 1958 (Cth), is to consider whether they are satisfied that the requirements for the grant of a visa have been satisfied. It will be difficult to achieve the requisite degree of satisfaction if the appellant does not provide sufficient information, such as by not attending a hearing. In the absence of a positive finding of satisfaction, a visa application must be rejected. In NAVX at paragraph [5] the Full Court said this: "In assessing the adequacy of [the Tribunal's] reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application."
Case: NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287
Outcome: followed
These grounds cannot succeed. The facts of this case are quite close to the facts of three unanimous decisions of Full Courts of this Court. The members of each court were different. The decisions are NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 (Beaumont, Merkel and Hely JJ), NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (French, Emmett and Dowsett JJ) and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (Black CJ, Sundberg and Bennett JJ). In each case the court emphasised the proposition that the task of the Minister, through his delegate, and the Refugee Review Tribunal on appeal, pursuant to s 65 of the Migration Act 1958 (Cth), is to consider whether they are satisfied that the requirements for the grant of a visa have been satisfied. It will be difficult to achieve the requisite degree of satisfaction if the appellant does not provide sufficient information, such as by not attending a hearing. In the absence of a positive finding of satisfaction, a visa application must be rejected. In NAVX at paragraph [5] the Full Court said this: "In assessing the adequacy of [the Tribunal's] reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application."
Case: SZDPB v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2006] FCAFC 110
Outcome: cited
In the Federal Magistrates Court, the appellants gave evidence that they did not open the post box where the invitation was sent until after the hearing date. Emmett FM did not accept that the letter was late in arriving. However, the authorities are clear that the reason for non-attendance at a hearing does not matter. If the Tribunal has complied with ss 425 and 425A of the Migration Act in inviting an applicant to attend a hearing, it may proceed under s 426A of the Act to consider and decide the matter without conducting any further inquiries. See NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184 , NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 , VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407; [2004] FCAFC 134 , NASF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 162 , Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 and Others [2005] FCAFC 73 , Minister for Immigration and Multicultural Affairs and Indigenous Affairs and Another v SZFHC (2006) 150 FCR 439; [2006] FCAFC 73 , SZDPB v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2006] FCAFC 110 and Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142. In several of these cases the invitation was allegedly never received by the applicant. See VNAA v MIMIA , MIMIA v SZFHC and SZDPB v MIMIA .
Case: VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407; [2004] FCAFC 134
Outcome: cited
In the Federal Magistrates Court, the appellants gave evidence that they did not open the post box where the invitation was sent until after the hearing date. Emmett FM did not accept that the letter was late in arriving. However, the authorities are clear that the reason for non-attendance at a hearing does not matter. If the Tribunal has complied with ss 425 and 425A of the Migration Act in inviting an applicant to attend a hearing, it may proceed under s 426A of the Act to consider and decide the matter without conducting any further inquiries. See NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184 , NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 , VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407; [2004] FCAFC 134 , NASF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 162 , Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 and Others [2005] FCAFC 73 , Minister for Immigration and Multicultural Affairs and Indigenous Affairs and Another v SZFHC (2006) 150 FCR 439; [2006] FCAFC 73 , SZDPB v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2006] FCAFC 110 and Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142. In several of these cases the invitation was allegedly never received by the applicant. See VNAA v MIMIA , MIMIA v SZFHC and SZDPB v MIMIA .
Case: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Outcome: distinguished
In my opinion, the present case is to be contrasted with that which came before the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. In that case the Immigration Review Tribunal, the procedural fairness requirements for which were materially analogous, came to decide a review application in ignorance of a request which had been made on behalf of the review applicant for a later hearing date because of an inability to attend the scheduled hearing. Because of an internal error within the Immigration Review Tribunal, that letter requesting the later hearing was not drawn to the Immigration Review Tribunal member's attention before the case was decided. Later, following representations by the visa applicant's agent, the Immigration Review Tribunal did hold a further hearing and made a second decision which was in favour of the visa applicant. The High Court by majority held that the Immigration Review Tribunal had power to make that second decision. Indeed, having regard to the reasons for judgment of certain members comprising the majority, the Immigration Review Tribunal's first decision was no decision at all because a requirement of the governing provisions had not been observed. 14 Here, though, a hearing was offered. It is just that the invitation was not availed of and the Tribunal then went on to decide the case on the basis of the material which it had before it. 15 Section 426A of the Migration Act makes provision for this type of situation. That section reads as follows: (1) If the applicant: (a) is invited under section 425 to appear before the Tribunal; and (b) does not appear before the Tribunal on the day on which or at the time and place at which the applicant is scheduled to appear; the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. (2) This section does not prevent the Tribunal from rescheduling the applicant's appearance before or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Outcome: cited
The granting of a protection visa requires the engendering of a state of satisfaction on the part of the Minister or his delegates. There are authorities in this Court which stand, with respect unremarkably, for the proposition that it would be difficult for the Tribunal to achieve the requisite degree of satisfaction, standing as it does in the place of the Minister if an applicant does not put before the Tribunal sufficient information, for example, because of an absence of attendance at a hearing. Without that "satisfaction" engendered on the part of the Tribunal, the visa application has to be rejected see amongst the authorities for this Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 per Black CJ, Sundberg and Bennett JJ.
Case: NAFX v Minister for Immigration and Multicultural Affairs [2004] FCAFC 287
Outcome: cited
Indeed, some judges have gone so far as to regard the rejection of an application in that circumstance as an "inevitable consequence" of non-attendance at a hearing see NAFX v Minister for Immigration and Multicultural Affairs [2004] FCAFC 287 at para 5. The bare statement provided in the visa application did not, for example, provide any basis for satisfaction in respect of an inability for the Appellants to secure state protection. 21 In these circumstances and hard though it may be, the result on the appeal is, in my opinion, clear. It must, for reasons which I have given, be dismissed. 22 The orders that I make in the appeal are: 1. The appeal is dismissed. 2. The Appellants are to pay the First Respondent's costs of and incidental to the appeal which are fixed in the amount of $2600.
Case: Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151
Outcome: cited
The principles that govern the award of costs in this Court are well settled. Section 43(2) of the Federal Court of Australia Act 1976 (Cth) confers upon the Court a wide discretion which must, however, be exercised judicially: Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 at 152 per Black CJ. Detailed provisions in relation to costs are to be found in Order 62 of the Federal Court Rules. These are predicated upon the assumption that costs orders will normally be on a party and party basis. However, it is clear that the Court has a discretion under s 43 in appropriate cases to award costs on some other basis.
Case: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Outcome: considered
There is a useful discussion by Sheppard J of the principles under which indemnity costs can be ordered in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225. There should be present some special or unusual feature in the case to justify a departure from the usual order that costs be paid on a party and party basis. Sheppard J set out some examples of such features. They included the bringing of proceedings in wilful disregard of known facts or clearly established law, the making of allegations that ought never to have been made, and an imprudent refusal of an order to compromise. Nonetheless, it must be remembered that each case has to be considered in the light of its own particular facts and care must be taken not to circumscribe the broad discretion as to costs by reference to closed categories.
Case: Davids Holdings Pty Ltd v Coles Myer Ltd (1995) ATPR 41-383
Outcome: cited
Indemnity costs have been awarded on the basis of actions and/or defences maintained without a proper foundation. See, for example, Davids Holdings Pty Ltd v Coles Myer Ltd (1995) ATPR 41-383 and Ogawa v Spender [2006] FCAFC 68 ; (2006) 151 FCR 228.
Case: Ogawa v Spender [2006] FCAFC 68 ; (2006) 151 FCR 228
Outcome: cited
Indemnity costs have been awarded on the basis of actions and/or defences maintained without a proper foundation. See, for example, Davids Holdings Pty Ltd v Coles Myer Ltd (1995) ATPR 41-383 and Ogawa v Spender [2006] FCAFC 68 ; (2006) 151 FCR 228.