mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZHVM v Minister for Immigration &amp; Citizenship [2008] FCA 600
Outcome: followed
Albeit not raised by any of the Grounds of Appeal , Counsel for the Respondent Minister quite properly did not oppose exploring the question as to whether there had been a breach of s 425 by reason of the Appellant not having the opportunity to place further documents or further information before the Tribunal. However, it was contended by the Minister that, in the absence of any basis upon which it could be concluded that the Tribunal was on notice that potentially there may have been further information or documents relevant to its consideration (but not then available to the now First Appellant at that hearing), it is difficult to conclude that the obligation in s 425 to afford an opportunity has been breached. The Tribunal in discharging its function is engaged in an " inquisitorial process " -- but there must nevertheless remains a reason or a basis upon which it can be said that it should inquire beyond that factual material placed before it. In SZJBA Allsop J thus observed: [53] ... the obligation of the Tribunal to give a real and meaningful invitation to comment carried with it the obligation to take reasonably open and regular administrative procedural steps to permit or facilitate fulfilment of the real and meaningful nature of the invitation, where not to take such steps would undermine or subvert the meaningfulness or the reality of the invitation. That obligation involves such mundane things as opening letters, reading them once opened and taking at least basic simple steps that would be taken in any well-run commercial, professional or governmental office, conformable with the recognition of the importance of the response to the invitation to the rights of the applicant and the review process contained within Pt 7 of the Migration Act . This does not rest on some posited duty of inquiry. It is not engaging in steps that require for their enforcement some express statutory power. ... ... [57] These conclusions can be fortified by the recognition, so often stated, that the Tribunal is engaged in an inquisitorial process ... [58] This inquisitorial function has become relevant in a number of contexts. In Applicant S 217 CLR 387 at [76] McHugh J said: If the Tribunal had considered the issue that it was legally required to consider, it was open to the Tribunal to investigate whether such a perception existed, whether within the Afghan society or some section of it, or objectively. Indeed, arguably in the context of its inquisitorial process, the Tribunal had a duty to seek evidence concerning this vital matter. Where there is material which on its face suggests that the Tribunal is not in receipt of all materials, the Tribunal should normally " take simple administrative steps to address the issue ": SZHVM v Minister for Immigration &amp; Citizenship [2008] FCA 600 at [63] per Middleton J.
Case: SZJXP v Minister for Immigration &amp; Citizenship [2007] FMCA 1603
Outcome: cited
The Federal Magistrates Court on 12 September 2007 dismissed an application to review the decision of the Tribunal: SZJXP v Minister for Immigration &amp; Citizenship [2007] FMCA 1603. The Appellants now appeal to this Court. 5 A Notice of Appeal was filed on 24 September 2007 and an Amended Notice of Appeal was filed on 1 May 2008. It is understood that the Grounds of Appeal upon which the Appellants wish to proceed may be summarised as being: (i) jurisdictional error; (ii) bias on the part of the Tribunal; and (iii) a failure to comply with s 424A(1) of the Migration Act 1958 (Cth). None of these grounds has been made out and the appeal is dismissed. 6 The Appellants appeared before this Court unrepresented, although they had the assistance of an interpreter.
Case: Xiang Sheng Li v Refugee Review Tribunal [1994] FCA 1550 ; (1994) 36 ALD 273
Outcome: followed
The present contention that the Tribunal member should have adjourned due to his being unwell is both curious and factually unsupportable. It is curious to the extent that a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness: Minister for Immigration &amp; Multicultural Affairs v Bhardwaj [2002] HCA 11 at [40] , 209 CLR 597 at 611 per Gaudron and Gummow JJ. Further, proceedings of the Refugee Review Tribunal have been held to have denied procedural fairness where an adjournment should have been granted: Xiang Sheng Li v Refugee Review Tribunal [1994] FCA 1550 ; (1994) 36 ALD 273.
Case: Australian Competition &amp; Consumer Commission v Advanced Medical Institute Pty Ltd [2005] FCA 366
Outcome: cited
considering the formulation of categories of documents for the purposes of discovery, two matters are important. First, it is trite to say that the categories will be formulated having regard to the issues between the parties as revealed in the pleadings. Secondly, the criteria in O 15 r 2(3) generally provide an appropriate guide to the formulation of appropriate categories. The categories can be formulated by reference to O 15 r 2(3) without specific reference to that rule, or O 15 r 2(3) can be incorporated into the categories as a limiting factor: Australian Competition &amp; Consumer Commission v Advanced Medical Institute Pty Ltd [2005] FCA 366 at [17] - [23] per Lindgren J; Aveling v UBS Capital Markets Australia Holdings Ltd [2005] FCA 415 at [9] - [11] per Lindgren J; Egglishaw v Australian Crime Commission (No 2) (2009) 253 ALR 354 at 360 [21]-[22]. It seems to me, however, that the Court retains a general power to fashion an order for discovery which is appropriate to the circumstances of the case. Although it is perhaps most unlikely, it is within the Court's power to make an order for discovery in accordance with the "train of inquiry" test (see The Compagnie Financiere et Commerciale du Pacifique v The Peruvian Guano Co (1882) 11 QBD 55 at 63; see also O 15 r 8, which uses the expression, "any document relating to any matter in question in the proceeding"). The issues on the notice of motion
Case: Aveling v UBS Capital Markets Australia Holdings Ltd [2005] FCA 415
Outcome: cited
considering the formulation of categories of documents for the purposes of discovery, two matters are important. First, it is trite to say that the categories will be formulated having regard to the issues between the parties as revealed in the pleadings. Secondly, the criteria in O 15 r 2(3) generally provide an appropriate guide to the formulation of appropriate categories. The categories can be formulated by reference to O 15 r 2(3) without specific reference to that rule, or O 15 r 2(3) can be incorporated into the categories as a limiting factor: Australian Competition &amp; Consumer Commission v Advanced Medical Institute Pty Ltd [2005] FCA 366 at [17] - [23] per Lindgren J; Aveling v UBS Capital Markets Australia Holdings Ltd [2005] FCA 415 at [9] - [11] per Lindgren J; Egglishaw v Australian Crime Commission (No 2) (2009) 253 ALR 354 at 360 [21]-[22]. It seems to me, however, that the Court retains a general power to fashion an order for discovery which is appropriate to the circumstances of the case. Although it is perhaps most unlikely, it is within the Court's power to make an order for discovery in accordance with the "train of inquiry" test (see The Compagnie Financiere et Commerciale du Pacifique v The Peruvian Guano Co (1882) 11 QBD 55 at 63; see also O 15 r 8, which uses the expression, "any document relating to any matter in question in the proceeding"). The issues on the notice of motion
Case: Egglishaw v Australian Crime Commission (No 2) (2009) 253 ALR 354
Outcome: cited
considering the formulation of categories of documents for the purposes of discovery, two matters are important. First, it is trite to say that the categories will be formulated having regard to the issues between the parties as revealed in the pleadings. Secondly, the criteria in O 15 r 2(3) generally provide an appropriate guide to the formulation of appropriate categories. The categories can be formulated by reference to O 15 r 2(3) without specific reference to that rule, or O 15 r 2(3) can be incorporated into the categories as a limiting factor: Australian Competition &amp; Consumer Commission v Advanced Medical Institute Pty Ltd [2005] FCA 366 at [17] - [23] per Lindgren J; Aveling v UBS Capital Markets Australia Holdings Ltd [2005] FCA 415 at [9] - [11] per Lindgren J; Egglishaw v Australian Crime Commission (No 2) (2009) 253 ALR 354 at 360 [21]-[22]. It seems to me, however, that the Court retains a general power to fashion an order for discovery which is appropriate to the circumstances of the case. Although it is perhaps most unlikely, it is within the Court's power to make an order for discovery in accordance with the "train of inquiry" test (see The Compagnie Financiere et Commerciale du Pacifique v The Peruvian Guano Co (1882) 11 QBD 55 at 63; see also O 15 r 8, which uses the expression, "any document relating to any matter in question in the proceeding"). The issues on the notice of motion
Case: The Compagnie Financiere et Commerciale du Pacifique v The Peruvian Guano Co (1882) 11 QBD 55
Outcome: referred to
considering the formulation of categories of documents for the purposes of discovery, two matters are important. First, it is trite to say that the categories will be formulated having regard to the issues between the parties as revealed in the pleadings. Secondly, the criteria in O 15 r 2(3) generally provide an appropriate guide to the formulation of appropriate categories. The categories can be formulated by reference to O 15 r 2(3) without specific reference to that rule, or O 15 r 2(3) can be incorporated into the categories as a limiting factor: Australian Competition &amp; Consumer Commission v Advanced Medical Institute Pty Ltd [2005] FCA 366 at [17] - [23] per Lindgren J; Aveling v UBS Capital Markets Australia Holdings Ltd [2005] FCA 415 at [9] - [11] per Lindgren J; Egglishaw v Australian Crime Commission (No 2) (2009) 253 ALR 354 at 360 [21]-[22]. It seems to me, however, that the Court retains a general power to fashion an order for discovery which is appropriate to the circumstances of the case. Although it is perhaps most unlikely, it is within the Court's power to make an order for discovery in accordance with the "train of inquiry" test (see The Compagnie Financiere et Commerciale du Pacifique v The Peruvian Guano Co (1882) 11 QBD 55 at 63; see also O 15 r 8, which uses the expression, "any document relating to any matter in question in the proceeding"). The issues on the notice of motion
Case: The King v Darling Island Stevedoring and Lighterage Company Limited; ex parte Halliday and Sullivan [1938] HCA 44 ; (1938) 60 CLR 601
Outcome: followed
extent of an employee's obligation to comply with directions given by an employer appears from the reasons of Dixon J (as his Honour then was) in The King v Darling Island Stevedoring and Lighterage Company Limited; ex parte Halliday and Sullivan [1938] HCA 44 ; (1938) 60 CLR 601 at 621-622. His Honour said: If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable. ... But what is reasonable is not to be determined, so to speak, in vacuo . The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled.
Case: Australian Telecommunications Commission v Hart (1982) 43 ALR 165
Outcome: followed
present purposes a useful example of the application of the general rule is to be found in the decision of the Full Court in Australian Telecommunications Commission v Hart (1982) 43 ALR 165. In that case an employee of Telecom was charged with disciplinary offences for refusing to obey a direction that he refrain from wearing a caftan and thongs to work. The majority (Fox and Sheppard JJ) concluded that the employee was obliged to comply with the direction. At 170, Fox J (Sheppard J concurring) cited Harvey: Industrial Relations and Employment Law 1982 and the decision in Boychuk v K.J. Symons Holdings Ltd [1977] IRLR 396 as authority for the proposition that: ... a reasonable employer ... can be allowed to decide what, upon reflection and mature consideration, could be offensive to the customers and the fellow employees ... .
Case: Boychuk v KJ Symonds Holdings Ltd [1977] IRLR 396
Outcome: cited
present purposes a useful example of the application of the general rule is to be found in the decision of the Full Court in Australian Telecommunications Commission v Hart (1982) 43 ALR 165. In that case an employee of Telecom was charged with disciplinary offences for refusing to obey a direction that he refrain from wearing a caftan and thongs to work. The majority (Fox and Sheppard JJ) concluded that the employee was obliged to comply with the direction. At 170, Fox J (Sheppard J concurring) cited Harvey: Industrial Relations and Employment Law 1982 and the decision in Boychuk v K.J. Symons Holdings Ltd [1977] IRLR 396 as authority for the proposition that: ... a reasonable employer ... can be allowed to decide what, upon reflection and mature consideration, could be offensive to the customers and the fellow employees ... .
Case: Greater Dandenong City Council v Australian Municipal and Clerical Services Union [2001] FCA 349 ; (2001) 184 ALR 641
Outcome: cited
submission appears to be inconsistent with the observations made in Bowling as explained in Ansett . The applicants also rely upon the decision of the Full Court in Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108 ; (1999) 91 FCR 463 at [107] , that of Merkel J in Ansett at [63] and that of Wilcox J in Greater Dandenong City Council v Australian Municipal and Clerical Services Union [2001] FCA 349 ; (2001) 184 ALR 641 at [72] - [73] , citing his Honour's earlier remarks in Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2000] FCA 1008. I suspect that the applicants have misunderstood these cases. The proposition identified at [107] in Davids related to the purpose of the former Act as a whole and, in particular, Part XA. It was not concerned with the distinction between status as a member, office holder or delegate, on the one hand, and actions in advancing the industrial interests of the union, on the other. Further, I note that the quotation of the relevant extract in the applicants' opening outline is inaccurate in one respect. In the report the relevant extract is as follows: In the context of the Act, Part XA does not stand alone. It is aimed at ensuring that employees may band together, if they wish, for collective bargaining of the type provided for in the Act to achieve the broader objectives of the Act as contained in s 3. ... That which is protected by such legislation is more than the right to be a member. It is the right to participate in protected union activities, including the taking of collective industrial action against an employer to seek to obtain better industrial conditions ... . This proposition, too, was concerned with the overall effect of the sections and not with the areas of operation of the individual paragraphs of s 298K, the predecessor of s 793(1). Similar comments apply to the extract from the judgment of Wilcox J in BHP Steel to which his Honour referred in Greater Dandenong . In Finance Sector Union of Australia v Australian &amp; New Zealand Banking Group Limited (2002) 114 IR 352 , Wilcox J applied the decision in Bowling as I have explained it. See that decision at [173] and [187]. See also the decision of Branson J in The Community and Public Sector Union v The Commonwealth of Australia [2007] FCA 1397 at [114] .
Case: Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2000] FCA 1008
Outcome: cited
submission appears to be inconsistent with the observations made in Bowling as explained in Ansett . The applicants also rely upon the decision of the Full Court in Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108 ; (1999) 91 FCR 463 at [107] , that of Merkel J in Ansett at [63] and that of Wilcox J in Greater Dandenong City Council v Australian Municipal and Clerical Services Union [2001] FCA 349 ; (2001) 184 ALR 641 at [72] - [73] , citing his Honour's earlier remarks in Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2000] FCA 1008. I suspect that the applicants have misunderstood these cases. The proposition identified at [107] in Davids related to the purpose of the former Act as a whole and, in particular, Part XA. It was not concerned with the distinction between status as a member, office holder or delegate, on the one hand, and actions in advancing the industrial interests of the union, on the other. Further, I note that the quotation of the relevant extract in the applicants' opening outline is inaccurate in one respect. In the report the relevant extract is as follows: In the context of the Act, Part XA does not stand alone. It is aimed at ensuring that employees may band together, if they wish, for collective bargaining of the type provided for in the Act to achieve the broader objectives of the Act as contained in s 3. ... That which is protected by such legislation is more than the right to be a member. It is the right to participate in protected union activities, including the taking of collective industrial action against an employer to seek to obtain better industrial conditions ... . This proposition, too, was concerned with the overall effect of the sections and not with the areas of operation of the individual paragraphs of s 298K, the predecessor of s 793(1). Similar comments apply to the extract from the judgment of Wilcox J in BHP Steel to which his Honour referred in Greater Dandenong . In Finance Sector Union of Australia v Australian &amp; New Zealand Banking Group Limited (2002) 114 IR 352 , Wilcox J applied the decision in Bowling as I have explained it. See that decision at [173] and [187]. See also the decision of Branson J in The Community and Public Sector Union v The Commonwealth of Australia [2007] FCA 1397 at [114] .
Case: Finance Sector Union of Australia v Australian &amp; New Zealand Banking Group Limited (2002) 114 IR 352
Outcome: cited
proposition, too, was concerned with the overall effect of the sections and not with the areas of operation of the individual paragraphs of s 298K, the predecessor of s 793(1). Similar comments apply to the extract from the judgment of Wilcox J in BHP Steel to which his Honour referred in Greater Dandenong . In Finance Sector Union of Australia v Australian &amp; New Zealand Banking Group Limited (2002) 114 IR 352 , Wilcox J applied the decision in Bowling as I have explained it. See that decision at [173] and [187]. See also the decision of Branson J in The Community and Public Sector Union v The Commonwealth of Australia [2007] FCA 1397 at [114] .
Case: The Community and Public Sector Union v The Commonwealth of Australia [2007] FCA 1397
Outcome: cited
proposition, too, was concerned with the overall effect of the sections and not with the areas of operation of the individual paragraphs of s 298K, the predecessor of s 793(1). Similar comments apply to the extract from the judgment of Wilcox J in BHP Steel to which his Honour referred in Greater Dandenong . In Finance Sector Union of Australia v Australian &amp; New Zealand Banking Group Limited (2002) 114 IR 352 , Wilcox J applied the decision in Bowling as I have explained it. See that decision at [173] and [187]. See also the decision of Branson J in The Community and Public Sector Union v The Commonwealth of Australia [2007] FCA 1397 at [114] .
Case: Elliott v Kodak Australasia Pty Ltd [2001] FCA 807 ; (2001) 108 IR 23
Outcome: considered
applicants also refer to the decision of Marshall J in Elliott v Kodak Australasia Pty Ltd [2001] FCA 807 ; (2001) 108 IR 23 and to that of North J in Australasian Meat Industry Employees' Union v Belandra Pty Ltd [2003] FCA 910 ; (2003) 126 IR 165 at [150] . Each case involved an examination of the history of the relevant industrial legislation. Both North and Marshall JJ concluded that s 298L(1)(a) of the Act, itself an analogue of s 793(1)(a), had an analogue in s 9(1) of the 1904 Act. Their Honours concluded that s 298L(1)(a) should be given the same breadth of operation as had been attributed to s 9(1), notwithstanding the fact that in s 298L(1) (as in s 793(1)) subsequent provisions might suggest that s 298L(1) should be given a narrower meaning. In Kodak , this view led Marshall J to conclude that the word "delegate" in s 298L(1)(a) should have a wider meaning than might be suggested by other parts of s 298L(1). In Belandra North J concluded that s 298L(1)(a) was intended to cover "conduct taken against employees because they had taken action as members of a union, and because a union had taken action as an incident of that employee's membership of a union." To the extent that this implies that s 793(1)(a) addresses conduct as well as union membership or standing as an officer or delegate, it is inconsistent with the observations made by Mason J in Bowling . Unfortunately, it seems that neither his Honour nor Marshall J was referred to that decision or to the decision of Merkel J in Ansett . I proceed upon the basis that ss 792(1)(a) and 793(1)(a) proscribe dismissal because of union membership or status as an officer or delegate, but not because of conduct. However conduct is relevant to the question in the way explained by Mason J in Bowling .
Case: Australasian Meat Industry Employees' Union v Belandra Pty Ltd [2003] FCA 910 ; (2003) 126 IR 165
Outcome: discussed
applicants also refer to the decision of Marshall J in Elliott v Kodak Australasia Pty Ltd [2001] FCA 807 ; (2001) 108 IR 23 and to that of North J in Australasian Meat Industry Employees' Union v Belandra Pty Ltd [2003] FCA 910 ; (2003) 126 IR 165 at [150] . Each case involved an examination of the history of the relevant industrial legislation. Both North and Marshall JJ concluded that s 298L(1)(a) of the Act, itself an analogue of s 793(1)(a), had an analogue in s 9(1) of the 1904 Act. Their Honours concluded that s 298L(1)(a) should be given the same breadth of operation as had been attributed to s 9(1), notwithstanding the fact that in s 298L(1) (as in s 793(1)) subsequent provisions might suggest that s 298L(1) should be given a narrower meaning. In Kodak , this view led Marshall J to conclude that the word "delegate" in s 298L(1)(a) should have a wider meaning than might be suggested by other parts of s 298L(1). In Belandra North J concluded that s 298L(1)(a) was intended to cover "conduct taken against employees because they had taken action as members of a union, and because a union had taken action as an incident of that employee's membership of a union." To the extent that this implies that s 793(1)(a) addresses conduct as well as union membership or standing as an officer or delegate, it is inconsistent with the observations made by Mason J in Bowling . Unfortunately, it seems that neither his Honour nor Marshall J was referred to that decision or to the decision of Merkel J in Ansett . I proceed upon the basis that ss 792(1)(a) and 793(1)(a) proscribe dismissal because of union membership or status as an officer or delegate, but not because of conduct. However conduct is relevant to the question in the way explained by Mason J in Bowling .