mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Shelton v National Roads &amp; Motorists Association Ltd (2004) 51 ACSR 278
Outcome: considered
Shelton v National Roads &amp; Motorists Association Ltd (2004) 51 ACSR 278 ( 'Shelton' ), Tamberlin J agreed with the conclusions reached by Campbell J in Turnbull in respect of the proper construction of ss 232(d) and (e) of the Act. Also in Shelton , when speaking particularly of s 232(e) of the Act, Tamberlin J said, amongst other things at [23], that: It is not practicable to delineate the numerous ways in which oppressive conduct may be established. The Court will generally look at the overall course of conduct and consider whether it is so unfair that reasonable directors would not consider it fair. If directors exercise a power so as to impose a disability or burden on a member that is unfair according to ordinary standards of reasonableness and fair dealing, then such conduct may be described as oppressive...The test of unfairness is objective: see Wayde v NSW Rugby League Ltd [1985] HCA 68 ; (1985) 180 CLR 459 at 472 per Brennan J; Morgan v 45 Flers Avenue Pty Ltd (1987) 11 NSWLR 573. The Court should not take a narrow approach to cases of oppression. It is necessary for the Court to come to a conclusion that there has been conduct unfairly prejudicial to or unfairly discriminatory or oppressive to a member before it makes an order to this effect: see John J Starr (Real Estate) Pty Ltd v Andrew (Australasia) Pty Ltd (1991) 6 ACSR 63. His Honour then went on to say, at [24]: The onus of establishing unfairness rests on the applicant asserting the conduct that is contrary to the interests of the members as a whole, or that is oppressive, unfairly prejudicial or discriminatory. An applicant must actually prove oppression before obtaining relief. It is not established simply by showing that the majority are in control of the company, or that the applicant is consistently out-voted, or that the majority have made some questionable decisions from a business point of view. The mere disadvantage of being in a minority does not in itself constitute oppression. It is necessary for each single allegation in an oppression case to be pleaded clearly in order to assess whether the totality may amount to oppression: see Weatherall v Satellite Receiving Systems (Australia) Pty Ltd (1999) 92 FCR 873. Disagreement with a decision by a majority of shareholders and directors on the part of a minority shareholder does not entitle that shareholder to relief under the section: Re Bountiful Pty Ltd (1994) 12 ACLC 902.
Case: Thomas v HW Thomas Ltd [1984] 1 NZLR 686
Outcome: discussed
is not necessary to prove lack of probity or want of good faith: see, e.g. Thomas v HW Thomas Ltd [1984] 1 NZLR 686 in relation to analogous provisions of the Companies Act 1955 (NZ). In that case, Richardson J reminded us, at 694: Where the member is adversely affected in that sense, the determination as to whether it is unjustly so within subs(1), calling for the granting of relief under subs(2), must turn on an overall assessment of the position in the company. Fairness cannot be assessed in a vacuum or simply from one member's point of view. It will often depend on weighing conflicting interests of different groups within the company. It is a matter of balancing all the interests involved in terms of the policies underlying the companies legislation in general and s 209, in particular: thus to have regard to the principles governing the duties of a director in the conduct of the affairs of a company and the rights and duties of majority shareholder in relation to the minority; but to recognise that s 209 is a remedial provision designed to allow the Court to intervene where there is a visible departure from the standards of fair dealing; and in the light of the history and structure of the particular company and the reasonable expectations of the members to determine whether the detriment occasioned to the complaining member's interests arising from the acts or conduct of the company in that way is justifiable.
Case: Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423
Outcome: referred to
The Federal Magistrate's decision of 16 October 2006 was an interlocutory decision: compare Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 at 440 per Taylor J. Accordingly, pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth), the applicant requires leave to appeal before he can proceed with his appeal. It would appear that this application is made out of time, although in the circumstances of the case nothing ultimately turns on this. This is because, for the reasons stated below, I would not grant leave to appeal in any event.
Case: D&eacute;cor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Outcome: referred to
Whether or not leave to appeal should be granted or refused depends on two matters. They are: (1) whether in all the circumstances the decision is attended with sufficient doubt to warrant its being reconsidered by an appellate court; and (2) whether substantial injustice would result if leave were refused, supposing the decision to be wrong: see D&eacute;cor Corporation Pty Ltd v Dart Industries Inc &amp; Anor (1991) 33 FCR 397 at 398-399 per Sheppard, Burchett and Heerey JJ. For present purposes, I assume that this second question would be answered in the applicant's favour in view of the claims that he has made. Thus, this application turns on the question, whether the decision of the Federal Magistrate is attended by such doubt that it warrants reconsideration on appeal. 8 The applicant filed an affidavit in support of his application, which stated that he was unrepresented, not knowledgeable in legal matters, and had previously made unsuccessful attempts to lodge his appeal. In this affidavit, he asserted that he had an arguable case for a protection visa since he was a member of "the Akali Dal National Party, which is the representative of the Sikh faith in the Indian Punjab" and repeated matters going to the merits of his claim. In written submission filed in support of his application, the applicant discussed his membership of the Akali Dal and the conditions for Sikhs in India, referring especially to events between 1987 and 1993. He complained that the Tribunal relied wholly on information prepared by the Indian authorities, and on information that was not up-to-date. He submitted that the Tribunal had not taken his fear into consideration and had not addressed "the four key elements to be a refugee". He reiterated his claim to be a refugee and said that the Tribunal wrongly dismissed his application. 9 The draft notice of appeal apparently raised the following grounds: (1) the Federal Magistrate failed to appreciate the legal errors made by the Tribunal; (2) his fears of persecution were not taken into consideration; and (3) the authorities failed to investigate the mass killings of Sikh youths. The applicant did not add greatly to these matters at the hearing, although he reiterated his contentions about conditions in India that affected persons of the Sikh faith.
Case: Attorney-General of the Commonwealth v Foster (1999) 84 FCR 582 ; [1999] FCA 81
Outcome: cited
HK Systems then contended that the Minister was bound to act on the basis of the law as it was at the time of his decision. That obligation arose by analogy with the principle applied to courts which holds that it is wrong to allow an adjournment of a case to allow a party to take advantage of a change in the law: Meggitt Overseas Ltd v Grdovic (1998) 43 NSWLR 527; Attorney-General of the Commonwealth v Foster (1999) 84 FCR 582 ; [1999] FCA 81.
Case: Meggitt Overseas Ltd v Grdovic (1998) 43 NSWLR 527
Outcome: cited
HK Systems then contended that the Minister was bound to act on the basis of the law as it was at the time of his decision. That obligation arose by analogy with the principle applied to courts which holds that it is wrong to allow an adjournment of a case to allow a party to take advantage of a change in the law: Meggitt Overseas Ltd v Grdovic (1998) 43 NSWLR 527; Attorney-General of the Commonwealth v Foster (1999) 84 FCR 582 ; [1999] FCA 81.
Case: Warramunda Village Inc v Pryde (2002) 116 FCR 58 ; [2002] FCAFC 58
Outcome: cited
If the principle exists in the form proposed (as to which see Warramunda Village Inc v Pryde (2002) 116 FCR 58 ; [2002] FCAFC 58 per Finkelstein J at [58]) and if it applies to the Minister making an administrative decision, both of which are open to argument, there is no merit in the submission that the Minister failed to act on the basis of the law applicable to him at the time of his decision. 35 His function was to consider whether the public interest required the R8 to be detained by Customs. The regulations allowed the R8 to be imported. The Minister did not act to prevent the regulation operating in that regard. But, as explained in [18] [22] the regulations did not govern the decision to be made by the Minister. The fact that the regulations allowed the R8 to be imported did not prevent the Minister making an order for detention. The legislative scheme contemplated that his decision could overrule the operation of the regulations. 36 HK Systems also argued that the Minister failed to consider the public interest as required by s 77EA, but rather acted for an ulterior purpose, namely, to give effect to his view that the regulations should be amended.
Case: Gerhard v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 495 
Outcome: cited
It can be seen that if the Minister is satisfied that the visa holder has not complied with condition 8202 the Minister must cancel the visa holder's visa. It was contended, because of the provisions of condition 8202, that a visa holder could only comply with that condition if the visa holder complied with both paragraphs (2) and (3) of condition 8202: Gerhard v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 495 ; Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238.
Case: Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238
Outcome: cited
It can be seen that if the Minister is satisfied that the visa holder has not complied with condition 8202 the Minister must cancel the visa holder's visa. It was contended, because of the provisions of condition 8202, that a visa holder could only comply with that condition if the visa holder complied with both paragraphs (2) and (3) of condition 8202: Gerhard v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 495 ; Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238.
Case: SZMZR v Minister for Immigration and Citizenship [2009] FMCA 392
Outcome: affirmed
is an appeal against a judgment of a Federal Magistrate delivered on 29 April 2009 ( SZMZR v Minister for Immigration and Citizenship [2009] FMCA 392) in which the Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal ( the Tribunal ) made on 14 October 2008 and handed down on 4 November 2008. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship ( the delegate ) to refuse to grant protection visas to the appellants. The appellants are husband and wife. Only the first appellant (the husband) appeared before me today. There was no appearance by his wife although the first appellant informed me that he was speaking for his wife. I shall hereafter refer to the first appellant as the husband . Before the Tribunal the second appellant indicated that she did not have an individual claim to be a refugee and that she was applying as a member of her husband's family. It appears that that has remained the position both before the Federal Magistrate and in this Court.
Case: Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126 ; (1998) 86 FCR 547
Outcome: followed
ground is merely a repetition of a similar ground argued before the Federal Magistrate. It is an attempt to re-agitate the merits which, of course, is not permissible in this appeal. The approach which the Federal Magistrate took to this ground was correct. Indeed, a fair reading of the Tribunal's decision supports the proposition that the approach which the Tribunal took to the question embedded in this ground of appeal was also correct. This Court cannot engage in fact-finding about the merits of the administrative decision under review (see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 ; and Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126 ; (1998) 86 FCR 547).
Case: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Outcome: followed
ground is merely a repetition of a similar ground argued before the Federal Magistrate. It is an attempt to re-agitate the merits which, of course, is not permissible in this appeal. The approach which the Federal Magistrate took to this ground was correct. Indeed, a fair reading of the Tribunal's decision supports the proposition that the approach which the Tribunal took to the question embedded in this ground of appeal was also correct. This Court cannot engage in fact-finding about the merits of the administrative decision under review (see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 ; and Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126 ; (1998) 86 FCR 547).
Case: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253 ; (1994) 52 FCR 437
Outcome: cited
in safely relocating, the applicant is not expected to modify his or her behaviour in order to avoid persecution ( SZATV [2007] HCA 40 ; 233 CLR 18 ; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253 ; (1994) 52 FCR 437). At [41] to [46] of its reasons, the Tribunal gave careful consideration to the appellants' ability to relocate within India. In those paragraphs of its reasons, the Tribunal gave express consideration to the practicalities of the appellants relocating in light of the husband's personal situation and circumstances (including his previously demonstrated ability to relocate within India), as well as his financial resources, skills and knowledge. The Federal Magistrate noted that the findings and reasons of the Tribunal did not manifest a misunderstanding or a misapplication of the relevant principles. In my judgment, the Federal Magistrate was correct when she expressed this conclusion, and there was no error in the approach of the Tribunal in dealing with relocation. Ground 3 was also advanced before the Federal Magistrate. The Federal Magistrate noted that the Tribunal concluded that it could not be satisfied that there was a real chance of persecution of the husband in the foreseeable future by members of the BJP elsewhere in India. Her Honour said that it was open to the Tribunal to prefer the country information where the husband's evidence differed from it. At the beginning of its reasons for decision, the Tribunal set out the law relating to the real chance test which is related to the concept of a well-founded fear for a Convention reason. In my judgment, it correctly articulated the relevant principles. In substance, the complaint under Ground 3 is a complaint that the Tribunal came to the wrong view on the facts. In my judgment, there is no error disclosed in the Tribunal's decision and, in particular, no error which could be characterised as jurisdictional error. Accordingly, Ground 3 has not been made out. For these reasons, there has been no error on the part of the Federal Magistrate demonstrated by the appellants, nor have they been able to demonstrate jurisdictional error on the part of the Tribunal. Accordingly, I propose to dismiss the appeal with costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate: Dated: 19 August 2009 The Appellants appeared in person Solicitor for the First Respondent: Mr J Pinder of DLA Phillips Fox Solicitor for the Second Respondent: The Second Respondent submitted save as to costs Date of Hearing: 17 August 2009 Date of Judgment: 17 August 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/904.html
Case: SZATV v Minister for Immigration and Citizenship [2007] HCA 40 ; (2007) 233 CLR 18
Outcome: cited
in safely relocating, the applicant is not expected to modify his or her behaviour in order to avoid persecution ( SZATV [2007] HCA 40 ; 233 CLR 18 ; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253 ; (1994) 52 FCR 437).
Case: Cropper v Smith (1884) 26 Ch D 700
Outcome: applied
power which is given by that rule was described by Bowen LJ in Cropper v Smith (1884) 26 Ch D 700 at 710-711: '... the objects of Courts is to decide the rights of the parties, and not to punish them for mistakes in the conduct of their cases ... I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party ... as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right.'
Case: Clough and Rogers v Frog (1974) 4 ALR 615
Outcome: cited
dicta has been applied on any number of occasions since that time and, most recently and relevantly, by the High Court in Clough and Rogers v Frog (1974) 4 ALR 615 and the State of Queensland &amp; Anor v J L Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146. The principle is still sound.
Case: State of Queensland &amp; Anor v J L Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146
Outcome: cited
dicta has been applied on any number of occasions since that time and, most recently and relevantly, by the High Court in Clough and Rogers v Frog (1974) 4 ALR 615 and the State of Queensland &amp; Anor v J L Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146. The principle is still sound.
Case: Kleinwort Benson Australia Ltd v Crowl [1988] HCA 34 ; (1988) 165 CLR 71
Outcome: discussed
In order to determine the issues in this appeal, it is useful to refer to the recent decision of Snelgrove v Roskell (2007) 157 FCR 313. In that case, Jacobson J considered whether an incorrect reference to the legislation, which was the statutory source of post-judgment interest claimed in the bankruptcy notice, resulted in the bankruptcy notice being invalid. In determining the correct principles to apply, his Honour held (at [29]-[31]): The High Court said in Adams [ v Lambert (2006)] [2006] HCA 10 ; 225 ALR 396 at [18] that if there is a failure to comply with a provision of the Act or the Bankruptcy Regulations 1996 Cth (the Regulations), the first question which must be asked is whether the defect or irregularity is a formal one within the purview of s 306. If it is, it is then necessary to ask whether substantial injustice has been caused by the defect or irregularity and whether the injustice cannot be remedied by an order of the Court. It must be borne in mind that these are separate and distinct questions. The first question, that is, whether the defect or irregularity is formal, involves two levels of enquiry. These were stated by an earlier decision of the High Court in Kleinwort Benson Australia Ltd v Crowl [1988] HCA 34 ; (1988) 165 CLR 71, and applied in Adams [2006] HCA 10 ; 225 ALR 396 at [25] ff. The relevant enquiry is: does the bankruptcy notice fail to meet a requirement made essential by the Act or the Regulations; or could it reasonably mislead a debtor as to what is necessary to comply with the notice; see Kleinwort Benson 165 CLR at 79; Adams 225 ALR 396 at [25]. 37 In light then of the approach to the legislative purpose adopted by Lee and Gyles JJ, as approved by the High Court, in my view nothing in the Act indicates that now the calculation itself must be included in the Notice. In fact, if it were not a requirement prior to the 1996 amendment, the tendency would be towards the view that providing such information is not now a statutory requirement in the Kleinwort Benson [1988] HCA 34 ; 165 CLR 71 or Adams [2006] HCA 10 ; 225 ALR 396 sense, if one adopts the approach of Gyles J as referred to above.
Case: Re Spurr; Ex parte Werner (1991) 31 FCR 236
Outcome: approved
In Re Spurr; Ex parte Werner (1991) 31 FCR 236, Heerey J considered the validity of a bankruptcy notice which stated the amount of interest due but not the rate of interest applied. The notice also contained inconsistencies as to whether payment was to be made by the debtor in 14 or 21 days. His Honour dismissed the creditors' petition and held that the notice was invalid by reason of the inconsistencies in the notice. As to the calculation of interest, his Honour held at 237: It seems to me that as long as the bankruptcy notice correctly states the amount of interest which is in fact due, the notice is valid and the debtor fails to pay that amount at his peril. No authority was cited which suggests there is any requirement to include in the notice all the information which would be necessary for the debtor to be able to recalculate the amount of interest to his own satisfaction. 40 The decision of Heerey J is consistent with the position observed by Lee J and the view I have arrived at after a review of the authorities. The position adopted by his Honour is, in my view, currently the correct one.