mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
Outcome: cited
It found that the information contained in the reference letters was exempt from s 424A(1) of the Act and the information provided by the appellant: s 424A(3)(b) of the Act. In any event, it was not information in the light of SZBYR v Minister for Immigration and Citizenship [2007] HCA 26. 37 Two grounds of appeal are raised. First, it is said that the Federal Magistrate erred in failing to find that the Tribunal had committed jurisdictional error by the Tribunal failing to obtain evidence from two named persons. Secondly, it is said, the Tribunal committed jurisdictional error by not providing the applicant with particulars of the information the Tribunal considered was a reasonable part of the reason for affirming the delegate's decision, contrary to s 424A of the Act. The notice of appeal does not particularise the information which the Tribunal failed to provide under that section. 38 The Tribunal said in its decision: At the hearing the applicant provided the names of two of these letter writers, Showkat Hossain Hiron and Rashed Khan Menon, as witnesses who the Tribunal could contact. He provided telephone numbers, apparently in Bangladesh, for this purpose. In view of the strong concerns about the evidence provided by other witnesses at the hearing, noted below, and the obvious inability to positively identify those two persons simply by the telephone numbers provided (none of which appear on the letters written by them despite the fact that such letters are on the official party letterhead) I am not satisfied that the Tribunal should attempt to obtain further evidence directly from them.
Case: SZDMC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 763
Outcome: followed
It is clear from the Tribunal's reasons that it had regard to the appellant's request or wishes to take evidence from the two witnesses. It gave reasons why it declined to do so. I agree, with respect, with Stone J who said in SZDMC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 763 at [49] : Section 426 makes it quite clear that the Tribunal is not obliged to grant a review applicant's request that a witness be called to give evidence even where the request is made in accordance with the statutory procedure. That being so, there was no breach of the requirements of the natural justice hearing rule as set out in Div 4 of Pt 7 arising from the Tribunal's failure to make arrangements to hear [a witness] at some other time.
Case: WADU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1252
Outcome: cited
That said, however, the Tribunal must, when requested so to do by an applicant, give genuine consideration to the request. That requires consideration of the evidence that is sought to be led, the person by whom the evidence is to be given, the current state of the evidence before the Tribunal and the potential impact that the evidence, if accepted, might have on the applicant's claims. Otherwise, the Tribunal would not be providing the applicant with a fair hearing which would demonstrate jurisdictional error: Minister for Immigration and Multicultural Affairs v Maltsin (2005) 88 ALD 304. In this case, the Tribunal was not aware that it had Rashed Khan Menon's telephone number and address. It cannot be criticised for not knowing that. The Tribunal was entitled to reason, having regard to the appellant's own evidence and the evidence of his three witnesses, that any further evidence would be of no assistance and not be capable of corroborating the unsatisfactory evidence already received: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 per McHugh and Gummow JJ at [49]; WADU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1252 at [45] .
Case: Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 229 ALR 457
Outcome: cited
was satisfied on 6 March 2009 that, of course, in terms of the High Court's decision in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 229 ALR 457 , that there was a prima facie case made out in the sense that there was a sufficient threshold of success in the proceeding made out taking account of the balance of convenience. One of the influences at the time, in terms of making the order, apart from being satisfied of the integers in O'Neill's case was that dates could be found on 19 and 20 March 2009 for the hearing of the matter which, as I say, largely involved questions of construction, although, no doubt, there would be some questions of factual controversy to be resolved which would require findings of fact. Nevertheless, the scope of the proceedings seem to be reasonably well contained. On the hearing of the application, the respondents in proceeding QUD63 of 2009, as I said earlier, indicated that they may wish to commence their own proceedings. Those proceedings were in fact commenced on 11 March 2009. Directions orders were made for the orderly progression of both matters and, in particular, orders were made that the two proceedings would be heard together since they involved common issues and common factual questions, and that any question of pecuniary penalties to be determined in either proceeding on application by the relevant parties would be dealt with as a separate question. What emerged, of course, was that with the filing of the statement of claim in the related matter (QUD66 of 2009), the matters raised by the applicant parties in that proceeding were a little more complex than had been thought and the filing and serving of affidavits was likely to be more detailed than was first thought. As a result, the matter was brought back for a Directions Hearing and further orders were made. The dates of 19 and 20 March 2009 for the hearing of the trial were vacated and dates of trial were identified and allocated for 23 and 24 April 2009.
Case: SZBEL v Minister for Immigration (2006) 228 CLR 152
Outcome: referred to
The reference to SZBEL v Minister for Immigration (2006) 228 CLR 152 is a reference to the principle that an applicant before the Tribunal must be given the opportunity to ascertain the determinative issues in relation to the Tribunal's decision, and must be given sufficient opportunity to give evidence and make submissions in relation to them. I agree with the conclusion of the Federal Magistrate that this case is not analogous to SZBEL 228 CLR 152. The line of questioning pursued by the Tribunal in relation to the photographs adequately notified the appellant of the fact that this issue was relevant and determinative of some aspects of his claim. I am not persuaded that there has been any failure by the Tribunal to put this matter to the appellant. There is no denial of procedural fairness, as that right arises under ss 422B and 425 of the Act . 27 The final ground of appeal arising out of the appellant's Notice of Appeal claims that the Tribunal erred in not considering whether the appellant would suffer persecution as a result of his current wife not converting to Islam and joining him in Iran upon his repatriation. 28 This ground of appeal must also be rejected. After accepting the appellant's evidence that his wife would not join him in Iran if he was repatriated, the Tribunal found that the appellant's claim that he would suffer persecution due to being married to a Christian "must fail" because: '... the Iranian authorities would remain unaware that he has married a Christian, and therefore no adverse inferences about him might be drawn as a result of such a marriage.'
Case: Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347
Outcome: referred to
In my view, the appellant was served with the bankruptcy notice and the petition by being given each of those documents. There was clear evidence to that effect. The appellant acknowledged that. There is no requirement that such documents at the time of service not be in a 'closed' or sealed envelope. The appellant pointed to no provision of the Act or of the Bankruptcy Regulations 1996 to support his contention, nor to any authority which does so. The service provisions under the Act are generally construed strictly: see, e.g. Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347. That reflects the need for certainty about if and when an act of bankruptcy has been committed, and the significance of a sequestration order. 23 There is no specific provision as to how service of a bankruptcy notice must be effected. Bankruptcy Regulation 16.01(1) provides a range of service options including personal service, and reg 16.01(b) then provides that personal service is effected when the document is delivered. There is no doubt the bankruptcy notice was delivered to the appellant. 24 As a Court process, service of the petition is governed by the relevant Court Rules. Rule 31.05 of the Federal Magistrates Court Rules required the petition to be served personally by giving a copy to the appellant: Rules 6.06(1) and 6.07(1) of the Federal Magistrates Court Rules. That was complied with.
Case: Martin v Commonwealth Bank of Australia (2001) 217 ALR 634
Outcome: cited
The review application required a rehearing de novo of the petition: see s 104 of the FM Act. Under s 35A of the Federal Court of Australia Act 1976 (Cth), the review hearing therefore required the respondents to prove the various matters which they were also required to prove before the Registrar, including those specified in s 52(1) of the Act: see e.g. Martin v Commonwealth Bank of Australia (2001) 217 ALR 634; Meehan v Alfaro [1999] FCA 832 ; (1999) 93 FCR 201. The same approach applies under s 104 of the FM Act. There is no material difference in the two provisions. That approach has been adopted in the Federal Magistrates Court: see Adelaide Bank Ltd v Badcock [2002] FMCA 10 ; Clancy v Robinson [2002] FMCA 47.
Case: Meehan v Alfaro [1999] FCA 832 ; (1999) 93 FCR 201
Outcome: cited
The review application required a rehearing de novo of the petition: see s 104 of the FM Act. Under s 35A of the Federal Court of Australia Act 1976 (Cth), the review hearing therefore required the respondents to prove the various matters which they were also required to prove before the Registrar, including those specified in s 52(1) of the Act: see e.g. Martin v Commonwealth Bank of Australia (2001) 217 ALR 634; Meehan v Alfaro [1999] FCA 832 ; (1999) 93 FCR 201. The same approach applies under s 104 of the FM Act. There is no material difference in the two provisions. That approach has been adopted in the Federal Magistrates Court: see Adelaide Bank Ltd v Badcock [2002] FMCA 10 ; Clancy v Robinson [2002] FMCA 47.
Case: Adelaide Bank Ltd v Badcock [2002] FMCA 10
Outcome: cited
The review application required a rehearing de novo of the petition: see s 104 of the FM Act. Under s 35A of the Federal Court of Australia Act 1976 (Cth), the review hearing therefore required the respondents to prove the various matters which they were also required to prove before the Registrar, including those specified in s 52(1) of the Act: see e.g. Martin v Commonwealth Bank of Australia (2001) 217 ALR 634; Meehan v Alfaro [1999] FCA 832 ; (1999) 93 FCR 201. The same approach applies under s 104 of the FM Act. There is no material difference in the two provisions. That approach has been adopted in the Federal Magistrates Court: see Adelaide Bank Ltd v Badcock [2002] FMCA 10 ; Clancy v Robinson [2002] FMCA 47.
Case: Clancy v Robinson [2002] FMCA 47
Outcome: cited
The review application required a rehearing de novo of the petition: see s 104 of the FM Act. Under s 35A of the Federal Court of Australia Act 1976 (Cth), the review hearing therefore required the respondents to prove the various matters which they were also required to prove before the Registrar, including those specified in s 52(1) of the Act: see e.g. Martin v Commonwealth Bank of Australia (2001) 217 ALR 634; Meehan v Alfaro [1999] FCA 832 ; (1999) 93 FCR 201. The same approach applies under s 104 of the FM Act. There is no material difference in the two provisions. That approach has been adopted in the Federal Magistrates Court: see Adelaide Bank Ltd v Badcock [2002] FMCA 10 ; Clancy v Robinson [2002] FMCA 47.
Case: Johnson v Johnson [2000] HCA 48 ; (2000) 201 CLR 488
Outcome: referred to
The right to be heard is an important element of our system of justice. So too is the need for justice to be administered openly in the presence of the parties. The 'commencement' of the Court on 13 May 2005 was a little early and the appellant's arrival shortly afterwards understandably gave him cause for concern. However, as the material referred to above shows, the hearing of the review application had not commenced precisely because the appellant was not present and the time for its commencement had not been reached. The transcript reveals that. The appellant attended very shortly afterwards. I do not consider, in the circumstances, those events might reasonably cause a fair-minded lay observer to apprehend that the Magistrate might not bring an impartial and unprejudiced mind to the resolution of the review application: see Johnson v Johnson [2000] HCA 48 ; (2000) 201 CLR 488 at 492; Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at 344.
Case: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337
Outcome: referred to
The right to be heard is an important element of our system of justice. So too is the need for justice to be administered openly in the presence of the parties. The 'commencement' of the Court on 13 May 2005 was a little early and the appellant's arrival shortly afterwards understandably gave him cause for concern. However, as the material referred to above shows, the hearing of the review application had not commenced precisely because the appellant was not present and the time for its commencement had not been reached. The transcript reveals that. The appellant attended very shortly afterwards. I do not consider, in the circumstances, those events might reasonably cause a fair-minded lay observer to apprehend that the Magistrate might not bring an impartial and unprejudiced mind to the resolution of the review application: see Johnson v Johnson [2000] HCA 48 ; (2000) 201 CLR 488 at 492; Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at 344.
Case: GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No.3) (1990) 20 NSWLR 15
Outcome: cited
Section 27 of the Evidence Act provides that a party may question any witness, except as provided by the Evidence Act . It is unclear that the common law position that there is no right of cross-examination (see e.g. per Young J in Eq in GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No.3) (1990) 20 NSWLR 15 at 22) survives that provision. The practical outcome may be the same. Improper questioning may be disallowed: s 41. More importantly, s 11 of the Evidence Act preserves the power of a court to control the conduct of a proceeding, including with respect to abuse of its process. It is by the exercise of such a power that, in this instance, cross-examination of the process servers could have been precluded. It could have served no useful purpose, and would have added to the expense and length of the hearing for no valid reason. Similarly, the foundation for the costs judgment was a matter of record. There was clearly an act of bankruptcy committed by the appellant when he failed to comply with the bankruptcy notice based on the costs judgment. Cross-examination on the review application to endeavour to show that Lander J ought not to have made the orders in the earlier proceedings upon which the costs judgment was based would also have been pointless, and a waste of time and expense. See also Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd [1998] NSWSC 293.
Case: Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd [1998] NSWSC 293
Outcome: referred to
Section 27 of the Evidence Act provides that a party may question any witness, except as provided by the Evidence Act . It is unclear that the common law position that there is no right of cross-examination (see e.g. per Young J in Eq in GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No.3) (1990) 20 NSWLR 15 at 22) survives that provision. The practical outcome may be the same. Improper questioning may be disallowed: s 41. More importantly, s 11 of the Evidence Act preserves the power of a court to control the conduct of a proceeding, including with respect to abuse of its process. It is by the exercise of such a power that, in this instance, cross-examination of the process servers could have been precluded. It could have served no useful purpose, and would have added to the expense and length of the hearing for no valid reason. Similarly, the foundation for the costs judgment was a matter of record. There was clearly an act of bankruptcy committed by the appellant when he failed to comply with the bankruptcy notice based on the costs judgment. Cross-examination on the review application to endeavour to show that Lander J ought not to have made the orders in the earlier proceedings upon which the costs judgment was based would also have been pointless, and a waste of time and expense. See also Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd [1998] NSWSC 293.
Case: Browne v Dunn (1893) 6 R 67
Outcome: referred to
On the substantive issues raised in the review application under s 52(2) of the Act, it was a matter for the respondents as to whether they sought to cross-examine the appellant on his affidavits. They did not do so. The respondent's affidavits which preceded 30 March 2005 put the appellant on notice as to their case, and gave him the opportunity to respond. The judgment was made that the rule in Browne v Dunn (1893) 6 R 67 had been satisfied. The appellant has made no submission of unfairness in that regard. 78 The appellant's wish to cross-examine, in particular Ms Langford and the second respondent, related directly to the issue of solvency. To a significant degree, the learned Magistrate in fact avoided addressing contentious factual issues: he expressly assumed in favour of the appellant that the 212 shares in Manna Hill were the appellant's shares; he also disregarded the costs liability arising from the costs order following the outcome of the earlier proceedings. 79 The assessment of the appellant's debts as being between $75,000 and $100,000 was made, as the reasons for judgment show, upon the basis of the Statement of Affairs and the appellant's evidence (as distinct from his submissions) about that. The O'Riley 'debt' was about $12,000, so the reduction from the debts listed in the Statement of Affairs having regard to the appellant's evidence was of the order of $32,000-7000. That did not involve any assessment of the respective claims of the appellant and Ms Langford as to the amount of his debt to her; the disputed evidence was referred to and the Magistrate simply observed that the indebtedness is somewhere between $15,000 (the appellant's figure) and $67,000 (Ms Langford's figure). The reasons do not suggest an amount greater than $15,000 was taken into account. The learned Magistrate has therefore, on that contested evidence, taken the view based upon the appellant's own material. In that circumstance, he did not deprive the appellant of a fair trial by not permitting the appellant to cross-examine Ms Langford. There was no benefit to the appellant in him doing so, as the cross-examination would have legitimately sought to have the Magistrate accept the fact as to the amount of the indebtedness which the Magistrate assumed in any event.
Case: Pepsi Seven-Up Bottlers Perth Pty Ltd v Commissioner of Taxation (1995) 62 FCR 289
Outcome: cited
Considering this evidence, I am not satisfied that 'Vessel's Final Accounts' or 'Final Accounts' are used exclusively, or even customarily, as terms of art. In light of this, I find that the expert evidence provides no special guidance to constructing the documents at issue in this case: see, e.g., Pepsi Seven-Up Bottlers Perth Pty Ltd v Commissioner of Taxation (1995) 62 FCR 289 at 296-297 per Hill J. Accordingly, I sustain the applicant's objection to Mr Swales's evidence and will exclude all of the expert testimony concerning the meaning of 'Vessel's Final Accounts' or 'Final Accounts'. 38 The applicant contends that the exchange of 3 August 1999 gave rise to a binding contract to compromise, for an amount of USD421,380.22, being Soufflet USA's claim for losses arising out of the delay in berthing and loading of the Panamax Star. In the applicant's submission, AWB's fax of that day is an offer and Soufflet N&eacute;goce's immediate reply is an acceptance.
Case: Osborn v McDermott [2001] VSCA 94 ; [1998] 3 VR 1
Outcome: cited
Before analysing the key documents, it will be helpful to review the distinction between accord and satisfaction and accord executory. Phillips JA (with whom Winneke P and Charles JA agreed) provides an excellent outline of the relevant principles in Osborn v McDermott [2001] VSCA 94 ; [1998] 3 VR 1 (" Osborn "). As Phillips JA explains, the fundamental distinction between accord executory and accord and satisfaction is that "the former does not operate to discharge existing rights and duties unless and until the accord is performed, whereas the latter operates as a discharge immediately the accord (or agreement) is achieved": Osborn at 7-8. Accord and satisfaction is the compromise of an existing cause of action in return for a promise while accord executory requires that something be done before the cause of action is compromised. 59 Somewhere between accord and satisfaction and accord executory "is the accord and conditional satisfaction, which exists where the compromise amounts to an existing and enforceable agreement between the parties for performance according to its tenor but which does not operate to discharge any existing cause of action unless and until there has been performance": Osborn at 10. Accord and conditional satisfaction would be reached if a creditor agreed to forebear from suit for 30 days and to discharge the cause of action if the debtor paid a compromise amount within that time: see Bartlett v Mouncey [1998] FCA 418.
Case: Bartlett v Mouncey [1998] FCA 418
Outcome: cited
Somewhere between accord and satisfaction and accord executory "is the accord and conditional satisfaction, which exists where the compromise amounts to an existing and enforceable agreement between the parties for performance according to its tenor but which does not operate to discharge any existing cause of action unless and until there has been performance": Osborn at 10. Accord and conditional satisfaction would be reached if a creditor agreed to forebear from suit for 30 days and to discharge the cause of action if the debtor paid a compromise amount within that time: see Bartlett v Mouncey [1998] FCA 418.
Case: Murphy v Timms [1987] 2 Qd R 550
Outcome: referred to
Forbearance is sometimes exchanged for security: see, e.g., Murphy v Timms [1987] 2 Qd R 550 at 551 per Kneipp J (with whom Vasta J agreed) and 556 per Connolly J (holding that forbearance to sue by a creditor at the express or implied request of a guarantor is sufficient consideration to support a guarantee). Also, forbearance might be consideration where quantum is uncertain. For example, a claimant might forbear to sue in exchange for an insurer accepting liability: see Newton v State Government Insurance Office (Qld) [1986] 1 Qd R 431 at 444-5 per McPherson J. In that situation, the insurer benefits by avoiding costly litigation while quantum is investigated and negotiated. This case is different. The applicant claims that AWB acknowledged both liability and quantum with respect to the damages claim. According to the applicant, AWB bound itself, without more, to pay the damages claim in full. If the applicant were correct, then, Soufflet USA would have exchanged its damages claim for AWB's unqualified promise to pay the exact same claim. This is inherently unlikely.