mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Lees v Repatriation Commission [2002] FCAFC 398 ; (2002) 125 FCR 331
Outcome: cited
The Tribunal was placed in a difficult situation by reason of the issue having been expressly adverted to only after the completion of the hearing in the way it was. However, the Tribunal, by implication, professed to be aware of s 7(1) and then went on to expressly consider that issue in the decision. In doing so, it held that there was no evidence in relation to it. That was not correct. To so hold was an error on a question of law within the meaning of s 44(1) of the Administrative Appeals Tribunal Act ( Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 355 (agreed with by Brennan J and Deane J); Lees v Repatriation Commission [2002] FCAFC 398 ; (2002) 125 FCR 331 at [21] [25]).
Case: Metwally v University of Wollongong [1985] HCA 28 ; (1985) 60 ALR 68
Outcome: cited
There is no evidence that enables a factual determination of whether or not it is unreasonable not to have raised the point earlier. Further, in Metwally v University of Wollongong [1985] HCA 28 ; (1985) 60 ALR 68 the High Court stated at [7] that: Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
Case: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589
Outcome: referred to
The applicant seeks leave to appeal from a decision of the Federal Magistrates Court, SZFMW v Minister for Immigration [2008] FMCA 1274 , in which Driver FM dismissed his application to review a decision of the Refugee Review Tribunal ('the Tribunal') handed down on 11 December 2003 ('the Tribunal decision') on the basis of Anshun estoppel. The Federal Magistrate's orders were interlocutory (rule 44.12(2) of the Federal Magistrates Court Rules 2001 (Cth)). The applicant therefore requires leave to appeal to this Court (ss 24(1)(d) and 24 (1A) of the Federal Court of Australia Act 1976 (Cth)). The first respondent opposes the application on the basis that Driver FM's judgment is not attended with sufficient doubt to warrant leave to appeal being granted and no substantial injustice would result if leave were not granted. 6 His Honour said that, while the issue was not raised in the earlier court proceedings, the principle of res judicata would still probably apply and that, even if it did not, there was no reason why the issue could not have been raised in the earlier legal proceedings. His Honour said that the applicant was simply seeking to take advantage of a recent Court decision that appeared to favour an argument that could have been raised previously. In his Honour's view, the circumstances gave rise to an estoppel in accordance with the principles in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 and Wong v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 51 ; (2004) 146 FCR 10. His Honour said at [5]: ' Applicants cannot continue to agitate concluded litigation when new court decisions are made that appear to be to their advantage ' and dismissed the application. 11 The applicant, who appears in person assisted by an interpreter, was unable to point to any error in Driver FM's decision to dismiss the application on the basis of Anshun estoppel. He reiterates the difficulties with his previous legal representatives and relies upon his lack of appreciation of what could have been advanced before Smith FM. 12 There is no evidence of whether the applicant or his legal advisers were or were not aware of the possibility of reliance upon s 441G of the Act at any time prior to the decision of SZIZO . Even if that section could apply in the present case, a later change to the law does not affect the fact that no jurisdictional error was found in the Tribunal's decision. In Wong the Full Court of the Federal Court applied Anshun in the context of judicial review of administrative action. The Full Court stated at [37] that: In essence, where the issue was so relevant to the subject matter of the earlier action that it would be unreasonable not to have raised it at that time, it is an abuse of process to endeavour to raise that issue for the first time in a subsequent proceeding between the parties.
Case: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 ; (2007) 232 CLR 189
Outcome: considered
Contrary to the assertion by the applicant, the failure to raise s 441G of the Act earlier and the fact that the applicant's solicitors failed to appreciate that the applicant may have had an argument under s 441G of the Act does not constitute fraud on the Tribunal within the meaning of SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 ; (2007) 232 CLR 189 ; see also Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 171 ; (2008) 245 ALR 501. 16 In any event, the Minister submits that the grant of leave to appeal is futile. He points out that s 441A(4)(c)(ii) of the Act provides that the Tribunal may give a document to a person by posting it to the last residential or business address provided by the recipient in connection with the review. The Minister says that the postal address disclosed in correspondence satisfies the requirements of that section. On that basis no breach of s 441G of the Act could be made out as the Tribunal sent the correspondence to the authorised recipient at the postal address disclosed in correspondence between the authorised recipient and the Tribunal in respect of the review of the applicant's application.
Case: SZIZO v Minister for Immigration and Citizenship [2008] FCAFC 122 ; (2008) 102 ALD 541
Outcome: referred to
Second, Driver FM noted that the applicant sought to take advantage of a recent decision of the Full Court of the Federal Court in SZIZO v Minister for Immigration and Citizenship [2008] FCAFC 122 ; (2008) 102 ALD 541 concerning s 441G of the Act. His Honour noted at [5] that the Court documents disclosed: ... an arguable case in that, while the Tribunal appears to have corresponded with the applicant's authorised recipient at the postal address of the authorised recipient disclosed in correspondence, the Tribunal has apparently not corresponded with the authorised recipient at the office address stipulated in section C of the review application completed by the applicant. 12 There is no evidence of whether the applicant or his legal advisers were or were not aware of the possibility of reliance upon s 441G of the Act at any time prior to the decision of SZIZO . Even if that section could apply in the present case, a later change to the law does not affect the fact that no jurisdictional error was found in the Tribunal's decision. In Wong the Full Court of the Federal Court applied Anshun in the context of judicial review of administrative action. The Full Court stated at [37] that: In essence, where the issue was so relevant to the subject matter of the earlier action that it would be unreasonable not to have raised it at that time, it is an abuse of process to endeavour to raise that issue for the first time in a subsequent proceeding between the parties. 17 In SZKNX v Minister for Immigration and Citizenship (2008) 104 ALD 475 the Full Court of this Court considered the meaning of notification for the purposes of s 477 of the Act. The Full Court concluded that notification occurred when an applicant has physical possession of a decision by any means. It is reasonable to infer that the applicant was in possession of the Tribunal decision at least by the time he filed his application for special leave to the High Court on 20 September 2006. The applicant submits that the time runs from the date of the decision in SZIZO . That is clearly not correct. The application to Driver FM was made out of time.
Case: SZKNX v Minister for Immigration and Citizenship (2008) 104 ALD 475
Outcome: referred to
In SZKNX v Minister for Immigration and Citizenship (2008) 104 ALD 475 the Full Court of this Court considered the meaning of notification for the purposes of s 477 of the Act. The Full Court concluded that notification occurred when an applicant has physical possession of a decision by any means. It is reasonable to infer that the applicant was in possession of the Tribunal decision at least by the time he filed his application for special leave to the High Court on 20 September 2006. The applicant submits that the time runs from the date of the decision in SZIZO . That is clearly not correct. The application to Driver FM was made out of time.
Case: Wong v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 51 ; (2004) 146 FCR 10
Outcome: considered
His Honour said that, while the issue was not raised in the earlier court proceedings, the principle of res judicata would still probably apply and that, even if it did not, there was no reason why the issue could not have been raised in the earlier legal proceedings. His Honour said that the applicant was simply seeking to take advantage of a recent Court decision that appeared to favour an argument that could have been raised previously. In his Honour's view, the circumstances gave rise to an estoppel in accordance with the principles in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 and Wong v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 51 ; (2004) 146 FCR 10. His Honour said at [5]: ' Applicants cannot continue to agitate concluded litigation when new court decisions are made that appear to be to their advantage ' and dismissed the application. 12 There is no evidence of whether the applicant or his legal advisers were or were not aware of the possibility of reliance upon s 441G of the Act at any time prior to the decision of SZIZO . Even if that section could apply in the present case, a later change to the law does not affect the fact that no jurisdictional error was found in the Tribunal's decision. In Wong the Full Court of the Federal Court applied Anshun in the context of judicial review of administrative action. The Full Court stated at [37] that: In essence, where the issue was so relevant to the subject matter of the earlier action that it would be unreasonable not to have raised it at that time, it is an abuse of process to endeavour to raise that issue for the first time in a subsequent proceeding between the parties. 14 The Full Court in Wong commented at [38] that where there are special circumstances that prevail to permit a party to raise an issue in a subsequent proceeding, the Court has a discretion, if it determines that "special circumstances" exist, to allow an issue to be raised even where it is found that the point was unreasonably omitted from the earlier proceeding. The applicant does not advance any special circumstances beyond the fact that the argument was not put.
Case: Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1 ; (2000) 74 ALJR 405
Outcome: cited
The findings which the Tribunal made were reasonably open to the Tribunal. It is not the role of the Federal Magistrates Court, and much less is it the role of this Court, to make value judgments as to the factual merits of a claim for a protection visa, or in respect of the credibility of the applicant for such a visa. A principled restraint is called for on the part of those exercising judicial power in relation to such matters in these types of cases. Credibility findings are, in the ordinary course, findings of fact par excellence: see Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1 ; (2000) 74 ALJR 405. 17 Again, it is evident from the Federal Magistrate's reasons for judgment that his Honour adopted just such an approach. Further, like his Honour, I do not apprehend from the Tribunal's reasons any error on its part in applying the so-called "real chance" test. In this regard, it suffices for me to endorse, respectfully, the observations made by the learned Federal Magistrate at para 20 of his reasons for judgment. On the findings which the Tribunal made, it was quite reasonably open to conclude that the Appellant did not face a real chance of persecution were he to be returned to the Peoples Republic of China.
Case: SZKLK v Minister For Immigration [2008] FCA 1125
Outcome: cited
In SZKLK v Minister For Immigration [2008] FCA 1125 , I had occasion to review various authorities touching upon the administrative law error ground of bias. I shall not repeat what is there stated. One way in which a claim for bias might be made out, in a way which intersects with unreasonableness, is that stated in the passage which I have quoted from in NADH of 2001 . That basis is not made out here. The conclusions reached by the Tribunal are objectively able to be seen as referable to logical consequences of credibility findings reasonably open to the Tribunal. There is not a scintilla of evidence which would support a conclusion of actual bias on the part of the Tribunal. However one approaches the case, the result is nothing more than a consequence of conclusions the Tribunal reached in light of inconsistencies that it found. That result is undoubtedly disappointing to the Appellant, but again, I remind myself that it is no part of my role to descend into the merits of whether the claim should be accepted. There is no error, in my opinion, in the Federal Magistrates rejection of ground 3.
Case: SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 ; (2008) 247 ALR 451
Outcome: cited
Though this was not advanced as a ground of appeal, the Minister very properly drew my attention to a recent decision of a Full Court, SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 ; (2008) 247 ALR 451 , which had considered the meaning and application of s 91R. In that case, the Full Court construed s 91R(3) as capable of sensible application, only once primary findings of fact have been made. In other words, conduct must first be shown to have taken place before it could be disregarded. It is evident from the passage which I have quoted from the Tribunal's reasons that conduct, namely attendance at church in Australia, was found. The Tribunal was entitled to make the finding that it did concerning the motivation for that attendance. 21 Further, the Tribunal was obliged, having made its findings, to disregard the attendance, and whatever ramifications it may have had in relation to a claim for a protection visa, in light of s 91R(3). The Tribunal's reasons do not disclose any error of the kind highlighted in SZJGV . 22 For these reasons then, the appeal must be dismissed. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 13 November 2008 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondents: Mr Shariff Solicitor for the Respondents: Clayton Utz Date of Hearing: 10 November 2008 Date of Judgment: 10 November 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1692.html
Case: Nathan v Capital Finance Australian Ltd [2007] FMCA 1503
Outcome: affirmed
appellant, Mr Kailai Nathan, appeals from a judgment of Burchardt FM, in which his Honour dismissed Mr Nathan's claims concerning alleged contraventions of ss 52 and 60 of the Trade Practices Act 1974 (Cth) ("the Act "); see Nathan v Capital Finance Australia Ltd [2007] FMCA 1503. Mr Nathan's amended statement of claim in the proceeding below traversed many issues, however his Honour struck out all aspects of it other than those concerning ss 52 and 60 of the Act . In his reasons for judgment, Burchardt FM said at [10]: "I did ... make it clear that the trial would be restricted to the issues involving alleged contraventions of s 52 and s 60 of the Act ." The aspects of the amended statement of claim dealing with other issues were the subject of interlocutory decisions of the primary judge in respect of which Mr Nathan did not seek leave to appeal. The events the subject of the claim under s 52 of the Act occurred in May 2001. Mr Nathan's case was essentially as follows: &#8226; on 24 May 2001 he visited the premises of James Lane Motors in Coburg; &#8226; at that time he was employed as a casual psychiatric nurse by a nursing agency; &#8226; he spoke to a Mr Gavin Fernandez at James Lane Motors about purchasing a motor vehicle; &#8226; on 28 May 2001, he returned to James Lane Motors and spoke to a Mr Cameron McCredie; and &#8226; Mr McCredie told him that the loan arrangement for the purchase of the vehicle included "loan protection cover" for the monthly payments. The respondent's case on the s 52 issue was essentially as follows: &#8226; Mr Nathan might be confused about loan protection insurance on the car because he had taken out a personal loan with the respondent in September 2001 which included a sickness, accidental injury or involuntary unemployment insurance policy, as part of that personal loan; &#8226; no such loan protection cover was included in the car loan or any representation made to that effect; &#8226; it is not possible to obtain such insurance cover in favour of a debtor; and &#8226; if such a representation was made by Mr McCredie, he was not authorised to do so by the respondent.
Case: Fox v Percy [2003] HCA 22 ; (2003) 214 CLR 118
Outcome: applied
findings of fact, referred to above, on the s 52 issue were strong and decisive ones, aided by the primary judge's observations of the evidence given by Mr Nathan and by Mr McCredie. Grounds one, three and seven of the notice of appeal dealing with the s 52 issue challenge certain findings of fact made by the primary judge. Those findings include his Honour's categorisation of Mr Nathan as an unimpressive witness with a propensity not to tell the truth. Those are not matters on which this Court is any better placed than the court below to assess, nor is a review of the factual findings the Federal Magistrate made a proper exercise of the appellate jurisdiction of this Court; see Fox v Percy [2003] HCA 22 ; (2003) 214 CLR 118 at 125-126 per Gleeson CJ, Gummow and Kirby JJ. The only substantive legal challenge to the s 52 aspect of the case as dealt with below is the allegation in ground two of the notice of appeal that Mr Nathan was denied natural justice by his Honour's alleged failure to give proper effect to s 52. That ground is related to ground eight which alleges that the primary judge failed to consider whether the alleged representation induced Mr Nathan into error. Those grounds are untenable. Section 52 precludes a corporation, in trade or commerce, from engaging in conduct that is misleading or deceptive or is likely to mislead or deceive. His Honour found that no such conduct occurred. That finding was open to him on the evidence before him. No appealable error has been identified on this aspect of the appeal. Ground five of the notice of appeal contains the allegation that the primary judge erred in his approach to the allegations of harassment and coercion made under s 60 of the Act . Section 60 of the Act provides: A corporation shall not use physical force or undue harassment or coercion in connection with the supply or possible supply of goods or services to a consumer or the payment for goods or services by a consumer . On the topic of the alleged breach of s 60 by the respondent, the primary judge said at [69]: It only remains now to deal with the issue of harassment asserted by Mr Nathan. The endeavours made by the Respondent to repossess the car and to otherwise pursue legal avenues against Mr Nathan were all, in my view, entirely reasonable and do not begin to approach what might be said to be harassment within the meaning of s 60 of the Act .
Case: O'Sullivan v Parkin [2007] FCAFC 98
Outcome: considered
the primary judge published his reasons for judgment on 10 September 2007 he did not make any orders. The current appeal was, to that extent, premature; see O'Sullivan v Parkin [2007] FCAFC 98. No orders were made until 18 September 2007 when his Honour dismissed the application and ordered costs against Mr Nathan on an indemnity basis. Mr Nathan has not sought to appeal from the judgment which contained the operative orders in respect of which he seeks relief. However, despite this, I have dealt with his appeal as if the judgment of 10 September 2007 contained an order dismissing his application. This is the most practical commonsense way of dealing with the controversy between the parties, especially as Mr Nathan does not have the benefit of legal representation. It is also necessary to deal with the remaining grounds of appeal enumerated in Mr Nathan's notice of appeal. Ground four contains a new allegation of bias against the primary judge and has not been substantiated by Mr Nathan. The allegation concerned a disclosure made by his Honour of a shareholding in the parent company of the respondent. Mr Nathan conceded that he did not raise any issue of bias at the time his Honour made the disclosure and therefore acquiesced in his Honour hearing the application. However, Mr Nathan referred in his oral submissions today to comments made in transcript by the Federal Magistrate at an interlocutory hearing. Those comments showed that the Federal Magistrate was keen to bring the proceeding to finality. That does not mean that he was biased in any way against Mr Nathan or that there exists any basis for a reasonable apprehension of bias against his Honour. Ground six is: "Did the learned Federal Magistrate err in law in assuming the terms of the Loan Protection insurance in the absence of the policy itself...". This ground is based on an incorrect premise that the primary judge assumed the terms of an agreement when it was proved that no such agreement existed. That ground also fails. The Court will order as follows: 1. The appeal is dismissed. 2. The appellant pay the respondent's costs of the appeal. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 8 April 2008 The Appellant appeared in person. Counsel for the Respondent: Ms G Gray Solicitor for the Respondent: Bartier Perry Date of Hearing: 8 April 2008 Date of Judgment: 8 April 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/459.html