mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Rocca v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 529
Outcome: referred to
Section 501(1) of the Act provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that he or she passes the character test. The character test is defined in s 501(6), it provides that a person does not pass the character test, inter alia, if the person is not of good character having regard to the person's past and present general conduct. Section 499 of the Act empowers the Minister to give written directions to decision-makers about how they are to exercise discretionary powers under the Act. Decision-makers are bound to comply with such directions. The Minister him or herself is not so bound when exercising powers personally: see Rocca v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 529 at 544 [57]. Decisions made by a delegate of the Minister under s 501(1) are reviewable by the Administrative Appeals Tribunal; decisions made personally by the Minister are not: see s 500(1). 15 Article 4 of the CAT provides that: "No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." 16 Article 6 of the ICCPR provides that: "Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrately deprived of his life." 32 Procedural fairness required that the applicant should be advised of any "critical point on which the decision would turn": see Rocca v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 529 at 540 [43]. He was also entitled to an opportunity to advance evidence and make submissions in relation to any prejudicial material before the Minister made her decision. In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, in a passage subsequently quoted with approval by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 at 600 [32] , a Full Court of this Court said (at 590-1) that: "It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material."
Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592
Outcome: referred to
Procedural fairness required that the applicant should be advised of any "critical point on which the decision would turn": see Rocca v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 529 at 540 [43]. He was also entitled to an opportunity to advance evidence and make submissions in relation to any prejudicial material before the Minister made her decision. In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, in a passage subsequently quoted with approval by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 at 600 [32] , a Full Court of this Court said (at 590-1) that: "It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material." 34 In my opinion, the procedures adopted by the department satisfied the requirements of procedural fairness in the present case. The invitation identified with clarity one of the crucial or relevant points on which the Minister's decision might turn. The applicant was afforded the opportunity, on two occasions, to make detailed submissions on the construction and application of the two treaties. Conflicting assessments by the departmental officer and the applicant's solicitor as to the proper characterisation of the level of risk to be confronted, should the applicant return to the Lebanon, were placed before the Minister. So too were submissions relating to the correct formulation of the relevant treaty obligations. They were incorporated in the issues paper. There was no requirement that the department's issues paper should be provided to the applicant before it was considered by the Minister: see M238 of 2002 v Ruddock [2003] FCAFC 260 at [54] . Furthermore, there was no requirement that the Minister's views on these matters, after she had considered the submissions and the issues paper, should be exposed to the applicant for further comment prior to a decision being made: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 at 603 [48] .
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
Federal Magistrate Nicholls concluded that the applicants were seeking to re-agitate before the Court claims and explanations made before the Tribunal, and thus were seeking impermissible merits review (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259). 33 With regard to the applicants' claim that the Tribunal's finding is "obviously illogical", Nicholls FM could not discern any illogicality in the approach of the Tribunal. Moreover, his Honour questioned whether any such claimed illogicality could found jurisdictional error.
Case: SZCOV &amp; Anor v Minister for Immigration and Citizenship &amp; Anor [2008] FMCA 1171
Outcome: affirmed
Federal Magistrate Nicholls said, at [34] of his reasons for judgment ( SZCOV &amp; Anor v Minister for Immigration and Citizenship &amp; Anor [2008] FMCA 1171): At the hearing, the applicant husband confirmed that his complaints about the Tribunal decision were that the Tribunal treated him unfairly and unreasonably, that it did not comply with s.424AA of the Act, nor with s.424A(1) of the Act, that the "decision was biased", and that the Tribunal did not take account of his practice of Falun Gong in Australia because of s.91R(3) of the Act, even though there was evidence provided by two witnesses who supported his claims in that regard.
Case: SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105
Outcome: cited
His Honour continued, under the heading "Further Written Submissions", at [35]: Following the hearing of this matter, and just before handing down judgement in this matter, the Full Federal Court handed down its judgement in SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 ("SZJGV") which dealt with the understanding and application of s.91R(3) of the Act. In view of the Tribunal's use and reliance on this section, I subsequently gave both parties the opportunity to make further written submissions. Both parties have filed supplementary submissions in relation to this issue. 31 In "Ground One Bias and Apprehended Bias" Nicholls FM concluded that the fact that the Tribunal rejected the applicant's claim to have supported Falun Gong in China was open to it, and was not demonstrative of bias, saying in [43]: The Tribunal's findings complained of now by the applicants were clearly findings that were open to the Tribunal to make on the material before it, and for which it gave extensive and cogent reasons. In all the circumstances, I cannot see that the applicants' complaint of an apprehension of bias or bias is made out. 37 The one aspect of this appeal which requires detailed consideration is whether the Tribunal was in breach of the requirement of s 91R(3) of the Act in its consideration of the evidence of the first appellant's practice of Falun Gong in Australia, in the light of the judgment of the Full Court of the Federal Court in SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 ( SZJGV ). 38 Section 91R(3) provides: (3) For the purposes of the application of this Act and the regulations to a particular person: (a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; disregard any conduct engaged in by the person in Australia unless: (b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
Case: Barrett Property Group Pty Ltd v Metricon Homes Pty Ltd [2007] FCA 1509
Outcome: cited
Barrett has recently successfully sued another home builder for copyright infringement in respect of the Seattle design: Barrett Property Group Pty Ltd v Metricon Homes Pty Ltd [2007] FCA 1509. In that case Gilmour J has comprehensively reviewed copyright law principles as applicable to home designs: see especially at [13]-[28]. I gratefully adopt that review and incorporate it in these reasons. 8 Barrett's Seattle design is Schedule A to these reasons. 9 Carlisle's Provence design is Schedule B to these reasons. 22 In Metricon subsistence of Barrett's copyright in the Seattle was not challenged. However, Gilmour J noted at [34]: The drawing process, as evidenced in (Barrett's) affidavit material, shows a substantial evolution in the design concept and implementation, which is clearly revealed in the sequence of drawings exhibited. There are approximately 130 drawings and notes that culminate in the final Seattle 31 plan, which Barrett approved in or about September 1999 . 23 Carlisle disputed that there were 130 drawings in evidence in the present case. My calculation accords with that of Gilmour J. There may well be some duplication, with the same drawing being reproduced by sender and receiver. But I am satisfied that the general conclusion reached by Gilmour J is equally justified in the present case. 24 By September 1999 Barrett was building the first prototype of the Seattle design at 10 Brownell Road, Glen Iris, as a home for Mr Roberts. About this time it commenced marketing, building and selling houses in accordance with the Seattle plan. The product was available in 22, 26 or 31 square versions. The first display home was built and opened at a display village located at 47 Scenic Drive, Beaconsfield in January 2000. 25 The Seattle design proved to be popular and sold very well. 81 In Metricon at [29]-[42] Gilmour J applied those principles and held that the al fresco quadrant was a substantial part of the Seattle and Memphis designs. I respectfully agree with his Honour's conclusion and reasoning, which I would have arrived at independently, for the following reasons. 84 In visual terms, Gilmour J at [40] described the impression presented by the al fresco as built: The layout of the Seattle 31 gave the impression of a free-flowing design, leading from the hallway to the hub of the home, with the al fresco quadrant, under one roof-line, being central to the design. The impression was reinforced by the open-plan kitchen that looked over the living and al fresco areas. The design allowed one to view into the rumpus room which enhanced the free-flowing design features of the Seattle 31 plan. These features were clearly based in a communal area of the plan, so as to optimise appreciation of the al fresco quadrant and surrounding living areas. Based on my impression, I would describe the al fresco quadrant as being substantial in a qualitative sense. That accords with my impression.
Case: Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336
Outcome: applied
Further, I am satisfied on the balance of probabilities, while having regard to the seriousness of such a finding (see Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336) , that Messrs Doulgeridis, Taylor and Morrison gave consciously untrue evidence when they said that the Rochester was mentioned at the Mallesons conference. It inevitably follows that they must have colluded in so doing. 76 Although I am not aware of any consideration in civil cases of the probative effect of lies, the probative logic remains the same (see Evidence Act 1995 (Cth) s 55(1)) , subject of course always to the application of a different standard of proof with the Briginshaw qualification. 77 In the present case, the most likely explanation for Messrs Doulgeridis, Taylor and Morrison telling lies about what was said at the Mallesons conference is that they realised that the failure to mention the Rochester would tend to show that Rochester was not the true source of their Provence design. If they invented an untrue source, the most likely explanation for that is that they knew the source alleged by Barrett was the true one. 78 The evidence points to the following conclusion, which I find. Mr Doulgeridis did copy the al fresco quadrant from Barrett's Seattle plan, which had been on the market for several years. Probably he did so without much thought and assumed, because the plan had been around for a while, that it was in the public domain, especially in Western Australia. When challenged, the Carlisle directors first raised the argument that the al fresco was commonplace and devoid of originality. The initial versions of the defence reflect this. When the directors were unable to produce any concrete examples of the design pre-dating the Streeton, they fell back on the Rochester argument. When faced with the difficulty that there was no record of mentioning the Rochester on the first opportunity to do so, they falsely claimed that they did. 79 As already mentioned, Carlisle's evidence of the alleged design history included three sketches, and in particular the sketch subsequently identified as Sketch C. The mere existence of the sketches does not rule out Mr Doulgeridis having produced them by copying the Seattle. Given the false Rochester story I am unable to be satisfied as to the truth of any positive case advanced by Carlisle as to the design history of the Provence.
Case: Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd (1999) 46 IPR 309
Outcome: applied
In Tamawood their Honours did not refer to the earlier Full Court decision in Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd (1999) 46 IPR 309. This appears to have been a "substantial part" case: see at [37]. In any event, the Full Court said at [28]: Further, in a case where there has been deliberate copying, the court will not look kindly on a defendant when the plaintiff seeks to establish that what has been copied is sufficiently objectively similar to the plaintiff's work. In Blackie &amp; Sons Ltd v The Lothian Book Publishing Co Pty Ltd [1921] HCA 27 ; (1921) 29 CLR 396 Starke J said at 404: It is not for the court to make the way of the taker of copyright matter easy. It is a sound principle of copyright law that the court should not allow one man to take away the result "of another man's labour, or, in other words, his property", unless it is satisfied that the part taken is "so slight, and the effect upon the total composition was so small", "as to render the taking perfectly immaterial", or what is much the same thing, that the part taken is an unsubstantial part. (Citations omitted.) See also S W Hart &amp; Co Pty Ltd v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466 at 484 where Wilson J referred with approval to the judgment of Street J in Ancher, Mortlock, Murray &amp; Woolley Pty Ltd v Hooker Homes Pty Ltd [1971] 2 NSWLR 278 where his Honour acknowledged that his finding of infringement had been coloured by the unmeritorious use made by the defendant of the plaintiff's work. 91 The Full Court in Clarendon later at [39] made it clear that a finding of deliberate copying was not conclusive. Objective similarity remains to be proved. Their Honours said: But copying can be both conscious and unconscious. When copying is deliberate then, so it seems, the Court is permitted to show greater latitude in the plaintiff's favour. We accept this approach should not be taken too far. In a given case there either is or is not sufficient objective similarity to make out infringement. It will only be when the trial judge regards the position as finely balanced that he should err in favour of the plaintiff if the conduct complained of is deliberate . I shall follow that approach.
Case: Eagle Homes Pty Ltd v Austec Homes Pty Ltd [1999] FCA 138 ; (1999) 43 IPR 1
Outcome: applied
A finding of subjective copying is relevant to the issue of sufficient similarity. In Eagle Homes Pty Ltd v Austec Homes Pty Ltd [1999] FCA 138 ; (1999) 43 IPR 1 Lindgren J, with whom Finkelstein J agreed, said at [86] that ...where subjective copying occurs there can be expected to be found an infringement, unless it transpires that that the product is so dissimilar to the copyright work that the copyright work can no longer be seen in the work produced. Subsequently in Tamawood Wilcox and Lindgren JJ at [46] somewhat qualified that view. Their Honours noted that the primary judge in the case before them had "expressed surprise" at the passage from Eagle . Their Honours said: Referring to an expectation, that statement allows for exceptions. Also it must be read in context. As stated earlier in the judgment (at [72]) Eagle was better regarded as a case of reproduction of the whole of the copyright work, so it was strictly not necessary to undertake the "substantial part" inquiry. Eagle was a case of subjective copying of the shapes and arrangement of, and interrelationship between rooms, and of traffic flow, throughout the house. The statement which surprised his Honour is akin to that of Lord Bingham in Designers Guild Ltd v Russell William (Textiles) Ltd [[2001] FSR 11 , [2000] UKHL 58 at 116, 117] ( Designers Guild ) that: ...[w]hile the finding of copying did not in theory conclude the issue of substantiality, on the facts here [ Designers Guild was also a case of overall similarity] it was almost bound to do so. It was acknowledged several times elsewhere in the judgment in Eagle (at [69], [74] and [103], for example) that subjective copying alone is not enough, and that where a part is taken it must be a substantial part of the copyright work. (Peterson J's aphorism, "what is worth copying is prima facie worth protecting", a statement made in University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601 at 610 in relation to the subsistence of copyright, was in fact invoked in the context of infringement and "substantial part" in Ladbroke by Lord Reid at 279 and by Lord Pearce at 293-294, but the House of Lords may be taken to have cautioned against this practice in Designers Guild ).
Case: Edwards v The Queen [1993] HCA 63 ; (1993) 178 CLR 193
Outcome: applied
In the criminal law there is extensive jurisprudence as to the evidentiary use that can be made of lies. The leading case is Edwards v The Queen [1993] HCA 63 ; (1993) 178 CLR 193. Deane, Dawson and Gaudron JJ, after noting that ordinarily the telling of a lie will merely affect the credit of the witness who tells it, said at 209: It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence for which he is charged. It must be for that reason that he tells the lie. To say that the lie must spring from the realization or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that "if he tells the truth, the truth will convict him". (Citations omitted.)
Case: Kipling v Genatosan Ltd [1917-1923] MacG Cop Cas 203
Outcome: referred to
First, in purely quantitative terms (which is relevant, although not of course conclusive), the al fresco quadrant is about a third of the total floor area. Less may be sufficient; a defendant who took four of the 32 lines of Rudyard Kipling's If in an advertisement for a "reviver of nerve power" was held to have taken a substantial part: Kipling v Genatosan Ltd [1917-1923] MacG Cop Cas 203. 83 More importantly, the al fresco quadrant is an essential part of the house, something that Le Corbusier characterised as "a machine for living in" ( Vers une architecture , 1923). Potential buyers would recognise the al fresco quadrant as a part of the house where they and their family would spend most of their waking hours. Thus the al fresco quadrant had a commercial significance, as the evidence demonstrated.
Case: Australian Iron &amp; Steel Limited v Hoogland [1962] HCA 13 ; (1962) 108 CLR 471
Outcome: followed
restriction in s 477A: ... imposes a condition which is of the essence of a new right (per Windeyer J in Australian Iron &amp; Steel Limited v Hoogland [1962] HCA 13 ; (1962) 108 CLR 471 at 488) and thus: ... stipulates an essential condition or jurisdictional requirement ... (per the High Court in Rudolphy v Lightfoot [1999] HCA 61 ; (1999) 197 CLR 500 at [9] and [10] (p 507)) for the Federal Court in respect of applications brought pursuant to s 476A of the Act. These propositions were expressly taken up and applied by Gleeson CJ and McHugh, Gummow and Heydon JJ in a joint judgment in WACB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 50 ; (2004) 210 ALR 190 at [32] and [33] (p 198); [2004] HCA 50 ; (2004) 79 ALJR 94 (p 100) where their Honours said: The restriction in s 478 is of a different character to that of typical statutes of limitation which operate to impose a limit of time upon an existing right of action. They operate to bar the prosecution of actions otherwise not subject to such a time limit. In that sense, statutes of limitation are preventative. However, s 478 does not "bar an existing cause of action"; rather, "[i]t imposes a condition which is of the essence of a new right". [ Australian Iron &amp; Steel Ltd v Hoogland [1962] HCA 13 ; (1962) 108 CLR 471 at 488; Rudolphy v Lightfoot [1999] HCA 61 ; (1999) 197 CLR 500 at 507 8 [10] [11]; [1999] HCA 61 ; 167 ALR 105 at 107.] Thus, s 478(1)(b) and (2) restrict what otherwise would be the conferral upon the Federal Court of jurisdiction by the parliament under ss 76(ii) and 77 (i) of the Constitution . The new jurisdiction so conferred is remedial in nature, although the remedy is confined by the time restriction upon the institution of the proceeding. The provision of information to the unsuccessful visa applicant by the RRT is a necessary step to equip the applicant with the wherewithal to institute such a proceeding in the Federal Court. Paragraph (a) of s 478(1) stipulates that an application to the Federal Court be made in the manner specified by the Rules. At the relevant time, those Rules [O 54B r 2(1)] required that an application be in accordance with form 56. This required the applicant to describe how he or she was aggrieved by the decision, the grounds for the application, and the orders sought. That information may be acquired for use in this way by an examination of the reasons of the RRT indicated in the written statement.