mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Luck [2003] HCA 70 ; (2003) 203 ALR 1
Outcome: applied
I do not consider that decision dictates that the decision of Lander J in the present matter was a final order so that no leave to appeal is necessary. That is because this proceeding, unlike the proceeding in Paramasivam , did not seek to enforce an existing alleged cause of action which had become statute barred by the elapse of time. In other words, there was no claimed legal right which Mr Ferdinands was seeking to enforce. His application was for an extension of time within which to apply for an order to show cause why the termination decision should not be set aside. It was necessary for him, even had he applied for such an order within time, to satisfy a Justice of the High Court (or if the matter were remitted to this Court, a judge of this Court) that it was appropriate for an order to show cause to be issued. Moreover, as McHugh ACJ, Gummow and Heydon JJ said in Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 at [4] : the usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them. That question is answered by determining whether the legal effect of the judgment is final or not. If the legal effect of the judgment is final, it is a final order; otherwise, it is an interlocutory order. (original emphasis, citations omitted)
Case: Bienstein v Bienstein [2003] HCA 7 ; (2003) 195 ALR 225
Outcome: applied
I do not consider that decision dictates that the decision of Lander J in the present matter was a final order so that no leave to appeal is necessary. That is because this proceeding, unlike the proceeding in Paramasivam , did not seek to enforce an existing alleged cause of action which had become statute barred by the elapse of time. In other words, there was no claimed legal right which Mr Ferdinands was seeking to enforce. His application was for an extension of time within which to apply for an order to show cause why the termination decision should not be set aside. It was necessary for him, even had he applied for such an order within time, to satisfy a Justice of the High Court (or if the matter were remitted to this Court, a judge of this Court) that it was appropriate for an order to show cause to be issued. Moreover, as McHugh ACJ, Gummow and Heydon JJ said in Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 at [4] : the usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them. That question is answered by determining whether the legal effect of the judgment is final or not. If the legal effect of the judgment is final, it is a final order; otherwise, it is an interlocutory order. (original emphasis, citations omitted) 7 Earlier in that decision their Honours referred with approval to the remarks of McHugh, Kirby and Callinan JJ in Bienstein v Bienstein [2003] HCA 7 ; (2003) 195 ALR 225 at 230 in the following way at [9]: An order is an interlocutory order, therefore, when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous, vexatious, an abuse of the process of the court or does not disclose a reasonable cause of action. See also Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423. The refusal of the application for extension of time within which to apply to show cause was interlocutory in nature as the legal effect of the judgment was not final. Further, Lander J dismissed the application on the basis that the application was, inter alia, an abuse of process and did not disclose a reasonable cause of action.
Case: Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423
Outcome: cited
Earlier in that decision their Honours referred with approval to the remarks of McHugh, Kirby and Callinan JJ in Bienstein v Bienstein [2003] HCA 7 ; (2003) 195 ALR 225 at 230 in the following way at [9]: An order is an interlocutory order, therefore, when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous, vexatious, an abuse of the process of the court or does not disclose a reasonable cause of action. See also Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423. The refusal of the application for extension of time within which to apply to show cause was interlocutory in nature as the legal effect of the judgment was not final. Further, Lander J dismissed the application on the basis that the application was, inter alia, an abuse of process and did not disclose a reasonable cause of action.
Case: Gallo v Dawson [1990] HCA 30 ; (1990) 93 ALR 479
Outcome: referred to
Mr Ferdinands also criticised the approach of Lander J in deciding whether there was an adequate explanation for the delay in making the primary application. His Honour properly identified the principles, as discussed by McHugh J in Gallo v Dawson [1990] HCA 30 ; (1990) 93 ALR 479 at 480. In my view, nothing was identified to suggest that his Honour has misunderstood or misapplied them. He recognised the disadvantage applicable to Mr Ferdinands by reason of his impecuniosity and by reason of his need to be self-represented.
Case: Brock v United States of America [2007] FCAFC 3 ; (2007) 157 FCR 121
Outcome: cited
21(1) relevantly provides that within 15 days of the magistrate's determination of eligibility under subs 19(9) of the Act, a person may apply to this Court 'for a review of the order'. The review is by way of rehearing, rather than the more restricted function the Court exercises when engaging in judicial review in the strict sense: see Brock v United States of America [2007] FCAFC 3 ; (2007) 157 FCR 121 per Black CJ at [20] [31], Jacobson J at [45] [47] and Rares J at [73] [90]. Subsection 21(2) relevantly provides that the Court may, by order, either confirm the order of the magistrate, or quash the order and direct a magistrate to order the release of the person. Pursuant to subs 21(6)(d), the court to which the application is made shall have regard only to the material that was before the magistrate.
Case: Harris v Attorney-General (Cth) (1994) 52 FCR 386
Outcome: cited
was common ground that what is required is not complete identicality of offences, but in substance, duality of criminality: Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 411; Holt v Hogan (No 2) [1993] FCA 543 ; (1993) 46 FCR 145 at 149 151 per Lee J. The issue is whether the conduct or the equivalent conduct referred to in the subs 19(3)(c)(ii) authenticated statement, if committed in New South Wales, would be a criminal offence with a maximum sentence of imprisonment of at least 12 months: United States v Holt [1994] FCA 1115 ; (1994) 49 FCR 501 at 504; Zoeller v Republic of Germany (1989) 23 FCR 282 at 297 and 299 300.
Case: Holt v Hogan (No 2) [1993] FCA 543 ; (1993) 46 FCR 145
Outcome: cited
was common ground that what is required is not complete identicality of offences, but in substance, duality of criminality: Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 411; Holt v Hogan (No 2) [1993] FCA 543 ; (1993) 46 FCR 145 at 149 151 per Lee J. The issue is whether the conduct or the equivalent conduct referred to in the subs 19(3)(c)(ii) authenticated statement, if committed in New South Wales, would be a criminal offence with a maximum sentence of imprisonment of at least 12 months: United States v Holt [1994] FCA 1115 ; (1994) 49 FCR 501 at 504; Zoeller v Republic of Germany (1989) 23 FCR 282 at 297 and 299 300.
Case: United States v Holt [1994] FCA 1115 ; (1994) 49 FCR 501
Outcome: cited
was common ground that what is required is not complete identicality of offences, but in substance, duality of criminality: Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 411; Holt v Hogan (No 2) [1993] FCA 543 ; (1993) 46 FCR 145 at 149 151 per Lee J. The issue is whether the conduct or the equivalent conduct referred to in the subs 19(3)(c)(ii) authenticated statement, if committed in New South Wales, would be a criminal offence with a maximum sentence of imprisonment of at least 12 months: United States v Holt [1994] FCA 1115 ; (1994) 49 FCR 501 at 504; Zoeller v Republic of Germany (1989) 23 FCR 282 at 297 and 299 300.
Case: Zoeller v Republic of Germany (1989) 23 FCR 282
Outcome: cited
was common ground that what is required is not complete identicality of offences, but in substance, duality of criminality: Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 411; Holt v Hogan (No 2) [1993] FCA 543 ; (1993) 46 FCR 145 at 149 151 per Lee J. The issue is whether the conduct or the equivalent conduct referred to in the subs 19(3)(c)(ii) authenticated statement, if committed in New South Wales, would be a criminal offence with a maximum sentence of imprisonment of at least 12 months: United States v Holt [1994] FCA 1115 ; (1994) 49 FCR 501 at 504; Zoeller v Republic of Germany (1989) 23 FCR 282 at 297 and 299 300.
Case: Xiang v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 64
Outcome: referred to
The appellant noted the Federal Magistrate's comment (at [16]) that it was not clear that any error would have affected the MRT's decision because the appellant was required to continue to satisfy the requirements of the visa at the time of decision. Referring to Xiang v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 64 (" Xiang "), the appellant submitted that his Honour was in error in this regard. 14 In support of her second ground of appeal, the appellant argued that the MRT wrongly failed to have regard to the subjective aspect of the relevant regulation. Counsel cited Biyiksiz v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 814 (" Biyiksiz ") and Xiang . In Biyiksiz , Gray J held (at [20]) that "the words 'cannot reasonably be obtained' must be construed by reference to the reasonableness from the point of view of the person requiring assistance, and not only by reference to the reasonable availability of the assistance from other sources." The appellant submitted that the MRT and the learned Federal Magistrate erred by failing to consider whether other sources of assistance were reasonably available from the point of view of the nominator. 18 First, I reject the appellant's submission that the MRT failed to have regard to the subjective element of the regulation. In particular, fairly read, the MRT's decision is consistent with the reasoning of Gray J in Biyiksiz and the Full Court's decision in Xiang . 21 The facts of this case can be distinguished from those in Biyiksiz and there is nothing in Xiang that would suggest error here. In this case, the MRT focussed on the availability of assistance from other family members. Importantly, the MRT noted that, at the time of application, the nominator was living with one of her other children and other children lived nearby. The appellant did not hold a driver's licence and thus another child transported the nominator by car. Also, one of the nominator's other daughters had recently sponsored him for an aged parent visa. In these circumstances, it was plainly open to the MRT not to be satisfied that the requisite assistance could not reasonably be obtained from one or more of his other children in Australia or public services.
Case: Truong v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 1035
Outcome: referred to
The first respondent submitted that, contrary to the appellant's submission, the appellant had to make out both grounds of appeal in order to have the MRT's decision set aside. Referring to Truong v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 1035 , the first respondent submitted that it was legitimate for the MRT to take into account evidence of events subsequent to the time of application if that evidence is probative of the relevant facts at the earlier time. The first respondent argued that, even if such evidence were not relevant, the MRT's error would, at most, be an error of fact. The first respondent also submitted that it was open to the MRT to regard the appellant's subsequent employment as relevant to her ability to provide continuing as well as substantial assistance as at the date of application. Further, the first respondent contended that, when regard was had to the context of the contested findings, it was clear that the MRT was referring to the correct date, which was the date of application. 16 With respect to the second ground of appeal, the first respondent submitted that there is no indication that the MRT did not consider the "reasonable obtainability" of assistance by the nominator as opposed to the "reasonable availability" of such assistance. Further, the MRT's conclusion was plainly open to it on the factual findings that it had made. 23 Further, I reject the appellant's submission that the MRT relevantly erred when it relied on her subsequent employment history as probative, as at the date of application, of a need to work and her ability to provide the requisite continuing (and substantial) assistance. There is no reason why subsequent events cannot shed light on the circumstances as they existed at an earlier time. For example, "medical reports, later in time to earlier medical reports concerning the same person, may serve the evidentiary function of establishing the pre-existence of illnesses, disabilities or other physical or metaphysical conditions, for which there may or may not have been symptoms already manifest at the time of earlier reports": Koulaxazov v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 75 at [38] per Conti J; also Truong at [40] per Weinberg J. Moreover, a logical error in reasoning does not amount to jurisdictional error: see, e.g., VWST v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 286 at [14] - [18] per Kiefel, Marshall and Downes JJ. I find that the MRT made no logical or legal error when it considered subsequent events as probative of earlier facts.
Case: Zahid v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 670
Outcome: referred to
In order to succeed on this appeal, the appellant must succeed on both the grounds that she advanced. This is because the appellant must satisfy each requirement of the visa to be eligible: see, e.g, Zahid v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 670 at [29] per Sackville J.
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: referred to
It would be wrong to find error simply because the MRT failed to note explicitly that it was not just considering whether other sources of assistance were available but was directing its attention to whether the nominator could reasonably obtain such assistance. A reviewing court should not read the MRT's decision overly finely with an eye attuned to the perception of error: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272 and 291 per Kirby J. Taking the reasons as a whole, there are no grounds to conclude that the MRT failed to address the correct question when it considered whether other forms of assistance could be reasonably obtained by the nominator. In fact, it is clear that the MRT did address the correct question and made its finding consonant with it.
Case: Koulaxazov v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 75
Outcome: referred to
Further, I reject the appellant's submission that the MRT relevantly erred when it relied on her subsequent employment history as probative, as at the date of application, of a need to work and her ability to provide the requisite continuing (and substantial) assistance. There is no reason why subsequent events cannot shed light on the circumstances as they existed at an earlier time. For example, "medical reports, later in time to earlier medical reports concerning the same person, may serve the evidentiary function of establishing the pre-existence of illnesses, disabilities or other physical or metaphysical conditions, for which there may or may not have been symptoms already manifest at the time of earlier reports": Koulaxazov v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 75 at [38] per Conti J; also Truong at [40] per Weinberg J. Moreover, a logical error in reasoning does not amount to jurisdictional error: see, e.g., VWST v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 286 at [14] - [18] per Kiefel, Marshall and Downes JJ. I find that the MRT made no logical or legal error when it considered subsequent events as probative of earlier facts.
Case: VWST v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 286
Outcome: referred to
Further, I reject the appellant's submission that the MRT relevantly erred when it relied on her subsequent employment history as probative, as at the date of application, of a need to work and her ability to provide the requisite continuing (and substantial) assistance. There is no reason why subsequent events cannot shed light on the circumstances as they existed at an earlier time. For example, "medical reports, later in time to earlier medical reports concerning the same person, may serve the evidentiary function of establishing the pre-existence of illnesses, disabilities or other physical or metaphysical conditions, for which there may or may not have been symptoms already manifest at the time of earlier reports": Koulaxazov v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 75 at [38] per Conti J; also Truong at [40] per Weinberg J. Moreover, a logical error in reasoning does not amount to jurisdictional error: see, e.g., VWST v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 286 at [14] - [18] per Kiefel, Marshall and Downes JJ. I find that the MRT made no logical or legal error when it considered subsequent events as probative of earlier facts.
Case: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526
Outcome: cited
given by a person involved in the making of the document is not decisive as to the purpose for which the document came into existence (per Branson J in Sparnon v Apand Pty Ltd (1996) 68 FCR 322 at 328A. That is an objective question ( Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 at 548E). The onus is on the party claiming the privilege to make it out ( Mitsubishi at [11]).
Case: Esso Australia Resources Ltd v Commissioner of Taxation (Commonwealth) [1999] HCA 67 ; (1999) 201 CLR 49 
Outcome: applied
was no great disagreement between counsel as to the principles to be applied in this matter. One threshold matter needs to be considered, namely, the operation, if any, of O 33 r 11 of the Federal Court Rules . I was referred to the decision of Graham J in Seven Network Ltd v News Ltd [2005] FCA 864 at [57] [59] in which, in similar circumstances, it was held that O 33 r 11 would apply and doubt was cast upon what I had said in Arrow Pharmaceuticals Ltd v Merck &amp; Co Inc (2004) 210 ALR 593 at [10]. Leave to appeal against the decision of Graham J was granted and, although the appeal was dismissed, the Full Court made clear that O 33 r 11 did not operate at the point of pretrial production of documents, effectively overruling the decision of Graham J in that respect ( Seven Network Ltd v News Ltd [2005] FCAFC 125 ; (2005) 144 FCR 379). As this dispute is essentially about discovery and inspection it is clear, in my opinion, that the question of privilege is to be governed by the common law as defined in Esso Australia Resources Ltd v Commissioner of Taxation (Commonwealth) [1999] HCA 67 ; (1999) 201 CLR 49 rather than by the provisions of the Evidence Act 1995 (Cth). The classic statement of the dominant purpose test, which is now accepted, was that by Barwick CJ in Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 (at 677): 'a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection.'
Case: Mitsubishi Electrics Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59 ; (2002) 4 VR 332
Outcome: cited
was also a question as to whether or not proceedings should be commenced. That decision involved the obtaining of legal advice and also consideration of the public interest. As an investigation progresses, it is natural that the investigator's views as to the likelihood of proceedings ensuing will develop. It may be accepted that from 10 November 2003 onwards, Alfred was of the view that proceedings were more likely than not. He was, of course, not the decision maker nor at that stage did he have the benefit of any legal advice. For the purposes of argument it may be accepted that litigation was in reasonable prospect by 10 November 2003. Even on that footing, it cannot be concluded that the interviews after 10 November 2003 took place for the dominant purpose of obtaining legal advice about, or assisting in the conduct of, any such litigation rather than completing the task of investigation which had been begun months earlier. Where there is more than one purpose for an action, it is not necessary that either should 'dominate'. In Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59 ; (2002) 4 VR 332, Batt JA (with whom Charles and Callaway JJA agreed) stated (at [10]): 'In its ordinary meaning "dominant" indicates that purpose which was the ruling, prevailing, or most influential purpose. Barwick CJ, whose view in Grant v Downs propounding the test of dominant purpose has now been adopted by the majority decision in Esso Australia Resources , distinguished "dominant" from "primary" and "substantial". Lord Edmund-Davies in Waugh, in adopting the test propounded by Barwick CJ, was of the view that the element of clear paramountcy should be the touchstone. That, as it seems to me, shows the meaning of "dominant".' Evidence given by a person involved in the making of the document is not decisive as to the purpose for which the document came into existence (per Branson J in Sparnon v Apand Pty Ltd (1996) 68 FCR 322 at 328A. That is an objective question ( Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 at 548E). The onus is on the party claiming the privilege to make it out ( Mitsubishi at [11]).