mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: NAYU v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 528
Outcome: cited
Where the Tribunal was unable to be satisfied upon the material before it that the appellant's claims are genuine it has no duty to make further enquiries: Minister for Immigration &amp; Multicultural Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12; VCAK of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 459 at [27] ; WAGJ of 2002 v Minister for Immigration &amp; Multicultural Affairs [2002] FCAFC 277 at [21] , [24]-[25]; W389/01A v Minister for Immigration &amp; Multicultural Affairs [2002] FCAFC 432 ; (2002) 125 FCR 407 at [74] - [78] ; NAYU v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 528 at [18] - [21] .
Case: Prasad v Minister for Immigration &amp; Ethnic Affairs (1985) 6 FCR 155
Outcome: cited
It is no part of the duty of the decision-maker to make the applicant's case for him: Prasad v Minister for Immigration &amp; Ethnic Affairs (1985) 6 FCR 155 at 169-170. I do not accept that the Tribunal failed to carry out any duty, as contended for by the applicant, to demonstrate that the applicant did not face a risk of being persecuted if she was returned to China. No such duty exists as a matter of law. This ground discloses no error of law.
Case: S58 of 2003 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 283
Outcome: cited
As to the merits, in my opinion, the proposed second ground cannot succeed. I accept the submissions of the first respondent which were to the following effect. The appellant was given the opportunity to appear before the Tribunal and put such information before it as she wished. In circumstances where the appellant failed to attend her hearing, she cannot complain if her application was rejected because amongst other reasons, she failed to take up the opportunity: S58 of 2003 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 283 at [26] . See also NAVX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 346 at [10] - [12] , upheld on appeal in NAVX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 287 at [5] ; SZDJT v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 214. There is no substance to her claim that the Tribunal failed to consider the information in the appellant's case. The Tribunal was simply not satisfied as to the applicable criteria: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 ; SJSB v Minister for Immigration [2004] FCAFC 215 ; and SZBCS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1457.
Case: SJSB v Minister for Immigration [2004] FCAFC 215
Outcome: cited
As to the merits, in my opinion, the proposed second ground cannot succeed. I accept the submissions of the first respondent which were to the following effect. The appellant was given the opportunity to appear before the Tribunal and put such information before it as she wished. In circumstances where the appellant failed to attend her hearing, she cannot complain if her application was rejected because amongst other reasons, she failed to take up the opportunity: S58 of 2003 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 283 at [26] . See also NAVX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 346 at [10] - [12] , upheld on appeal in NAVX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 287 at [5] ; SZDJT v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 214. There is no substance to her claim that the Tribunal failed to consider the information in the appellant's case. The Tribunal was simply not satisfied as to the applicable criteria: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 ; SJSB v Minister for Immigration [2004] FCAFC 215 ; and SZBCS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1457.
Case: SZBCS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1457
Outcome: cited
As to the merits, in my opinion, the proposed second ground cannot succeed. I accept the submissions of the first respondent which were to the following effect. The appellant was given the opportunity to appear before the Tribunal and put such information before it as she wished. In circumstances where the appellant failed to attend her hearing, she cannot complain if her application was rejected because amongst other reasons, she failed to take up the opportunity: S58 of 2003 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 283 at [26] . See also NAVX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 346 at [10] - [12] , upheld on appeal in NAVX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 287 at [5] ; SZDJT v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 214. There is no substance to her claim that the Tribunal failed to consider the information in the appellant's case. The Tribunal was simply not satisfied as to the applicable criteria: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 ; SJSB v Minister for Immigration [2004] FCAFC 215 ; and SZBCS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1457.
Case: SZDJT v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 214
Outcome: cited
As to the merits, in my opinion, the proposed second ground cannot succeed. I accept the submissions of the first respondent which were to the following effect. The appellant was given the opportunity to appear before the Tribunal and put such information before it as she wished. In circumstances where the appellant failed to attend her hearing, she cannot complain if her application was rejected because amongst other reasons, she failed to take up the opportunity: S58 of 2003 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 283 at [26] . See also NAVX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 346 at [10] - [12] , upheld on appeal in NAVX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 287 at [5] ; SZDJT v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 214. There is no substance to her claim that the Tribunal failed to consider the information in the appellant's case. The Tribunal was simply not satisfied as to the applicable criteria: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 ; SJSB v Minister for Immigration [2004] FCAFC 215 ; and SZBCS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1457.
Case: VAAC v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168
Outcome: cited
This necessitates reference to a number of considerations namely, the appellant's prospects of success on the appeal on the new argument, the explanation given by the appellant for failing to raise the argument before the primary judge, the prejudice to the respondent in allowing the appellant to raise the new argument, the potentially serious consequences to the appellant if leave to amend is refused, and the integrity of the appellate process: VAAC v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 at 177 [26] .
Case: VCAK of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 459
Outcome: cited
Where the Tribunal was unable to be satisfied upon the material before it that the appellant's claims are genuine it has no duty to make further enquiries: Minister for Immigration &amp; Multicultural Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12; VCAK of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 459 at [27] ; WAGJ of 2002 v Minister for Immigration &amp; Multicultural Affairs [2002] FCAFC 277 at [21] , [24]-[25]; W389/01A v Minister for Immigration &amp; Multicultural Affairs [2002] FCAFC 432 ; (2002) 125 FCR 407 at [74] - [78] ; NAYU v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 528 at [18] - [21] .
Case: WAGJ of 2002 v Minister for Immigration &amp; Multicultural Affairs [2002] FCAFC 277
Outcome: cited
Where the Tribunal was unable to be satisfied upon the material before it that the appellant's claims are genuine it has no duty to make further enquiries: Minister for Immigration &amp; Multicultural Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12; VCAK of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 459 at [27] ; WAGJ of 2002 v Minister for Immigration &amp; Multicultural Affairs [2002] FCAFC 277 at [21] , [24]-[25]; W389/01A v Minister for Immigration &amp; Multicultural Affairs [2002] FCAFC 432 ; (2002) 125 FCR 407 at [74] - [78] ; NAYU v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 528 at [18] - [21] .
Case: W389/01A v Minister for Immigration &amp; Multicultural Affairs [2002] FCAFC 432 ; (2002) 125 FCR 407
Outcome: cited
Where the Tribunal was unable to be satisfied upon the material before it that the appellant's claims are genuine it has no duty to make further enquiries: Minister for Immigration &amp; Multicultural Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12; VCAK of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 459 at [27] ; WAGJ of 2002 v Minister for Immigration &amp; Multicultural Affairs [2002] FCAFC 277 at [21] , [24]-[25]; W389/01A v Minister for Immigration &amp; Multicultural Affairs [2002] FCAFC 432 ; (2002) 125 FCR 407 at [74] - [78] ; NAYU v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 528 at [18] - [21] .
Case: Water Board v Moustakas (1988) 77 ALR 193
Outcome: referred to
It is well recognised that the Court may allow a ground of appeal even where that ground was not raised in the Court or Tribunal below but only where all of the relevant facts have been established beyond controversy or where the point is one of construction or a point of law: Water Board v Moustakas (1988) 77 ALR 193 at 196; Federal Commissioner of Taxation v Brambles Holdings Ltd (1991) 28 FCR 451; Cubillo v Commonwealth [2001] FCA 1213 ; (2001) 183 ALR 249. The first respondent conceded that the point could not have been met by any evidence had it been raised below but that the proposed ground was without merit and accordingly leave should be refused. It is necessary therefore to consider whether it is "expedient in the interests of justice" to allow the new ground to be argued and determined: H v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 1348 at [6] .
Case: Acohs Pty Ltd v Ucorp Pty Ltd [2006] FCA 1279 ; (2006) 155 FCR 181
Outcome: considered
The discretion to order security for costs is a very broad one: Lucas v Yorke (1983) 50 ALR 228. The authorities have identified a number of factors relevant to the exercise of the discretion. I refer, by way of example, to the discussion by Beazley J in KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 at 196-198, French J in Carey-Hazell v Getz Bros &amp; Co (Aust) Pty Ltd [2004] FCA 1334 at [28] , Hill J in Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40-972 and Jessup J in Acohs Pty Ltd v Ucorp Pty Ltd [2006] FCA 1279 ; (2006) 155 FCR 181 at 183-186 [7] - [12] .
Case: Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1
Outcome: cited
As to the fourth matter, the applicant has not established that the litigation will be stifled if an order for security for costs is made. The onus is on it to do so: Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1. While it has been established that it will not be able to pay the respondents' costs if they are successful in their defence it has not been established that those who stand behind the applicant cannot provide security. As I have said, no evidence as to the financial position of Mr Stewart has been put before me. 36 As to the fifth and sixth matters, in view of the order which I have made, it is not necessary for me to say anything more about those factors. 37 As to the seventh matter, it is not relevant here.
Case: Carey-Hazell v Getz Bros &amp; Co (Aust) Pty Ltd [2004] FCA 1334
Outcome: considered
The discretion to order security for costs is a very broad one: Lucas v Yorke (1983) 50 ALR 228. The authorities have identified a number of factors relevant to the exercise of the discretion. I refer, by way of example, to the discussion by Beazley J in KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 at 196-198, French J in Carey-Hazell v Getz Bros &amp; Co (Aust) Pty Ltd [2004] FCA 1334 at [28] , Hill J in Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40-972 and Jessup J in Acohs Pty Ltd v Ucorp Pty Ltd [2006] FCA 1279 ; (2006) 155 FCR 181 at 183-186 [7] - [12] .
Case: Clarence Street v ISIS Projects Pty Ltd [2007] NSWSC 380
Outcome: considered
In this case the first matter, namely, the delay in bringing the application is a very significant matter. There is no doubt the respondents were aware of the Court's power to make an order for security for costs and, indeed, they raised the issue with the applicant's former solicitor in March 2006 and with the applicant's present solicitor in October 2006. The applicant's financial statements could have been obtained by the respondents from October 2006. The application for security was not brought until less than two weeks before the first adjusted trial date. The fact that that trial date has now been changed to 13 August 2007 is relevant but, in the end, I do not think that it detracts in any significant way from the importance to be attached to the respondents' delay. The respondents submit that any delay on their part cannot be decisive of their application and, in fact, in the absence of prejudice, is of minimal significance. They referred to Hughes Bros Pty Ltd v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (Unreported, Supreme Court of New South Wales, Hunter J, 7 November 1995); Clarence Street v ISIS Projects Pty Ltd [2007] NSWSC 380. In Clarence St , McDougall J said (at [22]): "The authorities, I think, on a proper analysis also make it plain that delay is not to be looked at in the abstract. What is important is whether, assuming that delay has been shown, such delay causes actual prejudice to the party against whom the order is sought. Even if prejudice is shown, the application need not fail; but unless it is shown, the significance of delay as a countervailing factor disappears. See the decision of Hunter J in Hughes Bros Pty Limited v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (7 November 1995, unreported; BC 95079079)."
Case: Clyde Industries Ltd v Ryad Engineering Pty Ltd (1993) 11 ACLC 325
Outcome: applied
In my opinion, it would cause prejudice to the applicant and be quite unfair to it to make an order for security for costs by way of a cash deposit or bank guarantee at this late stage. To my mind, that is a sufficient reason to refuse the application insofar as it seeks security of that nature. However, having regard to the matters outlined below, it does not stand in the way of an order that the party who will benefit from the proceeding if it is successful, Nicholas Jules Stewart, be required to provide a personal guarantee whereby he guarantees the payment of any costs the applicant is ordered to pay the respondents and incurred by the respondents on or after 5 July 2007. I realise that I have conducted no inquiry into Mr Stewart's financial position and his ability to meet a costs order, but I do not think that that means that such a guarantee cannot constitute a form of security: Clyde Industries Ltd v Ryad Engineering Pty Ltd (1993) 11 ACLC 325 at 328 per Rowland J (see also the discussion in Dal Pont at 964-965 [29.28]-[29.29]). In any event, if such a guarantee is worthless, that would be a reason to refuse an order for security for costs because the proceedings would otherwise be stifled. 32 My conclusions have been reached not only in the context of the delay, but also having regard to the other factors which I turn now to address. 33 As to the second matter referred to in [27], I am satisfied that the applicant's claim is bona fide. However, I am not prepared to go any further than that because there are a number of contested issues and, in those circumstances, it would be inappropriate for me to comment on the merits of the applicant's claim.
Case: Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40-972
Outcome: considered
The discretion to order security for costs is a very broad one: Lucas v Yorke (1983) 50 ALR 228. The authorities have identified a number of factors relevant to the exercise of the discretion. I refer, by way of example, to the discussion by Beazley J in KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 at 196-198, French J in Carey-Hazell v Getz Bros &amp; Co (Aust) Pty Ltd [2004] FCA 1334 at [28] , Hill J in Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40-972 and Jessup J in Acohs Pty Ltd v Ucorp Pty Ltd [2006] FCA 1279 ; (2006) 155 FCR 181 at 183-186 [7] - [12] .
Case: Hughes Bros Pty Ltd v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (Unreported, Supreme Court of New South Wales, Hunter J, 7 November 1995)
Outcome: cited
In this case the first matter, namely, the delay in bringing the application is a very significant matter. There is no doubt the respondents were aware of the Court's power to make an order for security for costs and, indeed, they raised the issue with the applicant's former solicitor in March 2006 and with the applicant's present solicitor in October 2006. The applicant's financial statements could have been obtained by the respondents from October 2006. The application for security was not brought until less than two weeks before the first adjusted trial date. The fact that that trial date has now been changed to 13 August 2007 is relevant but, in the end, I do not think that it detracts in any significant way from the importance to be attached to the respondents' delay. The respondents submit that any delay on their part cannot be decisive of their application and, in fact, in the absence of prejudice, is of minimal significance. They referred to Hughes Bros Pty Ltd v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (Unreported, Supreme Court of New South Wales, Hunter J, 7 November 1995); Clarence Street v ISIS Projects Pty Ltd [2007] NSWSC 380. In Clarence St , McDougall J said (at [22]): "The authorities, I think, on a proper analysis also make it plain that delay is not to be looked at in the abstract. What is important is whether, assuming that delay has been shown, such delay causes actual prejudice to the party against whom the order is sought. Even if prejudice is shown, the application need not fail; but unless it is shown, the significance of delay as a countervailing factor disappears. See the decision of Hunter J in Hughes Bros Pty Limited v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (7 November 1995, unreported; BC 95079079)."
Case: Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd [2007] FCA 489
Outcome: referred to
I will not recite the details of all the interlocutory steps taken in the proceedings. However, two should be mentioned. On 4 April 2007 I refused an application by the applicant for summary judgment on part of its claim: Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd [2007] FCA 489. In May 2007 I dealt with an application by the respondents for a stay or dismissal of the proceedings by reason of non-compliance by the applicant with various orders of the Court. The details of the application are set out in my reasons on a question of costs: Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd (No 2) [2007] FCA 903.
Case: Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd (No 2) [2007] FCA 903
Outcome: referred to
I will not recite the details of all the interlocutory steps taken in the proceedings. However, two should be mentioned. On 4 April 2007 I refused an application by the applicant for summary judgment on part of its claim: Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd [2007] FCA 489. In May 2007 I dealt with an application by the respondents for a stay or dismissal of the proceedings by reason of non-compliance by the applicant with various orders of the Court. The details of the application are set out in my reasons on a question of costs: Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd (No 2) [2007] FCA 903.
Case: Jodast Pty Ltd v A &amp; J Blattner Pty Ltd (1991) 104 ALR 248
Outcome: cited
This is an application by the respondents by notice of motion for an order for security for costs. The application is brought pursuant to s 1335 of the Corporations Act 2001 (Cth) or s 56 of the Federal Court of Australia Act 1976 (Cth), or both. There is no dispute that it appears by credible testimony that there is reason to believe that Jianshe Southern Pty Ltd, the applicant in the proceedings, will be unable to pay the respondents' costs if they are successful in their defence. In those circumstances, similar factors are relevant to whether an order for security for costs should be made whether the application be considered under s 1335 of the Corporations Act 2001 (Cth) or s 56 of the Federal Court of Australia Act 1976 (Cth): Jodast Pty Ltd v A &amp; J Blattner Pty Ltd (1991) 104 ALR 248 per Hill J. 2 The respondents seek an order that the applicant provide security for their costs by way of a bank guarantee in the sum of $250,000. They seek an order that if the security is not provided, the applicant's proceeding should be stayed or dismissed. The respondents have brought a cross-claim against the applicant but, on the hearing of their notice of motion, they have indicated that if security is granted they will not pursue the cross-claim. 3 On 16 July 2007 I made the following order: "Nicholas Jules Stuart [sic] on or before 23 July 2007 provide a personal guarantee to the respondents whereby he guarantees the payment of any costs the applicant is ordered to pay the respondents and incurred by the respondents on or after 5 July 2007 up to a sum of $200,000.00." My reasons for making that order follow.
Case: KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189
Outcome: considered
The discretion to order security for costs is a very broad one: Lucas v Yorke (1983) 50 ALR 228. The authorities have identified a number of factors relevant to the exercise of the discretion. I refer, by way of example, to the discussion by Beazley J in KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 at 196-198, French J in Carey-Hazell v Getz Bros &amp; Co (Aust) Pty Ltd [2004] FCA 1334 at [28] , Hill J in Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40-972 and Jessup J in Acohs Pty Ltd v Ucorp Pty Ltd [2006] FCA 1279 ; (2006) 155 FCR 181 at 183-186 [7] - [12] .
Case: Lucas v Yorke (1983) 50 ALR 228
Outcome: referred to
The discretion to order security for costs is a very broad one: Lucas v Yorke (1983) 50 ALR 228. The authorities have identified a number of factors relevant to the exercise of the discretion. I refer, by way of example, to the discussion by Beazley J in KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 at 196-198, French J in Carey-Hazell v Getz Bros &amp; Co (Aust) Pty Ltd [2004] FCA 1334 at [28] , Hill J in Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40-972 and Jessup J in Acohs Pty Ltd v Ucorp Pty Ltd [2006] FCA 1279 ; (2006) 155 FCR 181 at 183-186 [7] - [12] .