mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: In re the Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318
Outcome: cited
is certainly the case that, traditionally, there is a distinction in the manner in which appellate courts treat an exercise of discretion on a point of practice or procedure as is the case before me and an exercise of discretion which determines substantive rights (cf Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39 ; (1981) 148 CLR 170 at 177, In re the Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318 at 323). However I accept the submission of Mr Merrell, supported by Mr O'Grady, that it is incumbent on the appellate court to carefully examine each case before it, and identify whether an error has been made in exercising the discretion. As was observed by Atkin LJ in Maxwell v Keun [1928] 1 KB 645 at 653: The other point that was made by the defendants was that this was a discretionary order and that the Court of Appeal ought not to interfere with the discretion of the learned judge. I quite agree the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned judge on such a question as an adjournment of a trial, and it very seldom does do so; but on the other hand, if it appears that the result of the order made below is to defeat the rights of the parties altogether, and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the court has power to review such an order, and it is, to my mind, its duty to do so. (cf Dick v Piller [1943] KB 497 at 506-507, Jarrett v Westpac Banking Corporation [1999] FCA 425 at [78] )
Case: Jordan v Smart [1961] NSWR 735
Outcome: cited
is strong authority that the discretion in respect of ordering or refusing an adjournment miscarries where the refusal of an adjournment results in one of the parties being unable adequately to present his case ( Thornberry v R (1995) 69 ALJR 777). Indeed, where there is a proper basis for an application for an adjournment, and refusal would seriously prejudice the party seeking the adjournment and not prejudice the other party, there is authority that adjournment should ordinarily be granted: Jordan v Smart [1961] NSWR 735.
Case: Lennox v Amcor Limited trading as Amcor Cartonboard [2009] FCA 959
Outcome: cited
today I urgently granted the applicant leave to appeal from two decisions of a Federal Magistrate in respect of related proceedings. In those decisions his Honour had refused applications, supported by both parties, to adjourn the trial of the substantive proceedings in both cases. The background to the applications before me is set out in detail in Lennox v Amcor Limited trading as Amcor Cartonboard [2009] FCA 959. Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth). The appellate jurisdiction of the Court in relation to an appeal from a judgment, other than a migration judgment, of the Federal Magistrates Court is to be exercised by a Full Court unless the Chief Justice considers that it is appropriate for the appellate jurisdiction of the Court in relation to the appeal to be exercised by a single Judge. The Chief Justice has so directed in this case. In Court this afternoon the applicant filed the notices of appeal in respect of which leave had previously been granted, citing the following grounds of appeal: The learned Federal Magistrate erred in law by not according natural justice to the Applicant. In refusing the application made by the Applicant to vacate prior orders and adjourn the trial, the learned Federal Magistrate erred as a matter of law by failing to take into account: that the Court had been appraised of the parties' non-compliance with the pre-trial directions orders on or by 4 August 2009; the severe and prejudicial consequences of the refusal for the Applicant and for the Respondent; the effect of the refusal on the likely length and cost of the trial. The applicant has sought the following orders: That the decision to refuse the application be set aside. That the orders sought in the application filed in the Federal Magistrates Court on 19 August 2009 be made. That the decision to refuse the stay the trial pending the outcome of this appeal be set aside. That the costs of this appeal be costs in the Federal Magistrates Court proceeding BRG649/08. Such further or other orders as the court sees fit. The orders sought in the application filed in the Federal Magistrates Court on 19 August 2009 were as follows: By 14 September 2009 each party make discovery on oath in accordance with the categories described in Schedule hereto. Each party shall produce disclosed documents for inspection in accordance with Federal Court Rules by 4.00 pm on 21 September 2009. The trial of this proceeding will be conducted on the basis that the evidence-in-chief of each witness to be called by the parties will be given by affidavit. That the witnesses' affidavit be exchanged as follows: the Applicant file and serve the affidavit of any proposed witness by 19 October 2009; the Respondent file and serve the affidavit of any proposed witness by 4 November 2009; and the Applicant file and serve any affidavits in reply to the Respondent's affidavits by 13 November 2009. The parties are to exchange outlines of argument 7 days prior to the commencement of the hearing.
Case: Maxwell v Keun [1928] 1 KB 645
Outcome: cited
is certainly the case that, traditionally, there is a distinction in the manner in which appellate courts treat an exercise of discretion on a point of practice or procedure as is the case before me and an exercise of discretion which determines substantive rights (cf Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39 ; (1981) 148 CLR 170 at 177, In re the Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318 at 323). However I accept the submission of Mr Merrell, supported by Mr O'Grady, that it is incumbent on the appellate court to carefully examine each case before it, and identify whether an error has been made in exercising the discretion. As was observed by Atkin LJ in Maxwell v Keun [1928] 1 KB 645 at 653: The other point that was made by the defendants was that this was a discretionary order and that the Court of Appeal ought not to interfere with the discretion of the learned judge. I quite agree the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned judge on such a question as an adjournment of a trial, and it very seldom does do so; but on the other hand, if it appears that the result of the order made below is to defeat the rights of the parties altogether, and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the court has power to review such an order, and it is, to my mind, its duty to do so. (cf Dick v Piller [1943] KB 497 at 506-507, Jarrett v Westpac Banking Corporation [1999] FCA 425 at [78] )
Case: Thornberry v R (1995) 69 ALJR 777
Outcome: cited
is strong authority that the discretion in respect of ordering or refusing an adjournment miscarries where the refusal of an adjournment results in one of the parties being unable adequately to present his case ( Thornberry v R (1995) 69 ALJR 777). Indeed, where there is a proper basis for an application for an adjournment, and refusal would seriously prejudice the party seeking the adjournment and not prejudice the other party, there is authority that adjournment should ordinarily be granted: Jordan v Smart [1961] NSWR 735.
Case: Trivett v Zoccoli [2002] WASCA 138
Outcome: cited
decision of a judge to adjourn a hearing is not only an interlocutory decision, it is a discretionary decision ( Aon [2009] HCA 27 at [5] , Goldberg v Morrow [2004] FCA 1490 at [36] , Trivett v Zoccoli [2002] WASCA 138 ). Appeals against an exercise of discretion are governed by established principles: House v The King [1936] HCA 40 ; (1936) 55 CLR 499 at 504. As Dixon, Evatt and McTiernan JJ observed in the following well-known passage: It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is reasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. (at 504-505)
Case: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611
Outcome: followed
the period of time spent in Australia as a permanent resident is an important consideration in an application for citizenship, the Court is satisfied that there is no Wednesbury unreasonableness in the Tribunal's decision. Having so concluded, the appellant's claim that the decision of the Tribunal on this issue was unreasonable has no legal consequence: see Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 626 [40] . For this reason, the second ground of appeal is rejected.
Case: Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259
Outcome: distinguished
appellant also relied upon a decision referred to in Roberts namely Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259. That decision is also distinguishable since the applicant in that case had a residence in Australia and had conducted a business in Australia for more than a decade. In that case the Court found that ' significant hardship or disadvantage would result if citizenship were not awarded '. Davies J said of the Policy (at 267): 'The discretion, moreover, looks to period of presence in Australia which ought to be treated as periods of permanent residence. In my opinion, this requires attention to be given to the nature or the character of the presence in Australia, that is to say, to the family, social and business connections which gave rise to the presence in Australia. The closer the analogy between the periods of presence in Australia and permanent residence therein, the more readily the discretion may be exercised.' In Re Sadawut Taechaubol, another authority referred to by the appellant, the applicant had a long standing association with Australia. This is simply another example demonstrating that each application for citizenship will depend upon its merits. Australian citizenship represents formal membership of the community of the Commonwealth of Australia which involves reciprocal rights and obligations, uniting all Australians: see the preamble to the Act. Section 13(1) of the Act contains the criteria which would assist the Minister in determining whether the applicant for citizenship satisfies the objectives of the Act. Section 13(1)(j) provides that a grant of citizenship may be made if the Minister is satisfied inter alia that: 'If granted a certificate of Australian citizenship, the person is likely to reside, or to continue to reside, in Australia, or to maintain a close and continuing association with Australia'.
Case: Minister for Immigration and Multicultural &amp; Indigenous Affairs v Sun [2005] FCAFC 201
Outcome: referred to
Against this, s 424B(2) and s 424B(3)(b) each provide that where no period is prescribed, the information or comments are to be given within a reasonable period. Mr Potts drew attention to the power of the RRT to extend the period to respond to an invitation contained in s 424B(4). It may well be that this power can be exercised after the initial prescribed period has expired; see Minister for Immigration and Multicultural &amp; Indigenous Affairs v Sun [2005] FCAFC 201 at [51] . 47 A difficult question of construction and reconciliation of the provisions of Div 4 of Part 7 with the privative clause in s 474 of the Act would arise if the RRT were to specify in its s 424 or 424A invitation a period of 13 days to respond, and, in the absence of a response within that period, the RRT proceeded to make a decision on the review without further action, as apparently authorised by s 424C and s 425(2)(c). 48 However, I am relieved from answering that question because of the circumstances in which the apparent breach of s 424B(2) occurred in the present case. What I have to determine is whether the breach complained of gave rise to jurisdictional error. That cannot be answered by simply posing the question of breach or no breach; it is necessary to consider whether in the particular circumstances the breach had that result. 49 I do not see how, having regard to the language of s 424B(2) or the scope of Div 4, a breach which consisted of giving an applicant more time than he or she was entitled to, could be thought to render invalid a decision given after the breach. This must be especially so where the information was provided and a hearing took place in accordance with s 425. 50 It follows that the appeal must be dismissed.
Case: NACI v Minister for Immigration and Multicultural &amp; Indigenous Affairs [2002] FCAFC 154
Outcome: referred to
A failure to give the additional information requested under s 424 , or to give the comments pursuant to an invitation given under s 424A , before the time specified, or any extended period, authorises the RRT to make a decision on the review without taking any further action; see s 424C and s 425(2)(C) ; see also NACI v Minister for Immigration and Multicultural &amp; Indigenous Affairs [2002] FCAFC 154. 44 Moreover, a failure to give the information or the comments before the specified time relieves the RRT of its obligation to invite an applicant to give evidence and present arguments at an oral hearing; see s 425(2)(c). Indeed, failure to give the information or to provide the comments removes any entitlement of an applicant to appear before the RRT; see s 425(3).
Case: NAWR v Minister for Immigration and Multicultural &amp; Indigenous Affairs [2003] FCA 1520
Outcome: referred to
It might be thought therefore that the time limits fixed by the Act and the Regulations must be adhered to strictly. Further support for this view is to be found in the observation of Sackville J in NAWR v Minister for Immigration and Multicultural &amp; Indigenous Affairs [2003] FCA 1520 at [33] and [35], that no period other than the period of 14 days for the initial prescribed period or 28 days for the further prescribed period can be specified.
Case: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 ; (1989) 194 CLR 355
Outcome: cited
The question of whether a breach of s 424B(2) gives rise to jurisdictional error is to be answered by having regard to the language of the section and the scope and object of the whole statute; the question is whether it was a purpose of the legislation that an act done in breach of the provision should be invalid; Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 ; (1989) 194 CLR 355 at [91] , [93]; see also SAAP at [73], [205].
Case: Re Refugee Review Tribunal ; ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82
Outcome: cited
Relief may be refused inter alia, where there has been waiver or acquiescence in the invalidity of the decision or where an applicant has suffered no injustice; see Re Refugee Review Tribunal ; ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [57] - [58] ; see also SAAP at [80].
Case: SAAP v Minister for Immigration and Multicultural &amp; Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162
Outcome: referred to
Federal Magistrate Lloyd-Jones considered at some length the effect of the decision of the High Court in SAAP v Minister for Immigration and Multicultural &amp; Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 (" SAAP "). His Honour came to the view that the purpose and legislative context of s 424B was to be contrasted with that of s 424A , such that the legislative intention was not to be that a breach of the time provision in s 424B(2) would lead to the invalidation of a decision made following a breach of the section. 29 As I have said, the Minister conceded that the RRT's s 424 letter breached s 424B(2) of the Act by specifying a date for response which was outside the prescribed period. It may seem curious that what would appear to be an indulgence extended to an applicant could nonetheless constitute a breach. However, I do not suggest that the concession was wrongly made. 30 The question of whether a breach of s 424B(2) gives rise to jurisdictional error is to be answered by having regard to the language of the section and the scope and object of the whole statute; the question is whether it was a purpose of the legislation that an act done in breach of the provision should be invalid; Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 ; (1989) 194 CLR 355 at [91] , [93]; see also SAAP at [73], [205]. 31 In SAAP , a majority of the Court held that a breach of s 424A was jurisdictional in nature so that a decision handed down after the breach was rendered invalid by it. 32 Their Honours pointed to the mandatory language of s 424A and to the purpose of the provision which McHugh J described at [77] as "one of the centrepieces of... (the) regime of statutory procedural fairness."; see also at [165]-[166], [173] per Kirby J, and at [205]-[208] per Hayne J. 52 Relief may be refused inter alia, where there has been waiver or acquiescence in the invalidity of the decision or where an applicant has suffered no injustice; see Re Refugee Review Tribunal ; ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [57] - [58] ; see also SAAP at [80].
Case: SZDQL v Minister for Immigration Multicultural and Indigenous Affairs [2005] FCA 769
Outcome: referred to
The question of whether a breach of s 424B(3)(b) of the Act resulted in jurisdictional error was raised in SZDQL v Minister for Immigration Multicultural and Indigenous Affairs [2005] FCA 769 (" SZDQL") . However, Sackville J found that the provision was not breached. It was therefore unnecessary to decide whether a contravention of s 424B(3) constituted jurisdictional error. His Honour said that the issue should be left to a case in which the court had the benefit of full argument; see at [50], [53]. 34 I have been much assisted by the written and oral submissions of both Counsel. I am indebted to Mr Zipser for accepting the brief for the appellant pro bono pursuant to an order I made under Order 80 of the Federal Court Rules . 35 Mr Zipser submitted that the language of s 424B(2), though not using the imperative "must" was nonetheless mandatory in nature. He also pointed to the object of the section as a part of the statutory procedural fairness regime which is codified in Div 4 of Part 7 of the Act . 38 Support for the view I have expressed as to the object of the provision may be found in Sackville J's observation in SZDQL at [50] as to the statutory purpose of s 424B(3)(b). His Honour said that its object is to ensure that the required interview takes place within a reasonably short period of the invitation. 39 Section 424B(3)(b) operates in a slightly different way from s 424B(2). The effect of s 424B(3)(b) is that the RRT may stipulate a time for the interview at any time within the prescribed period. There is an outer time limit within which the interview may take place but the RRT may appoint any date within the period, indeed, at the very hearing at which the invitation is extended; SZDQL at [50]. 40 By contrast, s 424B(2) is directed to the provision of information and comments by an applicant and when read with Reg 4.35(3), it sets an opening and closing period of 14 days after receipt of the invitation. It would be open to the invitee to provide the information or comments within that 14 day period but it is not open to the RRT to specify a date before the closing of that period by which the information or comments must be provided. 41 I do not consider that this difference in the operation of the two subsections leads to a different view of their objects. It seems to me that what Sackville J said in SZDQL as to the object of s 424B(3)(b) applies equally to s 424B(2). 42 However, it seems to me that there is a further aspect of the statutory purpose of those subsections which must be borne in mind when answering the question of whether a breach is jurisdictional in nature. This appears from a consideration of the part which those subsections play in the codified regime of procedural fairness contained in Div 4 of Part 7 of the Act .
Case: Australian Securities &amp; Investments Commission v Pappas [2006] FCA 1785
Outcome: cited
On 20 December 2006 I published my reasons for concluding that the defendant should be found guilty on three charges of contempt (see Australian Securities &amp; Investments Commission v Pappas [2006] FCA 1785]). The present reasons should be understood in the light of and as an extension of those reasons. On 20 December 2006, I gave directions for the parties to make submissions on the appropriate penalty for contempt. I have now received written submissions on behalf of the Australian Securities &amp; Investments Commission (the Commission) and the defendant and have heard oral submissions on behalf of both parties on that question. 2 Ordinarily, subject to satisfaction of certain procedural requirements, the Court has power to impose a term of imprisonment, to impose a fine and to make costs orders as punishment for contempt. The principles that are relevant to the question of penalty in a case such as the present are as follows: &#8226; the seriousness of the contempt; &#8226; whether the contemnor was aware of the consequences of contempt; &#8226; the actual or potential consequences of the contempt; &#8226; the reason or motive for the contempt; &#8226; whether the contemnor has received or will receive a benefit from the contempt; &#8226; whether genuine contrition has been expressed by the contemnor; &#8226; the character and antecedents of the contemnor; &#8226; what punishment is required to deter the contemnor in particular and others of a like mind generally from similar disobedience to orders of the Court. The defendant did not quarrel with those principles as being relevant to the assessment of penalty in the present proceeding. 3 However, the defendant points to a failure to comply with the Rules of the Federal Court concerning enforcement of orders of the Court by committal. He says that, having regard to failure to comply with the Rules in connection with the Court's order of 16 September 2005, the punishment, at least in relation to the first two charges, should not include imprisonment. It is, therefore, desirable to say something about the relevant provisions of the Rules.