mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Wentworth v New South Wales Bar Association [1992] HCA 24 ; (1992) 176 CLR 239
Outcome: applied
That, of course, does not deal with the statutory formulation in each of sections 36, 39A and 39B of the Act. However, courts are naturally cautious in construing legislation which has the effect of interfering with what might be regarded as ordinary civil rights of citizens or dealing with other fundamental common law concepts. Thus, provisions will be construed so as to preserve those rights unless such interference is shown to be strictly required by clear words or as a matter of necessary implication: Wentworth v New South Wales Bar Association [1992] HCA 24 ; (1992) 176 CLR 239 at p. 252 per Deane, Dawson, Toohey and Gaudron JJ. 18 I am mindful that the context in which the certificate is authorised to be issued in the form it was under the Act occurs in circumstances where, first, a person's civil liberties and other civil rights may be substantially impacted upon and, secondly, those liberties and rights are the subject of the proceedings before the Tribunal. 19 The question, however, that Parliament has confided to the Attorney-General under each of sections 36, 39A and 39B is the formation of a judgment of a Minister of the Crown that disclosure of particular information would prejudice the security of Australia. Necessarily, considerations which are present to the mind of the member of the Executive of the Commonwealth at ministerial level to whom that responsibility is confided are difficult to judge of in a forensic contest, particularly where an issue of public interest immunity or matter of state immunity arises.
Case: Hicks v Ruddock (2007) 156 FCR 575
Outcome: cited
The reason Mr Rivera's case discloses no reasonable prospects of success is because it relies entirely on a premise that cannot be maintained. For habeas corpus to issue, an applicant must show that he or she is unlawfully held in the custody or control of the respondent: see Hicks v Ruddock (2007) 156 FCR 575 at 587-592. Mr Rivera's application depends on the assertion that his present detention is unlawful because, once he placed on the commercial airline flight on 22 December 2007, his lawful custody under Australian authorities ceased, and the continuation of his custody since that date is without lawful authority. 10 This assertion is without substance because the authority to detain Mr Rivera did not, and indeed could not, terminate at the point at which Mr Rivera boarded the flight. 11 The authority to detain did not terminate because the surrender warrant issued by the Minister for Justice and Customs (now styled the Minister for Home Affairs) under s 23 of the Extradition Act 1988 (Cth) on 31 August 2006 authorises Mr Rivera's custody in Australia until he is transported "out of Australia to a place in the United States". Given that the power of the Minister to issue this warrant and include such a condition is not disputed by Mr Rivera in his application of 28 December 2007, it is uncontentious that the warrant, when issued, represented a lawful authorisation of his custody in Australia. In my view, the provision in the warrant that Mr Rivera's custody continue until he is transported "to a place in the United States" which a seat on a commercial airline flight yet to take off patently is not is sufficient basis on which to hold that the warrant still constitutes lawful authorisation of his custody in Australia.
Case: Rivera v Minister Administering the Extradition Act 1988 (Cth) [2007] FCAFC 191
Outcome: cited
This application was made subsequent to numerous other applications made by Mr Rivera in this Court since he was placed in custody in Australia in 2002 pending extradition to the United States of America to face charges relating to a murder he is alleged to have committed in California in May 2002. The most recent of these applications was determined by Flick J on 13 December 2007, in which his Honour declined to expedite the hearing of an appeal from the decision of a Judge of the Court which dismissed an application for review of a decision of the Human Rights and Equal Opportunity Commission: see Rivera v Human Rights and Equal Opportunity Commission [2007] FCA 2037. The history of some of Mr Rivera's earlier litigation is summarised by Gyles J in Rivera v Minister Administering the Extradition Act 1988 (Cth) [2007] FCAFC 191. It is not necessary for me to repeat or elaborate upon this extensive litigious history.
Case: Rivera v Human Rights and Equal Opportunity Commission [2007] FCA 2037
Outcome: cited
This application was made subsequent to numerous other applications made by Mr Rivera in this Court since he was placed in custody in Australia in 2002 pending extradition to the United States of America to face charges relating to a murder he is alleged to have committed in California in May 2002. The most recent of these applications was determined by Flick J on 13 December 2007, in which his Honour declined to expedite the hearing of an appeal from the decision of a Judge of the Court which dismissed an application for review of a decision of the Human Rights and Equal Opportunity Commission: see Rivera v Human Rights and Equal Opportunity Commission [2007] FCA 2037. The history of some of Mr Rivera's earlier litigation is summarised by Gyles J in Rivera v Minister Administering the Extradition Act 1988 (Cth) [2007] FCAFC 191. It is not necessary for me to repeat or elaborate upon this extensive litigious history.
Case: Rivera v The Commonwealth of Australia [2007] FCA 1465
Outcome: cited
In my view, the administration of justice in this case does not require that the matter be referred to a Registrar to arrange pro bono legal representation or advice for Mr Rivera because his application of 28 December 2007 discloses no reasonable prospects of success, and Mr Rivera has not adduced any evidence or provided any authority to indicate otherwise. The lack of reasonable prospects of success, or where a case is "patently hopeless" or has no "arguable basis", has been regarded by the Court as sufficient reason to refuse a referral under O 80 r 4: see Taylor [2005] FCA 319 at [10] ; Rivera v The Commonwealth of Australia [2007] FCA 1465 at [34] . As a matter of discretion, therefore, I am of the view that it is not appropriate to prolong the present proceedings which are without merit.
Case: Taylor v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 319
Outcome: cited
O 80 r 4(1) of the Federal Court Rules 1979 (Cth) provides: 'The Court or a Judge may , if it is in the interests of the administration of justice , refer a litigant to the Registrar for referral to a legal practitioner on the Pro Bono Panel for legal assistance in relation to a proceeding before the Court.' (Emphasis added.) When considering such an application, O 80 r 4(2) empowers the Court to take into account any matter it deems appropriate, including the means of the litigant, the capacity of the litigant to otherwise obtain legal assistance and the nature and complexity of the proceeding. This discretion is a broad one, and is not limited by those matters set out in O 80 r 4(2): see Taylor v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 319 at [10] - [11] . 7 The issue in the present reasons is whether the discretion of the Court should determine that the "administration of justice" requires Mr Rivera's proceedings to be referred to the Registrar to arrange for pro bono legal representation. 8 In my view, the administration of justice in this case does not require that the matter be referred to a Registrar to arrange pro bono legal representation or advice for Mr Rivera because his application of 28 December 2007 discloses no reasonable prospects of success, and Mr Rivera has not adduced any evidence or provided any authority to indicate otherwise. The lack of reasonable prospects of success, or where a case is "patently hopeless" or has no "arguable basis", has been regarded by the Court as sufficient reason to refuse a referral under O 80 r 4: see Taylor [2005] FCA 319 at [10] ; Rivera v The Commonwealth of Australia [2007] FCA 1465 at [34] . As a matter of discretion, therefore, I am of the view that it is not appropriate to prolong the present proceedings which are without merit.
Case: Ballas v Theophilos (No 2) [1957] HCA 90 ; (1957) 98 CLR 193
Outcome: cited
Applying this approach, in my opinion the letter conveyed clearly and unequivocally that the Distributorship Agreement is to terminate with effect on and from 31 March 2007. If authority is needed for this proposition, it may be found in Ballas v Theophilos (No 2) [1957] HCA 90 ; (1957) 98 CLR 193 at 204-205; see also Young v Lamb at [28].
Case: CIC Insurance Ltd v Bankstown Football Club Ltd (1995) 8 ANZ Ins Cas 61-232
Outcome: cited
It is also to be considered in light of the plain fact that Home Wilkinson Lowry are acting as solicitors for the Hume companies in the present proceedings, notwithstanding that no costs agreement has been produced relating to any such retainer. Thus it may be thought that the solicitors would have authority to deal with all issues which reasonably arise in the pursuit of the proceedings; CIC Insurance Ltd v Bankstown Football Club Ltd (1995) 8 ANZ Ins Cas 61-232 at 75,555 (Kirby P). 44 The observations of Kirby P in CIC Insurance were directed toward ostensible authority. However, here, particularly in light of Mr Leathem's affidavit and the failure to produce a current written retainer, I would infer the existence of actual authority. 45 That termination of the Distributorship under Article 20(3) was part of the subject matter of the proceedings may be seen from my remarks in [32] of my earlier judgment.
Case: Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Outcome: cited
In addition, I can be more comfortable in drawing an inference that the solicitors had actual authority by the failure of the Hume companies to call evidence. I am entitled to infer that the testimony would not have been favourable to Hume's case; Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418 419 (Handley JA). 47 The only other submission which I need to address under this subheading is not concerned with the question of authority. It is whether the email of 22 December 2006, attaching a copy of the letter of the same date, constituted written notice. 48 Counsel for Hume submitted it did not because an email is an electronic representation of writing and therefore does not constitute writing itself as required by Article 20(3). I reject that submission.
Case: DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12 ; (1978) 138 CLR 423
Outcome: cited
In my view neither of these statements constituted a repudiation because they do not evince an intention not to comply with the contract as correctly interpreted; DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12 ; (1978) 138 CLR 423 at 431-432 (Stephen, Mason &amp; Jacobs JJ). 56 In my opinion there is no warrant for the imposition of a condition that Exact pay the compensation required by Article 21. 57 In my earlier judgment at [12] I said that the meaning of Article 21(1)(a) is not entirely clear, although it plainly enough entitles Hume to substantial compensation on termination of the Distributorship Agreement.
Case: Finishing Services Pty Ltd v Lactos Fresh Pty Ltd [2006] FCAFC 177
Outcome: cited
In Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19 ; (1997) AC 749 at 771, Lord Steyn observed that in determining the meaning of the language of a commercial agreement the law favours a "commercially sensible construction". It is hostile to technical interpretations and undue emphasis on niceties of language; see also Finishing Services Pty Ltd v Lactos Fresh Pty Ltd [2006] FCAFC 177 at [25] (Kiefel, Sundberg &amp; Edmonds JJ).
Case: IVI Pty Ltd v Baycrown Pty Ltd [2005] QCA 205
Outcome: cited
It is true, as counsel for Hume submitted, that in general a solicitor does not have implied or ostensible authority to accept contractual notices on behalf of a client, particularly where that amounts to the exercise of a substantive right; see IVI Pty Ltd v Baycrown Pty Ltd [2005] QCA 205 at [4] and [33]; see especially the helpful review of the authorities by Keane JA at [33] [44]. 39 However, I do not need to consider the questions of implied or ostensible authority because in my opinion Messrs Home Wilkinson Lowry had actual authority to receive the notice. 40 This is to be inferred from two pieces of evidence. First, on 20 January 2006, Home Wilkinson Lowry wrote to Exact Software Australia. The letter stated: "We shall be dealing with matters arising under the Distributorship Agreement directly with Exact on behalf of our client."
Case: Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19 ; (1997) AC 749
Outcome: referred to
In Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19 ; (1997) AC 749 at 771, Lord Steyn observed that in determining the meaning of the language of a commercial agreement the law favours a "commercially sensible construction". It is hostile to technical interpretations and undue emphasis on niceties of language; see also Finishing Services Pty Ltd v Lactos Fresh Pty Ltd [2006] FCAFC 177 at [25] (Kiefel, Sundberg &amp; Edmonds JJ).
Case: McGuren v Simpson [2004] NSWSC 35
Outcome: cited
The requirement of written notice is to be construed in light of the fact that this is a commercial agreement made between two companies engaged in the computer software business. I would be blinding myself to commercial and technological realities to find that an email communication in the present circumstances was not written notice; McGuren v Simpson [2004] NSWSC 35 at [20] [21]. 50 There was no suggestion that the email was not received. 51 Hume submitted that the letter of 22 December 2006 was ineffective to terminate the Distributorship Agreement because it did not convey an unequivocal election. This submission focussed upon the use of the words "intention to terminate". This was said to amount to an indication of an intention to send a further notice, at a future date, actually terminating the agreement.
Case: Townsend Carriers Ltd v Pzifer Ltd (1977) 33 Prop &amp; Comp R 361
Outcome: referred to
I should add that it is unnecessary for such a notice to disclose the agency; Townsend Carriers at 365. In any event, the letter of 22 December 2006 stated that the solicitors acted for Exact and that "our client" notifies its intention to terminate. 28 For reasons stated under Issue 2, Article 20(3) did not preclude the giving of notice to an agent, provided of course that the agent had authority to receive it. 29 The same principles of agency apply to the giving and receipt of a notice. Megarry VC said in Townsend Carriers at 365 that he did not "think that the principle it is more blessed to give than to receive is part of the law of landlord and tenant." Nor in my opinion is it part of the principles that apply to the exercise of a contractual power of termination of a commercial contract. 30 Before turning to the principles of agency, it is necessary to deal with the circumstances in which the letter was physically delivered to Hume's solicitors. 31 I am satisfied by the evidence of Ms Naylor, a paralegal employed by Bakers, that she delivered the letter to the offices of the Hume companies' solicitors, Messrs Home Wilkinson Lowry, shortly before noon on 22 December 2006. I am also satisfied that the receptionist accepted service even though the solicitor on the record, Mr Webeck, was not in the office. The affidavit of Ms Cameron does not establish the contrary position.
Case: Young v Lamb (2001) 10 BPR 97867
Outcome: cited
Townsend Carriers Ltd v Pfizer Ltd ( 1977) 33 Prop &amp; Comp R 361 is authority for the proposition that where an agreement does not preclude the giving of notice by an agent, the notice can be given by the agent in its own name; at 365 per Megarry VC. See also Young v Lamb (2001) 10 BPR 97867 at [36] [38] per Stein JA (Mason P &amp; Hodgson JA agreeing). 22 Counsel for Hume sought to advance an argument that the right of "either party" to terminate under Article 20(3) precluded notice by an agent. This submission was based upon the distinction drawn in Article 18(2) between "the Distributor" and its "employees, agents and advisors". 23 However, in my opinion, Article 18(2) must be read in its own context. It provides for the obligations of confidentiality contained in Article 18(1) to apply to Hume's agents. Its basis may be thought to be that Hume may not have absolute control of an agent's use of confidential information. 53 Applying this approach, in my opinion the letter conveyed clearly and unequivocally that the Distributorship Agreement is to terminate with effect on and from 31 March 2007. If authority is needed for this proposition, it may be found in Ballas v Theophilos (No 2) [1957] HCA 90 ; (1957) 98 CLR 193 at 204-205; see also Young v Lamb at [28].
Case: NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235
Outcome: cited
In light of these omissions before the Federal Magistrate, I am not persuaded in the circumstances of this case that it is appropriate for this Court to entertain on appeal any further dispute in relation to the alleged misinterpretation and the effect which it may have had on the reasoning of the Federal Magistrate. In any event, these matters were not raised in the Notice of Appeal before this Court, and have not been addressed by the appellant in submissions. Moreover, insofar as the appellant alleges that the Tribunal did not act logically or rationally in deciding the case, no information was given, no specifics were set out and no argument was put to the Court to support this contention. In any case, the Full Court of this Court has held on several occasions that the mere fact that a decision is not logical is not of itself a ground for judicial review: NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 at [29] ; W404/01A of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 255 at [35] ; VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 at [18] .
Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
Outcome: applied
In its recent decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [35] (' SZBEL '), the High Court enunciated the principle that if the Tribunal takes no step to identify and raise an issue other than those which the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered important comprise all the issues in relation to the decision under review. In the present case, the Federal Magistrate accepted that there was an issue which was different which was considered by the Tribunal. However, having regard to the transcript of the proceedings in the Tribunal, the Federal Magistrate formed the view that the issue had been referred to as an important question by the Tribunal, which was sufficient to satisfy the principle set out in SZBEL . 7 In SZBEL , the High Court refers to an obligation on the Tribunal to invite an applicant to amplify any aspect which it believes will be taken into account and of which the applicant may not be aware. It is not necessary, according to the reasoning in SZBEL , to expressly challenge an applicant by directly putting a proposition contradictory to his or her submissions, but it is important that the matter should at least be referred to. In the present case, I am of the view that the transcript indicates that the Tribunal did signal a concern in relation to the question now raised by the appellant on appeal, namely, his reasons for not going back to Karachi. The Tribunal raised these questions and indicated their importance in questions 46 through to 57 of the transcript before the Tribunal. 8 In those circumstances, although the principles of SZBEL are indeed called into play, I consider that the task imposed on the Tribunal by those principles has been satisfied. Accordingly, having heard the submissions of the appellant and having considered the reasoning of the Tribunal and the Federal Magistrate below, I am of the opinion that this appeal should be dismissed with costs as it does not have any substance and in particular because the question of misinterpretation was not raised either before the Federal Magistrate or in the Notice of Appeal before this Court. 9 For the above reasons, the appeal is dismissed. I will fix costs in this matter at $4000. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 6 August 2007 Counsel for the Appellant: None Solicitor for the Appellant: None Counsel for the Respondent: Mr T. Reilly Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 1 August 2007 Date of Judgment: 1 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1171.html
Case: VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286
Outcome: cited
In light of these omissions before the Federal Magistrate, I am not persuaded in the circumstances of this case that it is appropriate for this Court to entertain on appeal any further dispute in relation to the alleged misinterpretation and the effect which it may have had on the reasoning of the Federal Magistrate. In any event, these matters were not raised in the Notice of Appeal before this Court, and have not been addressed by the appellant in submissions. Moreover, insofar as the appellant alleges that the Tribunal did not act logically or rationally in deciding the case, no information was given, no specifics were set out and no argument was put to the Court to support this contention. In any case, the Full Court of this Court has held on several occasions that the mere fact that a decision is not logical is not of itself a ground for judicial review: NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 at [29] ; W404/01A of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 255 at [35] ; VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 at [18] .
Case: W404/01A of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 255
Outcome: cited
In light of these omissions before the Federal Magistrate, I am not persuaded in the circumstances of this case that it is appropriate for this Court to entertain on appeal any further dispute in relation to the alleged misinterpretation and the effect which it may have had on the reasoning of the Federal Magistrate. In any event, these matters were not raised in the Notice of Appeal before this Court, and have not been addressed by the appellant in submissions. Moreover, insofar as the appellant alleges that the Tribunal did not act logically or rationally in deciding the case, no information was given, no specifics were set out and no argument was put to the Court to support this contention. In any case, the Full Court of this Court has held on several occasions that the mere fact that a decision is not logical is not of itself a ground for judicial review: NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 at [29] ; W404/01A of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 255 at [35] ; VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 at [18] .