mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Buck v Comcare (1996) 66 FCR 359
Outcome: considered
In Buck v Comcare (1996) 66 FCR 359 (' Buck' ), Finn J refused to read a 'reasonable excuse provision' in federal legislation as if it were impliedly qualified by the words 'in the opinion of Comcare'. His Honour said at 362: 'I am, in effect, being asked to construe s 57(2) as if it were worded: "Where, in the opinion of Comcare, an employee refuses or fails, without reasonable excuse, to undergo ...". Cf the like implication sought in Minister for Immigration and Ethnic Affairs v Naumovska (1983) 88 ALR 589 at 601. The formula "without reasonable excuse" occurs commonly enough as a ground of exculpation in penal provisions of statutes: see, eg, Australian Securities Commission Act 1989 (Cth), s 63 and Australian Securities Commission v Ampolex Ltd (1995) 38 NSWLR 504; see also Broadbent v Fairbairn (unreported, Federal Court, Drummond J, 10 July 1995). In these instances the presence or absence of such an excuse is, properly, a matter for judicial determination. In contrast, though, there are instances of its use in legislation in circumstances where the determination required is given to an administrative agency or tribunal with the consequence that judicial supervision of that determination is a matter of judicial review: see, eg, Health Insurance Act 1973 (Cth) ss 23DZG(c) and 124FF (2) and Reddy v Medicare Participation and Review Committee (1994) 34 ALD 477.' Here, both parties submitted that the subsistence of legal professional privilege in Exhibit 665 and the existence of a reasonable excuse within the meaning of s 3(5) of the RCA were properly matters for judicial determination which could be undertaken without reviewing the Commissioner's rulings. 178 National Crime Authority v S (1991) 29 FCR 203 does not stand for any contrary proposition. It provides an example of the second type of legislation mentioned by Finn J in Buck. The case concerned the National Crime Authority Act 1984 (Cth) which specifically empowered the National Crime Authority to decide whether a claim for legal professional privilege was justified. The legislation attached legal force and effect to that determination, subject to a right to apply to the Federal Court for an order of review. Likewise, Brannigan v Davison [1997] AC 238 turned on its facts, and the special features of the legislation that was in issue.
Case: National Crime Authority v S (1991) 29 FCR 203
Outcome: cited
National Crime Authority v S (1991) 29 FCR 203 does not stand for any contrary proposition. It provides an example of the second type of legislation mentioned by Finn J in Buck. The case concerned the National Crime Authority Act 1984 (Cth) which specifically empowered the National Crime Authority to decide whether a claim for legal professional privilege was justified. The legislation attached legal force and effect to that determination, subject to a right to apply to the Federal Court for an order of review. Likewise, Brannigan v Davison [1997] AC 238 turned on its facts, and the special features of the legislation that was in issue.
Case: Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564
Outcome: considered
This Court has power to grant declaratory relief under s 21 of the Federal Court Act 1976 (Cth). In their joint judgment in Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 581-582, Mason CJ, Dawson, Toohey and Gaudron JJ described the nature of a superior court's power to grant declaratory relief: 'It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which "[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise". However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have "a real interest" and relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that [have] not occurred and might never happen" or if "the Court's declaration will produce no foreseeable consequences for the parties".' The making of a declaration and the terms in which it should be framed are in the court's discretion: see Brennan J at 596; see also Mayfair Trading Pty Ltd v Drewey [1958] HCA 55 ; (1958) 101 CLR 428 at 454 per Dixon CJ; Tito v Waddell (No 2) [1977] Ch 106 at 259.
Case: Bass v Permanent Trustee Company Ltd [1999] HCA 9 ; (1999) 198 CLR 334
Outcome: cited
The courts have stressed that it is important that declaratory relief be aimed only at the resolution of real rather than theoretical questions: see Bass v Permanent Trustee Company Ltd [1999] HCA 9 ; (1999) 198 CLR 334 at 355-357 [47] - [49] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; CE Heath Casualty and General Insurance Ltd v Pyramid Building Society [1997] 2 VR 256 at 260-262 and 284-285; Electricity Supply Association of Australia v Australian Competition and Consumer Commission [2001] FCA 1296 ; (2001) 113 FCR 230 at 265. 192 I have concluded that it is inappropriate to grant declaratory relief in relation to the Commissioner's powers under the RCA. 193 The declarations claimed by AWB are expressed very broadly and do not reflect the issues that were litigated in this Court or are contrary to the conclusions I have reached. Leaving aside the Commonwealth's submission as to the Commissioner's limited powers of inspection, neither party contended that the Commissioner had power to order the production of a privileged document. The Commissioner did not purport to exercise any such power. It is therefore inappropriate to make the first declaration sought by AWB. The other declarations sought by AWB are inconsistent with my conclusions on the relevant issues.
Case: Scope Data Systems Pty Ltd v David Goman as Representative of the partnership BDO Nelson Parkhill [2007] NSWSC 278
Outcome: cited
Counsel for the parties referred me to several authorities on the statutory provisions to which I have referred, in factual contexts in which mail addressed to a company's registered office was deposited in its Post Office box rather than delivered by post to the registered office. These "diversion arrangement" cases were recently comprehensively reviewed by White J in the Supreme Court of New South Wales in Scope Data Systems Pty Ltd v David Goman as Representative of the partnership BDO Nelson Parkhill [2007] NSWSC 278. 37 In view of my conclusion that the evidence is not sufficient, in the light of the evidence of Ms Mannile's practice of collecting the mail from Box 590 and taking it to Unit 3, to raise doubt about the presumption under s 160(1) of the Evidence Act that the statutory demand was received at Unit 3 on Monday 4 December 2006, I need not discuss the question whether, and if so in what circumstances, an arrangement for the diversion by the Post Office of mail addressed to a company's registered office to a Post Office box can be relied on by a company to overcome the statutory presumption as to time of receipt contained in s 160(1) of the Evidence Act and the deemed time of service provision contained in the second limb of s 29(1) of the Acts Interpretation Act . 38 Before I conclude, I make the following observations concerning the state of evidence in this case. As noted earlier, no witness on either side was cross examined. The defendant did not dispute that the statutory demand was posted to Unit 3 as Ms Taylor deposed, but I would have expected the plaintiff to adduce more precise evidence than was led here of posting. I am left to infer on the basis of Ms Taylor's unchallenged affidavit evidence that she remembered on 15 January 2007 (when she made her affidavit) having attended a Post Office on November 28 2006 and posted the statutory demand there in an envelope addressed to Unit 3. Were there no business records of this posting? None were put in evidence. 39 Where, as here, delivery is put in issue, a plaintiff should adduce detailed evidence of the facts relied upon to prove posting. The evidence should include express evidence that the document was not returned to the sender undelivered. 40 The defendant's evidence was also slender but this may be excusable. In a small business, a record of incoming mail may be maintained. If not, the company simply suffers the disadvantage when a case such as the present one arises of not being able to prove a negative. Nonetheless, the present defendant's evidence might also, with benefit, have been more detailed. At least, the evidence should have addressed the question of the recording of mail collected from the Post Office and received at Unit 3, the opening and distribution of the mail at Unit 3, the number of staff there to whom mail was distributed, and Ms Mannile's state of recollection or lack of recollection of relevant events.
Case: House v R [1936] HCA 40 ; (1936) 55 CLR 499
Outcome: cited
A decision to refuse an application for the adjournment of a hearing is a discretionary decision which will not lightly be overruled on appeal: see Sali v SPC Limited [1993] HCA 47 ; (1993) 116 ALR 625; House v R [1936] HCA 40 ; (1936) 55 CLR 499. An appeal court will only intervene if the discretion has not been exercised judicially "or where its exercise was based upon the wrong principle or resulted in gross injustice": Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246 at 252.
Case: Livesey v NSW Bar Association [1983] HCA 17 ; (1983) 151 CLR 288
Outcome: applied
The principles which are to be applied, when applications are made for disqualification on the ground of bias in cases such as the present, were explained by the High Court in Livesey v NSW Bar Association [1983] HCA 17 ; (1983) 151 CLR 288. The Court said (at 293-294) that: "That principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it." The joint judgment continued (at 300): "It is, however, apparent that, in a case such as the present where it is not suggested that there is any overriding consideration of necessity, special circumstances or consent of a party, a fair minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact."
Case: Sali v SPC Limited [1993] HCA 47 ; (1993) 116 ALR 625
Outcome: cited
A decision to refuse an application for the adjournment of a hearing is a discretionary decision which will not lightly be overruled on appeal: see Sali v SPC Limited [1993] HCA 47 ; (1993) 116 ALR 625; House v R [1936] HCA 40 ; (1936) 55 CLR 499. An appeal court will only intervene if the discretion has not been exercised judicially "or where its exercise was based upon the wrong principle or resulted in gross injustice": Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246 at 252.
Case: Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246
Outcome: referred to
A decision to refuse an application for the adjournment of a hearing is a discretionary decision which will not lightly be overruled on appeal: see Sali v SPC Limited [1993] HCA 47 ; (1993) 116 ALR 625; House v R [1936] HCA 40 ; (1936) 55 CLR 499. An appeal court will only intervene if the discretion has not been exercised judicially "or where its exercise was based upon the wrong principle or resulted in gross injustice": Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246 at 252.
Case: Re Wilson v Official Trustee in Bankruptcy [1999] FCA 1760
Outcome: discussed
In Re Wilson v Official Trustee in Bankruptcy [1999] FCA 1760 the applicants sought an annulment of their bankruptcies under s 153B of the Act . Sequestration orders had been made on the basis of a judgment debt obtained from the New South Wales District Court. The applicants claimed that the creditor was not entitled to judgment in the full amount of the debt because of certain payments earlier made. Emmett J dismissed the applications. He declined to follow Greenhill and held that s 41(5) "is concerned with a claim of a bankruptcy notice for an amount greater than is, in fact, [owed] under a judgment " (emphasis in original). His Honour explained his reasons for differing from Morling J as follows: "[39] A bankruptcy notice must require the debtor to pay the judgment debt, in accordance with the judgment. The pre-existing obligation, which the judgment is intended to enforce, will have merged in the new obligation created by the judgment see Corney v Brien [1951] HCA 31 ; (1951) 84 CLR 343 at 353-354. It may well be that there would be good grounds for setting aside a judgment which was entered for an excessive amount. Further, it may be that this Court, as a Court of Bankruptcy would go behind a judgement in order to determine whether there was, in fact, anything due. Following the entry of a judgment, however, the amount due by the judgment debtor to the judgment creditor, and the amount for which execution might issue, is the sum stated in the judgment. Where a bankruptcy notice claims that amount, it cannot be said that it claims an amount that exceeds the amount in fact due. By reason of the judgment itself, the amount of the judgment is due. [40] Upon an application to a court exercising jurisdiction in bankruptcy to set aside a bankruptcy notice, the court should not go behind a judgment where the grounds upon which the judgment is challenged are such that, if accepted, they would only support a finding that the amount of the debt be reduced, and would not support a finding that there was, in truth, no debt at all see Emerson v Wreckair Pty Ltd (1992) 33 FCR 581 at 589. That decision of a Full Court of this Court is binding upon me and, it appears to me, that it would preclude a Judge, on hearing a bankruptcy petition, to go behind the judgment if the only purpose for doing so would be to show that the amount of the judgment should be reduced, not to show that no amount was owing. It may be relevant, if the amount of the judgment should be reduced to an amount below the minimum amount that supports a petition. However, that is not the case here."
Case: Vakauta v Kelly [1989] HCA 44 ; (1989) 167 CLR 568
Outcome: referred to
Mrs Perovich contends that a reasonable apprehension of bias on the part of the Federal Magistrate arose in the present case because he had earlier made adverse findings relating to her credit and because there was a significant issue to be decided which depended, if she were to prevail, upon acceptance of her evidence that she was not insolvent. During argument senior counsel accepted that, by reason of the effluxion of time, the Federal Magistrate may well have forgotten that he had earlier made adverse findings concerning Mrs Perovich's credibility. Although Traditional Values had been referred to in the Magistrate's reasons, it was possible that this was because the Magistrate had extracted the case name from Court records without re-reading his reasons. Nonetheless, senior counsel submitted that the reasonable observer, seized of the knowledge that the earlier adverse credit findings had been made, would entertain a reasonable suspicion that the Magistrate would have regard to those findings when resolving credibility issues in the present case. Although the disqualification application had been made only by reference to the Federal Magistrate's earlier refusal to set aside the bankruptcy notice, the application had been made. This was not a case, so the argument ran, in which an applicant with good reason to seek a judge's disqualification stood by in the hope of a favourable decision and only alleged bias once that hope had been disappointed: cf Vakauta v Kelly [1989] HCA 44 ; (1989) 167 CLR 568 at 572. 34 Had the resolution of any significant issue in the present case turned on Mrs Perovich's credit, other issues may have arisen as to whether or not Mrs Perovich should be allowed to raise, on appeal, a ground supporting disqualification which could have been, but was not, advanced before the Federal Magistrate: cf Water Board v Moustakas [1988] HCA 12 ; (1988) 180 CLR 491 at 497; Vakauta at 572.
Case: Water Board v Moustakas [1988] HCA 12 ; (1988) 180 CLR 491
Outcome: referred to
Had the resolution of any significant issue in the present case turned on Mrs Perovich's credit, other issues may have arisen as to whether or not Mrs Perovich should be allowed to raise, on appeal, a ground supporting disqualification which could have been, but was not, advanced before the Federal Magistrate: cf Water Board v Moustakas [1988] HCA 12 ; (1988) 180 CLR 491 at 497; Vakauta at 572.
Case: R v Australian Broadcasting Tribunal; Ex parte Fowler (1980) 31 ALR 565
Outcome: cited
The Magistrate noted that he had a discretion to dismiss an application for judicial review in a case where there had been an unwarrantable delay. He observed that the discretion can be exercised against an applicant without determining whether there has been any jurisdictional error, citing R v Australian Broadcasting Tribunal ; Ex parte Fowler (1980) 31 ALR 565, at 568-570 per Barwick CJ, Gibbs, Stephen, Mason and Aickin JJ and S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283. His Honour also said, on the authority of Re Commonwealth of Australia ; Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491, at 495-496, per McHugh J, that ordinarily a delay of more than one year should lead to relief being refused, at least in the absence of an explanation.
Case: S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283
Outcome: cited
The Magistrate noted that he had a discretion to dismiss an application for judicial review in a case where there had been an unwarrantable delay. He observed that the discretion can be exercised against an applicant without determining whether there has been any jurisdictional error, citing R v Australian Broadcasting Tribunal ; Ex parte Fowler (1980) 31 ALR 565, at 568-570 per Barwick CJ, Gibbs, Stephen, Mason and Aickin JJ and S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283. His Honour also said, on the authority of Re Commonwealth of Australia ; Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491, at 495-496, per McHugh J, that ordinarily a delay of more than one year should lead to relief being refused, at least in the absence of an explanation.
Case: Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491
Outcome: cited
The Magistrate noted that he had a discretion to dismiss an application for judicial review in a case where there had been an unwarrantable delay. He observed that the discretion can be exercised against an applicant without determining whether there has been any jurisdictional error, citing R v Australian Broadcasting Tribunal ; Ex parte Fowler (1980) 31 ALR 565, at 568-570 per Barwick CJ, Gibbs, Stephen, Mason and Aickin JJ and S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283. His Honour also said, on the authority of Re Commonwealth of Australia ; Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491, at 495-496, per McHugh J, that ordinarily a delay of more than one year should lead to relief being refused, at least in the absence of an explanation.
Case: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd [1949] HCA 33 ; (1949) 78 CLR 389
Outcome: cited
In R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd [1949] HCA 33 ; (1949) 78 CLR 389, the High Court pointed out that the writ of mandamus is not a writ of right and that there are well recognised grounds upon which the Court may, in its discretion, withhold the remedy. By way of example, the Court stated (at 400) that the writ may be withheld if the relevant party has been guilty of unwarrantable delay.
Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 , 
Outcome: cited
In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162, McHugh J said (at [80]): ' The issuing of writs under s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary. Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands. ' [Citations omitted.] See also at [211], per Hayne J, with whom Kirby J agreed on this issue. 22 The difficulty with the approach of the Magistrate is that he did not ask whether the circumstances of the delay justified the withholding of relief in the event that the appellant established that the RRT had committed a jurisdictional error. Rather, the cases upon which he relied suggest that he required the appellant to satisfy the Court that a discretion should be exercised in his favour, having regard to the fact that the delay exceeded one year. 23 On any view, the appellant was guilty of long delay and no satisfactory excuse was or could be proffered for that delay. But the question asked by the Magistrate, in my view, was not the correct one and this led to his discretion miscarrying on this issue.
Case: Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62 ; (1989) 169 CLR 379
Outcome: cited
The notion of 'systematic conduct' was referred to in Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62 ; (1989) 169 CLR 379, at 429-430, per McHugh J. As McHugh J observed in Minister for Immigration and Multicultural Affairs v Ibrahim [2000] HCA 55 ; (2000) 204 CLR 1, at [95], the use of this expression proved somewhat unfortunate in that some RRT decisions read it as meaning that there can be no persecution for the purposes of the Convention unless there has been a systematic course of conduct by the oppressor. McHugh J made it clear in Ibrahim that that had not been his meaning. Rather, he intended the expression to be a synonym for 'non-random'. McHugh J also said this (at [99]): ' It is an error to suggest that the use of the expression "systematic conduct" in ... Chan was intended to require, as a matter of law, that an applicant had to fear organised or methodical conduct, akin to the atrocities committed by the Nazis in the Second World War. Selective harassment, which discriminates against a person for a Convention reason, is inherent in the notion of persecution. Unsystematic or random acts are non-selective. It is therefore not a prerequisite to obtaining refugee status that a person fears being persecuted on a number of occasions or "must show a series of co-ordinated acts directed at him or her which can be said to be not isolated but systematic". The fear of a single act of harm done for a Convention reason will satisfy the Convention definition of persecution if it is so oppressive that the individual cannot be expected to tolerate it so that refusal to return to the country of the applicant's nationality is the understandable choice of that person. ' [Citations omitted.] 26 In the present case, the RRT used the expression 'a course of systematic conduct', or its equivalent, on three separate occasions. On each occasion, the RRT cited the observations of McHugh J in Chan . Of course, the RRT's decision in the present case was handed down long before the clarification of the law in Ibrahim .