mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Applicants 42/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 207
Outcome: distinguished
The first respondent refers also to the decision in A42 of 2003 v Minister for Immigration [2004] FMCA 1002 , affirmed by Jacobson J in this Court ( Applicants 42/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 207) and refused special leave to appeal to the High Court by Heydon and Crennan JJ ( Applicants A42 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCATrans 967). In that case, it was decided that it was appropriate to dismiss an application for review as an abuse of process in circumstances where an earlier application for an order nisi had been dismissed by consent (without a merits hearing taking place).
Case: Applicants A42 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCATrans 967
Outcome: distinguished
The first respondent refers also to the decision in A42 of 2003 v Minister for Immigration [2004] FMCA 1002 , affirmed by Jacobson J in this Court ( Applicants 42/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 207) and refused special leave to appeal to the High Court by Heydon and Crennan JJ ( Applicants A42 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCATrans 967). In that case, it was decided that it was appropriate to dismiss an application for review as an abuse of process in circumstances where an earlier application for an order nisi had been dismissed by consent (without a merits hearing taking place).
Case: Applicants S503/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 133
Outcome: distinguished
Raphael FM in his decision relied upon authorities relating to dismissal of migration proceedings as an abuse of process: specifically Applicants S503/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 133. However, as Edmonds J pointed out in his reasons for judgment on the grant of leave to appeal, this decision (and another decision to which it referred, namely Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 ; (2004) 146 FCR 10) were both decided in circumstances where a second application to the Federal Magistrates Court had been lodged after the first application had been heard and dismissed by the Court . That is clearly distinguishable from the present case, in which the appellant's application for judicial review has never had a merits hearing, and the first respondent conceded as much. 24 The first respondent, however, says that Raphael FM relied upon Walton v Gardiner rather than Applicants S503 . I disagree with the first respondent that Walton v Gardiner indicates that a case should be dismissed as an abuse of process where proceedings of the same nature have previously been discontinued, even where no determination on the merits has taken place. I would respectfully adopt the reasoning of Edmonds J in respect of this matter. It appears to me that the words ' disposed of ' in the passage from Walton v Gardiner cited above are intended, in all the circumstances, to mean ' dismissed '. I do not consider they necessarily decide the question in respect of cases where a notice of discontinuance is filed before a merits hearing has taken place.
Case: B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30
Outcome: discussed
His Honour added at [9]: 'This is not the first time the court has had to deal with a problem caused by the alleged fault of a migration agent. It has been made clear by Dowsett J in B41 of 2003 v Minister for Immigration [2004] FCA 30 that failures of a migration agent do not constitute grounds for alleging jurisdictional error on the part of the Tribunal. It may be that if the applicant has been badly served by his migration agent, the Minister will hear sympathetically an application under s 48B of the Migration Act 1958 (Cth) ('the Act'). In the meantime court proceedings relating to the decision must be brought to an end.' 16 There is no suggestion in his reasons that Raphael FM relied upon the statements contained in the affidavit of Mr Clisby to the effect that the appellant was aware of the institution and discontinuance of the Adelaide proceedings. 30 There is another aspect of his Honour's decision which I believe warrants consideration. That is the statement by his Honour (reproduced at [15] above) that failures of a migration agent do not constitute grounds for alleging jurisdictional error on the part of the Tribunal. In support of this proposition Raphael FM cited the decision of Dowsett J in B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30. 31 B41 was a case in which the appellant alleged that he had failed to attend the Tribunal hearing because of advice from his migration adviser that it was not necessary for him to do so. The appellant also alleged that his migration adviser had not passed on copies of letters of invitation to the Tribunal. In that case, Dowsett J held that failures by a migration agent could not be a basis for an allegation that the Tribunal failed to afford the appellant procedural fairness.
Case: Hot Holdings Pty Ltd v Creasy and Ors [2002] HCA 51 ; (2002) 210 CLR 438
Outcome: referred to
The principle enunciated by Dowsett J was clearly correct, and is supported by numerous other authorities: see NADK of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 184 ; SZEYH v Minister for Immigration and Multicultural Affairs and Anor [2006] FCA 93 ; (2006) 150 FCR 397; Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876. For an allegation of procedural unfairness to be made out, it will usually be the case that fault must be established on the part of the decision-maker (although I note the observations of Gleeson CJ in Hot Holdings Pty Ltd v Creasy and Ors [2002] HCA 51 ; (2002) 210 CLR 438 at [22] where his Honour observed that procedural fairness can occur without any personal fault on the part of the decision-maker).
Case: NADK of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 184
Outcome: cited
The principle enunciated by Dowsett J was clearly correct, and is supported by numerous other authorities: see NADK of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 184 ; SZEYH v Minister for Immigration and Multicultural Affairs and Anor [2006] FCA 93 ; (2006) 150 FCR 397; Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876. For an allegation of procedural unfairness to be made out, it will usually be the case that fault must be established on the part of the decision-maker (although I note the observations of Gleeson CJ in Hot Holdings Pty Ltd v Creasy and Ors [2002] HCA 51 ; (2002) 210 CLR 438 at [22] where his Honour observed that procedural fairness can occur without any personal fault on the part of the decision-maker).
Case: SQMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 979
Outcome: cited
The fault of a migration agent has in fact been taken into account in at least one application for an extension of time in which to file an appeal in this Court: see SQMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 979. In that case, Lander J was satisfied that the applicants were unaware that they had brought proceedings in this Court, and that the failure to file the notice of appeal in time was the fault of his migration agent: see at [51] and [52]. His Honour held that, given those factors, the interests of justice dictated that the applicants should be granted an extension of time. 36 I see no reason why the faults of a migration agent should not similarly be taken into account in an application for dismissal on the grounds of abuse of process. The knowledge and culpability of the appellant in these proceedings is, in my opinion, a material factor in deciding whether the prejudice to the first respondent can be justified in all the circumstances. Of course, any misconduct of a migration agent must be proven. In these proceedings, however, the appellant provided oral evidence of his migration agent's conduct to the Federal Magistrates Court. There are certainly many curious features in the history of these proceedings which appear to be difficult to reconcile with an appropriate standard of behaviour on the part of the appellant's migration agent. Raphael FM was sufficiently concerned by the evidence given by the appellant that he referred the papers to the Migration Agents Review Panel for consideration. Nonetheless, his Honour clearly indicated that he did not consider that this matter had any bearing on his determination that the matter was an abuse of process. In my opinion, this was an error of principle which also justifies the quashing of his Honour's decision.
Case: SZEYH v Minister for Immigration and Multicultural Affairs and Anor [2006] FCA 93 ; (2006) 150 FCR 397
Outcome: cited
The principle enunciated by Dowsett J was clearly correct, and is supported by numerous other authorities: see NADK of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 184 ; SZEYH v Minister for Immigration and Multicultural Affairs and Anor [2006] FCA 93 ; (2006) 150 FCR 397; Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876. For an allegation of procedural unfairness to be made out, it will usually be the case that fault must be established on the part of the decision-maker (although I note the observations of Gleeson CJ in Hot Holdings Pty Ltd v Creasy and Ors [2002] HCA 51 ; (2002) 210 CLR 438 at [22] where his Honour observed that procedural fairness can occur without any personal fault on the part of the decision-maker).
Case: SZFOG v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1374
Outcome: referred to
The appellant applied for leave to appeal from the decision of Raphael FM on 2 August 2005. Edmonds J delivered judgment on the application for leave to appeal on 30 September 2005 and granted leave to the appellant: see SZFOG v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1374. Edmonds J, after considering numerous authorities relating to abuse of process, found that it was arguable that Raphael FM erred in dismissing the appellant's case as an abuse of process when there had been no hearing on the merits. His Honour referred in particular to the fact that, in contrast to the facts in the present appeal, several of the authorities relied upon by Raphael FM involved an issue estoppel: see at [18] of the reasons of Edmonds J.
Case: Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 ; (2004) 146 FCR 10
Outcome: distinguished
Raphael FM in his decision relied upon authorities relating to dismissal of migration proceedings as an abuse of process: specifically Applicants S503/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 133. However, as Edmonds J pointed out in his reasons for judgment on the grant of leave to appeal, this decision (and another decision to which it referred, namely Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 ; (2004) 146 FCR 10) were both decided in circumstances where a second application to the Federal Magistrates Court had been lodged after the first application had been heard and dismissed by the Court . That is clearly distinguishable from the present case, in which the appellant's application for judicial review has never had a merits hearing, and the first respondent conceded as much.
Case: ACCC v J McPhee &amp; Son (Australia) Pty Ltd (1997) 77 FCR 217
Outcome: cited
In January 2008, the defendants sought a stay of the claims made against MPG by ASIC pending the hearing and determination of the claims made against the directors or a stay of the claims made against MPG by ASIC until the Court has made findings of fact in relation to the claims against the directors but before final orders. The application was supported by an affidavit sworn by a Mr Babbage, a non-executive director of MPG. The application was refused: ASIC No. 2 . In considering the application for stay, a number of principles informed that decision: see ASIC No. 2 at [5] to [7]. They included: 1. The privilege against self-incrimination and penalty privilege apply to the directors but not MPG: ASIC No. 1 at [5] and ASIC No. 2 at [7]. 2. A corporate defendant (such as MPG) may be required to provide documents and information which may tend to incriminate its officers: Trade Practices Commission v Abbco Iceworks Pty Ltd [1994] FCA 1279 ; (1994) 52 FCR 96 at 116. 3. A corporate defendant cannot invoke privilege on the grounds that an order or requirement to produce documents or information might tend to incriminate a natural person, such as a director: Microsoft Corporation v CX Computer Pty Ltd [2002] FCA 3 ; (2002) 116 FCR 372 at [32] - [33] (per Lindgren J) and ASIC No. 1 at [5]. 4. A natural person cannot complain that a corporate defendant's compliance with an order or requirement to produce documents or information might tend to incriminate him or her: Microsoft Corporation v CX Computer Pty Ltd [2002] FCA 3 ; (2002) 116 FCR 372 at [32] - [33] (per Lindgren J) and ASIC No. 1 at [5]. 5. The relevant enquiry is whether an order directed to the corporate defendant will require that a natural person tend to incriminate himself or herself: Microsoft Corporation v CX Computer Pty Ltd [2002] FCA 3 ; (2002) 116 FCR 372 at [32] - [33] (per Lindgren J) and ASIC No. 1 at [5]. No submission has been made to that effect in this case. 6. A corporate defendant cannot refuse to comply with a direction for the filing of evidence on the basis that its evidence may incriminate other natural person defendants or expose them to a penalty: Chief Executive Officer of Customs v Camile Trading Pty Ltd [2004] NSWSC 1256 ; (2004) 58 ATR 163 at 170. However, a corporate defendant will not breach such a direction if it fails to file a statement or an affidavit from a witness where that witness claims privilege: ACCC v J McPhee &amp; Son (Australia) Pty Ltd (1997) 77 FCR 217 at 220 and ACCC v Eurong Beach Resort Ltd [2005] FCA 1134 at [10] , [12] and [13]. That is to say, compliance is not required " if the only source of the information is the director defendants and they are entitled to remain silent ": ASIC No. 1 at [5] (emphasis added). If the corporate defendant has other sources of information available from which it can comply with the direction, then it must do so.
Case: ACCC v Eurong Beach Resort Ltd [2005] FCA 1134
Outcome: cited
In January 2008, the defendants sought a stay of the claims made against MPG by ASIC pending the hearing and determination of the claims made against the directors or a stay of the claims made against MPG by ASIC until the Court has made findings of fact in relation to the claims against the directors but before final orders. The application was supported by an affidavit sworn by a Mr Babbage, a non-executive director of MPG. The application was refused: ASIC No. 2 . In considering the application for stay, a number of principles informed that decision: see ASIC No. 2 at [5] to [7]. They included: 1. The privilege against self-incrimination and penalty privilege apply to the directors but not MPG: ASIC No. 1 at [5] and ASIC No. 2 at [7]. 2. A corporate defendant (such as MPG) may be required to provide documents and information which may tend to incriminate its officers: Trade Practices Commission v Abbco Iceworks Pty Ltd [1994] FCA 1279 ; (1994) 52 FCR 96 at 116. 3. A corporate defendant cannot invoke privilege on the grounds that an order or requirement to produce documents or information might tend to incriminate a natural person, such as a director: Microsoft Corporation v CX Computer Pty Ltd [2002] FCA 3 ; (2002) 116 FCR 372 at [32] - [33] (per Lindgren J) and ASIC No. 1 at [5]. 4. A natural person cannot complain that a corporate defendant's compliance with an order or requirement to produce documents or information might tend to incriminate him or her: Microsoft Corporation v CX Computer Pty Ltd [2002] FCA 3 ; (2002) 116 FCR 372 at [32] - [33] (per Lindgren J) and ASIC No. 1 at [5]. 5. The relevant enquiry is whether an order directed to the corporate defendant will require that a natural person tend to incriminate himself or herself: Microsoft Corporation v CX Computer Pty Ltd [2002] FCA 3 ; (2002) 116 FCR 372 at [32] - [33] (per Lindgren J) and ASIC No. 1 at [5]. No submission has been made to that effect in this case. 6. A corporate defendant cannot refuse to comply with a direction for the filing of evidence on the basis that its evidence may incriminate other natural person defendants or expose them to a penalty: Chief Executive Officer of Customs v Camile Trading Pty Ltd [2004] NSWSC 1256 ; (2004) 58 ATR 163 at 170. However, a corporate defendant will not breach such a direction if it fails to file a statement or an affidavit from a witness where that witness claims privilege: ACCC v J McPhee &amp; Son (Australia) Pty Ltd (1997) 77 FCR 217 at 220 and ACCC v Eurong Beach Resort Ltd [2005] FCA 1134 at [10] , [12] and [13]. That is to say, compliance is not required " if the only source of the information is the director defendants and they are entitled to remain silent ": ASIC No. 1 at [5] (emphasis added). If the corporate defendant has other sources of information available from which it can comply with the direction, then it must do so.
Case: McKellar v Container Terminal Management Services Ltd [1999] FCA 1639
Outcome: cited
ASIC also sought an order that the costs be paid forthwith: O 62 r3(3) of the Federal Court Rules . In support of its application, ASIC referred to the fact that additional costs had been incurred in making arrangements for Mr Blackburn to give his evidence from Peru. The principles which govern the exercise of the discretion under O 62 r 3 were set out by Branson J in Life Airbag Company of Australia Pty Ltd v Life Airbag Company (New Zealand) Ltd (22 May 1998, unreported) and Allstate Life Insurance Co v Australia &amp; New Zealand Banking Group Limited (No.14) (Lindgren J, 18 August 1995, unreported) as cited in McKellar v Container Terminal Management Services Ltd [1999] FCA 1639 at [13] [20]. The effect of those cases is to suggest that courts will depart from the general rule and order payment forthwith principally where final judgment is "far away" and thus the eventuality of payment is remote. Consistent with those authorities, it is inappropriate in this case to order payment forthwith of the costs thrown away. The trial is now set for September, and final resolution of the proceeding is therefore not too far away. Moreover, the costs incurred were not quantified and the plaintiff is ASIC, a government entity with sufficient funding to meet its costs in the interim. 25 Accordingly, I will order that MPG pay ASIC's costs thrown away but make no order for immediate payment or taxation. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon. Associate: Dated: 24 June 2008 Counsel for the Plaintiff: Mr J Elliott SC and Mr D Bennett Solicitor for the Plaintiff: Australian Securities and Investments Commission Counsel for the Defendants: Mr R Richter QC and Mr H Carmichael Solicitor for the Defendants: Oakley Thompson &amp; Co Date of Hearing: 12 June 2008, 19 June 2008 Date of Judgment: 24 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/952.html
Case: Microsoft Corporation v CX Computer Pty Ltd [2002] FCA 3 ; (2002) 116 FCR 372
Outcome: applied
In January 2008, the defendants sought a stay of the claims made against MPG by ASIC pending the hearing and determination of the claims made against the directors or a stay of the claims made against MPG by ASIC until the Court has made findings of fact in relation to the claims against the directors but before final orders. The application was supported by an affidavit sworn by a Mr Babbage, a non-executive director of MPG. The application was refused: ASIC No. 2 . In considering the application for stay, a number of principles informed that decision: see ASIC No. 2 at [5] to [7]. They included: 1. The privilege against self-incrimination and penalty privilege apply to the directors but not MPG: ASIC No. 1 at [5] and ASIC No. 2 at [7]. 2. A corporate defendant (such as MPG) may be required to provide documents and information which may tend to incriminate its officers: Trade Practices Commission v Abbco Iceworks Pty Ltd [1994] FCA 1279 ; (1994) 52 FCR 96 at 116. 3. A corporate defendant cannot invoke privilege on the grounds that an order or requirement to produce documents or information might tend to incriminate a natural person, such as a director: Microsoft Corporation v CX Computer Pty Ltd [2002] FCA 3 ; (2002) 116 FCR 372 at [32] - [33] (per Lindgren J) and ASIC No. 1 at [5]. 4. A natural person cannot complain that a corporate defendant's compliance with an order or requirement to produce documents or information might tend to incriminate him or her: Microsoft Corporation v CX Computer Pty Ltd [2002] FCA 3 ; (2002) 116 FCR 372 at [32] - [33] (per Lindgren J) and ASIC No. 1 at [5]. 5. The relevant enquiry is whether an order directed to the corporate defendant will require that a natural person tend to incriminate himself or herself: Microsoft Corporation v CX Computer Pty Ltd [2002] FCA 3 ; (2002) 116 FCR 372 at [32] - [33] (per Lindgren J) and ASIC No. 1 at [5]. No submission has been made to that effect in this case. 6. A corporate defendant cannot refuse to comply with a direction for the filing of evidence on the basis that its evidence may incriminate other natural person defendants or expose them to a penalty: Chief Executive Officer of Customs v Camile Trading Pty Ltd [2004] NSWSC 1256 ; (2004) 58 ATR 163 at 170. However, a corporate defendant will not breach such a direction if it fails to file a statement or an affidavit from a witness where that witness claims privilege: ACCC v J McPhee &amp; Son (Australia) Pty Ltd (1997) 77 FCR 217 at 220 and ACCC v Eurong Beach Resort Ltd [2005] FCA 1134 at [10] , [12] and [13]. That is to say, compliance is not required " if the only source of the information is the director defendants and they are entitled to remain silent ": ASIC No. 1 at [5] (emphasis added). If the corporate defendant has other sources of information available from which it can comply with the direction, then it must do so.