mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Sharples v O'Shea (unreported Supreme Court of Queensland, Atkinson J, 18 August 1999
Outcome: referred to
There is no evidence as to when the Authority asked for information concerning the name and address of the manufacturer in China. There is no evidence that Imtrade or its agents officers or employees was aware that such information was relevant to their application or putting it another way, that the information was material to the Authority's decision-making process. No reason has been proffered as to why this information was to be regarded as significant other than for the purpose of complying with Regs 15 and 16 which concern events after the relevant decisions were made: cf Sharples v O'Shea (unreported Supreme Court of Queensland, Atkinson J, 18 August 1999 at [66]. 65 The position in respect to the registration of chemical products is to the same effect: registration under s 20(2) is effected by the entry in the Register, amongst other things, of the particulars prescribed by Regulation 16. However this occurs only after the Authority decides to register under s 20(1). 66 It is no answer for Mr Suter to say in his affidavit sworn on 5 June 2008 at [14]: Unless the APVMA was satisfied that the second respondent had provided any information that the APVMA required, under section 14 of the Agvet Code, it could not grant the application for approval or registration. If the second respondent at the time it made its applications for approval of the active constituents and registration of chemical products had told the APVMA in its applications that the information concerning the identity of the manufacturer and site of manufacture to be entered into the Record and the Register respectively was false, or if the APVMA had been aware of the falsity of those particulars, the APVMA would not have granted those applications.
Case: SZFDE v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCAFC 142 ; (2006) 154 FCR 365
Outcome: referred to
French J, at first instance , in SZFDE v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCAFC 142 ; (2006) 154 FCR 365 at [74] said: The finding of fraud should have specified, in one place in the reasons what was said that was fraudulent, how it was fraudulent and how it was acted upon. This statement was approved by the High Court in that case on appeal: SZFDE at [41]. 56 The Authority, as part of its case on the issue of fraud, did not seek to prove what information it actually had received and relied upon in making its several decisions to approve and register under ss 19(1) ; 20(1). 57 Rather, senior counsel for the Authority referring to the statement of French J said: We know what was the fraud, we know how it was effected and how it was acted on. It was acted on by the making of the registration. The fact that it was operative ... flows from the legislation that it was operative ... 58 Accordingly, the case for the Authority is that the provision of the fictitious name and address of Evergreen being particulars prescribed under Regulations 15 and 16 necessarily leads, as a matter of inference, to the conclusion that each approval and registration was procured or induced by fraud. I do not agree. 59 Section 11(1)(a) and (b) together provide in effect that an application to the Authority under s 10 for approval of an active constituent or for registration of a chemical product must be made in writing in or to the effect of the approved form and contain, or be accompanied by, any information that the Authority requires. There is no evidence as to whether the various applications were made in or to the effect of the approved form. No reliance was placed upon the wording of the approved form. It was not referred to in submissions.
Case: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 ; (2007) 237 ALR 64
Outcome: referred to
It is fundamental to the Authority's case that invalidity be established in respect of each approval and registration. It is necessary to establish that the decisions to approve and to register were actually induced or affected by fraud on the balance of probabilities and having due regard to Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336. This is sometimes referred to as operative fraud. It is not enough to prove a "real suspicion" or a "real possibility": Wati v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 103 at 112-113. Wati on this point was referred to with apparent approval by the High Court in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 ; (2007) 237 ALR 64 at [25] . The alleged fraud must affect the decision-making process: Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 171 ; (2008) 245 ALR 501 at [33] .
Case: Wati v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 103
Outcome: cited
It is fundamental to the Authority's case that invalidity be established in respect of each approval and registration. It is necessary to establish that the decisions to approve and to register were actually induced or affected by fraud on the balance of probabilities and having due regard to Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336. This is sometimes referred to as operative fraud. It is not enough to prove a "real suspicion" or a "real possibility": Wati v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 103 at 112-113. Wati on this point was referred to with apparent approval by the High Court in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 ; (2007) 237 ALR 64 at [25] . The alleged fraud must affect the decision-making process: Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 171 ; (2008) 245 ALR 501 at [33] .
Case: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Outcome: cited
Fraud requires to be strictly articulated and proved: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 538D per Kirby P. A finding of fraud is not to be made lightly. I am not persuaded that the misinformation provided, at some point, by Imtrade to the Authority led to operative fraud, namely, that the Authority was actually induced by the provision of that information to make the decisions to approve and to register. I am not prepared to infer such fraud merely because Regs 15 and 16 require particulars of the name and address of the manufacturer to be recorded and registered. There are provisions in the Code which lend support to the conclusion that such information is not operative in the making of those decisions. 70 First, the provision of such particulars is not immediately referable to the objects of the Act or Code which as I have indicated centre upon concerns of safety and health of individuals, animals and the environment. The Authority points to paragraph (d) of the preamble to the Code which concerns the creation of a regulatory system that is open and accountable and which gives opportunity for public input with respect to the regulation of chemical and veterinary products. The particulars in question do not, I think, touch on that object. They are particulars which I earlier suggested may well be maintained in the confidential part of each of the Record and Register. Certainly, according to Mr James Suter who is acting CEO of the Authority, in his affidavit in support of the application sworn on 5 June 2008 at [9], the identity of the manufacturer and address of the site at which chemical products are manufactured are kept in the confidential part of the Register. 71 Second, incorrectly recorded or registered relevant particulars may be corrected in the Record and Register by the Authority under the provisions of s 26 of the Code. Furthermore, Part 2, Div 5 of the Code provides for suspension and cancellation of approval or registration. Under s 40(1), it is only if the relevant particulars or conditions for approval or registration cannot be varied to comply with the prescribed requirements that the approval or registration may be cancelled. The legislature has prescribed this approach for cases where the prescribed requirements are not complied with.
Case: Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397
Outcome: cited
The principles are well established. A Court which is asked to grant leave to appeal from an interlocutory decision must first determine whether, in all the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered. Secondly, it must consider whether substantial injustice would result if leave were refused, supposing the decision to be wrong, see Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397. Mr Etl has advanced no argument at all which suggests that his Honour made any error in the exercise of his discretion to refuse the adjournment sought on 17 December 2007. 10 Even if the draft notice of appeal is to be understood as an attempt to commence an appeal from the whole of his Honour's judgment which includes the affirmation of the sequestration order, no error is established, given that the making of those orders was not opposed and no argument was directed to his Honour designed to persuade him that the Registrar had erred in making the sequestration order. Accordingly, I am not persuaded that his Honour's decision is attended by any doubt and there is, therefore, no occasion for it to be reconsidered on appeal. 11 Moreover, no substantial injustice will result for Mr Etl in the event that leave is refused because he will remain free to pursue the inquiries which he has been undertaking with a view to obtaining fresh evidence which, if it is obtained, may enable him to make application to the Court for the sequestration order to be set aside. That is a matter for the future. 12 There is, therefore, nothing to be gained by enlarging time for the filing and serving of a notice of appeal. 13 The application should be dismissed. I will hear the parties on costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY. Associate: Dated: 5 May 2008 Counsel for Applicant: Applicant appeared in person Counsel for Respondent: Mr M Barrett Solicitor for Respondent: Kliger Partners Counsel for Trustee in Bankruptcy: Mr A Cox Solicitor for Trustee in Bankruptcy Pointon Partners Date of Hearing: 30 April 2008 Date of Judgment: 30 April 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/602.html
Case: CA Henschke &amp; Co v Rosemount Estates Pty Ltd [2000] FCA 1539 , 52 IPR 42
Outcome: referred to
are unquestionably instances where an argument has been permitted to be raised on appeal even though " unequivocally disclaimed " before the primary judge: e.g. CA Henschke &amp; Co v Rosemount Estates Pty Ltd [2000] FCA 1539 at [30] to [35], 52 IPR 42 at 57 to 60. In the specific context of migration cases, leave to raise on appeal an argument abandoned before a Federal Magistrate may thus be permitted where (for example) there has been " an error of judgment by [an appellant's] counsel in abandoning a point which had originally been taken, and which was plainly viable ": White v Minister for Immigration and Multicultural Affairs [2000] FCA 232 at [35] , [2000] FCA 232 ; 96 FCR 511 at 519; SZBLY v Minister for Immigration and Citizenship [2007] FCA 765 at [36] , [2007] FCA 765 ; 96 ALD 70 at 77.
Case: Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1
Outcome: applied
principles to be applied when exercising the discretion to entertain a ground different from those resolved by the trial judge are well settled. In Metwally v University of Wollongong [1985] HCA 28 ; (1985) 60 ALR 68 at 71, Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ stated: It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. And in Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7, Gibbs CJ, Wilson, Brennan and Dawson JJ observed: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. In VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 the grant of leave was thus addressed by reference to whether it was " expedient in the interests of justice " to grant leave. Kiefel, Weinberg and Stone JJ there concluded (citations omitted): [46] In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so ... Their Honours referred to Coulton [1986] HCA 33 ; (1986) 162 CLR 1 and continued: [48] The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court. Applied: NAJT [2005] FCAFC 134 at [163] , 147 FCR at 84 per Madgwick J (Conti J agreeing).
Case: Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 , 192 ALR 71
Outcome: cited
is a very considerable public interest in all litigation being resolved as quickly and as expeditiously as the administration of justice permits. There is a recognised public interest in applications for refugee status being resolved in a timely manner and in accordance with the procedure prescribed by the Migration Act : Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 at [62] , [2001] FCA 929 ; 192 ALR 71 at 86 per Gyles J; SZKMS [2008] FCA 499 at [30] per Lander J.
Case: Metwally v University of Wollongong [1985] HCA 28 ; (1985) 60 ALR 68
Outcome: applied
principles to be applied when exercising the discretion to entertain a ground different from those resolved by the trial judge are well settled. In Metwally v University of Wollongong [1985] HCA 28 ; (1985) 60 ALR 68 at 71, Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ stated: It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. And in Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7, Gibbs CJ, Wilson, Brennan and Dawson JJ observed: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.
Case: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 , 147 FCR 51
Outcome: applied
the specific context of migration cases, in (for example) NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 at [166] , [2005] FCAFC 134 ; 147 FCR 51 at 85, Madgwick J identified relevant questions to be addressed as including the following: Do the new legal arguments have a reasonable prospect of success? Is there an acceptable explanation of why they were not raised below? How much dislocation to the Court and efficient use of judicial sitting time is really involved? What is at stake in the case for the appellant? Will the resolution of the issues raised have any importance beyond the case at hand? Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent? If so, can it be justly and practicably cured? If not, where, in all the circumstances, do the interests of justice lie? See also: SZFYK v Minister for Immigration and Multicultural Affairs [2007] FCA 624 at [20] per Edmonds J. In VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 the grant of leave was thus addressed by reference to whether it was " expedient in the interests of justice " to grant leave. Kiefel, Weinberg and Stone JJ there concluded (citations omitted): [46] In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so ... Their Honours referred to Coulton [1986] HCA 33 ; (1986) 162 CLR 1 and continued: [48] The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court. Applied: NAJT [2005] FCAFC 134 at [163] , 147 FCR at 84 per Madgwick J (Conti J agreeing).
Case: NBMB v Minister for Immigration and Citizenship [2008] FCA 149 , 100 ALD 118
Outcome: cited
of those factors relevant to an informed decision being made to abandon an argument in circumstances more apposite to civil litigation in which litigants are well-represented may assume little (if any) importance in an appeal such as the present. But some significance, it is considered, is nevertheless to be given to even an ill-informed unrepresented litigant apparently abandoning an argument otherwise available to him and thereafter seeking to resurrect on appeal the very same argument. The " interests of justice ", it is to be recalled, encompass the interests of both the unrepresented Appellant and the interests of the Respondents to an appeal. An unconstrained freedom on the part of an unrepresented Appellant to pursue all such arguments as may advance his own interests may well be inconsistent with the interests of a respondent or the more generally expressed public interest in the orderly administration of justice. An absence of prejudice claimed by a respondent may not be a sufficient reason to allow an argument to be raised for the first time on appeal: e.g. NBMB v Minister for Immigration and Citizenship [2008] FCA 149 at [23] to [33] [2008] FCA 149 ; , 100 ALD 118 at 128. In considering whether leave should be given to permit a new ground to be raised on appeal it is also relevant to give attention to the apparent merits of the argument sought to be raised.
Case: SZBLY v Minister for Immigration and Citizenship [2007] FCA 765
Outcome: referred to
are unquestionably instances where an argument has been permitted to be raised on appeal even though " unequivocally disclaimed " before the primary judge: e.g. CA Henschke &amp; Co v Rosemount Estates Pty Ltd [2000] FCA 1539 at [30] to [35], 52 IPR 42 at 57 to 60. In the specific context of migration cases, leave to raise on appeal an argument abandoned before a Federal Magistrate may thus be permitted where (for example) there has been " an error of judgment by [an appellant's] counsel in abandoning a point which had originally been taken, and which was plainly viable ": White v Minister for Immigration and Multicultural Affairs [2000] FCA 232 at [35] , [2000] FCA 232 ; 96 FCR 511 at 519; SZBLY v Minister for Immigration and Citizenship [2007] FCA 765 at [36] , [2007] FCA 765 ; 96 ALD 70 at 77.
Case: SZEPN v Minister for Immigration and Multicultural Affairs [2006] FCA 886
Outcome: cited
the present proceeding, three considerations (at least) warrant attention, namely: to raise on appeal grounds not previously relied upon requires the leave of the Court; the role of this Court as an appellate court and the role that this Court plays in respect to any subsequent application that may be made to appeal to the High Court of Australia; and relevant to the grant or refusal of leave are various factors, including the fact that a ground sought to be raised was previously abandoned. Although these three considerations may be separately identified, consideration of any one of them may well overlap with consideration of another. Each of these considerations has also been repeatedly addressed in decisions of this Court &#8212; but some brief overview of these considerations is perhaps appropriate, lest the Appellant be left with the impression that his appeal has been dismissed on a " technicality " divorced from principle or merit. It is in that context that a fourth consideration should also be addressed, namely: the merit of the new grounds sought to be raised. The serious consequences that may attend a wrongful refusal of a protection visa may also be taken into account when determining whether it is expedient in the interests of justice that leave be given: SZEPN v Minister for Immigration and Multicultural Affairs [2006] FCA 886 at [16] per Branson J. The serious consequences that attend the refusal of leave to raise a new ground in any appeal is, however, a matter warranting careful consideration and migration cases &#8212; it is considered &#8212; attract no different consideration: cf SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 at [9] .
Case: SZFYK v Minister for Immigration and Multicultural Affairs [2007] FCA 624
Outcome: referred to
the specific context of migration cases, in (for example) NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 at [166] , [2005] FCAFC 134 ; 147 FCR 51 at 85, Madgwick J identified relevant questions to be addressed as including the following: Do the new legal arguments have a reasonable prospect of success? Is there an acceptable explanation of why they were not raised below? How much dislocation to the Court and efficient use of judicial sitting time is really involved? What is at stake in the case for the appellant? Will the resolution of the issues raised have any importance beyond the case at hand? Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent? If so, can it be justly and practicably cured? If not, where, in all the circumstances, do the interests of justice lie? See also: SZFYK v Minister for Immigration and Multicultural Affairs [2007] FCA 624 at [20] per Edmonds J.