mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337
Outcome: cited
The principles relevant to disqualification by reason of apprehended bias are set out in the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at 344-345: Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge ..., a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle. The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror. The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. [footnotes omitted]
Case: Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565 ; (2001) 109 FCR 424
Outcome: cited
To the extent that the applicant here alleges actual bias, the applicant must show that I approach issues with a closed mind, am unwilling or unable to decide issues impartially and am not amenable to persuasion by any evidence that might be led: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 122-123; Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565 ; (2001) 109 FCR 424 at 442-443.
Case: J Aron Corp v Newmont Yandal Operations Pty Ltd (2006) 58 ACSR 277
Outcome: cited
As a preliminary matter, I should mention that it was submitted that the appropriate course for a party raising the question of disqualification of a judge who is hearing a matter is not to file a formal notice of motion, but to invite the judge to disqualify herself or himself. I do not think anything turns on this point for the purposes of my consideration. One way or the other, once the question arose as to whether I should disqualify myself, that issue needed to be determined as expediently as possible. In any event, I do not consider it impermissible to proceed by notice of motion seeking to move that a judge of the court disqualify herself or himself from commencing or completing a case on the ground of bias, although in my view this is not necessary: see British American Tobacco Australia Ltd v Gordon [2007] NSWSC 109 at [52] ; Barton v Walker [1979] 2 NSWLR 740 at 749-50; Bainton v Rajski (1992) 29 NSWLR 539 at 541, 544; Kartinyeri v Commonwealth of Australia (No 2) [1998] HCA 52 ; (1998) 156 ALR 300, [1]-[2]; S &amp; M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358; J Aron Corp v Newmont Yandal Operations Pty Ltd (2006) 58 ACSR 277.
Case: Kartinyeri v Commonwealth of Australia (No 2) [1998] HCA 52 ; (1998) 156 ALR 300
Outcome: cited
As a preliminary matter, I should mention that it was submitted that the appropriate course for a party raising the question of disqualification of a judge who is hearing a matter is not to file a formal notice of motion, but to invite the judge to disqualify herself or himself. I do not think anything turns on this point for the purposes of my consideration. One way or the other, once the question arose as to whether I should disqualify myself, that issue needed to be determined as expediently as possible. In any event, I do not consider it impermissible to proceed by notice of motion seeking to move that a judge of the court disqualify herself or himself from commencing or completing a case on the ground of bias, although in my view this is not necessary: see British American Tobacco Australia Ltd v Gordon [2007] NSWSC 109 at [52] ; Barton v Walker [1979] 2 NSWLR 740 at 749-50; Bainton v Rajski (1992) 29 NSWLR 539 at 541, 544; Kartinyeri v Commonwealth of Australia (No 2) [1998] HCA 52 ; (1998) 156 ALR 300, [1]-[2]; S &amp; M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358; J Aron Corp v Newmont Yandal Operations Pty Ltd (2006) 58 ACSR 277.
Case: Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 ; (2001) 205 CLR 507
Outcome: cited
Apprehended bias must be "firmly established": R v Commonwealth Conciliation &amp; Arbitration Commission; Ex parte Angliss Group [1969] HCA 10 ; (1969) 122 CLR 546 at 553-554; R v Lusink; Ex parte Shaw (1980) 32 ALR 47 at 50-51; and Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128 at 158. I am also mindful that an allegation of bias must be "distinctly made and clearly proved": Minister for Immigration &amp; Multicultural Affairs v Jia [2001] HCA 17 ; (2001) 205 CLR 507 at 531 per Gleeson CJ and Gummow J.
Case: R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10 ; (1969) 122 CLR 546
Outcome: cited
Apprehended bias must be "firmly established": R v Commonwealth Conciliation &amp; Arbitration Commission; Ex parte Angliss Group [1969] HCA 10 ; (1969) 122 CLR 546 at 553-554; R v Lusink; Ex parte Shaw (1980) 32 ALR 47 at 50-51; and Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128 at 158. I am also mindful that an allegation of bias must be "distinctly made and clearly proved": Minister for Immigration &amp; Multicultural Affairs v Jia [2001] HCA 17 ; (2001) 205 CLR 507 at 531 per Gleeson CJ and Gummow J.
Case: R v Lusink; Ex parte Shaw (1980) 32 ALR 47
Outcome: cited
Apprehended bias must be "firmly established": R v Commonwealth Conciliation &amp; Arbitration Commission; Ex parte Angliss Group [1969] HCA 10 ; (1969) 122 CLR 546 at 553-554; R v Lusink; Ex parte Shaw (1980) 32 ALR 47 at 50-51; and Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128 at 158. I am also mindful that an allegation of bias must be "distinctly made and clearly proved": Minister for Immigration &amp; Multicultural Affairs v Jia [2001] HCA 17 ; (2001) 205 CLR 507 at 531 per Gleeson CJ and Gummow J.
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128
Outcome: cited
Apprehended bias must be "firmly established": R v Commonwealth Conciliation &amp; Arbitration Commission; Ex parte Angliss Group [1969] HCA 10 ; (1969) 122 CLR 546 at 553-554; R v Lusink; Ex parte Shaw (1980) 32 ALR 47 at 50-51; and Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128 at 158. I am also mindful that an allegation of bias must be "distinctly made and clearly proved": Minister for Immigration &amp; Multicultural Affairs v Jia [2001] HCA 17 ; (2001) 205 CLR 507 at 531 per Gleeson CJ and Gummow J.
Case: S &amp; M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358
Outcome: cited
As a preliminary matter, I should mention that it was submitted that the appropriate course for a party raising the question of disqualification of a judge who is hearing a matter is not to file a formal notice of motion, but to invite the judge to disqualify herself or himself. I do not think anything turns on this point for the purposes of my consideration. One way or the other, once the question arose as to whether I should disqualify myself, that issue needed to be determined as expediently as possible. In any event, I do not consider it impermissible to proceed by notice of motion seeking to move that a judge of the court disqualify herself or himself from commencing or completing a case on the ground of bias, although in my view this is not necessary: see British American Tobacco Australia Ltd v Gordon [2007] NSWSC 109 at [52] ; Barton v Walker [1979] 2 NSWLR 740 at 749-50; Bainton v Rajski (1992) 29 NSWLR 539 at 541, 544; Kartinyeri v Commonwealth of Australia (No 2) [1998] HCA 52 ; (1998) 156 ALR 300, [1]-[2]; S &amp; M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358; J Aron Corp v Newmont Yandal Operations Pty Ltd (2006) 58 ACSR 277.
Case: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71
Outcome: cited
To the extent that the applicant here alleges actual bias, the applicant must show that I approach issues with a closed mind, am unwilling or unable to decide issues impartially and am not amenable to persuasion by any evidence that might be led: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 122-123; Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565 ; (2001) 109 FCR 424 at 442-443.
Case: Australian Coal and Shale Employees' Federation and Anor v The Commonwealth and Ors [1953] HCA 25 ; (1953) 94 CLR 621
Outcome: cited
Since the decision by Driver FM was an exercise of his Honour's discretion, the principles referred to in House v The King [1936] HCA 40 ; (1936) 55 CLR 499 in relation to the role of the appeal court apply. In that decision, the majority of the High Court said at 504-5: 'It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.' See also Australian Coal and Shale Employees' Federation and Anor v The Commonwealth and Ors [1953] HCA 25 ; (1953) 94 CLR 621 at 627 per Kitto J.
Case: Duff and Ors v Freijah and Ors (1982) 62 FLR 280
Outcome: considered
There are numerous authorities of this Court in which prejudice has been considered in this context, each of which has related to prejudice which accrued during the period for which an extension is sought: see for example Wedesweiller and Ors v Cole and Ors (1983) 47 ALR 528; Hickey and Ors v Australian Telecommunications Commission (1983) 47 ALR 517; Duff and Ors v Freijah and Ors (1982) 62 FLR 280. I have not been referred to any authority in which a court has taken into account prejudice caused by delay occurring prior to the commencement of the prescribed period.
Case: Gilroy v Angelov (2000) 181 ALR 57
Outcome: followed
I also consider that an individual employee alleged to have engaged in unlawful discrimination need not be a party to a proceeding in order that the Court make a finding in respect of the lawfulness of their conduct. The words of s 106(1) that ' this Act applies in relation to that person as if that person had also done the act ' indicate that an employer is to be severally liable for the discriminatory conduct of its employee. Such interpretation is supported by Gilroy v Angelov (2000) 181 ALR 57, in which Wilcox J made orders against an employer in circumstances where the employee was unable to be served with the application.
Case: Hickey and Ors v Australian Telecommunications Commission (1983) 47 ALR 517
Outcome: considered
There are numerous authorities of this Court in which prejudice has been considered in this context, each of which has related to prejudice which accrued during the period for which an extension is sought: see for example Wedesweiller and Ors v Cole and Ors (1983) 47 ALR 528; Hickey and Ors v Australian Telecommunications Commission (1983) 47 ALR 517; Duff and Ors v Freijah and Ors (1982) 62 FLR 280. I have not been referred to any authority in which a court has taken into account prejudice caused by delay occurring prior to the commencement of the prescribed period.
Case: House v The King [1936] HCA 40 ; (1936) 55 CLR 499
Outcome: cited
Since the decision by Driver FM was an exercise of his Honour's discretion, the principles referred to in House v The King [1936] HCA 40 ; (1936) 55 CLR 499 in relation to the role of the appeal court apply. In that decision, the majority of the High Court said at 504-5: 'It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.' See also Australian Coal and Shale Employees' Federation and Anor v The Commonwealth and Ors [1953] HCA 25 ; (1953) 94 CLR 621 at 627 per Kitto J.
Case: Lovett v Le Gall (1975) 10 SASR 479
Outcome: considered
In Lovett v Le Gall (1975) 10 SASR 479 Bray CJ said (at 485): 'If the defendant has suffered no prejudice, as when he was well aware within the limitation period of the plaintiff's claim, or where the excess period of time is small, or where he cannot show that he has lost anything by reason of the delay, it may well be that the court will not find it difficult to come to the conclusion that it is fair and equitable in the circumstances to grant the extension.' All of the examples referred to by Bray CJ are examples of prejudice caused specifically by the delay in instituting proceedings.
Case: Pinecot Pty Ltd v Anti-Discrimination Commissioner [2001] NTSC 107
Outcome: referred to
This decision, which was applied in Thompson v Australian Capital Television Pty Ltd and Ors [1996] HCA 38 ; (1996) 141 ALR 1, makes it clear that at common law, a vicariously liable employer is a joint tortfeasor with the employee against whom the tortious conduct is specifically alleged. Gummow J also observed in Thompson at 22: 'At common law, the liability of joint tortfeasors was said to be joint and several. The plaintiff might sue any one of the tortfeasors separately for the full amount of the loss, or all of them jointly in the same action.' Similar observations can be found in the judgment of Brennan CJ, Dawson and Toohey JJ at 4. See also the discussion of vicarious liability in Pinecot Pty Ltd v Anti-Discrimination Commissioner [2001] NTSC 107 at [12] - [24] .
Case: The Koursk [1924] P 140
Outcome: considered
This legislative scheme is consistent with common law principles of vicarious liability of employers for tortious conduct of employees. In The Koursk [1924] P 140 Scrutton LJ said at 155: 'The substantial question in the present case is: What is meant by "joint tortfeasors"? and one way of answering it is: "Is the cause of action against them the same?" Certain classes of persons seem clearly to be "joint tortfeasors": The agent who commits a tort within the scope of his employment for his principal, and the principal; the servant who commits a tort in the course of his employment, and his master; two persons who agree on common action, in the course of, and to further which, one of them commits a tort. These seem clearly joint tortfeasors; there is one tort committed by one of them on behalf of, or in concert with, another.'
Case: Thompson v Australian Capital Television Pty Ltd and Ors [1996] HCA 38 ; (1996) 141 ALR 1
Outcome: considered
This decision, which was applied in Thompson v Australian Capital Television Pty Ltd and Ors [1996] HCA 38 ; (1996) 141 ALR 1, makes it clear that at common law, a vicariously liable employer is a joint tortfeasor with the employee against whom the tortious conduct is specifically alleged. Gummow J also observed in Thompson at 22: 'At common law, the liability of joint tortfeasors was said to be joint and several. The plaintiff might sue any one of the tortfeasors separately for the full amount of the loss, or all of them jointly in the same action.' Similar observations can be found in the judgment of Brennan CJ, Dawson and Toohey JJ at 4. See also the discussion of vicarious liability in Pinecot Pty Ltd v Anti-Discrimination Commissioner [2001] NTSC 107 at [12] - [24] .
Case: Distillers Co (Biochemicals) v Thompson [1971] AC 458
Outcome: cited
The cause of action in breach of fiduciary duty is based on conduct engaged in in the United States. Even though the duty pleaded depends upon conduct in Australia that does not mean that its breach by acts outside Australia give rise to a cause of action 'arising in the Commonwealth' under O 8 r 1(a). As von Doussa J observed in Delco Australia Pty Ltd v Equipment Enterprises Incorporated trading as Kukla Trenchers [2000] FCA 821 , the authorities establish that 'cause of action' within the meaning of O 8 r 1(a) does not refer to all the elements of the cause of action. It refers rather to the act on the part of the defendant which gave the plaintiff his cause for complaint. In Distillers Co (Biochemicals) v Thompson [1971] AC 458 at 467, Lord Pearson said (at 468): It is not the right approach to say that, because there was no complete tort until the damage occurred, therefore the cause of action arose wherever the damage happened to occur. The right approach is, when the tort is complete, to look back over the series of events constituting it and ask the question, where in substance did this cause of action arise? Theory no (iii) is that the cause of action arose within the jurisdiction if the act on the part of the defendant, which gives the plaintiff his cause of complaint has occurred within the jurisdiction. That is the rule laid down in Jackson v Spittal (1870) LR 5CP 542, which is an authoritative case, and the rule is inherently reasonable, as the defendant is called upon to answer for his wrong in the courts of the country where he did the wrong.' Counsel for the applicants contends that the cause of action for breach of fiduciary duty falls within O 8 r 1(ab)(ii). That is to say the proceeding, in so far as it seeks relief for breach of fiduciary duty is one which 'otherwise affects a contract'. In my respectful opinion that contention is unsustainable. While it may rightly be said that the fiduciary obligation, as pleaded, arises out of the asserted contractual relationship, the proceeding based upon breach of fiduciary duty does not of itself affect the contract. In my opinion, therefore, the cause of action for breach of fiduciary duty is not one to which O 8 r 1 applies.
Case: Bass v Permanent Trustee Co Ltd (1999) 161 CLR 399
Outcome: cited
In this case, it is not possible for the Court to make orders concerning a hypothetical question which was not the subject of a claim by the applicant, nor decision by the first respondent, nor contention before the Tribunal, nor decision by the Tribunal that is, whether the losses of the applicant could in fact be carried forward on capital account. It is not the role of the Federal Court to answer hypothetical questions or give advisory opinions: Bass v Permanent Trustee Co Ltd (1999) 161 CLR 399 at 413-415. 74 Accordingly, in view of my findings concerning question a, it is both unnecessary for me to make any findings with respect to questions e and f, and inappropriate to make the orders sought by the applicant which could follow from any consideration of those questions. 75 In the grounds of appeal the applicant submits that no reasonable Tribunal, properly apprised of its role, could have made the findings that were made. It follows from my findings in this judgment that this claim cannot be substantiated. 76 Accordingly the answer to question g raised on appeal is "Yes". 77 In the grounds of appeal the applicant submits that: &#8226; the Tribunal's apparent error of fact that the controller of the applicant had been prosecuted for claiming the deductions leads a reasonable observer to the conclusion that the Tribunal did not give due consideration to the material before it, and may have been biased against the applicant; and &#8226; a Tribunal acting under such a misapprehension could more readily make adverse findings of fact against the applicant.
Case: Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232
Outcome: cited
Appeals from the Tribunal are not appeals in the strict sense as they lie within the original jurisdiction of the court: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 581, Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 at [1] , (2003) 76 ALD 321. A party to a proceeding before the Tribunal may appeal to the Court from any decision of the Tribunal in that proceeding, but only on questions of law: s 44(1) Administrative Appeals Tribunal Act 1975 ("AAT Act").