mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: UTSA Pty Ltd (in liq) v Ultra Tune Australia Pty Ltd (1996) 21 ACSR 457
Outcome: referred to
One of the powers which the Court might exercise if Pan were being wound up by the Court is the power to apply to the Court for directions in relation to any particular matter arising under the winding up. This Court has previously heard and granted similar applications under both ss 479(3) and 511(1). A useful example of this is the decision of Lee J in Bank of Melbourne Ltd v HPM Pty Ltd (in liq) (1997) 26 ACSR 110. See also the decision of Hansen J in UTSA Pty Ltd (in liq) v Ultra Tune Australia Pty Ltd (1996) 21 ACSR 251 , affirmed on appeal by the Court of Appeal in (1996) 21 ACSR 457 (per Hayne JA, Brooking and Phillips JJA concurring).
Case: Re ACN 007 537 000 Pty Ltd (in liq); Ex parte Parker (1997) 150 ALR 92
Outcome: referred to
The Court's power to give directions pursuant to s 511 is subject to the provisions of s 511(2). The Court must be satisfied that the determination of the question or the exercise of the power will be "just and beneficial" before it accedes to an application. In Re ACN 007 537 000 Pty Ltd (in liq); Ex parte Parker (1997) 150 ALR 92 at 97, Mansfield J referred with approval to the decision of Young J in Dean-Willcocks v Soluble Solution Hydroponics Pty Ltd (1997) 24 ACSR 79. Mansfield J quoted a passage from the judgment of Young J in which his Honour observed that the meaning of the words "just and beneficial" are that the Court has a discretion as to whether making any order under the section will be of advantage to the liquidation. 51 Finally, I have referred to what Mansfield J said in Ex parte Parker about s 511(2) and the requirement that the exercise of the power be just and beneficial. The reasons, which I have referred to above, point in favour of that condition being satisfied.
Case: Re Addstone Pty Limited (in liq) (1998) 83 FCR 583
Outcome: applied
Second, the liquidators also sought an order under s 50 of the Federal Court Act that access to the affidavit of Mr McGrath and to the exhibit to the affidavit be restricted to the Court and the liquidators. That course is consistent with the course adopted by Mansfield J in Re Addstone Pty Limited (in liq) (1998) 83 FCR 583 at 598. The position in Re Addstone was slightly different from that which occurs in the present case. However, there are a number of aspects of the Deed of Settlement which seem to me to point in favour of the confidentiality orders at least for the time being.
Case: Re BPTC Limited (1996) 14 ACLC 845
Outcome: referred to
I should mention that the application before me has been made ex parte . In Bank of Melbourne , Lee J observed at 112 to 113 that this is an appropriate course. His Honour referred to a number of leading authorities including decisions of McClelland CJ in Re BPTC Limited (1996) 14 ACLC 845 at 846 and Re G B Nathan v Co Pty Ltd (1991) 24 NSWLR 674.
Case: Re G B Nathan v Co Pty Ltd (1991) 24 NSWLR 674
Outcome: referred to
I should mention that the application before me has been made ex parte . In Bank of Melbourne , Lee J observed at 112 to 113 that this is an appropriate course. His Honour referred to a number of leading authorities including decisions of McClelland CJ in Re BPTC Limited (1996) 14 ACLC 845 at 846 and Re G B Nathan v Co Pty Ltd (1991) 24 NSWLR 674.
Case: Stein v Blake (1996) 1 AC 243
Outcome: referred to
Their Honours pointed to the observations of Lord Hoffman in the English decision in Stein v Blake (1996) 1 AC 243 at 260. The relevant passage was set out by the Full Court in Citicorp at 681. It is unnecessary to repeat what Lord Hoffman said in that passage.
Case: Jianshe Southern Pty Ltd v Get Motor Cycles Pty Ltd (No 3) [2007] FCA 1078
Outcome: cited
Matters relevant to whether security should be provided include whether the application for security is brought promptly, the strength of the applicant's case, whether the applicant is impecunious, whether any impecuniosity was caused by the respondent, whether the application for security is oppressive, and whether the applicant is in substance a plaintiff in the proceeding. See generally Jianshe Southern Pty Ltd v Get Motor Cycles Pty Ltd (No 3) [2007] FCA 1078. 7 I am satisfied the application for security was brought promptly. 14 The word "oppressive" is used in this area to describe an application for security that is used merely to deny an impecunious applicant a right to litigate. See Jianshe Southern at [27]. As a general rule poverty is not a bar to a litigant at first instance. However the position is different as to appeals. In Skyring v Sweeney [1999] FCA 61 at [6] Spender J said: Impecuniosity ought not to be a bar to a person prosecuting at first instance a claim, but the position on appeal seems to me to be fundamentally different. In effect, in the absence of an order for security for costs in the circumstances of this case, Mr Skyring, in effect, is given a free hit, and that seems to me to be intrinsically unfair. See also Moore v Macks [2007] FCA 509 at [20] to [21].
Case: Maher v Commonwealth Bank of Australia [2007] FCA 560
Outcome: referred to
I have read the Federal Magistrate's decision the subject of the appeal and the amended notice of appeal. Many of the grounds are not available grounds of appeal or are of such generality and so wanting in particularity that they are impossible to assess. The complaint about the Magistrate's construction of Order 36 of the Federal Court Rules was rejected by Tracey J in Maher v Commonwealth Bank of Australia [2007] FCA 560 at [9] . 9 There is no material before me to support the claim that the Magistrate denied the applicant procedural fairness. 10 The complaint that the respondent's demand for payment should have been on behalf of all parties jointly entitled to costs, and that each should have been named in the notice for that purpose, was dealt with by the Magistrate at [32] to [35] of his reasons. On the evidence before him the Magistrate found that the respondent was authorised to collect all of the costs on behalf of the other parties.
Case: Skyring v Sweeney [1999] FCA 61
Outcome: cited
The word "oppressive" is used in this area to describe an application for security that is used merely to deny an impecunious applicant a right to litigate. See Jianshe Southern at [27]. As a general rule poverty is not a bar to a litigant at first instance. However the position is different as to appeals. In Skyring v Sweeney [1999] FCA 61 at [6] Spender J said: Impecuniosity ought not to be a bar to a person prosecuting at first instance a claim, but the position on appeal seems to me to be fundamentally different. In effect, in the absence of an order for security for costs in the circumstances of this case, Mr Skyring, in effect, is given a free hit, and that seems to me to be intrinsically unfair. See also Moore v Macks [2007] FCA 509 at [20] to [21].
Case: Moore v Macks [2007] FCA 509
Outcome: cited
The word "oppressive" is used in this area to describe an application for security that is used merely to deny an impecunious applicant a right to litigate. See Jianshe Southern at [27]. As a general rule poverty is not a bar to a litigant at first instance. However the position is different as to appeals. In Skyring v Sweeney [1999] FCA 61 at [6] Spender J said: Impecuniosity ought not to be a bar to a person prosecuting at first instance a claim, but the position on appeal seems to me to be fundamentally different. In effect, in the absence of an order for security for costs in the circumstances of this case, Mr Skyring, in effect, is given a free hit, and that seems to me to be intrinsically unfair. See also Moore v Macks [2007] FCA 509 at [20] to [21].
Case: Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163
Outcome: cited
The appellant contended that, by virtue of the way it dealt with the behaviour modification claim, the Tribunal's decision is marred by jurisdictional error: the Tribunal asked itself the wrong question, and as a result it failed to consider the appellant's claim properly: see generally Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476 (' Plaintiff S157 '); and Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2004) 216 CLR 473 (' Appellant S395/2002 '). For similar reasons, the appellant contended that Phipps FM erred in law. The appellant seeks orders that the Tribunal's decision be quashed and that the Tribunal be directed to decide the appellant's application for a protection visa according to law.
Case: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: cited
The appellant contended that, by virtue of the way it dealt with the behaviour modification claim, the Tribunal's decision is marred by jurisdictional error: the Tribunal asked itself the wrong question, and as a result it failed to consider the appellant's claim properly: see generally Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476 (' Plaintiff S157 '); and Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2004) 216 CLR 473 (' Appellant S395/2002 '). For similar reasons, the appellant contended that Phipps FM erred in law. The appellant seeks orders that the Tribunal's decision be quashed and that the Tribunal be directed to decide the appellant's application for a protection visa according to law.
Case: Plaintiff S157 of 2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476
Outcome: cited
The appellant contended that, by virtue of the way it dealt with the behaviour modification claim, the Tribunal's decision is marred by jurisdictional error: the Tribunal asked itself the wrong question, and as a result it failed to consider the appellant's claim properly: see generally Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476 (' Plaintiff S157 '); and Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2004) 216 CLR 473 (' Appellant S395/2002 '). For similar reasons, the appellant contended that Phipps FM erred in law. The appellant seeks orders that the Tribunal's decision be quashed and that the Tribunal be directed to decide the appellant's application for a protection visa according to law.
Case: WAKZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1065
Outcome: cited
The appellant also relied on the decision of French J in WAKZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1065. His Honour said at [57]-[58]: 'Where a tribunal considers, by reference to the previous activities of a person in the country which they have left, that the person was not a political dissenter at a level likely to attract persecution and that the person is unlikely to become a political dissenter upon return to the home country, it engages in an entirely legitimate exercise. Otherwise every applicant for a protection visa, however bland their history of activity in the country from which they have come, would have to be considered for a protection visa on the hypothesis that upon return such a person could become a political activist of a kind likely to be persecuted by the authorities of the home country. If the Tribunal had simply approached its consideration of the applicant's likely conduct on return by a process of extrapolation based on her pre-departure history in Burma and her subsequent history in Australia, it would not have erred. In this case, however, in the passage to which counsel has drawn attention, it seems to have gone further. The Tribunal accepted that the applicant's brief record of anti-government activity while in Burma was one for which she paid dearly. Its satisfaction that she would not be "motivated to be involved in anti-government activities in Burma in such a way as to put herself at risk with Burmese authorities" implied a finding that fear of persecution would prevent her from being involved in such activities. If that is so, then the Tribunal appears to have overlooked a subjectively and objectively based fear of persecution on the part of the applicant for a Convention ground.'
Case: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559
Outcome: cited
The Minister submitted that on a fair reading of the Tribunal's decision in its entirety, the Tribunal based its decision on the appellant's past activities in Burma and also his activities in Australia. According to counsel for the Minister, the activities in which the appellant engaged in Australia were such that the appellant would not have a high profile he was merely a 'noisy face in a crowd'. The Minister submitted that the Tribunal had not erred in the way in which it looked at the appellant's past behaviour and transposed it into the future, citing Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559. The Minister also submitted that it can be inferred that as the appellant had the unrestricted right to engage in political activity in Australia, but did not join a political party for two years, he would not engage in activities on return to Burma that would bring him to the adverse attention of the authorities. 27 The Minister contended that the Tribunal's consideration of the behaviour modification claim does not reveal any error, let alone jurisdictional error. In the Minister's submission, it is apparent from the Tribunal's reasons that it looked at the claims presented by the appellant and determined that it was not satisfied that he has a well-founded fear of persecution. In doing so, the Tribunal did not fail to ask the correct question. 28 As Phipps FM identified, the Tribunal did not consider the behaviour modification claim. Accordingly the issues to be determined in this appeal are whether that claim arose from the evidence before the Tribunal and, if so, whether the Tribunal's failure to consider it amounts to jurisdictional error.
Case: Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558
Outcome: cited
An appeal from a judgment from the Federal Magistrates Court is an appeal by way of re-hearing: see Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558 at [4] ( 'Abeyesinghe' ); Low v Commonwealth [2001] FCA 702 at [3] . The right of appeal exists for the correction of error: see Coal &amp; Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 ; (2000) 203 CLR 194 at 203-204 [14] . Thus, this Court's appellate powers are only exercisable if the appellant can demonstrate that the orders under appeal are the result of some legal, factual or discretionary error: see Abeyesinghe at [4]. In my view, a legal error by the Federal Magistrates Court will be demonstrated if a behaviour modification claim did in fact arise on the evidence before the Tribunal, and the Tribunal failed to consider it.
Case: Low v Commonwealth [2001] FCA 702
Outcome: cited
An appeal from a judgment from the Federal Magistrates Court is an appeal by way of re-hearing: see Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558 at [4] ( 'Abeyesinghe' ); Low v Commonwealth [2001] FCA 702 at [3] . The right of appeal exists for the correction of error: see Coal &amp; Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 ; (2000) 203 CLR 194 at 203-204 [14] . Thus, this Court's appellate powers are only exercisable if the appellant can demonstrate that the orders under appeal are the result of some legal, factual or discretionary error: see Abeyesinghe at [4]. In my view, a legal error by the Federal Magistrates Court will be demonstrated if a behaviour modification claim did in fact arise on the evidence before the Tribunal, and the Tribunal failed to consider it.
Case: Coal &amp; Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 ; (2000) 203 CLR 194
Outcome: cited
An appeal from a judgment from the Federal Magistrates Court is an appeal by way of re-hearing: see Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558 at [4] ( 'Abeyesinghe' ); Low v Commonwealth [2001] FCA 702 at [3] . The right of appeal exists for the correction of error: see Coal &amp; Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 ; (2000) 203 CLR 194 at 203-204 [14] . Thus, this Court's appellate powers are only exercisable if the appellant can demonstrate that the orders under appeal are the result of some legal, factual or discretionary error: see Abeyesinghe at [4]. In my view, a legal error by the Federal Magistrates Court will be demonstrated if a behaviour modification claim did in fact arise on the evidence before the Tribunal, and the Tribunal failed to consider it.
Case: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244
Outcome: cited
There are other difficulties with the manner in which the Tribunal approached the appellant's claim. The Tribunal's conclusion that, even if the appellant's activities in Burma and Australia are considered cumulatively it was not satisfied that the appellant would have an adverse profile with Burmese authorities, indicates that the Tribunal approached the issue on the basis of the balance of probabilities, rather than by appropriately assessing the possibilities of future persecution: see Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244, per Merkel J at 248 [15]. The latter approach reflects the requirements of the Refugee Convention. To qualify as a refugee, an applicant must have a well-founded fear of persecution. This will be so if the applicant holds a genuine fear of persecution that is founded on a real chance that he would be persecuted for one of the reasons stipulated in the Convention if he returned to the country of his nationality: see Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62 ; (1989) 169 CLR 379.
Case: Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62 ; (1989) 169 CLR 379
Outcome: cited
There are other difficulties with the manner in which the Tribunal approached the appellant's claim. The Tribunal's conclusion that, even if the appellant's activities in Burma and Australia are considered cumulatively it was not satisfied that the appellant would have an adverse profile with Burmese authorities, indicates that the Tribunal approached the issue on the basis of the balance of probabilities, rather than by appropriately assessing the possibilities of future persecution: see Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244, per Merkel J at 248 [15]. The latter approach reflects the requirements of the Refugee Convention. To qualify as a refugee, an applicant must have a well-founded fear of persecution. This will be so if the applicant holds a genuine fear of persecution that is founded on a real chance that he would be persecuted for one of the reasons stipulated in the Convention if he returned to the country of his nationality: see Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62 ; (1989) 169 CLR 379.
Case: NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 ; (2005) 216 ALR 1
Outcome: cited
The Tribunal's assessment of the appellant's likely profile with the Burmese government is perhaps attended by another difficulty. The Tribunal seems to have found that the appellant should be characterised as a 'low-profile' rather than 'high-profile' anti-government protestor, notwithstanding his political activities in Australia and the fact that his activities in Burma had previously brought him to the adverse attention of the authorities. Relying heavily on this categorisation, the Tribunal accepted that 'the [appellant] may be questioned about his activities in Australia and that he could be watched for a period after returning home', but that the appellant's profile was such that he would not be persecuted if he returns to Burma. There is to my mind a degree of artificiality or stereotyping about the process of categorising an applicant as either 'high-profile' or 'low-profile'. This process carries with it a risk of obscuring the fundamental question that the Tribunal is required to consider, namely whether an applicant has a well-founded fear of persecution for a Convention reason. In NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 ; (2005) 216 ALR 1 at 38 [161] , Hayne and Heydon JJ said that the risks of classification are acute: 'Putting an applicant in one class rather than in another may determine the outcomes of the inquiry; the defining characteristics of the class that is chosen may eliminate from consideration matters that bear upon the chances of the applicant being persecuted.'
Case: Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 ; (1999) 90 FCR 287
Outcome: cited
There is clear authority that the Tribunal's failure to consider a behaviour modification claim of the kind that arose in this case amounts to jurisdictional error: see Appellant S395/2002 , esp per McHugh and Kirby JJ at 493 [51] and 493 [53], and per Gummow and Hayne JJ at 500 [80] and 503 [88]-[89]; see also Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 ; (1999) 90 FCR 287.
Case: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597
Outcome: cited
In Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at [39] , French J concluded that '[a] decision infected by jurisdictional error is not "a decision made under [the Migration Act ]" and is therefore not within the definition of "privative clause decision" under s 474(2) and (3)'. In Plaintiff S157/2002 , Gaudron, McHugh, Gummow, Kirby and Hayne JJ concluded at 506 [76], that s 474 of the Migration Act must be read 'so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the [Migration Act]' because an administrative decision which involved jurisdictional error was 'properly regarded, in law, as no decision at all': see also Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597, per Gaudron and Gummow JJ at 615 [51].
Case: Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757
Outcome: cited
In Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at [39] , French J concluded that '[a] decision infected by jurisdictional error is not "a decision made under [the Migration Act ]" and is therefore not within the definition of "privative clause decision" under s 474(2) and (3)'. In Plaintiff S157/2002 , Gaudron, McHugh, Gummow, Kirby and Hayne JJ concluded at 506 [76], that s 474 of the Migration Act must be read 'so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the [Migration Act]' because an administrative decision which involved jurisdictional error was 'properly regarded, in law, as no decision at all': see also Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597, per Gaudron and Gummow JJ at 615 [51].