mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Jefferson Ltd v Bhetca [1979] 1 WLR 898
Outcome: considered
That the Court has a general power to control its proceedings and that this includes a power to grant a temporary stay of those proceedings in various circumstances is not in doubt. The authority cited by Burnett Water for this proposition, Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd [1992] FCA 72 ; (1992) 34 FCR 287 at 290 certainly exemplifies this but in the different context of similar proceedings pending in a foreign jurisdiction. More pertinent is a line of authority with regard to this general power which may be traced to the judgement of Megaw LJ (Brandon LJ agreeing) in Jefferson Ltd v Bhetcha [1979] 1 WLR 898 in which (at 904H-905B) his Lordship stated: I should be prepared to accept that the court which is competent to control the proceedings in the civil action ... would have a discretion, under s 41 of the Supreme Court of Judicature (Consolidation) Act 1925, to stay the proceedings if it appeared to the court that justice the balancing of justice between the parties so required, having regard to the concurrent criminal proceedings, and taking into account the principle, which applies in the criminal proceeding itself, of what is sometimes referred to as the 'right of silence' and the reason why that right, under the law as it stands, is a right of a defendant in criminal proceedings. But in the civil court it would be a matter of discretion, and not of right. There is, I say again, in my judgement, no principle of law that a plaintiff in a civil action is to be debarred from pursuing that action in accordance with the normal rules for the conduct of civil actions merely because so to do would, or might, result in the defendant, if he wished to defend the action, having to disclose, by an affidavit under Order 14, or in the pleading of his defence, or by way of discovery or otherwise, what his defence is or may be, in whole or in part, with the result with the result that he might be giving an indication of what his defence was likely to be in the contemporaneous criminal proceedings. The protection which is at present given to one facing a criminal charge the so-called 'right of silence' does not extend to give the defendant as a matter of right the same protection in contemporaneous civil proceedings.
Case: Osric Investments v Probst [2007] QSC 293
Outcome: cited
In the result, Robson J (at [58]) felt that he was bound to follow what he described as the " McMahon v Gould line of authorities". So do I. Locally in Queensland, Daubney J reached a like conclusion last year in Osric Investments v Probst [2007] QSC 293 at [12].
Case: Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd [1992] FCA 72 ; (1992) 34 FCR 287
Outcome: cited
That the Court has a general power to control its proceedings and that this includes a power to grant a temporary stay of those proceedings in various circumstances is not in doubt. The authority cited by Burnett Water for this proposition, Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd [1992] FCA 72 ; (1992) 34 FCR 287 at 290 certainly exemplifies this but in the different context of similar proceedings pending in a foreign jurisdiction. More pertinent is a line of authority with regard to this general power which may be traced to the judgement of Megaw LJ (Brandon LJ agreeing) in Jefferson Ltd v Bhetcha [1979] 1 WLR 898 in which (at 904H-905B) his Lordship stated: I should be prepared to accept that the court which is competent to control the proceedings in the civil action ... would have a discretion, under s 41 of the Supreme Court of Judicature (Consolidation) Act 1925, to stay the proceedings if it appeared to the court that justice the balancing of justice between the parties so required, having regard to the concurrent criminal proceedings, and taking into account the principle, which applies in the criminal proceeding itself, of what is sometimes referred to as the 'right of silence' and the reason why that right, under the law as it stands, is a right of a defendant in criminal proceedings. But in the civil court it would be a matter of discretion, and not of right. There is, I say again, in my judgement, no principle of law that a plaintiff in a civil action is to be debarred from pursuing that action in accordance with the normal rules for the conduct of civil actions merely because so to do would, or might, result in the defendant, if he wished to defend the action, having to disclose, by an affidavit under Order 14, or in the pleading of his defence, or by way of discovery or otherwise, what his defence is or may be, in whole or in part, with the result with the result that he might be giving an indication of what his defence was likely to be in the contemporaneous criminal proceedings. The protection which is at present given to one facing a criminal charge the so-called 'right of silence' does not extend to give the defendant as a matter of right the same protection in contemporaneous civil proceedings.
Case: Copperart Pty Ltd v Federal Commissioner of Taxation (1993) 26 ATR 327
Outcome: cited
The applicant's second submission was put in terms of the Tribunal taking into account irrelevant considerations, namely, the applicant's interest in the Torrensville property and his interest in the preserved superannuation benefits. As I have said, the applicant submits that he has no interest in the Torrensville property or, in the alternative, no immediately realisable interest in the property and no immediately realisable interest in the preserved superannuation benefits. On the face of it, those issues are issues of fact. If there were incorrect findings of fact with respect to those issues, those findings of fact would not be overturned so as to expose a question of law. The appeal to this Court is limited to an appeal on a question of law and there is no right of appeal if a question of law is only exposed if findings of fact are overturned: Copperart Pty Ltd v Federal Commissioner of Taxation (1993) 26 ATR 327. Furthermore, even if a question of law is exposed, this Court does not then have a mandate to review the decision generally: TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1067.
Case: David Securities Pty Ltd v Commonwealth Bank of Australia Ltd [1992] HCA 48 ; (1992) 175 CLR 353
Outcome: cited
The applicant's third submission is that the Tribunal member failed to take into account a relevant consideration, namely, that the applicant had changed his position as a result of the respondent's error. The applicant referred to cases dealing with the recovery of money paid to a person by mistake ( Lipkin Gorman (a firm) v Karpnale Ltd [1988] UKHL 12 ; [1991] 2 AC 548; David Securities Pty Ltd v Commonwealth Bank of Australia Ltd [1992] HCA 48 ; (1992) 175 CLR 353). I reject the applicant's submission. The Tribunal member was not obliged to approach the matter in this way. He clearly took into account the respondent's error and the nature of the error. He took into account the financial hardship the applicant might suffer if required to repay the debt. I do not think the fact that the applicant might have spent the moneys which are the subject of the debt on ordinary living expenses is of any particular significance. The significant matter was financial hardship and the applicant's capacity to repay the debt, and, as I have said, those matters were addressed by the Tribunal member.
Case: Dranichnikov v Centrelink (2003) 53 ATR 270
Outcome: considered
The applicant's first submission is that the Tribunal member applied too stringent a test as to what might constitute special circumstances within s 1237AAD(b). He submits that the Tribunal member said that to constitute special circumstances the circumstances must be 'unusual uncommon and exceptional'. The applicant submits that that was the test formulated by the Tribunal in Re Beadle and Director-General of Social Security (supra) but it was not the test approved on appeal by the Full Court of this Court: Beadle v Director-General of Social Security (1985) 60 ALR 225. Nor, submits the applicant, is the test consistent with other authority of this Court including Dranichnikov v Centrelink (2003) 53 ATR 270 and Ryde v Secretary, Department of Family and Community Services [2005] FCA 866. The applicant submits that the correct test as to what constitutes special circumstances is whether the circumstances take the case out of the ordinary. 29 In Dranichnikov v Centrelink (supra) the Full Court, in considering a similar statutory provision to s 1237AAB said (at [65] and [66]): '65. The decision maker clearly also determined that the circumstances were such that they were not exceptional or unusual so that waiver could not be made as a matter of discretion under s 101. That equates "special circumstances", as that expression is used in the Administration Act with either exceptional circumstances or unusual circumstances. The origin of the test apparently adopted by the Secretary appears to be the decision of the first instance Judge in Beadle v Directory-General of Social Security (1985) 60 ALR 225. That was a decision under previous legislation, the history of which is referred to by French J in Secretary of Department of Social Security v Hales (1998) 82 FCR 154. The Full Court in Beadle comprising Bowen CJ, Fisher and Lockhart JJ, however, was of the view that it was not possible to lay down precise rules as to what constituted special circumstances under the then s 102(1)(a) of the Social Security Act 1947 (Cth). Their Honours point out that the question whether there were special circumstances was one for the decision maker (in that case the Director-General) bearing in mind the purpose for which the power was given. The reference to the first instance decision from which the words "unusual, uncommon or exceptional" come was not actually affirmed by the Full Court. 66. To some extent the question whether there were special circumstances must depend on how it came about that the error occurred. Again that is not a matter to which the decision maker apparently averted. Other cases which have considered analogous words such as "special reasons" has tended to conclude, albeit in different contexts, that what is required will be circumstances which distinguish the case in consideration from the usual case. There will be a requirement that the circumstances are such that takes the case out of the ordinary: Jess v Scott (1986) 12 FCR 187 and the cases in various contexts in the decision which Lockhart, Shepherd and Burchett JJ discuss.'
Case: Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Outcome: considered
The Tribunal member referred to a number of cases which have considered the meaning of 'special circumstances'. He referred to the decision of the Tribunal in Re Beadle v Director-General of Social Security (1984) 6 ALD 1 where it was said that the circumstances must be unusual, uncommon or exceptional, and the reasons for judgment of Kiefel J in Groth v Secretary, Department of Social Security (1995) 40 ALD 541 where her Honour referred to a circumstance taking the case out of the usual or ordinary case. The Tribunal member also referred to observations of the Full Court of this Court in Riddell v Secretary, Department of Social Security (1993) 30 ALD 31 and of French J in Secretary, Department of Social Security v Hales (supra). I will discuss the relevant authorities later in these reasons. 34 It is true that in expressing his conclusions the Tribunal member said that there was nothing unusual, uncommon or exceptional about the applicant's case. However, his reasons must be read as a whole and when that is done I do not think that he applied too demanding a test. The first point to note is that contrary to the applicant's submission he did not apply a test of 'unusual, uncommon and exceptional' as distinct from 'unusual, uncommon or exceptional' as submitted by the applicant. Secondly, he referred to the following remarks of Kiefel J in Groth v Secretary, Department of Social Security (supra) as to the meaning of the phrase 'special circumstances': '... would require something to distinguish Mr Groth's case from others, to take it out of the usual or ordinary case. ... It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary. ...'
Case: Giumelli v Giumelli [1999] HCA 10 ; (1999) 196 CLR 101
Outcome: cited
On appeal, counsel for the applicant referred me to cases such as Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7 ; (1988) 164 CLR 387, Giumelli v Giumelli [1999] HCA 10 ; (1999) 196 CLR 101 and Plimmer v Wellington Corporation (1884) 9 App Cases 699, and submitted that the Tribunal member should have found that the applicant had no beneficial interest in the Torrensville property, or at least no interest that could be realised in the foreseeable future. In the context of the applicant's preservation benefits, counsel for the applicant made submissions as to the effect of provisions of the Superannuation Industry (Supervision) Act 1993 (Cth).
Case: Lipkin Gorman (a firm) v Karpnale Ltd [1988] UKHL 12 ; [1991] 2 AC 548
Outcome: cited
The applicant's third submission is that the Tribunal member failed to take into account a relevant consideration, namely, that the applicant had changed his position as a result of the respondent's error. The applicant referred to cases dealing with the recovery of money paid to a person by mistake ( Lipkin Gorman (a firm) v Karpnale Ltd [1988] UKHL 12 ; [1991] 2 AC 548; David Securities Pty Ltd v Commonwealth Bank of Australia Ltd [1992] HCA 48 ; (1992) 175 CLR 353). I reject the applicant's submission. The Tribunal member was not obliged to approach the matter in this way. He clearly took into account the respondent's error and the nature of the error. He took into account the financial hardship the applicant might suffer if required to repay the debt. I do not think the fact that the applicant might have spent the moneys which are the subject of the debt on ordinary living expenses is of any particular significance. The significant matter was financial hardship and the applicant's capacity to repay the debt, and, as I have said, those matters were addressed by the Tribunal member.
Case: Plimmer v Wellington Corporation (1884) 9 App Cases 699
Outcome: cited
On appeal, counsel for the applicant referred me to cases such as Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7 ; (1988) 164 CLR 387, Giumelli v Giumelli [1999] HCA 10 ; (1999) 196 CLR 101 and Plimmer v Wellington Corporation (1884) 9 App Cases 699, and submitted that the Tribunal member should have found that the applicant had no beneficial interest in the Torrensville property, or at least no interest that could be realised in the foreseeable future. In the context of the applicant's preservation benefits, counsel for the applicant made submissions as to the effect of provisions of the Superannuation Industry (Supervision) Act 1993 (Cth).
Case: Riddell v Secretary, Department of Social Security (1993) 30 ALD 31
Outcome: considered
The Tribunal member referred to a number of cases which have considered the meaning of 'special circumstances'. He referred to the decision of the Tribunal in Re Beadle v Director-General of Social Security (1984) 6 ALD 1 where it was said that the circumstances must be unusual, uncommon or exceptional, and the reasons for judgment of Kiefel J in Groth v Secretary, Department of Social Security (1995) 40 ALD 541 where her Honour referred to a circumstance taking the case out of the usual or ordinary case. The Tribunal member also referred to observations of the Full Court of this Court in Riddell v Secretary, Department of Social Security (1993) 30 ALD 31 and of French J in Secretary, Department of Social Security v Hales (supra). I will discuss the relevant authorities later in these reasons. 35 Furthermore, the Tribunal member referred to the following remarks of the Full Court of this Court in Riddell v Secretary, Department of Social Security (supra) (at 38): 'Each particular case must be considered on its merits. It is the essential nature of the provision to create a broad discretion to meet the great variety of circumstances which must occur, raising considerations of individual hardship, need, fairness, reasonableness, and whatever else may move an administrator, keeping in mind the scope and purposes of the Act, to make a decision one way or the other.' 36 There is nothing in the reasons of the Tribunal member to suggest that he did not think it appropriate to apply those remarks to the task he was required to undertake. Thirdly, this is not a case where the facts suggested that a precise formulation of the test was necessary or likely to be decisive. It seems to me to be implicit at the very least that the Tribunal member did not consider that there were any features which meant that the case was unusual or out of the ordinary. 37 I reject the applicant's first submission.
Case: TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1067
Outcome: cited
The applicant's second submission was put in terms of the Tribunal taking into account irrelevant considerations, namely, the applicant's interest in the Torrensville property and his interest in the preserved superannuation benefits. As I have said, the applicant submits that he has no interest in the Torrensville property or, in the alternative, no immediately realisable interest in the property and no immediately realisable interest in the preserved superannuation benefits. On the face of it, those issues are issues of fact. If there were incorrect findings of fact with respect to those issues, those findings of fact would not be overturned so as to expose a question of law. The appeal to this Court is limited to an appeal on a question of law and there is no right of appeal if a question of law is only exposed if findings of fact are overturned: Copperart Pty Ltd v Federal Commissioner of Taxation (1993) 26 ATR 327. Furthermore, even if a question of law is exposed, this Court does not then have a mandate to review the decision generally: TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1067.
Case: Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7 ; (1988) 164 CLR 387
Outcome: cited
On appeal, counsel for the applicant referred me to cases such as Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7 ; (1988) 164 CLR 387, Giumelli v Giumelli [1999] HCA 10 ; (1999) 196 CLR 101 and Plimmer v Wellington Corporation (1884) 9 App Cases 699, and submitted that the Tribunal member should have found that the applicant had no beneficial interest in the Torrensville property, or at least no interest that could be realised in the foreseeable future. In the context of the applicant's preservation benefits, counsel for the applicant made submissions as to the effect of provisions of the Superannuation Industry (Supervision) Act 1993 (Cth).
Case: Gidaro v Secretary, Department of Social Security (1998) 83 FCR 139
Outcome: cited
It appears from the notice that the Department had concluded that the appellant may not have complied with s 101. That is made clear not only by the opening words but also by the wording included in the body of the notice. The notice said that the appellant "may have provided incorrect information". It then asserted that the application failed to provide details of the appellant's de facto wife and child which caused the delegate to believe that the appellant "may have provided incorrect information". That was not, in my opinion, sufficient to engage s 107(1) and to permit notice to be given under that section: cf. Gidaro v Secretary, Department of Social Security (1998) 83 FCR 139 at 148-149. The statutory state of mind had not been reached. The notice was, in my opinion, defective in that the notice could not be given. 78 The appellant also argued that the notice failed to particularise the visa holder's possible non-compliance as required by s 107(1)(a). 79 If the Minister or the Minister's delegate has reached the statutory state of mind to which I have referred, then any notice which is given must in all other respects comply with s 107. That means that the notice must give particulars of the possible non-compliance required in s 107(1)(a) and include in the notice all of the other matters referred to in the paragraphs to s 107(1).
Case: NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199 
Outcome: distinguished
The Minister contended that in the event that it was thought there had not been compliance with s 107, relief should be refused "given that the appellant has upon his own admission repeatedly sought to deceive the Australian immigration authorities." In support of that contention, the Minister relied upon NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199 at [10] - [13] . 88 There may be circumstances where the applicant's conduct clearly evidences bad faith either in regard to the application for the visa, the review proceedings or curial proceedings that follow which make it appropriate to refuse to grant the discretionary relief under s 75(v) of the Commonwealth of Australia Constitution Act 1901 (Cth). However, this is not one of those cases. The Minister's submission would put this Court in a position where it would have to form judgment as to the appellant's conduct in his application for the visa and in the review proceedings. If this Court were to refuse the issue of the Constitutional writs, in my opinion, it would be tantamount to finding on this appeal that the appellant's visa should have been cancelled. That seems to be very much like a decision on the merits which should be avoided. Moreover, the appellant was not warned in the proceeding before the Federal Magistrate or before the Minister's written submissions were filed that the Minister would seek to have the appeal dismissed on that ground. It seems to me that if the Minister had wished to support the judgment appealed from on that ground the Minister should have filed a notice of contention as required under O 52 r 22(3) of the Federal Court Rules 1979 (Cth). 89 I will not therefore, in the exercise of my discretion, refuse to order the issue of the Constitutional writs.
Case: Tien v Minister for Immigration and Multicultural and Indigenous Affairs [1998] FCA 1552 ; (1998) 89 FCR 80
Outcome: cited
If I am wrong about s 107 never being engaged and the delegate was entitled to give the notice which was given, the notice in my opinion failed to comply with s 107 in that it did not particularise the possible non-compliance. Because particulars of the non-compliance were not given, it meant that the appellant could not give a written response to the notice disputing there was non-compliance and showing there was compliance as provided for in s 107(1)(b). The giving of a notice which complies with s 107 of the Act is a statutory precondition to the exercise of the Minister's or delegate's power to cancel the visa: cf. Tien v Minister for Immigration and Multicultural and Indigenous Affairs [1998] FCA 1552 ; (1998) 89 FCR 80 ; Zhou v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1078 ; (2004) 139 FCR 60.