mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14
Outcome: discussed
I note that in the recent decision of Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14 , the High Court declared s 486A of the Migration Act invalid. Section 486A purports to impose time limits on the High Court's jurisdiction to entertain applications for review in much the same way as s 477 applies to the Federal Magistrates Court. The High Court declared s 486A invalid on the basis that it impermissibly limits the right of applicants to seek relief, in the form of constitutional writs, under s 75(v) of the Constitution . In my opinion, this decision does not bring the validity of s 477 into doubt. The Federal Magistrates Court obtains its jurisdiction from statute rather than the Constitution . If the legislature wishes to confine that jurisdiction it is entitled to do so (see SZICV v Minister for Immigration and Citizenship [2007] FCAFC 39 at [45] - [47] and Fisher v Minister for Immigration and Citizenship [2007] FCA 591 at [43] ).
Case: Fisher v Minister for Immigration and Citizenship [2007] FCA 591
Outcome: cited
I note that in the recent decision of Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14 , the High Court declared s 486A of the Migration Act invalid. Section 486A purports to impose time limits on the High Court's jurisdiction to entertain applications for review in much the same way as s 477 applies to the Federal Magistrates Court. The High Court declared s 486A invalid on the basis that it impermissibly limits the right of applicants to seek relief, in the form of constitutional writs, under s 75(v) of the Constitution . In my opinion, this decision does not bring the validity of s 477 into doubt. The Federal Magistrates Court obtains its jurisdiction from statute rather than the Constitution . If the legislature wishes to confine that jurisdiction it is entitled to do so (see SZICV v Minister for Immigration and Citizenship [2007] FCAFC 39 at [45] - [47] and Fisher v Minister for Immigration and Citizenship [2007] FCA 591 at [43] ).
Case: SZICV v Minister for Immigration and Citizenship [2007] FCAFC 39
Outcome: cited
I note that in the recent decision of Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14 , the High Court declared s 486A of the Migration Act invalid. Section 486A purports to impose time limits on the High Court's jurisdiction to entertain applications for review in much the same way as s 477 applies to the Federal Magistrates Court. The High Court declared s 486A invalid on the basis that it impermissibly limits the right of applicants to seek relief, in the form of constitutional writs, under s 75(v) of the Constitution . In my opinion, this decision does not bring the validity of s 477 into doubt. The Federal Magistrates Court obtains its jurisdiction from statute rather than the Constitution . If the legislature wishes to confine that jurisdiction it is entitled to do so (see SZICV v Minister for Immigration and Citizenship [2007] FCAFC 39 at [45] - [47] and Fisher v Minister for Immigration and Citizenship [2007] FCA 591 at [43] ).
Case: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396
Outcome: cited
I assume that the appellants are correct in their submissions as to the denial to them of natural justice in relation to the wages material. Further, I note that in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214, the majority of the Full Court departed from the decisions in VAF and Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 and held that, in light of SAAP , it is only necessary that the information be a part of the reason the stature, importance or character of the information is not determinative of a Tribunal's need to comply with s 424A (see Weinberg J at [155] and [182], and Allsop J at [215]). It is however unnecessary to decide those matters finally, because the respondent's submissions should, in my view, be accepted as to the supposed jurisdictional misapplication of the statutory 'involvement' criterion for the visa. The appellants needed to succeed as to both criteria issues.
Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162
Outcome: referred to
The appellants responded that, given that Mrs Lobo had attended the first Tribunal hearing, their situation is no different from one in which the Tribunal, having conducted a hearing at which the applicant was present, proceeds to make a decision based upon information adverse to an applicant, not provided by the applicant and not put to him or her by the Tribunal at any stage. Counsel for the appellants referred to observations of Hayne J in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at [192] that 'it is not right to see [an] applicant's appearance before the tribunal pursuant to s 425 ... as the focus or culmination of the review process. It is no more than one step in what otherwise is a predominantly documentary process'. 43 The appellants also claimed that the Tribunal had breached s 359A of the Act. They rely on VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [41], in which Finn and Stone JJ said that, under s 424A of the Act, a provision applicable to the Refugee Review Tribunal ('RRT') which is similarly worded to s 359A, information which is integral to the reasoning process rejecting the applicant's claim, as a matter of fairness, must be disclosed to the applicant and the applicant must be told of its relevance to the review. The appellants submitted that the AIRC information fell within this category. The appellants further argued that the decision in SAAP, which also concerned s 424A, established that the duty in s 359A is strict. Therefore, unlike the procedural fairness claim, the appellants submitted that Mrs Lobo is not burdened with showing that she could have answered the material, and the issue of 'practical injustice' is irrelevant to the question of jurisdictional error. 48 I assume that the appellants are correct in their submissions as to the denial to them of natural justice in relation to the wages material. Further, I note that in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214, the majority of the Full Court departed from the decisions in VAF and Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 and held that, in light of SAAP , it is only necessary that the information be a part of the reason the stature, importance or character of the information is not determinative of a Tribunal's need to comply with s 424A (see Weinberg J at [155] and [182], and Allsop J at [215]). It is however unnecessary to decide those matters finally, because the respondent's submissions should, in my view, be accepted as to the supposed jurisdictional misapplication of the statutory 'involvement' criterion for the visa. The appellants needed to succeed as to both criteria issues.
Case: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214
Outcome: referred to
I assume that the appellants are correct in their submissions as to the denial to them of natural justice in relation to the wages material. Further, I note that in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214, the majority of the Full Court departed from the decisions in VAF and Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 and held that, in light of SAAP , it is only necessary that the information be a part of the reason the stature, importance or character of the information is not determinative of a Tribunal's need to comply with s 424A (see Weinberg J at [155] and [182], and Allsop J at [215]). It is however unnecessary to decide those matters finally, because the respondent's submissions should, in my view, be accepted as to the supposed jurisdictional misapplication of the statutory 'involvement' criterion for the visa. The appellants needed to succeed as to both criteria issues.
Case: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
Outcome: cited
The appellants also claimed that the Tribunal had breached s 359A of the Act. They rely on VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [41], in which Finn and Stone JJ said that, under s 424A of the Act, a provision applicable to the Refugee Review Tribunal ('RRT') which is similarly worded to s 359A, information which is integral to the reasoning process rejecting the applicant's claim, as a matter of fairness, must be disclosed to the applicant and the applicant must be told of its relevance to the review. The appellants submitted that the AIRC information fell within this category. The appellants further argued that the decision in SAAP, which also concerned s 424A, established that the duty in s 359A is strict. Therefore, unlike the procedural fairness claim, the appellants submitted that Mrs Lobo is not burdened with showing that she could have answered the material, and the issue of 'practical injustice' is irrelevant to the question of jurisdictional error. 48 I assume that the appellants are correct in their submissions as to the denial to them of natural justice in relation to the wages material. Further, I note that in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214, the majority of the Full Court departed from the decisions in VAF and Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 and held that, in light of SAAP , it is only necessary that the information be a part of the reason the stature, importance or character of the information is not determinative of a Tribunal's need to comply with s 424A (see Weinberg J at [155] and [182], and Allsop J at [215]). It is however unnecessary to decide those matters finally, because the respondent's submissions should, in my view, be accepted as to the supposed jurisdictional misapplication of the statutory 'involvement' criterion for the visa. The appellants needed to succeed as to both criteria issues.
Case: Ruddock v Vadarlis (No 2) (2001) 115 FCR 229
Outcome: cited
The Court has discretionary power to make orders as to costs, which power is to be exercised judicially: see Federal Court of Australia Act 1976 (Cth), s 43 and Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at 234 per Black CJ and French J. The Court is now concerned with what are commonly known as "costs thrown away". An order for costs thrown away is not infrequently made in circumstances such as the present, where an adjournment application succeeds, and the party seeking costs maintains a readiness to proceed on the day fixed for trial but for the conduct of the other party. The costs thrown away are such costs as have been reasonably incurred that relate to work done and wasted as a result of the successful adjournment application: see Andromeda Handelsaktieselskab v Holme (1924) 130 LT 329 at 330 and Fashion Warehouse Pty Ltd v Pola [1984] 1 Qd R 251 at 254. Generally, costs thrown away are costs that have been incurred once and will be incurred again for the purpose of the trial that is fixed a second time: Roger Quick and David Garnsworthy, Quick on Costs (Thomson Law Book Company, 2009) par [1.1230]. It is to be borne in mind that the likelihood or otherwise of a party being ultimately successful in the proceeding is not a relevant consideration on the question whether an order for costs thrown away should be made.
Case: Andromeda Handelsaktieselskab v Holme (1924) 130 LT 329
Outcome: cited
The Court has discretionary power to make orders as to costs, which power is to be exercised judicially: see Federal Court of Australia Act 1976 (Cth), s 43 and Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at 234 per Black CJ and French J. The Court is now concerned with what are commonly known as "costs thrown away". An order for costs thrown away is not infrequently made in circumstances such as the present, where an adjournment application succeeds, and the party seeking costs maintains a readiness to proceed on the day fixed for trial but for the conduct of the other party. The costs thrown away are such costs as have been reasonably incurred that relate to work done and wasted as a result of the successful adjournment application: see Andromeda Handelsaktieselskab v Holme (1924) 130 LT 329 at 330 and Fashion Warehouse Pty Ltd v Pola [1984] 1 Qd R 251 at 254. Generally, costs thrown away are costs that have been incurred once and will be incurred again for the purpose of the trial that is fixed a second time: Roger Quick and David Garnsworthy, Quick on Costs (Thomson Law Book Company, 2009) par [1.1230]. It is to be borne in mind that the likelihood or otherwise of a party being ultimately successful in the proceeding is not a relevant consideration on the question whether an order for costs thrown away should be made.
Case: Fashion Warehouse Pty Ltd v Pola [1984] 1 Qd R 251
Outcome: cited
The Court has discretionary power to make orders as to costs, which power is to be exercised judicially: see Federal Court of Australia Act 1976 (Cth), s 43 and Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at 234 per Black CJ and French J. The Court is now concerned with what are commonly known as "costs thrown away". An order for costs thrown away is not infrequently made in circumstances such as the present, where an adjournment application succeeds, and the party seeking costs maintains a readiness to proceed on the day fixed for trial but for the conduct of the other party. The costs thrown away are such costs as have been reasonably incurred that relate to work done and wasted as a result of the successful adjournment application: see Andromeda Handelsaktieselskab v Holme (1924) 130 LT 329 at 330 and Fashion Warehouse Pty Ltd v Pola [1984] 1 Qd R 251 at 254. Generally, costs thrown away are costs that have been incurred once and will be incurred again for the purpose of the trial that is fixed a second time: Roger Quick and David Garnsworthy, Quick on Costs (Thomson Law Book Company, 2009) par [1.1230]. It is to be borne in mind that the likelihood or otherwise of a party being ultimately successful in the proceeding is not a relevant consideration on the question whether an order for costs thrown away should be made.
Case: Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225
Outcome: cited
In this circumstance, the Commissioner should have his costs thrown away by reason of the adjournment of the trial, including the hearings on 5 and 18 September 2008. The next question is whether these costs should be paid on an indemnity basis. The usual rule is that costs are payable on a party and party basis, unless the circumstances of the case warrant a departure from the normal course: see Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 (" Colgate-Palmolive ") at 233 per Sheppard J; Re Wilcox: Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 at 152-53 per Black CJ and 156-58 per Cooper and Merkel JJ; and O 62 of the Rules. It is unnecessary to outline in detail the principles governing when a departure from the usual rule is justified: see, for example, Boyapati v Rockefeller Management Corporation (No 2) [2008] FCA 1375 (" Boyapati (No 2 )") and the authorities therein. As the Full Court said in Hamod v New South Wales [2002] FCA 424 ; (2002) 188 ALR 659 at 665 (per Gray J, with whom Carr and Goldberg JJ agreed), indemnity costs "serve the purpose of compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the Court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs".
Case: Re Wilcox: Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151
Outcome: cited
In this circumstance, the Commissioner should have his costs thrown away by reason of the adjournment of the trial, including the hearings on 5 and 18 September 2008. The next question is whether these costs should be paid on an indemnity basis. The usual rule is that costs are payable on a party and party basis, unless the circumstances of the case warrant a departure from the normal course: see Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 (" Colgate-Palmolive ") at 233 per Sheppard J; Re Wilcox: Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 at 152-53 per Black CJ and 156-58 per Cooper and Merkel JJ; and O 62 of the Rules. It is unnecessary to outline in detail the principles governing when a departure from the usual rule is justified: see, for example, Boyapati v Rockefeller Management Corporation (No 2) [2008] FCA 1375 (" Boyapati (No 2 )") and the authorities therein. As the Full Court said in Hamod v New South Wales [2002] FCA 424 ; (2002) 188 ALR 659 at 665 (per Gray J, with whom Carr and Goldberg JJ agreed), indemnity costs "serve the purpose of compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the Court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs".
Case: Boyapati v Rockefeller Management Corporation (No 2) [2008] FCA 1375
Outcome: cited
In this circumstance, the Commissioner should have his costs thrown away by reason of the adjournment of the trial, including the hearings on 5 and 18 September 2008. The next question is whether these costs should be paid on an indemnity basis. The usual rule is that costs are payable on a party and party basis, unless the circumstances of the case warrant a departure from the normal course: see Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 (" Colgate-Palmolive ") at 233 per Sheppard J; Re Wilcox: Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 at 152-53 per Black CJ and 156-58 per Cooper and Merkel JJ; and O 62 of the Rules. It is unnecessary to outline in detail the principles governing when a departure from the usual rule is justified: see, for example, Boyapati v Rockefeller Management Corporation (No 2) [2008] FCA 1375 (" Boyapati (No 2 )") and the authorities therein. As the Full Court said in Hamod v New South Wales [2002] FCA 424 ; (2002) 188 ALR 659 at 665 (per Gray J, with whom Carr and Goldberg JJ agreed), indemnity costs "serve the purpose of compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the Court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs".
Case: Hamod v New South Wales [2002] FCA 424 ; (2002) 188 ALR 659
Outcome: referred to
In this circumstance, the Commissioner should have his costs thrown away by reason of the adjournment of the trial, including the hearings on 5 and 18 September 2008. The next question is whether these costs should be paid on an indemnity basis. The usual rule is that costs are payable on a party and party basis, unless the circumstances of the case warrant a departure from the normal course: see Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 (" Colgate-Palmolive ") at 233 per Sheppard J; Re Wilcox: Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 at 152-53 per Black CJ and 156-58 per Cooper and Merkel JJ; and O 62 of the Rules. It is unnecessary to outline in detail the principles governing when a departure from the usual rule is justified: see, for example, Boyapati v Rockefeller Management Corporation (No 2) [2008] FCA 1375 (" Boyapati (No 2 )") and the authorities therein. As the Full Court said in Hamod v New South Wales [2002] FCA 424 ; (2002) 188 ALR 659 at 665 (per Gray J, with whom Carr and Goldberg JJ agreed), indemnity costs "serve the purpose of compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the Court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs".
Case: Barrett Property Group Limited v Metricon Homes Pty Ltd (No 2) [2007] FCA 1823
Outcome: referred to
In Barrett Property Group Limited v Metricon Homes Pty Ltd (No 2) [2007] FCA 1823 (" Barrett "), Gilmour J discussed the circumstances in which departure from the general rule in Order 62 rule 3(3) may be justified: see Barrett at [23]-[24] and the authorities there discussed and cited. It is unnecessary to repeat his Honour's discussion here. Having regard to the relevant authorities, including Barrett , I would not grant leave to tax costs forthwith in this case, at least not now. I accept that Mr Sobey has led the Commissioner to incur costs over and above what he would have incurred had Mr Sobey conducted his case diligently. The issues in this case are not complex, however, and I would not expect the trial to be especially lengthy or complex. The parties ought to be ready for a trial, at the latest, by early next year. This ought not to be a case in which the Commissioner waits unduly long to recover any costs due on taxation. 31 In the circumstances as presently disclosed, I would not order costs to be paid forthwith. 32 Accordingly, I would order that Mr Sobey pay the Commissioner's costs thrown away by reason of the trial of the proceedings being adjourned, including the hearings on 5 and 18 September 2008. I would further order that these costs be paid on an indemnity basis. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny . Associate: Dated: 17 November 2008 Counsel for the Applicant: Mr F G A Beaumont QC with Mr E J Power Solicitor for the Applicant: Charlesworth Josem Partners Pty Ltd Counsel for the Respondent: Mr G Livermore Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 18 September 2008 Date of Judgment: 17 November 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1621.html
Case: Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 ; (2001) 106 FCR 426
Outcome: referred to
The Minister submits that failure to take account of particular evidence, as opposed to a distinct claim would, even if established, not amount to an error going to jurisdiction. See generally Applicant WAEE v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 184 at [46] ; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at [74] ; and Paul v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at [79] . Insofar as the ground seeks to agitate the same matters that were raised before Scarlett FM, the Minister submits that the RRT does not have a legally enforceable duty to make enquiries: see WAGJ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 277 at [24] [25] citing Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 ; (2001) 106 FCR 426 at [86] .