mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Newton v State Government Insurance Office (Qld) [1986] 1 Qd R 431
Outcome: referred to
Forbearance is sometimes exchanged for security: see, e.g., Murphy v Timms [1987] 2 Qd R 550 at 551 per Kneipp J (with whom Vasta J agreed) and 556 per Connolly J (holding that forbearance to sue by a creditor at the express or implied request of a guarantor is sufficient consideration to support a guarantee). Also, forbearance might be consideration where quantum is uncertain. For example, a claimant might forbear to sue in exchange for an insurer accepting liability: see Newton v State Government Insurance Office (Qld) [1986] 1 Qd R 431 at 444-5 per McPherson J. In that situation, the insurer benefits by avoiding costly litigation while quantum is investigated and negotiated. This case is different. The applicant claims that AWB acknowledged both liability and quantum with respect to the damages claim. According to the applicant, AWB bound itself, without more, to pay the damages claim in full. If the applicant were correct, then, Soufflet USA would have exchanged its damages claim for AWB's unqualified promise to pay the exact same claim. This is inherently unlikely.
Case: R v Le [2002] NSWCCA 186 ; (2002) 54 NSWLR 474
Outcome: cited
The right to question 'as though ... cross-examining' is limited by the word 'about'. Questioning may, however, be directed to establishing the probability of the factual state of affairs, covered by the relevant subparagraph, contended for by the party conducting the questioning or the improbability of the witness's evidence on those subjects (per Heydon JA in R v Le [2002] NSWCCA 186 ; (2002) 54 NSWLR 474 at [55] - [67] ).
Case: Klewer v Walton [2003] NSWCA 308
Outcome: cited
In the case of s 38(1)(a) , that about which the questioning may so proceed is 'evidence given by the witness that is unfavourable to the party' who called the witness. In R v Souleyman (1996) 40 NSWLR 712 at 715 Smart J held that, where the evidence of a witness did not, in significant respects, come up to a prior statement, his evidence was unfavourable. I must say that I have some difficulty with the proposition that one can characterise evidence given as unfavourable if, to do so, one has to go beyond the pleadings and the evidence itself. I do not think that 'unfavourable' should be construed, as suggested by Smart J, as simply 'not favourable'. (see also R v Lozano , unreported, NSWCCA, 10 June 1997 per Hunt CJ at CL, R v Glasby [2000] NSWCCA 83 ; (2000) 115 A Crim R 465 at [59] and R v Taylor [2003] NSWCCA 194 at [74] ). As I see it, for evidence to be characterised as 'unfavourable' it would have to detract from the case of the party calling the witness. I would prefer the approach taken by Hodgson JA with which Meagher JA agreed, in Klewer v Walton [2003] NSWCA 308 at [20] (and [30]) where his Honour expressed the view that evidence which was simply 'neutral' did not come within the word 'unfavourable' as used in s 38(1)(a). In Adam v The Queen [2001] HCA 57 ; (2001) 207 CLR 96 at [27] Gleeson CJ, McHugh, Kirby and Hayne JJ seem to me to be suggesting that for evidence to be characterised as unfavourable, it must have an unhelpful quality about it, as opposed to a neutral quality.
Case: Adam v The Queen [2001] HCA 57 ; (2001) 207 CLR 96
Outcome: referred to
In the case of s 38(1)(a) , that about which the questioning may so proceed is 'evidence given by the witness that is unfavourable to the party' who called the witness. In R v Souleyman (1996) 40 NSWLR 712 at 715 Smart J held that, where the evidence of a witness did not, in significant respects, come up to a prior statement, his evidence was unfavourable. I must say that I have some difficulty with the proposition that one can characterise evidence given as unfavourable if, to do so, one has to go beyond the pleadings and the evidence itself. I do not think that 'unfavourable' should be construed, as suggested by Smart J, as simply 'not favourable'. (see also R v Lozano , unreported, NSWCCA, 10 June 1997 per Hunt CJ at CL, R v Glasby [2000] NSWCCA 83 ; (2000) 115 A Crim R 465 at [59] and R v Taylor [2003] NSWCCA 194 at [74] ). As I see it, for evidence to be characterised as 'unfavourable' it would have to detract from the case of the party calling the witness. I would prefer the approach taken by Hodgson JA with which Meagher JA agreed, in Klewer v Walton [2003] NSWCA 308 at [20] (and [30]) where his Honour expressed the view that evidence which was simply 'neutral' did not come within the word 'unfavourable' as used in s 38(1)(a). In Adam v The Queen [2001] HCA 57 ; (2001) 207 CLR 96 at [27] Gleeson CJ, McHugh, Kirby and Hayne JJ seem to me to be suggesting that for evidence to be characterised as unfavourable, it must have an unhelpful quality about it, as opposed to a neutral quality.
Case: Fearnley v Australian Fisheries Management Authority [2006] FCAFC 3
Outcome: followed
The Member cited a decision of a Full Court of this Court in Fearnley v Australian Fisheries Management Authority [2006] FCAFC 3. This case also involved an application for review of a decision which had had an effect for a limited period of time which had long since expired. What was in issue was a quota of shark allocated to a fisherman in relation to the 2001 fishing season from 1 January to 31 December 2001. By contract made on 17 December 2001, the fisherman had sold the quota and transferred to the purchasers the fishing permits to which the quota was attached. In that case the Tribunal observed that the proceeding before it would lead to "no practical outcome for" the applicant, and was "futile" and "must be regarded as frivolous and vexatious". That decision was upheld by the Full Court. 9 In his notice of appeal to this Court the applicant states that "the questions of law raised on the appeal are": "(a) That the Tribunal erred in finding that the Applicant had available to him the avenue of complaint to the Ombudsman. (b) That the Tribunal erred in finding that the basis of the applicant's application for review was to give comfort to those who are disaffected by a decision, in circumstances where no orders can be made which can change what has occurred when such finding was inconsistent with the orders that the applicant was seeking in the Tribunal. (c) That the Tribunal erred in finding that the domestic issues underlying the applicant's concerns had now been resolved." 10 The Tribunal did not make a "finding" that the applicant had available to him an avenue of complaint to the Ombudsman (ground (a)), but merely noted that the solicitor of the Legal Aid Commission of New South Wales, who represented the applicant's wife, indicated that in his view the applicant still had available to him that avenue of complaint.
Case: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Outcome: cited
understand that the adverse information which the appellants say the Tribunal failed to provide to them in contravention of s 424A(1) of the Act, and which was used to make the decision to reject the application, was information which the appellants provided to the Department when the decision to refuse the visas was made. However, as the first respondent submitted, this information was also provided by the appellants to the Tribunal. This was not disputed by the appellants. As pointed out by Heerey J in VWBF v Minister for Immigration and Multicultural Affairs (2006) FCA 851 at pars 49 and 50: 'Likewise, if an applicant says to the Tribunal "What I said in my visa application is true" and that application contains fact X, the normal meaning conveyed would be that the applicant is giving the information constituted by fact X to the Tribunal, as well as the further fact that fact X had been asserted by the applicant when he made the visa application. Such a reading of s 424A(1) and (3)(b) would be consistent with common law concepts of natural justice which require the decision-maker to give the person affected notice of relevant information obtained from another source but not, generally speaking, to invite comment on the evaluation of material submitted by the person himself: see Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592 and the cases there cited.'
Case: SZCJR &amp; Ors v Minister for Immigration &amp; Anor (No 2) [2006] FMCA 640
Outcome: cited
FM found that there was no jurisdictional error in the way in which the Tribunal formulated its decision. His Honour at par 7 ( SZCJR &amp; Ors v Minister for Immigration &amp; Anor (No 2) [2006] FMCA 640) found that the Tribunal's decision in this case was simply one of failure of satisfaction due to the lack of detail in the appellants' submissions. The appellants sought to appeal to this Court by way of unparticularised notice of appeal filed by the appellants on 18 April 2006. The notice of appeal stated that the Federal Magistrate's reasons for judgment had not yet been received by the appellant and that grounds would be provided once the judgment was received. The notice of appeal was accepted for filing by the New South Wales Registry of the Federal Court. On 27 July 2006 the Registry contacted the appellants and advised them that grounds of appeal had not been received for filing. The appellants filed a document on 28 July 2006 which outlined their grounds and particulars of appeal. This document was also accepted by the Court. The appellants' grounds of appeal were, inter alia : &#8226; the Tribunal failed to provide the appellants with notice of the adverse information which was used to make the decision to reject the application &#8226; the Tribunal failed to provided the appellants with an opportunity to comment on the country information on India which was used to make the decision to reject the application &#8226; the Tribunal did not provide the appellants with an opportunity to comment on the inconsistencies between the information in the Department's decision and the Tribunal's decision &#8226; there was a denial of natural justice.
Case: VWBF v Minister for Immigration and Multicultural Affairs (2006) FCA 851
Outcome: cited
understand that the adverse information which the appellants say the Tribunal failed to provide to them in contravention of s 424A(1) of the Act, and which was used to make the decision to reject the application, was information which the appellants provided to the Department when the decision to refuse the visas was made. However, as the first respondent submitted, this information was also provided by the appellants to the Tribunal. This was not disputed by the appellants. As pointed out by Heerey J in VWBF v Minister for Immigration and Multicultural Affairs (2006) FCA 851 at pars 49 and 50: 'Likewise, if an applicant says to the Tribunal "What I said in my visa application is true" and that application contains fact X, the normal meaning conveyed would be that the applicant is giving the information constituted by fact X to the Tribunal, as well as the further fact that fact X had been asserted by the applicant when he made the visa application. Such a reading of s 424A(1) and (3)(b) would be consistent with common law concepts of natural justice which require the decision-maker to give the person affected notice of relevant information obtained from another source but not, generally speaking, to invite comment on the evaluation of material submitted by the person himself: see Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592 and the cases there cited.'
Case: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589
Outcome: referred to
Alternatively, even if it can be said that the present proceeding is based upon a cause of action that differs in certain respects from the case that was determined by Gray J, so that the doctrine of res judicata does not apply, it is at least arguable that principles of issue estoppel, or Anshun estoppel, prevent these claims from being pursued. See generally Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589; see also VWZG v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1018 at [10] - [14] . 13 The applicant was not represented before me. She said that she had signed the 20 June 2003 letter indicating that she wished to withdraw her application for review in circumstances where she had not appreciated the effect of adopting that course. She was not legally represented at the time, and had merely been given informal advice by a migration agent. She claimed, in relation to this proceeding, that she had approached a lawyer to act for her, but had been told that there was some impediment to that lawyer doing so. She indicated that the lawyer had expressed concern about being personally liable for any costs that might be incurred in pursuing the litigation. 14 I must say that I have some difficulty in accepting this account in its entirety. Nonetheless, even if what I was told was correct, the applicant still faces difficulties in pursuing this application.
Case: Re Ruddock; Ex parte Reyes (2000) 177 ALR 484
Outcome: referred to
If the order nisi for a writ of prohibition is directed to the Minister, seemingly with the intention of preventing her from giving effect to the Tribunal's decision, the remedy may, nonetheless, be inappropriate. In Re Ruddock; Ex parte Reyes (2000) 177 ALR 484 (" Reyes "), McHugh J held that even if certiorari was granted to quash the Tribunal's decision, there should be no order for prohibition against the Minister. His Honour said at [23]: "there is no ground whatever in a case such as the present for the issue of a writ of prohibition against the minister. As was conceded, as the law stands at the moment and on the facts of the case, the minister was under a duty, in accordance with s 198 of the Migration Act 1958 (Cth) (the Act ), to deport the applicant. No claim for prohibition could possibly be made on the basis of his personal fault or breach of the law or jurisdictional error." 25 McHugh J went on to say that the proper remedies in a case in which a decision of the Tribunal is challenged are certiorari and mandamus, both of which should be directed to the Tribunal. 26 The reasoning in Reyes seems difficult to reconcile with the later decision of Merkel J in Thayananthan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1054 in which his Honour accepted the possibility that prohibition might be an appropriate remedy in cases of this type.
Case: Thayananthan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1054
Outcome: referred to
The reasoning in Reyes seems difficult to reconcile with the later decision of Merkel J in Thayananthan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1054 in which his Honour accepted the possibility that prohibition might be an appropriate remedy in cases of this type.
Case: Cameron v The Queen [2002] HCA 6 ; (2002) 209 CLR 339
Outcome: referred to
have been a number of observations by the courts on the fact that a plea of guilty is ordinarily a matter to be taken into account in mitigation, because it is usually some evidence of remorse, and in particular, the community is spared the expense of a contested trial: see, eg, Siganto v the Queen [1998] HCA 74 ; (1998) 194 CLR 656 at 663-4, Cameron v The Queen [2002] HCA 6 ; (2002) 209 CLR 339 at [22] .
Case: Director of Public Prosecutions Cth v Said Khoda El Karhani [1990] 21 NSWLR 370
Outcome: referred to
relevant principles have been referred to in a large number of cases. The decision of the NSW Court of Criminal Appeal in Director of Public Prosecutions Cth v Said Khoda El Karhani [1990] 21 NSWLR 370 contains useful discussion of the relevant principles commencing at page 377. The principle of general deterrence which should be taken into account in determining the sentence was discussed in that decision. Reference was also made to this in the decision of Von Doussa J in Hamm v Middleton [1999] FCA 777 ; (1999) 44 IPR 656.
Case: Hamm v Middleton [1999] FCA 777 ; (1999) 44 IPR 656
Outcome: referred to
relevant principles have been referred to in a large number of cases. The decision of the NSW Court of Criminal Appeal in Director of Public Prosecutions Cth v Said Khoda El Karhani [1990] 21 NSWLR 370 contains useful discussion of the relevant principles commencing at page 377. The principle of general deterrence which should be taken into account in determining the sentence was discussed in that decision. Reference was also made to this in the decision of Von Doussa J in Hamm v Middleton [1999] FCA 777 ; (1999) 44 IPR 656. Section 16A(2)(c) of the Crimes Act provides that one of the matters which the Court must take into account is whether the offence forms part of a course of conduct consisting of a series of criminal acts of the same or similar character. In that event, the Court is to take into account the course of conduct. This was referred to in Hamm v Middleton at [15]. That subsection is relevant in the present case, because the Crown submits that the appellant's offending conduct persisted throughout the period of 6 October 2005 to 18 December 2007. A further matter which the Court must take into account is set out in section 16A(2)(g) , under which the Court is required to take into account the fact that the person has pleaded guilty to the charge in respect of the particular offence.
Case: Le v R [2007] FCA 1463 ; (2007) 74 IPR 1
Outcome: referred to
also referred to Le v R [2007] FCA 1463 ; (2007) 74 IPR 1 at [20] , in which the Court recorded the submissions of the Crown in relation to the matters to be taken into account. In particular, reference was made at subparagraph 29 of [20] to the need to weigh all relevant factors and in doing so to avoid a mathematical approach in which there are increments to or decrements from a predetermined range of sentences.
Case: Siganto v the Queen [1998] HCA 74 ; (1998) 194 CLR 656
Outcome: referred to
have been a number of observations by the courts on the fact that a plea of guilty is ordinarily a matter to be taken into account in mitigation, because it is usually some evidence of remorse, and in particular, the community is spared the expense of a contested trial: see, eg, Siganto v the Queen [1998] HCA 74 ; (1998) 194 CLR 656 at 663-4, Cameron v The Queen [2002] HCA 6 ; (2002) 209 CLR 339 at [22] .
Case: Vu v New South Wales Police Service [2007] FCA 1508 ; (2007) 73 IPR 531
Outcome: referred to
the written submissions for Interville, reference was made to three decisions which are of assistance in determining the appeal. The first is a decision of Rares J in Vu v New South Wales Police Service [2007] FCA 1508 ; (2007) 73 IPR 531. At [57] , his Honour there observed that it is impossible to have regard to each of the matters referred to in section 16A(2) separately. Rather, the Court has to approach the determination of a sentence by taking into account all of the matters that are relevant. His Honour also said that in general, the sentencing court will reach a conclusion that a particular penalty is the one that should be imposed after weighing all of the relevant factors.
Case: Australian Postal Corporation v Mowbray &amp; Anor [2003] FCA 1258 ; (2003) 77 ALD 440
Outcome: cited
applicant contended that this approach was contrary to the evidence and contrary to the principles in Lees , which have not been disturbed by the decision in Telstra Corporation Ltd v Hannaford [2006] FCAFC 87 ; (2006) 151 FCR 253 and which have been followed in Australian Postal Corporation v Mowbray &amp; Anor [2003] FCA 1258 ; (2003) 77 ALD 440, Oudyn and Duong v Australian Postal Corporation (2005) 41 AAR 288.
Case: Australian Postal Corporation v Oudyn (2003) 73 ALD 659
Outcome: cited
first question is said to be sourced in the ground that the Tribunal should have found, on the proper application of s 25 of the AAT Act and ss 61 and 62 of the SRC Act, that its jurisdiction was limited to reviewing a decision made pursuant to ss 16 and 20 of the SRC Act in respect of the cessation, as at 1 December 2004, of compensation payments for an accepted injury of the applicant of 'adjustment disorder with features of anxiety and depression and chronic soft tissue injury': Lees v Comcare (1999) 56 ALD 84 and Australian Postal Corporation v Oudyn (2003) 73 ALD 659. In short, it should have found that it did not have jurisdiction at large to hear and determine whether an injury, other than the accepted injury, was compensable under s 14 of the SRC Act. Where the Tribunal has no jurisdiction under s 25 of the AAT Act to make or review a determination under s 14 of the SRC Act, the parties cannot consent to the Tribunal being vested with such jurisdiction: R v Moodie; Ex parte Mithen (1977) 17 ALR 219 and Rosillo v Telstra Corporation Ltd (2003) 77 ALD 396 . The applicant contended that this approach was contrary to the evidence and contrary to the principles in Lees , which have not been disturbed by the decision in Telstra Corporation Ltd v Hannaford [2006] FCAFC 87 ; (2006) 151 FCR 253 and which have been followed in Australian Postal Corporation v Mowbray &amp; Anor [2003] FCA 1258 ; (2003) 77 ALD 440, Oudyn and Duong v Australian Postal Corporation (2005) 41 AAR 288. The closest one comes to a finding of the kind raised in question 3 is in [25] of the Tribunal's reasons, however, read carefully, what is said there is a long way short of a finding that the applicant's claim for which Comcare accepted liability gave rise to a liability for compensation under s 14 of the SRC Act. Indeed, the Tribunal made no finding, in express terms, that liability for the adjustment disorder had been accepted specifically under the SRC Act. There is, but only arguably, an implication of such a finding in the Tribunal's reference to Oudyn in the context that the finding that the applicant's claim for his current psychological condition is not compensable under s 14 and does not override any continuing liability for the accepted condition of adjustment disorder, but that is as far as it goes. It is not, in my view, sufficient to sustain an error of law on the part of the Tribunal of the kind raised in question 3.
Case: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287
Outcome: approved
I have already indicated, I also agree with his submission that the essence of the applicant's appeal on this ground is based on the use of the word 'progressed' in [25] of the Tribunal's reasons. However, he further submits that particular words in a decision-maker's reasons should not be read in isolation. If ambiguity is present, the words should be interpreted 'beneficially' to the decision-maker: Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272, approving Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287.