mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: WAIJ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (2004) 80 ALD 568
Outcome: considered
was conceded on behalf of the Minister that jurisdictional error could be constituted by the Tribunal's overlooking of a relevant consideration but that to make this out it had to be demonstrated that a whole aspect of a visa applicant's case had been overlooked, not just a particular document. Examples of this were said to be found in WAIJ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (2004) 80 ALD 568 ( WAIJ ) and NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 ( NAJT ). I do not accept that the basis for this type of jurisdictional error is as confined as the Minister has propounded or that regard to the cases cited bears this out. Rather, each of these cases offers but another example of a procedural fairness error on the part of the Tribunal in failing truly to engage with the claim as presented by the visa applicant. That this is so is, in my opinion, starkly evident in the following passage from the joint judgment of Lee and Moore JJ in WAIJ (at 580, [53] [54]): [53] It is a denial of a fair process to purport to dismiss documents from consideration where the material therein supports an applicant's case in substantive respects and no ground for such a course is provided by the documents on their face or by other facts. [54] It follows that the tribunal did not accord to the appellant practical fairness and justice in the tribunal's conduct of the review. Accordingly, the decision of the tribunal involved jurisdictional error and was not a decision authorised by the Act: see Dranichnikov v Minister for Immigration and Multicultural Affairs ... at [24], [32] per Gummow and Callinan JJ. Here, the Tribunal has discounted the letter of 6 March 2007 on the basis of credibility findings concerning the male Appellant but these findings, in turn, are tainted by responses to questions put to the male Appellant at the hearing and subsequent reasoning, which questions and reasoning were each grounded in a false premise concerning that letter. Significantly, in WAIJ, Lee and Moore JJ each conceived that the procedural fairness they described gave rise to the same type of jurisdictional error as that found by the High Court in Dranichnikov . In contrast to WAIJ , Dranichnikov is not expressly mentioned in the reasons of the majority (Madgwick J, Conti J agreeing) in NAJT . However, that part of those reasons in NAJT which upholds the allegation that there had been a jurisdictional error constituted by a failure on the part of the Tribunal to "have regard" to a corroborative letter (147 FCR at 92-93, [212] [213]) is consistent with the error found in Dranichnikov and with the classification by the learned authors of Judicial Review of Administrative Action of that error as a type of procedural fairness error. Further, the letter concerned in that case had not been completely ignored but rather the subject of "fleeting, uncritical references".
Case: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51
Outcome: considered
was conceded on behalf of the Minister that jurisdictional error could be constituted by the Tribunal's overlooking of a relevant consideration but that to make this out it had to be demonstrated that a whole aspect of a visa applicant's case had been overlooked, not just a particular document. Examples of this were said to be found in WAIJ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (2004) 80 ALD 568 ( WAIJ ) and NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 ( NAJT ). In contrast to WAIJ , Dranichnikov is not expressly mentioned in the reasons of the majority (Madgwick J, Conti J agreeing) in NAJT . However, that part of those reasons in NAJT which upholds the allegation that there had been a jurisdictional error constituted by a failure on the part of the Tribunal to "have regard" to a corroborative letter (147 FCR at 92-93, [212] [213]) is consistent with the error found in Dranichnikov and with the classification by the learned authors of Judicial Review of Administrative Action of that error as a type of procedural fairness error. Further, the letter concerned in that case had not been completely ignored but rather the subject of "fleeting, uncritical references".
Case: Jess v Scott (1986) 12 FCR 187
Outcome: applied
In Jess v Scott (1986) 12 FCR 187 at 195 a Full Court discussed the meaning of "special reasons" in O 52 r 15(2) and said that it is: "...an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served." 7 In this matter Ms Zegarac has not, in her affidavit accompanying her notice of motion, advanced any persuasive reason why she did not seek to appeal from the judgment of Phipps FM by the time allowed under the rules of Court, or before 28 November 2006. Indeed no reasonable explanation for the delay has been advanced. There was no reason for her to wait for authentication of the order of Phipps FM before appealing. In any event, she had 11 days after her receipt of the orders to apply to appeal or apply to extend the time in which to seek leave to appeal. The delay is not slight but almost a year in circumstances where she has taken other legal steps in the legal dispute between her and Mr Dellios.
Case: Minister for Immigration and Citizenship v Le [2007] FCA 1318 ; (2007) 164 FCR 151
Outcome: applied
It is well-established that the Tribunal has no general obligation to initiate enquiries or to make out an applicant's case for him or her: Minister for Immigration and Citizenship v Le [2007] FCA 1318 ; (2007) 164 FCR 151 at [60] per Kenny J. Her Honour observed that there is authority for the proposition that in certain "rare or exceptional circumstances", a failure by the Tribunal to enquire may render the decision manifestly unreasonable in the Wednesbury sense. 26 The seminal authority for the principle that a failure to enquire may, in exceptional circumstances, invalidate a decision is Prasad v Minister for Immigration &amp; Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155. Kenny J referred to this in Le at [64].
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60 ; (2003) 201 ALR 437
Outcome: referred to
However, it seems to me that a failure to "test" the later evidence by questioning the witness cannot be equated with a failure to gather factual material of the kind contemplated by the principle stated in Prasad . This is borne out by the observations of Gummow and Heydon JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 3"> [2003] HCA 60 ; 201 ALR 437 at [57] . 32 Their Honours pointed out in Applicant S154/2002 that the rule in Browne v Dunn has no application to proceedings in an administrative tribunal; the tribunal member conducting an enquiry is not an adversarial cross-examiner, but an inquisitor who is obliged to be fair. In my view it follows that, ordinarily, there can be no duty to use the Tribunal's powers to test one side's assertions as against the other's. 33 This was especially so in the present case where the circumstances relating to the actual marriage ceremony, including the short time the parties had known each other, raised doubts about its genuineness. Moreover, the Tribunal found that Mrs Burton was not a credible witness. 34 There was evidence before the Tribunal that Mr Vikash Burton sponsored his wife's application for a spouse visa and that his wife ultimately became an Australian citizen on 20 March 2007. There was also evidence that Mr Vikash Burton and his wife have a daughter, born in Australia in March 2003. It also appears that they have another child who is also an Australian citizen, although the name and birth date do not appear in the material. 35 The grant of citizenship to Vikash's wife has the result that, at the time of the decision by the Tribunal, her visa was no longer liable to cancellation under s 140(2) of the Act. 36 Accordingly, there was no error in the approach taken by the Tribunal, namely that the appellant's son would be free to lodge a spouse visa application to return to Australia.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12
Outcome: referred to
On the other hand there is also authority for the view that the provisions of the Act on which the appellant relied, in particular the power under s 363(3)(a) , to summon persons to give evidence, do not impose any duty on the Tribunal to exercise that power: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at [43] (with respect to s 426 of the Act).
Case: Prasad v Minister for Immigration &amp; Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155
Outcome: referred to
The seminal authority for the principle that a failure to enquire may, in exceptional circumstances, invalidate a decision is Prasad v Minister for Immigration &amp; Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155. Kenny J referred to this in Le at [64]. 27 The effect of what Wilcox J said in Prasad at 169-170 is that there may be Wednesbury unreasonableness where it is obvious that there is material that is readily available to the decision-maker that is likely to be of critical importance in relation to a central issue for determination. 28 In my view, this principle does not extend to the present case because all that occurred was that competing versions of the facts were advanced by different parties. 29 It is true that the prior inconsistent statements of the "repudiators" included sworn statutory declarations which were retracted, without any apparent explanation, in unsworn statements and that they were not "tested" in the witness box. 30 Indeed, Mr Burton's statements were apparently not even signed (though the Tribunal's reasons provide conflicting information on this point) and consisted only of two handwritten undated statements received by the Tribunal in May 2003 and July 2003. 31 However, it seems to me that a failure to "test" the later evidence by questioning the witness cannot be equated with a failure to gather factual material of the kind contemplated by the principle stated in Prasad . This is borne out by the observations of Gummow and Heydon JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 3"> [2003] HCA 60 ; 201 ALR 437 at [57] .
Case: Ace Contractors &amp; Staff Pty Ltd v Westgarth Development Pty Ltd [1999] FCA 728
Outcome: considered
I now turn to the basis upon which the Deputy Commissioner says he is entitled to his costs. The argument is that Mr De Simone's affidavit did not prove the solvency of the company and a winding up order would have been made had the Deputy Commissioner decided not to withdraw his application. In this connection I was told of a practice that has developed by which a company wishing to prove its solvency must produce audited accounts that evidence solvency. The practice is said to flow from the cases referred to by Weinberg J in Ace Contractors &amp; Staff Pty Ltd v Westgarth Development Pty Ltd [1999] FCA 728 , a decision that has been cited with approval in Expile Pty Ltd v Jabb's Excavations Pty Ltd (2003) 45 ACSR 711, a decision of the Court of Appeal of New South Wales.
Case: Expile Pty Ltd v Jabb's Excavations Pty Ltd (2003) 45 ACSR 711
Outcome: cited
I now turn to the basis upon which the Deputy Commissioner says he is entitled to his costs. The argument is that Mr De Simone's affidavit did not prove the solvency of the company and a winding up order would have been made had the Deputy Commissioner decided not to withdraw his application. In this connection I was told of a practice that has developed by which a company wishing to prove its solvency must produce audited accounts that evidence solvency. The practice is said to flow from the cases referred to by Weinberg J in Ace Contractors &amp; Staff Pty Ltd v Westgarth Development Pty Ltd [1999] FCA 728 , a decision that has been cited with approval in Expile Pty Ltd v Jabb's Excavations Pty Ltd (2003) 45 ACSR 711, a decision of the Court of Appeal of New South Wales.
Case: Commonwealth Bank of Australia v Begonia (1983) 11 ACSR 609
Outcome: cited
The explanation to be given to the cases to which Weinberg J referred is this. There are many shaky companies in the marketplace. Applications are made to wind up some of them. Applications are also made to wind up solvent companies. In each case a representative can come along attempting to prove solvency to avoid a winding up. Judges will look with care at the evidence especially if the judge suspects the company is or may be in a weak financial position. Dependant upon the degree of doubt justified by the facts, a judge may say that the only evidence he will treat as probative is "the fullest and best" evidence available - the kind that in Commonwealth Bank of Australia v Begonia (1983) 11 ACSR 609 Hayne J said was often necessary although interesting enough, not in that case. In some instances this may be the company's audited accounts together with verified proof of both the ownership and value of the company's assets. On the other hand there will be many instances where proof of that sort is not required. In such cases there is no good reason to put the company to the time, trouble and expense of producing audited accounts. In the end it will all depend upon each particular fact of a case. 15 Returning to Mr De Simone's affidavit, if the evidence were unchallenged it does make out a prima facie case of solvency. What Mr De Simone said was not the "fullest and best" evidence of the company's financial position. Nor did he produce the audited accounts of the company. But he did explain in some detail the nature of the assets and liabilities of the company. He listed the current assets and liabilities, and provided details of the non-current assets and liabilities. It is apparent that much of the information came from the company's records, although the records were not produced. The thrust of Mr De Simone's evidence was that, after allowing for the debt due to the Deputy Commissioner, the company had surplus assets exceeding $1.4 million, a good proportion of which comprised debts that were due and payable and short-term loans that were either due and payable or payable at short notice. 16 Mr Agardy said that Mr De Simone's evidence would have been subjected to careful scrutiny if the case had gone to trial. No doubt this is true. That only demonstrates that it is impossible to predict what the outcome of the case would have been.
Case: Kowalski v Mitsubishi Motors Australia Ltd (1998) 88 FCR 55
Outcome: cited
This matter has a long history. The applicant, Kazimir Kowalski, has been in dispute with Mitsubishi Motors Australia Ltd ("MMAL") from when his employment with that company ceased on 16 March 1994. It is unnecessary for present purposes to outline the very many proceedings he has brought against MMAL and, on occasion, related entities including the present respondent, Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd ("MMA Super") in various Courts and Tribunals in South Australia including in two instances actions in the Federal Court both of which were summarily dismissed: see Kowalski v Mitsubishi Motors Australia Ltd (1998) 88 FCR 55 and Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd [2002] FCA 1153 ; affd [2003] FCAFC 18. A history of those proceedings (more than forty in number) is contained in the judgment of Bleby J in Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154. In that particular matter he was declared to be a vexatious litigant and has been prohibited from instituting further proceedings against MMAL or a related entity in State courts in South Australia without the leave of the Supreme Court.
Case: Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd [2002] FCA 1153
Outcome: considered
This matter has a long history. The applicant, Kazimir Kowalski, has been in dispute with Mitsubishi Motors Australia Ltd ("MMAL") from when his employment with that company ceased on 16 March 1994. It is unnecessary for present purposes to outline the very many proceedings he has brought against MMAL and, on occasion, related entities including the present respondent, Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd ("MMA Super") in various Courts and Tribunals in South Australia including in two instances actions in the Federal Court both of which were summarily dismissed: see Kowalski v Mitsubishi Motors Australia Ltd (1998) 88 FCR 55 and Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd [2002] FCA 1153 ; affd [2003] FCAFC 18. A history of those proceedings (more than forty in number) is contained in the judgment of Bleby J in Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154. In that particular matter he was declared to be a vexatious litigant and has been prohibited from instituting further proceedings against MMAL or a related entity in State courts in South Australia without the leave of the Supreme Court.
Case: Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd [2003] FCAFC 18
Outcome: considered
This matter has a long history. The applicant, Kazimir Kowalski, has been in dispute with Mitsubishi Motors Australia Ltd ("MMAL") from when his employment with that company ceased on 16 March 1994. It is unnecessary for present purposes to outline the very many proceedings he has brought against MMAL and, on occasion, related entities including the present respondent, Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd ("MMA Super") in various Courts and Tribunals in South Australia including in two instances actions in the Federal Court both of which were summarily dismissed: see Kowalski v Mitsubishi Motors Australia Ltd (1998) 88 FCR 55 and Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd [2002] FCA 1153 ; affd [2003] FCAFC 18. A history of those proceedings (more than forty in number) is contained in the judgment of Bleby J in Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154. In that particular matter he was declared to be a vexatious litigant and has been prohibited from instituting further proceedings against MMAL or a related entity in State courts in South Australia without the leave of the Supreme Court.
Case: Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154
Outcome: cited
This matter has a long history. The applicant, Kazimir Kowalski, has been in dispute with Mitsubishi Motors Australia Ltd ("MMAL") from when his employment with that company ceased on 16 March 1994. It is unnecessary for present purposes to outline the very many proceedings he has brought against MMAL and, on occasion, related entities including the present respondent, Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd ("MMA Super") in various Courts and Tribunals in South Australia including in two instances actions in the Federal Court both of which were summarily dismissed: see Kowalski v Mitsubishi Motors Australia Ltd (1998) 88 FCR 55 and Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd [2002] FCA 1153 ; affd [2003] FCAFC 18. A history of those proceedings (more than forty in number) is contained in the judgment of Bleby J in Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154. In that particular matter he was declared to be a vexatious litigant and has been prohibited from instituting further proceedings against MMAL or a related entity in State courts in South Australia without the leave of the Supreme Court.
Case: Nixon v Philip Morris (Australia) Ltd [1999] FCA 1107 ; (1999) 95 FCR 453
Outcome: cited
I would observe that the relief of punitive damages sought in para (c) above is not tied to any particular cause of action, it apparently being assumed, incorrectly, that all of his claims lead to this end: e.g. for the position under s 82 and s 87 of the TP Act, for example see Nixon v Philip Morris (Australia) Ltd [1999] FCA 1107 ; (1999) 95 FCR 453; for breach of fiduciary duty, see Harris v Digital Pulse Pty Ltd [2003] NSWCA 10 ; (2003) 56 NSWLR 298.
Case: Harris v Digital Pulse Pty Ltd [2003] NSWCA 10 ; (2003) 56 NSWLR 298 
Outcome: cited
I would observe that the relief of punitive damages sought in para (c) above is not tied to any particular cause of action, it apparently being assumed, incorrectly, that all of his claims lead to this end: e.g. for the position under s 82 and s 87 of the TP Act, for example see Nixon v Philip Morris (Australia) Ltd [1999] FCA 1107 ; (1999) 95 FCR 453; for breach of fiduciary duty, see Harris v Digital Pulse Pty Ltd [2003] NSWCA 10 ; (2003) 56 NSWLR 298.
Case: Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212
Outcome: cited
As I have indicated, it is only the claim (seemingly for damages) under the TP Act which gives this matter its federal character and this Court jurisdiction over it. MMA Super's contention, though, is that the TP Act claim here was made colourably, i.e. for the improper purpose of fabricating jurisdiction: on colourable claims see Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219; and see generally Allsop, "Federal Jurisdiction and the Jurisdiction of the Federal Court of Australia in 2002" (2002) 23 Aust Bar Rev 29 at 41 ff. In aid of this contention MMA Super seeks comfort in the brief observation made by the Court in Kowalski FC (at [22]) to the effect that in that case no claim within jurisdiction could be made against MMA Super "as, for example, under the Trade Practices Act ". 30 The question so raised is not whether a s 52 claim is doomed to failure (I leave out of consideration the question raised by MMA Super as to whether the s 52 could be applicable in any event to a superannuation trustee given s 51AF of the TP Act and the provisions of Pt 2 Div 2 of the Australian Securities and Investments Commission Act 2001 (Cth)). Rather, it is whether the claim was made in good faith. 31 The substance of the present Statement of Claim first saw light of day in the District Court proceedings to which I have referred. Even then and in that forum a claim was made that MMA Super "had breached the Trade Practices Act ". This hardly suggests an invocation of the TP Act to fabricate jurisdiction. I accept he probably initiated proceedings in this Court because of the casual advice he received.