mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407
Outcome: cited
In relation to ground 2, I am satisfied that the Tribunal afforded the appellant a reasonable opportunity to respond to adverse material in keeping with its obligations to accord natural justice. It is for the Tribunal, within recognised limits, to make findings as to credit: Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at [67] . The weight to be given to particular evidence is a matter for the Tribunal. It was open to the Tribunal to reach the conclusions that it did given its observations regarding the demeanour of the appellant, and the inconsistency between the various accounts that he had provided. 22 Ground 3 is devoid of any meaningful content. Nothing further need be said about it. 23 The appeal should be dismissed with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg. Associate: Dated: 13 November 2007 The Appellant appeared in person Counsel for the Respondent: Ms E M James Solicitors for the Respondent: Clayton Utz Date of Hearing: 13 November 2007 Date of Judgment: 13 November 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1741.html
Case: Amalgamated Television Services Pty Ltd v Marsden [2001] NSWCA 32 ; (2001) 122 A Crim R 166
Outcome: followed
That pursuant to Federal Magistrates Court Rule 19.02(1) the Respondent be found guilty of contempt of this Court for failing to comply with the order for discovery made by this Court on 1 July 2004 in that it did not discover the full chain of email correspondence dated 4 December 2001 variously between the Applicant and Ms Leesa Baker and then Ms Baker and Ms Hall and Ms Lindsay.' FACTS 3 Because of the manner in which the Federal Magistrate decided the case, he did not need to set out a chronology of events. It is best to do so in order to deal with the issues on appeal. The following statement of facts is substantially drawn from the submissions for the appellant. I am satisfied the facts are properly based in the evidence. It needs to be borne in mind that it was only the appellant's evidence which was relevant. The appellant was entitled to have that evidence considered at its highest ( May v O'Sullivan [1955] HCA 38 ; (1955) 92 CLR 654; Amalgamated Television Services Pty Ltd v Marsden [2001] NSWCA 32 ; (2001) 122 A Crim R 166 per Ipp AJA at 172 176). I shall discuss some of the evidence in more detail when considering the individual charges. 4 The appellant commenced full-time employment with the respondent as an accountant on 15 December 1997. In December 1998 the appellant was promoted to financial controller and received substantial pay increases during 1999 and 2000. In May 2000 the appellant married. In November 2000 the appellant became pregnant and in August 2001 gave birth to her son. In November 2001, during her maternity leave, the appellant met with Mr Stephen Byron, the respondent's Managing Director, and indicated that she would like to return to work in February 2002 on a part-time basis. Whilst Mr Byron said he would consider her request, the appellant was uneasy about the way in which he treated her; she generally considered that he had been evasive and was unlikely to accede to her request.
Case: Australasian Meat Industry Employees' Union and Others v Mudginberri Station Pty Limited [1986] HCA 46 ; (1986) 161 CLR 98 
Outcome: cited
The other two charges are different in nature as they involve alleged breaches of orders ( cf Australasian Meat Industry Employees' Union and Others v Mudginberri Station Proprietary Limited [1986] HCA 46 ; (1986) 161 CLR 98). 27 The subpoena in question was issued on 12 February 2004 directing the respondent to produce the documents on 26 February 2004 in the form described in paragraph [ 11 ] of these reasons. The full email chain containing six separate emails dated 4 December 2001 was not produced, although two of those six emails were produced. 28 The Federal Magistrate found that there was no prima facie case for the respondent to answer as the subpoena called for material from the server, not from the back-up tapes. He said that there was no evidence that the email chain in question was on the respondent's server at the relevant time. He was not prepared to infer that the full email chain was still on the server in February 2004.
Case: Haw Tua Tau v Public Prosecutor [1982] AC 136
Outcome: applied
This is a circumstantial case. The Federal Magistrate was required to take into account all inferences most favourable to the appellant, which could reasonably be drawn from the primary facts (see the decision of the Privy Council in Haw Tua Tau v Public Prosecutor [1982] AC 136 at 150). In my opinion, it would not be possible, on the primary facts, to exclude the hypothesis that any destruction of the emails that took place was the result of actions by persons with no knowledge of the proceedings or potential proceedings or was a result of a procedure which did not take account of those proceedings. It is quite possible that a system could have existed which provided for the destruction of emails at fixed times during the year, at a particular length of time after an employee has left or as directed by some person in the administration or technology areas to suit the convenience of administration. In other words, any destruction may have been the result of a routine procedure. There is no inference available from the primary facts that would exclude that hypothesis unless there is speculation as to the circumstances of the alleged destruction. 24 Counsel for the appellant referred to the evidence of Mr Ferraro that it was not usual commercial practice to delete a former employee's email mailbox if that employee had played an important role in the organisation. Even if that evidence were admissible, it would not say anything about the commercial practices of this respondent and would not assist in denying the hypotheses to which I have referred.
Case: Krakowski v Eurolynx Properties Ltd [1994] HCA 22 ; (1995) 183 CLR 563
Outcome: cited
This analysis is a symptom of what appears to me to be an underlying problem, namely, that the party charged with interfering with the course of justice is a corporation with a number of employees carrying out a number of functions. The principles according to which a corporation can be guilty of contempt of court by interfering with the course of justice were not a topic raised below and only surfaced during the course of argument on this appeal. Even if a corporation can be guilty of such a charge, it is not legitimate to aggregate the knowledge of individuals and attribute the aggregated knowledge to the corporation ( R v AC Hatrick Chemicals Pty Ltd (1995) 152 A Crim R 384 at 394; cf, in a different context, Krakowski v Eurolynx Properties Ltd [1994] HCA 22 ; (1995) 183 CLR 563 at 582 583). In the present case, it is not possible to know who deleted the emails (that is if they were deleted) or on whose instructions the emails were deleted. That being the case, it is not possible to attribute to those persons the knowledge held by others within the organisation as to the actual or potential litigation. The relevant knowledge as to the litigation would have to be held by the representative of the corporation who was also responsible for the deletion. Further, that person would need to be the directing mind of the corporation for guilt of such a charge--in effect, a common law offence requiring mens rea--being attributed to the company ( Tesco Supermarkets Ltd v Nattrass [1971] UKHL 1 ; [1972] AC 153). The evidence in this case simply does not permit any such finding to be made.
Case: May v O'Sullivan [1955] HCA 38 ; (1955) 92 CLR 654
Outcome: followed
That pursuant to Federal Magistrates Court Rule 19.02(1) the Respondent be found guilty of contempt of this Court for failing to comply with the order for discovery made by this Court on 1 July 2004 in that it did not discover the full chain of email correspondence dated 4 December 2001 variously between the Applicant and Ms Leesa Baker and then Ms Baker and Ms Hall and Ms Lindsay.' FACTS 3 Because of the manner in which the Federal Magistrate decided the case, he did not need to set out a chronology of events. It is best to do so in order to deal with the issues on appeal. The following statement of facts is substantially drawn from the submissions for the appellant. I am satisfied the facts are properly based in the evidence. It needs to be borne in mind that it was only the appellant's evidence which was relevant. The appellant was entitled to have that evidence considered at its highest ( May v O'Sullivan [1955] HCA 38 ; (1955) 92 CLR 654; Amalgamated Television Services Pty Ltd v Marsden [2001] NSWCA 32 ; (2001) 122 A Crim R 166 per Ipp AJA at 172 176). I shall discuss some of the evidence in more detail when considering the individual charges. 4 The appellant commenced full-time employment with the respondent as an accountant on 15 December 1997. In December 1998 the appellant was promoted to financial controller and received substantial pay increases during 1999 and 2000. In May 2000 the appellant married. In November 2000 the appellant became pregnant and in August 2001 gave birth to her son. In November 2001, during her maternity leave, the appellant met with Mr Stephen Byron, the respondent's Managing Director, and indicated that she would like to return to work in February 2002 on a part-time basis. Whilst Mr Byron said he would consider her request, the appellant was uneasy about the way in which he treated her; she generally considered that he had been evasive and was unlikely to accede to her request.
Case: R v AC Hatrick Chemicals Pty Ltd (2005) 152 A Crim R 384
Outcome: applied
This analysis is a symptom of what appears to me to be an underlying problem, namely, that the party charged with interfering with the course of justice is a corporation with a number of employees carrying out a number of functions. The principles according to which a corporation can be guilty of contempt of court by interfering with the course of justice were not a topic raised below and only surfaced during the course of argument on this appeal. Even if a corporation can be guilty of such a charge, it is not legitimate to aggregate the knowledge of individuals and attribute the aggregated knowledge to the corporation ( R v AC Hatrick Chemicals Pty Ltd (1995) 152 A Crim R 384 at 394; cf, in a different context, Krakowski v Eurolynx Properties Ltd [1994] HCA 22 ; (1995) 183 CLR 563 at 582 583). In the present case, it is not possible to know who deleted the emails (that is if they were deleted) or on whose instructions the emails were deleted. That being the case, it is not possible to attribute to those persons the knowledge held by others within the organisation as to the actual or potential litigation. The relevant knowledge as to the litigation would have to be held by the representative of the corporation who was also responsible for the deletion. Further, that person would need to be the directing mind of the corporation for guilt of such a charge--in effect, a common law offence requiring mens rea--being attributed to the company ( Tesco Supermarkets Ltd v Nattrass [1971] UKHL 1 ; [1972] AC 153). The evidence in this case simply does not permit any such finding to be made.
Case: Tesco Supermarkets Ltd v Nattrass [1971] UKHL 1 ; [1972] AC 153
Outcome: applied
This analysis is a symptom of what appears to me to be an underlying problem, namely, that the party charged with interfering with the course of justice is a corporation with a number of employees carrying out a number of functions. The principles according to which a corporation can be guilty of contempt of court by interfering with the course of justice were not a topic raised below and only surfaced during the course of argument on this appeal. Even if a corporation can be guilty of such a charge, it is not legitimate to aggregate the knowledge of individuals and attribute the aggregated knowledge to the corporation ( R v AC Hatrick Chemicals Pty Ltd (1995) 152 A Crim R 384 at 394; cf, in a different context, Krakowski v Eurolynx Properties Ltd [1994] HCA 22 ; (1995) 183 CLR 563 at 582 583). In the present case, it is not possible to know who deleted the emails (that is if they were deleted) or on whose instructions the emails were deleted. That being the case, it is not possible to attribute to those persons the knowledge held by others within the organisation as to the actual or potential litigation. The relevant knowledge as to the litigation would have to be held by the representative of the corporation who was also responsible for the deletion. Further, that person would need to be the directing mind of the corporation for guilt of such a charge--in effect, a common law offence requiring mens rea--being attributed to the company ( Tesco Supermarkets Ltd v Nattrass [1971] UKHL 1 ; [1972] AC 153). The evidence in this case simply does not permit any such finding to be made.
Case: Abebe v Commonwealth of Australia [1999] HCA 14 ; (1999) 197 CLR 510
Outcome: cited
As to the second ground the appellant has not identified any information that the Tribunal was obliged to provide to him under s 424A(1) of the Act. As his Honour concluded (at [32]), the appellant's own evidence, on which the Tribunal's decision was based, falls within the exception in s 424A(3)(b). The Tribunal was not obliged to put to the appellant the Tribunal's own reasoning or inconsistencies that it found in the appellant's evidence. The Tribunal's subjective appraisals of the evidence do not amount to information for the purposes of s 424A ( SZBYR at [18]). Further, the Tribunal is not obliged to make the appellant's case for him ( Abebe v Commonwealth of Australia [1999] HCA 14 ; (1999) 197 CLR 510 at 576 per Gummow and Hayne JJ).
Case: SZBYR v Minister for Immigration &amp; Citizenship (2007) 235 ALR 609
Outcome: cited
In relation to the second ground, his Honour concluded that the Tribunal's decision was based entirely on evidence obtained from the appellant and thus fell within s 424A(3)(b) of the Act. The Tribunal's own doubts by reason of its reasoning process or inconsistencies in relation to the appellant's evidence were not, his Honour said, information for the purposes of s 424A (at [30]-[31] citing SZBYR v Minister for Immigration &amp; Citizenship (2007) 235 ALR 609 at [18]). 8 In his notice of appeal the appellant raises the following grounds: 1. The appellant believes the Tribunal rejected his claims on no reasonable grounds. The appellant claims that he has a fear of returning to China due to the facts that he renounced his membership of Chinese Communist Party in Australia and has became [sic] a political dissident. In the decision the Tribunal repeatedly said it does not accept his claims, but it never gives a sound reason. It breached the s 420 of the Migration Act , which requires the Tribunal to be fair and just when conducting a review. 2. The [Tribunal] decision was affected by jurisdictional error in that the Tribunal failed to invite the applicant to comment on adverse information. The Tribunal breached s 424A of the Migration Act . The Tribunal found the oral evidence the applicant gave was vague and evasive. The Tribunal never said this to the applicant during the hearing, and the applicant did no [t] think his evidence was vague and evasive. The appellant claims that the Tribunal should ask him to provide more details [sic] evidence. The Tribunal should have said to him that his evidence was vague and evasive, and then he would have given more evidence to the Tribunal. 9 The appellant, who appears in person assisted by an interpreter, made no submissions in elaboration of those grounds, either in writing or orally at the hearing. 11 As to the second ground the appellant has not identified any information that the Tribunal was obliged to provide to him under s 424A(1) of the Act. As his Honour concluded (at [32]), the appellant's own evidence, on which the Tribunal's decision was based, falls within the exception in s 424A(3)(b). The Tribunal was not obliged to put to the appellant the Tribunal's own reasoning or inconsistencies that it found in the appellant's evidence. The Tribunal's subjective appraisals of the evidence do not amount to information for the purposes of s 424A ( SZBYR at [18]). Further, the Tribunal is not obliged to make the appellant's case for him ( Abebe v Commonwealth of Australia [1999] HCA 14 ; (1999) 197 CLR 510 at 576 per Gummow and Hayne JJ).
Case: SZKII v Minister for Immigration &amp; Anor [2007] FMCA 1591
Outcome: considered
The appellants are husband and wife and are citizens of China. Their claim is based upon the husband's claim to fear persecution for reason of his political opinion. I shall refer to the appellants compendiously as 'the appellant'. The appellant's application for a Protection (Class XA) visa was refused by a delegate of the Minister. On an application for review the delegate's decision was affirmed by the Tribunal. An application for judicial review of the Tribunal's decision was dismissed by Scarlett FM ( SZKII v Minister for Immigration &amp; Anor [2007] FMCA 1591). 2 Before the Tribunal the appellant confirmed that he had come to Australia to visit his sister in-law and not for a refugee related reason. He claimed that his political opinions had changed since he came to Australia and that, because of that change and actions that he took in Australia, he feared persecution upon return to China. 3 The Tribunal, in its reasons, set out the appellant's claims. During the course of the hearing the Tribunal alerted the appellant to its concerns about the veracity of his claims and also noted that the Tribunal had serious doubts about what the appellant had said at the hearing concerning his political opinions and activities in Australia. The Tribunal found the appellant to be ' a witness of low credibility '. It found that much of his evidence at the hearing was ' vague and evasive '. It found the appellant's account at the hearing of how he changed his political opinion and the end result of that to be ' entirely unconvincing '.
Case: Re Double V Marketing Pty Ltd (in admin) [1995] FCA 1151 ; (1995) 16 ACSR 498
Outcome: referred to
The order which is sought in the present case is in similar terms to an order made by Barrett J in Re Porter and Another as joint administrators of Priceright Construction Pty Limited (2006) 57 ACSR 206 at [7]. His Honour observed at [8] that it is now well recognized that the Court has the power to extend the convening period in a way that s 439A of the Act does not itself allow. See also the decision of Lindgren J in Re Double V Marketing Pty Ltd (in admin) [1995] FCA 1151 ; (1995) 16 ACSR 498.
Case: Re Porter and Another as joint administrators of Priceright Construction Pty Limited (2006) 57 ACSR 206
Outcome: applied
The order which is sought in the present case is in similar terms to an order made by Barrett J in Re Porter and Another as joint administrators of Priceright Construction Pty Limited (2006) 57 ACSR 206 at [7]. His Honour observed at [8] that it is now well recognized that the Court has the power to extend the convening period in a way that s 439A of the Act does not itself allow. See also the decision of Lindgren J in Re Double V Marketing Pty Ltd (in admin) [1995] FCA 1151 ; (1995) 16 ACSR 498. 18 In all the circumstances it seems to me that the orders that are sought ought to be made for the reasons set out in Mr Vouris's affidavit. The orders are in accordance with the terms which Barrett J described in Re Porter at [10] and [12] as appropriate orders to be made in an application of this type. 19 Accordingly I will make orders 1, 2 and 3 as set out in the originating process. I will order that the orders be entered forthwith. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 7 May 2008 Counsel for the Applicants: Mr E C Muston Solicitor for the Applicants: Pigott Stinson Lawyers Date of Hearing: 30 April 2008 Date of Judgment: 30 April 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/622.html
Case: Re Taylor (1995) 16 ACSR 774
Outcome: referred to
The period of the permitted adjournment is within the approach which Brownie J took in Re Taylor (1995) 16 ACSR 774. The effect of what his Honour said was that a further extension which would more than double the period permitted by the Act ought not to be made. The present order would not do so.
Case: Application of Advance Life Insurance Limited (Unreported, FCA, Sheppard J, 18 February 1997)
Outcome: considered
The manner in which this Court exercises the discretion conferred by s 17F(1) is informed and assisted by the views expressed by the Australian Prudential Regulation Authority. This Court has long recognised the role played by the Authority and the reliance placed by the Court upon its review of the proposed scheme and its assessment as to whether or not it should oppose an order seeking confirmation. Albeit in the comparable context of a transfer under Part 9 of the Life Insurance Act 1995 (Cth) , in Colonial Portfolio Services Ltd v Australian Prudential Regulation Authority [1999] FCA 1779 , Mathews J observed: [28] It is relevant to note that APRA, which operates as something of a watchdog in relation to transfers under Pt 9 of the Act, had no objection to the confirmation of the scheme. Nor did APRA arrange for an actuarial report on the scheme, as it is entitled to do under s 192 of the Act. It can be inferred that APRA regarded the reports furnished by the applicants as adequate. ... Like comments have also been made in other cases: Re Royal &amp; Sun Alliance Life Assurance Ltd [2000] FCA 1259 at [23] , [2000] FCA 1259 ; 104 FCR 37 at 40 per Katz J. See also: Application of Zurich Insurance Company and Converium Limited [2003] FCA 1519 at [4] per Hely J; Application of Advance Life Insurance Limited (Unreported, FCA, Sheppard J, 18 February 1997).
Case: Application of Zurich Insurance Company and Converium Limited [2003] FCA 1519
Outcome: considered
The manner in which this Court exercises the discretion conferred by s 17F(1) is informed and assisted by the views expressed by the Australian Prudential Regulation Authority. This Court has long recognised the role played by the Authority and the reliance placed by the Court upon its review of the proposed scheme and its assessment as to whether or not it should oppose an order seeking confirmation. Albeit in the comparable context of a transfer under Part 9 of the Life Insurance Act 1995 (Cth) , in Colonial Portfolio Services Ltd v Australian Prudential Regulation Authority [1999] FCA 1779 , Mathews J observed: [28] It is relevant to note that APRA, which operates as something of a watchdog in relation to transfers under Pt 9 of the Act, had no objection to the confirmation of the scheme. Nor did APRA arrange for an actuarial report on the scheme, as it is entitled to do under s 192 of the Act. It can be inferred that APRA regarded the reports furnished by the applicants as adequate. ... Like comments have also been made in other cases: Re Royal &amp; Sun Alliance Life Assurance Ltd [2000] FCA 1259 at [23] , [2000] FCA 1259 ; 104 FCR 37 at 40 per Katz J. See also: Application of Zurich Insurance Company and Converium Limited [2003] FCA 1519 at [4] per Hely J; Application of Advance Life Insurance Limited (Unreported, FCA, Sheppard J, 18 February 1997).