mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Merpro Montassa Ltd v Conoco Speciality Productions Inc [1991] FCA 70 ; (1991) 28 FCR 387
Outcome: cited
when considering whether an Applicant has made out a " prima facie case ", the kind of evidence adduced need only be " in proportion to the nature of such an interlocutory issue ": WSGAL Pty Ltd v Trade Practices Commission [1992] FCA 510 ; (1992) 39 FCR 472 at 476 per Beaumont J. As the requirement is imposed at the outset of proceedings, it does not require the kind of scrutiny that would occur (for example) in a submission of " no case to answer " following the closure of an applicant's case at trial: Merpro Montassa Ltd v Conoco Speciality Productions Inc [1991] FCA 70 ; (1991) 28 FCR 387 (" Merpro ") at 390. It may be appropriate to draw inferences more readily in favour of an applicant, bearing in mind that the applicant will not have had the advantage of discovery, subpoena and other procedural aids to the making out of a " prima facie case ": Western Australia v Vetter Trittler Pty Ltd (In liq) (Receiver and Manager Appointed) (1991) 30 FCR 102 (" Vetter Trittler ") at 110 per French J, citing Merpro . This " threshold requirement " of a " prima facie case ... is met where material is placed before the Court from which inferences are open which, if translated into findings of fact, would support the relief claimed ": Australian Competition and Consumer Commission v European City Guide SL [2009] FCA 1206 at [4] per Moore J, applying Vetter Trittler. But " [a]ctual evidence rather than mere allegations are required ": Applecross Pte Ltd v Lim [2009] FCA 1102 at [6] per McKerracher J.
Case: Sides Engineering Pty Ltd v Energetech Australia Pty Ltd [2005] FCA 1672
Outcome: cited
in respect to such allegations, it is considered, include such matters as: (i) the imprecision in allegations expressed in such broad terms as " [d]uring the 1980s and 1990s " &#8212; especially in circumstances where some of the " Particulars " provided do not give further content as to when such conduct is said to have occurred, but some of those " Particulars " (it must be recognised) do provide greater certainty; (ii) the fact that some of the matters set forth in Schedule B do not seem relevant to any representation being made as to any " future matter "; (iii) the lack of any precision in the manner in which it is said the First Respondent " [r]esolved to hold itself free to conduct itself on a basis inconsistent with " understandings said to have been reached and uncertainty as to whether such allegations seek to place reliance upon s 51A or perhaps s 52 ; (iv) the fact that the " Particulars " of the representation said to be set forth in Schedule D are more appropriate to be expressed as statements of " material facts " rather than as " Particulars "; and (v) the fact that the " Particulars " provided in Schedules E and F are more appropriate to be expressed as statements of " material facts " rather than as " Particulars " &#8212; but, more relevantly, to the extent that the representations there set forth are said to be " implied " &#8212; the absence of any basis upon which any such implication is said to arise. The existing pleading, it is considered, remains fundamentally deficient &#8212; even when recognition is given to the fact that it has been drafted in advance of (for example) discovery. If the Amended Statement of Claim remains in its present form, it would be open to one or other of the Respondents to (for example) deny or not admit a material fact. The purpose to be served by the provision of " Particulars ", it is to be recalled, is fundamentally different to the requirement to plead " material facts ": H 1976 Nominees Pty Ltd v Galli [1979] FCA 74 ; (1979) 30 ALR 181 at 186 to 187; Sides Engineering Pty Ltd v Energetech Australia Pty Ltd [2005] FCA 1672 at [6] to [7]. There is no requirement that a Respondent plead to a matter set forth in " Particulars ". To endorse at the outset a course whereby the issues are not clearly joined as between the protagonists is not a course which should be encouraged.
Case: Trade Practices Commission v The Gillette Company (No 1) [1993] FCA 496 ; (1993) 45 FCR 366
Outcome: cited
should also be noted that if a " prima facie case " for relief has been made out in respect to one cause of action, it is immaterial that a " prima facie case " for relief has not been made out in respect to another cause of action: Cell Tech Communications Pty Ltd v Nokia Mobile Phones (UK) Ltd (1995) 58 FCR 365 at 373 per Lindgren J. See also: Trade Practices Commission v The Gillette Company (No 1) [1993] FCA 496 ; (1993) 45 FCR 366 at 371 per Burchett J. This was, of course, the issue that divided the Full Court in Bray v F Hoffman-La Roche Ltd [2003] FCAFC 153, 130 FCR 317.
Case: West v TWG Services Ltd [2009] FCA 1052
Outcome: cited
compliance with O 8 r 3(2) the Court retains a discretion as to whether leave should be granted to serve a respondent outside Australia. So much follows from the use of the term " may ". It has thus been observed that "... the power given by O 8 r 3(2) is clearly a discretionary power ": West v TWG Services Ltd [2009] FCA 1052 at [10] . His Honour Justice Gray was there satisfied that the requirements of O 8 r 3(2) had been satisfied but nevertheless concluded as follows: [61] This being the case, my view is that I should refuse the leave sought to serve the amended application and the amended statement of claim on the respondent in England. To serve those documents in their present form would be to visit upon the respondent a proceeding in Australia involving a significant number of claims, with only a small number of those claims justifying the grant of leave for such service. Although technically the proceeding as a whole might fall within O 8 r 2 of the Federal Court Rules , because of the presence of the small number of claims, this is not enough to persuade me to exercise the discretion to permit service out of the jurisdiction in respect of the whole proceeding. To do so would be to allow the tail to wag the dog. See also: Best Australia Ltd v Aquagas Marketing Pty Ltd (1988) 83 ALR 217 at 222 to 223. The ambit of those considerations relevant to the exercise of the discretion may, however, be open to some debate and differences of opinion: e.g. Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116 , 154 FCR 425.
Case: Western Australia v Vetter Trittler Pty Ltd (In liq) (Receiver and Manager Appointed) (1991) 30 FCR 102
Outcome: referred to
when considering whether an Applicant has made out a " prima facie case ", the kind of evidence adduced need only be " in proportion to the nature of such an interlocutory issue ": WSGAL Pty Ltd v Trade Practices Commission [1992] FCA 510 ; (1992) 39 FCR 472 at 476 per Beaumont J. As the requirement is imposed at the outset of proceedings, it does not require the kind of scrutiny that would occur (for example) in a submission of " no case to answer " following the closure of an applicant's case at trial: Merpro Montassa Ltd v Conoco Speciality Productions Inc [1991] FCA 70 ; (1991) 28 FCR 387 (" Merpro ") at 390. It may be appropriate to draw inferences more readily in favour of an applicant, bearing in mind that the applicant will not have had the advantage of discovery, subpoena and other procedural aids to the making out of a " prima facie case ": Western Australia v Vetter Trittler Pty Ltd (In liq) (Receiver and Manager Appointed) (1991) 30 FCR 102 (" Vetter Trittler ") at 110 per French J, citing Merpro . This " threshold requirement " of a " prima facie case ... is met where material is placed before the Court from which inferences are open which, if translated into findings of fact, would support the relief claimed ": Australian Competition and Consumer Commission v European City Guide SL [2009] FCA 1206 at [4] per Moore J, applying Vetter Trittler. But " [a]ctual evidence rather than mere allegations are required ": Applecross Pte Ltd v Lim [2009] FCA 1102 at [6] per McKerracher J.
Case: WSGAL Pty Ltd v Trade Practices Commission [1992] FCA 510 ; (1992) 39 FCR 472
Outcome: applied
when considering whether an Applicant has made out a " prima facie case ", the kind of evidence adduced need only be " in proportion to the nature of such an interlocutory issue ": WSGAL Pty Ltd v Trade Practices Commission [1992] FCA 510 ; (1992) 39 FCR 472 at 476 per Beaumont J. As the requirement is imposed at the outset of proceedings, it does not require the kind of scrutiny that would occur (for example) in a submission of " no case to answer " following the closure of an applicant's case at trial: Merpro Montassa Ltd v Conoco Speciality Productions Inc [1991] FCA 70 ; (1991) 28 FCR 387 (" Merpro ") at 390. It may be appropriate to draw inferences more readily in favour of an applicant, bearing in mind that the applicant will not have had the advantage of discovery, subpoena and other procedural aids to the making out of a " prima facie case ": Western Australia v Vetter Trittler Pty Ltd (In liq) (Receiver and Manager Appointed) (1991) 30 FCR 102 (" Vetter Trittler ") at 110 per French J, citing Merpro . This " threshold requirement " of a " prima facie case ... is met where material is placed before the Court from which inferences are open which, if translated into findings of fact, would support the relief claimed ": Australian Competition and Consumer Commission v European City Guide SL [2009] FCA 1206 at [4] per Moore J, applying Vetter Trittler. But " [a]ctual evidence rather than mere allegations are required ": Applecross Pte Ltd v Lim [2009] FCA 1102 at [6] per McKerracher J.
Case: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476
Outcome: cited
When these grounds are considered, it is apparent that pro bono counsel for Mr Boyes framed them as if this were an application for judicial review, doubtless because he was aware that an appeal under s 44 of the AAT Act was incompetent: see ss 474 and 483 of the Act . On judicial review, the Court cannot set aside the decision of the Tribunal except for jurisdictional error: see Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476 at 506-508 and 511 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; and Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 at [4] - [12] per Besanko J.
Case: Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80
Outcome: cited
When these grounds are considered, it is apparent that pro bono counsel for Mr Boyes framed them as if this were an application for judicial review, doubtless because he was aware that an appeal under s 44 of the AAT Act was incompetent: see ss 474 and 483 of the Act . On judicial review, the Court cannot set aside the decision of the Tribunal except for jurisdictional error: see Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476 at 506-508 and 511 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; and Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 at [4] - [12] per Besanko J.
Case: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: referred to
On this occasion, I shall not summarise the parties' submissions. These submissions will appear sufficiently in the following discussion. It suffices to say that essentially Mr Boyes' case was that the Tribunal had no regard to relevant considerations, relied on irrelevant considerations, and asked itself the wrong question. Referring to Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at 351, and Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340 ; (2004) 141 FCR 346 per Black CJ at 360, counsel for Mr Boyes submitted that the Tribunal's decision was vitiated by jurisdictional error and that the applicant was entitled to relief. In the alternative, counsel contended that there had been a failure on the Tribunal's part to comply with s 499(2A) of the Act . Referring to Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 376-377 and 388-390 per McHugh, Gummow, Kirby and Hayne JJ, counsel argued that failure to do what is compelled to be done by s 499(2A) invalidates anything done or purporting to be done under Direction 21.
Case: Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340 ; (2004) 141 FCR 346
Outcome: referred to
On this occasion, I shall not summarise the parties' submissions. These submissions will appear sufficiently in the following discussion. It suffices to say that essentially Mr Boyes' case was that the Tribunal had no regard to relevant considerations, relied on irrelevant considerations, and asked itself the wrong question. Referring to Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at 351, and Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340 ; (2004) 141 FCR 346 per Black CJ at 360, counsel for Mr Boyes submitted that the Tribunal's decision was vitiated by jurisdictional error and that the applicant was entitled to relief. In the alternative, counsel contended that there had been a failure on the Tribunal's part to comply with s 499(2A) of the Act . Referring to Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 376-377 and 388-390 per McHugh, Gummow, Kirby and Hayne JJ, counsel argued that failure to do what is compelled to be done by s 499(2A) invalidates anything done or purporting to be done under Direction 21.
Case: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355
Outcome: cited
On this occasion, I shall not summarise the parties' submissions. These submissions will appear sufficiently in the following discussion. It suffices to say that essentially Mr Boyes' case was that the Tribunal had no regard to relevant considerations, relied on irrelevant considerations, and asked itself the wrong question. Referring to Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at 351, and Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340 ; (2004) 141 FCR 346 per Black CJ at 360, counsel for Mr Boyes submitted that the Tribunal's decision was vitiated by jurisdictional error and that the applicant was entitled to relief. In the alternative, counsel contended that there had been a failure on the Tribunal's part to comply with s 499(2A) of the Act . Referring to Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 376-377 and 388-390 per McHugh, Gummow, Kirby and Hayne JJ, counsel argued that failure to do what is compelled to be done by s 499(2A) invalidates anything done or purporting to be done under Direction 21.
Case: Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Outcome: referred to
In SRT , a Full Court held that it was not open to the Tribunal, in such a case as this, to impugn either the sentence or the essential facts found by the sentencing judge in sentencing: see SRT at 244 per Branson, Lindgren and Emmett JJ; also Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 at 358 per Fisher and Lockhart JJ. It was to be borne in mind, however, that the Tribunal considered matters at a time different from the sentencing judge and that the Tribunal may be required to give consideration to the fact that some relevant circumstances had changed between the sentencing and the Tribunal's consideration of the matter. Moreover, so the Court said in SRT at 243, "accepting the findings of the sentencing judge does not prevent the Tribunal from distinguishing between those findings in terms of weight".
Case: Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292
Outcome: referred to
A significant part of the case that Mr Boyes put to the Tribunal turned on his assertion that he wanted to re-establish his relationship with the mother of his son. It was in this context that the absence of evidence from the mother concerned the Tribunal and led it to adjourn the hearing in order that she might make a statement. When no statement from her was forthcoming, the Tribunal did not have an obligation to make further inquiries concerning the child. There was nothing to create such an obligation: compare Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292 at 314 per Tamberlin, Sackville and Stone JJ; and Taylor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 208 at [19] per Marshall, Mansfield and Siopis JJ. Instead it was bound to decide the case on the evidence and other material before it. Upon this basis, it made the specific findings that the child's best interests would be achieved if he remained in Australia with his mother and that his interests would not necessarily be affected if Mr Boyes' visa were cancelled. The applicant has not made out jurisdictional error under ground (i).
Case: Taylor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 208
Outcome: referred to
A significant part of the case that Mr Boyes put to the Tribunal turned on his assertion that he wanted to re-establish his relationship with the mother of his son. It was in this context that the absence of evidence from the mother concerned the Tribunal and led it to adjourn the hearing in order that she might make a statement. When no statement from her was forthcoming, the Tribunal did not have an obligation to make further inquiries concerning the child. There was nothing to create such an obligation: compare Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292 at 314 per Tamberlin, Sackville and Stone JJ; and Taylor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 208 at [19] per Marshall, Mansfield and Siopis JJ. Instead it was bound to decide the case on the evidence and other material before it. Upon this basis, it made the specific findings that the child's best interests would be achieved if he remained in Australia with his mother and that his interests would not necessarily be affected if Mr Boyes' visa were cancelled. The applicant has not made out jurisdictional error under ground (i).
Case: Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 ; (2001) 107 FCR 133
Outcome: distinguished
This case is distinguishable from Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 ; (2001) 107 FCR 133, which was relied on by the applicant. In Mr Boyes' case, in contrast to Wan , the Tribunal clearly stated what the best interests of the child indicated that it should decide. The Tribunal in Wan limited its consideration to how the children's interests would be affected by a decision to refuse to grant their father a visa. That is not this case. Further, in Wan , in contrast to this case, the Tribunal did not treat the best interests of the children as a primary consideration. 56 Ground (i) discloses no error. 57 Counsel for Mr Boyes did not address the other grounds stated in the initiating documents and it is unnecessary to refer to them here. None of them disclosed a tenable ground upon which a finding of jurisdictional error might be made. Nor could they disclose contravention of s 499(2A).
Case: Kelly v The Queen [2004] HCA 12 ; (2004) 218 CLR 216
Outcome: cited
In Kelly v The Queen [2004] HCA 12 ; (2004) 218 CLR 216 , 253, McHugh J said that "[n]othing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment." Indeed, it is now well established that there is no need for ambiguity in the statutory text before resort is had to purpose, context, and the legislative history: White v Designated Manager of IP Australia (No. 2) [2008] FCA 816 at [18] - [20] .
Case: White v Designated Manager of IP Australia (No. 2) [2008] FCA 816
Outcome: followed
In Kelly v The Queen [2004] HCA 12 ; (2004) 218 CLR 216 , 253, McHugh J said that "[n]othing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment." Indeed, it is now well established that there is no need for ambiguity in the statutory text before resort is had to purpose, context, and the legislative history: White v Designated Manager of IP Australia (No. 2) [2008] FCA 816 at [18] - [20] . 26 The Commissioner's response to this argument was to acknowledge the differing result in each case but note that the legislature had to draw a line somewhere and the line might as well be based on location, which creates a bright-line rule that is easy to administer. In effect, the parties entered into the age-old debate of flexible standards versus bright-line rules. I recently dealt with this debate in White v Designated Manager of IP Australia (No. 2) [2008] FCA 816 at [44] . I do not propose to repeat the discussion in White as to the virtues and vices of each. Instead, I note two points particularly relevant to the choice in this case. 27 First, the imposition of bright-line rules is particularly apt and commonplace in the realm of taxation. Just as it would impose a crushing administrative burden to vet every 17 to 19 year old to see if they were mature enough to vote, the Commissioner would not be able to function effectively if faced with requests for rebates and credits that required application of fuzzy standards. 28 Secondly, the result in this case is not so anomalous or absurd as to require or invite judicial redrafting of the legislation: White at [18]. In fact, the legislature was well aware of the anomalies created by the imposition of such a rule but accepted them nevertheless. In the March 2003 Senate Economics Legislation Committee's report on the provisions of the Energy Grants (Credits) Scheme Bill 2003 (Cth), a submission made by Brambles Industrial Services was addressed. Brambles raised the same point now made by Asciano (at (3.27]) that "the Bill would introduced [sic] an anomalous situation [that] 'an activity is eligible or ineligible for an off-road credit based on the location of the equipment performing the function as well as the actual function itself'." The Committee's response (at [3.29]) was that "in any legislation under which eligibility to entitlement depends upon classification, there will inevitably be definitional issues at the borderline." In effect, the Committee's view was that a line must be drawn somewhere and it might as well be the location of the equipment, which creates a simple and easily administrable rule.
Case: A &amp; L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466
Outcome: related
On 16 April last, declarations and orders were made in this proceeding following delivery of reasons for judgment on 11 April 2008 ( A &amp; L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466). Those reasons dealt with relief in relation to liability found earlier ( A &amp; L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2007] FCA 1047 ; (2007) 165 IR 94). The question of costs was reserved. The orders were varied by consent on 29 May 2008. Written submissions have been received as to costs. These reasons deal with that issue and assume familiarity with the previous judgments and orders.