mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZFXG v Minister for Immigration and Citizenship [2007] FCA 116
Outcome: considered
The Minister concedes that a mere general affirmation of the correctness of information in a statutory declaration used for the purpose of a protection visa application is insufficient to satisfy the exception provided by s 424A(3)(b) of the Act. However, the Minister relies upon the appellant's acknowledgement that he had typed the statutory declaration, answered questions and was able to provide his understanding of a statutory declaration. The Minister submits that it was thereby adopted by him: see VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851 ; [2006] 154 FCR 302 at [49] - [50] . For these reasons the Minister submits that the appellant provided the information in his statutory declaration to the Tribunal and that the exemption provided by s 424A(3)(b) applies to such information: see SZFXG v Minister for Immigration and Citizenship [2007] FCA 116 and SZEPI v Minister for Immigration and Multicultural Affairs [2006] FCA 1645. 17 In SZFXG the Full Court considered whether s 424A(3)(b) of the Act applied in respect of a historical fact, namely the date of the appellant's arrival in Australia, and held that the exception did apply to such technical details. The decision of the Full Court in NBKT adds a further refinement to the principles established by the authorities considered in SZFXG . The Court in NBKT rejected the narrow approach to s 424A and clarifies the circumstances in which the exception provided by s 424A(3)(b) may operate.
Case: SZHIB v Minister for Immigration and Multicultural Affairs [2006] FCA 611
Outcome: cited
There is no evidence that the Tribunal provided any notification to the appellant, in advance of the hearing date, that the statutory declaration would be relied upon. Further, the Tribunal was not invited by the appellant by a written communication before or at the hearing to consider the information in his declaration which would have activated the exemption: see M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 , SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 and SZHIB v Minister for Immigration and Multicultural Affairs [2006] FCA 611 , nor did the appellant bring the statutory declaration to the hearing. These facts suggest that the statutory declaration was not regarded by the appellant as being significant in his application before the Tribunal.
Case: VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851 ; [2006] 154 FCR 302
Outcome: cited
The Minister concedes that a mere general affirmation of the correctness of information in a statutory declaration used for the purpose of a protection visa application is insufficient to satisfy the exception provided by s 424A(3)(b) of the Act. However, the Minister relies upon the appellant's acknowledgement that he had typed the statutory declaration, answered questions and was able to provide his understanding of a statutory declaration. The Minister submits that it was thereby adopted by him: see VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851 ; [2006] 154 FCR 302 at [49] - [50] . For these reasons the Minister submits that the appellant provided the information in his statutory declaration to the Tribunal and that the exemption provided by s 424A(3)(b) applies to such information: see SZFXG v Minister for Immigration and Citizenship [2007] FCA 116 and SZEPI v Minister for Immigration and Multicultural Affairs [2006] FCA 1645.
Case: Dart Industries Inc v The D&eacute;cor Corporation Pty Ltd [1993] HCA 54 ; (1993) 179 CLR 101
Outcome: distinguished
While Leplastrier was the subject of some criticism by the majority of the High Court in Dart Industries Inc v The D&eacute;cor Corporation Pty Ltd [1993] HCA 54 ; (1993) 179 CLR 101 at 115, that was on a quite different point, namely the allowance of a proportion of overhead expenses. As has already been indicated, that is not an issue in the present case. A claim for a proportion of overhead expenses has been made by GMCA and accepted by Black &amp; Decker.
Case: Leplastrier &amp; Co Ltd v Armstrong-Holland Ltd (1926) 26 SR (NSW) 585
Outcome: applied
The point was specifically dealt with by Harvey CJ in Equity in Leplastrier &amp; Co Ltd v Armstrong-Holland Ltd (1926) 26 SR (NSW) 585 at 591-2. The case concerned infringement of a patent for concrete mixing machines. His Honour said: Every sale of a machine gives the plaintiff a separate right to recover profits made on the sale of that machine, and the plaintiff has a right to require that he shall have details of the sale and cost of every individual machine. That is the enquiry that is directed. If the defendant has made a profit on some machines and a loss on others he cannot and this seems too clear for argument claim to be allowed the losses he has suffered on the sale of machines. What he has to account for is the profits on any machines on which he happens to have made a profit. In Leplastrier the losses the infringer sought to set off were made on sales of non-infringing products (see at 592). However, for the reasons already stated, the present case seems stronger against allowing any set off. 15 While Leplastrier was the subject of some criticism by the majority of the High Court in Dart Industries Inc v The D&eacute;cor Corporation Pty Ltd [1993] HCA 54 ; (1993) 179 CLR 101 at 115, that was on a quite different point, namely the allowance of a proportion of overhead expenses. As has already been indicated, that is not an issue in the present case. A claim for a proportion of overhead expenses has been made by GMCA and accepted by Black &amp; Decker.
Case: Busch v Stevens [1963] 1 QB 1
Outcome: discussed
When the action was transferred to the Federal Magistrates Court the statement of claim (which had already been twice amended) did not plead a contravention of s 51AB. That claim was introduced by the leave of the Federal Magistrate. The Federal Magistrate granted that leave in general terms, but he had before him the form of the proposed amendments. Thus he acted in conformity with the old practice which was that a party who seeks to raise "a fresh issue or a fresh cause of action [was required] to formulate and state in writing the exact amendment that he asks": Hyams v Stuart King [1908] 2 KB 696, 724 per Farwell LJ; see also Practice Direction, June 1947, [1947] WN 185; Derrick v Williams (1939) 55 TLR 676; J Leavey &amp; Co Ltd v G H Hirst &amp; Co Ltd [1944] KB 24. In Busch v Stevens [1963] 1 QB 1 Lawton J (as he then was) said that it was wrong in law to make an order giving a plaintiff leave to amend his statement of claim without specifying what the amendments were. It might be going too far to say that this is the position under modern rules of court, but even if such an order be within power it should only be made in simple cases.
Case: Carruthers, Re; Ex parte Goodwin (1969) 70 SR (NSW) 175
Outcome: applied
However that may be, the University says that the prosecutrix is not entitled to any relief. The first point is that prohibition is not available because the order the subject of prohibition is exhausted and if prohibition is not available nor is certiorari, which is merely an ancillary remedy. Let it be assumed that it is not possible to obtain certiorari other than as an ancillary relief: as authority for this approach see Madden v Madden (1996) 65 FCR 354. The problem for the University is that the underlying premise that the Federal Magistrates Court order is exhausted is false. This is so for several reasons. First, although the action has been dismissed with costs and the costs have been taxed (it is the fact of taxation which is the basis for the contention that the order is exhausted) the costs have not been paid and unless prohibition issues, action can be taken to enforce the order: Ex parte Goodwin; Re Carruthers (1969) 70 SR (NSW) 175; cf Ex parte Browne; Re McNamara (1967) 68 SR (NSW) 188 which may have been incorrectly decided but is in any case distinguishable. Second, and more importantly, the order operates to bar the prosecutrix' claims. They have merged in the judgment. According to the High Court in R v Hibble; Ex parte Broken Hill Pty Co Ltd [1920] HCA 83 ; (1920) 28 CLR 456, 463, the test for the issue of prohibition is not whether the inferior court is functus officio or whether its order can no longer be enforced. The true question is whether the order made without jurisdiction "remains in force so as to impose liabilities on an individual". The order of the Federal Magistrates Court plainly does that. In any event, as Knox CJ and Gavan Duffy J said in their joint judgment in R v Hibble (at 463): "If ... the issue of the writ be regarded as intended to keep an inferior court within the limits of its jurisdiction, it should never be too late to get rid of what might be regarded in the future as a precedent for the exercise of a jurisdiction which is not really justified by the law." See also Roberts v Humby (1837) 3 M&amp;W 120, 127; Farquharson v Morgan [1894] 1 QB 552, 556, 559, 560.
Case: Colac Otway Workforce Pty Ltd v Dwyer [2005] VSCA 230
Outcome: considered
The transfer order was a mistake. When a plaintiff claims a sum by way of damages which is greater than the sum which a court of inferior jurisdiction is entitled to award, the case should not be transferred to the inferior court unless, perhaps, it is quite clear that the amount claimed will not be recovered. Indeed, where an action is commenced in an inferior court and it appears to that court that the damages which a plaintiff seeks exceed the limit which the inferior court is able to award, it is the duty of that court to transfer the case to a court of competent jurisdiction. Here it is true that the prosecutrix had not stated definitely that her claim exceeded $200,000. It was, I suppose, possible that she may have limited her claim to one that could be entertained by the Federal Magistrates Court. But that possibility was so remote that the action should not have been transferred. Nothing said in Colac Otway Workforce Pty Ltd v Dwyer [2005] VSCA 230 is inconsistent with this view.
Case: Derrick v Williams (1939) 55 TLR 676
Outcome: cited
When the action was transferred to the Federal Magistrates Court the statement of claim (which had already been twice amended) did not plead a contravention of s 51AB. That claim was introduced by the leave of the Federal Magistrate. The Federal Magistrate granted that leave in general terms, but he had before him the form of the proposed amendments. Thus he acted in conformity with the old practice which was that a party who seeks to raise "a fresh issue or a fresh cause of action [was required] to formulate and state in writing the exact amendment that he asks": Hyams v Stuart King [1908] 2 KB 696, 724 per Farwell LJ; see also Practice Direction, June 1947, [1947] WN 185; Derrick v Williams (1939) 55 TLR 676; J Leavey &amp; Co Ltd v G H Hirst &amp; Co Ltd [1944] KB 24. In Busch v Stevens [1963] 1 QB 1 Lawton J (as he then was) said that it was wrong in law to make an order giving a plaintiff leave to amend his statement of claim without specifying what the amendments were. It might be going too far to say that this is the position under modern rules of court, but even if such an order be within power it should only be made in simple cases.
Case: Farquharson v Morgan [1894] 1 QB 552
Outcome: cited
At one time it was accepted that where there had been an apparent excess of jurisdiction by an inferior court a writ of prohibition would issue as of right. Even the acquiescence of the prosecutrix in the exercise of the inferior court's jurisdiction could not preclude her from applying for the writ: see eg Farquharson v Morgan [1894] 1 QB 552. Now it is clear that the issue of any of the constitutional writs is discretionary and, in an appropriate case, relief may be refused even if the grounds for the issue of the writ be made out: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82; Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16 ; (2002) 209 CLR 372. Nevertheless, I am bound to say that it would require a strong case before a supervising court would permit an inferior court to proceed with matters in respect of which it apparently has no jurisdiction. 15 However that may be, the University says that the prosecutrix is not entitled to any relief. The first point is that prohibition is not available because the order the subject of prohibition is exhausted and if prohibition is not available nor is certiorari, which is merely an ancillary remedy. Let it be assumed that it is not possible to obtain certiorari other than as an ancillary relief: as authority for this approach see Madden v Madden (1996) 65 FCR 354. The problem for the University is that the underlying premise that the Federal Magistrates Court order is exhausted is false. This is so for several reasons. First, although the action has been dismissed with costs and the costs have been taxed (it is the fact of taxation which is the basis for the contention that the order is exhausted) the costs have not been paid and unless prohibition issues, action can be taken to enforce the order: Ex parte Goodwin; Re Carruthers (1969) 70 SR (NSW) 175; cf Ex parte Browne; Re McNamara (1967) 68 SR (NSW) 188 which may have been incorrectly decided but is in any case distinguishable. Second, and more importantly, the order operates to bar the prosecutrix' claims. They have merged in the judgment. According to the High Court in R v Hibble; Ex parte Broken Hill Pty Co Ltd [1920] HCA 83 ; (1920) 28 CLR 456, 463, the test for the issue of prohibition is not whether the inferior court is functus officio or whether its order can no longer be enforced. The true question is whether the order made without jurisdiction "remains in force so as to impose liabilities on an individual". The order of the Federal Magistrates Court plainly does that. In any event, as Knox CJ and Gavan Duffy J said in their joint judgment in R v Hibble (at 463): "If ... the issue of the writ be regarded as intended to keep an inferior court within the limits of its jurisdiction, it should never be too late to get rid of what might be regarded in the future as a precedent for the exercise of a jurisdiction which is not really justified by the law." See also Roberts v Humby (1837) 3 M&amp;W 120, 127; Farquharson v Morgan [1894] 1 QB 552, 556, 559, 560.
Case: Hyams v Stuart King [1908] 2 KB 696
Outcome: cited
When the action was transferred to the Federal Magistrates Court the statement of claim (which had already been twice amended) did not plead a contravention of s 51AB. That claim was introduced by the leave of the Federal Magistrate. The Federal Magistrate granted that leave in general terms, but he had before him the form of the proposed amendments. Thus he acted in conformity with the old practice which was that a party who seeks to raise "a fresh issue or a fresh cause of action [was required] to formulate and state in writing the exact amendment that he asks": Hyams v Stuart King [1908] 2 KB 696, 724 per Farwell LJ; see also Practice Direction, June 1947, [1947] WN 185; Derrick v Williams (1939) 55 TLR 676; J Leavey &amp; Co Ltd v G H Hirst &amp; Co Ltd [1944] KB 24. In Busch v Stevens [1963] 1 QB 1 Lawton J (as he then was) said that it was wrong in law to make an order giving a plaintiff leave to amend his statement of claim without specifying what the amendments were. It might be going too far to say that this is the position under modern rules of court, but even if such an order be within power it should only be made in simple cases.
Case: J Leavey &amp; Co Ltd v G H Hirst &amp; Co Ltd [1944] KB 24
Outcome: cited
When the action was transferred to the Federal Magistrates Court the statement of claim (which had already been twice amended) did not plead a contravention of s 51AB. That claim was introduced by the leave of the Federal Magistrate. The Federal Magistrate granted that leave in general terms, but he had before him the form of the proposed amendments. Thus he acted in conformity with the old practice which was that a party who seeks to raise "a fresh issue or a fresh cause of action [was required] to formulate and state in writing the exact amendment that he asks": Hyams v Stuart King [1908] 2 KB 696, 724 per Farwell LJ; see also Practice Direction, June 1947, [1947] WN 185; Derrick v Williams (1939) 55 TLR 676; J Leavey &amp; Co Ltd v G H Hirst &amp; Co Ltd [1944] KB 24. In Busch v Stevens [1963] 1 QB 1 Lawton J (as he then was) said that it was wrong in law to make an order giving a plaintiff leave to amend his statement of claim without specifying what the amendments were. It might be going too far to say that this is the position under modern rules of court, but even if such an order be within power it should only be made in simple cases.
Case: Madden v Madden (1996) 65 FCR 354
Outcome: applied
However that may be, the University says that the prosecutrix is not entitled to any relief. The first point is that prohibition is not available because the order the subject of prohibition is exhausted and if prohibition is not available nor is certiorari, which is merely an ancillary remedy. Let it be assumed that it is not possible to obtain certiorari other than as an ancillary relief: as authority for this approach see Madden v Madden (1996) 65 FCR 354. The problem for the University is that the underlying premise that the Federal Magistrates Court order is exhausted is false. This is so for several reasons. First, although the action has been dismissed with costs and the costs have been taxed (it is the fact of taxation which is the basis for the contention that the order is exhausted) the costs have not been paid and unless prohibition issues, action can be taken to enforce the order: Ex parte Goodwin; Re Carruthers (1969) 70 SR (NSW) 175; cf Ex parte Browne; Re McNamara (1967) 68 SR (NSW) 188 which may have been incorrectly decided but is in any case distinguishable. Second, and more importantly, the order operates to bar the prosecutrix' claims. They have merged in the judgment. According to the High Court in R v Hibble; Ex parte Broken Hill Pty Co Ltd [1920] HCA 83 ; (1920) 28 CLR 456, 463, the test for the issue of prohibition is not whether the inferior court is functus officio or whether its order can no longer be enforced. The true question is whether the order made without jurisdiction "remains in force so as to impose liabilities on an individual". The order of the Federal Magistrates Court plainly does that. In any event, as Knox CJ and Gavan Duffy J said in their joint judgment in R v Hibble (at 463): "If ... the issue of the writ be regarded as intended to keep an inferior court within the limits of its jurisdiction, it should never be too late to get rid of what might be regarded in the future as a precedent for the exercise of a jurisdiction which is not really justified by the law." See also Roberts v Humby (1837) 3 M&amp;W 120, 127; Farquharson v Morgan [1894] 1 QB 552, 556, 559, 560.
Case: McNamara, Re; Ex parte Browne (1967) 68 SR (NSW) 188
Outcome: distinguished
However that may be, the University says that the prosecutrix is not entitled to any relief. The first point is that prohibition is not available because the order the subject of prohibition is exhausted and if prohibition is not available nor is certiorari, which is merely an ancillary remedy. Let it be assumed that it is not possible to obtain certiorari other than as an ancillary relief: as authority for this approach see Madden v Madden (1996) 65 FCR 354. The problem for the University is that the underlying premise that the Federal Magistrates Court order is exhausted is false. This is so for several reasons. First, although the action has been dismissed with costs and the costs have been taxed (it is the fact of taxation which is the basis for the contention that the order is exhausted) the costs have not been paid and unless prohibition issues, action can be taken to enforce the order: Ex parte Goodwin; Re Carruthers (1969) 70 SR (NSW) 175; cf Ex parte Browne; Re McNamara (1967) 68 SR (NSW) 188 which may have been incorrectly decided but is in any case distinguishable. Second, and more importantly, the order operates to bar the prosecutrix' claims. They have merged in the judgment. According to the High Court in R v Hibble; Ex parte Broken Hill Pty Co Ltd [1920] HCA 83 ; (1920) 28 CLR 456, 463, the test for the issue of prohibition is not whether the inferior court is functus officio or whether its order can no longer be enforced. The true question is whether the order made without jurisdiction "remains in force so as to impose liabilities on an individual". The order of the Federal Magistrates Court plainly does that. In any event, as Knox CJ and Gavan Duffy J said in their joint judgment in R v Hibble (at 463): "If ... the issue of the writ be regarded as intended to keep an inferior court within the limits of its jurisdiction, it should never be too late to get rid of what might be regarded in the future as a precedent for the exercise of a jurisdiction which is not really justified by the law." See also Roberts v Humby (1837) 3 M&amp;W 120, 127; Farquharson v Morgan [1894] 1 QB 552, 556, 559, 560.
Case: Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7 ; (1981) 148 CLR 457
Outcome: applied
I will now explain why the Federal Magistrates Court had no jurisdiction to entertain the claim under s 51AB. By Ch III of the Constitution federal Parliament is given power to create federal courts and to invest them with federal jurisdiction, including jurisdiction which is exclusive of the jurisdiction of other federal courts: Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7 ; (1981) 148 CLR 457. The jurisdiction which may be conferred on a federal court is in respect of federal subject matters, that is matters of the kind mentioned in ss 75 and 76 of the Constitution . The jurisdiction of a federal court is not, however, confined to matters which are expressly conferred on the court. It will include what is sometimes referred to as "accrued jurisdiction" and, in the case of both the Federal Court and the Federal Magistrates Court, it also includes "associated jurisdiction": Federal Court of Australia Act 1976 (Cth), s 32 ; Federal Magistrates Court Act 1999 (Cth), s 18. As to the distinction between "accrued jurisdiction" and "associated jurisdiction" see Stack v Coast Securities (No 9) Pty Ltd [1983] HCA 36 ; (1983) 154 CLR 261. (See also WMC Gummow, "Pendent Jurisdiction in Australia Section 32 of the Federal Court of Australia Act 1976" (1979) 10 Federal Law Review 211; L Zines, "Federal, Associated and Accrued Jurisdiction" in B Opeskin and F Wheeler (eds) The Australian Federal Judicial System , Melbourne University Press, 2000, p 265).