mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Victoria v The Commonwealth (Industrial Relations Act Case) [1996] HCA 56 ; (1996) 187 CLR 416
Outcome: cited
I am of opinion that par 10(e) could be severed because the rest of the final determination would not operate differently without it: Bank of New South Wales v The Commonwealth [1948] HCA 7 ; (1948) 76 CLR 1 at 371 per Dixon J; Victoria v The Commonwealth (Industrial Relations Act Case) [1996] HCA 56 ; (1996) 187 CLR 416 at 502 per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ. The relevance of par 10(e) is that it confirms the incorrect approach which the Commission took as to the significance of a soft dial tone in par 10(a). Severance of par 10(e) would not make the final determination any more meaningful or give it validity.
Case: Visa International Service Association v Reserve Bank of Australia [2003] FCA 977 ; (2003) 131 FCR 300
Outcome: followed
In Visa International Service Association v Reserve Bank of Australia [2003] FCA 977 ; (2003) 131 FCR 300 at 437-439 [659] - [666] , Tamberlin J admitted evidence of this kind in judicial review proceedings so that the Court was in the position to understand the particular meaning of words used in the specialised area concerned. He applied what Street J had earlier held in Ancher, Mortlock, Murray &amp; Woolley Pty Ltd v Hooker Homes Pty Ltd 2 [1971] NSWLR 278 at 286 that an argumentative process between experts enables the Court to proceed more readily and thus appreciate the relevant issue for decision. It can also illuminate the application of a specialised usage of words in the context.
Case: Westfield Management Limited v Perpetual Trustee Company Limited [2007] HCA Trans 367
Outcome: cited
Optus argued that par 10 of the final determination had to be construed in accordance with the principle explained by Dixon J in King Gee Clothing Company Pty Limited v The Commonwealth [1945] HCA 23 ; (1945) 71 CLR 184 at 195 and Cann's Pty Limited v The Commonwealth [1946] HCA 5 ; (1946) 71 CLR 210 at 227-228. Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ in Westfield Management Limited v Perpetual Trustee Company Limited [2007] HCA Trans 367 applied that principle to hold that where it was asserted that one of its terms was uncertain, an instrument or decision made under a statute was not construed as if it were a contract: cp Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd [1968] HCA 8 ; (1968) 118 CLR 429 at 436-437.
Case: Zhang v Canterbury City Council (2001) 51 NSWLR 589
Outcome: cited
A decision-maker must give proper, genuine and realistic consideration to the merits of the case: Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457 ; (1987) 14 ALD 291 at 292 per Gummow J; Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 601 [62] where Spigelman CJ collected the authorities; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 367 [138] per Kirby J; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at 92-93 [212] per Madgwick J, 96 [229] per Conti J; SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 at [39] , [60] where I applied this principle. In Tickner v Chapman (1995) 57 FCR 451 at 462C-D, Black CJ said that where a decision-maker was required to consider material, the process of consideration "... involves an active intellectual process" directed at the nominated subject-matter: see too per Burchett J at 476F-477E, per Kiefel J at 495F-G and Tobacco Institute of Australia v National Health &amp; Medical Research Council (1996) 71 FCR 265 at 277G per Finn J; Australian Retailers Association 148 FCR at 577 [526] per Weinberg J.
Case: Minister for Immigration and Citizenship v SZKTI [2009] HCA 30
Outcome: discussed
see no error on the part of the Federal Magistrate. The High Court's decision in Minister for Immigration and Citizenship v SZKTI These reasons were written prior to the decision of the High Court, handed down this morning, to allow the appeal in SZKTI ( Minister for Immigration and Citizenship v SZKTI [2009] HCA 30). The High Court there accepted (at [28]) the Minister's submissions (at [27] [28]) that s 424(2) does not operate to limit the general facultative power given by s 424(1) in aid of the inquisitorial functions of the Tribunal. The limitation on that general power is that the Tribunal ' must have regard ' to that information in making its decision (at [37]). Procedural fairness is assured by, inter alia , the requirements of s 424A. The High Court concluded (at [48]) that the procedural restrictions on the specific power to issue an invitation to give additional information do not qualify the Tribunal's general power in s 424(1) to ' get any information that it considers relevant '. It follows that the method adopted by the Tribunal to obtain the information did not give rise to jurisdictional error. It follows that the appellant has not demonstrated jurisdictional error on the part of the Tribunal or error in the decision of the Federal Magistrate. He has not made out the grounds of appeal in his notice of appeal.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572
Outcome: cited
appellant contends that this country information received from the High Commission was not valid and was not independent information. This, he says, was because the people who collected the information are controlled by ' the Minister ' or ' the Minister's officials '. There is no evidence to support this assertion and I reject it. I note that the Tribunal was not obliged to comply with s 424A in respect of this report from the High Commission as it was information in the nature of country information that comes within s 424A(3)(a) ( Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572).
Case: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253 ; (1994) 52 FCR 437
Outcome: cited
for the status of the report, as information that the Tribunal was entitled to take into account, I note that s 424(1) provides that the Tribunal may get any information that it considers relevant, so long as it complies with the Act, which includes procedures considered sufficient to afford natural justice with respect to that information. That information does not, as the appellant contends, have to be verified or supported by an international authority. In accordance with s 424(1) , the Tribunal did have regard to the information in making its decision and was entitled to do so. There is no suggestion that the Tribunal was acting at the dictate of the High Commission and, despite the appellant's assertions, no evidence that the Tribunal or the High Commission were acting at the dictate of any person in Bangladesh ( Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253 ; (1994) 52 FCR 437 at 452). No other procedural unfairness is identified by the appellant. Otherwise, this aspect of the appellant's case seems to concern the fact-finding by the Tribunal. Other issues The Tribunal did not accept the situation described by the appellant as to the political situation in Bangladesh. The Tribunal accepted that politics in that country has always been accompanied by violence but found that the violence against political opponents has been largely random and lacked the systematic and purposive elements necessary to be called persecution, especially when involving minor figures such as the appellant.
Case: SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83 ; (2008) 168 FCR 256
Outcome: referred to
424(2) of the Act (as then in force) applies to a situation where the Tribunal invites a person to give additional information. It does not apply to additional information that may have been given by a person to the person invited by the Tribunal to provide information. In my view, s 424(2) and s 424(3) do not apply to an invitation from the Tribunal to an Australian Embassy or High Commission overseas to give additional information to the Tribunal. Although SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51 ; (2009) 255 ALR 407 does not directly deal with this circumstance, such a conclusion is not inconsistent with the reasoning in that case and is consistent with SZMBS v Minister for Immigration and Citizenship (2009) 176 FCR 141. It does not involve the "vice" that was a consideration in SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83 ; (2008) 168 FCR 256 , which concerned an unexpected invitation to a third party.
Case: SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51 ; (2009) 255 ALR 407
Outcome: referred to
424(2) of the Act (as then in force) applies to a situation where the Tribunal invites a person to give additional information. It does not apply to additional information that may have been given by a person to the person invited by the Tribunal to provide information. In my view, s 424(2) and s 424(3) do not apply to an invitation from the Tribunal to an Australian Embassy or High Commission overseas to give additional information to the Tribunal. Although SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51 ; (2009) 255 ALR 407 does not directly deal with this circumstance, such a conclusion is not inconsistent with the reasoning in that case and is consistent with SZMBS v Minister for Immigration and Citizenship (2009) 176 FCR 141. It does not involve the "vice" that was a consideration in SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83 ; (2008) 168 FCR 256 , which concerned an unexpected invitation to a third party.
Case: SZMBS v Minister for Immigration and Citizenship (2009) 176 FCR 141
Outcome: cited
424(2) of the Act (as then in force) applies to a situation where the Tribunal invites a person to give additional information. It does not apply to additional information that may have been given by a person to the person invited by the Tribunal to provide information. In my view, s 424(2) and s 424(3) do not apply to an invitation from the Tribunal to an Australian Embassy or High Commission overseas to give additional information to the Tribunal. Although SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51 ; (2009) 255 ALR 407 does not directly deal with this circumstance, such a conclusion is not inconsistent with the reasoning in that case and is consistent with SZMBS v Minister for Immigration and Citizenship (2009) 176 FCR 141. It does not involve the "vice" that was a consideration in SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83 ; (2008) 168 FCR 256 , which concerned an unexpected invitation to a third party.
Case: VTAO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 927 ; (2004) 81 ALD 332
Outcome: cited
to s 91R of the Act, the Federal Magistrate observed that whether particular conduct amounts to persecution under s 91R is a matter of fact and degree for the Tribunal to determine in its fact-finding role ( VTAO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 927 ; (2004) 81 ALD 332 at [67] ) and found no jurisdictional error. Accordingly, her Honour rejected the second ground in the application for review, that the Tribunal erred in its application of s 91R by failing to consider whether the appellant might suffer persecution as a result of false charges he claimed were filed against him. The grounds of appeal raised by the appellant are: The learned Magistrate erred by not holding that the Tribunal made jurisdictional error as it was not open for the Tribunal to make a finding that "Some of the statement made at hearing regarding the fate of party colleagues have been shown to be incorrect. His errors have been drawn to this attention on the Tribunal's letters but he has not addressed them in his replies" And the conclusion was made from this observation is quietly irrelevant with the observations. The Tribunal did not make comments on the applicant's reply. The learned Magistrate erred by not holding that the Tribunal made jurisdictional error that the Tribunal did not take into account the fear for harm in the future of the applicant for his political opinion. The Tribunal did not put any supporting evidence about its comment on false cases against the applicant because the false cases are investigated improperly and unfairly people are involved to persecute by the Government Agency. The applicant did not know that how the Australian High Commission in Dhaka made an investigation and made a report against the applicant. The investigation was not done properly. In summary, they seem to raise the following bases of appeal: The Minister says that these grounds do not relate to the grounds pleaded before the Federal Magistrate. The Minister submits that leave is required to rely on those grounds and opposes leave being granted, as there is no explanation why those grounds were not raised before the Federal Magistrate and as they are unmeritorious. Consideration of the grounds in the notice of appeal Ground one
Case: BPM Pty Ltd v HPM Pty Ltd (1996) 131 FLR 339
Outcome: cited
CJ noted that there is authority for the proposition that an application for security for costs against a company in liquidation is not a "proceeding" for which leave of the court is required: Pasdale Pty Ltd v Concrete Constructions (1995) 59 FCR 446; and BPM Pty Ltd v HPM Pty Ltd (1996) 131 FLR 339. However, his Honour observed that an application for security for costs can readily be distinguished from the continuation of a proceeding within the meaning of s 471B and therefore, I interpolate, s 500(2) as well. Ipp AJA agreed with Spigelman CJ that BPM was readily distinguishable. In his Honour's view an appeal was a "proceeding" within s 471B whereas an application for security for costs was not. In addition, the application for security for costs in BPM was regarded as a "defensive proceeding" and it was "open to argument" that the appeal in Skinner could not be so categorised. Powell JA, the third member of the Court of Appeal, though he did not express a concluded view upon the matter, was inclined to think leave to proceed was not required in the context of an appeal. He added that unless convinced that BPM was plainly wrong, which he was not, the object of uniformity in interpreting national legislation would suggest that the Court of Appeal should follow the interpretation of s 471B by the Full Court of the Supreme Court of Western Australia in BPM . By implication, he regarded BPM as supporting the conclusion that, in the case of an appeal, leave to proceed was not required.
Case: Humber &amp; Co v John Griffiths Cycle Company (1901) 85 LT 141
Outcome: discussed
is a vexed question whether leave is required to proceed against a company in liquidation in the context of an appeal. In Humber &amp; Co v John Griffiths Cycle Company (1901) 85 LT 141, Lord Davey, the only member of the House of Lords to address the point, held that where a company was being wound up under the direction of the court, an appeal in which the company was a respondent, brought in an action in which the company was originally the plaintiff, was not a "proceeding against the company" within s 87 of the Companies Act 1862 (UK). Accordingly, leave to proceed was not required. However, in Skinner v Jeogla Pty Ltd (2001) 37 ACSR 106, which arose out of an application to the court for leave to proceed against a company in liquidation brought under s 471B of the Corporations Law , the New South Wales Court of Appeal doubted the correctness of Humber . It noted that the language of s 471B differed significantly from that of the provision under consideration in Humber . Spigelman CJ observed (at [16]) that Lord Davey's reasoning was "redolent of the language of waiver". He concluded that there were two points of distinction between Humber and the case before the Court of Appeal. The more important of these was that in 1901, when Humber was decided, the position was that leave to proceed against a company in liquidation had to be obtained from the court that had made the winding up order, and not the appellate court. The practice under the 1862 Act was said to have been set out by Jessell MR in Re International Pulp and Paper Co (1876) 3 Ch D 594. Given the jurisdictional limits upon the statutory power that then existed, Spigelman CJ considered it hardly surprising that the word "proceedings" would be read down so as not to encompass an appeal.
Case: King v Yurisich [2006] FCAFC 136
Outcome: cited
4 September 2006 the Full Court delivered judgment in this matter: King v Yurisich [2006] FCAFC 136. The appeal succeeded, and it was ordered that the appellants bring in short minutes of order reflecting the Full Court's reasons for judgment. On 20 September 2006 the Full Court ordered that the appeal be allowed and that there be judgment in favour of the appellants against Lane Moller Partners Pty Limited trading as Lane Moller Partners and against Robert Young, the third and fourth respondents to the appeal respectively, in the sum of $200,135, together with interest in the sum of $121,876.31. The parties were given further time to file submissions relating to costs. On 5 October 2006 liquidators were appointed to Lane Moller Partners Pty Limited on a creditors' voluntary winding up. The appellants, by notice of motion, seek leave to proceed against the third respondent, now described as Lane Moller Partners Pty Limited, trading as Lane Moller Partners (in liquidation), pursuant to s 500(2) of the Corporations Act 2001 (Cth).
Case: Pasdale Pty Ltd v Concrete Constructions (1995) 59 FCR 446
Outcome: cited
CJ noted that there is authority for the proposition that an application for security for costs against a company in liquidation is not a "proceeding" for which leave of the court is required: Pasdale Pty Ltd v Concrete Constructions (1995) 59 FCR 446; and BPM Pty Ltd v HPM Pty Ltd (1996) 131 FLR 339. However, his Honour observed that an application for security for costs can readily be distinguished from the continuation of a proceeding within the meaning of s 471B and therefore, I interpolate, s 500(2) as well.
Case: Re Aro Co Ltd [1980] Ch 196
Outcome: cited
471B and 500 are silent as to the principles under which leave to proceed will be granted. In McPherson's Law of Company Liquidation (2006, 5 th ed), it is said (at [7.970]) that the courts have an absolute discretion in deciding whether or not they will grant leave to proceed: Re Aro Co Ltd [1980] Ch 196. It is also said that there is a presumption in favour of leaving those with claims against companies in liquidation to the ordinary proof of debt procedure which is, generally speaking, a cheaper and more efficient way of resolving their claims: Re Gordon Grant and Grant Pty Ltd [1983] 2 Qd R 314. The reason given is that the liquidator's attention and resources should not be diverted into expending substantial funds on defending proceedings by those with claims against the company when there is a simpler procedure available, namely calling for and adjudicating upon creditors' proofs of debt, with a right of appeal under s 1321: Re Gordon Grant and Grant .
Case: Re Gordon Grant and Grant Pty Ltd [1983] 2 Qd R 314
Outcome: cited
471B and 500 are silent as to the principles under which leave to proceed will be granted. In McPherson's Law of Company Liquidation (2006, 5 th ed), it is said (at [7.970]) that the courts have an absolute discretion in deciding whether or not they will grant leave to proceed: Re Aro Co Ltd [1980] Ch 196. It is also said that there is a presumption in favour of leaving those with claims against companies in liquidation to the ordinary proof of debt procedure which is, generally speaking, a cheaper and more efficient way of resolving their claims: Re Gordon Grant and Grant Pty Ltd [1983] 2 Qd R 314. The reason given is that the liquidator's attention and resources should not be diverted into expending substantial funds on defending proceedings by those with claims against the company when there is a simpler procedure available, namely calling for and adjudicating upon creditors' proofs of debt, with a right of appeal under s 1321: Re Gordon Grant and Grant . Other factors said to be important in determining whether leave to proceed should be granted are the amount and seriousness of the claim, the degree of complexity of the legal and factual issues involved, and the stage to which the proceedings, if already commenced, may have progressed: Re Gordon Grant and Grant Pty Ltd at 317 (per McPherson J, with whom WB Campbell CJ and Sheahan J agreed). Plainly, this proceeding has now progressed to a very advanced stage. It is all but complete. I accept Mr Cawthorn's submission that it would now be inappropriate to require the proceeding to be the subject of a proof of debt in the winding up. Although there is a judgment debt in favour of the appellants, there remains outstanding an issue as to costs which the liquidators cannot resolve. In addition, it is unlikely that the liquidators will be distracted or diverted from their task by allowing this matter to proceed to finality before the Full Court, rather than having it stayed because the company is now in liquidation. It follows that, if leave to proceed against Lane Moller Partners is in fact required (a matter upon which I express no concluded view), such leave is granted. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg. Associate: Dated: 19 October 2006 Counsel for the Appellants: Mr P Cawthorn Solicitor for the Appellants: McCabe Terrill No appearance for the Respondents. Date of Hearing: 19 October 2006 Date of Judgment: 19 October 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1369.html
Case: Re International Pulp and Paper Co (1876) 3 Ch D 594
Outcome: referred to
in Skinner v Jeogla Pty Ltd (2001) 37 ACSR 106, which arose out of an application to the court for leave to proceed against a company in liquidation brought under s 471B of the Corporations Law , the New South Wales Court of Appeal doubted the correctness of Humber . It noted that the language of s 471B differed significantly from that of the provision under consideration in Humber . Spigelman CJ observed (at [16]) that Lord Davey's reasoning was "redolent of the language of waiver". He concluded that there were two points of distinction between Humber and the case before the Court of Appeal. The more important of these was that in 1901, when Humber was decided, the position was that leave to proceed against a company in liquidation had to be obtained from the court that had made the winding up order, and not the appellate court. The practice under the 1862 Act was said to have been set out by Jessell MR in Re International Pulp and Paper Co (1876) 3 Ch D 594. Given the jurisdictional limits upon the statutory power that then existed, Spigelman CJ considered it hardly surprising that the word "proceedings" would be read down so as not to encompass an appeal.