mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219
Outcome: applied
But even if the federal claims are struck out, this Court will not be deprived of jurisdiction over the non-federal claims unless it can be shown that the former were "colourable", that is they were made for the improper purpose of fabricating jurisdiction: Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219. This is a serious allegation. I did not understand it to have been put by the respondents. In any case, there is no basis for it. In particular, the s 52 claims would have appeared to have had some support from first instance judgements, at least in the light of the strikeout standard which applied when the proceeding was commenced. 41 Paragraphs 23-34 of the statement of claim will be struck out. The respondents will have leave to file and serve an amended defence on or before 12 May 2006. The directions hearing is adjourned to 6 June 2006 at 9.30 am. The applicant is to pay the respondents' costs of the strikeout application. I certify that the preceding forty one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey . Associate: Dated: Counsel for the Applicant: W A Ayliffe Solicitor for the Applicant: Jo Matthews Counsel for the Respondents: R E Hudson Solicitors for the Respondents: Butler McIntyre &amp; Butler Date of Hearing: 17 March 2006 Date of Judgment: 28 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/458.html
Case: Antoun v R [2006] HCA 2 , 224 ALR 51
Outcome: followed
The reasons for decision as provided by the Federal Magistrates Court set forth, in summary form, the evidence as was before the Tribunal and then proceeded to deal with both of the " Grounds " being advanced for consideration. The Federal Magistrate did not perceive there to be any jurisdictional error. He dismissed the contention that there had been a denial of procedural fairness by concluding: ... As for the second ground this appears to be a figment of the imagination of the person who wrote the application for this applicant. She actually attended two hearings. Exasperation may be felt when, as frequently happens in migration cases, arguments are advanced for resolution which appear to have little (if any) correlation with the facts in issue. Albeit in the context of addressing comments made by a trial judge during the course of a hearing, the following comments of Gleeson CJ in Antoun v R [2006] HCA 2 , 224 ALR 51 reflect both the reality that may be experienced in entertaining what appear to be unmeritorious arguments and the need to always ensure the appearance of impartiality: [22] Judges do not have to devote unlimited time to listening to unmeritorious arguments. Sometimes, a brief hearing will suffice. Judges may anticipate events at trial, and foresee lines of argument that may be developed. Here, the appellants made it clear from the outset that they hoped to be able to secure acquittal without giving evidence themselves. Perhaps the judge felt indignant about the conduct disclosed by the evidence, or about the tactics adopted by the appellants. Indignation is a natural reaction to some facts that are disclosed, or some events that occur, at a criminal trial or, for that matter, on an appeal. It should never be permitted to compromise the appearance of impartiality that is required of judges. In the context of the present appeal it may likewise be observed that moderation in the language with which reasons for decision are expressed may be more productive of adverse decisions being accepted as a balanced and impartial resolution of a dispute, especially disputes involving an unrepresented litigant. 10 There is nothing, however, which indicates that the Federal Magistrate in the present proceeding did not consider and " fairly " and " reasonably " resolve the arguments being advanced. Not only did the Federal Magistrate resolve the arguments being advanced by the now Appellant, he also considered a further argument potentially available to her based upon s 91R(3) of the Migration Act 1958 (Cth). This argument had properly been raised by those appearing for the Respondent Minister.
Case: Klinger v Nicholl [2005] FCAFC 153
Outcome: applied
Other than the language used by the Federal Magistrate in his reasons for decision, there is thus no basis upon which any argument as to a lack of " fairness " could be advanced in the present appeal. That language, although it may have been more prudent for the observations to have been differently expressed, falls far short of establishing any reasonably held belief that the Federal Magistrate was not determining the case before him " fairly " and " reasonably ". There is no basis upon which it could be contended that the Federal Magistrate was not acting " impartially and without prejudice ". Each case must obviously be decided upon its own facts. But it may be noted that in Penhall-Jones v New South Wales [2007] FCA 925 a Federal Magistrate was not disqualified by reason of characterising an allegation that an offer had been made as a " bribe " as " ridiculous ". That and other " strong " language, Buchanan J concluded, did not demonstrate on the part of the Federal Magistrate " a lack of preparedness to deal with [the case] in a balanced way ": at [95]. The manner in which a judgment is expressed may evidence a reasonable apprehension of bias: Vakuata v Kelly [1989] HCA 44 ; (1989) 167 CLR 568 at 573. But the use of intemperate language, of itself, does not necessarily result in a decision being set aside: Klinger v Nicholl [2005] FCAFC 153 ; Naisauvou v Minister for Immigration and Multicultural Affairs [1999] FCA 86 at [32] , [1999] FCA 86 ; 89 FCR 435 at 443.
Case: Naisauvou v Minister for Immigration and Multicultural Affairs [1999] FCA 86 , 89 FCR 435
Outcome: applied
Other than the language used by the Federal Magistrate in his reasons for decision, there is thus no basis upon which any argument as to a lack of " fairness " could be advanced in the present appeal. That language, although it may have been more prudent for the observations to have been differently expressed, falls far short of establishing any reasonably held belief that the Federal Magistrate was not determining the case before him " fairly " and " reasonably ". There is no basis upon which it could be contended that the Federal Magistrate was not acting " impartially and without prejudice ". Each case must obviously be decided upon its own facts. But it may be noted that in Penhall-Jones v New South Wales [2007] FCA 925 a Federal Magistrate was not disqualified by reason of characterising an allegation that an offer had been made as a " bribe " as " ridiculous ". That and other " strong " language, Buchanan J concluded, did not demonstrate on the part of the Federal Magistrate " a lack of preparedness to deal with [the case] in a balanced way ": at [95]. The manner in which a judgment is expressed may evidence a reasonable apprehension of bias: Vakuata v Kelly [1989] HCA 44 ; (1989) 167 CLR 568 at 573. But the use of intemperate language, of itself, does not necessarily result in a decision being set aside: Klinger v Nicholl [2005] FCAFC 153 ; Naisauvou v Minister for Immigration and Multicultural Affairs [1999] FCA 86 at [32] , [1999] FCA 86 ; 89 FCR 435 at 443.
Case: Penhall-Jones v New South Wales [2007] FCA 925
Outcome: followed
Other than the language used by the Federal Magistrate in his reasons for decision, there is thus no basis upon which any argument as to a lack of " fairness " could be advanced in the present appeal. That language, although it may have been more prudent for the observations to have been differently expressed, falls far short of establishing any reasonably held belief that the Federal Magistrate was not determining the case before him " fairly " and " reasonably ". There is no basis upon which it could be contended that the Federal Magistrate was not acting " impartially and without prejudice ". Each case must obviously be decided upon its own facts. But it may be noted that in Penhall-Jones v New South Wales [2007] FCA 925 a Federal Magistrate was not disqualified by reason of characterising an allegation that an offer had been made as a " bribe " as " ridiculous ". That and other " strong " language, Buchanan J concluded, did not demonstrate on the part of the Federal Magistrate " a lack of preparedness to deal with [the case] in a balanced way ": at [95]. The manner in which a judgment is expressed may evidence a reasonable apprehension of bias: Vakuata v Kelly [1989] HCA 44 ; (1989) 167 CLR 568 at 573. But the use of intemperate language, of itself, does not necessarily result in a decision being set aside: Klinger v Nicholl [2005] FCAFC 153 ; Naisauvou v Minister for Immigration and Multicultural Affairs [1999] FCA 86 at [32] , [1999] FCA 86 ; 89 FCR 435 at 443.
Case: SCAA v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 668
Outcome: applied
Although the Affidavit as filed in this Court refers indiscriminately to complaints made as against the Department, the Tribunal and the Federal Magistrates Court, it should be noted that the mere rejection of a claim by either the Tribunal or the Federal Magistrates Court self-evidently does not establish any reasonable apprehension of bias: cf SCAA v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J. When referring to the reasons for decision of a Refugee Review Tribunal, His Honour there further relevantly observed that " it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision ". These observations have since been endorsed by Tamberlin, Mansfield and Jacobson JJ in SBBF v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 358 at [16] . See also: SZHOP v Minister for Immigration &amp; Multicultural Affairs [2006] FCA 1640 at [23] ; SZLVN v Minister for Immigration &amp; Citizenship [2008] FCA 1301 at [21] .
Case: SBBF v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 358
Outcome: followed
Although the Affidavit as filed in this Court refers indiscriminately to complaints made as against the Department, the Tribunal and the Federal Magistrates Court, it should be noted that the mere rejection of a claim by either the Tribunal or the Federal Magistrates Court self-evidently does not establish any reasonable apprehension of bias: cf SCAA v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J. When referring to the reasons for decision of a Refugee Review Tribunal, His Honour there further relevantly observed that " it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision ". These observations have since been endorsed by Tamberlin, Mansfield and Jacobson JJ in SBBF v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 358 at [16] . See also: SZHOP v Minister for Immigration &amp; Multicultural Affairs [2006] FCA 1640 at [23] ; SZLVN v Minister for Immigration &amp; Citizenship [2008] FCA 1301 at [21] .
Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 , 228 CLR 152
Outcome: applied
The lack of " fairness " on the part of the Federal Magistrates Court was explained by the now Appellant (through her interpreter) as being the fact that neither the Tribunal nor the Federal Magistrates Court believed that she was a genuine Falun Gong practitioner. The task of making findings of fact, including findings as to the credibility of the now Appellant, rested with the Tribunal. It is no part of the function of the Federal Magistrates Court or of this Court to review the factual findings as made. As was observed in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [25] , [2006] HCA 63 ; 228 CLR 152 at 160 " What is required by procedural fairness is a fair hearing, not a fair outcome ". The now Appellant was given a " fair hearing " before the Federal Magistrates Court. 14 No appellable error can be perceived in the reasons for decision of the Federal Magistrates Court. Those reasons do not expose anything other than a fair and impartial determination of the case being advanced. 15 The appeal is dismissed with costs.
Case: SZHOP v Minister for Immigration &amp; Multicultural Affairs [2006] FCA 1640
Outcome: followed
Although the Affidavit as filed in this Court refers indiscriminately to complaints made as against the Department, the Tribunal and the Federal Magistrates Court, it should be noted that the mere rejection of a claim by either the Tribunal or the Federal Magistrates Court self-evidently does not establish any reasonable apprehension of bias: cf SCAA v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J. When referring to the reasons for decision of a Refugee Review Tribunal, His Honour there further relevantly observed that " it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision ". These observations have since been endorsed by Tamberlin, Mansfield and Jacobson JJ in SBBF v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 358 at [16] . See also: SZHOP v Minister for Immigration &amp; Multicultural Affairs [2006] FCA 1640 at [23] ; SZLVN v Minister for Immigration &amp; Citizenship [2008] FCA 1301 at [21] .
Case: SZLVN v Minister for Immigration &amp; Citizenship [2008] FCA 1301
Outcome: followed
Although the Affidavit as filed in this Court refers indiscriminately to complaints made as against the Department, the Tribunal and the Federal Magistrates Court, it should be noted that the mere rejection of a claim by either the Tribunal or the Federal Magistrates Court self-evidently does not establish any reasonable apprehension of bias: cf SCAA v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J. When referring to the reasons for decision of a Refugee Review Tribunal, His Honour there further relevantly observed that " it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision ". These observations have since been endorsed by Tamberlin, Mansfield and Jacobson JJ in SBBF v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 358 at [16] . See also: SZHOP v Minister for Immigration &amp; Multicultural Affairs [2006] FCA 1640 at [23] ; SZLVN v Minister for Immigration &amp; Citizenship [2008] FCA 1301 at [21] .
Case: SZMJA v Minister for Immigration [2008] FMCA 1387
Outcome: cited
On 15 April 2008 the Tribunal published its reasons for decision to affirm the decision not to grant the visa. The Tribunal concluded ( inter alia ) that the now Appellant was not " a genuine and committed Falun Gong practitioner ". The Tribunal further concluded that " the applicant will not practise Falun Gong if she returns to China as she is not a committed or genuine practitioner; she has not practised in Australia since she has been here which is now nearly nine months since her arrival date ". An application was then filed with the Federal Magistrates Court for review by that Court. The application was dismissed and reasons for decision published on 25 September 2008: SZMJA v Minister for Immigration [2008] FMCA 1387. 4 The Appellant now appeals to this Court. She appeared before the Court yesterday unrepresented and with an interpreter. The Grounds of Appeal (without alteration) are expressed as follows: 1. Refugee Review Tribunal has bias against me and didn't make fair decision for application. 2. I clarify all my points at the hearing of the Federal Magistrates Court, but the Judge didn't consider my application fairly. The Judge dismissed my application. 3. I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court. An Affidavit filed in this Court simply states: My application for a protection visa was refused by DIAC and RRT and I've found jurisdictional error with RRT. I lodged my application to be reviewed at Federal Magistrates Court. The Judge didn't consider all information provided at my hearing. 5 The appeal is to be dismissed.
Case: Vakuata v Kelly [1989] HCA 44 ; (1989) 167 CLR 568
Outcome: considered
Other than the language used by the Federal Magistrate in his reasons for decision, there is thus no basis upon which any argument as to a lack of " fairness " could be advanced in the present appeal. That language, although it may have been more prudent for the observations to have been differently expressed, falls far short of establishing any reasonably held belief that the Federal Magistrate was not determining the case before him " fairly " and " reasonably ". There is no basis upon which it could be contended that the Federal Magistrate was not acting " impartially and without prejudice ". Each case must obviously be decided upon its own facts. But it may be noted that in Penhall-Jones v New South Wales [2007] FCA 925 a Federal Magistrate was not disqualified by reason of characterising an allegation that an offer had been made as a " bribe " as " ridiculous ". That and other " strong " language, Buchanan J concluded, did not demonstrate on the part of the Federal Magistrate " a lack of preparedness to deal with [the case] in a balanced way ": at [95]. The manner in which a judgment is expressed may evidence a reasonable apprehension of bias: Vakuata v Kelly [1989] HCA 44 ; (1989) 167 CLR 568 at 573. But the use of intemperate language, of itself, does not necessarily result in a decision being set aside: Klinger v Nicholl [2005] FCAFC 153 ; Naisauvou v Minister for Immigration and Multicultural Affairs [1999] FCA 86 at [32] , [1999] FCA 86 ; 89 FCR 435 at 443.
Case: Guss v Johnstone (2000) 171 ALR 598
Outcome: cited
Equally, it does not appear that any order extending time was made under s 41(6A)(b). Mr Cirillo's application seems to be founded solely upon s 41(7) of the Bankruptcy Act , his claim being that his tort action against the five respondents would satisfy the requirements of a counter-claim, set-off or cross demand for the purposes of that subsection. As I indicated in my judgment in the strike out proceedings, unless and until the costs order is set aside, it is simply not open to Mr Cirillo to make the claim he seeks to make founded on the tort of abuse of process claiming damages in respect of costs incurred in the inquiry as to damages proceeding. For this reason he cannot now point to an existing cross claim had by him that could be set-off against the costs order: Guss v Johnstone (2000) 171 ALR 598 at 607. 18 The present application properly characterised is a belated attempt to have time extended to institute proceedings to set aside the costs order rather than to set up a counter-claim, set-off or cross demand. This becomes immediately apparent once it is appreciated that if the costs order is set aside the judgment debt founding the bankruptcy notice would disappear. On this straightforward ground I would dismiss the application. 19 I would not, though, wish it to be thought that, even if this application could competently have been brought under s 41(7) , I would have the relevant level of satisfaction required to set aside the bankruptcy notice.
Case: Patone v Asteron Ltd (formerly Royal and Sun Alliance Financial Services Limited) (ACN 001 698 228) [2004] FCA 232
Outcome: cited
I equally should indicate that I have no material before me which could lead to the requisite satisfaction that the counter-claim etc on which Mr Cirillo intends to rely would, if quantified, be in a sum equal to or in excess of the amount of the costs order. There are simply bald assertions of sums of costs incurred by Mr Cirillo both in interlocutory proceedings and in the preliminary hearing. These are not the subject of any evidence that could satisfy me that he has any reasonable probability of recovery of such sums in his foreshadowed proceedings: see Patone v Asteron Ltd (formerly Royal and Sun Alliance Financial Services Ltd) (ACN 001 698 228) [2004] FCA 232 at [74] - [75] . 25 As to the alleged loss he incurred in unsuccessfully prosecuting the preliminary hearing it is difficult to see how this could be said to represent a recoverable loss in any event. 26 I have concluded that the present application is an incompetent one. Mr Cirillo cannot engage the power to extend time conferred by s 41(6A) of the Bankruptcy Act insofar as he wishes so to do for the purposes of instituting proceedings to set aside the 2005 costs order of the Supreme Court of South Australia. Nor are the circumstances ones in which he can have the bankruptcy notice itself set aside under s 41(7) of the Bankruptcy Act . Accordingly, I will order that the application be dismissed and I order the applicant to pay the respondents' costs of the application. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn J. Associate: Dated: 16 February 2007 Counsel for the Applicant: Mr J Ribbands Solicitor for the Applicant: McNamara Business &amp; Property Law Counsel for the Respondent: Mr W M Ericson Solicitor for the Respondent: Finlaysons Date of Hearing: 13 February 2007 Date of Judgment: 16 February 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/139.html
Case: Chandramouli v Wallader [2001] FCA 808
Outcome: referred to
If a bankruptcy notice is a nullity and of no effect, it is not a notice under the Act: see Circle Credit Co-Op Ltd v Lilikakis [2000] FCA 667 ; (2000) 99 FCR 592 at [10] per Heerey J; Chandramouli v Wallader [2001] FCA 808 at [4] . It must be a notice under the Act to be subject to the court's power of amendment in s 33(1)(b).
Case: Circle Credit Co-Op Ltd v Lilikakis [2000] FCA 667 ; (2000) 99 FCR 592
Outcome: applied
If a bankruptcy notice is a nullity and of no effect, it is not a notice under the Act: see Circle Credit Co-Op Ltd v Lilikakis [2000] FCA 667 ; (2000) 99 FCR 592 at [10] per Heerey J; Chandramouli v Wallader [2001] FCA 808 at [4] . It must be a notice under the Act to be subject to the court's power of amendment in s 33(1)(b).
Case: Kyriackou v Shield Mercantile Pty Ltd [2004] FCA 490 ; (2004) 138 FCR 324
Outcome: considered
In Kyriackou v Shield Mercantile Pty Ltd [2004] FCA 490 ; (2004) 138 FCR 324 , Weinberg J concluded at [36] and [37]: [36] The purpose of a bankruptcy notice is to convey to the debtor the amount claimed by the creditor, and to give the debtor the opportunity to pay or secure that amount. It is important that a bankruptcy notice be prepared with great care. The courts require strict compliance with the Act and Regulations. The reason for this is that a bankruptcy notice sets in train the entire process leading to bankruptcy, a process that has been described as 'quasi-penal'. [37] Formal errors in a bankruptcy notice do not result in its invalidity unless they have caused substantial injustice. However, substantive errors will generally lead to the notice being regarded as invalid and of no effect. If a bankruptcy notice is invalid, any bankruptcy proceedings based upon that notice will be dismissed.