mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Repatriation Commission v Bendy (1989) 10 AAR 323
Outcome: cited
The applicant drew the Court's attention to the requirement that mere de minimus aggravation of IFA would not suffice, given the requirements of clause 6 of the Statement of Principles; see Repatriation Commission v Bendy (1989) 10 AAR 323 at 330. It could not, however, point to any evidence that the aggravation identified by the expert would have been de minimus . This ground must fail. 61 The Tribunal found that Mr Money's service in submarines " could (via the fumes that he had to inhale), have aggravated his IFA" [emphasis added]. The applicant argues that the Tribunal here misconceived its task, which is to decide to its reasonable satisfaction whether the fumes aggravated Mr Money's IFA, as required by s 120(4). 62 The Tribunal has failed to express its satisfaction on the balance of probabilities that Mr Money's submarine service aggravated his IFA. The Tribunal's treatment of this topic nonetheless implies that it was satisfied to the appropriate standard on this point. In any event, even if this implication cannot be drawn, the Tribunal identified other aggravating factors, primarily smoking. The Tribunal laid out the measures that could have been taken to protect Mr Money's lung capacity, but which were not instituted: The prophylactic measures appropriate to the applicant's disease are: &#8226; making sure that the applicant has his yearly flu vaccine and five yearly pneumococcal vaccine, and having antibiotics at hand so he could promptly start taking them at the start of infection, and therefore not be delayed waiting for doctor's appointments etc; &#8226; advising him to stop smoking; &#8226; keeping him under long term surveillance; &#8226; regular monitoring of his lung function by non invasive testing; and &#8226; explaining the importance of losing weight to the patient. The Tribunal said that these measures "would have protected [Mr Money's] spare lung capacity that was being inexorably eroded".
Case: Applicant S1338 of 2003 v Minister for Immigration and Indigenous Affairs [2006] FCA 53
Outcome: distinguished
The appellant refers to the decision of the High Court of Australia in Re Minister for Immigration and Multicultural Affairs Ex Parte Miah [2001] HCA 22 ; (2001) 206 CLR 57, especially Gaudron J at [106] wherein her Honour said: Although relief by way of prohibition under s 75(v) of the Constitution is discretionary, the guiding principle is that "[t]hose exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers". Reliance is also placed by the appellant upon authorities which relate to delay see: SZHRF v Minister for Immigration [2006] FMCA 766 at [35] and the observations of McHugh J in Re Commonwealth; Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491 at 495 and of Stone J in Applicant S1338 of 2003 v Minister for Immigration and Indigenous Affairs [2006] FCA 53.
Case: Lee v Minister for Immigration and Citizenship [2007] FCAFC 62
Outcome: distinguished
Whilst the appellant relied upon the decisions of the Full Court in Lee v Minister for Immigration and Citizenship [2007] FCAFC 62 and SZFOH v Minister for Immigration and Citizenship [2007] FCAFC 63 , neither have application to the present proceedings since each of those cases concern service with regard to an 'authorised recipient' . For reasons referred to above, there was no appointment of such person in the present proceedings.
Case: Makhu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 221
Outcome: cited
His Honour also noted that the original Application for Review was made before s 441G of the Act became operational and that the nomination of the migration agent in the application for review could not have been made in the context of an 'authorised recipient' as provided by s 441G of the Act. However, the parties proceeded on the basis that when s 411G did become operational, it rendered the appellant's migration agent the authorised recipient for the purpose of the section. His Honour followed the decision of Mansfield J in Makhu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 221 to deem that the appellant had received the invitation, notwithstanding that under s 441G of the Act the invitation ' must ' be sent to the appellant's authorised recipient. 21 Although finding that the Tribunal acted correctly in respect of service of the notice, Nicholls FM found that the Tribunal did not comply with the relevant statutory requirements in respect of the period of notice. His Honour found that there was jurisdictional error in the procedures of the Tribunal. His Honour noted that s 425A(3) in conjunction with Regulation 4.35D(b) of the Migration Regulations 1994 (Cth) ('the Regulations') stipulated that the prescribed period for giving notice of an invitation to a hearing starts when the appellant receives notice of the invitation and ends at the expiration of 14 days after the day on which notice is received. His Honour also noted that s 441A(4) of the Act provided a method by which the Tribunal gives a document to a person is to date the document and dispatch it by prepaid post within 3 working days to the last address for service, or last residential or business address provided by the appellant. His Honour also noted that section 441C(4)(a) of the Act relevantly provides that a person is taken to have received a document from the Tribunal 7 working days after the date of the document. 22 In applying the legislation to the facts his Honour found that the date of the invitation to the hearing was 31 January 2002 and that the invitation was sent by prepaid post to the migration agent and the appellant at his residential address on 1 February 2002, thus within the requisite 3 working days. His Honour found that the migration agent would be deemed to have received the letter of invitation on Monday 11 February 2002. Pursuant to Regulation 4.35D(b) the period of notice required in relation to an invitation to attend a hearing in the case would have ended 14 days later on Monday 25 February 2002. The hearing was set for 22 February 2002 and thus the period of notice was deficient by 3 days. His Honour accordingly found that the Tribunal did not satisfy the requirements of the prescribed period of notice both for the letter sent to the migration agent and the letter sent to the appellant pursuant to s 425A(3) of the Act.
Case: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355
Outcome: referred to
The appellant claims that, since s 422B was not in force at the time there had been common law unfairness by the Tribunal. However, the Tribunal satisfied the statutory requirements in respect of the issue and service of the invitation under s 425A of the Act. Further, receipt is deemed to have been effected by the provisions of s 441C. Since the statutory procedure was adopted, there is no basis for a finding of a denial of procedural fairness: see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 373. 42 As stated previously, Nicholls FM observed that no evidence had been led by the appellant to show that the appellant's advisor had not received a copy of the invitation. There is however evidence that the Tribunal contacted the adviser by telephone and was informed that the appellant was unlikely to attend but that efforts would be made to contact him. Nothing further was heard and no application was made to the Tribunal to adjourn the hearing. It follows that this ground of appeal must be dismissed. 43 Although Nicholls FM found that there had been a breach of the statutory requirements concerning the provision of notice in the s 425A invitation, he declined to remit the matter to the Tribunal in the exercise of his discretion. His discretion was so exercised after a detailed investigation of the facts and circumstances surrounding the appellant's application.
Case: Re Commonwealth; Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491 at 495
Outcome: distinguished
The appellant refers to the decision of the High Court of Australia in Re Minister for Immigration and Multicultural Affairs Ex Parte Miah [2001] HCA 22 ; (2001) 206 CLR 57, especially Gaudron J at [106] wherein her Honour said: Although relief by way of prohibition under s 75(v) of the Constitution is discretionary, the guiding principle is that "[t]hose exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers". Reliance is also placed by the appellant upon authorities which relate to delay see: SZHRF v Minister for Immigration [2006] FMCA 766 at [35] and the observations of McHugh J in Re Commonwealth; Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491 at 495 and of Stone J in Applicant S1338 of 2003 v Minister for Immigration and Indigenous Affairs [2006] FCA 53.
Case: Re Minister for Immigration and Multicultural Affairs Ex Parte Miah [2001] HCA 22 ; (2001) 206 CLR 57
Outcome: cited
The appellant refers to the decision of the High Court of Australia in Re Minister for Immigration and Multicultural Affairs Ex Parte Miah [2001] HCA 22 ; (2001) 206 CLR 57, especially Gaudron J at [106] wherein her Honour said: Although relief by way of prohibition under s 75(v) of the Constitution is discretionary, the guiding principle is that "[t]hose exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers". Reliance is also placed by the appellant upon authorities which relate to delay see: SZHRF v Minister for Immigration [2006] FMCA 766 at [35] and the observations of McHugh J in Re Commonwealth; Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491 at 495 and of Stone J in Applicant S1338 of 2003 v Minister for Immigration and Indigenous Affairs [2006] FCA 53.
Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162
Outcome: followed
Nicholls FM, referring to the High Court's decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 observed that the grant of relief of the nature sought by the appellant (writs under s 75(v) of the Constitution ) is discretionary and may be refused if the conduct of a party is inconsistent with the grant of such relief for reasons of, inter alia, unwarrantable delay, acquiescence or waiver or unclean hands on the part of the party seeking relief. 26 Nicholls FM was satisfied that the appellant would have known of the Tribunal's decision to affirm the Minister's refusal of his application for a protection visa by mid November 2004. Nicholls FM found that since the appellant's application for review to the Federal Magistrates Court was not made until May 2005, there was an unwarrantable delay by the appellant in pursuing his appeal. Nicholls FM considered that the appellant's conduct in pursuing the s 48B Application rather than seeking review of the Tribunal's decision of 27 February 2002 showed that the appellant lacked the sense of grievance or urgency that the appellant had subsequently asserted. Nicholls FM was also of the view that the appellant demonstrated 'unclean hands' due to inconsistencies in the appellant's evidence and submissions. Accordingly his Honour refused to exercise his discretion to grant the relief sought by the appellant and dismissed the application. 27 By Notice of Appeal dated 3 May 2006 the appellant raises the following grounds of review: the Federal Magistrate erred by not finding that the Tribunal failed to accord the appellant procedural fairness in that the Tribunal failed to follow the procedures required by s 425A(1) and s 441G(1) of the Act; the Federal Magistrate erred in not remitting the matter to the Tribunal even though a breach of procedural fairness existed; and the Tribunal failed to accord the appellant procedural fairness in its failure to give the appellant an opportunity to comment upon the country information reports which were taken into account by the Tribunal. 28 The appellant submits that since s 441A of the Act had commenced operation by the time the invitation to the Tribunal's hearing was sent, it was necessary for the Tribunal to send the letter to the 'authorised recipient' as required by s 441G. The Tribunal failed to do so and accordingly service of the invitation was defective. 29 It is essential to consider the legislative regime which applied at the time of the appellant's original Application for Review. The original Application for Review was received by the Tribunal on 10 November 2000 under cover of a facsimile sheet provided by the appellant's adviser, Kamlesh Singh. The address on the fax coversheet was nominated as 16 Blue Hills Avenue, Mount Waverley, Victoria.
Case: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
Outcome: applied
The Court has considered the statements of principle referred to in the above decisions but does not consider that they address the issue which Nicholls FM had before him. The appellant had chosen deliberately to pursue alternate means of obtaining a visa rather than to challenge the decision which had been made by the Tribunal. Nicholls FM exercised his discretion in determining whether to grant the relief sought by the appellant for the established breach: see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [28] and [49]-[59]. His Honour was entitled to find, on the evidence before him, that the appellant had engaged in conduct inconsistent with his recently stated grievance, had acquiesced in the Tribunal's decision and came to the Court with 'unclean hands'.
Case: SZDOG v Minister for Immigration [2004] FMCA 972
Outcome: referred to
As the proceedings were commenced prior to the enactment of s 422B of the Act, Nicholls FM also had regard to the question whether the requirements of common law procedural fairness were met by the Tribunal in relation to the hearing invitation. His Honour had regard to the decisions of Smith FM in SZDOG v Minister for Immigration [2004] FMCA 972 and SZEMB v Minister for Immigration [2005] FMCA 448. In these decisions the discretion of the Tribunal to proceed to determination of the application under s 426A(1) of the Act was vitiated because the Tribunal failed to address considerations relevant to the exercise of that discretion. However his Honour distinguished such decisions on their facts. In SZDOG , the Tribunal had drawn a mistaken positive conclusion that the appellant had shown a deliberate lack of interest in his application. In SZEMB the Tribunal proceeded to make a final decision on the mistaken belief that the agent had been notified with sufficient time for him to make significant efforts to contact his client. No such considerations applied in the present circumstances.
Case: SZEMB v Minister for Immigration [2005] FMCA 448
Outcome: referred to
As the proceedings were commenced prior to the enactment of s 422B of the Act, Nicholls FM also had regard to the question whether the requirements of common law procedural fairness were met by the Tribunal in relation to the hearing invitation. His Honour had regard to the decisions of Smith FM in SZDOG v Minister for Immigration [2004] FMCA 972 and SZEMB v Minister for Immigration [2005] FMCA 448. In these decisions the discretion of the Tribunal to proceed to determination of the application under s 426A(1) of the Act was vitiated because the Tribunal failed to address considerations relevant to the exercise of that discretion. However his Honour distinguished such decisions on their facts. In SZDOG , the Tribunal had drawn a mistaken positive conclusion that the appellant had shown a deliberate lack of interest in his application. In SZEMB the Tribunal proceeded to make a final decision on the mistaken belief that the agent had been notified with sufficient time for him to make significant efforts to contact his client. No such considerations applied in the present circumstances.
Case: SZFOH v Minister for Immigration and Citizenship [2007] FCAFC 63
Outcome: distinguished
Whilst the appellant relied upon the decisions of the Full Court in Lee v Minister for Immigration and Citizenship [2007] FCAFC 62 and SZFOH v Minister for Immigration and Citizenship [2007] FCAFC 63 , neither have application to the present proceedings since each of those cases concern service with regard to an 'authorised recipient' . For reasons referred to above, there was no appointment of such person in the present proceedings.
Case: SZHRF v Minister for Immigration [2006] FMCA 766
Outcome: distinguished
The appellant refers to the decision of the High Court of Australia in Re Minister for Immigration and Multicultural Affairs Ex Parte Miah [2001] HCA 22 ; (2001) 206 CLR 57, especially Gaudron J at [106] wherein her Honour said: Although relief by way of prohibition under s 75(v) of the Constitution is discretionary, the guiding principle is that "[t]hose exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers". Reliance is also placed by the appellant upon authorities which relate to delay see: SZHRF v Minister for Immigration [2006] FMCA 766 at [35] and the observations of McHugh J in Re Commonwealth; Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491 at 495 and of Stone J in Applicant S1338 of 2003 v Minister for Immigration and Indigenous Affairs [2006] FCA 53.
Case: MZWZC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 544
Outcome: cited
these principles are applicable in this case is clear from a number of recent judgments of this Court (see Besanko J in SZGCH v Minister for Immigration &amp; Multicultural Affairs [2006] FCA 809 at par 14; Sundberg J in MZWZC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 544 at par 8).
Case: Niemann v Electronic Industries Ltd [1978] VR 431
Outcome: applied
the first respondent in written submissions cited Niemann v Electronic Industries Ltd [1978] VR 431 as authority that the following principles are applicable to the grant of leave to appeal: (a) whether in all the circumstances the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court and (b) whether substantial injustice would result if leave were refused supposing the decision to be wrong. In respect of the principles in Niemann the first respondent submitted the following: &#8226; the application does not create any doubt as to the correctness of the judgment of Driver FM, much less sufficient doubt, to warrant reconsideration by this Court &#8226; no error is raised as to the approach or findings of Driver FM &#8226; Driver FM was plainly correct to dismiss the application for the reasons he did &#8226; the Court ought not to interfere with the exercise of judicial discretion in the making of an interlocutory decision unless it is satisfied that there has been some error of law or logic or some unfairness which is apparent on the face of the reasons or implicit in the result &#8226; no substantial injustice would result because there is no error in the Tribunal's decision.
Case: SZGCH v Minister for Immigration &amp; Multicultural Affairs [2006] FCA 809
Outcome: cited
these principles are applicable in this case is clear from a number of recent judgments of this Court (see Besanko J in SZGCH v Minister for Immigration &amp; Multicultural Affairs [2006] FCA 809 at par 14; Sundberg J in MZWZC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 544 at par 8).
Case: Re Arthur Yates &amp; Co Ltd (2001) 36 ACSR 758 
Outcome: discussed
In Re Arthur Yates &amp; Co Ltd (2001) 36 ACSR 758, Santow J gave attention to no-shop provisions. His Honour expressed the opinion (at [9]) that such a provision should satisfy the following concerns: (a) it should be for no more than a reasonable period capable of precise ascertainment; (b) while it may differentiate between actively soliciting an alternative merger proposal and simply dealing with an unsolicited one, in either case the provision should be framed so that it is subject to the overriding obligation not to breach the directors' fiduciary duties or be otherwise unlawful; and (c) there should be adequate prominence given to the provision in the explanatory memorandum sent to shareholders. 30 Are these three requirements satisfied in the present case? 31 (a) As noted, the Exclusivity Period in this case runs from the date of the SIA to the date when the Scheme becomes effective pursuant to the Court's approval of it. The date of the SIA is 11 February 2007. If we assume that all conditions precedent will be satisfied, apparently the last to be satisfied will be the Court's approving the Scheme under s 411(4)(b) of the Act , which, ex hypothesi , would be likely to take place at the second court hearing, presently fixed for 28 May 2007. I do not regard the period of some three and a half months as unreasonably long. 32 (b) I do not find cl 11.6 comforting. It operates only if and when the matter comes before a court, arbitral tribunal or the Takeovers Panel something that may never happen. 33 Clause 11.5(b) provides: Nothing in clauses 11.3 or 11.4 prevents APN from undertaking, or requires APN to undertake, any act, if doing so would be inconsistent with the proper exercise of the fiduciary duties of the APN Independent Committee . (My emphasis.) This provision may suggest that cl 11.3 and cl 11.4 may properly require APN to act in a manner inconsistent with the proper exercise of the fiduciary duties of its other seven directors. No doubt the provision was framed as it is to recognise the fact that those other directors may be seen to owe duties to INMAL, an indirect wholly owned subsidiary of INM, a member of the Consortium. However, those directors also have fiduciary duties as directors of APN. 34 I do not think, however, that what I regard as a deficiency in the form of expression of cl 11.5(b) should stand in the way of the convening of the Scheme Meeting or of the approval of the Scheme. 35 (c) Is adequate prominence given the no-shop provision in the Scheme Booklet? I think so. First, a copy of the SIA is Annexure A to the Scheme Booklet. In addition, within the text of the Scheme Booklet, at section 10.3 ("Key Terms of the Scheme Implementation Agreement"), the no-shop provision is referred to under the heading "No-Shop and No Due Diligence" and "Right to Respond to Competing Transactions".
Case: Re Ballarat Goldfields NL (2002) 41 ACSR 691
Outcome: cited
The Takeovers Panel has had occasion to consider break fees in the context of takeovers under Ch 6 of the Act : see the discussion in Renard IA and Santamaria JG , Takeovers and Reconstruction in Australia (Butterworths, looseleaf service) at [1149], esp at 11,173 ff. Break fees were considered by the Panel in Re Normandy Mining Ltd (No 3) (2002) 20 ACLC 471; Re Ballarat Goldfields NL (2002) 41 ACSR 691; and Re National Can Industries Ltd (No 1) (2003) 48 ACSR 409 (" National Can "). In National Can , the review panel stated (at 434 [33]): We consider that a 1% fee is usually not materially anti-competitive and does not place unreasonable pressure on shareholders. This is the basis for the choice of the 1% guideline in GN7. Further, we query whether a sunk cost is anti-competitive if shareholders reject the scheme and agree with the initial panel's statement [made earlier at 418 [42]]: "In these circumstances, we do not entirely reject the notion that a fee should be payable if and when a proposal the directors endorsed was rejected by shareholders. As GN7 puts it, such a fee may be an appropriate price to secure an opportunity broadly in the nature of an option [GN7 at para 7.21]".