mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZDFZ v Minister for Immigration &amp; Citizenship [2008] FCA 390
Outcome: considered
In some circumstances a departure by a reconstituted Tribunal from the findings and conclusions of an earlier Tribunal may constitute a denial of procedural fairness and a denial of the opportunity " to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review ", as required by s 425(1): eg SZDFZ v Minister for Immigration &amp; Citizenship [2008] FCA 390. But such is not the present case. The Tribunal's reasons thus contain the following passage: The Tribunal again told the applicant that it had listened to the tapes of his two previous hearings with the first and second Tribunal and that this Tribunal may take into account what he had told previous Tribunals. The Tribunal asked the applicant if he wanted to change or add to anything he had previously said. The applicant stated that he did not. The Tribunal put to the applicant that it was still concerned about why Shouters would ask the applicant, who is not a member of the Shouters, to burn CDs when this task could have been done on a personal computer, in secret. The applicant stated that all he knows is that none of the Shouters do this kind of thing and that perhaps they came to him because he was a good friend of Mr [X] and because he had no religious beliefs and so would not attract the PSB. These were the factual issues later resolved against the now Appellant by the Tribunal. No breach of s 425 can be discerned. The now Appellant was given every opportunity " to persuade " the Tribunal on each of the issues resolved against him. 22 The final Ground seeks to contend that the Federal Magistrates Court failed to consider the application " properly and fairly ". That Ground is without substance. 23 The appeal must be dismissed with costs.
Case: SZFYW v Minister for Immigration &amp; Citizenship [2008] FMCA 813
Outcome: cited
The decision of the Tribunal was to affirm the decision not to grant a protection visa. The Federal Magistrates Court on 13 June 2008 dismissed an application seeking review of that decision: SZFYW v Minister for Immigration &amp; Citizenship [2008] FMCA 813. 5 The Notice of Appeal sets forth five Grounds , which in summary form contend that the Federal Magistrates Court " erred in law ", those errors arising out of: (i) the inconsistent findings made by earlier decisions of the Tribunal in respect to the now Appellant's claims; (ii) an apprehension of bias arising out of the manner in which the Tribunal considered his claims; (iii) a failure on the part of the Tribunal to provide " clear particulars " of information and a failure to comply with s 424A(1) of the Migration Act 1958 (Cth); (iv) a failure on the part of the Tribunal to provide a " genuine opportunity " to be heard and a failure to comply with s 425 of the 1958 Act; and (v) a failure to " properly and fairly " consider the application for review. 6 The Appellant appeared before this Court this morning unrepresented, although he did have the benefit of an interpreter.
Case: SZHKA v Minister for Immigration &amp; Citizenship [2008] FCAFC 138
Outcome: followed
The earlier two Tribunals were differently constituted and each Tribunal recorded its decision based upon the findings each had made. A later Tribunal is not bound by findings made by an earlier Tribunal: SZHKA v Minister for Immigration &amp; Citizenship [2008] FCAFC 138. Gray J there observed: [18] ... The Tribunal must determine a review by dealing with the issues as they present themselves at the time of its determination, according to the facts as the Tribunal finds them to be at that time. For all sorts of reasons, the facts as they appear to the Tribunal member making the second decision may differ significantly from the facts as they appeared to the Tribunal member who made the earlier decision. ... [19] In the light of this practical problem, and the part that the reasoning processes of the Tribunal play in the ascertainment of what the issues are, there is a necessary fluidity of those issues until the particular Tribunal member is in the process of grappling with the case. In those circumstances, the Tribunal member cannot regard himself or herself as limited to dealing only with the facts and issues that were perceived by an earlier Tribunal member who has made a decision that has been set aside. The role of the Tribunal's reasoning processes also means that the problem cannot be solved simply by asking the applicant whether there are any new issues, or whether he or she wishes to provide any new information. The possibility that the Tribunal member will himself or herself perceive issues that have not been thought of previously cannot be disregarded. ... 20 The fourth Ground of Appeal goes on to provide that: ... With apprehensive bias mentioned above, the Tribunal failed to provide a genuine opportunity at the Tribunal's hearing; and thus the Tribunal has definitely failed to comply with its obligations under s.425 of the Act. The Ground as to an apprehension of bias has been rejected and there is no other reason why the same fate should not befall this Ground. As required by s 425(1), on 21 November 2007 a letter was forwarded to the now Appellant inviting him to attend the hearing before the Tribunal on 19 December 2007 and he did in fact attend on that date. This Ground too is rejected. The importance of s 425 is repeatedly acknowledged, including its importance in providing " a compulsory opportunity for an applicant to persuade the Tribunal face to face " with the person making the decision: SZHKA v Minister for Immigration &amp; Citizenship [2008] FCAFC 138 at [28] per Gyles J.
Case: SZIAT v Minister for Immigration &amp; Citizenship [2008] FCA 766
Outcome: followed
Neither the witness's evidence nor the letter constituted " information " for the purposes of s 424A of the 1958 Act: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [17] , [2007] HCA 26 ; 81 ALJR 1190. And, even if it did constitute " information ", the evidence and the letter fell within the exception in s 424A(3)(b), namely " information ... that the applicant gave for the purpose of the application ": cf SZIAT v Minister for Immigration &amp; Citizenship [2008] FCA 766 at [39] per Gordon J.
Case: MZWIK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 185
Outcome: cited
The appropriate course for the applicant to adopt would have been to apply to have the decision of O'Dwyer FM set aside pursuant to r 16.05(2), rather than appealing in this Court. It has been doubted, in any event, whether this Court can entertain an appeal from a decision to dismiss an application for want of appearance: see the judgments of Sundberg J in MZWIK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 185 (" MZWIK ") and VOAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1505. 12 Rather than proceeding under s 25(2B)(bb)(ii), I propose to adopt the course taken by Sundberg J in MZWIK , and consider whether there is sufficient merit in the appeal to justify the grant of leave. This seems preferable where the course the applicant should have taken is to make an application in the Federal Magistrates' Court under r 16.05(2). 13 I cannot see any basis for impugning O'Dwyer FM's decision. It is clear that his Honour has the power to dismiss an application for non-appearance of an applicant, and nothing in the notice of appeal evinces any irregularity in the exercise of that power. The applicant's non-appearance before O'Dwyer FM remains unexplained. In these circumstances, the appeal has no prospect of success. 14 Accordingly, I order that leave to appeal be refused, the notice of appeal dated 28 November 2005 be struck out as incompetent, and the applicant pay the respondents' costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Young. Associate: Dated: 9 March 2006 Counsel for the Applicant: No appearance Solicitor for the Respondents: Ms M. O'Regan from Clayton Utz Date of Hearing: 10 February 2006 Date of Judgment: 9 March 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/172.html
Case: VOAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1505
Outcome: cited
The appropriate course for the applicant to adopt would have been to apply to have the decision of O'Dwyer FM set aside pursuant to r 16.05(2), rather than appealing in this Court. It has been doubted, in any event, whether this Court can entertain an appeal from a decision to dismiss an application for want of appearance: see the judgments of Sundberg J in MZWIK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 185 (" MZWIK ") and VOAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1505.
Case: Re Investa Properties Ltd [2007] FCA 1104
Outcome: cited
I discussed no shop and no talk and break free provisions in Re APN News &amp; Media Ltd (2007) 62 ACSR 400 at [25] [55] and in Re Investa Properties Ltd [2007] FCA 1104 at [31] [35]. In the present case, Norman Alfred Seckold, the Chairman and a Director of Bolnisi, states as follows in his affidavit of 25 October 2007: 22. Clause 12 of the Merger Implementation Agreement between Bolnisi and Coeur ... is an exclusivity provision which provides that, during the exclusivity period, competing third party proposals are not to be sought and discussions or negotiations may not be entered into in relation to a third party proposal. Clause 12 also provides that if third party proposals are received by a party, that party must notify the other party at least 48 hours before the Board of Bolnisi or Coeur (as applicable) recommends acceptance to their shareholders. 23. Clause 13 of the Merger Implementation Agreement is a break fee provision that enables either Bolnisi or Coeur to compensate the other party a break fee of US$7.78 million within 10 days of a demand for payment if certain events occur. 24. Both clauses 12 and 13 of the Merger Implementation Agreement were agreed between Bolnisi and Coeur following arm's length commercial negotiations over a period of one month. Both parties were separately advised and represented in such negotiations by external legal advisers and by external financial advisers, with extensive experience of transactions of this kind. Bolnisi received legal advice from Minter Ellison on the operation of both provisions and that Bolnisi had regard to the Takeovers Panel Guidance Note 7 in the negotiations set out above. 25. I believe that the no shop, no talk and exclusivity provisions do not operate against the interests of Shareholders and it was in their interests that the board of Directors determined to include such provisions.
Case: Re NRMA Ltd [2000] NSWSC 82 ; (2000) 33 ACSR 595
Outcome: followed
It is envisaged that the Palmarejo Plan of Arrangement will become effective on the following day (6 December 2007) after this Court grants, if it does, its approval to the Scheme on 5 December 2007. In Re NRMA Ltd [2000] NSWSC 82 ; (2000) 33 ACSR 595, Santow J had to consider the position of a condition subsequent to which a scheme of arrangement was subject. Although it could not be known whether the condition subsequent would be satisfied until after the approval of the Court was granted, his Honour held that the presence of the condition subsequent was no obstacle to the Court's approval of the Scheme. 29 Santow J distinguished a condition subsequent that was clear, certain and self executing, from a provision for a variation of a scheme. His Honour stated (at 647): Clarity and certainty are thus the touchstones. Provided that clarity and certainty are present on the face of the scheme and no new decision making process intrudes after court approval, it does not matter that different results may emerge in different (but clearly identified) eventualities. A key question is whether the scheme is, according to its own terms, self-executing in the sense that certain results follow in certain defined events. 30 In my view, the present condition subsequent, that is to say, the Palmarejo Plan of Arrangement becoming effective under Canadian law, satisfies this test. I do not think that Santow J's reference to a "new decision making process" is apt to catch the Canadian decision making processes, extraneous to this Scheme, that will be involved in the Palmarejo Plan of Arrangement becoming effective. 31 Before the hearing, affidavits were filed stating the matters referred to in r 3.2 of the Federal Court (Corporations) Rules 2000 (Cth). Mr Seckold, and failing him, Peter James Nightingale, a Director and Company Secretary of Bolnisi, have consented to chair the Scheme meeting. 32 Counsel's submissions addressed other matters of detail on which I was also satisfied. I will have a copy of counsel's submissions placed on the Court file so that that will be available to be read by anyone interested.
Case: Re Solution 6 Holdings Ltd (2004) 50 ACSR 113
Outcome: cited
Bolnisi drew this matter to the attention of the Court so that the Court would be aware at the earliest stage that if it should ultimately approve the Scheme, Bolnisi proposes that the approval would be relied on by the United States Securities Exchange Commission for the purposes of s 3(a)(10) of the Securities Act 1933 (US). Approvals have been given at the second court hearing in similar circumstances in connection with a number of previous schemes: see the discussion by Jacobson J in Re Solution 6 Holdings Ltd (2004) 50 ACSR 113 at [37] [45], and the earlier authorities to which his Honour there referred.
Case: De Garis v Neville Jeffress Pidler Pty Ltd (1990) 18 IPR 292
Outcome: referred to
The cases to which the Magistrate referred in the last sentence are De Garis v Neville Jeffress Pidler Pty Ltd (1990) 18 IPR 292 at 302-303, Beck v Montana Constructions Pty Ltd [1964-5] NSWLR 229 at 235 and Pacific Software Technology Ltd v Perry Group Ltd [2004] 1 NZLR 164. Her Honour put the New Zealand case aside because it turned on legislation providing that a person who commissions the making of a computer program is the first owner of the copyright in the program ( Copyright Act 1994 (NZ) s 21).
Case: Beck v Montana Constructions Pty Ltd [1964-5] NSWLR 229
Outcome: considered
The cases to which the Magistrate referred in the last sentence are De Garis v Neville Jeffress Pidler Pty Ltd (1990) 18 IPR 292 at 302-303, Beck v Montana Constructions Pty Ltd [1964-5] NSWLR 229 at 235 and Pacific Software Technology Ltd v Perry Group Ltd [2004] 1 NZLR 164. Her Honour put the New Zealand case aside because it turned on legislation providing that a person who commissions the making of a computer program is the first owner of the copyright in the program ( Copyright Act 1994 (NZ) s 21). 63 The appellant relied heavily on the decision of Jacobs J in Beck v Montana Construction Pty Ltd [1964-5] NSWLR 229. That case concerned copyright architectural plans. The question was whether the owner of land who had paid for the plans to be used in the construction of houses on the land had an implied licence to use the plans. It was held that he did. Jacobs J said at 235: the engagement for reward of a person to produce material of a nature which is capable of being the subject of copyright implies a permission, or consent, or licence in the person giving the engagement to use the material in the manner and for the purpose in which and for which it was contemplated between the parties that it would be used at the time of the engagement. That of itself would not assist the appellant. It is common ground that the appellant is entitled to use the computer program without infringing copyright. 64 The appellant also relied on the observations of Kirby and Crennan JJ in Concrete Pty Ltd v Parramatta Design &amp; Developments Pty Ltd [2006] HCA 55 ; (2006) 229 CLR 577 at [59] and [69] to [73]. However, those passages go no further than to recognise, as in Beck , the existence of an implied right of a property owner or a successor in title to use architectural plans. It is true that at [60] their Honours referred to a line of patent cases where an implied licence to use and repair a patented item has been upheld as an implied licence that runs with the patented item itself. But they pointed out that the licence arises because of the rights conferred by letters patent to "make, use, exercise and vend" which can be reflected in the terms of a patent specification. Nothing in that case assists the appellant.
Case: Pacific Software Technology Ltd v Perry Group Ltd [2004] 1 NZLR 164
Outcome: cited
The cases to which the Magistrate referred in the last sentence are De Garis v Neville Jeffress Pidler Pty Ltd (1990) 18 IPR 292 at 302-303, Beck v Montana Constructions Pty Ltd [1964-5] NSWLR 229 at 235 and Pacific Software Technology Ltd v Perry Group Ltd [2004] 1 NZLR 164. Her Honour put the New Zealand case aside because it turned on legislation providing that a person who commissions the making of a computer program is the first owner of the copyright in the program ( Copyright Act 1994 (NZ) s 21).
Case: Computer Edge Pty Ltd v Apple Computer Inc [1986] HCA 19 ; (1986) 161 CLR 171
Outcome: referred to
An understanding of some basic concepts involved in the construction of a computer program assists in understanding the appellant's implied term argument. The following description of the general nature of a computer program is taken from the judgment of Gibbs CJ in Computer Edge Pty Ltd v Apple Computer Inc [1986] HCA 19 ; (1986) 161 CLR 171 at 178-179. A computer program is a set of instructions designed to cause a computer to perform a particular function or to produce a particular result. A program is usually developed in a number of stages. First, the sequence of operations the computer will be required to perform is commonly written out in ordinary language. Next a source program is prepared, usually in a source code which is human-readable. The source code cannot be used directly in the computer, and must first be converted into an object code, which is machine-readable. The program is executed by the computer's central processing unit. See Data Access Corporation v Powerflex Services Pty Ltd [1999] HCA 49 ; (1999) 202 CLR 1 at [4] .
Case: Data Access Corporation v Powerflex Services Pty Ltd [1999] HCA 49 ; (1999) 202 CLR 1
Outcome: referred to
An understanding of some basic concepts involved in the construction of a computer program assists in understanding the appellant's implied term argument. The following description of the general nature of a computer program is taken from the judgment of Gibbs CJ in Computer Edge Pty Ltd v Apple Computer Inc [1986] HCA 19 ; (1986) 161 CLR 171 at 178-179. A computer program is a set of instructions designed to cause a computer to perform a particular function or to produce a particular result. A program is usually developed in a number of stages. First, the sequence of operations the computer will be required to perform is commonly written out in ordinary language. Next a source program is prepared, usually in a source code which is human-readable. The source code cannot be used directly in the computer, and must first be converted into an object code, which is machine-readable. The program is executed by the computer's central processing unit. See Data Access Corporation v Powerflex Services Pty Ltd [1999] HCA 49 ; (1999) 202 CLR 1 at [4] .
Case: Codelfa Constructions Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337
Outcome: applied
In Codelfa Constructions Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 at 345-346 Mason J adverted to the difference between these two categories of implied terms: Of course, I am speaking of an implied term necessary to give business efficacy to a particular contract, not of the implied term which is a legal incident of a particular class of contract, of which Liverpool City Council v. Irwin [1976] UKHL 1 ; [1977] AC 239 is an example. The difference between the two categories of implied term was mentioned by Viscount Simonds in Lister v. Romford Ice and Cold Storage Co Ltd [1956] UKHL 6 ; [1957] AC 555 at 576, where he referred to the search for the second category of implied term as being based 'upon more general considerations', a comment endorsed by Lord Wilberforce in Irwin at 255.
Case: Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1986] AC 80
Outcome: cited
The "necessity" test was adopted by the Privy Council in Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1986] AC 80 at 104-105. The Board referred to Lord Salmon's explication of "necessity" in Liverpool --that the term sought to be implied must be one without which the whole transaction would become "inefficacious, futile and absurd".
Case: Byrne v Australian Airlines Ltd [1995] HCA 24 ; (1995) 185 CLR 410
Outcome: applied
The implication of terms "independent of intention" was considered in some detail in the judgment of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd [1995] HCA 24 ; (1995) 185 CLR 410 ( Byrne ). At 447-448 their Honours said: What, then, is involved in the proposition that a contractual term is implied as a matter of law rather than as the assumed intention of the parties? There is at least one basic distinction. It is that ... terms implied by the application of what one might call the business efficacy test are terms unique to the particular contract in question, depending upon the form of the contract, the express terms and the surrounding circumstances. By contrast, terms implied by law are, in general, implied in all contracts of a particular class or which answer a given description. 49 Later at 450 their Honours said: Many of the terms now said to be implied by law in various categories of case reflect the concern of the courts that, unless such a term be implied, the enjoyment of the rights conferred by the contract would or could be rendered nugatory, worthless, or, perhaps, be seriously undermined. Hence, the reference in the decisions to "necessity". This notion of "necessity" has been crucial in the modern cases in which the courts have implied for the first time a new term as a matter of law. 66 In Byrne at 422 Brennan CJ, Dawson and Toohey JJ approved the following passage from the reasons of Deane J in Hawkins v Clayton [1988] HCA 15 ; (1988) 164 CLR 539 at 573: The most that can be said consistently with the need for some degree of flexibility is that, in a case where it is apparent that the parties have not attempted to spell out the full terms of their contract, a court should imply a term by reference to the imputed intention of the parties if, but only if, it can be seen that the implication of the particular term is necessary for the reasonable or effective operation of a contract of that nature in the circumstances of the case. 67 No term such as that sought by the appellant can be supported on the business efficacy basis. The existence of ss 47D and 47E show that the implication of the term is not necessary for the reasonable or effective operation of the particular contract in the circumstances of the case. 68 As part of its implied term case the appellant submitted that regardless of whether the respondent was its employee or an independent contractor, the purchase of a computer program includes, ipso facto, the source code. This was said to be so because of what counsel described as the "definition of " a computer program in s 21(5) of the Act: For the purposes of this Act, a computer program is taken to have been reproduced if: (a) an object code version of the program is derived from the program in source code by any process including compilation; or (b) a source code version of the program is derived from the program in object code by any process, including decompilation; and any such version is taken to be a reproduction of the program.