mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 
Outcome: cited
grounds of appeal were dismissed by his Honour as attempts to propound factual errors and attempts 'to seek review of the Tribunal's decision on the merits' , and as being in conflict with the principle that there is no general obligation on a Tribunal to make enquiries, citing thereby Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at [43] (Gummow and Hayne JJ). Moreover his Honour pointed to the absence of any 'exceptional circumstances which would serve to require the Tribunal to make... enquiries... nor [are there] any such circumstances evident on the material before [the Tribunal], referring thereby to the well known observation of Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170. His Honour emphasised moreover the principle that the Tribunal is not obliged to accept an applicant's claims uncritically, citing Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 (Beaumont J). Ultimately of course, a conclusion that an applicant's claims lack credibility is one falling to be made by the Tribunal, his Honour referring generally to the often cited authority of Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407.
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 
Outcome: cited
grounds of appeal were dismissed by his Honour as attempts to propound factual errors and attempts 'to seek review of the Tribunal's decision on the merits' , and as being in conflict with the principle that there is no general obligation on a Tribunal to make enquiries, citing thereby Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at [43] (Gummow and Hayne JJ). Moreover his Honour pointed to the absence of any 'exceptional circumstances which would serve to require the Tribunal to make... enquiries... nor [are there] any such circumstances evident on the material before [the Tribunal], referring thereby to the well known observation of Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170. His Honour emphasised moreover the principle that the Tribunal is not obliged to accept an applicant's claims uncritically, citing Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 (Beaumont J). Ultimately of course, a conclusion that an applicant's claims lack credibility is one falling to be made by the Tribunal, his Honour referring generally to the often cited authority of Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407.
Case: NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 
Outcome: referred to
J observed at [37] in NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 , that 'information from the protection visa application which an applicant for review expressly adopts and puts forward as part of his or her application for review by the [Tribunal] falls within the exception in s 424A(3)(b) ' , and in order for such information to fall within that exception 'it must be put forward in chief, the assumption being that by doing so the applicant is aware of the significance of the information'. That dictum of Jacobson J was subsequently followed by a Full Federal Court in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at [20] , [157] and [219] (Moore, Weinberg and Allsop JJ respectively). The Minister submitted in respect to the dictum of Jacobson J in NAZY that 'the facts and circumstances of each case should be the determining factor as to whether there has been an adoption or republication by the applicant in their application for review of the contents of their application for a protection visa', and further that the 'facts and circumstances' outlined at [18] 'indicate that the appellants adopted... [the] claims made in their application for protection visa in their application for review'. I do not find force in that submission by the Minister, as the combination of those 'facts and circumstances' relied upon by the Minister do not demonstrate, in accordance with NAZY , that the appellant adopted his protection visa application for the purposes of his application for review. As a consequence it appears the Tribunal did breach s 424A(1) by relying upon information contained in the appellant's protection visa application, and by not providing particulars of that information to the appellant.
Case: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214
Outcome: applied
J observed at [37] in NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 , that 'information from the protection visa application which an applicant for review expressly adopts and puts forward as part of his or her application for review by the [Tribunal] falls within the exception in s 424A(3)(b) ' , and in order for such information to fall within that exception 'it must be put forward in chief, the assumption being that by doing so the applicant is aware of the significance of the information'. That dictum of Jacobson J was subsequently followed by a Full Federal Court in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at [20] , [157] and [219] (Moore, Weinberg and Allsop JJ respectively). However, I do find force in the Minister's further case on the appeal that the Tribunal's finding in respect to relocation was a separate and independent basis upon which the Tribunal affirmed the decision under review. The Tribunal member's use of the words 'in any case', prior to her finding on relocation, demonstrates that it was a separate and independent ground. The existence of such an independent ground is sufficient basis for the withholding of relief: see SZEEU at [233] (Allsop J). Accordingly the appeal must be dismissed with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: 20 October 2006 The Appellant appeared in person Counsel for the Respondent: Mr J Mitchell Solicitor for the Respondent: Clayton Utz Date of Hearing: 28 July and 31 August 2006 Date of Judgment: 20 October 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1374.html
Case: Goldie v Commonwealth of Australia [2002] FCA 261
Outcome: referred to
Sections 147 and 148 are "enacted in the public interest in the administration of justice" and "are, on the face of it, not intended to create any rights or privileges on the part of the unlawful non-citizen": Goldie v Commonwealth of Australia [2002] FCA 261 at [36] per French J. Similar observations are applicable to s 151 in my view, and see, to a similar effect, In the matter of an application by Solomon Barudea for a warrant under s 151(1) of the Migration Act 1958 (Cth) [1995] VSC 55 at [22] .
Case: In the matter of an application by Solomon Barudea for a warrant under s 151(1) of the Migration Act 1958 (Cth) [1995] VSC 55
Outcome: referred to
Sections 147 and 148 are "enacted in the public interest in the administration of justice" and "are, on the face of it, not intended to create any rights or privileges on the part of the unlawful non-citizen": Goldie v Commonwealth of Australia [2002] FCA 261 at [36] per French J. Similar observations are applicable to s 151 in my view, and see, to a similar effect, In the matter of an application by Solomon Barudea for a warrant under s 151(1) of the Migration Act 1958 (Cth) [1995] VSC 55 at [22] .
Case: Webster v Lampard [1993] HCA 57 ; (1993) 177 CLR 598
Outcome: applied
The applicants submit the principles in Webster v Lampard [1993] HCA 57 ; (1993) 177 CLR 598 ('Webster') apply to this application. The applicants rely upon the following observations of Mason CJ and Deane and Dawson JJ in Webster at 602: '...the issue before the learned Master on the application for summary judgment was not whether [the plaintiffs] would probably succeed in their action against [the defendant] . It was whether the material before the Master demonstrated that the action should not be permitted to go trial in the ordinary way because it was apparent that it must fail.' 9 Their Honours continued at 602: 'The power to order summary judgment must be exercised with "exceptional caution" ( General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) [1964] HCA 69 ; (1964), 112 C.L.R. 125, at p. 129) and "should never be exercised unless it is clear that there is no real question to be tried" ( Fancourt v. Mercantile Credits Ltd. [1983] HCA 25 ; (1983), 154 C.L.R. 87, at p. 99).' 10 I accept that the observations in Webster , referred to above, apply to the disposition of this application.
Case: Janssen-Gilag Pty Limited v Pfizer Pty Limited (1992) 37 FCR 526
Outcome: cited
Further, the applicants submit that, in accordance with the principles in the case of Janssen-Gilag Pty Limited v Pfizer Pty Limited (1992) 37 FCR 526 ('Janssen') , it is not necessary for an applicant to show that the misleading and deceptive conduct was made to him or her or that he or she relied on the misleading and deceptive conduct for that applicant to seek relief under the TP Act. It is sufficient if the misleading and deceptive conduct is relied upon by someone other than the applicant, provided that the loss suffered by the applicant was causally linked to that conduct. It was submitted that, in this case, there was arguably a sufficient link between the alleged misleading and deceptive conduct of the fifth respondent and the alleged loss of the funds, to permit the applicants to make the claims based thereon. 12 I now turn to the contents of the witness statements of the applicants. I deal firstly with the father, the first named applicant. He says, at par 9 of his witness statement, that: 'In about mid 1998 John telephoned me and we had a conversation as follows: He said: "I have found a good investment. It is an investment in farming ostriches in Perth. I want to use your name for the investment. It's going to be a surprise for your nephews and nieces." I said: "OK. Have you seen the farm? You should make sure the farm is real." John said: "Yes, I will go to see the farm." ' 13 At par 10 of the witness statement, the first named applicant deposed that: 'Two or three months after that conversation I had a further discussion with John on the telephone during which John said: "I have been to the farm. The farm is very big. There are lots of ostriches in paddocks. There are many paddocks. I met one of the directors of the company. He says this is a very good investment".' 22 I also accept the submissions of the applicants that it is also arguable that this is a case where the principles which are espoused in the Janssen case could be applicable. Thus, even if there were no passing on of the representations to the applicants, it is, at least, arguable that the applicants, as trustees, would be able to recover funds that had been invested as a consequence of the son, as settlor of trust funds, being misled. 23 It follows that I do not accept the submissions of the third respondent that there is no reasonable cause of action disclosed in relation to the applicants' claims for misleading and deceptive conduct, under the TP Act and the Corporations Law. 24 In addition, counsel for the third respondent submitted that there were defects in the claim which was brought under the insolvent trading provisions of the Corporations Law which were so serious that the matter should be summarily dismissed.
Case: Re Bramblevale Ltd [1970] 1 CH 128
Outcome: followed
This view was applied by the English Court of Appeal in Re Bramblevale Ltd [1970] 1 Ch 128. In that case, the managing director of a company had been ordered to produce the company's books to its liquidator. At first instance, he had been found guilty of contempt of court on the basis that he was shown to have had the books in his possession on a particular date, so that it could be presumed that he still had them in his possession more than a year later. The Court of Appeal overturned the finding, holding that the managing director could not be found guilty of contempt of court unless it were proved beyond reasonable doubt that he still had the books in his possession after the order had been made. Bramblevale was cited in Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 529 530 per Brennan, Deane, Toohey and Gaudron JJ. In Witham , the question was whether the appropriate standard of proof was beyond reasonable doubt or the balance of probabilities. The case itself did not involve any issue of capacity or ability to obey the order. Nonetheless, no reservation was expressed in the citation of Bramblevale , on the basis that any onus could lie upon the alleged contemnor on any issue. See also Chelvarajah v Global Protection Pty Ltd [2004] FCA 1661 (2004) 142 FCR 296 at [61] [68].
Case: Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525
Outcome: cited
This view was applied by the English Court of Appeal in Re Bramblevale Ltd [1970] 1 Ch 128. In that case, the managing director of a company had been ordered to produce the company's books to its liquidator. At first instance, he had been found guilty of contempt of court on the basis that he was shown to have had the books in his possession on a particular date, so that it could be presumed that he still had them in his possession more than a year later. The Court of Appeal overturned the finding, holding that the managing director could not be found guilty of contempt of court unless it were proved beyond reasonable doubt that he still had the books in his possession after the order had been made. Bramblevale was cited in Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 529 530 per Brennan, Deane, Toohey and Gaudron JJ. In Witham , the question was whether the appropriate standard of proof was beyond reasonable doubt or the balance of probabilities. The case itself did not involve any issue of capacity or ability to obey the order. Nonetheless, no reservation was expressed in the citation of Bramblevale , on the basis that any onus could lie upon the alleged contemnor on any issue. See also Chelvarajah v Global Protection Pty Ltd [2004] FCA 1661 (2004) 142 FCR 296 at [61] [68].
Case: Chelvarajah v Global Protection Pty Ltd [2004] FCA 1661 (2004) 142 FCR 296
Outcome: cited
This view was applied by the English Court of Appeal in Re Bramblevale Ltd [1970] 1 Ch 128. In that case, the managing director of a company had been ordered to produce the company's books to its liquidator. At first instance, he had been found guilty of contempt of court on the basis that he was shown to have had the books in his possession on a particular date, so that it could be presumed that he still had them in his possession more than a year later. The Court of Appeal overturned the finding, holding that the managing director could not be found guilty of contempt of court unless it were proved beyond reasonable doubt that he still had the books in his possession after the order had been made. Bramblevale was cited in Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 529 530 per Brennan, Deane, Toohey and Gaudron JJ. In Witham , the question was whether the appropriate standard of proof was beyond reasonable doubt or the balance of probabilities. The case itself did not involve any issue of capacity or ability to obey the order. Nonetheless, no reservation was expressed in the citation of Bramblevale , on the basis that any onus could lie upon the alleged contemnor on any issue. See also Chelvarajah v Global Protection Pty Ltd [2004] FCA 1661 (2004) 142 FCR 296 at [61] [68].
Case: Viner v Australian Building Construction Employees' and Builders Labourers' Federation (No 3) (1982) 63 FLR 242
Outcome: cited
The power of the English courts to punish for contempt of court at the date of commencement of the Judiciary Act was clearly limited to the power to fine or the power to imprison or, in the case of a corporation, to order sequestration of the assets of the corporation. Rule 11.04.1(a) of the High Court Rules 2004 (Cth) presently provides that, in the case of a natural person, the order may be 'that the contemnor pay a fine, be committed to prison, or both pay a fine and be committed to prison'. In Siminton at [74], the Full Court relied upon r 11.04 of the High Court Rules as removing any doubt as to whether this Court could impose a fine for contempt of court, and as making it clear that both a fine and committal to prison were available penalties. Given that it is possible to include in the one order both a fine and a term of imprisonment, there appears to be no sound reason why the two powers should not be exercised by imposing a fine, with a term of imprisonment in default of payment of the fine, or part of the fine, in order to enforce the payment. In Viner v Australian Building Construction Employees' and Builders Labourers' Federation (No 3) (1982) 63 FLR 242, Keely J made such an order. The order was set aside by the Full Court in Australian Building Construction Employees' and Builders Labourers' Federation v Viner (1982) 63 FLR 253, but not on the ground that it was beyond power. In Australian Industrial Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Australia &amp; Ors [2001] FCA 774 (2001) 188 ALR 653 at [17] Merkel J suggested that, as a matter of practice in an order fining a contemnor, the Court ought always to make provision for enforcement of that order, in the event that the fine is not paid. His Honour suggested that, in most cases, it would be sufficient for the order to provide that, in default of payment, the district registrar must apply to the Court for directions concerning the enforcement of the order. If that were done, there seems little doubt that the Court would have power to impose a sentence of imprisonment upon the application for directions for enforcement. If that be the case, there seems to be no reason why the Court could not impose a sentence of imprisonment in default of payment of the fine, or part of the fine, in the first place. I am not to be taken as suggesting that the Court ought to do this in every case. There will undoubtedly be many cases in which the Court takes the view that a contempt is insufficiently serious to warrant imprisonment, and that the contemnor's means are such that other enforcement methods will be sufficient to enable the fine to be collected, if it is not paid in accordance with the order. I am satisfied, however, that a sentence of imprisonment in default of payment of a fine, or part of a fine, is a course within the powers of this Court.
Case: Australian Industrial Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Australia &amp; Ors [2001] FCA 774 (2001) 188 ALR 653
Outcome: cited
The power of the English courts to punish for contempt of court at the date of commencement of the Judiciary Act was clearly limited to the power to fine or the power to imprison or, in the case of a corporation, to order sequestration of the assets of the corporation. Rule 11.04.1(a) of the High Court Rules 2004 (Cth) presently provides that, in the case of a natural person, the order may be 'that the contemnor pay a fine, be committed to prison, or both pay a fine and be committed to prison'. In Siminton at [74], the Full Court relied upon r 11.04 of the High Court Rules as removing any doubt as to whether this Court could impose a fine for contempt of court, and as making it clear that both a fine and committal to prison were available penalties. Given that it is possible to include in the one order both a fine and a term of imprisonment, there appears to be no sound reason why the two powers should not be exercised by imposing a fine, with a term of imprisonment in default of payment of the fine, or part of the fine, in order to enforce the payment. In Viner v Australian Building Construction Employees' and Builders Labourers' Federation (No 3) (1982) 63 FLR 242, Keely J made such an order. The order was set aside by the Full Court in Australian Building Construction Employees' and Builders Labourers' Federation v Viner (1982) 63 FLR 253, but not on the ground that it was beyond power. In Australian Industrial Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Australia &amp; Ors [2001] FCA 774 (2001) 188 ALR 653 at [17] Merkel J suggested that, as a matter of practice in an order fining a contemnor, the Court ought always to make provision for enforcement of that order, in the event that the fine is not paid. His Honour suggested that, in most cases, it would be sufficient for the order to provide that, in default of payment, the district registrar must apply to the Court for directions concerning the enforcement of the order. If that were done, there seems little doubt that the Court would have power to impose a sentence of imprisonment upon the application for directions for enforcement. If that be the case, there seems to be no reason why the Court could not impose a sentence of imprisonment in default of payment of the fine, or part of the fine, in the first place. I am not to be taken as suggesting that the Court ought to do this in every case. There will undoubtedly be many cases in which the Court takes the view that a contempt is insufficiently serious to warrant imprisonment, and that the contemnor's means are such that other enforcement methods will be sufficient to enable the fine to be collected, if it is not paid in accordance with the order. I am satisfied, however, that a sentence of imprisonment in default of payment of a fine, or part of a fine, is a course within the powers of this Court.
Case: Re Colina; Ex parte Torney [1999] HCA 57 (1999) 200 CLR 386
Outcome: followed
In Re Colina; Ex parte Torney [1999] HCA 57 (1999) 200 CLR 386, the High Court dealt with the question whether a person charged with contempt of the Family Court of Australia by scandalising the court was required to be tried by jury under s 80 of the Constitution . By majority, the High Court held that, for the purposes of s 35 of the Family Law Act 1975 (Cth) (the Family Court's equivalent provision to s 31 of the Federal Court Act), contempt of court did not fall within the phrase 'any offence against any law of the Commonwealth' in s 80 of the Constitution . See Colina at [16] [25] per Gleeson CJ and Gummow J and [108] [113] per Hayne J. McHugh J at [35] [50] and Kirby J at [70] [81] expressed the contrary view. The judgment of Callinan J, especially at [119] [136], focused more upon the words 'trial on indictment' in s 80 of the Constitution . It therefore appears that the majority view is that contempt of a court created by Parliament under Ch III of the Constitution is not an offence against any law of the Commonwealth, for the purposes of s 80 of the Constitution . If that be the case, then it is likely to follow that contempt of such a court does not fall within the meaning of the phrase 'an offence against the law of the Commonwealth', despite the use of the definite article in that phrase, as against the indefinite article in s 80 of the Constitution .