mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Luck [2003] HCA 70 ; (2003) 203 ALR 1
Outcome: followed
An order striking proceedings out or dismissing proceedings on the basis that the proceedings are frivolous or vexatious or an abuse of the process of the court or do not disclose a reasonable cause of action is an interlocutory order: Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 at 3-4 [6] - [10] per McHugh ACJ, Gummow and Heydon JJ. Accordingly, having regard to his Honour's decision and his invoking of power under O 20 r 5, the proceedings were interlocutory. 17 The power of the Court to make a rule, such as O 20 r 5, is incontestable in any event. The court has an implied or inherent power to protect its own processes from abuse and his Honour's order could be equally supported by use of those powers, as Re Luck [2003] HCA 70 ; 203 ALR 1 shows. Rules such as O 20 r 5 have been a part of the armoury of courts to protect themselves from vexatious and abusive claims for well over a century. There is no basis on which it could be suggested that O 20 r 5 is not a valid rule of the Court.
Case: Rivera v Minister Administering the Extradition Act 1988 (Cth) [2007] FCAFC 191 ; (2007) 164 FCR 116
Outcome: cited
They cited Lord Diplock's famous remarks in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536; see also Rivera v Minister Administering the Extradition Act 1988 (Cth) [2007] FCAFC 191 ; (2007) 164 FCR 116 at 119-120 [16] - [18] per myself and [23] per Flick J who agreed with my reasons on this point.
Case: SZAPG v Minister of Immigration and Citizenship [2007] FCA 372
Outcome: cited
In such a case the principles upon which the Court proceeds are well settled. An application for an extension of time in which to lodge an appeal is governed by considerations discussed in Jackamarra v Krakouer [1998] HCA 27 ; (1988) 195 CLR 516 ; Jess v Scott (1986) 12 FCR 187: see also SZAPG v Minister of Immigration and Citizenship [2007] FCA 372 at [7] - [8] per myself. In essence the court seeks an outline of the merits of the case sought to be brought out of time. If it appears to be a case that is strong on the merits and which ought to be heard in fairness to the parties and the court thinks it proper that it ought to be allowed to proceed, time is usually extended. However, if it appears to be a flimsy case, weak on the merits, the Court will not extend time. The Court does not go into detail on the merits but likes to know something about it. That was the approach taken by Lord Denning MR in R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091 which was approved in Jackamarra 195 CLR at 519-520 [3]-[4] by Brennan CJ and McHugh J and similarly at 540-541 [66] par 4 by Kirby J.
Case: Walton v Gardiner [1993] HCA 77 ; (1993) 177 CLR 378 
Outcome: followed
Instead he sought to use the processes of this Court to circumvent Lloyd-Jones FM's orders in a way which would only bring the administration of justice into disrepute among right-thinking people were it allowed to succeed. In Walton v Gardiner [1993] HCA 77 ; (1993) 177 CLR 378 at 392-393 Mason CJ, Deane and Dawson JJ said: "[P]roceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. The jurisdiction of a superior court at such a case was correctly described ... as 'the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.'" (footnotes omitted)
Case: Iyer v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 929 (FC)
Outcome: cited
The serious consequences that may attend a wrongful refusal of a protection visa may be taken into account in determining whether it is expedient in the interests of justice for leave to be granted in a case of this kind. However, the authorities reveal that leave is less likely to be granted where the appellant has been legally represented at all times ( Wimalaratne v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 1737 (FC); Iyer v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 929 (FC)).
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
The reasons for decision of the Tribunal should not be scrutinised over-zealously ( Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ at 272). It is not entirely clear what the Tribunal meant by the expression 'Serbian forces' . However, when the reasons for decision of the Tribunal are read as a whole, I do not consider that they suggest that the Tribunal misunderstood the independent evidence to which it referred. The Tribunal rightly looked to that evidence to see what light, if any, it threw on the question of whether the appellant had a real chance of being harmed by Serbian authorities should he return to his country of nationality. I think it likely that the Tribunal intended to convey that the exclusively Serbian military forces which the appellant feared were no longer responsible for maintaining order in Preshevo; for that reason the appellant would be able to look to the multi-ethnic police force for protection. This view of the situation in Preshevo finds support in the independent evidence to which the Tribunal referred. 24 The independent evidence to which the Tribunal referred was fairly characterised by it as revealing that the situation in Preshevo has changed and that ethnic Albanians are no longer oppressed by Serbians. For example, the primary decision-maker noted that the Department of Foreign Affairs and Trade had advised: '... the FRY Government has endeavoured to redress Albanian grievances in Presevo. Albanians are included in administrative and political structures including in a new multi-ethnic police force. Municipal elections in July 2002 returned Albanian mayors in two out of three municipalities. There is considerable international presence in Presevo, which keeps the actions of the authorities under scrutiny. In short, there is no reason for Albanians from Presevo to fear returning unless, of course, they have committed some genuine criminal offence.' 25 I conclude that this proposed ground of appeal has limited prospects of success.
Case: NAJT v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51
Outcome: cited
An appellant requires the appellate court's leave to rely on arguments not advanced before the court below. That leave will only be granted where it is expedient in the interests of justice for the leave to be granted ( NAJT v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 esp at [163]-[166]). In NAJT at [166] Madgwick J identified the relevant questions as including the following: '1) Do the new legal arguments have a reasonable prospect of success? 2) Is there an acceptable explanation of why they were not raised below? 3) How much dislocation to the Court and efficient use of judicial sitting time is really involved? 4) What is at stake in the case for the appellant? 5) Will the resolution of the issues raised have any importance beyond the case at hand? 6) Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent? 7) If so, can it be justly and practicably cured? 8) If not, where, in all the circumstances, do the interests of justice lie?'
Case: Wimalaratne v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 1737 (FC)
Outcome: cited
The serious consequences that may attend a wrongful refusal of a protection visa may be taken into account in determining whether it is expedient in the interests of justice for leave to be granted in a case of this kind. However, the authorities reveal that leave is less likely to be granted where the appellant has been legally represented at all times ( Wimalaratne v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 1737 (FC); Iyer v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 929 (FC)).
Case: Finance Section Union v Commonwealth Bank of Australia [2005] FCA 1847
Outcome: followed
There is no reason why the penalty should not be paid to the Union; see Finance Section Union v Commonwealth Bank of Australia [2005] FCA 1847 at [71] , per Merkel J and s 356(b) of the Act. 17 The Union does not currently press for an order for the payment of compensation to Mr Williams. Counsel for the Union informed the Court that ACI has, since 18 November 2005, agreed to make adjustments necessary to ensure Mr Williams' financial position is restored. However, counsel noted that the agreement between the parties had not been fully implemented and submitted that the Court should defer consideration of compensation to allow the agreement to be implemented. 18 It is preferable to allow sufficient time to elapse to permit the parties' agreement to take effect. I will place the onus on the Union to re-agitate this issue within 28 days of these reasons for judgment, failing which there will be no order made under s 298U(c) concerning compensation and the file will be closed. Should the Union wish to re-agitate this issue the Court will convene a directions hearing at 10.15 am on 14 March 2005 to deal with that aspect of this proceeding. Orders 1. Pursuant to s 298U(a)(i) of the Workplace Relations Act 1996 (Cth) a penalty of $16,500 be imposed on the respondent for its contravention of s 298K(1)(a) of the Act for the prohibited reason referred to in s 298L(1)(a) of the Act. 2. Pursuant to s 356(b) of the Act the penalty be paid to the applicant. 3. The applicant have liberty to apply to the Court within 28 days of the date of this order, for an order requiring the respondent to pay to Mr Colin Williams an amount by way of compensation as the Court thinks appropriate. 4. In the event of liberty to apply under Order 3 not being availed of in the time permitted, the Court will make no order for compensation. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 16 January 2006 Counsel for the Applicant: Dr C Jessup QC with Mr S Moore Solicitor for the Applicant: CEPU Counsel for the Respondent: Mr F Parry SC with Mr C O'Grady Solicitor for the Respondent: Clayton Utz Completion of written submissions: 9 December 2005 Date of Judgment: 16 January 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/7.html
Case: Construction, Forestry, Mining &amp; Energy Union v Coal &amp; Allied Operations Pty Ltd (No 2) (1999) 94 IR 231
Outcome: followed
I now turn to the other factors relevant to the question of penalty as discussed by Branson J in Construction, Forestry, Mining &amp; Energy Union v Coal &amp; Allied Operations Pty Ltd (No 2) (1999) 94 IR 231, as foreshadowed at [79] in the previous judgment. 11 There is no evidence that ACI has previously contravened Pt XA of the Act, or any predecessor provision. That is a mitigating factor. 12 Given that Mr Williams has been reinstated and that ACI has been admonished for its conduct in the 18 November 2005 judgment, there are no continuing consequences in respect of ACI's conduct.
Case: Abebe v Commonwealth [1999] HCA 14 , 197 CLR 510
Outcome: followed
The findings of fact made by the Tribunal were findings open to it given the account of the evidence and claims previously set forth in its reasons. Parliament has determined that ordinarily the Tribunal is to be the final arbiter of the merits of an application, and not the Federal Magistrates Court or this Court: Kopalapillai v Minister for Immigration &amp; Multicultural Affairs [1998] FCA 1126 ; (1998) 86 FCR 547 at 558. No jurisdictional error is exposed in the reasons for decision of the Tribunal. Even a wrong finding of fact alone does not constitute an error of law: Abebe v Commonwealth [1999] HCA 14 at [137] , [2004] HCA 32 ; 197 CLR 510 at 560 per Gummow and Hayne JJ.
Case: Amankwah v Minister for Immigration &amp; Multicultural Affairs [1999] FCA 1162 ; (1999) 91 FCR 248
Outcome: followed
In those circumstances, it is not possible to conclude that the now Appellant husband, when he attended the Tribunal hearing, was deprived of the opportunity to make submissions as set forth in s 425(1) of the Migration Act 1958 (Cth). That section provides as follows: Tribunal must invite applicant to appear (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. ... This right to a hearing is " clearly an important and central right " in the review system established by Part 7 of the Migration Act : Liu v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 1362 at [44] , [2001] FCA 1362 ; 113 FCR 541 at 552; Amankwah v Minister for Immigration &amp; Multicultural Affairs [1999] FCA 1162 at [13] , [1999] FCA 1162 ; 91 FCR 248 at 251. The invitation to attend an oral hearing " must not be a hollow shell or an empty gesture ": Mazhar v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 1759 at [31] , [2000] FCA 1759 ; 183 ALR 188 at 194 5. The obligation imposed upon the Tribunal is an obligation to give a " real and meaningful invitation to comment ": SZJBA v Minister for Immigration &amp; Citizenship [2007] FCA 1592 at [53] , [2007] FCA 1592 ; 164 FCR 14 at 27 8 per Allsop J.
Case: Kopalapillai v Minister for Immigration &amp; Multicultural Affairs [1998] FCA 1126 ; (1998) 86 FCR 547
Outcome: followed
The findings of fact made by the Tribunal were findings open to it given the account of the evidence and claims previously set forth in its reasons. Parliament has determined that ordinarily the Tribunal is to be the final arbiter of the merits of an application, and not the Federal Magistrates Court or this Court: Kopalapillai v Minister for Immigration &amp; Multicultural Affairs [1998] FCA 1126 ; (1998) 86 FCR 547 at 558. No jurisdictional error is exposed in the reasons for decision of the Tribunal. Even a wrong finding of fact alone does not constitute an error of law: Abebe v Commonwealth [1999] HCA 14 at [137] , [2004] HCA 32 ; 197 CLR 510 at 560 per Gummow and Hayne JJ.
Case: Liu v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 1362 ; (2001) 113 FCR 541
Outcome: followed
In those circumstances, it is not possible to conclude that the now Appellant husband, when he attended the Tribunal hearing, was deprived of the opportunity to make submissions as set forth in s 425(1) of the Migration Act 1958 (Cth). That section provides as follows: Tribunal must invite applicant to appear (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. ... This right to a hearing is " clearly an important and central right " in the review system established by Part 7 of the Migration Act : Liu v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 1362 at [44] , [2001] FCA 1362 ; 113 FCR 541 at 552; Amankwah v Minister for Immigration &amp; Multicultural Affairs [1999] FCA 1162 at [13] , [1999] FCA 1162 ; 91 FCR 248 at 251. The invitation to attend an oral hearing " must not be a hollow shell or an empty gesture ": Mazhar v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 1759 at [31] , [2000] FCA 1759 ; 183 ALR 188 at 194 5. The obligation imposed upon the Tribunal is an obligation to give a " real and meaningful invitation to comment ": SZJBA v Minister for Immigration &amp; Citizenship [2007] FCA 1592 at [53] , [2007] FCA 1592 ; 164 FCR 14 at 27 8 per Allsop J.
Case: Mazhar v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 1759 ; (2000) 183 ALR 188
Outcome: followed
In those circumstances, it is not possible to conclude that the now Appellant husband, when he attended the Tribunal hearing, was deprived of the opportunity to make submissions as set forth in s 425(1) of the Migration Act 1958 (Cth). That section provides as follows: Tribunal must invite applicant to appear (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. ... This right to a hearing is " clearly an important and central right " in the review system established by Part 7 of the Migration Act : Liu v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 1362 at [44] , [2001] FCA 1362 ; 113 FCR 541 at 552; Amankwah v Minister for Immigration &amp; Multicultural Affairs [1999] FCA 1162 at [13] , [1999] FCA 1162 ; 91 FCR 248 at 251. The invitation to attend an oral hearing " must not be a hollow shell or an empty gesture ": Mazhar v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 1759 at [31] , [2000] FCA 1759 ; 183 ALR 188 at 194 5. The obligation imposed upon the Tribunal is an obligation to give a " real and meaningful invitation to comment ": SZJBA v Minister for Immigration &amp; Citizenship [2007] FCA 1592 at [53] , [2007] FCA 1592 ; 164 FCR 14 at 27 8 per Allsop J.
Case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: considered
The Appellants' complaint is properly characterised as dissatisfaction with the findings made by the Tribunal. Nowhere is this more apparent than in the " particulars " provided, which asserted in part: (4) [The Tribunal failed] to accept the fact that the Applicant tried to relocate to another part of India but failed to lead a life without the fear of persecution. (5) ... the Tribunal failed to accept the fact that the Applicant would face serious harm if he returns back to India even after he was ordered to leave the country by the above criminal elements. The task of accepting or rejecting evidence, and weighing such evidence that is available, is a task entrusted by the legislature to the Tribunal alone -- it is not a task that can be undertaken by either the Federal Magistrates Court or this Court on appeal: cf Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 41 per Mason J. 14 Nor is there any substance in the contention that the Tribunal erred by not offering another date for hearing. Before the Federal Magistrates Court, and before this Court, there was a copy of the transcript of the Tribunal hearing. At the outset of that hearing the Tribunal member said: "Thank you. I have lost my voice. We will begin by having the interpreter promise not to divulge any information he hears during the hearing. Thank you." Two questions thereafter, the Member again stated: "I have lost my voice unclear interpret You wife hasn't attended today" The hearing started at 1:46pm and concluded at 2:11pm. Nothing in the transcript reveals anything further being said in respect of the Tribunal member being unwell. Furthermore, nothing in the transcript gives any support to a submission found in the " particulars " that the Tribunal proceeded " in haste ", had any " pre-conceived notion ", or had not given " the Applicant the opportunity to reply to the Tribunal ". Rather than proceeding " in haste " and not extending such an " opportunity to reply ", the transcript records the following exchange at the conclusion of the hearing: [SZJXP]: I don't want to go back. [Tribunal member]: I understand that. I will have to think about what you have said. Ok. Anything else you want to say? [SZJXP]: I am just asking my life back. Rather than being dismissed " in haste " and not giving the First Appellant an " opportunity to reply ", the Tribunal member quite properly invited him to add to the matters which had been covered if he so wished.
Case: Minister for Immigration &amp; Multicultural Affairs v Bhardwaj [2002] HCA 11 , 209 CLR 597
Outcome: followed
The present contention that the Tribunal member should have adjourned due to his being unwell is both curious and factually unsupportable. It is curious to the extent that a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness: Minister for Immigration &amp; Multicultural Affairs v Bhardwaj [2002] HCA 11 at [40] , 209 CLR 597 at 611 per Gaudron and Gummow JJ. Further, proceedings of the Refugee Review Tribunal have been held to have denied procedural fairness where an adjournment should have been granted: Xiang Sheng Li v Refugee Review Tribunal [1994] FCA 1550 ; (1994) 36 ALD 273.
Case: SAAP v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 24 , 215 ALR 162
Outcome: followed
Section 424A(1)(a) of the Migration Act 1958 (Cth) provides as follows: Information and invitation given in writing by Tribunal (1) Subject to subsections (2A) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review... ... Compliance with s 424A is mandatory: SAAP v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 24 , 228 CLR 294 ; SZBYR v Minister for Immigration &amp; Citizenship [2007] HCA 26 at [13] , [2007] FCA 26 ; 235 ALR 609 at 614 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
Case: SZBYR v Minister for Immigration &amp; Citizenship [2007] HCA 26 , 235 ALR 609
Outcome: followed
Section 424A(1)(a) of the Migration Act 1958 (Cth) provides as follows: Information and invitation given in writing by Tribunal (1) Subject to subsections (2A) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review... ... Compliance with s 424A is mandatory: SAAP v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 24 , 228 CLR 294 ; SZBYR v Minister for Immigration &amp; Citizenship [2007] HCA 26 at [13] , [2007] FCA 26 ; 235 ALR 609 at 614 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.