mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Minister for Immigration &amp; Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611
Outcome: cited
The Federal Magistrate found that the reasoning of the Tribunal could not be characterised as "unreasonable" so as to provide jurisdictional error in the manner suggested by the High Court in Minister for Immigration &amp; Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611. The Federal Magistrate noted that it was the Tribunal's task to consider the extent to which it was satisfied by the claims made by the appellant and the documents which he tendered. The Federal Magistrate was satisfied that the conclusions of the Tribunal were open to it on the evidence before it. 9 The Federal Magistrate noted that the appellant did not identify what "relevant information" was not taken into account, and the Federal Magistrate was not able to identify any misconception by the Tribunal of legal principles which might be characterised as the "real chance test" arising from the effect of the Refugees Convention definition as adopted by s 36 of the Migration Act 1958 (Cth) ("the Act "). The Federal Magistrate found the third ground to be "totally unexplained" and he was therefore unable to give it any meaningful application to the present decision. 10 The Federal Magistrate also rejected the appellant's submission that the Tribunal did not tell the appellant which documents it would not accept as being genuine, or provide him with an adequate explanation for rejecting the genuineness of the documents.
Case: SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 ; 247 ALR 451
Outcome: cited
When asked whether he wished to make any oral submissions the appellant sought to raise what I understood to be an allegation of jurisdictional error, on the part of the Tribunal, involving a contravention of s 91R(3) of the Act . This issue had not been raised in his application to the Federal Magistrates Court and was not raised in the notice of appeal to this Court. The issue had been raised, in the Federal Magistrates Court, by counsel appearing for the Minister. It was drawn to the Court's attention as a matter of fairness. It arose from an observation by the Tribunal to the effect that the appellant had not engaged in any conduct in Australia which was likely to bring him to the attention of Chinese authorities. The Federal Magistrate held that no contravention of s 91R(3) had occurred: see SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 ; 247 ALR 451. This was because the Tribunal had done no more than assure itself that there was no additional basis on which the appellant's claim might be upheld and that, in any event, the Tribunal had rejected the appellant's claim on the free standing basis that his claims about events, said to have occurred in China, were not to be believed and that he had sought to rely on forged documents. 17 The s 91R(3) issue is not raised in the notice of appeal to this Court. Had I thought that there may have been some substance in it I would have, nonetheless, been prepared to deal with it. Having examined the Tribunal's reasons, however, I consider that the Federal Magistrate was correct, for the reasons which he gave, in holding that no jurisdictional error had been made by the Tribunal. 18 The two grounds which do appear in the notice of appeal are plainly untenable. The Federal Magistrates Court did deal with the claims that the Tribunal's rejection of the appellant's application was unreasonable and that the Tribunal had failed to take all relevant information into consideration.
Case: Applicant VEAL of 2002 v Minister for Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88
Outcome: distinguished
Dr Carrick sought to support her complaint concerning the Committee's receipt of Dr Heap's report by reference to Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88. That case concerned the failure of the Refugee Review Tribunal to tell an applicant for a protection visa that it had received an unsolicited letter that made damaging allegations against him. It is not an authority which is of assistance to Dr Carrick who was at all relevant times fully aware of the content of Dr Heap's report. 59 The complaint that the Committee wrongly received into evidence and considered Dr Heap's report is not made out. 60 The Final Report discloses that the Committee had regard to one class of services provided by Dr Carrick, namely MBS item 30487 provided in association with one or more gastrointestinal endoscopic procedural items. It examined this class of services by employing a sample of the services included in the class as authorised by s 106K(1) of the Act. Dr Carrick contends that the sampling methodology used by the Committee for this purpose was not a sampling methodology specified in a determination made by the Minister under s 106K(3).
Case: Daniel v Kelly (2003) 200 ALR 379
Outcome: distinguished
Dr Carrick placed particular reliance on the judgments of this Court, at first instance and on appeal, regarding an investigative referral decision made concerning a Dr Daniel ( Daniel v Kelly (2003) 200 ALR 379 (Ryan J); Kelly v Daniel [2004] FCAFC 14 ; (2004) 134 FCR 64 (Full Court)). In Daniel v Kelly Ryan J at [13] rejected the submission that, in the circumstances of that case, the investigative referral was a result of the operation of the Act with the consequence that no occasion arose for the exercise of a discretion by the Commission. His Honour went on at [25] to describe as 'plainly relevant to any decision to investigate Dr Daniel' the fact that the relevant conduct of Dr Daniel had already been the subject of counselling and review resulting in a decision to take no action at that time. On appeal the Full Court at [81] agreed that the Commission had a discretion under s 86 to make an investigative referral and that the Commission had proceeded on the erroneous assumption that it was required to make an investigate referral. 21 I reject Dr Carrick's submission that this case is on ' all fours ' with Daniel v Kelly. It is not suggested in this case that the Commission proceeded on the assumption that it was required to make an investigative referral. The correspondence considered in [24] and [28] below makes plain that the Commission appreciated that an investigative referral was discretionary.
Case: Freeman v Health Insurance Commission [2004] FCA 453
Outcome: referred to
Additionally, as North J, one of the members of the Full Court in Kelly v Daniel, explained in Freeman v Health Insurance Commission [2004] FCA 453 at [54] : 'The issue fatal to validity in Daniel was the failure of the Commission to take into account a relevant consideration, namely the fact that, apparently unknown to officers of the Commission responsible for making the referral, Dr Daniel's conduct had already been considered and the issues resolved between other officers of the Commission and Dr Daniel.' By contrast, the written communications between Dr Carrick and officers of the Commission between 14 December 2000 (the date of Dr Carrick's interview with Dr Lorenz) and 12 June 2002 indicated that significant issues between Dr Carrick and the Commission remained unresolved at the time of the Investigative Referral.
Case: Kelly v Daniel [2004] FCAFC 14 ; (2004) 134 FCR 64
Outcome: cited
Dr Carrick placed particular reliance on the judgments of this Court, at first instance and on appeal, regarding an investigative referral decision made concerning a Dr Daniel ( Daniel v Kelly (2003) 200 ALR 379 (Ryan J); Kelly v Daniel [2004] FCAFC 14 ; (2004) 134 FCR 64 (Full Court)). In Daniel v Kelly Ryan J at [13] rejected the submission that, in the circumstances of that case, the investigative referral was a result of the operation of the Act with the consequence that no occasion arose for the exercise of a discretion by the Commission. His Honour went on at [25] to describe as 'plainly relevant to any decision to investigate Dr Daniel' the fact that the relevant conduct of Dr Daniel had already been the subject of counselling and review resulting in a decision to take no action at that time. On appeal the Full Court at [81] agreed that the Commission had a discretion under s 86 to make an investigative referral and that the Commission had proceeded on the erroneous assumption that it was required to make an investigate referral. 22 Additionally, as North J, one of the members of the Full Court in Kelly v Daniel, explained in Freeman v Health Insurance Commission [2004] FCA 453 at [54] : 'The issue fatal to validity in Daniel was the failure of the Commission to take into account a relevant consideration, namely the fact that, apparently unknown to officers of the Commission responsible for making the referral, Dr Daniel's conduct had already been considered and the issues resolved between other officers of the Commission and Dr Daniel.' By contrast, the written communications between Dr Carrick and officers of the Commission between 14 December 2000 (the date of Dr Carrick's interview with Dr Lorenz) and 12 June 2002 indicated that significant issues between Dr Carrick and the Commission remained unresolved at the time of the Investigative Referral. 34 I accept for present purposes that Kelly v Daniel [2004] FCAFC 14 ; 134 FCR 64 is authority for the proposition that, in making a decision under s 86(1), the Commission is bound to take into account the consideration, where applicable, that the conduct of the person under review has already been considered by the Commission and a decision communicated to the person that the conduct will not be further investigated. As identified above, that consideration was not pertinent in this case.
Case: Mathews v Health Insurance Commission (2006) 90 ALD 49
Outcome: approved
A submission to the same effect was 'rejected out of hand' by Edmonds J in Mathews v Health Insurance Commission (2006) 90 ALD 49 at [40]. It is appropriate for me to follow the approach adopted by his Honour unless I am satisfied that his Honour was in error. I am not so satisfied. Indeed, in my respectful view, his Honour was plainly correct. 76 The sampling methodology prescribed by the Determination assumes an understanding of, and facility with, statistics. It is unlikely that the Minister intended that Committee members, rather than appropriately qualified statisticians, should undertake important statistical procedures. The obligation on a Committee to 'ensure' that the preliminary random sample is a random sample may, in my view, be met by the Committee satisfying itself that the preliminary random sample has been generated as a random sample by an appropriately qualified person. Nothing in the evidence establishes that the Committee did not take that step in this case. 77 I am not persuaded that it was necessary for the Committee to be given the full preliminary sample in the order of its original random selection, as argued by Dr Maxwell Stevenson, an expert statistician whose affidavit evidence was adduced by Dr Carrick. The responsibility of the Committee under s 106K and the Determination was not to engage in 'sound audit practice' , to use Dr Stevenson's expression, but rather to ensure that s 6 of the Determination was complied with.
Case: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: cited
To substantiate her challenge that the Commission exercised the power under s 86(1) of the Act without taking into account relevant considerations Dr Carrick was required to: (a) identify a consideration that the Commission was bound to take into account in making its decision ( Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24 per Mason J at 39); and (b) demonstrate, on the balance of probabilities, that the Commission did not take into account that consideration. 35 What other factors the Commission is bound to take into account in making a decision under s 86(1) are to be determined as a matter of statutory construction. As the Act does not expressly identify the considerations to be taken in account, they are to be implied from the subject matter, scope and purpose of the Act ( Peko-Wallsend [1986] HCA 40 ; 162 CLR 24 at 39-40). 36 It is not necessary for a decision to be reached in this case on whether the Commission was bound to take into account any of the following considerations: (a) that a counselling meeting had taken place between Dr Carrick and a Commission Medical Advisor at which Dr Carrick's referred conduct was discussed; (b) Dr Carrick's practice statistics had been reviewed later than the date of the counselling meeting; and (c) there had been some, albeit, in the Commission's view, insufficient, change in Dr Carrick's practice statistics since counselling. I am satisfied that the Commission was alert to, and took into account, each of the above considerations as each of them is referred to in the Investigative Referral under the heading 'Reasons for Investigative Referral' (see [16] above). The weight to be given to them was a matter for the Commission. 37 Having regard to the view that I have taken of the true tenor of the written and oral communications discussed above between Dr Carrick and the officers of the Commission, I am not persuaded that Dr Carrick has identified any consideration not identified in the Investigative Referral that the Commission was bound to take into account in making its decision under s 86(1) of the Act.
Case: Oreb v Willcock [2005] FCAFC 196 ; (2005) 146 FCR 237
Outcome: cited
In any event, as Lander J, with whom Black CJ and Wilcox J agreed, observed in Oreb v Willcock [2005] FCAFC 196 ; (2005) 146 FCR 237 at [101] - [102] : '[T]the absence of a mention of those ... matters in the reasons does not mean that the Commission did not have regard to those matters. The reasons which must be given by the Commission under s 86(4)(b) are "the reasons why the Commission considers the person under review may have engaged in inappropriate practice". The Commission does not have to give reasons why it has decided to make an investigative referral but only the reasons why it considers the practitioner may have engaged in inappropriate practice. The purpose of the Commission's reasons is to identify the matters into which the Director needs to inquire. In my opinion, the reasons which were advanced by the Commission were appropriate having regard to the reasons which the Commission had to give. In those circumstances, the appellant cannot, in my opinion, rely upon the Commission's failure to mention the ... matters to which the appellant referred for arguing that the Commission failed to have regard to them.' 39 Dr Carrick was not able to point to any evidence apart from the terms of the Investigative Referral itself to support her contention that the Commission did not take into account all relevant aspects of her conduct over the referral period (see [17] above). 40 The extent to which Dr Carrick ultimately pressed the claim that she was positively misled by Dr Lorenz on 14 December 2000 is unclear (see [19(e)] above). This claim was expanded upon in a written submission made by her to the Director which is annexed to an affidavit sworn by her in support of her application. In that written submission she drew attention to the fact that the statistics discussed during the interview related to the year ended 30 September 2000 while the referral period is 1 July 2000 to 31 June 2001; that is, to the fact that the referral period significantly overlapped with the period covered by the statistics discussed during the interview. She contended that in this circumstance it was farcical that the Investigative Referral stated: 'The HIC determined there had been insufficient change to remove the overall concerns about the referred conduct above.'
Case: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 1944 CLR 355
Outcome: cited
In any event, I see no reason to conclude that the Determination, considered in the context of the Act and s 106K in particular, discloses an intention that, where a preliminary random sample is in fact random, the findings of a Committee should be rendered invalid because the Committee itself failed to 'ensure' that the preliminary random sample was random ( Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355).
Case: Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225
Outcome: applied
The circumstances in which indemnity costs may properly be awarded were further discussed by Sheppard J in Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 at 232 234. The passage is well-known, and I will not set it out in these reasons for judgment. It is sufficient simply to observe that his Honour recognised that the ordinary rule is that, where the Court orders the costs of one party to be paid by another, those costs will be assessed on a party and party basis. However, there may be factors that warrant the Court in departing from the usual course. His Honour then identified some of those factors. 6 The examples which his Honour gave are illuminating. They include making allegations of fraud knowing them to be false, evidence of particular misconduct that causes loss of time to the Court and to other parties, the fact that the proceedings were commenced or continued for some ulterior motive or in wilful disregard of known facts or clearly established law, and an imprudent refusal of an offer to compromise. 7 Importantly for present purposes, his Honour also identified as a basis for the award of indemnity costs the making of allegations which ought never to have been made, or the undue prolongation of a case by groundless contentions.
Case: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Outcome: applied
The power to award solicitor and own client costs can be exercised where there is some special or unusual feature associated with the case which warrants that course. In Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 Woodward J said (at 401): "I believe that it is appropriate to consider awarding "solicitor and client" or "indemnity" costs, whenever it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law. Such cases are, fortunately, rare. But when they occur, the court will need to consider how it should exercise its unfettered discretion."
Case: Seven Network Limited v News Limited [2007] FCA 1489
Outcome: referred to
There are other formulations to similar effect, some of which were discussed recently by Sackville J in Seven Network Limited v News Limited [2007] FCA 1489. Basically, they contemplate that there can be a departure from the usual rule where an application can be seen to have had no chance of success. The respondents contend that the present application matched that description. The evidence-in-chief on behalf of the applicant was filed by affidavit. It ought to have been obvious that it did not support the existence of any agreement of the type alleged and was, in any event, at odds with the case as pleaded. 9 The strongest point in support of the respondents' claim for solicitor and own client costs is the fact that applicant was put on notice of the disconformity between his case as pleaded, and the evidence led in support of that case, but elected to ignore the warnings given. 10 The applicant, in his submissions, conceded that the respondents were entitled to an order for costs. However, he submitted that the order should be costs in the usual form, that is, on a party and party basis. 11 The applicant submitted that it was clear that no amendment of his pleadings would have assisted him because, even on his own version of the facts, there was never a concluded agreement of the type alleged. The real issue was whether, properly advised, he should have known that his case was so hopeless that it should never have been brought. 12 As the applicant correctly submitted, it is often a matter of fine judgment as to whether the evidence available in support of a claim warrants instituting a proceeding, or continuing with a case once brought. In this case, the respondents did not seek summary judgment. They did not, at the conclusion of the applicant's case, submit that there was no case to answer. They did not suggest that the applicant had instituted this proceeding with any ulterior motive. They did not establish, or perhaps even seek to establish, that the applicant's evidence, taken as whole, was deliberately untruthful. In fact, I specifically found that he was basically honest, but somewhat out of his depth. 13 In my opinion, the respondents have not established any proper basis for a departure from the usual rule. There will be an order that the applicant pay the respondents' costs on a party and party basis, such costs to be taxed in default of agreement. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg . Associate: Dated: 3 October 2007 Counsel for the Applicant: Mr R G Squirrell Solicitor for the Applicant: Kahns Lawyers Counsel for the Respondent: Mr L Glick SC and Mr A T Schlicht Solicitor for the Respondent: Strongman &amp; Crouch Date of Submissions: 19 and 26 September 2007 Date of Judgment: 3 October 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1533.html