mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464
Outcome: cited
two matters are not to be considered in isolation from each other and the strengths or weaknesses of the claim will have a bearing on what is required by the balance of convenience: see, e.g. Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 at 472 ('Bullock') . A particular issue arises in this case where there is a doubtful claim, which, nevertheless, raises a serious question to be tried. Here the claim may, nevertheless, still attract interlocutory relief if there is a marked balance of convenience in favour of that claim: see Mobileworld Operating Pty Ltd v Telstra Corporation Ltd [2005] FCA 1365 at [20] per Weinberg J ('Mobileworld') citing Bullock at 472. Further, it is to be remembered that the threshold for a serious question to be tried is not particularly onerous. As Weinberg J said in Mobileworld at [23]: Sometimes, on an application for interlocutory relief, a court is sufficiently able, on the evidence before it, to reach a conclusion as to particular facts or matters in dispute. However, it must be remembered that any such conclusion will be provisional, and by no means necessarily the same as that which is subsequently reached at the final hearing. The degree to which a court is prepared to investigate disputes of fact depends on their difficulty and on the other circumstances in question, and particularly on the extent of urgency or prospective hardship involved: ICF Spry, The Principles of Equitable Remedies , (6th ed, 2001) at 466.'
Case: Epitoma Pty Ltd v Australasian Meat Industry Employees Union (1984) 3 FCR 55
Outcome: cited
any interlocutory injunction is granted, the Court must be satisfied that there is both a serious question to be tried in the principal proceeding and that the balance of convenience favours the grant of an injunction: see, e.g. Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618 at 621; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30 ; (1998) 195 CLR 1; Epitoma Pty Ltd v Australasian Meat Industry Employees Union (1984) 3 FCR 55.
Case: Mobileworld Operating Pty Ltd v Telstra Corporation Ltd [2005] FCA 1365
Outcome: considered
particular issue arises in this case where there is a doubtful claim, which, nevertheless, raises a serious question to be tried. Here the claim may, nevertheless, still attract interlocutory relief if there is a marked balance of convenience in favour of that claim: see Mobileworld Operating Pty Ltd v Telstra Corporation Ltd [2005] FCA 1365 at [20] per Weinberg J ('Mobileworld') citing Bullock at 472. Further, it is to be remembered that the threshold for a serious question to be tried is not particularly onerous. As Weinberg J said in Mobileworld at [23]: Sometimes, on an application for interlocutory relief, a court is sufficiently able, on the evidence before it, to reach a conclusion as to particular facts or matters in dispute. However, it must be remembered that any such conclusion will be provisional, and by no means necessarily the same as that which is subsequently reached at the final hearing. The degree to which a court is prepared to investigate disputes of fact depends on their difficulty and on the other circumstances in question, and particularly on the extent of urgency or prospective hardship involved: ICF Spry, The Principles of Equitable Remedies , (6th ed, 2001) at 466.'
Case: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30 ; (1998) 195 CLR 1
Outcome: cited
any interlocutory injunction is granted, the Court must be satisfied that there is both a serious question to be tried in the principal proceeding and that the balance of convenience favours the grant of an injunction: see, e.g. Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618 at 621; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30 ; (1998) 195 CLR 1; Epitoma Pty Ltd v Australasian Meat Industry Employees Union (1984) 3 FCR 55.
Case: Transfield Construction Pty Ltd v Automotive Food, Metal, Engineering, Printing and Kindred Industries Union [2002] FCA 1413
Outcome: cited
an issue which arises in the context of interim relief in industrial law matters is that the interim relief could be in effect the grant of final relief. On the other hand, it is also common for the refusal to grant interim relief to be a refusal to grant final relief in actual fact. In Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (unreported, Madgwick J, 17 November 1998) the AIRC had made an order under s 127(1) of the Act that a proposed national stoppage not occur. In that case the refusal to grant interim relief to enforce the order effectively meant the refusal for final relief to enforce the order as the national stoppage was to take place before the final hearing; See too Transfield Construction Pty Ltd v Automotive Food, Metal, Engineering, Printing and Kindred Industries Union [2002] FCA 1413.
Case: Attorney-General for the State of New South Wales v Quin [1990] HCA 21 ; (1990) 170 CLR 1
Outcome: applied
The refusal of the application by the Federal Magistrates Court is said by the Appellant to be " not fair " . But it is not the task of the Federal Magistrate to determine that which he subjectively may think is either " fair " or " not fair ". His task is the confined task conferred by s 476 of the Migration Act 1958 (Cth). It is considered important to constantly recall that even the task of judicial review, unconstrained by notions of jurisdictional error, is not concerned with correcting " administrative injustice ": Attorney-General for the State of New South Wales v Quin [1990] HCA 21 ; (1990) 170 CLR 1. Brennan J there observed at 35 6: The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case. What is required by procedural fairness is a fair hearing, not a fair outcome: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [25] , [2006] HCA 63 ; 228 CLR 152 at 160. " The relevant question ", Jacobson J has observed, " is about the Tribunal's processes, not its actual decision ": SZLVN v Minister for Immigration &amp; Citizenship [2008] FCA 1301 at [18] .
Case: Re JRL, Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342
Outcome: applied
Even if an argument as to bias had not been raised before the Federal Magistrate, leave to now raise such an argument on appeal would have been refused: cf SZGWN v Minister for Immigration and Citizenship [2008] FCA 238 at [120] , 103 ALD 144 at 174 per Gilmour J. Leave may be granted where it is expedient in the interests of justice to do so. But it is well accepted that a " reasonable apprehension " of bias must be " firmly established ": Re JRL, Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342 at 352 per Mason J. The circumstances more relevant to an application in respect to proceedings before the Refugee Review Tribunal, where proceedings are heard in private, has been addressed by Gleeson CJ, Gaudron and Gummow JJ as follows in Re Refugee Review Tribunal, Ex parte H [2001] HCA 28 , 179 ALR 425: [27] The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the tribunal, proceedings are held in private. [28] Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.
Case: Re Refugee Review Tribunal, Ex parte H [2001] HCA 28 , 179 ALR 425
Outcome: followed
Even if an argument as to bias had not been raised before the Federal Magistrate, leave to now raise such an argument on appeal would have been refused: cf SZGWN v Minister for Immigration and Citizenship [2008] FCA 238 at [120] , 103 ALD 144 at 174 per Gilmour J. Leave may be granted where it is expedient in the interests of justice to do so. But it is well accepted that a " reasonable apprehension " of bias must be " firmly established ": Re JRL, Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342 at 352 per Mason J. The circumstances more relevant to an application in respect to proceedings before the Refugee Review Tribunal, where proceedings are heard in private, has been addressed by Gleeson CJ, Gaudron and Gummow JJ as follows in Re Refugee Review Tribunal, Ex parte H [2001] HCA 28 , 179 ALR 425: [27] The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the tribunal, proceedings are held in private. [28] Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.
Case: SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358
Outcome: followed
But such is not the present case. The materials now before the Court have been reviewed and provide no discernible basis upon which any suggestion as to bias on the part of the Tribunal could be sustained. The reasons for decision expose a careful account of the evidence being presented and a careful attempt to ensure that such inconsistencies as were apparent in the now Appellant's evidence were brought to his attention. Two hearings were afforded to the now Appellant. Moreover, it is seldom the case that a reasonable apprehension of bias can be established merely by reference to the reasons for decision: SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 at [16] per Tamberlin, Mansfield and Jacobson JJ. 14 In the present appeal it would not be in the interests of justice to now allow an argument as to bias on the part of the Tribunal to be advanced. It is an argument without substance. 15 The basis upon which bias was otherwise being advanced was not further explained.
Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 , 228 CLR 152
Outcome: applied
The refusal of the application by the Federal Magistrates Court is said by the Appellant to be " not fair " . But it is not the task of the Federal Magistrate to determine that which he subjectively may think is either " fair " or " not fair ". His task is the confined task conferred by s 476 of the Migration Act 1958 (Cth). It is considered important to constantly recall that even the task of judicial review, unconstrained by notions of jurisdictional error, is not concerned with correcting " administrative injustice ": Attorney-General for the State of New South Wales v Quin [1990] HCA 21 ; (1990) 170 CLR 1. Brennan J there observed at 35 6: The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case. What is required by procedural fairness is a fair hearing, not a fair outcome: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [25] , [2006] HCA 63 ; 228 CLR 152 at 160. " The relevant question ", Jacobson J has observed, " is about the Tribunal's processes, not its actual decision ": SZLVN v Minister for Immigration &amp; Citizenship [2008] FCA 1301 at [18] .
Case: SZGWN v Minister for Immigration and Citizenship [2008] FCA 238 , 103 ALD 144
Outcome: considered
Even if an argument as to bias had not been raised before the Federal Magistrate, leave to now raise such an argument on appeal would have been refused: cf SZGWN v Minister for Immigration and Citizenship [2008] FCA 238 at [120] , 103 ALD 144 at 174 per Gilmour J. Leave may be granted where it is expedient in the interests of justice to do so. But it is well accepted that a " reasonable apprehension " of bias must be " firmly established ": Re JRL, Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342 at 352 per Mason J. The circumstances more relevant to an application in respect to proceedings before the Refugee Review Tribunal, where proceedings are heard in private, has been addressed by Gleeson CJ, Gaudron and Gummow JJ as follows in Re Refugee Review Tribunal, Ex parte H [2001] HCA 28 , 179 ALR 425: [27] The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the tribunal, proceedings are held in private. [28] Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.
Case: SZLVN v Minister for Immigration &amp; Citizenship [2008] FCA 1301
Outcome: applied
The refusal of the application by the Federal Magistrates Court is said by the Appellant to be " not fair " . But it is not the task of the Federal Magistrate to determine that which he subjectively may think is either " fair " or " not fair ". His task is the confined task conferred by s 476 of the Migration Act 1958 (Cth). It is considered important to constantly recall that even the task of judicial review, unconstrained by notions of jurisdictional error, is not concerned with correcting " administrative injustice ": Attorney-General for the State of New South Wales v Quin [1990] HCA 21 ; (1990) 170 CLR 1. Brennan J there observed at 35 6: The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case. What is required by procedural fairness is a fair hearing, not a fair outcome: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [25] , [2006] HCA 63 ; 228 CLR 152 at 160. " The relevant question ", Jacobson J has observed, " is about the Tribunal's processes, not its actual decision ": SZLVN v Minister for Immigration &amp; Citizenship [2008] FCA 1301 at [18] .
Case: VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 , 131 FCR 102
Outcome: cited
Although instances in which a bias allegation has succeeded as against the Tribunal fortunately may be rare, instances do occur where a reasonable apprehension of bias is made out: eg, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 , 131 FCR 102. Kenny J there relevantly concluded: [82] ... The vice in this case was that, by the Member's conduct during the hearing, a fair-minded observer might well infer that there was nothing the applicant could give by way of evidence or submit by way of argument that might change her mind about his claim -- that he had fabricated his account. Virtually from the beginning of the hearing until its end, the Member expressed her disbelief in his truthfulness. Whether expressly, by implication, or by her tone of voice, she made it clear that she did not believe him and the account he gave. As well as repeated expressions of disbelief, there were her constant adverse comments on his evidence; and numerous displays of irritation, impatience, frustration and, sometimes, sarcasm. The applicant was regularly interrupted. Much of the Member's questioning of the applicant appeared calculated to undermine his case, rather than to facilitate a non-partisan investigation into the facts.
Case: Biyiksiz v Minister for Immigration and Multicultural Affairs [1998] FCA 352
Outcome: referred to
Contrary to Telstra's submission, the authorities show that where there has been an invalid exercise of an administrative power, including on the ground of jurisdictional error, the Court will consider whether it is appropriate to find a severable valid exercise of power: cf Biyiksiz v Minister for Immigration and Multicultural Affairs [1998] FCA 352 at 12; Re Australian Industrial Relations Commission; Ex parte Smith [2004] FCAFC 271 at [85] - [88] ; Minister for Home Affairs v Tervonen [2008] FCAFC 24 ; (2008) 166 FCR 91 at [97] - [107] .
Case: Craig v The State of South Australia [1995] HCA 58 ; (1995) 184 CLR 163
Outcome: distinguished
In oral submissions, senior counsel for Telstra directed this first argument mainly to Telstra's ground 10(c) which was that ACCC fell into jurisdictional error. Telstra submits that at common law the inevitable result of its success in relation to cl 5A(i) is that the entire Final Determination is a nullity. Telstra cites in support Craig v The State of South Australia [1995] HCA 58 ; (1995) 184 CLR 163 ; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 ; and Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476.
Case: Evans v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 276 ; (2003) 135 FCR 306
Outcome: referred to
At common law, a provision is severable if it is a straightforward matter to isolate it from the remaining provisions and the remaining provisions are not affected in their meaning and operation by severing the invalid part: cf Harrington v Lowe (1996) 190 CLR 311 at 327-8; Evans v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 276 ; (2003) 135 FCR 306 at [61] [62]. The common law test is satisfied in the present case. 24 Section 46 of the AI Act (set out at [5] above) requires severance, because the structure and effect of the Final Determination clearly expose "the extent" to which the Final Determination is and the extent to which it is not in excess of power: cf Re Dingjan; Ex parte Wagner [1995] HCA 16 ; (1995) 183 CLR 323 at 347-348 per Dawson J; Evans v Minister for Immigration [2003] FCAFC 276 ; (2003) 135 FCR 306 at [63] [65].
Case: Harrington v Lowe (1996) 190 CLR 311
Outcome: referred to
At common law, a provision is severable if it is a straightforward matter to isolate it from the remaining provisions and the remaining provisions are not affected in their meaning and operation by severing the invalid part: cf Harrington v Lowe (1996) 190 CLR 311 at 327-8; Evans v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 276 ; (2003) 135 FCR 306 at [61] [62]. The common law test is satisfied in the present case.
Case: Minister for Home Affairs v Tervonen [2008] FCAFC 24 ; (2008) 166 FCR 91
Outcome: referred to
Contrary to Telstra's submission, the authorities show that where there has been an invalid exercise of an administrative power, including on the ground of jurisdictional error, the Court will consider whether it is appropriate to find a severable valid exercise of power: cf Biyiksiz v Minister for Immigration and Multicultural Affairs [1998] FCA 352 at 12; Re Australian Industrial Relations Commission; Ex parte Smith [2004] FCAFC 271 at [85] - [88] ; Minister for Home Affairs v Tervonen [2008] FCAFC 24 ; (2008) 166 FCR 91 at [97] - [107] .