mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZKUO v Minister for Immigration and Citizenship [2007] FMCA 2073
Outcome: cited
Application presently before the Court is an application for an extension of time within which to appeal from a decision of the Federal Magistrates Court delivered on 21 December 2007: SZKUO v Minister for Immigration and Citizenship [2007] FMCA 2073. The Applicant appeared before this Court on the hearing of the Application represented by Counsel. The facts centrally relevant to the Application are within a limited compass.
Case: Vranic v Chief Executive Officer, Centrelink [2004] FCA 1511
Outcome: cited
relevance to the exercise of the discretion, but never conclusive, is the fact that many applicants seeking to challenge adverse decisions made under the Migration Act 1958 (Cth) are not fluent in English and frequently are not represented by legal advisers: cf Vranic v Chief Executive Officer, Centrelink [2004] FCA 1511. And when represented by (for example) counsel appearing on a pro bono basis, the Court is considerably benefited: SZKJV v Minister for Immigration and Citizenship [2008] FCA 831 at [13] to [14]. Also of relevance, but again not conclusive, may be the financial circumstances confronting an applicant: cf QAAH v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7] ; SZKDC v Minister for Immigration and Citizenship [2008] FCA 164 at [12] .
Case: WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399
Outcome: cited
extension of time may be granted where an applicant can establish " special reasons ": Federal Court Rules 1979 (Cth) O 52 r 15(2). The discretion to extend time is given for the purpose of enabling the Court to do justice between the parties: WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [7] ; Applicant S1138 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1052 at [11] ; SZKJV v Minister for Immigration and Citizenship [2008] FCA 831 at [10] . An applicant, it has been said, must advance a reason to take " the case out of the ordinary ": Jess v Scott (1986) 12 FCR 187 at 195. The rule confers " a flexible discretionary power ": (1986) 12 FCR 187 at 195. Even where " special reasons " can be established, the Court thus retains a discretion to grant or refuse the extension sought: Kordatos v Sweeney [2004] FCA 1487 at [17] per Cooper J. So much is apparent from the terms of r 15(2) itself "... the Court or a Judge for special reasons may at any time... ".
Case: Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1
Outcome: discussed
Whether a person is carrying on a business and the nature of that business involves a consideration of the activities in which that person is involved. In Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 , the High Court considered questions of law which raised the issue of whether the activities of the appellant amounted to "carrying on the business of grazing". The New South Wales Court of Appeal had decided, "as a matter of fact", that the appellant's use of his land, "albeit for commercial purposes and for the purpose of profit, was not significant enough to bring it within the scope of the common or general meaning of either of the words 'business' or 'industry'." Mason J, with whom Gibbs and Stephen JJ agreed, held at 8-9, that the expression, carrying on the business of grazing, denotes "grazing activities undertaken as a commercial enterprise in the nature of a going concern, that is, activities engaged in for the purpose of profit on a continuous and repetitive basis". A similar approach was adopted in Federal Commissioner of Taxation v Murry [1998] HCA 42 ; (1998) 193 CLR 605 , where Gaudron, McHugh, Gummow and Hayne JJ said at 626: A business is not a thing or things. It is a course of conduct carried on for the purpose of profit and involves notions of continuity and repetition of actions.
Case: International Harvester Co of Australia Pty Ltd v Carrigan's Hazeldene Pastoral Co [1958] HCA 16 ; (1958) 100 CLR 644
Outcome: discussed
This submission hinges on the legal characterisation of the relationship between Lilyvale and Enterprises Australia. It is an invitation, under the banner of 'agency', to attribute the activities of Enterprises Australia to Lilyvale to deem them to be Lilyvale's activities. The characterisation of the relationship in the Management Agreement as one of agency does not, however, lead inevitably to this conclusion. In International Harvester Co of Australia Pty Ltd v Carrigan's Hazeldene Pastoral Co [1958] HCA 16 ; (1958) 100 CLR 644 at 652 the High Court observed: Agency is a word used in the law to connote an authority or capacity in one person to create legal relations between a person occupying the position of principal and third parties. But in the business world its significance is by no means thus restricted. [emphasis added]
Case: South Sydney District Rugby League Football Club Ltd v News Ltd (2000) 177 ALR 611
Outcome: applied
In the Management Agreement the context in which the concept of agency is invoked indicates that the parties were as much concerned to exclude the possibility of their relationship being characterised as a joint venture or partnership as to invoke the concept of agency; see [9] above. There is no reason why they should not do that. As Finn J stated in South Sydney District Rugby League Football Club Ltd v News Ltd (2000) 177 ALR 611 at 645-646, in the course of setting out detailed propositions about the nature of agency: It is legitimate for parties to avoid the "unwanted consequences" of a particular category of legal relationship by seeking to cast it in a form that takes it outside that category of relationship: Colbron v St Bees Island Pty Ltd (1995) 56 FCR 303 at 314. But whether or not they are successful in achieving that end does not depend simply upon whether, in an express provision of their agreement, they attribute or deny to their relationship a particular legal character -- be this, for example, employer and employee: Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385 ; principal and principal or principal and agent: Board of Trade v Hammond Elevator Co, above; or partners: Ex parte Delhasse; Re Megevand (1878) 7 Ch D 511. The parties cannot by the mere device of labelling, no matter how genuinely intentioned, either confer a particular legal character on a relationship that it does not possess or deny it a character that it does possess: Ex parte Delhasse, above, at 532; see 2A Corpus Juris Secundum, "Agency", SS7; see also the observations of Lord Denning in Massey v Crown Life Insurance Co quoted in the Australian Mutual Provident Society case, above, at 389.
Case: Computer Interchange Pty Ltd and Another v Microsoft Corp and Another [1999] FCA 198 ; (1999) 88 FCR 438
Outcome: referred to
Although there has been no direct judicial consideration of the term "publication" in relation to s 50 applications, there appears to be a consensus emerging in the cases on s 50 that this section "deals expressly with the prevention of information given in open court from entering the wider public arena"; see Computer Interchange Pty Ltd and Another v Microsoft Corp and Another [1999] FCA 198 ; (1999) 88 FCR 438 per Madgwick J at [15]. The word "domain" has also been used interchangeably with "arena"; see generally Johnston v Cameron [2002] FCA 948 ; Minister for Immigration and Multicultural and Indigenous Affairs v X [2005] FCAFC 217 ; (2005) 147 FCR 243. In each of these cases, the entering of particular evidence or the name of a party into "the wider public arena" or "domain" contemplates an act of publication and audience much broader than the limited inspection (and not copying) of documents at the Court Registry by Ms Gee, Mr Agnew and Ms Meredith. 17. The underlying assumption of s 50 is the principle of open justice. The fact that the order must be necessary to prevent prejudice suggests that the party seeking to invoke a power of suppression carries a very heavy onus; see Madgwick J in Computer Interchange at [16] and Weinberg J in Johnston v Cameron at [89]. As such, the Court must consider the alleged prejudice that would be suffered by the respondent should the s 50 order not be granted. The Court must also determine whether the order is necessary to prevent this prejudice and whether this warrants a departure from the ordinary rule that open justice occur.
Case: Johnston v Cameron [2002] FCA 948
Outcome: followed
Although there has been no direct judicial consideration of the term "publication" in relation to s 50 applications, there appears to be a consensus emerging in the cases on s 50 that this section "deals expressly with the prevention of information given in open court from entering the wider public arena"; see Computer Interchange Pty Ltd and Another v Microsoft Corp and Another [1999] FCA 198 ; (1999) 88 FCR 438 per Madgwick J at [15]. The word "domain" has also been used interchangeably with "arena"; see generally Johnston v Cameron [2002] FCA 948 ; Minister for Immigration and Multicultural and Indigenous Affairs v X [2005] FCAFC 217 ; (2005) 147 FCR 243. In each of these cases, the entering of particular evidence or the name of a party into "the wider public arena" or "domain" contemplates an act of publication and audience much broader than the limited inspection (and not copying) of documents at the Court Registry by Ms Gee, Mr Agnew and Ms Meredith. 17. The underlying assumption of s 50 is the principle of open justice. The fact that the order must be necessary to prevent prejudice suggests that the party seeking to invoke a power of suppression carries a very heavy onus; see Madgwick J in Computer Interchange at [16] and Weinberg J in Johnston v Cameron at [89]. As such, the Court must consider the alleged prejudice that would be suffered by the respondent should the s 50 order not be granted. The Court must also determine whether the order is necessary to prevent this prejudice and whether this warrants a departure from the ordinary rule that open justice occur.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v X [2005] FCAFC 217 ; (2005) 147 FCR 243
Outcome: applied
Although there has been no direct judicial consideration of the term "publication" in relation to s 50 applications, there appears to be a consensus emerging in the cases on s 50 that this section "deals expressly with the prevention of information given in open court from entering the wider public arena"; see Computer Interchange Pty Ltd and Another v Microsoft Corp and Another [1999] FCA 198 ; (1999) 88 FCR 438 per Madgwick J at [15]. The word "domain" has also been used interchangeably with "arena"; see generally Johnston v Cameron [2002] FCA 948 ; Minister for Immigration and Multicultural and Indigenous Affairs v X [2005] FCAFC 217 ; (2005) 147 FCR 243. In each of these cases, the entering of particular evidence or the name of a party into "the wider public arena" or "domain" contemplates an act of publication and audience much broader than the limited inspection (and not copying) of documents at the Court Registry by Ms Gee, Mr Agnew and Ms Meredith.
Case: Herald &amp; Weekly Times Ltd v Williams and Others [2003] FCAFC 217 ; (2003) 130 FCR 435
Outcome: applied
The respondent's alternate submission, that it should not suffer or be put at serious risk of collateral damage or disadvantage through the abuse of the maps, is not made out on the evidence before the Court. Mr Stone gave evidence that the release of the maps bearing the labels applied by Mr Dell "would perpetuate and promulgate this misrepresentation, and create an opportunity for abuse". Presumably this "abuse" would be use of the information in a way designed to influence public opinion. However, it is well established that embarrassing or damaging publicity will not amount to prejudice warranting a departure from the principle of open justice; see Merkel J, with whom Finn and Stone JJ agreed in Herald &amp; Weekly Times Ltd v Williams and Others [2003] FCAFC 217 ; (2003) 130 FCR 435 at [34] [36]. Further, the description of the maps as provisional plans rather than "indicative scenario models" or some such title cannot elevate the status of any potential use of this information to that of prejudice to the administration of justice. 23. In any event, the maps which the respondent seeks to protect by this s 50 application are already protected from inspection without leave of the Court or a Judge, or without the permission of the Registrar by O 46 r 6(4) of the Rules of the Court. As such, the Court will exercise its discretion to prevent access in circumstances where inspection would be prejudicial to the administration of justice. There has been no suggestion by the respondent that the s 50 order is necessary to prevent prejudice caused by a party other than a third party. Given the existing protection offered by O 46 r 6(4), the s 50 order is not necessary to prevent prejudice in respect to the administration of justice and the motion fails on this additional ground. 24. The respondent has also applied to the Court for an order under O 15 r 18 of the Rules of the Court to prevent the undertakings given by the applicant on 15 September 2005 from ceasing to apply. This application is brought by the respondent "only out of an abundance of caution and in order to prevent there being any argument about this aspect of the matter". Counsel for the respondent submitted that it was the intention of the respondent, evident from the terms of the undertakings, that those undertakings ensue for its benefit during the proceeding and after the hearing of it.
Case: NMFM Property v Citibank Ltd [2001] FCA 480 ; (2001) 109 FCR 77
Outcome: cited
My attention has been drawn by counsel for both parties to well-known authorities dealing with indemnity costs, including NMFM Property v Citibank Ltd [2001] FCA 480 ; (2001) 109 FCR 77, Colgate Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 and Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397. The Court has a discretion concerning the scale of costs. The discretion is unfettered except that it must be exercised judicially. The cases concerning indemnity costs illustrate that much turns upon the facts of the particular case. The essential principle is that a discretion can be exercised to order costs on an indemnity basis where the actions of the unsuccessful party have been unreasonable or high-handed or where the claim in question was totally frivolous or hopeless or fundamentally flawed.
Case: Colgate Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225
Outcome: cited
My attention has been drawn by counsel for both parties to well-known authorities dealing with indemnity costs, including NMFM Property v Citibank Ltd [2001] FCA 480 ; (2001) 109 FCR 77, Colgate Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 and Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397. The Court has a discretion concerning the scale of costs. The discretion is unfettered except that it must be exercised judicially. The cases concerning indemnity costs illustrate that much turns upon the facts of the particular case. The essential principle is that a discretion can be exercised to order costs on an indemnity basis where the actions of the unsuccessful party have been unreasonable or high-handed or where the claim in question was totally frivolous or hopeless or fundamentally flawed.
Case: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Outcome: cited
My attention has been drawn by counsel for both parties to well-known authorities dealing with indemnity costs, including NMFM Property v Citibank Ltd [2001] FCA 480 ; (2001) 109 FCR 77, Colgate Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 and Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397. The Court has a discretion concerning the scale of costs. The discretion is unfettered except that it must be exercised judicially. The cases concerning indemnity costs illustrate that much turns upon the facts of the particular case. The essential principle is that a discretion can be exercised to order costs on an indemnity basis where the actions of the unsuccessful party have been unreasonable or high-handed or where the claim in question was totally frivolous or hopeless or fundamentally flawed.
Case: Louis Vuitton Malletier SA v Design Elegance [2006] FCA 83
Outcome: followed
In Louis Vuitton Malletier SA v Design Elegance [2006] FCA 83 (at [6]), I set out the principles applicable to proceedings for contempt: 'Deliberate conduct which is in breach of a court order will constitute wilful disobedience of the order, and therefore a civil contempt, unless the conduct be casual, accidental or unintentional: see Australian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 106-107 (' Mudginberri ') and 112-113. However, the disobedience will amount to a criminal contempt if it involves 'deliberate defiance or, as it is sometimes said, if it is contumacious': see Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 ('Witham') at 530.'
Case: Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525
Outcome: followed
In Louis Vuitton Malletier SA v Design Elegance [2006] FCA 83 (at [6]), I set out the principles applicable to proceedings for contempt: 'Deliberate conduct which is in breach of a court order will constitute wilful disobedience of the order, and therefore a civil contempt, unless the conduct be casual, accidental or unintentional: see Australian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 106-107 (' Mudginberri ') and 112-113. However, the disobedience will amount to a criminal contempt if it involves 'deliberate defiance or, as it is sometimes said, if it is contumacious': see Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 ('Witham') at 530.' 11 In Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 Brennan, Deane, Toohey and Gaudron JJ observed (at 534) that: 'The differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory. They certainly do not justify the allocation of different standards of proof for civil and criminal contempt. Rather, the illusory nature of those differences and the fact that the usual outcome of successful proceedings is punishment, no matter whether primarily for the vindication of judicial authority or primarily for the purpose of coercing obedience in the interest of the individual, make it clear as Deane J said in Hinch , that all proceedings for contempt "must realistically be seen as criminal in nature". The consequence is that all charges of contempt must be proved beyond reasonable doubt.' 12 The evidence adduced by APRA and relied upon by it without objection was set out in the following affidavits (together with the exhibits referred to in those affidavits): (a) David John Harley dated 22 December 2005 and 24 March 2006; (b) Matthew Paul Wyllie dated 22 December 2005 and 23 December 2005; (c) Kelly Louise Stephens dated 20 January 2006; (d) Andrew Kok Loong Loh dated 20 January 2006; (e) Yolanda Jodie Robinson dated 23 January 2006; (f) Paul Charles Monsted dated 23 January 2006.
Case: RPS v The Queen [2000] HCA 3 ; (2000) 199 CLR 620
Outcome: applied
The relevance of the failure of an accused, to give evidence was explained in RPS v The Queen [2000] HCA 3 ; (2000) 199 CLR 620 where Gaudron A-CJ, Gummow, Kirby and Hayne JJ stated (at 632-633 [27]): '...it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. The most that can be said in criminal matters is that there are some cases in which evidence (or an explanation) contradicting an apparently damning inference to be drawn from proven facts could come only from the accused. In the absence of such evidence or explanation, the jury may more readily draw the conclusion which the prosecution seeks. As was said in Weissensteiner v The Queen: "[I]n a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused."' (footnotes omitted)
Case: Australian Industry Group v Automotive, Food, Metals, Engineering, Printing &amp; Kindred Industries Union &amp; Ors [2000] FCA 629
Outcome: cited
See also Australian Industry Group v Automotive, Food, Metals, Engineering, Printing &amp; Kindred Industries Union &amp; Ors [2000] FCA 629 (' AIG ') at [58]. 29 In the present case, Siminton's failure to contradict the 'damning' inferences which APRA claims ought to be drawn from the proven facts, leaves no real scope for a rational or reasonable hypothesis consistent with his innocence. In the circumstances, I am satisfied beyond reasonable doubt that: (a) the inferences contended for by APRA ought to be drawn; (b) the conclusions contended for by APRA are entirely justified and warranted by the evidence; (c) the evidence does not justify or warrant a finding that there is any reasonable or rational hypothesis consistent with Siminton's innocence of the contempt charges.
Case: Cameron v Cole [1944] HCA 5 ; (1944) 68 CLR 571
Outcome: applied
The second fundamental difficulty with Siminton's jurisdiction argument is that the Sundberg J orders were made by a judge of a superior court of record and were therefore valid and binding until set aside, even if the orders were in excess of jurisdiction: see Cameron v Cole [1944] HCA 5 ; (1944) 68 CLR 571 at 590; Wilde v Australian Trade Equipment Co Pty Ltd [1981] HCA 13 ; (1981) 145 CLR 590 at 602 and R v Ross-Jones; Ex parte Green [1984] HCA 82 ; (1984) 156 CLR 185 at 215.
Case: Wilde v Australian Trade Equipment Co Pty Ltd [1981] HCA 13 ; (1981) 145 CLR 590
Outcome: cited
The second fundamental difficulty with Siminton's jurisdiction argument is that the Sundberg J orders were made by a judge of a superior court of record and were therefore valid and binding until set aside, even if the orders were in excess of jurisdiction: see Cameron v Cole [1944] HCA 5 ; (1944) 68 CLR 571 at 590; Wilde v Australian Trade Equipment Co Pty Ltd [1981] HCA 13 ; (1981) 145 CLR 590 at 602 and R v Ross-Jones; Ex parte Green [1984] HCA 82 ; (1984) 156 CLR 185 at 215.
Case: R v Ross-Jones; Ex parte Green [1984] HCA 82 ; (1984) 156 CLR 185
Outcome: cited
The second fundamental difficulty with Siminton's jurisdiction argument is that the Sundberg J orders were made by a judge of a superior court of record and were therefore valid and binding until set aside, even if the orders were in excess of jurisdiction: see Cameron v Cole [1944] HCA 5 ; (1944) 68 CLR 571 at 590; Wilde v Australian Trade Equipment Co Pty Ltd [1981] HCA 13 ; (1981) 145 CLR 590 at 602 and R v Ross-Jones; Ex parte Green [1984] HCA 82 ; (1984) 156 CLR 185 at 215.
Case: Jackson v Sterling Industries Ltd [1987] HCA 23 ; (1987) 162 CLR 612
Outcome: applied
The need to obey superior court orders made in excess of jurisdiction was explained in Jackson v Sterling Industries Ltd [1987] HCA 23 ; (1987) 162 CLR 612 in which the High Court considered, inter alia, the effect of an order which ought not have been made. Wilson J and Dawson J stated (at 620): 'In the same way, a court which is given power to determine the facts upon which its jurisdiction depends may, if it proceeds upon a wrongful determination, be said in one sense to exceed its jurisdiction, but its orders will be valid unless and until corrected on appeal. The position is otherwise where it is apparent on the face of a purported exercise of jurisdiction that there is no power or where the court's jurisdiction depends upon matters in dispute which cannot be conclusively determined by the court.' (footnotes omitted) 47 See also Deane J (at 627) with whom Mason CJ agreed (at 616).