mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZATG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1595 , 83 ALD 596
Outcome: applied
is equally no injustice to the Applicant in not now entertaining the argument as to the failure on the part of the Tribunal to itself initiate further inquiries, as there is no such general duty imposed upon the Tribunal. In Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 , the Full Court held that there is no duty upon the Tribunal to undertake its own investigation into the authenticity of documents supporting a visa application. Black CJ, von Doussa, Sundberg and Mansfield JJ there noted at 561: Although we have concluded that there may be circumstances in which the Tribunal's obligation to act according to substantial justice requires it to make inquiries, we are respectfully unable to agree with the primary judge's general proposition that where an applicant produces a document which purports to be an official document issued in a foreign country, its disputed authenticity is a matter appropriate for verification by the Tribunal through official channels ... In a particular case the Tribunal may indeed be obliged to verify a document in this fashion, but there is no general rule to that effect. In that case, the purported source of the Tribunal's obligation to make inquiries was s 420 of the Migration Act . Nor can a duty to enquire be sourced from s 427(1)(d) of the Migration Act . This provision empowers the Tribunal to make its own inquiries for the purpose of reviewing a decision, but it creates no obligation on the part of the Tribunal: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 , 78 ALD 224 per Gummow and Hayne JJ at [43] and Callinan J at [124]; WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277 per Heerey, Nicholson and Mansfield JJ at [24] to [25]; SZATG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1595 , 83 ALD 596 per Hely J at [22]. In the present case, there is no error in the Tribunal proceeding to make its decision without pursuing further inquiries of its own initiative into the veracity of the Appellant's documentation.
Case: SZKLO v Minister for Immigration and Citizenship [2008] FCA 735 , 102 ALD 115
Outcome: cited
provision of reasons serves a valuable purpose in the administration of justice: C onnell v Auckland City Council [1977] 1 NZLR 630. Chilwell J there observed, at 634: A matter which I have not mentioned, which is another reason for requiring the stating of reasons, is this: every litigant who loses his action, whether it be in the civil or criminal jurisdiction, is a disappointed litigant. That is inevitable and is a logical result of our judicial system. There is all the world of difference between a disappointed litigant and a disturbed litigant. In the latter category come litigants who cannot understand why the decision went against him. In this case the appellant would be justified in feeling disturbed as he presumably does because he has brought this appeal. He is disturbed that justice did not appear to him to have been done. It is of the utmost importance that Her Majesty's subjects should have faith in our judicial system. By far the greatest number of civil and criminal cases come before the lower court. One should not draw distinctions between courts but it is of fundamental importance that the lower courts, which deal with so much work and with whom the average citizen has greater contact, should maintain respect for and faith in the judicial system. Applied: SZKLO v Minister for Immigration and Citizenship [2008] FCA 735 at [20] , 102 ALD 115 at 120. In a subsequent decision of the New Zealand Court of Appeal in Bell-Booth v Bell-Booth [1998] 2 NZLR 2 at 6 the Court observed: Reasons for judgment are a fundamental attribute of the common law. The affinity of law and reason has been widely affirmed and a Judge's reasoning &#8212; his or her reasons for the decision &#8212; is a demonstration of that close assimilation. Arbitrariness or the appearance of arbitrariness is refuted and genuine cause for lasting grievances is averted. Litigants are assured that their case has been understood and carefully considered. If dissatisfied with the outcome, they are able to assess the wisdom and worth of exercising their rights of appeal. At the same time public confidence in the legal system and the legitimacy and dynamic of the common law is enhanced. The legal system can be seen to be working and, although possibly at times imperfectly, striving to achieve justice according to law.
Case: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158
Outcome: applied
to the exercise of any discretion is an assessment as to whether it is " expedient in the interests of justice" to allow the fresh argument to be now relied upon: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158. Kiefel, Weinberg and Stone JJ there concluded: [46] In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so ... [47] In Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 , Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7: "It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish." [48] The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court. Applied: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 at [163] , [2005] FCAFC 134 ; 147 FCR 51 at 84 per Madgwick J (Conti J agreeing).
Case: WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277
Outcome: cited
is equally no injustice to the Applicant in not now entertaining the argument as to the failure on the part of the Tribunal to itself initiate further inquiries, as there is no such general duty imposed upon the Tribunal. In Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 , the Full Court held that there is no duty upon the Tribunal to undertake its own investigation into the authenticity of documents supporting a visa application. Black CJ, von Doussa, Sundberg and Mansfield JJ there noted at 561: Although we have concluded that there may be circumstances in which the Tribunal's obligation to act according to substantial justice requires it to make inquiries, we are respectfully unable to agree with the primary judge's general proposition that where an applicant produces a document which purports to be an official document issued in a foreign country, its disputed authenticity is a matter appropriate for verification by the Tribunal through official channels ... In a particular case the Tribunal may indeed be obliged to verify a document in this fashion, but there is no general rule to that effect. In that case, the purported source of the Tribunal's obligation to make inquiries was s 420 of the Migration Act . Nor can a duty to enquire be sourced from s 427(1)(d) of the Migration Act . This provision empowers the Tribunal to make its own inquiries for the purpose of reviewing a decision, but it creates no obligation on the part of the Tribunal: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 , 78 ALD 224 per Gummow and Hayne JJ at [43] and Callinan J at [124]; WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277 per Heerey, Nicholson and Mansfield JJ at [24] to [25]; SZATG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1595 , 83 ALD 596 per Hely J at [22]. In the present case, there is no error in the Tribunal proceeding to make its decision without pursuing further inquiries of its own initiative into the veracity of the Appellant's documentation.
Case: Australian Securities and Investments Commission , In the Matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 3) [2006] FCA 433
Outcome: cited
For reasons published on 20 April 2006 orders were made appointing receivers to the property of the four individuals and three of the corporations being the fifth, sixth and eighth defendants Australian Securities and Investments Commission, In the Matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 3) [2006] FCA 433. A separate order, by way of a Mareva injunction, was made against the seventh defendant, Bowesco Pty Ltd, which was already in receivership under the terms of securities over its assets. Similar orders were made in relation to Keypoint Developments on 26 May 2006 - Australian Securities and Investments Commission, In the Matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 4) [2006] FCA 644.
Case: Australian Securities and Investments Commission, In the Matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 4) [2006] FCA 644
Outcome: cited
For reasons published on 20 April 2006 orders were made appointing receivers to the property of the four individuals and three of the corporations being the fifth, sixth and eighth defendants Australian Securities and Investments Commission, In the Matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 3) [2006] FCA 433. A separate order, by way of a Mareva injunction, was made against the seventh defendant, Bowesco Pty Ltd, which was already in receivership under the terms of securities over its assets. Similar orders were made in relation to Keypoint Developments on 26 May 2006 - Australian Securities and Investments Commission, In the Matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 4) [2006] FCA 644.
Case: Australian Securities and Investment Commission v Burke [2000] NSWSC 694
Outcome: cited
In accordance with the authorities relating to the application of s 1323 and its predecessors there was no requirement on ASIC to demonstrate a prime facie case of liability on the part of the defendants or that they had contravened any law or even that their assets had been or were about to be dissipated. There was therefore a need for restraint in the formulation of orders made under the section. The appointment of a receiver is 'an extraordinary step' Australian Securities and Investment Commission v Burke [2000] NSWSC 694 at [8] (Austin J). In the present case the interlocutory character and protective purposes of the orders made were considered in defining the limits of the receivers' powers. The powers so defined were a moderated and qualified version of those initially sought by ASIC.
Case: Corporate Affairs Commission v Transphere (1988) 15 NSWLR 596
Outcome: cited
The provisional character of the judgments upon which the orders for the appointment of the receivers were based informs consideration of the question whether the receivers' costs of discharging their functions under those orders should be borne by the defendants. It is not the object of the orders made under s 1323 to punish the defendants. Their object is to preserve their assets and thereby protect the interests of persons to whom they may have a liability. A secondary object is to ascertain the extent of the assets. This understanding of the purpose of such orders is well established in case law relating to s 1323 and its predecessors. In Corporate Affairs Commission v Smithson (1984) 3 NSWLR 547, Waddell J said of the like provisions of s 573 of the Companies (New South Wales) Code (at 553): '... the purpose of appointing a receiver is to provide security for the moneys which the relevant person is, or may become, liable to pay.' See also Corporate Affairs Commission v Transphere (1988) 15 NSWLR 596 at 611; Corporate Affairs Commission v ASC Timber Pty Ltd (1992) 10 ACSR 525 at 531.
Case: Corporate Affairs Commission v ASC Timber Pty Ltd (1992) 10 ACSR 525
Outcome: cited
The provisional character of the judgments upon which the orders for the appointment of the receivers were based informs consideration of the question whether the receivers' costs of discharging their functions under those orders should be borne by the defendants. It is not the object of the orders made under s 1323 to punish the defendants. Their object is to preserve their assets and thereby protect the interests of persons to whom they may have a liability. A secondary object is to ascertain the extent of the assets. This understanding of the purpose of such orders is well established in case law relating to s 1323 and its predecessors. In Corporate Affairs Commission v Smithson (1984) 3 NSWLR 547, Waddell J said of the like provisions of s 573 of the Companies (New South Wales) Code (at 553): '... the purpose of appointing a receiver is to provide security for the moneys which the relevant person is, or may become, liable to pay.' See also Corporate Affairs Commission v Transphere (1988) 15 NSWLR 596 at 611; Corporate Affairs Commission v ASC Timber Pty Ltd (1992) 10 ACSR 525 at 531.
Case: Jackson v Sterling Industries Ltd [1987] HCA 23 ; (1987) 162 CLR 612
Outcome: cited
The Corporations Act does not expressly authorise the Court to make an order that the persons or companies who are the subject of the orders appointing receivers to their property pay the costs of those receivers in discharging their function. The Court may confer upon the receivers 'such powers as the Court orders'. Such powers necessarily relate to the ways in which the receivers can deal with a relevant person's property. The imposition of a costs liability by the Court is not readily accommodated by words authorising it to confer powers on the receivers. Absent any express power in the Corporations Act the relevant provision can be found in s 23 of the Federal Court Act or in the implied incidental power Jackson v Sterling Industries Ltd [1987] HCA 23 ; (1987) 162 CLR 612. 20 Although, in my opinion, the existence of a power to impose a liability to pay receivers' remuneration out of the defendants' assets can be found in s 23 as an incident of the powers conferred on the Court by s 1323 of the Corporations Act , it is not lightly to be exercised.
Case: Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194
Outcome: cited
The point was well made by Waddell J in Corporate Affairs Commission v Smithson in which the appointment of receivers under s 573 of the Corporations (New South Wales) Code was considered. The section was, in the relevant parts, similar to s 1323. Waddell J pointed to the 'severe effects' that the appointment of a receiver might have upon a defendant noting that the court was precluded from requiring the Commission to give an undertaking as to damages as a condition of appointing a receiver. Unjustified and irrecoverable damage could be suffered where the relevant person was subject to the appointment of receivers as security for claims which might not be made out. Waddell J further said (at 556): 'If a receiver is appointed on terms which permit him to take his remuneration out of the assets received by him, the unjustified damage caused to the relevant person would be so much greater. It should not be thought that in every case the property of a relevant person may be taken over by a receiver and his financial affairs investigated in order to provide security for claims against him, which may or may not succeed, on the basis that in any event the relevant person will have to pay the receiver's remuneration. It may well be that in a particular case, in order to avoid such a consequence, no order should be made permitting the receiver to take his remuneration out of the assets received, thus leaving it to the Commissioner to be responsible for such remuneration pending a determination of the liability of the relevant person.' In Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194, Hill J cited the passage from the judgment of Waddell J including that quoted above, and said (at 204): 'I am in complete agreement with what is said by Waddell J.'
Case: Australian Securities Commission v Berona Investments Pty Ltd (1995) 18 ACSR 772
Outcome: cited
In Australian Securities Commission v Berona Investments Pty Ltd (1995) 18 ACSR 772, Cooper J held that the conduct of the respondents and their controllers had resulted in the appointment of the receivers and that there was therefore no need to depart from 'the ordinary rule that the respondents be liable for the costs of the receiver appointed by the Court'. In so concluding, Cooper J cited a judgment of McPherson J in Rosanove v O'Rourke (1987) 1 Qd R 275. The question in that case was whether receivers appointed in the equitable jurisdiction of the Supreme Court of Queensland, to a partnership in dispute, should be able to recover against the partners personally for their remuneration where partnership assets were not sufficient. McPherson J answered the question in the affirmative but was reversed in the Full Court in Rosanove v O'Rourke (1988) 1 Qd R 171. It was not in dispute that the receivers could recover their remuneration out of the assets of the partnership. Connolly J said (at 174): 'Trustees and receivers are, generally speaking, in a similar position in at least two respects. First, both are permanently liable on their contracts and second, both have a right of indemnity out of the property or estate.' That similarity did not extend to the trustee's right to recover from a beneficiary personally the amount expended by them (174). In my opinion the position of a receiver appointed in the exercise of equitable jurisdiction differs from that of a receiver appointed in the exercise of the statutory power conferred by s 1323. There is no entitlement, that goes with the appointment, to recover remuneration from the assets of the relevant person. The appointment under s 1323 when made on the application of ASIC and based on an ongoing investigation, aids the public regulatory and protective functions conferred upon ASIC by the Corporations Act and by the Australian Securities and Investments Commission Act 2001 (Cth) . That is a foundation for such an appointment which differs from that which underpins the private equitable remedy.
Case: Rosanove v O'Rourke (1988) 1 Qd R 171
Outcome: cited
In Australian Securities Commission v Berona Investments Pty Ltd (1995) 18 ACSR 772, Cooper J held that the conduct of the respondents and their controllers had resulted in the appointment of the receivers and that there was therefore no need to depart from 'the ordinary rule that the respondents be liable for the costs of the receiver appointed by the Court'. In so concluding, Cooper J cited a judgment of McPherson J in Rosanove v O'Rourke (1987) 1 Qd R 275. The question in that case was whether receivers appointed in the equitable jurisdiction of the Supreme Court of Queensland, to a partnership in dispute, should be able to recover against the partners personally for their remuneration where partnership assets were not sufficient. McPherson J answered the question in the affirmative but was reversed in the Full Court in Rosanove v O'Rourke (1988) 1 Qd R 171. It was not in dispute that the receivers could recover their remuneration out of the assets of the partnership. Connolly J said (at 174): 'Trustees and receivers are, generally speaking, in a similar position in at least two respects. First, both are permanently liable on their contracts and second, both have a right of indemnity out of the property or estate.' That similarity did not extend to the trustee's right to recover from a beneficiary personally the amount expended by them (174). In my opinion the position of a receiver appointed in the exercise of equitable jurisdiction differs from that of a receiver appointed in the exercise of the statutory power conferred by s 1323. There is no entitlement, that goes with the appointment, to recover remuneration from the assets of the relevant person. The appointment under s 1323 when made on the application of ASIC and based on an ongoing investigation, aids the public regulatory and protective functions conferred upon ASIC by the Corporations Act and by the Australian Securities and Investments Commission Act 2001 (Cth) . That is a foundation for such an appointment which differs from that which underpins the private equitable remedy.
Case: Australian Securities Commission v Cooke (1996) 22 ACSR 580
Outcome: cited
In Australian Securities Commission v Cooke (1996) 22 ACSR 580, Nicholson J made an order for receiver's costs under s 1323 to recover remuneration out of the estate of the relevant person. There were, however, no reasons given to explain that order and it does not appear that it was the subject of any argument before his Honour. 24 I do not consider at this stage that, absent agreement, I should order that the receivers recover the costs and remuneration out of the assets of the defendants. While there are serious concerns about the conduct of the defendants, these are based on provisional judgments about the facts. No liability has been ascertained. I am prepared to make an order in respect of the third and fourth defendants because they have consented to that course no doubt on the basis that they are insulated from the risk of having to contribute to the costs of the receiverships over other defendants. ASIC will have liberty to apply again for the orders it seeks as circumstances change. It may also seek an order at or before the end of the receivership that it be indemnified out of the assets of the defendants (other than the third and fourth defendants) for any payments made by it to the receivers in relation to the discharge of their functions. 25 In the orders made on 20 April 2006 there was included, as against Mr Carey and other individual defendants, an order in the following terms: 4. Except to the extent that a claim of privilege against self incrimination or exposure to civil penalty is made by any of the First, Second, Third and Fourth Defendants, each of the First, Second, Third and Fourth Defendants shall, by 5.00pm on Thursday 4 May 2006, deliver or cause to be delivered to the Plaintiff and the Individual Receivers full and detailed affidavits sworn by each of them, setting out: 4.1 the name and address of any bank, building society or other financial institution at which there is an account in the name of or under the control of the respective Defendant, together with the number of such account, the name of such account and the balance of that account at the date of this Order; 4.2 the name and address of any person or persons indebted to the respective Defendant at the date of this Order and the amount of the indebtedness; 4.3 an itemised inventory of the respective Defendant's assets and liabilities; 4.4 an itemised inventory of any and all property whether real or personal; 4.4.1 owned by the respective Defendant; 4.4.2 controlled by the respective Defendant; and 4.4.3 in which the respective Defendant has an interest, and which includes details of the location of that property;...'