mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 
Outcome: cited
The Minister submitted that the RRT was not able to be satisfied that the applicant met the s 36(2) criteria for the grant of a protection visa. Therefore it had no option but to refuse to grant him such a visa: SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] . 22 The Minister added that to the extent that this ground was intended to allege a failure by the RRT to comply with one or more of its statutory obligations under Div 4 of Pt 7 of the Act (s 422B of which provides represents an exhaustive statement of the natural justice hearing rule), the RRT had complied with those obligations, including those pursuant to ss 425 and 425A of the Act . 23 Ground 2 is in the following terms: "That the decision of the RRT says that the applicant satisfies the criterion for refugee visain [sic] conclusion of the statement of decision, the RRT remitted back the case to the department. After a few weeks times the appellant was notified by another decision which is quite different to the decision made on 11/10/2007, which really requires the judicial inference [sic] of this honourable Court to meet the ends of justice." 24 The Minister submitted that no arguable jurisdictional error arose by reason of the fact that the RRT's decision record, as initially sent to the applicant on 11 October 2007, contained a clerical error, and the Federal Magistrate was correct in so finding. 25 The Minister further submitted that the RRT's obligation to send the applicant a copy of the decision was not one which could impact upon the validity of the decision itself. That was because the decision had already been made.
Case: SZFLM v Minister for Immigration and Citizenship [2007] FCA 863
Outcome: considered
In SZFLM v Minister for Immigration and Citizenship [2007] FCA 863 (recently applied in SZJHM v Minister for Immigration and Citizenship [2007] FMCA 1847 and SZKTR v Minister for Immigration and Citizenship [2007] FCA 1767) , Madgwick J considered whether the RRT's failure to send the appellant a complete copy of its reasons for decision, in breach of s 430B(6) of the Act , amounted to a reviewable error. The copy of the decision sent to the appellant was missing page five, which set out the RRT's reasons. The incomplete decision record was therefore sufficient to notify the appellant of what decision had been made but not why.
Case: SZJHM v Minister for Immigration and Citizenship [2007] FMCA 1847
Outcome: cited
In SZFLM v Minister for Immigration and Citizenship [2007] FCA 863 (recently applied in SZJHM v Minister for Immigration and Citizenship [2007] FMCA 1847 and SZKTR v Minister for Immigration and Citizenship [2007] FCA 1767) , Madgwick J considered whether the RRT's failure to send the appellant a complete copy of its reasons for decision, in breach of s 430B(6) of the Act , amounted to a reviewable error. The copy of the decision sent to the appellant was missing page five, which set out the RRT's reasons. The incomplete decision record was therefore sufficient to notify the appellant of what decision had been made but not why.
Case: SZKTR v Minister for Immigration and Citizenship [2007] FCA 1767
Outcome: cited
In SZFLM v Minister for Immigration and Citizenship [2007] FCA 863 (recently applied in SZJHM v Minister for Immigration and Citizenship [2007] FMCA 1847 and SZKTR v Minister for Immigration and Citizenship [2007] FCA 1767) , Madgwick J considered whether the RRT's failure to send the appellant a complete copy of its reasons for decision, in breach of s 430B(6) of the Act , amounted to a reviewable error. The copy of the decision sent to the appellant was missing page five, which set out the RRT's reasons. The incomplete decision record was therefore sufficient to notify the appellant of what decision had been made but not why.
Case: Foroghi v Minister for Immigration and Multicultural Affairs [2001] FCA 1875
Outcome: considered
The authorities dealing with errors of a typographical nature are also relevant. In particular, the Minister drew my attention to the observations of Marshall J in Foroghi v Minister for Immigration and Multicultural Affairs [2001] FCA 1875 where his Honour stated (at [48]): "Occasionally the RRT, like other decision-makers, delivers reasons for decision without 100% proof reading. Occasionally mistakes are not discovered even when the best proof readers have examined draft reasons. The existence of typographical error is best acknowledged rather than attempted to be exploited; see CCC v Minister for Immigration and Multicultural Affairs [2001] FCA 682." 30 In Foroghi , the RRT wrongly referred to the applicant (rather than another person) as being dead. In CCC v Minister for Immigration and Multicultural Affairs [2001] FCA 682 , a judgment also delivered by Marshall J, the RRT had made a typographical error in omitting the word 'not' from its finding as follows: "...the Tribunal is satisfied that there is a real chance that [CCC] faces persecution for reason of her race, should she return to Sri Lanka."
Case: CCC v Minister for Immigration and Multicultural Affairs [2001] FCA 682
Outcome: considered
The authorities dealing with errors of a typographical nature are also relevant. In particular, the Minister drew my attention to the observations of Marshall J in Foroghi v Minister for Immigration and Multicultural Affairs [2001] FCA 1875 where his Honour stated (at [48]): "Occasionally the RRT, like other decision-makers, delivers reasons for decision without 100% proof reading. Occasionally mistakes are not discovered even when the best proof readers have examined draft reasons. The existence of typographical error is best acknowledged rather than attempted to be exploited; see CCC v Minister for Immigration and Multicultural Affairs [2001] FCA 682." 30 In Foroghi , the RRT wrongly referred to the applicant (rather than another person) as being dead. In CCC v Minister for Immigration and Multicultural Affairs [2001] FCA 682 , a judgment also delivered by Marshall J, the RRT had made a typographical error in omitting the word 'not' from its finding as follows: "...the Tribunal is satisfied that there is a real chance that [CCC] faces persecution for reason of her race, should she return to Sri Lanka." 31 Marshall J said in CCC , at [29]: "I see no reason to defy commonsense by not observing that a typographical error was made. I would read in the word 'not' prior to the word 'satisfied' in the sentence quoted above." 32 These observations are relevant to the present application. No arguable jurisdictional error arose out of the clerical error which the RRT made. That error was not capable of affecting the exercise of its jurisdiction. 33 Ground 3 is in the following terms: "That the Respondents have failed to assess the claims made by the appellant as per the refugee law as laid down by the hand book of the UNHCR. The real threat to the life of the Appellant was not considered in the instant case."
Case: Australian Competition and Consumer Commission v Info 4PC.Com Pty Ltd [2002] FCA 949 ; (2002) 121 FCR 24
Outcome: referred to
In Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 149 FCR 494 at 501-502, Merkel J identified the following considerations as being relevant to the determination of an appropriate penalty for contempt of Court: &#8226; The contemnor's personal circumstances; &#8226; The nature and circumstances of the contempt; &#8226; The effect of the contempt on the administration of justice; &#8226; The contemnor's culpability; &#8226; The need to deter the contemnor and others from repeating contempt; &#8226; The absence or presence of a prior conviction for contempt; &#8226; The contemnor's financial means; &#8226; Whether the contemnor has exhibited general contrition and made a full and ample apology; &#8226; Whether the conduct falls within the most serious category of criminal contempt cases such as to warrant the imposition of a term of imprisonment; and &#8226; Whether or not imprisonment is a "last resort" penalty in the circumstances of the case. See also Australian Competition and Consumer Commission v Info4PC.Com Pty Ltd [2002] FCA 949 ; (2002) 121 FCR 24 at 54; Australian Competition and Consumer Commission v World Netsafe Pty Ltd [2003] FCA 1501 ; (2003) 204 ALR 537 at 540.
Case: Australian Competition and Consumer Commission v World Netsafe Pty Ltd [2003] FCA 1501 ; (2003) 204 ALR 537
Outcome: referred to
In Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 149 FCR 494 at 501-502, Merkel J identified the following considerations as being relevant to the determination of an appropriate penalty for contempt of Court: &#8226; The contemnor's personal circumstances; &#8226; The nature and circumstances of the contempt; &#8226; The effect of the contempt on the administration of justice; &#8226; The contemnor's culpability; &#8226; The need to deter the contemnor and others from repeating contempt; &#8226; The absence or presence of a prior conviction for contempt; &#8226; The contemnor's financial means; &#8226; Whether the contemnor has exhibited general contrition and made a full and ample apology; &#8226; Whether the conduct falls within the most serious category of criminal contempt cases such as to warrant the imposition of a term of imprisonment; and &#8226; Whether or not imprisonment is a "last resort" penalty in the circumstances of the case. See also Australian Competition and Consumer Commission v Info4PC.Com Pty Ltd [2002] FCA 949 ; (2002) 121 FCR 24 at 54; Australian Competition and Consumer Commission v World Netsafe Pty Ltd [2003] FCA 1501 ; (2003) 204 ALR 537 at 540.
Case: Australian Prudential Regulation Authority v Siminton (No 3) [2006] FCA 397 ; (2006) 230 ALR 528
Outcome: referred to
The following passage from Merkel J's sentencing remarks in Siminton (No 3) is relevant for present purposes: "The court has a broad discretion as to penalty. Having regard to the factors set out above [those noted at [15] of these reasons] and the matters put forward by counsel on behalf of Siminton, the appropriate term of imprisonment for the disposal contempt is 10 weeks. I would add that had there been any prior contempt convictions, the penalty would have been significantly greater. I am not prepared to accede to Siminton's submission that any sentence of imprisonment should be suspended." See Australian Prudential Regulation Authority v Siminton (No 3) [2006] FCA 397 ; (2006) 230 ALR 528 at 532.
Case: Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 149 FCR 494
Outcome: referred to
In Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 149 FCR 494 at 501-502, Merkel J identified the following considerations as being relevant to the determination of an appropriate penalty for contempt of Court: &#8226; The contemnor's personal circumstances; &#8226; The nature and circumstances of the contempt; &#8226; The effect of the contempt on the administration of justice; &#8226; The contemnor's culpability; &#8226; The need to deter the contemnor and others from repeating contempt; &#8226; The absence or presence of a prior conviction for contempt; &#8226; The contemnor's financial means; &#8226; Whether the contemnor has exhibited general contrition and made a full and ample apology; &#8226; Whether the conduct falls within the most serious category of criminal contempt cases such as to warrant the imposition of a term of imprisonment; and &#8226; Whether or not imprisonment is a "last resort" penalty in the circumstances of the case. See also Australian Competition and Consumer Commission v Info4PC.Com Pty Ltd [2002] FCA 949 ; (2002) 121 FCR 24 at 54; Australian Competition and Consumer Commission v World Netsafe Pty Ltd [2003] FCA 1501 ; (2003) 204 ALR 537 at 540.
Case: Clifford v Middleton [1974] VR 737
Outcome: referred to
I do not consider that a distinction should be drawn between the four charges that relate to events which occurred before 9 May 2006 and the other four which occurred after that date. The purpose of the endorsement provided for in Order 37 r 2 of the Federal Court Rules is to alert the person, to whom the orders are directed, that he or she stands in jeopardy of imprisonment if he or she fails to comply with the orders. Given that the liberty of the subject is at stake the Court will not lightly exercise its power under Order 37 r 2(6) and dispense with the requirement of service of a properly endorsed order. It will not do so unless "the evidence shows that the requirements of and the purpose of a particular rule have been fulfilled in a manner otherwise than in the form provided": see Clifford v Middleton [1974] VR 737 at 741, a passage which was quoted with approval by the Full Court in Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118 ; (2006) 152 FCR 129 at 147.
Case: Electrolux Home Products Pty Ltd v Australian Workers' Union [2001] FCA 1600
Outcome: distinguished
Electrolux Home Products Pty Ltd v Australian Workers' Union [2001] FCA 1600 (' Electrolux No. 1 ') the Court considered whether a claim that the employer contribute the equivalent of 1.5 per cent of an employee's weekly wage for a scheme to protect long service leave and other entitlements in an external trust deed pertained to the relationship of employer and employee. Justice Merkel at [21] conveniently summarised the relevant principles as follows: The general approach to be adopted in determining the characterisation of an industrial claim is to look at the substance of the demand and to identify the aspect that is central to the claim, or a critical part of it, having regard to the context in which the claim is made: see Re The Amalgamated Metal Workers Union of Australia; Ex parte Shell Co. of Australia Ltd [1992] HCA 38 ; (1992) 174 CLR 345 (" Shell ") at 358-359. The claim is not to be construed as if it were a document creating legal rights and obligations: see Shell at 359. Finally, a claim can be properly characterised as pertaining to the relationship of an employer and its employees notwithstanding that parts of a claim that are machinery provisions giving effect to the claim (see Shell at 359), or ancillary aspects of it (see R v Portus; Ex parte Australia and New Zealand Banking Group Ltd [1972] HCA 57 ; (1972) 127 CLR 353 (" Portus ") at 372), may not pertain to that relationship. If a claim pertains to the requisite relationship in accordance with the above principles it is because it is in respect of a matter that pertains to that relationship.
Case: Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40 ; (2004) 221 CLR 309
Outcome: followed
High Court in Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40 ; (2004) 221 CLR 309 (' Electrolux No. 2 ') confirmed that the principles discussed in the preceding paragraphs apply to the Act. Gleeson CJ said at [10]: The Court [in Portus at 359, 362] approved statements in R v Kelly; Ex parte Victoria to the effect that "the relations of employers and employees" refers to the industrial relationship, and not to matters having an indirect, consequential and remote effect on that relationship. [Footnote omitted].
Case: Re Manufacturing Grocers' Employees Federation of Australia and Another; Ex parte The Australian Chamber of Manufacturers and Another [1986] HCA 23 ; (1986) 160 CLR 341
Outcome: distinguished
the union submits that the payments made by the employer to the insurer for income protection insurance should simply be seen as a reward for services, in the same way that a salary is a reward for services. The union relies upon the judgment of Steven J in Portus at 371 where his Honour said: The necessary quality of a subject matter demanded which is concerned with reward for work performed is, I think, that it be, of itself, inherently associated with the relationship of employer and employee and not with some other type of relationship. Reward by way of remuneration of course conforms most clearly to such a test; the payment of wages or salary is inherent in the relevant relationship. Likewise demands for, for instance, paid annual holidays or retirement benefits... would, I think, satisfy this requirement... As evidence that payments are merely another form of reward for services, the union emphasises the fact that the clause requires payments of premiums to be made by the corporation to the insurer only whilst the Maritime Officer is in the employ of the corporation, adopting the reasoning of the High Court in Re Manufacturing Grocers' Employees Federation of Australia and Another; Ex parte The Australian Chamber of Manufactures and Another [1986] HCA 23 ; (1986) 160 CLR 341 (' the Superannuation Case ') at 356.
Case: The Queen v Hamilton Knight and Others; Ex parte Commonwealth Steamship Owners Association [1952] HCA 38 ; (1952) 86 CLR 283
Outcome: followed
The Queen v Hamilton Knight and Others; Ex parte Commonwealth Steamship Owners Association [1952] HCA 38 ; (1952) 86 CLR 283 the High Court recognised that a causal connection between the employment and the injury was a vital consideration in determining whether workers compensation benefits could be found to be directly connected with the relationship between the employer and employee: see Dixon CJ at 296; Kitto J at 329. In the present case there is no necessity that there be a causal connection between the employment and the injury which triggers income protection insurance benefits, since the event giving rise to the insurance benefit may be unconnected with the employment. Immediately before the passage of Steven J in Portus cited at [15] of this judgment, his Honour said: Not every demand for reward for work performed will render the subject matter of the demand an industrial matter. The matter demanded must always pertain to the employer-employee relationship... It follows that the mere assertion by the union that such payments of insurance premiums are a reward for services does not, without more, establish the necessary nexus to the employment relationship. The union's reliance on the High Court in the Superannuation Case at 356 where it said ' the obligation of the employer to make payments ends with the relationship between him and his employee ' is insufficient to establish that nexus. This particular passage was used in the context of distinguishing superannuation from pensions, which had been found in Hamilton Knight to not pertain to the relationship between employer and employee, rather than to provide a reason why superannuation could be considered to pertain to the relationship between employer and employee.
Case: MZXDQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1632
Outcome: followed
appellants submitted that this approach is contrary to Dranichnikov [2003] HCA 26 ; (2003) 197 ALR 389. However relevantly in MZXDQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1632 Finkelstein J observed: [18] The Appellant contended before this Court that this was an impermissible line of reasoning. He argued that the steps outlined in Dranichnikov must be followed even if the Tribunal is of the view that the Applicant's fear is unrelated to the membership of any such group. This is plainly incorrect. Courts will frequently skip over more difficult questions if the main issue can be determined from the answer to a simpler later question: in the law of negligence, there is no need to ask whether there is a duty of care if it is obvious that there has been no damage. In this case, moving to the last step in Dranichnikov was quite proper. ... [25] It is entirely proper to avoid identifying the appropriate "particular social group" if it is unnecessary to do so. Dranichnikov does not demand otherwise.
Case: CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33 ; (1997) 189 CLR 345
Outcome: applied
The concession made by Mr Goot appears to me to be correct. In CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33 ; (1997) 189 CLR 345 , the joint judgment of six members of the High Court noted (at 391) that the power to stay proceedings on the ground of forum non conveniens is an aspect of the inherent or implied power which, in the absence of some statutory provisions to the same effect, every court must have to prevent its own processes being used to bring about injustice. The joint judgment went on to say (at 391) that: '[t]he counterpart of a court's power to prevent its processes being abused is its power to protect the integrity of those processes once set in motion. And in some cases, it is that counterpart power of protection that authorises the grant of anti-suit injunctions'. (Emphasis in original; citation omitted.) 21 After giving examples of circumstances in which it may be appropriate to grant an anti-suit injunction in relation to foreign proceedings, the joint judgment observed (at 392) that: '[t]he inherent power to grant anti-suit injunctions is not confined to the examples just given. As with other aspects of that power, it is not to be restricted to defined and closed categories. Rather, it is to be exercised when the administration of justice so demands or, in the context of anti-suit injunctions, when necessary for the protection of the court's own proceedings or processes'. (Citation omitted.) 22 The joint judgment identified a number of circumstances in which it may be appropriate to make orders restraining the commencement or continuation of proceedings in other courts (or arbitral bodies). These include the following: &#8226; where the other proceedings interfere with or have a tendency to interfere with proceedings pending in the court ( CSR, at 392; National Mutual Holdings Pty Ltd v The Century Corporation (1989) 22 FCR 209 , at 230-233, per Gummow J); &#8226; where the institution or continuation of the other proceedings involves unconscionable conduct or the unconscionable exercise of legal rights ( CSR, at 392); &#8226; where the other proceedings are, according to the principles of equity, vexatious or oppressive ( CSR, at 393), for example where a second proceeding is commenced in a court, and an action is pending in another court with respect to the matters in issue ( Henry v Henry (1996) 185 CLR 571 , at 590-591, per Dawson, Gaudron, McHugh and Gummow JJ); and &#8226; where the bringing of proceedings with respect to one claim is properly to be seen as an election either not to proceed on another claim or not to proceed in another jurisdiction, thus giving rise to an estoppel by conduct ( CSR, at 394). The joint judgment emphasised, however, that the power is not to be confined by reference to the example found in the decided cases. Rather, it is a power the limits of which are to be determined by the dictates of ' equity and good conscience ' ( CSR, at 394).