mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Brock v Minister for Justice &amp; Customs [2007] FCA 2091
Outcome: considered
Repetitious challenges to decisions made under the Extradition Act 1988 (Cth), or a failure to raise for resolution issues relevant to a decision the subject of review may constitute an abuse of process: Rivera v Minister Administering the Extradition Act 1988 (Cth) [2007] FCAFC 191 at [13] [15] per Rares J, [2007] FCAFC 191 ; 99 ALD 235. See also Brock v Minister for Justice &amp; Customs [2007] FCA 2091. In the present proceedings, it is considered an abuse of process for the Applicant to now again seek to agitate the validity of the order made under s 18 and to thereby attempt to vitiate the subsequent s 22 determination.
Case: Brock v United States of America [2007] FCAFC 3 , 157 FCR 121
Outcome: considered
Whether or not either of these two fields of inquiry can be properly characterised as " jurisdictional facts " thus need not be resolved. The resolution of whether a fact is jurisdictional or not remains a matter of statutory construction: Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8 at [39] , 46 NSWLR 55 at 64 per Spigelman CJ (Mason P and Meagher JA agreeing). Less difficulty may be experienced in characterising as a " jurisdictional fact " a question as to whether a person has informed a magistrate of his consent; greater difficulty, however, may be experienced in characterising as " jurisdictional " whether a magistrate had " reason to believe that the consent was not given voluntarily" . The potential inconvenience consequent upon construing s 18 in such a manner may be a telling reason to conclude that such matters are not " jurisdictional ": cf Brock v United States of America [2007] FCAFC 3 at [30] per Black CJ, [2007] FCAFC 3 ; 157 FCR 121.
Case: Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) [2006] FCA 1416
Outcome: followed
In Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) [2006] FCA 1416 Jacobson J helpfully summarised the principles to be applied to s 31A: [30] ...The authorities relating to the proper construction and effect of s 31A of the Federal Court of Australia Act were exhaustively reviewed by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 at [31] [48]. His Honour stated the relevant principles at [45] and they may be summarised as follows: * In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal. * There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment is sought to succeed at the final hearing. * Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects. * Unless only one conclusion can be said to be reasonable, the discretion under s 31A cannot be enlivened. 57 In the present proceedings it is recognised that, when resolving the Minister's Motion , it is not necessary to conclude that Mr Karsten's case is either " hopeless " or " bound to fail ". It is, however, considered that it has " no reasonable prospect [s] of success ." It is considered that Mr Karsten has no reasonable prospects of any conclusion being reached other than that: (a) he is an " extraditable person " within the meaning of ss 6 and 16 of the Extradition Act ; (b) the offence in respect of which his extradition is sought is an " extradition offence " within the meaning of ss 5 and 16 of the Act; and (c) he is an " eligible person " under s 22 of the Act. 58 Two further miscellaneous matters should be mentioned lest it be thought that they have been overlooked or not considered.
Case: Dutton v O'Shane [2003] FCAFC 195 , 132 FCR 352
Outcome: followed
In any event, the approach being urged upon the Court by Mr Karsten to again impose a requirement upon the Attorney-General or the Minister to inquire into the penalty likely to be imposed is an approach which should be rejected. The definition of " extradition offence ", it has been said, is " not concerned with whether there are other alternate and lesser possible penalties, nor with the actual penalty likely to be imposed on the person whose extradition is being sought ": Dutton v O'Shane [2003] FCAFC 195 at [41] , [2003] FCAFC 195 ; 132 FCR 352 at 362 per Finn and Dowsett JJ. 31 It is thus considered that there is no doubt that the offence for which extradition has been sought is in respect of an " extradition offence " as defined in s 5 of the Extradition Act or, alternatively, there was and remains a basis upon which the Respondent Minister could lawfully form that " opinion ". 32 It is understood that the Applicant's contention in respect of the determination made under s 22 is that he was not an " eligible person " because " the applicant was not the subject of a valid order of a magistrate as the applicant's consent was not given voluntarily but under an operative mistake of fact ".
Case: Harris v Attorney-General (Cth) (1994) 52 FCR 386
Outcome: followed
The Extradition Act 1988 (Cth) sets forth a four stage process for the extradition of a person from Australia. These four stages have been summarised as follows by the Full Court in Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 389: The Act contemplates four stages in extradition proceedings as follows: (1) Commencement; (2) Remand; (3) Determination by a magistrate of eligibility for surrender; (4) Executive determination that the person is to be surrendered. In summary form, the scheme is as follows: The commencement of proceedings is by the issue of a provisional warrant under s 12(1) or by the giving of a notice under s 16(1). Once arrested, the person is required by s 15 to be taken before a magistrate and remanded in custody or on bail for such period as may be necessary for eligibility proceedings to be taken under s 19. Where a person is on remand under s 15 and the Attorney-General has given a notice under s 16(1), provision is made under s 19 for a magistrate to conduct proceedings to determine whether the person is eligible for surrender. If eligibility is so determined by the magistrate, provision is made by s 22 for the Attorney-General to decide whether the person is to be surrendered. This approach has subsequently been endorsed by Gleeson CJ in Vasiljkovic v Commonwealth [2006] HCA 40 at [29] , [2006] HCA 40 ; 227 CLR 614 and by Gummow J in Director of Public Prosecutions (Cth) v Kainhofer [1995] HCA 35 , 185 CLR 528 at 547. It has most recently been endorsed by a Full Court of this Court in Minister for Home Affairs v Tervonen [2008] FCAFC 24 at [9] per Jacobson, Bennett and Buchanan JJ.
Case: Rivera v Minister Administering the Extradition Act 1988 (Cth) [2007] FCAFC 191 , 99 ALD 235
Outcome: followed
The Further Amended Application seeks to challenge a notice issued under s 16 of the Extradition Act 1988 (Cth) on 24 October 2006 and a determination that the Applicant be surrendered pursuant to s 22 of that Act. The Applicant contends that for the purposes of the Act that: (i) he is not an " extraditable person " within ss 6 and 16 ; (ii) the offence in respect of which extradition is sought is not an " extradition offence " within ss 5 and 16 ; and (iii) he is not an " eligible person " within s 22. These contentions, if made out, are said to constitute jurisdictional error on the part of the Respondent Minister. 3 On 19 February 2008 a Further Amended Notice of Motion was filed on behalf of the Respondent Minister seeking the dismissal of the Further Amended Application . It is that Motion which is presently before the Court. 4 It is considered that each of the Applicant's contentions should be rejected and that the orders as sought in the Respondent Minister's Motion should be made. 8 A warrant under s 18(2) was thereafter issued on 20 December 2006 by Magistrate Madden, a magistrate of the Australian Capital Territory. On the same day a letter was forwarded by the Magistrate to the then Attorney-General (the Honourable Phillip Ruddock) identifying the Applicant and stating: As required by s 18(2)(b)(ii) of the Extradition Act 1988 I advise that on 20 December 2006 the abovenamed consented to being surrendered to the Federal Republic of Germany in relation to the following offence: 1. attempted incitement to commit murder contrary to sections 211 and 30 of the German Criminal Code (1 count). I enclose a copy of the warrant under subsection 18(2)(b)(i) that I signed today. 9 On 5 July 2007 the Applicant was advised that the Minister had determined under s 22 that the Applicant was to be surrendered to Germany and that a warrant had been issued for his surrender. 49 Repetitious challenges to decisions made under the Extradition Act 1988 (Cth), or a failure to raise for resolution issues relevant to a decision the subject of review may constitute an abuse of process: Rivera v Minister Administering the Extradition Act 1988 (Cth) [2007] FCAFC 191 at [13] [15] per Rares J, [2007] FCAFC 191 ; 99 ALD 235. See also Brock v Minister for Justice &amp; Customs [2007] FCA 2091. In the present proceedings, it is considered an abuse of process for the Applicant to now again seek to agitate the validity of the order made under s 18 and to thereby attempt to vitiate the subsequent s 22 determination.
Case: Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8 , 46 NSWLR 55
Outcome: followed
Whether or not either of these two fields of inquiry can be properly characterised as " jurisdictional facts " thus need not be resolved. The resolution of whether a fact is jurisdictional or not remains a matter of statutory construction: Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8 at [39] , 46 NSWLR 55 at 64 per Spigelman CJ (Mason P and Meagher JA agreeing). Less difficulty may be experienced in characterising as a " jurisdictional fact " a question as to whether a person has informed a magistrate of his consent; greater difficulty, however, may be experienced in characterising as " jurisdictional " whether a magistrate had " reason to believe that the consent was not given voluntarily" . The potential inconvenience consequent upon construing s 18 in such a manner may be a telling reason to conclude that such matters are not " jurisdictional ": cf Brock v United States of America [2007] FCAFC 3 at [30] per Black CJ, [2007] FCAFC 3 ; 157 FCR 121.
Case: Vasiljkovic v Commonwealth [2006] HCA 40 , 227 CLR 614
Outcome: followed
The Extradition Act 1988 (Cth) sets forth a four stage process for the extradition of a person from Australia. These four stages have been summarised as follows by the Full Court in Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 389: The Act contemplates four stages in extradition proceedings as follows: (1) Commencement; (2) Remand; (3) Determination by a magistrate of eligibility for surrender; (4) Executive determination that the person is to be surrendered. In summary form, the scheme is as follows: The commencement of proceedings is by the issue of a provisional warrant under s 12(1) or by the giving of a notice under s 16(1). Once arrested, the person is required by s 15 to be taken before a magistrate and remanded in custody or on bail for such period as may be necessary for eligibility proceedings to be taken under s 19. Where a person is on remand under s 15 and the Attorney-General has given a notice under s 16(1), provision is made under s 19 for a magistrate to conduct proceedings to determine whether the person is eligible for surrender. If eligibility is so determined by the magistrate, provision is made by s 22 for the Attorney-General to decide whether the person is to be surrendered. This approach has subsequently been endorsed by Gleeson CJ in Vasiljkovic v Commonwealth [2006] HCA 40 at [29] , [2006] HCA 40 ; 227 CLR 614 and by Gummow J in Director of Public Prosecutions (Cth) v Kainhofer [1995] HCA 35 , 185 CLR 528 at 547. It has most recently been endorsed by a Full Court of this Court in Minister for Home Affairs v Tervonen [2008] FCAFC 24 at [9] per Jacobson, Bennett and Buchanan JJ.
Case: Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162
Outcome: cited
There have been three decisions of the Full Court since SZBYR which touch on the aspect of s 424A previously under discussion. In Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 the Full Court looked at the transcript of proceedings and reasons of the Tribunal in determining the applicability of s 424A: see [58], [64]-[68]. Their Honours at [70] referred to what was said in SZBYR at [18], that is to say on the meaning of "information" and whether it extends to doubts, inconsistencies or the absence of evidence, but not to [17].
Case: NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195
Outcome: cited
Turning to the Minister's alternative argument based on s 424A(3)(b) , I agree that the appellant "gave" the relevant information because he confirmed at the hearing that the bond was provided by his friends. It is not to the point that the Tribunal may have already been in possession of the information or that it was provided by the appellant in answer to the Tribunal's questioning: SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 609 at [42] - [43] , see also SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [35] , NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 at [61] .
Case: Re Refugee Review Tribunal; Ex parte Aala [2000] FCA 57 ; (2000) 204 CLR 82
Outcome: applied
Their Honours went on to hold that in any event the discretion under the principles discussed in Re Refugee Review Tribunal; Ex parte Aala [2000] FCA 57 ; (2000) 204 CLR 82 would be exercised because no useful result could ensue from the grant of the relief. Even if the appellants were correct as to the proper operation of s 424A they could not overcome the Tribunal's finding that their claim lacked the requisite Convention nexus.
Case: SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 609
Outcome: cited
Turning to the Minister's alternative argument based on s 424A(3)(b) , I agree that the appellant "gave" the relevant information because he confirmed at the hearing that the bond was provided by his friends. It is not to the point that the Tribunal may have already been in possession of the information or that it was provided by the appellant in answer to the Tribunal's questioning: SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 609 at [42] - [43] , see also SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [35] , NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 at [61] .
Case: SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627
Outcome: cited
Turning to the Minister's alternative argument based on s 424A(3)(b) , I agree that the appellant "gave" the relevant information because he confirmed at the hearing that the bond was provided by his friends. It is not to the point that the Tribunal may have already been in possession of the information or that it was provided by the appellant in answer to the Tribunal's questioning: SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 609 at [42] - [43] , see also SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [35] , NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 at [61] .
Case: SZICU v Minister for Immigration and Citizenship [2008] FCAFC 1
Outcome: cited
In SZICU v Minister for Immigration and Citizenship [2008] FCAFC 1 the Full Court quoted [17] and [18] from SZBYR and stated at [25]: It is not necessary for present purposes to enter upon the question as to how far, in light of the above observation, a court can or should enter upon a consideration of the Tribunal's actual reasons for affirming the decision under review, when determining whether in a given instance a s 424A obligation to give information prior to the making of that decision had arisen.
Case: SZKLG v Minister for Immigration and Citizenship [2007] FCAFC 198
Outcome: cited
Counsel for the Minister argued: 1. Because the Tribunal did not mention the bond issue in the s 424A letter or its findings and reasons it was not "the reason, or part of the reason, for affirming the decision under review". (Thus the Minister's primary argument was that the Magistrate was correct in determining the applicability of s 424A by referring to the Tribunal's reasons); 2. On its face it may have been true that the appellant's friends put up the $20,000. The bond information did not contain a "rejection, denial or undermining" of the appellant's claim to be a person to whom Australia owed protection obligations; 3. The Tribunal was not obliged to comply with s 424A prior to the hearing under s 425: SZKLG v Minister for Immigration and Citizenship [2007] FCAFC 198 (I do not believe the appellant argued that the Tribunal was obliged to do so); 4. In any event, the bond information was excluded from the operation of s 424A by subs (3)(b) since it was information the appellant "gave" to the Tribunal. 19 In SZKLG v Minister for Immigration and Citizenship [2007] FCAFC 198 the information in question was the fact that the appellant had made an earlier application for protection visa which was different from the claim the subject of the instant appeal. The Tribunal sent the appellant a s 424A letter. The appellant's only challenge to its adequacy was a claim that it should have been sent prior to the s 425 hearing. Their Honours at [34] found "no express statutory basis for imposing such a temporal requirement". The purpose of s 424A was to ensure that the overall decision-making process, of which the s 425 hearing is only part, is fair. Their Honours said at [34]: That this is so appears from SZBYR at [17] where the majority held that the s 424A process must occur in advance of, and independently of, the Tribunal's reasoning process, not prior to the s 425 hearing. The Full Court had earlier at [33] said that "considers" in s 424A(1)(a) bears the meaning "be of the opinion that". Their Honours said: Clearly, it is that meaning which is intended in s 424A. The obligation to proceed pursuant to s 424A arises only if the Tribunal forms the opinion that particular information would be the reason, or part of the reason, for affirming the relevant decision. The conditional nature of the obligation reflects the fact that the Tribunal must consider the question in advance of its decision, considering the information upon which it would act, should it decide to affirm the relevant decision. Although the appellant asserts that the Tribunal formed the requisite opinion prior to the s 425 hearing, we see no evidence to that effect. It may have done so, but it may also have proceeded on the basis that the importance of the information could only be assessed after the appellant had given evidence. It is also possible that prior to the hearing, the Tribunal had not fully appreciated the potential significance of the information. It is not apparent that the Tribunal took the course contended for by the appellant .
Case: Australian Softwood Forests Pty Ltd v Attorney-General (NSW) [1981] HCA 49 ; (1981) 148 CLR 121
Outcome: applied
what basis, then, can it be said, as ASIC contends, that the sale and lease-back arrangements in question involve the client making a "financial investment"? This is not an easy question to answer. The proper approach in arriving at the answer must be based on the principle that the relevant provisions should be construed broadly: Australian Softwood Forests Pty Ltd v Attorney-General (NSW) [1981] HCA 49 ; (1981) 148 CLR 121. Adopting a broad view, it can be said that the investors (the clients) have contributed their homes for them to be used to generate benefits for themselves. The first benefit was the periodic tax free payments extending over many years. The homes were to generate this benefit as they were to be on-sold to investors who would provide the necessary funds. Also, there were benefits, or potential benefits, arising out of the leases. It will be remembered that each lease was for the client's life at what appears to be less than the market rent. This gave rise to two benefits; one actual the other potential. First, there was the low rent which was an immediate benefit. Second, there was the potential benefit that would arise if the client were to live longer than expected according to the life tables. Previously I noted that the consideration for the life tenancy (the amount deducted from the purchase price for the property) was based on life tables. If the client outlived the age prescribed in those tables he would receive a benefit; effectively the right to occupy the home for the additional period at no cost. Assuming these to be relevant benefits for the purpose of the definition of "financial investment" it is still necessary to decide whether the word "gives" in the phrase "gives money or money's worth" includes a sale with a lease-back. Ordinarily the word "gives" would not carry that meaning. I observe, however, that in the note to s 12BAA there are examples of what acts constitute making a financial investment. One example is the subscription of money for shares in a company. In substance this is the acquisition of an asset for its exchange value in the hope of making either a capital profit or receiving income. If "gives" includes the purchase of an asset there is no reason why it should not also include a sale. To this point I have not dealt with whether the statements about the client having a "guaranteed tenancy" or a "guaranteed lifetime tenancy" are misleading. In my view they are not for the reason that the lifetime tenancy which had been granted to the client was in fact "guaranteed" in the only relevant sense, namely that it could not be defeated by MFL, MFLP or any person claiming through them.
Case: Burke v Dawes [1938] HCA 6 ; (1938) 59 CLR 1
Outcome: applied
base this conclusion on s 42(2)(e) of the Transfer of Land Act 1958 (Vic) and the equivalent provision in the Torrens legislation in other States. The effect of s 42(2)(e) is that the estate of a registered proprietor of land (including the proprietor of a mortgage) is subject to the rights of a tenant in possession. In this area the relevant principles are clearly established. The first is that the possession of a tenant is notice of any right of the tenant affecting the land: McMahon v Swan [1924] VLR 397, 406. The second is that, as Dixon J confirmed in Burke v Dawes [1938] HCA 6 ; (1938) 59 CLR 1, 17-18, s 72 of the Transfer of Land Act 1928 (Vic) (which is the forerunner of s 42) was not intended to apply merely to a tenancy as commonly understood. See also Downie v Lockwood [1965] VR 257, 259 where Smith J said "As appears from the cases the exception in s. 42 (2) (e) is to be widely construed; and it is to be treated as producing the result that "any person in actual occupation of the land obtains as against any inconsistent registered dealing protection and priority for any equitable interest to which his occupation is incident, provided that at law his occupation is referable to a tenancy of sort, whether at will or for years". Thus, for the purposes of the section a purchaser under a contract, who is given possession by the vendor and is only a tenant at will, is protected in respect of his equitable ownership: Robertson v Keith (1870) 1 VLR(E) 11. So, too, is a vendor who remains in possession until the purchase price is paid: he is a tenant "whatever might be the legal denomination of the tenancy": The Commercial Bank of Australia Limited v McCaskill (1897) 23 VLR 10, 12. It has also been held that an equitable life estate will prevail over a subsequent registered interest: Black v Poole (1895) 16 ALT 155.