mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57
Outcome: discussed
Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 , Gleeson CJ and Crennan J said (at 68 [19]): "...in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff's entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed. We agree with the explanation of these organising principles in the reasons of Gummow and Hayne JJ, and their reiteration that the doctrine of the Court established in Beecham Group Ltd v Bristol Laboratories Pty Ltd should be followed." (Citations omitted.)
Case: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321
Outcome: referred to
applicant then referred to decisions which have considered whether various grounds in s 5 of the ADJR Act embody a "no evidence" or "no probative material" test. In the context of the ground in s 5(1)(a) (a breach of the rules of natural justice occurred in connection with the making of the decision), he referred to Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 (" Bond ") at 367 per Deane J and Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222 (" Rajamanikkam ") at 232-233 [25]-[29] per Gleeson CJ. In the context of the ground in s 5(1)(f) (the decision involved an error of law), the applicant referred to Bond at 355-358 per Mason CJ; The Federal Commissioner of Taxation v Broken Hill South Ltd [1941] HCA 33 ; (1941) 65 CLR 150 at 155 per Starke J, at 157 per McTiernan J, at 160-161 per Williams J; Rajamanikkam at 238-240 [49]-[53] per Gaudron and McHugh JJ. In the context of the ground in s 5(1)(h) (there was no evidence or other material to justify the making of the decision; see also s 5(3)), the applicant referred to Bond at 358 per Mason CJ, at 365 per Brennan J, at 369 per Deane J; Rajamanikkam at 233-234 [30]-[34] per Gleeson CJ, at 238-240 [49]-[53] per Gaudron and McHugh JJ, at 250-261 [96]-[125] per Kirby J.
Case: CC v Australian Crime Commission [2005] FCA 754
Outcome: cited
is clearly distinguishable from the circumstances of the applications before me. However, I note Mansfield J's reference to the public interest in the timely progression of examinations under the ACC Act. His Honour, after identifying the particular delay relevant in that case, said (at [25]): "That delay in the Examiner being able to complete the examination, and perhaps to progress it much or at all, in a matter which is of public importance is itself very significant. The nature of the ACC, its functions under the ACC Act, and the nature of the special investigation are sufficient reason to be satisfied of its importance, and of the timely gathering of information." (See also CC v Australian Crime Commission [2005] FCA 754 at [15] ).
Case: Castlemaine Tooheys Ltd v The State of South Australia [1986] HCA 58 ; (1986) 161 CLR 148
Outcome: discussed
Castlemaine Tooheys Ltd v The State of South Australia [1986] HCA 58 ; (1986) 161 CLR 148 , Mason ACJ said (at 153): "The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration. In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction."
Case: Fernando v Minister for Immigration &amp; Multicultural Affairs [1999] FCA 1375
Outcome: cited
was debate before me as to the operation of the comity principle in circumstances where a single judge of this Court is called upon to decide an issue previously decided by another single judge of the Court. A judge of this Court should follow the decision of another single judge, unless satisfied that the decision is clearly wrong: Fernando v Minister for Immigration &amp; Multicultural Affairs [1999] FCA 1375 at [1] per Finn J; Hicks v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 757 at [75] - [76] per French J. The comity principle in the circumstances I have described was discussed in detail by Lindgren J in Undershaft (No 1) Ltd (Formerly CGNU Holdings (Australia) Ltd) v Commissioner of Taxation (2009) 253 ALR 280, and I refer in particular to his Honour's discussion at 294-295 [68]-[74].
Case: Gazal Apparel Pty Ltd v Davies (2007) 247 LSJS 391
Outcome: cited
my opinion, the Commissioner of the Australian Federal Police is mentioned or referred to in the ACC Act in general terms , such that the deeming provision in s 20 of the Acts Interpretation Act is engaged. I have reached that conclusion for a number of reasons. First, there are some authorities that touch on s 20 of the Acts Interpretation Act and, so far as they go, they suggest that there is no distinction of the type advanced by the applicant: Smith Kline &amp; French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health [1989] FCA 384 ; (1990) 22 FCR 73 at 75 per Gummow J; Registrar of Aboriginal Corporations v Barker (1997) 81 FCR 53 ; Lim v Secretary, Department of Education, Employment and Workplace Relations (No 2) [2008] FCA 1752 at [44] per Bennett J; Gazal Apparel Pty Ltd v Davies (2007) 247 LSJS 391 at 396 [35] per Doyle CJ. Secondly, the subject of what is to be mentioned or referred to in general terms is not the office or position itself, but the person holding or occupying a particular office or position. There is no reason why that should be restricted only to those cases where the person is a member of a class of persons. The distinction suggested by the applicant seems to me to be an artificial one. It is not obvious why the deeming provision in s 20 of the Acts Interpretation Act would apply in the case of a deputy commissioner of an organisation, assuming there were two or more deputy commissioners, but not apply in the case of the commissioner of an organisation, or why it would not apply to a person lower down in the hierarchy of an organisation who happens to be the only holder of a particular office or position. Such, however, are the consequences of the interpretation of s 20 of the Acts Interpretation Act proposed by the applicant. Finally, the interpretation of s 20 which I think is the correct one, will not frustrate or impede the intention of Parliament because the deeming provision itself does not apply if a contrary intention appears in the relevant legislation. I should add that I do not think the ACC Act reveals a contrary intention in this case.
Case: Hicks v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 757
Outcome: cited
was debate before me as to the operation of the comity principle in circumstances where a single judge of this Court is called upon to decide an issue previously decided by another single judge of the Court. A judge of this Court should follow the decision of another single judge, unless satisfied that the decision is clearly wrong: Fernando v Minister for Immigration &amp; Multicultural Affairs [1999] FCA 1375 at [1] per Finn J; Hicks v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 757 at [75] - [76] per French J. The comity principle in the circumstances I have described was discussed in detail by Lindgren J in Undershaft (No 1) Ltd (Formerly CGNU Holdings (Australia) Ltd) v Commissioner of Taxation (2009) 253 ALR 280, and I refer in particular to his Honour's discussion at 294-295 [68]-[74].
Case: Kelly v Wolstenholme [1991] 4 ACSR 709
Outcome: referred to
maintaining a claim that the respondents were not permitted to redact the two documents to the extent to which they had, the applicant outlined three arguments in support of the further ground of review. They were as follows: There was no resolution of the Board making the 2009 Authorisation and Determination. The Board had approved the resolution outside a meeting of the Board. In those circumstances, the Board was required to comply with s 7J of the ACC Act, which is in the following terms: " 7J Resolutions outside of Board meetings (1) This section applies to a resolution: (a) which, without being considered at a meeting of the Board, is referred to all members of the Board; and (b) of which: (i) if subparagraph (ii) does not apply&#8212;a majority of those members (not including the CEO); or (ii) if the resolution is that the Board determine that an intelligence operation is a special operation, or that an investigation into matters relating to federally relevant criminal activity is a special investigation&#8212;at least 9 Board members (not including the CEO but including at least 2 eligible Commonwealth Board members); indicate by telephone or other mode of communication to the Chair of the Board that they are in favour. (2) The resolution is as valid and effectual as if it had been passed at a meeting of the Board duly convened and held." The applicant contended that s 7J had not been complied with because the members of the Board had indicated that they were in favour of the resolution not to the Chair of the Board, as required by the section, but to the Chief Executive Officer. The applicant referred to various authorities dealing with the common law principles as to the conduct of meetings and the position of the Chair of a meeting. I will not refer to them all. I simply note two of them: National Dwellings Society v Sykes [1894] 3 Ch 159 at 162 per Chitty J; Kelly v Wolstenholme [1991] 4 ACSR 709 at 712 per Young J. The Board had treated the resolution as passed after nine members had indicated that they were in favour of it, and without regard to the views of two members who indicated that they also were in favour of the resolution. Such a procedure was, so it was contended, contrary to the Board acting as a Board.
Case: Lim v Secretary, Department of Education, Employment and Workplace Relations (No 2) [2008] FCA 1752
Outcome: cited
my opinion, the Commissioner of the Australian Federal Police is mentioned or referred to in the ACC Act in general terms , such that the deeming provision in s 20 of the Acts Interpretation Act is engaged. I have reached that conclusion for a number of reasons. First, there are some authorities that touch on s 20 of the Acts Interpretation Act and, so far as they go, they suggest that there is no distinction of the type advanced by the applicant: Smith Kline &amp; French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health [1989] FCA 384 ; (1990) 22 FCR 73 at 75 per Gummow J; Registrar of Aboriginal Corporations v Barker (1997) 81 FCR 53 ; Lim v Secretary, Department of Education, Employment and Workplace Relations (No 2) [2008] FCA 1752 at [44] per Bennett J; Gazal Apparel Pty Ltd v Davies (2007) 247 LSJS 391 at 396 [35] per Doyle CJ. Secondly, the subject of what is to be mentioned or referred to in general terms is not the office or position itself, but the person holding or occupying a particular office or position. There is no reason why that should be restricted only to those cases where the person is a member of a class of persons. The distinction suggested by the applicant seems to me to be an artificial one. It is not obvious why the deeming provision in s 20 of the Acts Interpretation Act would apply in the case of a deputy commissioner of an organisation, assuming there were two or more deputy commissioners, but not apply in the case of the commissioner of an organisation, or why it would not apply to a person lower down in the hierarchy of an organisation who happens to be the only holder of a particular office or position. Such, however, are the consequences of the interpretation of s 20 of the Acts Interpretation Act proposed by the applicant. Finally, the interpretation of s 20 which I think is the correct one, will not frustrate or impede the intention of Parliament because the deeming provision itself does not apply if a contrary intention appears in the relevant legislation. I should add that I do not think the ACC Act reveals a contrary intention in this case.
Case: Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222
Outcome: referred to
applicant then referred to decisions which have considered whether various grounds in s 5 of the ADJR Act embody a "no evidence" or "no probative material" test. In the context of the ground in s 5(1)(a) (a breach of the rules of natural justice occurred in connection with the making of the decision), he referred to Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 (" Bond ") at 367 per Deane J and Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222 (" Rajamanikkam ") at 232-233 [25]-[29] per Gleeson CJ. In the context of the ground in s 5(1)(f) (the decision involved an error of law), the applicant referred to Bond at 355-358 per Mason CJ; The Federal Commissioner of Taxation v Broken Hill South Ltd [1941] HCA 33 ; (1941) 65 CLR 150 at 155 per Starke J, at 157 per McTiernan J, at 160-161 per Williams J; Rajamanikkam at 238-240 [49]-[53] per Gaudron and McHugh JJ. In the context of the ground in s 5(1)(h) (there was no evidence or other material to justify the making of the decision; see also s 5(3)), the applicant referred to Bond at 358 per Mason CJ, at 365 per Brennan J, at 369 per Deane J; Rajamanikkam at 233-234 [30]-[34] per Gleeson CJ, at 238-240 [49]-[53] per Gaudron and McHugh JJ, at 250-261 [96]-[125] per Kirby J.
Case: National Dwellings Society v Sykes [1894] 3 Ch 159
Outcome: referred to
maintaining a claim that the respondents were not permitted to redact the two documents to the extent to which they had, the applicant outlined three arguments in support of the further ground of review. They were as follows: There was no resolution of the Board making the 2009 Authorisation and Determination. The Board had approved the resolution outside a meeting of the Board. In those circumstances, the Board was required to comply with s 7J of the ACC Act, which is in the following terms: " 7J Resolutions outside of Board meetings (1) This section applies to a resolution: (a) which, without being considered at a meeting of the Board, is referred to all members of the Board; and (b) of which: (i) if subparagraph (ii) does not apply&#8212;a majority of those members (not including the CEO); or (ii) if the resolution is that the Board determine that an intelligence operation is a special operation, or that an investigation into matters relating to federally relevant criminal activity is a special investigation&#8212;at least 9 Board members (not including the CEO but including at least 2 eligible Commonwealth Board members); indicate by telephone or other mode of communication to the Chair of the Board that they are in favour. (2) The resolution is as valid and effectual as if it had been passed at a meeting of the Board duly convened and held." The applicant contended that s 7J had not been complied with because the members of the Board had indicated that they were in favour of the resolution not to the Chair of the Board, as required by the section, but to the Chief Executive Officer. The applicant referred to various authorities dealing with the common law principles as to the conduct of meetings and the position of the Chair of a meeting. I will not refer to them all. I simply note two of them: National Dwellings Society v Sykes [1894] 3 Ch 159 at 162 per Chitty J; Kelly v Wolstenholme [1991] 4 ACSR 709 at 712 per Young J. The Board had treated the resolution as passed after nine members had indicated that they were in favour of it, and without regard to the views of two members who indicated that they also were in favour of the resolution. Such a procedure was, so it was contended, contrary to the Board acting as a Board.
Case: Registrar of Aboriginal Corporations v Barker (1997) 81 FCR 53
Outcome: cited
my opinion, the Commissioner of the Australian Federal Police is mentioned or referred to in the ACC Act in general terms , such that the deeming provision in s 20 of the Acts Interpretation Act is engaged. I have reached that conclusion for a number of reasons. First, there are some authorities that touch on s 20 of the Acts Interpretation Act and, so far as they go, they suggest that there is no distinction of the type advanced by the applicant: Smith Kline &amp; French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health [1989] FCA 384 ; (1990) 22 FCR 73 at 75 per Gummow J; Registrar of Aboriginal Corporations v Barker (1997) 81 FCR 53 ; Lim v Secretary, Department of Education, Employment and Workplace Relations (No 2) [2008] FCA 1752 at [44] per Bennett J; Gazal Apparel Pty Ltd v Davies (2007) 247 LSJS 391 at 396 [35] per Doyle CJ. Secondly, the subject of what is to be mentioned or referred to in general terms is not the office or position itself, but the person holding or occupying a particular office or position. There is no reason why that should be restricted only to those cases where the person is a member of a class of persons. The distinction suggested by the applicant seems to me to be an artificial one. It is not obvious why the deeming provision in s 20 of the Acts Interpretation Act would apply in the case of a deputy commissioner of an organisation, assuming there were two or more deputy commissioners, but not apply in the case of the commissioner of an organisation, or why it would not apply to a person lower down in the hierarchy of an organisation who happens to be the only holder of a particular office or position. Such, however, are the consequences of the interpretation of s 20 of the Acts Interpretation Act proposed by the applicant. Finally, the interpretation of s 20 which I think is the correct one, will not frustrate or impede the intention of Parliament because the deeming provision itself does not apply if a contrary intention appears in the relevant legislation. I should add that I do not think the ACC Act reveals a contrary intention in this case.
Case: Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] UKHL 6 ; [1977] AC 1014
Outcome: discussed
I understood the applicant's submission, it was that there was simply insufficient material before the examiner for him to be satisfied that it was reasonable in all the circumstances for him to issue the summons. The applicant referred to the speech of Lord Wilberforce in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] UKHL 6 ; [1977] AC 1014. In that case, the Secretary of State was given the power by Act of Parliament to give a direction to the primary repository of a power concerning the exercise of the power where he was satisfied that the primary repository of the power had, or was proposing to act, unreasonably. Lord Wilberforce said (at 1047): "(2) The section is framed in a 'subjective' form&#8212;if the Secretary of State 'is satisfied.' This form of section is quite well known, and at first sight might seem to exclude judicial review. Sections in this form may, no doubt, exclude judicial review on what is or has become a matter of pure judgment. But I do not think that they go further than that. If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the court must inquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self-direction as to those facts, whether the judgment has not been made upon other facts which ought not to have been taken into account. If these requirements are not met, then the exercise of judgment, however bona fide it may be, becomes capable of challenge: see Secretary of State for Employment v. ASLEF (No. 2) [1972] 2 Q.B. 455 , per Lord Denning M.R., at p. 493."
Case: Smith Kline &amp; French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health [1989] FCA 384 ; (1990) 22 FCR 73
Outcome: cited
my opinion, the Commissioner of the Australian Federal Police is mentioned or referred to in the ACC Act in general terms , such that the deeming provision in s 20 of the Acts Interpretation Act is engaged. I have reached that conclusion for a number of reasons. First, there are some authorities that touch on s 20 of the Acts Interpretation Act and, so far as they go, they suggest that there is no distinction of the type advanced by the applicant: Smith Kline &amp; French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health [1989] FCA 384 ; (1990) 22 FCR 73 at 75 per Gummow J; Registrar of Aboriginal Corporations v Barker (1997) 81 FCR 53 ; Lim v Secretary, Department of Education, Employment and Workplace Relations (No 2) [2008] FCA 1752 at [44] per Bennett J; Gazal Apparel Pty Ltd v Davies (2007) 247 LSJS 391 at 396 [35] per Doyle CJ. Secondly, the subject of what is to be mentioned or referred to in general terms is not the office or position itself, but the person holding or occupying a particular office or position. There is no reason why that should be restricted only to those cases where the person is a member of a class of persons. The distinction suggested by the applicant seems to me to be an artificial one. It is not obvious why the deeming provision in s 20 of the Acts Interpretation Act would apply in the case of a deputy commissioner of an organisation, assuming there were two or more deputy commissioners, but not apply in the case of the commissioner of an organisation, or why it would not apply to a person lower down in the hierarchy of an organisation who happens to be the only holder of a particular office or position. Such, however, are the consequences of the interpretation of s 20 of the Acts Interpretation Act proposed by the applicant. Finally, the interpretation of s 20 which I think is the correct one, will not frustrate or impede the intention of Parliament because the deeming provision itself does not apply if a contrary intention appears in the relevant legislation. I should add that I do not think the ACC Act reveals a contrary intention in this case.