mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: MZXBQ v Minister for Immigration and Citizenship &amp; Anor [2008] FCA 319 ; (2008) 166 FCR 483
Outcome: distinguished
coming to this conclusion, his Honour distinguished the decision of Heerey J in MZXBQ v Minister for Immigration and Citizenship &amp; Anor [2008] FCA 319 ; (2008) 166 FCR 483. In that case, Heerey J observed that the decision of the High Court in SZBYR &amp; Anor v Minister for Immigration and Citizenship &amp; Anor (2007) 235 ALR 609 impliedly overruled a substantial body of authority in the Federal Court in which it was held that an assessment of whether the Tribunal has complied with section 424A(1) requires close attention to the reasons of the Tribunal. Driver FM considered that MZXBQ was distinguishable from the present case because in MZXBQ , the relevant information was raised by the Tribunal at the section 425 hearing. The decision of Heerey J in MZXBQ is distinguishable, because it appears, from [6] and [12] of his Honour's reasons, that the information in question was referred to in the course of the Tribunal hearing, even though there was no reference to it in the section 424A letter or the Tribunal's reasons. Jagot J followed MZXBQ in SZJZB v Minister for Immigration and Citizenship (2008) 105 ALD 226 , so too did Siopis J in SZMFZ , but both of those cases are distinguishable from the present matter upon the basis that the information in question was considered in those cases to be relevant by the Tribunal, either explicitly or by inference from the review process.
Case: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396
Outcome: referred to
my view, these submissions are correct and are supported by the authorities. It is true that the High Court in SZBYR impliedly overruled a substantial body of authority in the Federal Court which held that an assessment of whether the Tribunal has complied with section 424A(1) requires close attention to the reasons of the Tribunal. Indeed, in SZBYR at [22], the High Court rejected the need for "unbundling" of the Tribunal's reasons, an approach which had been adopted in authorities of this court such as Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at [99] , and SZEEU &amp; Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at [208] . But I do not think it follows from what the High Court said in SZBYR that in making an assessment of whether section 424A(1) was engaged, a court can never have regard to the reasons of the Tribunal.
Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs &amp; Anor [2006] HCA 63 ; (2006) 228 CLR 152
Outcome: referred to
do not consider that the conclusion I have reached is contrary to the decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs &amp; Anor [2006] HCA 63 ; (2006) 228 CLR 152. In that case, the court held that the applicant was entitled to assume the issues considered dispositive by the delegate to be issues which arose in relation to the decision under review. The High Court also held that if the Tribunal were inclined to reach its decision by reference to an issue other than those considered to be dispositive by the delegate, a failure to notify the applicant would be a denial of procedural fairness and a contravention of section 425(1). In my opinion, that decision is of no assistance to the appellant in this case, because here the position is the opposite to that which occurred in SZBEL , because the Tribunal considered the issues to be narrower than those which were considered to be dispositive by the delegate. The appellant appeared in person this morning. She was assisted by a Mandarin interpreter. She did not address me on the question of law to which I have referred, but I have given it careful consideration in coming to the views that I have reached. The notice of appeal seeks to raise other grounds. The appellant did not speak to them, but I have considered them. The first ground is an unparticularised claim that the Federal Magistrate "erred in law". That seems to be covered by what I have said above.
Case: SZBYR &amp; Anor v Minister for Immigration and Citizenship &amp; Anor (2007) 235 ALR 609
Outcome: referred to
coming to this conclusion, his Honour distinguished the decision of Heerey J in MZXBQ v Minister for Immigration and Citizenship &amp; Anor [2008] FCA 319 ; (2008) 166 FCR 483. In that case, Heerey J observed that the decision of the High Court in SZBYR &amp; Anor v Minister for Immigration and Citizenship &amp; Anor (2007) 235 ALR 609 impliedly overruled a substantial body of authority in the Federal Court in which it was held that an assessment of whether the Tribunal has complied with section 424A(1) requires close attention to the reasons of the Tribunal. Driver FM considered that MZXBQ was distinguishable from the present case because in MZXBQ , the relevant information was raised by the Tribunal at the section 425 hearing. In my view, these submissions are correct and are supported by the authorities. It is true that the High Court in SZBYR impliedly overruled a substantial body of authority in the Federal Court which held that an assessment of whether the Tribunal has complied with section 424A(1) requires close attention to the reasons of the Tribunal. Indeed, in SZBYR at [22], the High Court rejected the need for "unbundling" of the Tribunal's reasons, an approach which had been adopted in authorities of this court such as Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at [99] , and SZEEU &amp; Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at [208] . But I do not think it follows from what the High Court said in SZBYR that in making an assessment of whether section 424A(1) was engaged, a court can never have regard to the reasons of the Tribunal. It seems to me that this proposition would be contrary to what the High Court said in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs &amp; Anor [2005] HCA 72 ; (2005) 225 CLR 88 at [12] . In my opinion, the effect of what their Honours said in SZBYR at [22] was that the Tribunal's reasons are not the starting point for determining whether it considered the information to be a reason for affirming the decision under review. What their Honours said at [22] in SZBYR was that the need for "unbundling" is "correspondingly reduced."
Case: SZEEU &amp; Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214
Outcome: referred to
my view, these submissions are correct and are supported by the authorities. It is true that the High Court in SZBYR impliedly overruled a substantial body of authority in the Federal Court which held that an assessment of whether the Tribunal has complied with section 424A(1) requires close attention to the reasons of the Tribunal. Indeed, in SZBYR at [22], the High Court rejected the need for "unbundling" of the Tribunal's reasons, an approach which had been adopted in authorities of this court such as Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at [99] , and SZEEU &amp; Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at [208] . But I do not think it follows from what the High Court said in SZBYR that in making an assessment of whether section 424A(1) was engaged, a court can never have regard to the reasons of the Tribunal.
Case: SZJZB v Minister for Immigration and Citizenship (2008) 105 ALD 226
Outcome: distinguished
decision of Heerey J in MZXBQ is distinguishable, because it appears, from [6] and [12] of his Honour's reasons, that the information in question was referred to in the course of the Tribunal hearing, even though there was no reference to it in the section 424A letter or the Tribunal's reasons. Jagot J followed MZXBQ in SZJZB v Minister for Immigration and Citizenship (2008) 105 ALD 226 , so too did Siopis J in SZMFZ , but both of those cases are distinguishable from the present matter upon the basis that the information in question was considered in those cases to be relevant by the Tribunal, either explicitly or by inference from the review process.
Case: SZKMS v Minister for Immigration and Citizenship [2008] FCA 499
Outcome: referred to
remaining five grounds were not raised before the Federal Magistrate, and the Minister objected to leave being granted to rely upon them for the first time on the appeal. In SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 at [18] [31], Lander J reviewed the authorities on the question of the grant of leave in these circumstances. His Honour was of the view that this court should not be made, de facto, the court of original jurisdiction when sitting on appeal.
Case: SZKOB v Minister for Immigration and Citizenship [2007] FCA 1949
Outcome: followed
6 claims that the appellant was not provided with a tape-recording of her interview with the delegate, although the section 424A letter does refer to the interview tape. However, there is authority in the decision of Flick J in SZKOB v Minister for Immigration and Citizenship [2007] FCA 1949 at [12] [14] that the Tribunal was not obliged to provide the tape recording. It follows, in my view, that the appeal must be dismissed with costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 12 February 2009 The Appellant was self-represented. Counsel for the First Respondent: Tim Reilly Solicitor for the First Respondent: Sparke Helmore Date of Hearing: 12 February 2009 Date of Judgment: 12 February 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/99.html
Case: SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890
Outcome: distinguished
question of whether the Tribunal considered the information to be a reason for affirming the decision must be a question of fact. As Siopis J observed in SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890 at [36] : [T]he assessment of whether the information enlivened the obligation on the Tribunal under s 424A(1) is made by reference to the time at which the Tribunal becomes aware of the information. Accordingly, and significantly, in light of the submission made by the first respondent, the assessment is not dependent upon the use that the Tribunal subsequently made of the information, although, in my view, that may be a relevant consideration in drawing inferences as to the proper characterisation of the information. That is to say, in a proper case, the Court, in making its assessment, may draw inferences from the Tribunal's reasons as to whether the Tribunal considered the information to be a reason for affirming the decision. In the present case, not only was there no mention of the information at the Tribunal hearing, it was not mentioned in the Tribunal's reasons or in any document generated by the Tribunal during the review process. The only inference therefore available was that the Tribunal did not consider the information to be relevant. It follows, in my opinion, that Driver FM was correct in the conclusion that he reached. The decision of Heerey J in MZXBQ is distinguishable, because it appears, from [6] and [12] of his Honour's reasons, that the information in question was referred to in the course of the Tribunal hearing, even though there was no reference to it in the section 424A letter or the Tribunal's reasons. Jagot J followed MZXBQ in SZJZB v Minister for Immigration and Citizenship (2008) 105 ALD 226 , so too did Siopis J in SZMFZ , but both of those cases are distinguishable from the present matter upon the basis that the information in question was considered in those cases to be relevant by the Tribunal, either explicitly or by inference from the review process.
Case: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158
Outcome: referred to
his Honour referred to the decision of the Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 , in which it was said that, in cases such as this, leave is more readily granted where the point has merit and there is no prejudice. It seems to me that, without the need to address in any detail the principles referred to by Lander J, it is sufficient to dispose of the further grounds upon the basis that they do not have sufficient merit. Ground 2 states that the Refugee Review Tribunal was affected by a reasonable apprehension of bias. This has not been demonstrated. Ground 3 expresses disagreement with the Tribunal's conclusion at [111] of its reasons. This is an impermissible claim for merits review.
Case: Casali v Crisp [2001] NSWSC 860 ; (2001) 165 FLR 79
Outcome: referred to
It may be accepted that the fact that a person is a shareholder, or a director, of a deregistered company does not in itself establish that person to be a "person aggrieved" for the purpose of s 601AH(2) of the Act. However, a shareholder who is a creditor of the company who could have expected payment of the debt in whole or in part, or who had an expectation of a distribution from surplus assets or a dividend from retained profits would be a person prejudicially affected by deregistration of the company and, therefore, a "person aggrieved". (See: Casali v Crisp [2001] NSWSC 860 ; (2001) 165 FLR 79 per Young CJ in Equity at 82-83). 24 The company has assets that exceed its liabilities, the net worth of the company being represented in substantial measure by undistributed profits. A shareholder in the company, therefore, has an expectation of the distribution of a dividend from the retained profits and is a person aggrieved by deregistration of the company, an event that has removed that expectation and has vested the property of the company in ASIC for ASIC to dispose of, and deal with, as it sees fit pursuant to s 601AE(2)(a) of the Act. 25 I am satisfied that it is appropriate that Mr Bertuol be substituted for the company as plaintiff in the matter.
Case: GA &amp; RJ Elliot Pty Ltd (formerly a company) Ex parte Mitcham (1978) 3 ACLR 523
Outcome: referred to
The provisions of s 601AH(5) suggest that the Act has continued to recognise that a deregistered company has sufficient existence for the purpose of making an application under s 601AH(2) as a "person aggrieved" notwithstanding that under s 601AD(1) the company "cease(d) to exist" upon deregistration. (See: GA &amp; RJ Elliot Pty Ltd (formerly a company) Ex parte Mitcham (1978) 3 ACLR 523 per Young CJ at 526; CTG Pty Ltd v Yamamori (Hong Kong) Pty Ltd (1992) 10 ACSR 534, 536). The terms of s 601AH(5) are consistent with a statutory form of a "nunc pro tunc" order. That is to say the Act contemplates that an order under s 601AH(2) will have a retrospective effect that makes good the deregistered company's standing to make the application. There are no authorities directly on point. It may be accepted that the deregistered company has no standing to commence other proceedings. (See: Sweeney &amp; Vandeleur Pty Ltd v BNY Australia Ltd (1993) 11 ACSR 356).
Case: GIS Electrical Pty Ltd v Melsom [2002] WASCA 302 ; (2002) 172 FLR 218
Outcome: referred to
In the absence of any material that suggests that the legislature identified and sought to remedy a mischief that had arisen out of a company being permitted to apply for reinstatement of its registration there seems to be no reason to apply a restrictive interpretation to the term "person aggrieved" as used in s 601AH(2)(a)(i). Apart from the historical context referred to above the term is an expression of wide import that is not to be given a restrictive interpretation. (See: GIS Electrical Pty Ltd v Melsom [2002] WASCA 302 ; (2002) 172 FLR 218 per Steytler J at 230-231). If the proper construction of the Act is as I have posited the company would have capacity to make an application as a "person aggrieved". 21 Putting to one side for the moment the question whether the Act contemplates that a deregistered company has capacity to make an application under s 601AH(2), there would seem to be adequate grounds in this case to conclude that by the company being subjected to deregistration when it was successfully carrying on business it became a person "aggrieved" for the purpose of s 601AH(2). Indeed s 601AB(1) does not empower ASIC to deregister a company unless it has no reason to believe that the company is carrying on business. Although the subsequently enacted 601AB(1A), empowers ASIC to deregister a company that has defaulted in paying "review fees" without qualifying that power by requiring ASIC not have reason to believe that the company is carrying on business, that provision does not detract from the foregoing argument. 22 To avoid doubt as to whether the company has the capacity to make application under s 601AH(2)(a)(i) Mr Bertuol now seeks to be substituted for the company as plaintiff in this matter.
Case: CTG Pty Ltd v Yamamori (Hong Kong) Pty Ltd (1992) 10 ACSR 534
Outcome: referred to
The provisions of s 601AH(5) suggest that the Act has continued to recognise that a deregistered company has sufficient existence for the purpose of making an application under s 601AH(2) as a "person aggrieved" notwithstanding that under s 601AD(1) the company "cease(d) to exist" upon deregistration. (See: GA &amp; RJ Elliot Pty Ltd (formerly a company) Ex parte Mitcham (1978) 3 ACLR 523 per Young CJ at 526; CTG Pty Ltd v Yamamori (Hong Kong) Pty Ltd (1992) 10 ACSR 534, 536). The terms of s 601AH(5) are consistent with a statutory form of a "nunc pro tunc" order. That is to say the Act contemplates that an order under s 601AH(2) will have a retrospective effect that makes good the deregistered company's standing to make the application. There are no authorities directly on point. It may be accepted that the deregistered company has no standing to commence other proceedings. (See: Sweeney &amp; Vandeleur Pty Ltd v BNY Australia Ltd (1993) 11 ACSR 356).
Case: Re L Carroll Ltd [1975] 1 NZLR 79
Outcome: referred to
The respective legislative provisions acknowledged however, that a deregistered company had capacity to make application for the restoration of registration, notwithstanding the cessation of existence of the company. (See: Re L Carroll Ltd [1975] 1 NZLR 79 per O'Regan J at 80).
Case: Sweeney &amp; Vandeleur Pty Ltd v BNY Australia Ltd (1993) 11 ACSR 356
Outcome: referred to
The provisions of s 601AH(5) suggest that the Act has continued to recognise that a deregistered company has sufficient existence for the purpose of making an application under s 601AH(2) as a "person aggrieved" notwithstanding that under s 601AD(1) the company "cease(d) to exist" upon deregistration. (See: GA &amp; RJ Elliot Pty Ltd (formerly a company) Ex parte Mitcham (1978) 3 ACLR 523 per Young CJ at 526; CTG Pty Ltd v Yamamori (Hong Kong) Pty Ltd (1992) 10 ACSR 534, 536). The terms of s 601AH(5) are consistent with a statutory form of a "nunc pro tunc" order. That is to say the Act contemplates that an order under s 601AH(2) will have a retrospective effect that makes good the deregistered company's standing to make the application. There are no authorities directly on point. It may be accepted that the deregistered company has no standing to commence other proceedings. (See: Sweeney &amp; Vandeleur Pty Ltd v BNY Australia Ltd (1993) 11 ACSR 356).
Case: Commissioner of Taxation v Futuris Corp Ltd [2008] HCA 32 , 247 ALR 605
Outcome: cited
it was contended by the Deputy Commissioner that it was s 105-100 of Schedule 1 to the Taxation Administration Act which made the present assessments " conclusive ". And no submission was advanced that there had been any error committed which amounted to a jurisdictional error: cf Commissioner of Taxation v Futuris Corp Ltd [2008] HCA 32 , 247 ALR 605. See also: Kocic v Commissioner of Taxation [2008] FCA 1576.
Case: Dekkan v Evans [2008] FCA 1004
Outcome: applied
is not considered that any state of satisfaction could possibly be reached that Mr Harding has any counter-claim, set-off or cross demand which it is " just " to be resolved before allowing the bankruptcy proceedings to continue: Dekkan v Evans [2008] FCA 1004 at [54] per Jacobson J; Dekkan v Macquarie Leasing Pty Ltd (No 2 ) [2008] FCA 1431 per Buchanan J; Re Cox (1934) 7 ABC 98. The task to be undertaken was formulated in Guss v Johnstone [2000] HCA 26 , 171 ALR 598 by Gleeson CJ, Gaudron, McHugh, Kirby and Callinan JJ as follows: [39] In Vogwell v Vogwell [(1939) 11 ABC 83] , Latham CJ said, in relation to a corresponding provision: "[T]he authorities show that the matter to which the court looks is this, &#8212; whether it is just that the claim should be determined before the bankruptcy proceedings are allowed to continue; in other words, whether it is a claim which it is proper and reasonable to litigate." [40] The state of satisfaction referred to in s 40(1)(g), and s 41(7), involves weighing up considerations as to the legal and factual merit of the claim relied upon by the debtor, and the justice of allowing the bankruptcy proceedings to go ahead or requiring them to await the determination of the claim. It is, with respect, not even possible to be satisfied that Mr Harding has a " shadowy " claim that could be litigated: cf Re Rivett; Ex parte Edward Fay Ltd (1932) 5 ABC 182 at 188.
Case: Dekkan v Macquarie Leasing Pty Ltd (No 2 ) [2008] FCA 1431
Outcome: applied
is not considered that any state of satisfaction could possibly be reached that Mr Harding has any counter-claim, set-off or cross demand which it is " just " to be resolved before allowing the bankruptcy proceedings to continue: Dekkan v Evans [2008] FCA 1004 at [54] per Jacobson J; Dekkan v Macquarie Leasing Pty Ltd (No 2 ) [2008] FCA 1431 per Buchanan J; Re Cox (1934) 7 ABC 98. The task to be undertaken was formulated in Guss v Johnstone [2000] HCA 26 , 171 ALR 598 by Gleeson CJ, Gaudron, McHugh, Kirby and Callinan JJ as follows: [39] In Vogwell v Vogwell [(1939) 11 ABC 83] , Latham CJ said, in relation to a corresponding provision: "[T]he authorities show that the matter to which the court looks is this, &#8212; whether it is just that the claim should be determined before the bankruptcy proceedings are allowed to continue; in other words, whether it is a claim which it is proper and reasonable to litigate." [40] The state of satisfaction referred to in s 40(1)(g), and s 41(7), involves weighing up considerations as to the legal and factual merit of the claim relied upon by the debtor, and the justice of allowing the bankruptcy proceedings to go ahead or requiring them to await the determination of the claim. It is, with respect, not even possible to be satisfied that Mr Harding has a " shadowy " claim that could be litigated: cf Re Rivett; Ex parte Edward Fay Ltd (1932) 5 ABC 182 at 188.