mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476
Outcome: followed
In Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at p 506 [76] Gaudron, McHugh, Gummow, Kirby and Hayne JJ said that an administrative decision which involves jurisdictional error is regarded in law as no decision at all. Thus, if there has been jurisdictional error due to, for example, a failure to discharge imperative duties or to observe inviolable limitations or restraints, the decision in question cannot properly be described in the terms used in section 474(2) as a " decision made under this Act ". 10 I have given anxious consideration to the material in the appeal papers and the submissions of the appellant for the purpose of seeing whether I can detect any arguable case of a jurisdictional error. I have also asked counsel for the Minister, pursuant to his duty to the Court, whether there is any basis, in the material before the court, on which an argument that there was a jurisdictional error might be raised other than the matters which I will discuss next. There was not identified by counsel or myself any such error which might be argued to exist. The judge below considered carefully and in detail each basis which the appellant put to him, many of which he also put to me. 11 Before turning to those issues, I should turn to a submission made at the outset of the appeal today by the appellant who said that the learned trial judge was biased because, in effect, he had upheld the appeal or I think, to use the appellant's words, supported what the Tribunal had done. I am not sure whether the appellant intended to connote anything more than he believed that the result was wrong and that the trial judge should not have found, as he did, that the Tribunal's decision revealed no error amenable to correction.
Case: QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
Outcome: followed
The decisions of Full Courts of this Court referred to in his Honour's reasons, namely, Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572 and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 , show that no jurisdictional error was committed by the Tribunal in failing to give particulars to the appellant of the information contained in the country information to which I have referred.
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407
Outcome: followed
This appeal essentially turns on the issue of whether the appellant has been able to establish a jurisdictional error on the part of the Tribunal. Unless a jurisdictional error is established, section 474(1) of the Migration Act 1958 (Cth) ('the Act') provides that, in effect, the decision of the Tribunal is final and conclusive and must not be challenged, appealed against, reviewed, quashed or called in to question in any court. It is clear from the decisions of the High Court of Australia that the window for correction of errors in what the Tribunal did is narrow: see Abebe v Commonwealth Re Minister for Immigraiton [1999] HCA 14 ; (1999) 197 CLR 510 at p 534 [50] per Gleeson CJ and McHugh J; Re Minister for Immigraiton and Immigration and Multicultural Affairs: Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at p 409 [7] per McHugh J.
Case: Deputy Commissioner of Taxation v K J Consulting Pty Ltd [2005] FCA 1827
Outcome: cited
The respondents to the adjournment further rely upon the observations of Gyles J in Deputy Commissioner of Taxation v K J Consulting Pty Ltd [2005] FCA 1827. The factors that Gyles J suggests are influential against adjourning an application for a winding-up order are these. Firstly, the fact that the company is not trading; secondly, the undoubted insolvency of the company; thirdly, the composition and attitude of the creditors; and fourthly the recognition that a liquidator has more ability to follow potential breaches of the law than administrators. All of these factors are said to be made out in the present case and suggest strongly that the application for the winding-up order ought not to be adjourned. 41 It seems to me that each of these matters must contextually be considered against the background of whether there is, on the present material, a real prospect of a better outcome under the Deed than in a winding-up or, if the measure of the dividend is similar, whether the dividend can be achieved more quickly under the Deed. Although it seems to me that the circumstances of the relationship between the three entities and the role of Mr Nunn in each of them gives rise to a basis for suggesting that as a practical reality, a circumstance of insolvency may well have arisen earlier than the administrators contend for, there is no doubt that Perry Holdings and Farallon provided loan monies and financial accommodation of substance and that in a winding-up those related party transactions would rank for distribution. If an assumption is made that the full amount of the unrelated, unsecured creditor claims ($1.4M) might be recovered from Mr Nunn or from Perry Holdings or Farallon under s 588V (and assuming no set-off operates), the dividend will be 15.5 cents. Since the dividend under the deed is likely to be 17.9 cents without contest or the need to establish causes of action, the assessment by the administrators is more than 'a mere speculative possibility of a higher return'. 42 The opponents of the adjournment also say that the proposal to establish a deed fund of $300,000.00 should be viewed with scepticism because there is no obvious commercial purpose for establishing the fund and an inference should be drawn that the fund is proposed for the purpose of foreclosing any analysis or scrutiny of the conduct of Mr Nunn, Perry Holdings and Farallon.
Case: Dean-Willcocks v Soluble Solution Hydroponics Pty Ltd (1997) 42 NSWLR 209 at 212
Outcome: referred to
plaintiffs submit that the orders sought in this case correspond with those made in a number of cases, including QBE Workers Compensation (NSW) Ltd v GJ Formwork Pty Ltd (2006) 56 ACSR 687 and Re HIH Insurance [2004] NSWSC 5. In those cases, the order regarding the liquidator's justification for entering into the settlement was made under s 479(3) of the Act. The plaintiffs submit that s 479 and s 511 perform similar functions citing Dean-Willcocks v Soluble Solution Hydroponics Pty Ltd (1997) 42 NSWLR 209 at 212. However, as Young J pointed out this is not "completely true".
Case: Elderslie Finance Corporation Ltd v Newpage (No 6) [2007] FCA 1030 ; (2007) 160 FCR 423
Outcome: cited
Court may approve a compromise if one of a number of ways of presenting a claim involves a "debt" claim: Elderslie Finance Corporation Ltd v Newpage (No 6) [2007] FCA 1030 ; (2007) 160 FCR 423 at [40] - [41] . In the present case, one way in which EBD has framed its claim is that payments made by it to EBM upon false invoices were made pursuant to sham transactions, and of no legal effect and that consequently, there is no basis upon which EBM may retain the money paid by EBD. This is a claim for restitution of an amount wrongly paid which is capable of constituting a "debt". Discretion
Case: QBE Workers Compensation (NSW) Ltd v GJ Formwork Pty Ltd (2006) 56 ACSR 687
Outcome: cited
plaintiffs submit that the orders sought in this case correspond with those made in a number of cases, including QBE Workers Compensation (NSW) Ltd v GJ Formwork Pty Ltd (2006) 56 ACSR 687 and Re HIH Insurance [2004] NSWSC 5. In those cases, the order regarding the liquidator's justification for entering into the settlement was made under s 479(3) of the Act. The plaintiffs submit that s 479 and s 511 perform similar functions citing Dean-Willcocks v Soluble Solution Hydroponics Pty Ltd (1997) 42 NSWLR 209 at 212. However, as Young J pointed out this is not "completely true".
Case: Re HIH Insurance [2004] NSWSC 5
Outcome: cited
plaintiffs submit that the orders sought in this case correspond with those made in a number of cases, including QBE Workers Compensation (NSW) Ltd v GJ Formwork Pty Ltd (2006) 56 ACSR 687 and Re HIH Insurance [2004] NSWSC 5. In those cases, the order regarding the liquidator's justification for entering into the settlement was made under s 479(3) of the Act. The plaintiffs submit that s 479 and s 511 perform similar functions citing Dean-Willcocks v Soluble Solution Hydroponics Pty Ltd (1997) 42 NSWLR 209 at 212. However, as Young J pointed out this is not "completely true".
Case: Re One.Tel Networks Holdings Pty Ltd [2001] NSWSC 1065 ; (2001) 40 ACSR 83
Outcome: cited
Settlement Deed made the direction sought in the present application a condition of the Settlement Deed taking effect is a matter which militates in favour of the Court exercising its discretion to make the orders sought: Re One.Tel Networks Holdings Pty Ltd [2001] NSWSC 1065 ; (2001) 40 ACSR 83 at [42] . The fact that the major creditors of EBD have had the opportunity to consider the proposed settlement, and do not oppose it, is also important. So too is the fact that EBD's liquidators have a limited opportunity to choose between the prospect of pursuing a novel application and the certainty of a settlement. For all these reasons the compromise constituted by the Settlement Deed should be approved pursuant to s 477(2A) of the Act. There should also be a direction that the liquidators of EBD are justified in entering into the Settlement Deed. The order and direction are intended to meet the conditions precedent under clause 2 of the Settlement Deed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 27 October 2009 Counsel for the Plaintiff: Mr J A Thomson Solicitor for the Plaintiff: Mallesons Stephen Jaques Counsel for the Defendant: Ms W Gillan Solicitor for the Defendant: DLA Phillips Fox Date of Hearing: 15 October 2009 Date of Judgment: 27 October 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1212.html
Case: Harman v Home Department State Secretary [1983] 1 AC 280
Outcome: applied
The usual obligations, for which Harman v Home Department State Secretary [1983] 1 AC 280 is the leading authority, restrict the use to which a party that receives documents by way of discovery may put them. They are to be used only for the purpose of the litigation. There is no reason why any further restriction should be placed on use of them by the plaintiff. The plaintiff's conduct of the litigation should not be restricted by confining access to the discovered documents in the way suggested by masking parts said to be irrelevant. The plaintiff, as administrator, should be entitled to inspect the documents, along with his legal advisers and experts. 7 It has been necessary for the plaintiff to bring this proceeding and the plaintiff should get the costs of the motion, such costs to be taxed and paid forthwith. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 28 November 2006 Counsel for the Plaintiff: T DiLallo Solicitor for the Plaintiff Russell Kennedy Counsel for the Defendants: P G Lovell Solicitor for the Defendants: Mason Sier Turnball Date of Hearing: 16 November 2006 Date of Judgment: 16 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1637.html
Case: Muin v Refugee Review Tribunal ; Lie v Refugee Review Tribunal in [2002] HCA 30 ; (2002) 190 ALR 601
Outcome: referred to
On 17 September 2001, the appellant joined the Muin and Lie proceedings in the High Court: see: see Muin v Refugee Review Tribunal ; Lie v Refugee Review Tribunal in [2002] HCA 30 ; (2002) 190 ALR 601. Ultimately, his application was remitted to the Federal Court and was refused on 30 April 2004: see S1775 of 2003 v Refugee Review Tribunal [2004] FCA 872 per Emmett J. As the first respondent has not sought to rely on those proceedings as the basis of any estoppel argument, it is unnecessary to discuss them further.
Case: S1775 of 2003 v Refugee Review Tribunal [2004] FCA 872
Outcome: referred to
On 17 September 2001, the appellant joined the Muin and Lie proceedings in the High Court: see: see Muin v Refugee Review Tribunal ; Lie v Refugee Review Tribunal in [2002] HCA 30 ; (2002) 190 ALR 601. Ultimately, his application was remitted to the Federal Court and was refused on 30 April 2004: see S1775 of 2003 v Refugee Review Tribunal [2004] FCA 872 per Emmett J. As the first respondent has not sought to rely on those proceedings as the basis of any estoppel argument, it is unnecessary to discuss them further.
Case: NACV v Minister for Immigration and Multicultural Affairs (2002) FCA 411
Outcome: cited
It is plain from a reading of the Tribunal's reasons that it placed no reliance on the date when he started his bus driving business. The Tribunal relied on the fact that the incident that gave rise to the appellant's protection visa application occurred in 1998, which the appellant does not dispute. It was open to the Tribunal, on the evidence before it, to make the findings it did concerning the appellant's eye condition and medical treatment. The appellant did not dispute that he had authorised the Tribunal to speak to his doctor and that he had been invited by the Tribunal to comment on the doctor's evidence. It is clear from the reasons of the Tribunal and the Federal Magistrate that the submissions he made to the Tribunal concerning the discrepancy in dates were the same submissions he made to the Federal Magistrate and to me. The Tribunal considered these submissions. The authorities establish that credit issues and findings of fact are generally matters for the Tribunal alone: see NACV v Minister for Immigration and Multicultural Affairs (2002) FCA 411 at [2] ; appeal dismissed in [2002] FCAFC 250 ; also W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679 at [64] . The Tribunal is not obliged to explain its thought processes to an applicant before making a decision. There is no discernible error in his Honour's judgment below.
Case: W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679
Outcome: cited
It is plain from a reading of the Tribunal's reasons that it placed no reliance on the date when he started his bus driving business. The Tribunal relied on the fact that the incident that gave rise to the appellant's protection visa application occurred in 1998, which the appellant does not dispute. It was open to the Tribunal, on the evidence before it, to make the findings it did concerning the appellant's eye condition and medical treatment. The appellant did not dispute that he had authorised the Tribunal to speak to his doctor and that he had been invited by the Tribunal to comment on the doctor's evidence. It is clear from the reasons of the Tribunal and the Federal Magistrate that the submissions he made to the Tribunal concerning the discrepancy in dates were the same submissions he made to the Federal Magistrate and to me. The Tribunal considered these submissions. The authorities establish that credit issues and findings of fact are generally matters for the Tribunal alone: see NACV v Minister for Immigration and Multicultural Affairs (2002) FCA 411 at [2] ; appeal dismissed in [2002] FCAFC 250 ; also W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679 at [64] . The Tribunal is not obliged to explain its thought processes to an applicant before making a decision. There is no discernible error in his Honour's judgment below.
Case: CFMEU v Cole and Allied Operations Pty Ltd (No 2) (1999) 94 IR 231 
Outcome: referred to
In CFMEU v Cole and Allied Operations Pty Ltd (No 2) (1999) 94 IR 231, Branson J considered the circumstances which might be taken into account when assessing a penalty under s 298U of the Act. She said at [8]: The following matters, which are not intended to comprise an exhaustive list, seem to me to be considerations to which the Court may appropriately have regard in determining whether particular conduct calls for the imposition of a penalty, and assuming that it does, the amount of the penalty: (a) The circumstances in which the relevant conduct took place (including whether the conduct was undertaken in deliberate defiance or disregard of the Act). (b) Whether the respondent has previously been found to have engaged in conduct in contravention of Pt XA of the Act. (c) Where more than one contravention of Pt XA is involved, whether the various contraventions are properly seen as distinct or whether they arise out of the one course of conduct. (d) The consequences of the conduct found to be in contravention of Pt XA of the Act. (e) The need, in the circumstances, for the protection of industrial freedom of association. (f) The need, in the circumstances, for deterrence.
Case: CPSU v Telstra Corporation (2001) 108 IR 228
Outcome: cited
In CPSU v Telstra Corporation (2001) 108 IR 228, Finkelstein J said at [8] that the objects of imposing a pecuniary penalty may include punishment, deterrence or rehabilitation, or a combination of all three. 16 I do not think in the case of a contravention of s 285E rehabilitation plays any real part. I think punishment plays some part in the purpose for the imposition of a penalty, but I think it plays a lesser part than aspects of deterrence. In my opinion, the principal reason for the imposition of a penalty in relation to a contravention of s 285E of the Act is deterrence. The purpose of the civil penalty is to deter persons, who have been given a right to enter premises by virtue of ss 285B and 285C, from intentionally hindering or obstructing any other employer or employee. In speaking of deterrence, I am speaking of both general and personal deterrence. The purpose of the penalty is to deter the particular person from further contraventions of the section and to deter other like minded persons who might otherwise commit a contravention of s 285E. 17 The Act also seeks to deter persons who hold a permit from contravening s 285E(1) by empowering the Registrar to revoke the contravenor's permit if the Registrar is satisfied that a contravention has occurred: s 285A(3). In considering the appropriate penalty I have taken into account that the finding of a contravention may put the respondent's permit at risk. It was contended by the respondent's counsel that if the respondent lost his permit the respondent may either lose or his job or be forced to take leave during the time when the respondent was without a permit. It was put that the permit was an essential aspect of his employment. However, the respondent's counsel was not able to say that either of those consequences would follow if the respondent were to lose his permit or have it suspended for any length of time. The risk of those events occurring ought to be taken into account but, in the circumstances of this case and in the absence of any evidence from the employer, I do not put great weight upon those risks.
Case: Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 ; [2004] ATPR 41
Outcome: cited
In NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285 at 290-291, Burchett and Kiefel JJ (with whom Carr J generally agreed) discussed the question of the Court's role on fixing the quantum of penalty in circumstances where the parties had indicated a range within which a civil penalty ought to be imposed. That decision has been more recently considered in Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 ; [2004] ATPR 41 and the Court distilled the proposition which emerged from the reasoning in NW Frozen Foods [1996] FCA 1134 ; 71 FCR 285 at [51] : The following propositions emerge from the reasoning in NW Frozen Foods: (i) It is the responsibility of the Court to determine the appropriate penalty to be imposed under s 76 of the TP Act in respect of a contravention of the TP Act. (ii) Determining the quantum of a penalty is not an exact science. Within a permissible range, the courts have acknowledged that a particular figure cannot necessarily be said to be more appropriate than another. (iii) There is a public interest in promoting settlement of litigation, particularly where it is likely to be lengthy. Accordingly, when the regulator and contravenor have reached agreement, they may present to the Court a statement of facts and opinions as to the effect of those facts, together with joint submissions as to the appropriate penalty to be imposed. (iv) The view of the regulator, as a specialist body, is a relevant, but not determinative consideration on the question of penalty. In particular, the views of the regulator on matters within its expertise (such as the ACCC's views as to the deterrent effect of a proposed penalty in a given market) will usually be given greater weight than its views on more "subjective" matters. (v) In determining whether the proposed penalty is appropriate, the Court examines all the circumstances of the case. Where the parties have put forward an agreed statement of facts, the Court may act on that statement if it is appropriate to do so. (vi) Where the parties have jointly proposed a penalty, it will not be useful to investigate whether the Court would have arrived at that precise figure in the absence of agreement. The question is whether that figure is, in the Court's view, appropriate in the circumstances of the case. In answering that question, the Court will not reject the agreed figure simply because it would have been disposed to select some other figure. It will be appropriate if within the permissible range.