mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52
Outcome: cited
finding of the Tribunal that the sole or predominant reason for his being targeted by the Maoists was the satisfaction of a personal grudge against him was, so submits the first respondent, a finding of fact which cannot be reviewed: Peiris v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 413 at [18]-[23]; Buultjens v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 1058 at [12] and [13]. The first respondent further submits that the Court should not too readily find error in such a finding of non-satisfaction: NAAH of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 354 at [27] ; NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52 at [27] . To do so, it submits, would involve the Court transgressing into merits review or finding that there was only one reasonable finding open to the Tribunal, being Convention related persecution for reason of political opinion or membership of a particular social group, notwithstanding the lack of evidence to support such an inference. Finally, it contends that there was no evidence that the Maoists in question wanted to harm the appellant because he was an agent of the state and the Court should not reconstruct those claims in a different or more articulate manner than they were put to the Tribunal: S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 203 ALR 112 at [1] ; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [58] .
Case: Peiris v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 413
Outcome: cited
finding of the Tribunal that the sole or predominant reason for his being targeted by the Maoists was the satisfaction of a personal grudge against him was, so submits the first respondent, a finding of fact which cannot be reviewed: Peiris v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 413 at [18]-[23]; Buultjens v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 1058 at [12] and [13]. The first respondent further submits that the Court should not too readily find error in such a finding of non-satisfaction: NAAH of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 354 at [27] ; NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52 at [27] . To do so, it submits, would involve the Court transgressing into merits review or finding that there was only one reasonable finding open to the Tribunal, being Convention related persecution for reason of political opinion or membership of a particular social group, notwithstanding the lack of evidence to support such an inference. Finally, it contends that there was no evidence that the Maoists in question wanted to harm the appellant because he was an agent of the state and the Court should not reconstruct those claims in a different or more articulate manner than they were put to the Tribunal: S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 203 ALR 112 at [1] ; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [58] .
Case: S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 203 ALR 112 
Outcome: cited
finding of the Tribunal that the sole or predominant reason for his being targeted by the Maoists was the satisfaction of a personal grudge against him was, so submits the first respondent, a finding of fact which cannot be reviewed: Peiris v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 413 at [18]-[23]; Buultjens v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 1058 at [12] and [13]. The first respondent further submits that the Court should not too readily find error in such a finding of non-satisfaction: NAAH of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 354 at [27] ; NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52 at [27] . To do so, it submits, would involve the Court transgressing into merits review or finding that there was only one reasonable finding open to the Tribunal, being Convention related persecution for reason of political opinion or membership of a particular social group, notwithstanding the lack of evidence to support such an inference. Finally, it contends that there was no evidence that the Maoists in question wanted to harm the appellant because he was an agent of the state and the Court should not reconstruct those claims in a different or more articulate manner than they were put to the Tribunal: S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 203 ALR 112 at [1] ; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [58] .
Case: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Outcome: applied
Mason CJ set out, in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 , characteristics of decisions to which s 5 applies. In particular, his Honour held that (at 336): &#8226; Reviewable decisions are decisions "which a statute requires or authorises rather than merely a step taken in the course of reasoning on the way to the making of the ultimate decision"; &#8226; Such decisions have "the character or quality of finality, an outcome reflecting something in the nature of a determination of an application, inquiry or dispute..."; and &#8226; Acts "done preparatory to the making of a 'decision' are not to be regarded as constituting 'decisions' for, if they were, there would be little, if any, point in providing for judicial review of 'conduct' as well as of a 'decision'."
Case: D'Emden v Pedder [1904] HCA 1 ; (1904) 1 CLR 91
Outcome: applied
The principle by which power may be granted by necessary implication is a well established principle of statutory construction: see for example Hudson v Venderheld [1968] HCA 17 ; (1968) 118 CLR 171 at 175; Re Sterling; Ex parte Esanda Ltd [1980] FCA 61 ; (1980) 30 ALR 77 at 83; Gerah Imports v Minister for Industry, Technology and Commerce (1987) 14 ALD 351 at 362 and Collector of Customs v LNC (Wholesale) Pty Ltd (1989) 19 ALD 341 at 345. In D'Emden v Pedder [1904] HCA 1 ; (1904) 1 CLR 91 , Griffith CJ, delivering the judgment of the High Court, described the principle as follows (at 110): ...where any power or control is expressly granted, there is included in the grant, to the full extent of the capacity of the grantor, and without special mention, every power and every control the denial of which would render the grant itself ineffective.
Case: Gerah Imports v Minister for Industry, Technology and Commerce (1987) 14 ALD 351
Outcome: cited
The principle by which power may be granted by necessary implication is a well established principle of statutory construction: see for example Hudson v Venderheld [1968] HCA 17 ; (1968) 118 CLR 171 at 175; Re Sterling; Ex parte Esanda Ltd [1980] FCA 61 ; (1980) 30 ALR 77 at 83; Gerah Imports v Minister for Industry, Technology and Commerce (1987) 14 ALD 351 at 362 and Collector of Customs v LNC (Wholesale) Pty Ltd (1989) 19 ALD 341 at 345. In D'Emden v Pedder [1904] HCA 1 ; (1904) 1 CLR 91 , Griffith CJ, delivering the judgment of the High Court, described the principle as follows (at 110): ...where any power or control is expressly granted, there is included in the grant, to the full extent of the capacity of the grantor, and without special mention, every power and every control the denial of which would render the grant itself ineffective.
Case: Hudson v Venderheld [1968] HCA 17 ; (1968) 118 CLR 171
Outcome: cited
The principle by which power may be granted by necessary implication is a well established principle of statutory construction: see for example Hudson v Venderheld [1968] HCA 17 ; (1968) 118 CLR 171 at 175; Re Sterling; Ex parte Esanda Ltd [1980] FCA 61 ; (1980) 30 ALR 77 at 83; Gerah Imports v Minister for Industry, Technology and Commerce (1987) 14 ALD 351 at 362 and Collector of Customs v LNC (Wholesale) Pty Ltd (1989) 19 ALD 341 at 345. In D'Emden v Pedder [1904] HCA 1 ; (1904) 1 CLR 91 , Griffith CJ, delivering the judgment of the High Court, described the principle as follows (at 110): ...where any power or control is expressly granted, there is included in the grant, to the full extent of the capacity of the grantor, and without special mention, every power and every control the denial of which would render the grant itself ineffective.
Case: Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550
Outcome: followed
The circumstances which give rise to the duty of procedural fairness were set out by Mason J (as he then was) in Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 584: The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. 49 His Honour went on to note that (at 584-585): Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute ... the expression "procedural fairness" more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case.
Case: Re Sterling; Ex parte Esanda Ltd [1980] FCA 61 ; (1980) 30 ALR 77
Outcome: cited
The principle by which power may be granted by necessary implication is a well established principle of statutory construction: see for example Hudson v Venderheld [1968] HCA 17 ; (1968) 118 CLR 171 at 175; Re Sterling; Ex parte Esanda Ltd [1980] FCA 61 ; (1980) 30 ALR 77 at 83; Gerah Imports v Minister for Industry, Technology and Commerce (1987) 14 ALD 351 at 362 and Collector of Customs v LNC (Wholesale) Pty Ltd (1989) 19 ALD 341 at 345. In D'Emden v Pedder [1904] HCA 1 ; (1904) 1 CLR 91 , Griffith CJ, delivering the judgment of the High Court, described the principle as follows (at 110): ...where any power or control is expressly granted, there is included in the grant, to the full extent of the capacity of the grantor, and without special mention, every power and every control the denial of which would render the grant itself ineffective.
Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592
Outcome: followed
The importance of the construction of the relevant statutory scheme has recently been reiterated by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592. There, the Court stated that (at 598): It has long been established that the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires. It is also clear that the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case. 51 In the context of this matter, it is s 190A of the Act and Item 90 of Sch 2 to the Amending Act to which the Court must have particular regard. Section 190A(3) of the Act sets out the material to which the Registrar must have regard when considering a claim under s 190A. That section provides: (3) In considering a claim under this section, the Registrar must have regard to: (a) information contained in the application and in any other documents provided by the applicant; and (b) any information obtained by the Registrar as a result of any searches conducted by the Registrar of registers of interests in relation to land or waters maintained by the Commonwealth, a State or a Territory; and (c) to the extent that it is reasonably practicable to do so in the circumstances--any information supplied by the Commonwealth, a State or a Territory, that, in the Registrar's opinion, is relevant to whether any one or more of the conditions set out in section 190B or 190C are satisfied in relation to the claim; and may have regard to such other information as he or she considers appropriate. 52 Section 190A(5A) allows, but does not require, the Registrar, before he or she has decided whether or not to accept the claim for registration, to notify an applicant that the application may be amended under the Federal Court Rules .
Case: Wakaman People v Native Title Registrar [2006] FCA 1251
Outcome: discussed
In her oral submissions, Ms Bowskill drew particular attention to the duties imposed on the Registrar by the Act with respect to the establishment and maintenance of the Register. Those duties were considered by Justice Kiefel in Wakaman People v Native Title Registrar [2006] FCA 1251 at [8] : The Register is a public document, to be available for inspection (s 187(1)). The provisions of the NTA concerning its maintenance suggest that it is intended to reflect the current state of affairs with respect to claims. Section 186(1)(ca) requires the date upon which the claim is entered on the Register to be included in it. The Registrar is required 'as soon as practicable' to include in the Register details of any claim accepted for registration under s 190A (s 190(1)(a)) and must likewise amend the Register where there is an amended application which complies with the Act's requirements and remove any entry relating to the claim where it does not: s 190(2) and (3). The Registrar must also take prompt action to remove entries where a claim has been withdrawn, dismissed or finalised: s 190(4). The need for the Register to reflect the current state of claims is confirmed by the Explanatory Memorandum to the Native Title Amendment Act 1998 (in connexion with s 190(2)). 40 Paragraph 29.2 of the Explanatory Memorandum noted by her Honour states: ... the purpose of the registration test is to ensure that only claims which have merit are registered in the Register of Native Title Claims. 41 It is clear from the above that Pt 7 of the Act imposes particular duties upon the Registrar to maintain the Register, to keep it up to date, and to ensure that the only entries on the Register are those which have met the requirements of the statute. Prior to the Amending Act, the applicants' claim fell into that category. The effect of Item 90 of Sch 2 to the Amending Act was to require the applicants' claim to meet the criteria in the registration test if it was still to meet the requirements of the Act. In my judgment, if the Registrar decided that the applicants' claim did not so meet the Act's criteria, then he was under an obligation to update the Register accordingly. There is no express power in the Registrar to remove a claim under those circumstances, but such power exists, in my judgment, by necessary implication.
Case: Western Australia and the Northern Territory of Australia v Patricia Lane, Native Title Registrar [1995] FCA 1484
Outcome: cited
The particular jurisdictional basis upon which the applicants' claim was made is not articulated in the application for review, although it has been addressed by both the applicants and the Attorney-General in their respective submissions. The applicant submits that both decisions of the delegate were decisions "of an administrative character" made "under an enactment" such as to bring them within the scope of s 5 of the ADJR Act. In addition and in the alternative, the applicant submits (relying upon Western Australia and the Northern Territory of Australia v Patricia Lane, Native Title Registrar [1995] FCA 1484) that s 39B of the Judiciary Act 1903 (Cth) could confer jurisdiction on the Court, as the Registrar is an officer of the Commonwealth, and it is within the original jurisdiction of the Court to review the decisions of such officers. 15 The Attorney-General does not dispute that the decision of the delegate made on 28 September 2007 in relation to the claim for registration falls within the scope of the ADJR Act. However, the Attorney-General submits that the earlier decision of the delegate, made on 20 August 2007 in relation to the extension of time, was not of an administrative character, nor was it made "under an enactment".
Case: Baltic Shipping Company v Dillon [1993] HCA 4 ; (1993) 176 CLR 344
Outcome: cited
Mr Rana's claim for loss of reputation and face, including humiliation and embarrassment, fails because, as I have said, I am satisfied that the conversation between Mr Rana and Ms McIver was a measured and relatively quiet one; that no one else was present during the conversation and certainly not any family or friends of Mr Rana, and that Mr Rana left the Convention Centre quietly and without an escort. He was not escorted out of the Convention Centre by security guards or police officers or, indeed, by anyone. Furthermore, Mr Rana was not emotionally distressed or, at least, not openly so. In fact, he had the presence of mind to calmly tell Ms McIver during his conversation with her that he would be suing the University. Mr Rana referred to the decision in Baltic Shipping Co v Dillon [1993] HCA 4 ; (1993) 176 CLR 344, but there is no evidence of disappointment or emotional distress, even if it was otherwise an appropriate case for such an award. 52 The University admits that it is a corporation within s 52 of the Act . Furthermore, the University did not argue that its conduct on 27 March 2006 was not in trade or commerce. 53 The first question is whether any conduct of the University on 27 March 2006 was misleading or deceptive. As I understood Mr Rana's case, the conduct which he alleged was misleading or deceptive was the insertion of the advertisement in The Australian newspaper and the statements made by Ms Ellmers during her conversation with Mr Rana on the telephone. The contents of the advertisement are clear, and I have accepted Ms Ellmers' account of her conversation with Mr Rana as the correct one.
Case: Carlill v Carbolic Smoke Ball Co [1892] EWCA Civ 1 ; [1893] 1 QB 256
Outcome: distinguished
This case is distinguishable from Carlill v Carbolic Smoke Ball Co [1892] EWCA Civ 1 ; [1893] 1 QB 256 and the reward cases such as Williams v Carwardine [1833] EWHC J44 (KB) ; (1833) 5 C &amp; P 566; 172 ER 1101; see also R v Clarke [1927] HCA 47 ; (1927) 40 CLR 227. In this case, having regard to the form and content of the advertisement, the reference to booking and the nature of the event, it cannot be said that there was an offer capable of acceptance merely by going to the Convention Centre and offering to purchase a ticket. In my opinion, the decision in Denton v Great Northern Railway Co (1856) 5 E &amp; B 860; 119 ER 701 is distinguishable on the ground that the nature of a railway timetable is quite different from the advertisement in this case. Furthermore, it is commonly understood that the circumstances in which a train cannot carry a passenger are far more limited than the circumstances in which a member of the public is denied entry to an event such as that involved in this case. In any event, I prefer the reasoning of Crompton J in Denton v Great Northern Railway (supra) who doubted that the defendant was answerable in contract (5 E and B 867-870; ER 704-705).
Case: Cowell v Rosehill Racecourse Co Ltd [1937] HCA 17 ; (1937) 56 CLR 605
Outcome: cited
In my opinion, neither the advertisement nor Ms Ellmers' statements during her telephone conversation with Mr Rana contained or gave rise to an implied statement or representation as to the right of a member of the public to attend the hypothetical. In saying that, I am directing my attention to the period prior to the purchase of a ticket. On purchase of a ticket there will be contractual rights and obligations between the parties. It is well established that even when a ticket is purchased, the right of a ticketholder, should there be a breach, is reflected in a claim for damages rather than a right to enter or stay on land ( Cowell v Rosehill Racecourse Co Ltd [1937] HCA 17 ; (1937) 56 CLR 605). In any event, in relation to the period prior to the purchase of a ticket, the advertisement or statements of Ms Ellmers do not contain or give rise to an implied statement or representation as to the right of a member of the public to attend the hypothetical. Clearly, there cannot be any implied statement or representation that there is an unqualified right because there might be any number of reasons why the organiser of an event might justifiably deny a person a ticket or entry to the event, ranging from the cancellation of the event or a full auditorium on the one hand, to disruptive conduct or inappropriate dress by the proposed attendee on the other. No reasonable reader of the advertisement or party to the conversation with Ms Ellmers would understand that, prior to the purchase of a ticket, any member of the public had an unqualified right to attend the hypothetical. To my mind, it is not possible to conclude that there is an implied statement or representation as to a right of a more limited nature, for example, a right to enter subject to a good reason to exclude, because there would simply be no unanimity, or even a majority view, as to the particular circumstances which would justify the exclusion of a member of the public. 58 Even if I am wrong in reaching the conclusions set out above and the University has contravened s 52 of the Act , Mr Rana's claim for damages under s 82 must fail because he has not proved any loss or damage within the provisions of that section. I need do no more than refer to my conclusions as to loss and damage in the context of Mr Rana's claim for breach of contract ([46]-[50]). 59 Mr Rana's claim for damages for an alleged contravention of s 52 of the Act fails.
Case: Denton v Great Northern Railway Co (1856) 5 E &amp; B 860; 119 ER 701
Outcome: distinguished
This case is distinguishable from Carlill v Carbolic Smoke Ball Co [1892] EWCA Civ 1 ; [1893] 1 QB 256 and the reward cases such as Williams v Carwardine [1833] EWHC J44 (KB) ; (1833) 5 C &amp; P 566; 172 ER 1101; see also R v Clarke [1927] HCA 47 ; (1927) 40 CLR 227. In this case, having regard to the form and content of the advertisement, the reference to booking and the nature of the event, it cannot be said that there was an offer capable of acceptance merely by going to the Convention Centre and offering to purchase a ticket. In my opinion, the decision in Denton v Great Northern Railway Co (1856) 5 E &amp; B 860; 119 ER 701 is distinguishable on the ground that the nature of a railway timetable is quite different from the advertisement in this case. Furthermore, it is commonly understood that the circumstances in which a train cannot carry a passenger are far more limited than the circumstances in which a member of the public is denied entry to an event such as that involved in this case. In any event, I prefer the reasoning of Crompton J in Denton v Great Northern Railway (supra) who doubted that the defendant was answerable in contract (5 E and B 867-870; ER 704-705).