mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Nadu v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 571
Outcome: cited
power conferred by s 32AB has been exercised on a number of occasions and in diverse situations. In Garage Wholesalers Pty Ltd v Engineering Software Solutions Pty Ltd [2009] FCA 361 , McKerracher J transferred a proceeding alleging a contravention of s 52 of the Trade Practices Act 1974 (Cth). His Honour considered that the proceeding involved a claim for a moderate amount and that it was likely that it could be dealt with more expeditiously and less formally in the Federal Magistrates Court. See also Kurniadi v Loh [2002] FCA 1021 , 193 ALR 253. A further instance is provided by Ozluk v Australian Turkish &amp; Kurdish Community Services Co-Operative Ltd [2008] FCA 352 where Graham J transferred an application brought pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). See also Beetham v Cortra Pty Ltd [2003] FCA 150. In Melville v Macquarie University [2006] FCA 1761 Madgwick J transferred an application brought under the Workplace Relations Act 1996 (Cth) for unlawful termination of employment. See also Sheikholeslami v University of New South Wales [2006] FCA 712 ; Rixon v Business Parcell Express Pty Ltd [2006] FCA 969. Applications arising under the Migration Act 1958 (Cth) have also been the subject of orders made pursuant to s 32AB: Nadu v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 571 ; Hong Bo Su v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1355.
Case: Ozluk v Australian Turkish &amp; Kurdish Community Services Co-Operative Ltd [2008] FCA 352
Outcome: cited
power conferred by s 32AB has been exercised on a number of occasions and in diverse situations. In Garage Wholesalers Pty Ltd v Engineering Software Solutions Pty Ltd [2009] FCA 361 , McKerracher J transferred a proceeding alleging a contravention of s 52 of the Trade Practices Act 1974 (Cth). His Honour considered that the proceeding involved a claim for a moderate amount and that it was likely that it could be dealt with more expeditiously and less formally in the Federal Magistrates Court. See also Kurniadi v Loh [2002] FCA 1021 , 193 ALR 253. A further instance is provided by Ozluk v Australian Turkish &amp; Kurdish Community Services Co-Operative Ltd [2008] FCA 352 where Graham J transferred an application brought pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). See also Beetham v Cortra Pty Ltd [2003] FCA 150. In Melville v Macquarie University [2006] FCA 1761 Madgwick J transferred an application brought under the Workplace Relations Act 1996 (Cth) for unlawful termination of employment. See also Sheikholeslami v University of New South Wales [2006] FCA 712 ; Rixon v Business Parcell Express Pty Ltd [2006] FCA 969. Applications arising under the Migration Act 1958 (Cth) have also been the subject of orders made pursuant to s 32AB: Nadu v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 571 ; Hong Bo Su v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1355.
Case: Rahman v Dayeh [2006] FCA 1362
Outcome: applied
power to make an order tansferring a proceeding to the Federal Magistrates Court is a discretionary power (s 32AB(1)) which may be exercised upon the Court's own initiative (s 32AB(2)(b)). It is thus a power which may be exercised even though an applicant may oppose such an order being made: e.g. Rahman v Dayeh [2006] FCA 1362. But where the parties consent to the making of such an order, Jacobson J has observed that such consent is " decisive ": Rixon v Business Parcel Express Pty Ltd [2006] FCA 969 at [3] . Notwithstanding the fact that the Applicant does not wish for the proceeding to be transferred, it is considered that the case essentially involves a motor vehicle accident claim upon an insurance policy. That claim can be expeditiously resolved in the Federal Magistrates Court. As was stated by Gyles J in Rahman v Dayeh at [3]: ... It has been put that the Federal Magistrates Court is an inferior court and that, even if it has jurisdiction, it is best exercised by the Federal Court as a superior court. Federal Magistrates are Federal judicial officers governed by Ch III of the Constitution although, in a sense, judges of an inferior court. Both the qualifications for appointment and the characteristics of those individuals who have been appointed, fit them to undertake jurisdiction which might not previously have been thought appropriate. Even though I must pay regard to the opposition of the applicant, in one sense the applicant may be gaining another level of appeal to this Court. Although it is not certain whether the proceeding will be heard at an earlier point of time in the Federal Magistrates Court than in this Court, there is no reason why it could not be heard as expeditiously as that Court considers appropriate. Such legal costs as will be incurred, it is to be expected, will be less &#8212; or at least no more &#8212; than those that would be incurred in this Court. The Respondent insurer this morning adopted a " neutral stance " as to whether the proceeding should be transferred. Notwithstanding the careful written submissions advanced by Counsel for the Applicant, it is not considered that the proceeding involves any point of general importance, let alone a point which should be resolved by a single judge of this Court &#8212; at least initially. If attention is confined to the Application and the Statement of Claim, the only two " federal aspects " of the claim there advanced are: the claim for interest pursuant to s 57 of the 1984 Act; and the Particulars provided as to a possible implied term of the policy. Neither of those matters, nor any other aspect of the Statement of Claim , is considered to raise any point of general importance. Indeed, it is not understood that Counsel for the Applicant sought to contend otherwise. Whether or not any term is to be implied may possibly depend upon a resolution of disputed facts which, it is considered, are best resolved before a Federal Magistrate.
Case: Rixon v Business Parcel Express Pty Ltd [2006] FCA 969
Outcome: cited
power to make an order tansferring a proceeding to the Federal Magistrates Court is a discretionary power (s 32AB(1)) which may be exercised upon the Court's own initiative (s 32AB(2)(b)). It is thus a power which may be exercised even though an applicant may oppose such an order being made: e.g. Rahman v Dayeh [2006] FCA 1362. But where the parties consent to the making of such an order, Jacobson J has observed that such consent is " decisive ": Rixon v Business Parcel Express Pty Ltd [2006] FCA 969 at [3] . The power conferred by s 32AB has been exercised on a number of occasions and in diverse situations. In Garage Wholesalers Pty Ltd v Engineering Software Solutions Pty Ltd [2009] FCA 361 , McKerracher J transferred a proceeding alleging a contravention of s 52 of the Trade Practices Act 1974 (Cth). His Honour considered that the proceeding involved a claim for a moderate amount and that it was likely that it could be dealt with more expeditiously and less formally in the Federal Magistrates Court. See also Kurniadi v Loh [2002] FCA 1021 , 193 ALR 253. A further instance is provided by Ozluk v Australian Turkish &amp; Kurdish Community Services Co-Operative Ltd [2008] FCA 352 where Graham J transferred an application brought pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). See also Beetham v Cortra Pty Ltd [2003] FCA 150. In Melville v Macquarie University [2006] FCA 1761 Madgwick J transferred an application brought under the Workplace Relations Act 1996 (Cth) for unlawful termination of employment. See also Sheikholeslami v University of New South Wales [2006] FCA 712 ; Rixon v Business Parcell Express Pty Ltd [2006] FCA 969. Applications arising under the Migration Act 1958 (Cth) have also been the subject of orders made pursuant to s 32AB: Nadu v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 571 ; Hong Bo Su v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1355.
Case: Sheikholeslami v University of New South Wales [2006] FCA 712
Outcome: cited
power conferred by s 32AB has been exercised on a number of occasions and in diverse situations. In Garage Wholesalers Pty Ltd v Engineering Software Solutions Pty Ltd [2009] FCA 361 , McKerracher J transferred a proceeding alleging a contravention of s 52 of the Trade Practices Act 1974 (Cth). His Honour considered that the proceeding involved a claim for a moderate amount and that it was likely that it could be dealt with more expeditiously and less formally in the Federal Magistrates Court. See also Kurniadi v Loh [2002] FCA 1021 , 193 ALR 253. A further instance is provided by Ozluk v Australian Turkish &amp; Kurdish Community Services Co-Operative Ltd [2008] FCA 352 where Graham J transferred an application brought pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). See also Beetham v Cortra Pty Ltd [2003] FCA 150. In Melville v Macquarie University [2006] FCA 1761 Madgwick J transferred an application brought under the Workplace Relations Act 1996 (Cth) for unlawful termination of employment. See also Sheikholeslami v University of New South Wales [2006] FCA 712 ; Rixon v Business Parcell Express Pty Ltd [2006] FCA 969. Applications arising under the Migration Act 1958 (Cth) have also been the subject of orders made pursuant to s 32AB: Nadu v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 571 ; Hong Bo Su v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1355.
Case: Morton v Robins (1996) 14 ACLC 1197
Outcome: cited
second respondent accepted that, when acting as an eligible Judge under s 129A of the Bankruptcy Act and determining to issue a warrant under s 130 of that Act, a Judge is not acting in a judicial capacity or exercising judicial authority. This concession was properly made: see Morton v Robins (1996) 14 ACLC 1197. He also accepted that the decision of an eligible Judge under s 130 of the Bankruptcy Act was a decision of an administrative character made under an enactment which, if he had standing, was a decision which the applicant could challenge under the ADJR Act. This concession was also properly made: see Morton at 1198. CONSIDERATION Standing The second respondent contends that there is no evidence that the applicant is a person aggrieved by his Honour's decision to issue a search warrant. The warrant was to be executed at the premises of TS&amp;B Retail and was so executed. The warrant was, it was said, issued because of matters arising in relation to the applicant's bankrupt estate rather than the bankrupt himself. For these reasons it was submitted that the applicant did not have standing to apply for review under s 5 of the ADJR Act. Counsel for the applicant did not point to any evidence before the Court which went to the standing of the applicant. He did however state that, when the warrant was executed, the applicant claimed that some of the documents seized were subject to a claim, by him, of client legal privilege. As a result those documents were segregated and have not been examined by the second respondent. He submitted that his client's interest in preserving the confidentiality of the privileged material was a relevant interest which was affected by the decision to issue the warrant. Had the warrant not been issued the maintenance of that confidentiality would not have been compromised. A person has the necessary standing to bring an application under the ADJR Act if he or she is aggrieved by the decision which it is desired to challenge. By s 3(4) of the ADJR Act it is provided that a person will be taken to be aggrieved by a decision if that decision adversely affects the interests of the person.
Case: Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd [1994] FCA 996 ; (1994) 49 FCR 250
Outcome: cited
term "person who is aggrieved", used in the ADJR Act, is not narrowly to be confined: see Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd [1994] FCA 996 ; (1994) 49 FCR 250 at 259. A person will have standing if his or her "interests", broadly defined, are affected by the particular decision. Proprietary and financial interests are relevant interests. They are, however, by no means the only interests comprehended by s 3(4). It will be necessary, in any particular case, for the Court to form a judgment as to whether the person's interests are affected to such a degree as to warrant the grant of standing: see Australian Foreman Stevedores Association v Crone (1989) 20 FCR 377 at 382. Another relevant, but not decisive, consideration is whether the applicant had a right to be heard prior to the making of the decision in question: see Alphapharm at 260 - 261; Big Country Developments Pty Ltd v Australian Community Pharmacy Authority (1995) 60 FCR 85 at 95. If a person has a right, interest or legitimate expectation which entitles him or her to be heard prior to a particular decision being taken it is more likely that that person will be treated as having standing to challenge the decision once made than a person who lacked a sufficient interest to attract the requirements of procedural fairness.
Case: Australian Foreman Stevedores Association v Crone (1989) 20 FCR 377
Outcome: cited
term "person who is aggrieved", used in the ADJR Act, is not narrowly to be confined: see Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd [1994] FCA 996 ; (1994) 49 FCR 250 at 259. A person will have standing if his or her "interests", broadly defined, are affected by the particular decision. Proprietary and financial interests are relevant interests. They are, however, by no means the only interests comprehended by s 3(4). It will be necessary, in any particular case, for the Court to form a judgment as to whether the person's interests are affected to such a degree as to warrant the grant of standing: see Australian Foreman Stevedores Association v Crone (1989) 20 FCR 377 at 382.
Case: Australian Institute of Marine and Power Engineers v Secretary, Department of Transport [1986] FCA 443 ; (1986) 13 FCR 124
Outcome: cited
Court's judgment will be influenced by the nature of the particular decision and the extent to which the interests of the applicant rise above those of an ordinary member of the public: see Australian Institute of Marine and Power Engineers v Secretary, Department of Transport [1986] FCA 443 ; (1986) 13 FCR 124 at 133 per Gummow J. See also Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 70 FCR 462 at 473; Mark v Australian Broadcasting Tribunal [1991] FCA 570 ; (1991) 32 FCR 476 at 477.
Case: Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 70 FCR 462
Outcome: cited
Court's judgment will be influenced by the nature of the particular decision and the extent to which the interests of the applicant rise above those of an ordinary member of the public: see Australian Institute of Marine and Power Engineers v Secretary, Department of Transport [1986] FCA 443 ; (1986) 13 FCR 124 at 133 per Gummow J. See also Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 70 FCR 462 at 473; Mark v Australian Broadcasting Tribunal [1991] FCA 570 ; (1991) 32 FCR 476 at 477.
Case: Mark v Australian Broadcasting Tribunal [1991] FCA 570 ; (1991) 32 FCR 476
Outcome: cited
Court's judgment will be influenced by the nature of the particular decision and the extent to which the interests of the applicant rise above those of an ordinary member of the public: see Australian Institute of Marine and Power Engineers v Secretary, Department of Transport [1986] FCA 443 ; (1986) 13 FCR 124 at 133 per Gummow J. See also Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 70 FCR 462 at 473; Mark v Australian Broadcasting Tribunal [1991] FCA 570 ; (1991) 32 FCR 476 at 477.
Case: Big Country Developments Pty Ltd v Australian Community Pharmacy Authority (1995) 60 FCR 85
Outcome: cited
relevant, but not decisive, consideration is whether the applicant had a right to be heard prior to the making of the decision in question: see Alphapharm at 260 - 261; Big Country Developments Pty Ltd v Australian Community Pharmacy Authority (1995) 60 FCR 85 at 95. If a person has a right, interest or legitimate expectation which entitles him or her to be heard prior to a particular decision being taken it is more likely that that person will be treated as having standing to challenge the decision once made than a person who lacked a sufficient interest to attract the requirements of procedural fairness.
Case: Osmond v Public Service Board [1984] 3 NSWLR 447
Outcome: cited
introduction of the requirement that administrative decision-makers provide reasons for their decisions (or do so on request from persons affected by those decisions) was a fundamental development in Australia's system of administrative law. In his 1989 Blackburn Lecture, the then Chief Justice of the High Court, Sir Anthony Mason, said that the creation of the obligation to provide a statement of reasons for decisions "was a dramatic advance in arming the individual with effective remedies in the overall scheme to ensure administrative justice" and that "reasoned and principled administrative decisions are an indispensable element in a modern democracy." The provision of reasons serves a number of useful functions: see Osmond v Public Service Board of New South Wales [1984] 3 NSWLR 447 at 463 (per Kirby P); Comcare Australia v Lees (1997) 151 ALR 647 at 656 (per Finkelstein J). Relevantly, the provision of reasons enables the parties, and, particularly, unsuccessful parties, to understand why the decision was made and to make an informed judgment as to whether to seek redress or to accept the decision. To this end "[i]t is necessary that the statement be sufficiently explicit to enable the recipient to determine whether "the making of the decision was an improper exercise of the power conferred by the enactment", "the decision involved in error of law", the decision-maker took into account an irrelevant consideration or failed to take into account a relevant consideration and like matters referred to in ss 5 and 6 of the [ADJR] Act": Hatfield v Health Insurance Commission (1987) 15 FCR 487 at 490. In a frequently quoted passage from his judgment in Ansett Transport Industries (Operations) Pty Ltd v Wraith [1983] FCA 179 ; (1983) 48 ALR 500 at 507, Woodward J explained the obligation, imposed on decision-makers by s 13 of the ADJR Act, as follows: "The passages from judgments which are conveniently brought together in Re Palmer and Minister for the Capital Territory (1978) 23 ALR 176 at 206-207; 1 ALD 183 at 193-4, serve to confirm my view that s 13(1) of the Judicial Review Act requires the decision-maker to explain his decision in a way which will enable a person aggrieved to say, in effect: "Even though I may not agree with it, I now understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging." This requires that the decision-maker should set out his understanding of the relevant law, any findings of fact on which his conclusions depend (especially if those facts have been in dispute), and the reasoning processes which led him to those conclusions. He should do so in clear and unambiguous language, not in vague generalities or the formal language of legislation." See also ARM Constructions Pty Ltd v Deputy Commissioner of Taxation (1986) 10 FCR 197 at 203; Soldatow v Australia Council [1991] FCA 160 ; (1991) 28 FCR 1 at 2.
Case: Comcare Australia v Lees (1957) 151 ALR 647
Outcome: cited
introduction of the requirement that administrative decision-makers provide reasons for their decisions (or do so on request from persons affected by those decisions) was a fundamental development in Australia's system of administrative law. In his 1989 Blackburn Lecture, the then Chief Justice of the High Court, Sir Anthony Mason, said that the creation of the obligation to provide a statement of reasons for decisions "was a dramatic advance in arming the individual with effective remedies in the overall scheme to ensure administrative justice" and that "reasoned and principled administrative decisions are an indispensable element in a modern democracy." The provision of reasons serves a number of useful functions: see Osmond v Public Service Board of New South Wales [1984] 3 NSWLR 447 at 463 (per Kirby P); Comcare Australia v Lees (1997) 151 ALR 647 at 656 (per Finkelstein J). Relevantly, the provision of reasons enables the parties, and, particularly, unsuccessful parties, to understand why the decision was made and to make an informed judgment as to whether to seek redress or to accept the decision. To this end "[i]t is necessary that the statement be sufficiently explicit to enable the recipient to determine whether "the making of the decision was an improper exercise of the power conferred by the enactment", "the decision involved in error of law", the decision-maker took into account an irrelevant consideration or failed to take into account a relevant consideration and like matters referred to in ss 5 and 6 of the [ADJR] Act": Hatfield v Health Insurance Commission (1987) 15 FCR 487 at 490. In a frequently quoted passage from his judgment in Ansett Transport Industries (Operations) Pty Ltd v Wraith [1983] FCA 179 ; (1983) 48 ALR 500 at 507, Woodward J explained the obligation, imposed on decision-makers by s 13 of the ADJR Act, as follows: "The passages from judgments which are conveniently brought together in Re Palmer and Minister for the Capital Territory (1978) 23 ALR 176 at 206-207; 1 ALD 183 at 193-4, serve to confirm my view that s 13(1) of the Judicial Review Act requires the decision-maker to explain his decision in a way which will enable a person aggrieved to say, in effect: "Even though I may not agree with it, I now understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging." This requires that the decision-maker should set out his understanding of the relevant law, any findings of fact on which his conclusions depend (especially if those facts have been in dispute), and the reasoning processes which led him to those conclusions. He should do so in clear and unambiguous language, not in vague generalities or the formal language of legislation." See also ARM Constructions Pty Ltd v Deputy Commissioner of Taxation (1986) 10 FCR 197 at 203; Soldatow v Australia Council [1991] FCA 160 ; (1991) 28 FCR 1 at 2.