mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228 ; (1985) 7 FCR 109
Outcome: cited
A pleading which is internally inconsistent is embarrassing: Vasyli v AOL International Pty Ltd (NG 219/96) Lehane J, 19 August 1996, unreported. A pleading should assert the basic and constituent facts, not the evidence upon which those facts will or may be proved at trial. A pleading is defective if it simply asserts a conclusion to be drawn from the facts not stated: Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228 ; (1985) 7 FCR 109 at 114 115; and is not saved by using the words '[i]n the premises' to introduce the conclusion: Davids Holdings Pty Ltd v Coles Myer Ltd [1993] FCA 204 ; (1993) ATPR 41-227.
Case: Vasyli v AOL International Pty Ltd (NG 219/96) (Lehane J, 19 August 1996, unreported)
Outcome: cited
A pleading which is internally inconsistent is embarrassing: Vasyli v AOL International Pty Ltd (NG 219/96) Lehane J, 19 August 1996, unreported. A pleading should assert the basic and constituent facts, not the evidence upon which those facts will or may be proved at trial. A pleading is defective if it simply asserts a conclusion to be drawn from the facts not stated: Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228 ; (1985) 7 FCR 109 at 114 115; and is not saved by using the words '[i]n the premises' to introduce the conclusion: Davids Holdings Pty Ltd v Coles Myer Ltd [1993] FCA 204 ; (1993) ATPR 41-227.
Case: White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298
Outcome: cited
Section 31A of the FCA was introduced effective 1 December 2005. The legislative context by which it was introduced and its historical antecedents are touched on by Lindgren J in White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 at [55] [60]. I think it is fair to say that the standard which s 31A sets, relevantly in the case of subs (2), '... no reasonable prospect of successfully prosecuting the proceeding ...', apart from the fact that it does not require the proceeding to be hopeless or bound to fail (see subs (3)), has not been settled by an appellate court; and the recent decision of a Full Court in Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd [2008] FCAFC 60 did nothing to advance this cause. I shall return to this case later in these reasons.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v Lat [2006] FCAFC 61 ; (2006) 151 FCR 214
Outcome: followed
Firstly, the natural justice hearing rule did not apply to the application for review because it was filed after the commencement of the operation of s 422B of the Migration Act ; see decision of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Lat [2006] FCAFC 61 ; (2006) 151 FCR 214 at [60] to [67]. See also SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8] .
Case: NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241
Outcome: cited
In any event there is no evidence before the court to demonstrate that the Tribunal member failed to provide the appellant with any opportunity to comment on the critical issues that arose for consideration and upon which the Tribunal member based her decision; see NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21] . 16 To the extent that the second ground of appeal seeks to raise a breach of s 424A(1) of the Migration Act , I do not consider that such an argument can succeed. As the learned Federal Magistrate observed, the appellant was unable to point to any documents or information which would have fallen within the provisions of s 424A(1).
Case: Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572
Outcome: cited
Even if there was information which fell within s 424A(1) of the Migration Act , the information about China's one child policy dealt with an exception contained in s 424A(3)(a) ; see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572 at [138] . 19 I am mindful of the fact that the appellant is not legally represented. I have given careful consideration to the reasons for decision of the Tribunal and the reasons given by the Federal Magistrate. I can see no jurisdictional error in the decision of the Tribunal nor can I see any error in the reasons of the learned Federal Magistrate. 20 Accordingly, the orders that I will make are that the appeal be dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson J. Associate: Dated: 17 November 2006 The appellant appeared in person Counsel for the Respondent: J Mitchell Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 17 November 2006 Date of Judgment: 17 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1641.html
Case: Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 ; (2001) 106 FCR 426
Outcome: referred to
The first ground of appeal states in addition that the Federal Magistrates Court failed to give consideration to this claim. That may be an attempt to raise the ground to which the learned Federal Magistrate referred, namely a failure to make a genuine and realistic attempt to reach a bona fide decision. However, as the Full Court said in Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 ; (2001) 106 FCR 426 at [65] , that language does not create a kind of general warrant for review. It seems to me that what is meant by such a ground is that the decision-maker must not inflexibly apply a policy. There is no such suggestion in the present case. 13 The second ground of appeal is that the Tribunal did not provide an opportunity to the appellant to comment on materials which the Tribunal relied upon in its decision and that the Tribunal made an error of procedural fairness in relation to the case. In addition, the notice of appeal states that the Federal Magistrates Court failed to give consideration to this claim. This ground of appeal must also fail.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Outcome: cited
It is well established that s 65(1) does not require the decision-maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, what is required is a refusal of an application if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied; see for example Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73.
Case: SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
Outcome: cited
Firstly, the natural justice hearing rule did not apply to the application for review because it was filed after the commencement of the operation of s 422B of the Migration Act ; see decision of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Lat [2006] FCAFC 61 ; (2006) 151 FCR 214 at [60] to [67]. See also SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8] .
Case: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
Outcome: referred to
There is nothing which could be said to constitute information within the principles stated by a Full Court in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24]. That paragraph has been applied and adopted by other Full Courts.
Case: Dutton v Republic of South Africa [1999] FCA 498 ; (1999) 162 ALR 625
Outcome: applied
J, in Dutton v Republic of South Africa [1999] FCA 498 ; (1999) 162 ALR 625 , rejected the contention that the Court's power in s 43 of the Act empowered her to make an order that the Commonwealth pay the applicant's costs of an extradition proceeding which had been reviewed by the Court. Her Honour also rejected the contention that there was some broader jurisdiction in the Court to remedy injustice by the making of such an order. Her Honour's decision was upheld by the Full Court in Dutton v Republic of South Africa [1999] FCA 1016 ; (1999) 92 FCR 575.
Case: Dutton v Republic of South Africa [1999] FCA 1016 ; (1999) 92 FCR 575
Outcome: cited
J, in Dutton v Republic of South Africa [1999] FCA 498 ; (1999) 162 ALR 625 , rejected the contention that the Court's power in s 43 of the Act empowered her to make an order that the Commonwealth pay the applicant's costs of an extradition proceeding which had been reviewed by the Court. Her Honour also rejected the contention that there was some broader jurisdiction in the Court to remedy injustice by the making of such an order. Her Honour's decision was upheld by the Full Court in Dutton v Republic of South Africa [1999] FCA 1016 ; (1999) 92 FCR 575.
Case: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Outcome: cited
As my reference to the AAT's reasons indicates, I have had some difficulty in understanding parts of it. I am mindful that I should not read the reasons with an eye "keenly attuned" to the perception of error ( Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287), but that does not relieve me of the obligation to identify why the AAT decided as it did. It is part of the function of reasons for decision to provide that enlightenment. 31 Were the AAT's reasons along the lines contended for by Comcare, as discussed in [19] above, they would reveal no error of law of the kind first asserted by Mr Dunstan. However, I do not think that is how it reasoned. In my view, the AAT having in essence assumed the factual picture to be as Mr Dunstan asserted directed itself that the harassing conduct of the female employee which caused Mr Dunstan's depression, even if it occurred to a significant degree in the workplace, could not as a matter of law support a conclusion that his employment contributed in a material way to his depression. That view results from an analysis of the whole of its reasons, but in particular the concluding sentence in the passage referred to in [22] above. It is fortified by the AAT's comments about there being no need for expert medical evidence on the issue of causation, as the irrelevance of such evidence could only be on the basis that an expert medical opinion on the part played by certain (assumed) conduct of the female employee at work in her dealings with Mr Dunstan to the onset of his depression could not assist.
Case: Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34 ; (1964) 110 CLR 626
Outcome: discussed
I consider that approach involves an error of law. Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34 ; (1964) 110 CLR 626 established that a state of affairs to which a worker was exposed in employment and to which he would not otherwise have been exposed may be the cause of, or a contributing factor towards, the suffering or aggravation of a disease so as to entitle the worker to compensation: see generally the discussion in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 322-323. Treloar concerned a claim under the Compensation (Commonwealth Government Employees) Act 1971 (Cth). That Act was replaced by the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) (now the SRC Act). 34 Treloar itself concerned a claim under the 1971 Act, but it is clear that their Honours did not regard the introduction of materiality as changing, except in emphasis, the approach to causation laid down by the High Court in Semlitch . That accords with the words of the definition itself. The concept of materiality in the definition of "disease" was discussed by the Full Court in Comcare v Canute [2005] FCAFC 262 ; (2005) 148 FCR 232 per French and Stone JJ at [64]-[70], although their Honour's decision was based on other considerations; Gyles J, the other member of the Full Court, dissented on the principal issue and did not consider the meaning of "material". The Full Court decision was reversed by the High Court: Canute v Comcare [2006] HCA 47 ; (2006) 80 ALJR 1578, but the meaning of "material" was not considered.
Case: Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Outcome: discussed
I consider that approach involves an error of law. Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34 ; (1964) 110 CLR 626 established that a state of affairs to which a worker was exposed in employment and to which he would not otherwise have been exposed may be the cause of, or a contributing factor towards, the suffering or aggravation of a disease so as to entitle the worker to compensation: see generally the discussion in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 322-323. Treloar concerned a claim under the Compensation (Commonwealth Government Employees) Act 1971 (Cth). That Act was replaced by the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) (now the SRC Act). 33 The requirement of a "material" contribution to the onset or aggravation of a disease was introduced in 1988 in the definition of "disease" in the now SRC Act. In Treloar , the Full Court (Sweeney ACJ, Sheppard and Foster JJ) at 323 said that the word 'material': "... served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of." 34 Treloar itself concerned a claim under the 1971 Act, but it is clear that their Honours did not regard the introduction of materiality as changing, except in emphasis, the approach to causation laid down by the High Court in Semlitch . That accords with the words of the definition itself. The concept of materiality in the definition of "disease" was discussed by the Full Court in Comcare v Canute [2005] FCAFC 262 ; (2005) 148 FCR 232 per French and Stone JJ at [64]-[70], although their Honour's decision was based on other considerations; Gyles J, the other member of the Full Court, dissented on the principal issue and did not consider the meaning of "material". The Full Court decision was reversed by the High Court: Canute v Comcare [2006] HCA 47 ; (2006) 80 ALJR 1578, but the meaning of "material" was not considered.
Case: Comcare v Canute [2005] FCAFC 262 ; (2005) 148 FCR 232
Outcome: referred to
Treloar itself concerned a claim under the 1971 Act, but it is clear that their Honours did not regard the introduction of materiality as changing, except in emphasis, the approach to causation laid down by the High Court in Semlitch . That accords with the words of the definition itself. The concept of materiality in the definition of "disease" was discussed by the Full Court in Comcare v Canute [2005] FCAFC 262 ; (2005) 148 FCR 232 per French and Stone JJ at [64]-[70], although their Honour's decision was based on other considerations; Gyles J, the other member of the Full Court, dissented on the principal issue and did not consider the meaning of "material". The Full Court decision was reversed by the High Court: Canute v Comcare [2006] HCA 47 ; (2006) 80 ALJR 1578, but the meaning of "material" was not considered.
Case: Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31 ; (1996) 187 CLR 310
Outcome: referred to
That conclusion depends upon the way Mr Dunstan made his claim to the AAT. It is not intended to indicate that an ailment which may constitute a disease may not also, in appropriate circumstances, constitute a mental injury within subcl (b) of the definition of injury. In Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31 ; (1996) 187 CLR 310, the High Court regarded the concepts of injury and disease as not mutually exclusive under the Workers Compensation Act 1987 (NSW). See also Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45 ; (2000) 200 CLR 286 in respect of the Workers Compensation Act 1951 (ACT). Whether a similar approach should be adopted under the SRC Act does not specifically call for decision for the reason I have given.
Case: Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45 ; (2000) 200 CLR 286
Outcome: referred to
That conclusion depends upon the way Mr Dunstan made his claim to the AAT. It is not intended to indicate that an ailment which may constitute a disease may not also, in appropriate circumstances, constitute a mental injury within subcl (b) of the definition of injury. In Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31 ; (1996) 187 CLR 310, the High Court regarded the concepts of injury and disease as not mutually exclusive under the Workers Compensation Act 1987 (NSW). See also Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45 ; (2000) 200 CLR 286 in respect of the Workers Compensation Act 1951 (ACT). Whether a similar approach should be adopted under the SRC Act does not specifically call for decision for the reason I have given.
Case: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 94 ALR 11
Outcome: cited
substantial proportion of Mr Hu's written submissions concerned the alleged failure of his Honour to identify apparently forged documents provided to Mr Hu by Ms Moser of MARA. The first point to note is that it was not the task of the Federal Magistrate to investigate whether documentation provided by MARA to Mr Hu was forged by the migration agent. In the circumstances of this case it was the task of the Federal Magistrate to consider whether there were grounds for an order of review of the decision of the respondent for any of the reasons set out in s 5 of the ADJR Act (cf comments of Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 94 ALR 11 at 26). Mr Hu's submissions in relation to this ground of appeal are, in substance, an attack on the qualifications and professional standards of his Honour in failing to identify forgeries claimed to exist by Mr Hu. In this respect this ground of appeal is completely without merit.
Case: Avon Downs Pty Ltd v FCT [1949] HCA 26 ; (1949) 78 CLR 353
Outcome: cited
secondly, Mr Hu submits that the respondent failed to take into account relevant considerations in making the decision not to investigate. This is potentially a ground for an order of review in terms of s 5(1)(f) of the ADJR Act. In particular I note comments of Dixon J in Avon Downs Pty Ltd v FCT [1949] HCA 26 ; (1949) 78 CLR 353 at 360: But it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income. His decision, it is true, is not unexaminable. If he does not address himself to the question which the subsection formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. (cf Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59 at [8] , Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-9)
Case: Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110
Outcome: cited
secondly, Mr Hu submits that the respondent failed to take into account relevant considerations in making the decision not to investigate. This is potentially a ground for an order of review in terms of s 5(1)(f) of the ADJR Act. In particular I note comments of Dixon J in Avon Downs Pty Ltd v FCT [1949] HCA 26 ; (1949) 78 CLR 353 at 360: But it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income. His decision, it is true, is not unexaminable. If he does not address himself to the question which the subsection formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. (cf Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59 at [8] , Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-9)
Case: House v R [1936] HCA 40 ; (1936) 55 CLR 499
Outcome: cited
on the basis that his Honour had discretion to order discovery in this case, no satisfactory case has been made to me warranting interference with the decision of his Honour in circumstances contemplated by Dixon, Evatt and McTiernan JJ in House v R [1936] HCA 40 ; (1936) 55 CLR 499 at 505. Second, and in any event, Mr Hu has not established that the interests of the administration of justice would have been served by his Honour making an order allowing discovery pursuant to s 45. I accept the submission of the respondent that, in light of the fact that the first time Mr Hu raised the issue of discovery was at the hearing itself before his Honour, it would not have contributed to the "fair and expeditious conduct of the proceedings" for his Honour to have ordered discovery at such a late stage. Ground 6: Failure by Federal Magistrate to identify apparent forged information in documents from filed affidavit
Case: NAQR &amp; Anor (No. 1) v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FMCA 271
Outcome: cited
NAQR &amp; Anor (No. 1) v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FMCA 271 Driver FM took the view that there is a rebuttable presumption in proceedings in the Federal Magistrates Court that discovery and interrogatories will not be permitted, consistent with Parliament's direction under s 33 of the Federal Magistrates Act that the Court should act informally and use streamlined procedures (at [5]). In my view this accurately represents the position in respect of s 45 of the Federal Magistrates Act . I also consider however that s 45 of the Federal Magistrates Act vests Federal Magistrates with discretion to order discovery in the circumstances prescribed by the section. In my view the fifth ground of appeal cannot be substantiated for two reasons.
Case: Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59
Outcome: cited
secondly, Mr Hu submits that the respondent failed to take into account relevant considerations in making the decision not to investigate. This is potentially a ground for an order of review in terms of s 5(1)(f) of the ADJR Act. In particular I note comments of Dixon J in Avon Downs Pty Ltd v FCT [1949] HCA 26 ; (1949) 78 CLR 353 at 360: But it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income. His decision, it is true, is not unexaminable. If he does not address himself to the question which the subsection formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. (cf Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59 at [8] , Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-9)