mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: King v Lewis [1949] NZLR 779
Outcome: cited
Historically, courts have been disinclined to hear and determine matters where the issues in controversy no longer have real practical significance. In Glasgow Navigation Company v Iron Ore Company [1910] AC 293 at 294, Lord Loreburn LC stated that it was not the function of a Court of law to advise parties as to what would be their rights under a hypothetical state of facts (cf Sutch v Burns [1944] KB 406, King v Lewis [1949] NZLR 779, Sumner v William Henderson &amp; Sons [1963] 2 All ER 712, Ku-Ring-Gai Municipal Council v Suburban Centres Pty Ltd (1971) 2 NSWLR 335, and Swift Australian Co (Pty) Ltd v South British Insurance Co Ltd [1970] VR 368, City of Norwood, Payneham and St Peters v Baker [2004] SASC 135). A useful illustration of the principle is the decision of the Full Court of the Supreme Court of Victoria in Hole v Insurance Commissioner [1962] VR 394 where the respondent had obtained a judgment for the sum of [sterling]300 and costs against the Insurance Commissioner. The Insurance Commissioner appealed to set aside the judgment. The appeal involved the construction of a section of an exclusion clause in a policy of insurance. The court was informed however that the Insurance Commissioner had paid the judgment debt and costs to the respondent, and that the parties had agreed that the Insurance Commissioner would neither seek the return of those moneys nor a new trial should the appeal succeed. In refusing to proceed further with the appeal, the Full Court observed: 'There is, therefore, now no real contest between the parties as to the right to that [sterling]300. We have, therefore, a position in which this Court is asked to deal with a matter where the legal rights of the parties to that [sterling]300 are not now in actual controversy...we think, as the matters now stand, what the Court is really asked to do is to give an advisory opinion on the construction of the policy of insurance.' (at 394)
Case: Ku-Ring-Gai Municipal Council v Suburban Centres Pty Ltd (1971) 2 NSWLR 335
Outcome: cited
Historically, courts have been disinclined to hear and determine matters where the issues in controversy no longer have real practical significance. In Glasgow Navigation Company v Iron Ore Company [1910] AC 293 at 294, Lord Loreburn LC stated that it was not the function of a Court of law to advise parties as to what would be their rights under a hypothetical state of facts (cf Sutch v Burns [1944] KB 406, King v Lewis [1949] NZLR 779, Sumner v William Henderson &amp; Sons [1963] 2 All ER 712, Ku-Ring-Gai Municipal Council v Suburban Centres Pty Ltd (1971) 2 NSWLR 335, and Swift Australian Co (Pty) Ltd v South British Insurance Co Ltd [1970] VR 368, City of Norwood, Payneham and St Peters v Baker [2004] SASC 135). A useful illustration of the principle is the decision of the Full Court of the Supreme Court of Victoria in Hole v Insurance Commissioner [1962] VR 394 where the respondent had obtained a judgment for the sum of [sterling]300 and costs against the Insurance Commissioner. The Insurance Commissioner appealed to set aside the judgment. The appeal involved the construction of a section of an exclusion clause in a policy of insurance. The court was informed however that the Insurance Commissioner had paid the judgment debt and costs to the respondent, and that the parties had agreed that the Insurance Commissioner would neither seek the return of those moneys nor a new trial should the appeal succeed. In refusing to proceed further with the appeal, the Full Court observed: 'There is, therefore, now no real contest between the parties as to the right to that [sterling]300. We have, therefore, a position in which this Court is asked to deal with a matter where the legal rights of the parties to that [sterling]300 are not now in actual controversy...we think, as the matters now stand, what the Court is really asked to do is to give an advisory opinion on the construction of the policy of insurance.' (at 394)
Case: La Roche v Cormack (1991) 33 FCR 414
Outcome: cited
The principle has also been applied in the Federal Court in a number of cases (for example Beitseen v Johnson (1989) 29 IR 336, La Roche v Cormack (1991) 33 FCR 414, Rocklea Spinning Mills v Anti-Dumping Authority (1995) 56 FCR 406 at 423, Mayne Nickless Ltd v Transport Workers Union of Australia [1998] 984 FCA, Civil Aviation Safety Authority v Administrative Appeals Tribunal [2001] FCA 1319 , Vanstone v Clark [2005] FCAFC 189). In Beitseen , to which I was also directed by Ms Brennan acting for the Board, the trial judge had made orders directing members of a union to perform and observe the rules of that organisation by treating the respondent as having been validly appointed to the position of secretary in the union, and by treating as null and void a purported resolution of the union that an election be held for that position. The respondent's appointment was for the unexpired term of the previous incumbent in that role, however it was common ground that the unexpired term would expire shortly afterwards, and that an election was in progress to determine who would fill the office for a full term from that time. The appellants sought to appeal the decision at first instance on the basis of issues including whether the respondent was eligible to be appointed to the position pro tem, whether the union could have filled the position by appointment a casual vacancy, and whether the appointment of the respondent had not been effectively revoked by a subsequent meeting. Woodward, Northrop and Ryan JJ held that: &#8226; in the circumstances there was no real contest between the parties as to the right of the respondent to occupy the position &#8226; resolving those questions would be to furnish an advisory opinion which courts traditionally, and for good reason, have been averse from doing &#8226; although the appellants genuinely desired to agitate the issues involved in the grounds of their notice of appeal, such a desire does not satisfy the requirement that the legal rights of the parties should be in actual controversy as articulated Hole v Insurance Commissioner . As explained by their Honours: 'On our understanding that requirement entails that any judgment which might be given on the appeal should confirm or modify rights which remain capable in a real and genuine sense of being enjoyed.' (at 337-338)
Case: MIMIA v Al Masri [2003] FCAFC 70 ; (2003) 126 FCR 54
Outcome: distinguished
Notwithstanding this general rule, the courts have also recognised that, even where hypothetical issues are involved, the court preserves a discretion to determine an issue where the determination would be in the public interest: Eastman v Newcastle United Football Club Ltd [1964] 1 Ch 413 at 440, Veloudos v Young (1981) 56 FLR 182 at 190, Douglas v Tickner (1994) 49 FCR 507 at 521, Mosman Park Town v Esther Investments Pty Ltd (1996) 93 LGERA 38, the Full Court of the Federal Court in MIMIA v Al Masri [2003] FCAFC 70 ; (2003) 126 FCR 54 at 62, Vanstone v Clark per Black CJ at [8] and Weinberg J at [38], and more recently the Court of Appeal of Western Australia in Kennedy ex parte West Australian Newspapers [2006] WASCA 172 at [27] . 17 Perhaps other categories to add to that list include where the issue raised involves the administration of justice, as was the case in Al Masri (immigration detention) and Kennedy (suppression orders), or where there is an issue involving a public authority as to a question of public law, as was the case in Australian Competition and Consumer Commission v IMB Group Pty Ltd [1999] FCA 313 (regulator seeking penalty for conduct in breach of the Trade Practices Act 1975 (Cth) notwithstanding that conduct had ceased).
Case: Mosman Park Town v Esther Investments Pty Ltd (1996) 93 LGERA 38
Outcome: cited
Notwithstanding this general rule, the courts have also recognised that, even where hypothetical issues are involved, the court preserves a discretion to determine an issue where the determination would be in the public interest: Eastman v Newcastle United Football Club Ltd [1964] 1 Ch 413 at 440, Veloudos v Young (1981) 56 FLR 182 at 190, Douglas v Tickner (1994) 49 FCR 507 at 521, Mosman Park Town v Esther Investments Pty Ltd (1996) 93 LGERA 38, the Full Court of the Federal Court in MIMIA v Al Masri [2003] FCAFC 70 ; (2003) 126 FCR 54 at 62, Vanstone v Clark per Black CJ at [8] and Weinberg J at [38], and more recently the Court of Appeal of Western Australia in Kennedy ex parte West Australian Newspapers [2006] WASCA 172 at [27] .
Case: Rocklea Spinning Mills v Anti-Dumping Authority (1995) 56 FCR 406
Outcome: cited
The principle has also been applied in the Federal Court in a number of cases (for example Beitseen v Johnson (1989) 29 IR 336, La Roche v Cormack (1991) 33 FCR 414, Rocklea Spinning Mills v Anti-Dumping Authority (1995) 56 FCR 406 at 423, Mayne Nickless Ltd v Transport Workers Union of Australia [1998] 984 FCA, Civil Aviation Safety Authority v Administrative Appeals Tribunal [2001] FCA 1319 , Vanstone v Clark [2005] FCAFC 189). In Beitseen , to which I was also directed by Ms Brennan acting for the Board, the trial judge had made orders directing members of a union to perform and observe the rules of that organisation by treating the respondent as having been validly appointed to the position of secretary in the union, and by treating as null and void a purported resolution of the union that an election be held for that position. The respondent's appointment was for the unexpired term of the previous incumbent in that role, however it was common ground that the unexpired term would expire shortly afterwards, and that an election was in progress to determine who would fill the office for a full term from that time. The appellants sought to appeal the decision at first instance on the basis of issues including whether the respondent was eligible to be appointed to the position pro tem, whether the union could have filled the position by appointment a casual vacancy, and whether the appointment of the respondent had not been effectively revoked by a subsequent meeting. Woodward, Northrop and Ryan JJ held that: &#8226; in the circumstances there was no real contest between the parties as to the right of the respondent to occupy the position &#8226; resolving those questions would be to furnish an advisory opinion which courts traditionally, and for good reason, have been averse from doing &#8226; although the appellants genuinely desired to agitate the issues involved in the grounds of their notice of appeal, such a desire does not satisfy the requirement that the legal rights of the parties should be in actual controversy as articulated Hole v Insurance Commissioner . As explained by their Honours: 'On our understanding that requirement entails that any judgment which might be given on the appeal should confirm or modify rights which remain capable in a real and genuine sense of being enjoyed.' (at 337-338)
Case: Sumner v William Henderson &amp; Sons [1963] 2 All ER 712
Outcome: cited
Historically, courts have been disinclined to hear and determine matters where the issues in controversy no longer have real practical significance. In Glasgow Navigation Company v Iron Ore Company [1910] AC 293 at 294, Lord Loreburn LC stated that it was not the function of a Court of law to advise parties as to what would be their rights under a hypothetical state of facts (cf Sutch v Burns [1944] KB 406, King v Lewis [1949] NZLR 779, Sumner v William Henderson &amp; Sons [1963] 2 All ER 712, Ku-Ring-Gai Municipal Council v Suburban Centres Pty Ltd (1971) 2 NSWLR 335, and Swift Australian Co (Pty) Ltd v South British Insurance Co Ltd [1970] VR 368, City of Norwood, Payneham and St Peters v Baker [2004] SASC 135). A useful illustration of the principle is the decision of the Full Court of the Supreme Court of Victoria in Hole v Insurance Commissioner [1962] VR 394 where the respondent had obtained a judgment for the sum of [sterling]300 and costs against the Insurance Commissioner. The Insurance Commissioner appealed to set aside the judgment. The appeal involved the construction of a section of an exclusion clause in a policy of insurance. The court was informed however that the Insurance Commissioner had paid the judgment debt and costs to the respondent, and that the parties had agreed that the Insurance Commissioner would neither seek the return of those moneys nor a new trial should the appeal succeed. In refusing to proceed further with the appeal, the Full Court observed: 'There is, therefore, now no real contest between the parties as to the right to that [sterling]300. We have, therefore, a position in which this Court is asked to deal with a matter where the legal rights of the parties to that [sterling]300 are not now in actual controversy...we think, as the matters now stand, what the Court is really asked to do is to give an advisory opinion on the construction of the policy of insurance.' (at 394)
Case: Sutch v Burns [1944] KB 406
Outcome: cited
Historically, courts have been disinclined to hear and determine matters where the issues in controversy no longer have real practical significance. In Glasgow Navigation Company v Iron Ore Company [1910] AC 293 at 294, Lord Loreburn LC stated that it was not the function of a Court of law to advise parties as to what would be their rights under a hypothetical state of facts (cf Sutch v Burns [1944] KB 406, King v Lewis [1949] NZLR 779, Sumner v William Henderson &amp; Sons [1963] 2 All ER 712, Ku-Ring-Gai Municipal Council v Suburban Centres Pty Ltd (1971) 2 NSWLR 335, and Swift Australian Co (Pty) Ltd v South British Insurance Co Ltd [1970] VR 368, City of Norwood, Payneham and St Peters v Baker [2004] SASC 135). A useful illustration of the principle is the decision of the Full Court of the Supreme Court of Victoria in Hole v Insurance Commissioner [1962] VR 394 where the respondent had obtained a judgment for the sum of [sterling]300 and costs against the Insurance Commissioner. The Insurance Commissioner appealed to set aside the judgment. The appeal involved the construction of a section of an exclusion clause in a policy of insurance. The court was informed however that the Insurance Commissioner had paid the judgment debt and costs to the respondent, and that the parties had agreed that the Insurance Commissioner would neither seek the return of those moneys nor a new trial should the appeal succeed. In refusing to proceed further with the appeal, the Full Court observed: 'There is, therefore, now no real contest between the parties as to the right to that [sterling]300. We have, therefore, a position in which this Court is asked to deal with a matter where the legal rights of the parties to that [sterling]300 are not now in actual controversy...we think, as the matters now stand, what the Court is really asked to do is to give an advisory opinion on the construction of the policy of insurance.' (at 394)
Case: Swift Australian Co (Pty) Ltd v South British Insurance Co Ltd [1970] VR 368
Outcome: cited
Historically, courts have been disinclined to hear and determine matters where the issues in controversy no longer have real practical significance. In Glasgow Navigation Company v Iron Ore Company [1910] AC 293 at 294, Lord Loreburn LC stated that it was not the function of a Court of law to advise parties as to what would be their rights under a hypothetical state of facts (cf Sutch v Burns [1944] KB 406, King v Lewis [1949] NZLR 779, Sumner v William Henderson &amp; Sons [1963] 2 All ER 712, Ku-Ring-Gai Municipal Council v Suburban Centres Pty Ltd (1971) 2 NSWLR 335, and Swift Australian Co (Pty) Ltd v South British Insurance Co Ltd [1970] VR 368, City of Norwood, Payneham and St Peters v Baker [2004] SASC 135). A useful illustration of the principle is the decision of the Full Court of the Supreme Court of Victoria in Hole v Insurance Commissioner [1962] VR 394 where the respondent had obtained a judgment for the sum of [sterling]300 and costs against the Insurance Commissioner. The Insurance Commissioner appealed to set aside the judgment. The appeal involved the construction of a section of an exclusion clause in a policy of insurance. The court was informed however that the Insurance Commissioner had paid the judgment debt and costs to the respondent, and that the parties had agreed that the Insurance Commissioner would neither seek the return of those moneys nor a new trial should the appeal succeed. In refusing to proceed further with the appeal, the Full Court observed: 'There is, therefore, now no real contest between the parties as to the right to that [sterling]300. We have, therefore, a position in which this Court is asked to deal with a matter where the legal rights of the parties to that [sterling]300 are not now in actual controversy...we think, as the matters now stand, what the Court is really asked to do is to give an advisory opinion on the construction of the policy of insurance.' (at 394)
Case: Veloudos v Young (1981) 56 FLR 182
Outcome: cited
Notwithstanding this general rule, the courts have also recognised that, even where hypothetical issues are involved, the court preserves a discretion to determine an issue where the determination would be in the public interest: Eastman v Newcastle United Football Club Ltd [1964] 1 Ch 413 at 440, Veloudos v Young (1981) 56 FLR 182 at 190, Douglas v Tickner (1994) 49 FCR 507 at 521, Mosman Park Town v Esther Investments Pty Ltd (1996) 93 LGERA 38, the Full Court of the Federal Court in MIMIA v Al Masri [2003] FCAFC 70 ; (2003) 126 FCR 54 at 62, Vanstone v Clark per Black CJ at [8] and Weinberg J at [38], and more recently the Court of Appeal of Western Australia in Kennedy ex parte West Australian Newspapers [2006] WASCA 172 at [27] .
Case: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
Outcome: cited
appellant submits that the Tribunal did not give proper, genuine and realistic consideration to the claimed link between the police and CPI(M). The Tribunal addressed the issue and stated its reasons for rejecting the appellant's allegation of a link. I do not think there is any substance in this submission, and therefore I do not need to address the question of the proper description of the Tribunal's obligation under s 414 of the Act to review the decision (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at 16 [50] - [51] ; SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 at [39] per Rares J).
Case: NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37
Outcome: referred to
appellant submits that the Tribunal did not address the issue of whether it was reasonable, in the sense of practicable, for the appellant to relocate to another part of India. As I understood the submission, it was accepted by the appellant that the Tribunal had addressed the question of whether the appellant could relocate to a region where, objectively, there was no appreciable risk of the occurrence of the feared persecution and had decided that he could. The issue that the Tribunal had not addressed, according to the appellant's submission, was whether it was reasonable, in the sense of practicable, for the appellant to do so. The appellant referred to Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253 ; (1994) 52 FCR 437 (" Randhawa ") and NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 (" NAIZ "). The authorities suggest that the extent to which the Tribunal must consider the reasonableness, in the sense of practicability, of relocation will depend on the circumstances of the case. Relevant considerations include the applicant's personal circumstances, the general conditions of the country, the reasons for the persecutory conduct and the case the appellant seeks to make. No doubt there are other factors. The administrative body gave the matter adequate consideration in Randhawa (at 443 per Black CJ, at 452-453 per Beaumont J), but not in NAIZ (at [22] per Branson J with whom North J agreed). In my opinion, in this case, the Tribunal properly addressed the issue of relocation within India.
Case: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Outcome: referred to
appellant submits that the Tribunal did not address the issue of whether it was reasonable, in the sense of practicable, for the appellant to relocate to another part of India. As I understood the submission, it was accepted by the appellant that the Tribunal had addressed the question of whether the appellant could relocate to a region where, objectively, there was no appreciable risk of the occurrence of the feared persecution and had decided that he could. The issue that the Tribunal had not addressed, according to the appellant's submission, was whether it was reasonable, in the sense of practicable, for the appellant to do so. The appellant referred to Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253 ; (1994) 52 FCR 437 (" Randhawa ") and NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 (" NAIZ "). The authorities suggest that the extent to which the Tribunal must consider the reasonableness, in the sense of practicability, of relocation will depend on the circumstances of the case. Relevant considerations include the applicant's personal circumstances, the general conditions of the country, the reasons for the persecutory conduct and the case the appellant seeks to make. No doubt there are other factors. The administrative body gave the matter adequate consideration in Randhawa (at 443 per Black CJ, at 452-453 per Beaumont J), but not in NAIZ (at [22] per Branson J with whom North J agreed). In my opinion, in this case, the Tribunal properly addressed the issue of relocation within India.
Case: SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18
Outcome: applied
turn now to the issue of relocation within India. A person may be refused refugee status where it is reasonable for the person to relocate to a safe area within the country of his or her nationality or citizenship. This principle is not expressly stated in Article 1A(2) of the Refugees Convention, as amended by the Refugees Protocol, but arises because a person claiming refugee status must be outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason. I refer to the discussion by Gummow, Hayne and Crennan JJ in SZATV v Minister for Immigration and Citizenship [2007] HCA 40 ; (2007) 233 CLR 18 (" SZATV ") at 22-26 [9]-[22]. However, the relocation principle is not engaged simply by establishing that an applicant does not have a well-founded fear of persecution in another part of his or her country of nationality or citizenship. The principle is only engaged if, in addition, it is reasonable, in the sense of practicable, for an applicant to relocate. In SZATV , Gummow, Hayne and Crennan JJ (with whom Callinan J relevantly agreed) said (at 26-27 [23]-[24]): "The Minister framed the issue, for a situation such as that presented by this appeal, as being whether it be reasonable, in the sense of practicable, for the appellant to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. This formulation does not suffer from the defects urged by the appellant. It does not turn upon a "hypothetical assumption", nor does it prevent account being taken of the presence of a subjective fear of persecution, nor does it treat the presence of a "safe area" within the country of nationality as determinative of the existence of a well-founded fear of persecution. However, that does not mean that, without more, the formulation by the Minister is sufficient and satisfactory. What is "reasonable", in the sense of "practicable", must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality."