mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Snelgrove v Roskell (2007) 157 FCR 313
Outcome: discussed
In order to determine the issues in this appeal, it is useful to refer to the recent decision of Snelgrove v Roskell (2007) 157 FCR 313. In that case, Jacobson J considered whether an incorrect reference to the legislation, which was the statutory source of post-judgment interest claimed in the bankruptcy notice, resulted in the bankruptcy notice being invalid. In determining the correct principles to apply, his Honour held (at [29]-[31]): The High Court said in Adams [ v Lambert (2006)] [2006] HCA 10 ; 225 ALR 396 at [18] that if there is a failure to comply with a provision of the Act or the Bankruptcy Regulations 1996 Cth (the Regulations), the first question which must be asked is whether the defect or irregularity is a formal one within the purview of s 306. If it is, it is then necessary to ask whether substantial injustice has been caused by the defect or irregularity and whether the injustice cannot be remedied by an order of the Court. It must be borne in mind that these are separate and distinct questions. The first question, that is, whether the defect or irregularity is formal, involves two levels of enquiry. These were stated by an earlier decision of the High Court in Kleinwort Benson Australia Ltd v Crowl [1988] HCA 34 ; (1988) 165 CLR 71, and applied in Adams [2006] HCA 10 ; 225 ALR 396 at [25] ff. The relevant enquiry is: does the bankruptcy notice fail to meet a requirement made essential by the Act or the Regulations; or could it reasonably mislead a debtor as to what is necessary to comply with the notice; see Kleinwort Benson 165 CLR at 79; Adams 225 ALR 396 at [25]. 42 Justice North did not have the advantage of the reasoning in the subsequent cases referred to in this judgment, particularly Adams [2006] HCA 10 ; 225 ALR 396; Lewis [2000] FCA 1915 ; 109 FCR 33 and Snelgrove 157 FCR 313. With the benefit of the reasoning in these decisions, North J would have needed to have undertaken an analysis of the failure to comply with note 2 of the Schedule to the form in the context of the Act to determine whether it was an essential requirement. Merely equating such a failure to a failure to attach a copy of the judgment to the bankruptcy notice without the further analysis now required, would not be sufficient. In the circumstances, I do not regard the decision of North J as one I should follow. In any event, the circumstances of the case before me are quite different from those confronting his Honour, for he did not have a binding determination of the Supreme Court of Victoria declaring the amount of interest payable which was the basis of the interest claimed in the bankruptcy notice.
Case: Wu v Avin Operations Pty Ltd [2006] FCA 36
Outcome: referred to
proceeding commenced on 9 May 2003, with the filing by Ms Wu (referred to hereafter as the applicant) of an application and statement of claim. The history of the proceeding can be ascertained by reference to Wu v Avin Operations Pty Ltd [2006] FCA 36 and Wu v Avin Operations Pty Ltd (No 2) [2006] FCA 792.
Case: Wu v Avin Operations Pty Ltd (No 2) [2006] FCA 792
Outcome: referred to
proceeding commenced on 9 May 2003, with the filing by Ms Wu (referred to hereafter as the applicant) of an application and statement of claim. The history of the proceeding can be ascertained by reference to Wu v Avin Operations Pty Ltd [2006] FCA 36 and Wu v Avin Operations Pty Ltd (No 2) [2006] FCA 792.
Case: Scanlon v American Cigarette Co (Overseas) Pty Ltd (No 1) [1987] VR 261
Outcome: cited
Court has a discretion to permit or refuse an application made in an interlocutory proceeding to cross-examine a deponent on an affidavit that he or she has made, although the discretion to permit such cross-examination is exercised cautiously and, as Nicholson J said in Scanlon v American Cigarette Co (Overseas) Pty Ltd (No 1) [1987] VR 261 at 272, "normally" "somewhat sparingly". Branson J cited this statement of his Honour with approval in Friends of Hinchinbrook Society Inc v Minister for Environment (No 1) (1996) 69 FCR 1 at 17.
Case: Friends of Hinchinbrook Society Inc v Minister for Environment (No 1) (1996) 69 FCR 1
Outcome: cited
Court has a discretion to permit or refuse an application made in an interlocutory proceeding to cross-examine a deponent on an affidavit that he or she has made, although the discretion to permit such cross-examination is exercised cautiously and, as Nicholson J said in Scanlon v American Cigarette Co (Overseas) Pty Ltd (No 1) [1987] VR 261 at 272, "normally" "somewhat sparingly". Branson J cited this statement of his Honour with approval in Friends of Hinchinbrook Society Inc v Minister for Environment (No 1) (1996) 69 FCR 1 at 17.
Case: CBS Records Australia Ltd v Telmak Teleproducts (Aust) Pty Ltd (1987) 72 ALR 270
Outcome: cited
question is whether the Court should, in the exercise of this discretion, award security for costs in the second and third respondents' favour. The onus of establishing that security should be granted lies on the second and third respondents: see CBS Records Australia Ltd v Telmak Teleproducts (Aust) Pty Ltd (1987) 72 ALR 270 (" CBS Records ") at 284-285 per Bowen CJ. Having regard to the evidence filed in support of, and in opposition to, the motion, application for security turns principally on the questions, whether or not the applicant is ordinarily resident outside Australia and has no assets within the jurisdiction. Ordinarily resident outside Australia As this passage indicates, the mere fact that an applicant is ordinarily resident outside Australia does not necessarily justify an order for security for costs, although this fact, coupled with the absence of assets within the jurisdiction, tends to attract an affirmative exercise of discretion: compare CBS Records at 284-285. Plainly enough, the fact that an applicant is ordinarily resident outside Australia is necessary to attract O 28 r 3(1)(a) and militates in favour of an order for security. I am not, however, satisfied that the applicant is properly regarded as ordinarily resident outside Australia. It is common ground that she is not an Australian citizen and is not enrolled on the electoral roll. It is also common ground that she is lawfully in this country and has been so since the middle of this year. Further, she maintains that she wishes to make Australia her permanent home. The fact that she was previously resident in this country for around six years between July 1997 and April 2004 lends credence to her statements in this regard. She has business interests in Australia. The property that she rented on her previous stay in Australia is the same property that she and her son are now renting. As appears below, I am satisfied that she has an interest in land within the jurisdiction. Her only son is living in Australia with his wife. I accept that she wishes to reside in Australia on a settled basis indefinitely and, in order to accomplish this, she intends to apply for permanent residence status in accordance with the law of this country. In these circumstances, I reject the respondents' submission that she is ordinarily resident outside Australia. The expression 'ordinarily resident' is one that is used by the law to signify that, for the time being, a person, here the applicant, has chosen to live everyday life in a particular place, on a settled basis and for some continuous period of time. In the present context, if an applicant is ordinarily resident outside Australia, a respondent may reasonably apprehend that there will no funds or other assets within the jurisdiction to meet orders for costs made in the respondent's favour.
Case: PS Chellaram &amp; Co Ltd v China Ocean Shipping Co [1991] HCA 36 ; (1991) 102 ALR 321
Outcome: cited
PS Chellaram &amp; Co Ltd v China Ocean Shipping Co [1991] HCA 36 ; (1991) 102 ALR 321 (" PS Chellaram" ') at 323, McHugh J said: "To make or refuse to make an order for security for costs involves the exercise of a discretionary judgment. That means that the court exercising the discretion must weight all the circumstances of the case. The weight to be given to any circumstance depends not only upon its own intrinsic persuasiveness but upon the impact of the other circumstances which have to be weighed. A circumstance which may have very great weight when only two or three circumstances have to be weighed may be of minor significance when many circumstances have to be weighed. However, for over 200 years, the fact that a party, bringing proceedings, is resident out of the jurisdiction and has no assets within the jurisdiction has been seen as a circumstance of great weight in determining whether an order for security for costs should be made. Indeed, for many years the practice has been to order such a party to provide security for costs unless that party can point to other circumstances which overcome the weight of the circumstance that that person is resident out of and has no assets within the jurisdiction."
Case: R v Barnet London Borough Council, Ex parte Shah [1983] 2 AC 309
Outcome: referred to
R v Barnet London Borough Council, Ex parte Shah [1983] 2 AC 309, Lord Scarman developed the concept of 'ordinarily resident', concluding at 343 that: "...'ordinarily resident' refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration." See also Mohamed v Hammersmith and Fulham London Borough Council [2001] UKHL 57 ; [2002] 1 AC 547.
Case: Mohamed v Hammersmith and Fulham London Borough Council [2001] UKHL 57 ; [2002] 1 AC 547
Outcome: referred to
R v Barnet London Borough Council, Ex parte Shah [1983] 2 AC 309, Lord Scarman developed the concept of 'ordinarily resident', concluding at 343 that: "...'ordinarily resident' refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration." See also Mohamed v Hammersmith and Fulham London Borough Council [2001] UKHL 57 ; [2002] 1 AC 547.
Case: Logue v Hansen Technologies Ltd (2003) FCR 125
Outcome: referred to
Weinberg J said in Logue v Hansen Technologies Ltd [2003] FCA 81 ; (2003) 125 FCR 590 (" Logue ") at 598: "The English authorities suggest that if may also be possible for a person to have two ordinary residences, one within the jurisdiction and one outside. In such a case the Court has power to order security for costs, but that person's connection with the United Kingdom will be relevant to the exercise of that discretion. The closer the connection, the greater the relevance. If the claimant has an established home, and is resident, though not 'ordinarily resident' in that country, security will rarely be ordered. If the claimant has an established home and is ordinarily resident in that country, security will be ordered even more rarely..." After reviewing the authorities, most of which were English, Weinberg J said, at 599, that "the test for ordinary residence depends to a significant degree upon the state of mind of the person whose residence is in question. The language used in a number of the cases focuses upon whether the person habitually and normally resides in the jurisdiction, and does so for a settled purpose." I agree with his Honour in this regard. Each case will, naturally enough, depend on its own facts. A person may be said to habitually and normally reside in the jurisdiction, even though he or she settled there comparatively recently. The onus rests on the respondents to show that the applicant is not now resident in Australia. They have not demonstrated this to my satisfaction, on the balance of probabilities. The applicant's evidence establishes that she is currently living in suburban Melbourne and has chosen to make her home in Australia at least until her current visa expires in 2011, with a view to settling in this country indefinitely if lawfully permitted to do so. As I have said, various other factors lend credence to her claim: see [26]. She is, therefore, not to be taken as ordinarily resident outside the jurisdiction. I do not consider the possibility that she may fail in obtaining permanent residence status strongly militates against this conclusion. Assets within the jurisdiction
Case: Bryan E Fencott and Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497
Outcome: cited
the proceeding has been on foot since 9 May 2003, the respondents have not made any application for security prior to their motion of 15 August 2006. Further, it is apparent that the second respondent ought to have been aware for at least eighteen months that she has been living in China, although, as I have said, she is now living in Melbourne. Whether or not the second respondent earlier gave the instructions to apply for security for costs as he claims, the fact remains that this application was not made until comparatively recently and the applicant has incurred costs in the meantime. This also militates against the respondents' application. Applications for security should be made without delay. As French J said in Bryan E Fencott and Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497 (" Bryan E Fencott ") at 514: "The further a plaintiff has proceeded in an action and the greater the costs it has been allowed to incur without steps being taken to apply for an order for security for costs, the more difficult it will be to persuade the court that such an order is not, in the circumstances, unfair or oppressive." Indeed, it has been said that delay on a respondent's part may give rise to a waiver of a respondent's entitlement to security for costs: see Bryan E Fencott at 514-515 and the authorities there cited. Inadequate evidence of estimate of costs The respondents estimate that the costs of the proceeding could exceed $300,000 but they do not provide any proper basis for this estimate. The basis for this estimate is said to be the second respondent's knowledge of the costs of the litigation, but, as the applicant said, this knowledge is entirely unparticularised. The grounds for the assumption on which the estimate are based are otherwise unsupported. There is no other evidence filed in support of the second respondent's estimate of costs.
Case: Soh v Commonwealth [2006] FCA 575
Outcome: cited
Madgwick J said in Soh v Commonwealth [2006] FCA 575 at [30] "[i]f a party seeks security for costs it is reasonable for the Court to insist that at least the best practicable efforts at estimation of the relevant costs be made". The second respondents' general and largely unsupported estimate is not sufficient for this purpose. Further, it must be borne in mind that both the second and third respondents are presently unrepresented and thus not presently incurring legal costs. Claimed Injustice to the Respondents On what is before the Court, neither the applicant's claim nor the respondents' defence can be described as untenable. The merits of the parties' respective positions are thus properly matters for trial.
Case: Minister for Immigration and Citizenship v SZKTI (2009) 258 ALR 434
Outcome: cited
to the extent that the appellant raises an alleged contravention of s 424 of the Act by reason of a failure to comply with s 424(2) , that matter has now been resolved by the High Court in Minister for Immigration and Citizenship v SZKTI (2009) 258 ALR 434. Section 424(2) does not limit the ability of the Tribunal to get information that it considers relevant by reason of s 424(1). In any event, even if s 424(2) applied, the request to the Department to provide information did comply with s 441A of the Act, as did the two s 424A letters sent to the appellant. Conclusion It follows that the appellant has not established any basis for, or merit in, any of the grounds of appeal in the notice of appeal or the additional grounds sought to be relied on in the written submissions. Leave to rely upon grounds not raised before the Federal Magistrate is refused. The appellant has not demonstrated any jurisdictional error on the part of the Tribunal or any error on the part of the Federal Magistrate. The appeal should be dismissed with costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 22 September 2009 Counsel for the Appellant: The Appellant appeared in person. Counsel for the First Respondent: Mr J P Knackstredt Solicitor for the First Respondent: Clayton Utz Date of Hearing: 26 August 2009 Date of Judgment: 22 September 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1062.html
Case: SZLWQ v Minister for Immigration and Citizenship [2008] FCA 1406 ; (2008) 172 FCR 452
Outcome: cited
Magistrate Scarlett also discussed a possible breach of s 424B(2) of the Act with respect to the letter sent to the Department requesting documents relating to the appellant's previous application for a visa. His Honour referred to SZLWQ v Minister for Immigration and Citizenship [2008] FCA 1406 ; (2008) 172 FCR 452 , where Buchanan J concluded that s 424B(2) does not establish an obligation on the Tribunal which could lead either to statutory breach or to jurisdictional error. Notice of appeal The grounds of appeal in the notice of appeal are in summary: (1) That the Federal Magistrate failed to find that the Tribunal decision was "unjust" and did not take into account the "full gravity of circumstance and consequence of the claims"; (2) That the Tribunal denied the appellant procedural fairness by concluding that he was not a credible witness when such a conclusion was not open on the evidence; and (3) That the Tribunal failed to consider "all the materials readily available and/or accessible". The grounds of appeal are unparticularised. Ground 1 of the notice of appeal
Case: SZMTQ v Minister for Immigration &amp; Citizenship [2009] FMCA 29
Outcome: affirmed
appellant is a citizen of India who arrived in Australia on 15 February 2008. He lodged an application for a protection visa which was refused by a delegate of the Minister. He applied to the Tribunal for a review of that decision, which the Tribunal affirmed. He appealed to the Federal Magistrates Court, which dismissed his application to review the decision of the Tribunal ( SZMTQ v Minister for Immigration &amp; Citizenship [2009] FMCA 29). The appellant claimed to fear persecution in India due to his political opinion. He said that he joined the National Students Union of India in 1991 and later became an influential member of the Congress Party (CP). He further claimed that he was a recognised local astrologer and that this, coupled with his political work, resulted in overtures from members of the Bharatiya Janata Party (BJP) asking that he change party allegiances. The appellant claimed that the BJP believed that he possessed a " karishma" (miraculous power) which could " change the political scenario ". He said that if he did not join the BJP, its supporters would kill him and his family. Before the Tribunal the appellant raised a further claim relating to his operation of a computer business. He alleged that police had used his email address and internet connection to make enquiries about holders of certain mobile phone numbers and that these enquiries resulted in the arrest of several acquaintances of a Mr Singh, who himself was allegedly a " professional killer ". The appellant claimed that he was blamed for these arrests and that Mr Singh continued to pursue him.
Case: Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397
Outcome: followed
No point has been taken by the appellant as to the late filing of this Notice and, in light of the first respondent's attitude to the procedural defect identified in the Notice, no point of substance arises from the late filing of that Notice. As I have said, leave to appeal is required (see Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397). In order to secure leave to appeal from an interlocutory judgment, an applicant must show that there is sufficient doubt as to the correctness of the judgment below to warrant review and, further, that, if the judgment below is found to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused. 4 I will continue to refer to the appellant as "the appellant" notwithstanding the fact that I propose to deal with the matter upon the basis that the process filed constitutes an application for leave to appeal. Ms Weston, on behalf of the first respondent, accepts that I should approach the matter on the basis that the process filed is an application for leave to appeal from the Federal Magistrate's decision and I intend to deal with the matter on that basis. 5 The appellant is a citizen of China who arrived in Australia on 11 November 2007. On 4 December 2007 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused that application on 16 January 2008. On 31 January 2008 the appellant applied to the Tribunal for a review of that decision. 6 In the proceedings before the Tribunal the appellant claimed to have a well-founded fear of persecution by reason of her practice of Falun Gong. She claimed before the Tribunal that she was introduced to Falun Gong in 2000, though she later stated she had been introduced to Falun Gong in 1997 by a customer in the shop where she worked. She said that in 2007 she was practising Falun Gong at a friend's house and that the police came and arrested them. She claimed that she had been detained for five days during which time she was tortured. She said that she was released when her husband paid a large sum of money, presumably to the authorities. 7 The Tribunal found that the appellant was not a credible witness. The Tribunal found that the appellant's evidence was inconsistent, implausible and confused and noted that in many instances she was not frank or forthcoming in the answers she gave.
Case: Beach Petroleum NL v Johnson (1995) 57 FCR 119
Outcome: considered
The First and Third to Thirteenth Respondents sought a costs order for a " gross sum " as permitted by O 62, r 4(2)(c) of the Federal Court Rules . It is considered appropriate to make such an order. The making of such an order in the present proceeding would avoid the additional expense and delay inevitably involved in taxation: cf Beach Petroleum NL v Johnson (1995) 57 FCR 119 at 120. An Affidavit as filed today quantifies the costs to date incurred by those Respondents as being in excess of $10,000; the " gross sum " for which an order is sought is $7,500. There is not considered to be any real prospect that the Appellant would obtain on taxation a lesser quantification: cf Sluggett v Human Rights &amp; Equal Opportunity Commission [2002] FCA 1060. It is thus appropriate to make an order in that amount.