mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131
Outcome: cited
The respondent accepted that the reference to "application" in section 424A(3)(b) means the application for review that is under consideration by the Tribunal: Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 at [17] . However, the respondent submitted that information which has previously been given for some other purpose, such as the original visa application, can become information given by the applicant for the purpose of the Tribunal application if the applicant expressly adopts that information as part of the application for review to the Tribunal: M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25] ; NBHH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1198 at [12] - [13] ; VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271 at [10] - [11] . In its reasons for decision the Tribunal referred to a statutory declaration, and accompanying submission, by the appellant that he had submitted with his primary visa application. The appellant's advisor had expressly adopted these earlier documents for the purposes of the application for review to the Tribunal in the submission received by the Tribunal on 7 March 2006. It followed that the information contained therein had been adopted and become information which the appellant "gave for the purpose of the application" for review and so fell within the exception in s 424A(3)(b). (iv) Failure to provide written notice of the Tribunal's view that documents provided by the appellant would be given no weight
Case: NBHH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1198
Outcome: cited
The respondent accepted that the reference to "application" in section 424A(3)(b) means the application for review that is under consideration by the Tribunal: Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 at [17] . However, the respondent submitted that information which has previously been given for some other purpose, such as the original visa application, can become information given by the applicant for the purpose of the Tribunal application if the applicant expressly adopts that information as part of the application for review to the Tribunal: M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25] ; NBHH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1198 at [12] - [13] ; VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271 at [10] - [11] . In its reasons for decision the Tribunal referred to a statutory declaration, and accompanying submission, by the appellant that he had submitted with his primary visa application. The appellant's advisor had expressly adopted these earlier documents for the purposes of the application for review to the Tribunal in the submission received by the Tribunal on 7 March 2006. It followed that the information contained therein had been adopted and become information which the appellant "gave for the purpose of the application" for review and so fell within the exception in s 424A(3)(b). (iv) Failure to provide written notice of the Tribunal's view that documents provided by the appellant would be given no weight
Case: VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271
Outcome: cited
The respondent accepted that the reference to "application" in section 424A(3)(b) means the application for review that is under consideration by the Tribunal: Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 at [17] . However, the respondent submitted that information which has previously been given for some other purpose, such as the original visa application, can become information given by the applicant for the purpose of the Tribunal application if the applicant expressly adopts that information as part of the application for review to the Tribunal: M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25] ; NBHH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1198 at [12] - [13] ; VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271 at [10] - [11] . In its reasons for decision the Tribunal referred to a statutory declaration, and accompanying submission, by the appellant that he had submitted with his primary visa application. The appellant's advisor had expressly adopted these earlier documents for the purposes of the application for review to the Tribunal in the submission received by the Tribunal on 7 March 2006. It followed that the information contained therein had been adopted and become information which the appellant "gave for the purpose of the application" for review and so fell within the exception in s 424A(3)(b). (iv) Failure to provide written notice of the Tribunal's view that documents provided by the appellant would be given no weight
Case: Boys v Australian Securities Commission [2001] FCA 1440
Outcome: cited
may presently be assumed that O 62 r 11 has been properly invoked. Left to one side is a question as to whether the " preliminary decision " of the Deputy District Registrar, albeit a decision given effect by an order, is a " decision " within the meaning of r 11. Also left to one side is the question as to whether or not the Deputy District Registrar had power to make the decision that she did or to make the consequential order. Left unresolved is whether or not the Deputy District Registrar should have referred any question as to the validity of a retainer agreement to a Judge of this Court for resolution. That was the course which was said to be appropriate by the Family Court in Twigg v McIlwraith (1988) 89 FLR 473. As recognised by that Court, it was expected " [a]s a matter of commonsense as well as convenience to the litigants " that the question referred " be one of substance ". And it may further be assumed for present purposes that the " review " to be undertaken is a hearing de novo : Pacific Dunlop Ltd v Australian Rubber Gloves (unreported, FCA, Olney J, 17 August 1993); Boys v Australian Securities Commission [2001] FCA 1440 per Carr J. Whether such an assumption is correct, given the reservation expressed by Hely J in Cachia v Westpac Financial Services Ltd [2003] FCA 817 , need not be now resolved. See also: Miller v Wertheim [2004] FCA 988.
Case: Cachia v Westpac Financial Services Ltd [2003] FCA 817
Outcome: cited
may presently be assumed that O 62 r 11 has been properly invoked. Left to one side is a question as to whether the " preliminary decision " of the Deputy District Registrar, albeit a decision given effect by an order, is a " decision " within the meaning of r 11. Also left to one side is the question as to whether or not the Deputy District Registrar had power to make the decision that she did or to make the consequential order. Left unresolved is whether or not the Deputy District Registrar should have referred any question as to the validity of a retainer agreement to a Judge of this Court for resolution. That was the course which was said to be appropriate by the Family Court in Twigg v McIlwraith (1988) 89 FLR 473. As recognised by that Court, it was expected " [a]s a matter of commonsense as well as convenience to the litigants " that the question referred " be one of substance ". And it may further be assumed for present purposes that the " review " to be undertaken is a hearing de novo : Pacific Dunlop Ltd v Australian Rubber Gloves (unreported, FCA, Olney J, 17 August 1993); Boys v Australian Securities Commission [2001] FCA 1440 per Carr J. Whether such an assumption is correct, given the reservation expressed by Hely J in Cachia v Westpac Financial Services Ltd [2003] FCA 817 , need not be now resolved. See also: Miller v Wertheim [2004] FCA 988.
Case: Catto v Hampton Australia Ltd (In Liq) [2008] SASC 231
Outcome: referred to
part of the dispute which presently manifests itself is an application by the Trustee to review a decision of a Deputy District Registrar of this Court. On 18 June 2009 Deputy District Registrar Cujes made orders that: 1. The full taxation proceed on the basis there exists a valid retainer agreement between the First Respondent (Mr Rickus) and his legal representatives for the purposes of the proceedings. 2. The First Respondent is granted leave, pursuant to Order 13 sub-rule 2(1) of the Federal Court Rules , to file and serve an amended bill of costs. Those orders were accompanied by a letter from the Deputy District Registrar also dated 18 June 2009 to the solicitors for both the Trustee and Mr Rickus. The letter recorded (in part) what the Deputy District Registrar referred to as her " preliminary oral decision ... in respect of ... the validity of " a written retainer as between Mr Rickus and his legal advisers. The letter helpfully recorded a finding that " the retainer between Mr Rickus and his lawyers was partly oral, partly written and/or partly to be implied by conduct ". Reference was made by the Deputy District Registrar to s 42 of the Legal Practitioners Act 1981 (SA) and to a decision of the Full Court of the Supreme Court of South Australia in Catto v Hampton Australia Ltd (In Liq) [2008] SASC 231. That decision was relied upon as authority for the proposition that " a successful litigant is entitled to recover from the other party amounts paid by the former in connection with the litigation, notwithstanding the unenforceability of any agreement between the litigant and solicitor... ". The letter concluded: I would continue to strongly urge the parties to attend a confidential conference or mediation with a view to, at the very least, narrowing and refining the issues in dispute, but hopefully reaching settlement on a commercial basis. The Trustee's application for review invokes O 62 r 11 of the Federal Court Rules which provides as follows: Every taxation of costs and every decision of a taxing officer shall be subject to review by a Judge. In summary form, the Trustee seeks to contend that: the Deputy District Registrar's decision is beyond power; and is, in any event wrong as a matter of law. Counsel for Mr Rickus contends that:
Case: Miller v Wertheim [2004] FCA 988
Outcome: referred to
may presently be assumed that O 62 r 11 has been properly invoked. Left to one side is a question as to whether the " preliminary decision " of the Deputy District Registrar, albeit a decision given effect by an order, is a " decision " within the meaning of r 11. Also left to one side is the question as to whether or not the Deputy District Registrar had power to make the decision that she did or to make the consequential order. Left unresolved is whether or not the Deputy District Registrar should have referred any question as to the validity of a retainer agreement to a Judge of this Court for resolution. That was the course which was said to be appropriate by the Family Court in Twigg v McIlwraith (1988) 89 FLR 473. As recognised by that Court, it was expected " [a]s a matter of commonsense as well as convenience to the litigants " that the question referred " be one of substance ". And it may further be assumed for present purposes that the " review " to be undertaken is a hearing de novo : Pacific Dunlop Ltd v Australian Rubber Gloves (unreported, FCA, Olney J, 17 August 1993); Boys v Australian Securities Commission [2001] FCA 1440 per Carr J. Whether such an assumption is correct, given the reservation expressed by Hely J in Cachia v Westpac Financial Services Ltd [2003] FCA 817 , need not be now resolved. See also: Miller v Wertheim [2004] FCA 988.
Case: Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 1878
Outcome: referred to
litigation between the present parties has been ongoing for a considerable period of time. A number of judgments have already been given: Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 1878 ; Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 2117 ; Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus (No 3) [2008] FCA 1986 , 69 ACSR 264 ; Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus (No 4) [2009] FCA 1085. The facts giving rise to the litigation need not be now repeated. At the comparative outset of the litigation, on 26 November 2007, orders were made that the Motor Trades Association of Australia Superannuation Fund Pty Ltd ("the Trustee") was to pay the costs of Mr Rickus " forthwith " and that such costs were to be paid on an indemnity basis: Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 1878. It gives rise to a considerable degree of disquiet to learn that the making of those orders is still occasioning dispute between the parties.
Case: Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 2117
Outcome: referred to
litigation between the present parties has been ongoing for a considerable period of time. A number of judgments have already been given: Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 1878 ; Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 2117 ; Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus (No 3) [2008] FCA 1986 , 69 ACSR 264 ; Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus (No 4) [2009] FCA 1085. The facts giving rise to the litigation need not be now repeated.
Case: Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus (No 3) [2008] FCA 1986 , 69 ACSR 264
Outcome: referred to
litigation between the present parties has been ongoing for a considerable period of time. A number of judgments have already been given: Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 1878 ; Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 2117 ; Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus (No 3) [2008] FCA 1986 , 69 ACSR 264 ; Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus (No 4) [2009] FCA 1085. The facts giving rise to the litigation need not be now repeated.
Case: Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus (No 4) [2009] FCA 1085
Outcome: referred to
litigation between the present parties has been ongoing for a considerable period of time. A number of judgments have already been given: Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 1878 ; Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 2117 ; Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus (No 3) [2008] FCA 1986 , 69 ACSR 264 ; Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus (No 4) [2009] FCA 1085. The facts giving rise to the litigation need not be now repeated.
Case: Pacific Dunlop Ltd v Australian Rubber Gloves (unreported, FCA, Olney J, 17 August 1993)
Outcome: cited
may presently be assumed that O 62 r 11 has been properly invoked. Left to one side is a question as to whether the " preliminary decision " of the Deputy District Registrar, albeit a decision given effect by an order, is a " decision " within the meaning of r 11. Also left to one side is the question as to whether or not the Deputy District Registrar had power to make the decision that she did or to make the consequential order. Left unresolved is whether or not the Deputy District Registrar should have referred any question as to the validity of a retainer agreement to a Judge of this Court for resolution. That was the course which was said to be appropriate by the Family Court in Twigg v McIlwraith (1988) 89 FLR 473. As recognised by that Court, it was expected " [a]s a matter of commonsense as well as convenience to the litigants " that the question referred " be one of substance ". And it may further be assumed for present purposes that the " review " to be undertaken is a hearing de novo : Pacific Dunlop Ltd v Australian Rubber Gloves (unreported, FCA, Olney J, 17 August 1993); Boys v Australian Securities Commission [2001] FCA 1440 per Carr J. Whether such an assumption is correct, given the reservation expressed by Hely J in Cachia v Westpac Financial Services Ltd [2003] FCA 817 , need not be now resolved. See also: Miller v Wertheim [2004] FCA 988.
Case: Twigg v McIlwraith (1988) 89 FLR 473
Outcome: cited
may presently be assumed that O 62 r 11 has been properly invoked. Left to one side is a question as to whether the " preliminary decision " of the Deputy District Registrar, albeit a decision given effect by an order, is a " decision " within the meaning of r 11. Also left to one side is the question as to whether or not the Deputy District Registrar had power to make the decision that she did or to make the consequential order. Left unresolved is whether or not the Deputy District Registrar should have referred any question as to the validity of a retainer agreement to a Judge of this Court for resolution. That was the course which was said to be appropriate by the Family Court in Twigg v McIlwraith (1988) 89 FLR 473. As recognised by that Court, it was expected " [a]s a matter of commonsense as well as convenience to the litigants " that the question referred " be one of substance ". And it may further be assumed for present purposes that the " review " to be undertaken is a hearing de novo : Pacific Dunlop Ltd v Australian Rubber Gloves (unreported, FCA, Olney J, 17 August 1993); Boys v Australian Securities Commission [2001] FCA 1440 per Carr J. Whether such an assumption is correct, given the reservation expressed by Hely J in Cachia v Westpac Financial Services Ltd [2003] FCA 817 , need not be now resolved. See also: Miller v Wertheim [2004] FCA 988.
Case: M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131
Outcome: considered
In the alternative, even if the information included information first given prior to the first Tribunal hearing, the conduct of the appellant was such that that information became information the appellant gave for the purpose of the application for review. I have reached that conclusion because of the submission put to the first Tribunal by the solicitors acting for the appellant. I have reached that conclusion without having to rely on the questions asked of the appellant at the second Tribunal hearing and his response to those questions. The authorities draw a distinction between information given for the purpose of the application for review and information elicited by the Tribunal during the course of a hearing. I have not attempted to express the distinction in precise terms and it seems to me to be a somewhat elusive one. Nevertheless, it is one that the authorities suggest must be drawn. It is said to be a distinction between information which the applicant for review puts forward as part of his or her case and adopts, on the one hand, and information elicited by questions from the Tribunal on the other. It is sufficient for me to refer to M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 ; NAZY v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 357; SZCJY v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 556 and finally, VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851 ; (2006) 154 FCR 302 (' VWBF '). I would only add that, in relation to the relevant principles, I respectfully agree with the observation of Heerey J in VWBF as follows (at [48]): 'If this matter were free from authority, there would be much to be said for the view that the applicant "gave" information for the purpose of the Tribunal review application if the information was delivered to the Tribunal by the applicant, whether in answer to a question asked by the Tribunal or whether volunteered.'
Case: NAZY v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 357
Outcome: considered
In the alternative, even if the information included information first given prior to the first Tribunal hearing, the conduct of the appellant was such that that information became information the appellant gave for the purpose of the application for review. I have reached that conclusion because of the submission put to the first Tribunal by the solicitors acting for the appellant. I have reached that conclusion without having to rely on the questions asked of the appellant at the second Tribunal hearing and his response to those questions. The authorities draw a distinction between information given for the purpose of the application for review and information elicited by the Tribunal during the course of a hearing. I have not attempted to express the distinction in precise terms and it seems to me to be a somewhat elusive one. Nevertheless, it is one that the authorities suggest must be drawn. It is said to be a distinction between information which the applicant for review puts forward as part of his or her case and adopts, on the one hand, and information elicited by questions from the Tribunal on the other. It is sufficient for me to refer to M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 ; NAZY v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 357; SZCJY v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 556 and finally, VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851 ; (2006) 154 FCR 302 (' VWBF '). I would only add that, in relation to the relevant principles, I respectfully agree with the observation of Heerey J in VWBF as follows (at [48]): 'If this matter were free from authority, there would be much to be said for the view that the applicant "gave" information for the purpose of the Tribunal review application if the information was delivered to the Tribunal by the applicant, whether in answer to a question asked by the Tribunal or whether volunteered.'