mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Minister for Immigration and Multicultural and Indigenous Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27
Outcome: referred to
At the hearing, the appellant conceded that, at the hearing before the Tribunal, he had done more than simply adopt information concerning his educational experiences in Australia. This was because, in response to the Tribunal's questioning, the appellant had actively given details of his education in Australia. However, the appellant distinguished information about his education in India from that about his education in this country. In the appellant's submission, in relation to his Indian education, he did no more than adopt the information provided earlier in his protection visa application. The appellant noted that his answers regarding his education in India were in response to leading questions from the Tribunal where, in effect, he was asked to do no more than confirm the details in his original application in March 2001. Further, the appellant noted that the Tribunal had not told him of the potential significance of this information for its decision-making. In this connection, he referred to Minister for Immigration and Multicultural and Indigenous Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 (" Al Shamry ") at [40]-[41] per Merkel J. 22 The first respondent submitted that the Court should not grant leave to amend the notice of appeal. The first respondent noted that although SZEEU had not been decided at the time of the hearing before the Federal Magistrate, SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 and Al Shamry had been decided at that time. Further, the first respondent argued that leave to amend should be refused because the new ground of appeal was futile.
Case: NAZY v MIMIA [2005] FCA 744
Outcome: referred to
The appellant relied on SZEEU at [17] and [20] per Moore J and NAZY v MIMIA [2005] FCA 744 at [37] per Jacobson J for the proposition that information does not fall within the exception of s 424A(3)(b) unless it is put forward as evidence in chief and the applicant is aware of the significance of the information. Thus, in the appellant's view, his brief responses to leading questions regarding his education in India did not mean this was information given for the purpose of the application for review under s 424A(3)(b).
Case: Chandler v Alberta Association of Architects [1989] 2 SCR 848
Outcome: applied
There is yet another basis upon which an administrative decision-maker might still deal with a matter that appears to have been finalised. In Chandler v Alberta Association of Architects [1989] 2 SCR 848 Sopinka J, who delivered the decision of the Supreme Court of Canada, said (at 862): "If the Tribunal has failed to dispose of an issue which is fairly raised by the proceedings and of which the tribunal is empowered by its enabling statute to dispose, it ought to be allowed to complete its statutory task." 42 In my view the Panel is entitled to proceed with Mr Hoff's application. Contrary to the Panel's stated view, the undertaking proffered by Pendant does not in fact dispose of all the matters raised by the application. I mean by this that the undertaking, which has the limited effect I have given it, did not create a situation where there could be competitive bidding for the shares in Tower, and this may be the only appropriate remedy if Mr Hoff can make out some of his complaints. 43 In any event, it is clear that the Panel has made an important mistake in the effect of the undertaking. It is not necessary to determine whether the mistake is one of fact (the meaning of words in the undertaking) or one of law (how the undertaking is to be applied to the known facts). It is enough for me to hold (as I do) that the mistake is of such importance that it warrants the Tribunal pressing ahead with the application.
Case: Comptroller-General of Customs v Kawasaki Motors Pty Ltd (1991) 103 ALR 661
Outcome: cited
It is not, however, only in the case of jurisdictional error that an administrative decision-maker can correct error. For example in the Comptroller-General of Customs v Kawasaki Motors Pty Ltd (1991) 103 ALR 661 Beaumont J said (at 667) that "where it appears to a decision-maker that his or her decision has preceded upon a wrong factual basis, it is appropriate, proper and necessary that the decision-maker withdraw his or her decision."
Case: Kabourakis v Medical Practitioners Board of Victoria [2005] VSC 493
Outcome: applied
Similar statements appear in the judgment of Gillard J in Kabourakis v Medical Practitioners Board of Victoria [2005] VSC 493. There the Medical Practitioners Board of Victoria, a statutory body, conducted an informal hearing into the professional conduct of a doctor and made a finding about that conduct but, by mistake, had overlooked some evidence. There was no express provision in the relevant statute allowing the board to set aside its finding. Nevertheless, Gillard J said at [48] that "if a decision made by a statutory body, which was clearly made in error or as a result of some obvious mistake, it is an offence to common sense to suggest that the only avenue open to correct the error is to appeal, state a case, or seek judicial review." He went on to say that an administrative decision-maker should be entitled "to correct an obvious error by revisiting the process". Gillard J accepted that if the statute under which the administrative decision-maker was acting prevented the decision from being re-opened then of course it could not be.
Case: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597
Outcome: applied
In Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597 it was held that if an administrative decision-maker commits a jurisdictional error in reaching his decision, the decision is liable to be set aside but, whether set aside or not, the decision-maker can correct the error in a later decision. So, if the Panel committed a jurisdictional error in arriving at its decision that the undertaking proffered by Pendant rendered it inappropriate to make a declaration of unacceptable circumstances, it could still deal with the application. It would, of course, be necessary, if it went ahead, for the Panel to release Pendant from the earlier undertaking. 40 There is a passage in the speech of Lord Reid in Ridge v Baldwin [1963] UKHL 2 ; [1964] AC 40, 79 which is to a like effect. Lord Reid said: "I do not doubt that if an officer or body realises it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present his case, then its later decision will be valid." In Bhardwaj Gleeson CJ referred (at 603) to this passage with apparent approval but noted that the general proposition stated by Lord Reid "must yield to the legislation under which a decision-maker is acting". To a like effect are the comments of Gummow J in Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, 211, 218-219. See also Steward v Director of Public Prosecutions [2004] 1 WLR 592.
Case: Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193
Outcome: considered
There is a passage in the speech of Lord Reid in Ridge v Baldwin [1963] UKHL 2 ; [1964] AC 40, 79 which is to a like effect. Lord Reid said: "I do not doubt that if an officer or body realises it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present his case, then its later decision will be valid." In Bhardwaj Gleeson CJ referred (at 603) to this passage with apparent approval but noted that the general proposition stated by Lord Reid "must yield to the legislation under which a decision-maker is acting". To a like effect are the comments of Gummow J in Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, 211, 218-219. See also Steward v Director of Public Prosecutions [2004] 1 WLR 592.
Case: Ridge v Baldwin [1963] UKHL 2 ; [1964] AC 40
Outcome: cited
There is a passage in the speech of Lord Reid in Ridge v Baldwin [1963] UKHL 2 ; [1964] AC 40, 79 which is to a like effect. Lord Reid said: "I do not doubt that if an officer or body realises it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present his case, then its later decision will be valid." In Bhardwaj Gleeson CJ referred (at 603) to this passage with apparent approval but noted that the general proposition stated by Lord Reid "must yield to the legislation under which a decision-maker is acting". To a like effect are the comments of Gummow J in Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, 211, 218-219. See also Steward v Director of Public Prosecutions [2004] 1 WLR 592.
Case: Saraswati v The Queen [1991] HCA 21 ; (1991) 172 CLR 1
Outcome: considered
Fourth, if an undertaking is of doubtful meaning and it is possible to give the undertaking a meaning that will avoid unintended consequences or consequences that are unreasonable, that meaning should be adopted. If that results in a construction that it is not necessarily grammatically accurate, so be it. But this approach will not permit a meaning to be given to an undertaking which is different from its clear meaning. In this connection it was not suggested that I should apply by analogy the approach developed for the construction of statutes under which it is permissible to modify the literal meaning of words in order to avoid absurd or unreasonable results: see for example: Saraswati v The Queen [1991] HCA 21 ; (1991) 172 CLR 1, 21-23. 27 Turning now to the undertaking itself, relevantly, Pendant's undertaking in the case of a "Superior bid" (a defined expression) is to increase its offer so that it is "at least equal to that offered under the Superior bid" (cl D(c)) or, if the Superior bid is not made by a member of Tower, to give a notice under r 120.2 offering to sell the Equity Partners' parcel "to shareholders at a price per share not higher than the price offered in the Superior bid" and if they are not taken up by shareholders to accept the Superior bid (cl D(d)). The question in each case is how does one determine the price of the Superior bid? 28 It is common ground that Quadrant's off-market bid is a Superior bid. It is a Superior bid because the offer made under the bid was for a cash price of more than $1.45 per share, the offer was sent to shareholders on 14 July 2006 and the offer became free of all conditions before 28 July 2006. That is, all the conditions specified in cl D(a) and (b) were satisfied.
Case: Steward v Director of Public Prosecutions [2004] 1 WLR 592 
Outcome: cited
There is a passage in the speech of Lord Reid in Ridge v Baldwin [1963] UKHL 2 ; [1964] AC 40, 79 which is to a like effect. Lord Reid said: "I do not doubt that if an officer or body realises it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present his case, then its later decision will be valid." In Bhardwaj Gleeson CJ referred (at 603) to this passage with apparent approval but noted that the general proposition stated by Lord Reid "must yield to the legislation under which a decision-maker is acting". To a like effect are the comments of Gummow J in Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, 211, 218-219. See also Steward v Director of Public Prosecutions [2004] 1 WLR 592.
Case: Yates Property Corporation Pty Ltd v Boland (1998) 89 FCR 78
Outcome: cited
Third, in deciding what is meant by the words of an undertaking it is permissible to have regard to the reasons given by the Panel for requiring the undertaking and what the Panel perceived to be its effect. This is the position in the case of orders made by a court (as to which see Yates Property Corporation Pty Ltd v Boland (1998) 89 FCR 78) and it should be the same in relation to an undertaking given under s 201A , especially if the undertaking was required by the Panel. Put another way, the meaning of an undertaking is to be determined having regard to its stated purpose.
Case: Banque Bruxelles Lambert v Australian National Industries Ltd (unreported, New South Wales Court of Appeal, 26 February 1997)
Outcome: discussed
In Banque Bruxelles Lambert v Australian National Industries Ltd (unreported, New South Wales Court of Appeal, 26 February 1997) the issue was whether a particular costs order was released by the deed in question. The sole point argued on the appeal was whether the principles enunciated in Grant v John Grant applied, so as to exclude the costs order from the release. After an extensive analysis of the surrounding circumstances, Beazley JA (with whom Meagher and Cole JJA agreed) concluded: "In this matter the terms of the instrument quite clearly included a release of the costs order. The surrounding circumstances included negotiations leading up to the final entering into of the Major Creditor's Deed of Release on 22 September 1992. At one stage in those negotiations, as was clearly evidenced by the letter of 17 December 1992, BBL would have liked to have reserved the costs order made by Rogers CJ Comm D at first instance. There is no evidence and indeed the evidence is to the contrary, that ANI ever agreed to that. There is no evidence that BBL between 17 December and the time of the execution of the Deed, did not decide in the interests of the overall commercial settlement, to forego its right to that costs order. In those circumstances I cannot see how the principle in Grant v John Grant &amp; Sons Pty Ltd applies."
Case: Commonwealth Development Bank of Australia Ltd v Kok, in the matter of Kok [2003] FCA 90
Outcome: discussed
More recently in Commonwealth Development Bank of Australia Ltd v Kok, in the matter of Kok [2003] FCA 90 Beaumont J stated (at [34]): "In the first place, it is a settled principle of interpretation that general words in an instrument of release are limited always to that thing, or those things, which were specially in the contemplation of the parties at the time when the release was given". See also Torrens Aloha Pty Ltd v Citibank NA (1997) 72 FCR 581 at 599 600.
Case: London &amp; South Western Railway Co v Blackmore (1870) LR 4 HL 610
Outcome: referred to
In Grant v John Grant &amp; Sons Pty Ltd [1954] HCA 23 ; (1954) 91 CLR 112 Dixon CJ, Fullagar, Kitto and Taylor JJ accepted that a release expressed in general words will usually be read down by reference to what was in the contemplation of the parties at the time of the execution of the release. Their Honours expressly adopted (at 123 124) the reasoning of Lord Westbury in London &amp; South Western Railway Co v Blackmore (1870) LR 4 HL 610 at 623 that: "The general words in a release are limited always to that thing or those things which were specially in the contemplation of the parties at the time when the release was given".
Case: McCarthy v McIntyre [1999] FCA 784
Outcome: discussed
In McCarthy v McIntyre [1999] FCA 784 a Full Court of this Court stated (at [106]): "In Grant v John Grant &amp; Sons Pty Ltd (1954) 91 CLR 123, the joint reasons for judgment (Dixon CJ and Fullagar, Kitto and Taylor JJ) approved two related principles. First, the general words of a release should be restrained by the particular occasion (at 123). Thus, the general words of a release are to be construed by reference to the recitals in the particular deed. Secondly, the general words in a release are limited to those things which were specially in the contemplation of the parties at the time when the release was given (at 123-124)."
Case: State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146
Outcome: cited
Mr Williams' submission also seemed to me to be inconsistent with the "surrounding circumstances". The bank clearly intended that any settlement should apply to all claims made by the Smolles, including their claims in relation to the Bond. Notably it had rejected the amended version of the Deed of Release, executed by the Smolles on 16 August 2001, which sought to exclude certain transaction costs in relation to the switch from the balanced trust to the Bond. Reynolds Lawyers' letter of 11 March 2002 stated that the variations to the Deed of Release were "unacceptable" to the bank. As finally executed on 25 March 2002, the Deed of Release dealt specifically with the Smolles' claim against the bank for "compensation in relation to" their investment in the balanced trust and the Bond. 52 I also indicated, on 18 October 2007, that I would not dismiss the Smolles' claim against Reynolds Lawyers on the basis of want of prosecution, despite the many failures on their part to comply with directions and orders of the Court. In part, I did so in reliance upon the principles laid down by the High Court in State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146. The Smolles had been required to pay indemnity costs for each earlier breach of my orders, and that seemed to me to ameliorate to some degree any prejudice that Reynolds Lawyers had suffered. Bearing in mind the difficulties under which the Smolles laboured, having regard to their particular circumstances, and also taking into account the fact that they were now competently represented, I concluded that it would not be appropriate to prevent them from prosecuting their case. 53 That leaves the position as follows. The claim against the bank is dismissed. However, Reynolds Lawyers still face claims for failure to carry out instructions, breach of retainer, negligence and misleading or deceptive conduct. Reynolds Lawyers have cross-claimed against the bank, in the event that they are found liable to the Smolles. The status of that cross-claim will need to be considered at some future time. 54 On any view, if the Smolles are to succeed against their former solicitors they will have to prove not merely that the breaches alleged occurred, but also that they suffered loss or damage as a consequence.
Case: Torrens Aloha Pty Ltd v Citibank NA (1997) 72 FCR 581 
Outcome: referred to
More recently in Commonwealth Development Bank of Australia Ltd v Kok, in the matter of Kok [2003] FCA 90 Beaumont J stated (at [34]): "In the first place, it is a settled principle of interpretation that general words in an instrument of release are limited always to that thing, or those things, which were specially in the contemplation of the parties at the time when the release was given". See also Torrens Aloha Pty Ltd v Citibank NA (1997) 72 FCR 581 at 599 600.
Case: Azed Developments Pty Ltd v Frederick and Co Limited (1994) 12 ACLC 949
Outcome: cited
is authority for the proposition that the verification required in the affidavit supporting an application to wind the company up under s 459Q is not extensive. The same statutory formula is used in relation to an affidavit verifying the existence of a debt for the purpose of an originating application as is used in relation to the affidavit backing a statutory demand. In the case of an affidavit backing a statutory demand, what is required is formal affirmation on oath that a certain amount of money is due and payable - Azed Developments Pty Ltd v Frederick and Co Limited (1994) 12 ACLC 949; Hamilhall Pty Ltd (In Liq) v AT Phillips Pty Ltd (1994) 54 FCR 173; Carb Royale Pty Ltd v Tonkin (2000) 18 ACLC 803. In Hamilhall , Branson J discussed the requirements of an affidavit verifying the existence of debt for the purpose of s 459E(3) in relation to a statutory demand. Her Honour noted that in Azed Developments Hayne J of the Supreme Court of Victoria, as he then was, held that s 459E(3) uses the expression 'verify' in the sense of 'a formal affirmation'. Her Honour went on to say (at 174): also am of the view that in the context of Pt 5.4 of the Corporations Law , the expression "verify" is used in the sense of "a formal affirmation". The affidavit in this case did contain a formal affirmation that the total of the amount of the debts was due and payable by the respondent.'
Case: Hamilhall Pty Ltd (In Liq)v AT Phillips Pty Ltd (1994) 54 FCR 173
Outcome: cited
is authority for the proposition that the verification required in the affidavit supporting an application to wind the company up under s 459Q is not extensive. The same statutory formula is used in relation to an affidavit verifying the existence of a debt for the purpose of an originating application as is used in relation to the affidavit backing a statutory demand. In the case of an affidavit backing a statutory demand, what is required is formal affirmation on oath that a certain amount of money is due and payable - Azed Developments Pty Ltd v Frederick and Co Limited (1994) 12 ACLC 949; Hamilhall Pty Ltd (In Liq) v AT Phillips Pty Ltd (1994) 54 FCR 173; Carb Royale Pty Ltd v Tonkin (2000) 18 ACLC 803. In Hamilhall , Branson J discussed the requirements of an affidavit verifying the existence of debt for the purpose of s 459E(3) in relation to a statutory demand. Her Honour noted that in Azed Developments Hayne J of the Supreme Court of Victoria, as he then was, held that s 459E(3) uses the expression 'verify' in the sense of 'a formal affirmation'. Her Honour went on to say (at 174): also am of the view that in the context of Pt 5.4 of the Corporations Law , the expression "verify" is used in the sense of "a formal affirmation". The affidavit in this case did contain a formal affirmation that the total of the amount of the debts was due and payable by the respondent.'
Case: Carb Royale Pty Ltd v Tonkin (2000) 18 ACLC 803
Outcome: cited
is authority for the proposition that the verification required in the affidavit supporting an application to wind the company up under s 459Q is not extensive. The same statutory formula is used in relation to an affidavit verifying the existence of a debt for the purpose of an originating application as is used in relation to the affidavit backing a statutory demand. In the case of an affidavit backing a statutory demand, what is required is formal affirmation on oath that a certain amount of money is due and payable - Azed Developments Pty Ltd v Frederick and Co Limited (1994) 12 ACLC 949; Hamilhall Pty Ltd (In Liq) v AT Phillips Pty Ltd (1994) 54 FCR 173; Carb Royale Pty Ltd v Tonkin (2000) 18 ACLC 803.
Case: Byrne v Repatriation Commission [2006] AATA 416
Outcome: affirmed
A coronial inquiry found that Mr Byrne had died in a ' tragic accident ' and that the cause of his death was drowning. That conclusion was adopted by the Repatriation Commission, which refused Mrs Byrne's claim for a pension, upon being satisfied that the veteran's death was not service related. The Veterans' Review Board affirmed the Commission's decision, which was later affirmed by the Administrative Appeals Tribunal ( Byrne v Repatriation Commission [2006] AATA 416). Mrs Byrne appeals the Tribunal's decision. 3 Mrs Byrne put to the Tribunal that her husband suffered from ischaemic heart disease ('IHD') and coronary artery disease ('CAD'), each said to be war-caused conditions. It was accepted by the Tribunal that Mr Byrne did suffer from CAD (at [66]). The issue in this appeal concerns the Tribunal's finding that it was satisfied beyond reasonable doubt that CAD was not a contributing factor to the death of Mr Byrne by drowning. Two grounds of appeal are pressed. The Tribunal's finding that it was not satisfied that Mr Byrne suffered from IHD is not challenged and those parts of the notice of appeal which refer to IHD are not pressed. It is convenient to deal with the second ground of appeal first.