mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Transport Publishing Co Pty Ltd v The Literature Board of Review (1956) 99 CLR 111
Outcome: cited
The evidence of the Cadbury experts had been excluded ( Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 at [8] - [18] ) on the ground that an expert's opinion is not admissible as to matters within the experience and knowledge of a judge or jury ( The Queen v Turner [1975] QB 834 at 841, Murphy v The Queen [1989] HCA 28 ; (1989) 167 CLR 94 at 111) and specifically in relation to "ordinary human nature, that of people at large" ( Transport Publishing Co Pty Ltd v The Literature Board of Review (1956) 99 CLR 111 at 119) such as purchasers of everyday consumer items ( Dalgety Spillers Foods Ltd v Food Brokers Ltd [1994] FSR 504 at 527, Symonds Cider &amp; English Wine Company Ltd v Showerings (Ireland) Ltd [1997] IEHC 1 at [20] ); see also JD Heydon Cross on Evidence (7 th Australian ed, 2004) at 930.
Case: Bodney v State of Western Australia [2003] FCA 890
Outcome: considered
J then agreed with the observation of Wilcox J in Bodney v State of Western Australia [2003] FCA 890 at [45] where Wilcox J said: Section 84C(2) of the new Act says that, upon an application being made under s 84C(1), the "Court must, before any further proceedings take place in relation to the main application, consider the application under subsection (1)". It may be, as submitted by Mr Wright on behalf of the State, that the requirement to "consider" the application does not include a requirement to determine the application. It may be open to the Court, having considered the merits of an application, to decide to defer a ruling on it until the trial of the principal application. Whether or not that is so, it is clearly the policy of the Act that the Court should give immediate attention to a strike out motion. The reason, no doubt, is that it is undesirable to allow parties to be put to trouble and expense in relation to an application that fails to comply with the fundamental requirements stated in ss 61, 61A and 62.
Case: Kang v Attorney-General's Department [2008] FMCA 638
Outcome: referred to
Ms Kang considered that her employment had been terminated for reasons proscribed by the Workplace Relations Act 1996 (Cth) ("the Act "). Specifically, she alleged that she had been dismissed because of a temporary absence from work due to illness and because she had filed complaints against her employer alleging breaches of applicable laws. She commenced a proceeding in the Federal Magistrates Court in which she sought re-instatement to her former position, compensation and costs. At trial, she abandoned her claim for re-instatement and advised the Court that she sought compensation and an apology. The proceeding was dismissed by the Federal Magistrate: see Kang v Attorney-General's Department [2008] FMCA 638. 3 The respondent (who was, by order of this Court, identified as the Commonwealth of Australia) opposed the application and sought its costs. The Federal Magistrate did not rule on the costs application. 4 Ms Kang lodged an appeal in this Court. The Commonwealth cross-appealed on the costs issue. The Chief Justice directed, pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act ") that the appeal be heard and determined by a single judge.
Case: Zhang v The Royal Australian Chemical Institute Inc [2005] FCAFC 99 ; (2005) 144 FCR 347
Outcome: cited
The Federal Magistrate accepted that, once Ms Kang had made the allegation that Mr Kennedy had terminated her employment for one or more of the reasons identified in s 659(2)(a) and (e), the onus fell on the Commonwealth, under s 664 , to prove that the termination did not occur for a proscribed reason: see Zhang v The Royal Australian Chemical Institute Inc [2005] FCAFC 99 ; (2005) 144 FCR 347 at 350 [15] . 25 The Federal Magistrate did not consider that Ms Kang had been dismissed because of absences due to illness. There was no reason why Mr Kennedy would have been aware of any of Ms Kang's absences because of illness. It had not been put to him that he was aware of any such absences or that he had acted because of them. His Honour rejected the claim, insofar as it was based on s 659(2)(e) on the basis that it was well settled that the paragraph did not apply where all that the employee had done was to make a complaint directly to his or her employer: see Zhang at [19]-[30]; Claveria v Pilkington Australia Ltd (2007) 167 IR 144 at [110]-[112]. All of Ms Kang's complaints about her treatment were directed to other officers within the Attorney-General's Department. 38 In dealing with s 664 the Federal Magistrate directed himself consistently with the decision of a Full Court of this Court in Zhang at 350 [15], and the decision of O'Loughlin J in Robertson v South (2000) 140 IR 169 at 173 [16]. No error in his Honour's application of s 664 has been demonstrated. 39 It is well established that s 659(2)(e) "is directed to the making of complaints to outside authorities, either by way of instituting proceedings against an employer, or by way of making allegations to officials who are empowered to investigate such allegations. The ground would not be established by the making of complaints directly to the employer alone": He v Lewin [2004] FCAFC 161 ; (2004) 137 FCR 266 at 280 [44] (per Gray and Mansfield JJ); Zhang at 350-352 [19]-[33].
Case: Claveria v Pilkington Australia Ltd (2007) 167 IR 144
Outcome: referred to
The Federal Magistrate did not consider that Ms Kang had been dismissed because of absences due to illness. There was no reason why Mr Kennedy would have been aware of any of Ms Kang's absences because of illness. It had not been put to him that he was aware of any such absences or that he had acted because of them. His Honour rejected the claim, insofar as it was based on s 659(2)(e) on the basis that it was well settled that the paragraph did not apply where all that the employee had done was to make a complaint directly to his or her employer: see Zhang at [19]-[30]; Claveria v Pilkington Australia Ltd (2007) 167 IR 144 at [110]-[112]. All of Ms Kang's complaints about her treatment were directed to other officers within the Attorney-General's Department.
Case: Robertson v South (2000) 140 IR 169
Outcome: referred to
In dealing with s 664 the Federal Magistrate directed himself consistently with the decision of a Full Court of this Court in Zhang at 350 [15], and the decision of O'Loughlin J in Robertson v South (2000) 140 IR 169 at 173 [16]. No error in his Honour's application of s 664 has been demonstrated.
Case: He v Lewin [2004] FCAFC 161 ; (2004) 137 FCR 266
Outcome: cited
It is well established that s 659(2)(e) "is directed to the making of complaints to outside authorities, either by way of instituting proceedings against an employer, or by way of making allegations to officials who are empowered to investigate such allegations. The ground would not be established by the making of complaints directly to the employer alone": He v Lewin [2004] FCAFC 161 ; (2004) 137 FCR 266 at 280 [44] (per Gray and Mansfield JJ); Zhang at 350-352 [19]-[33].
Case: Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission (2007) 237 ALR 672
Outcome: cited
Section 666 of the Workplace Relations Act 1996 (Cth) provides that a party must not be ordered to pay the costs of any other party in a proceeding alleging a contravention of s 659 of the Act unless the Court is satisfied that the applicant instituted the proceedings without (inter alia) reasonable cause. The respondent contended that the proceeding in the Federal Magistrates Court had been instituted without reasonable cause and that it had no real prospects of success or was doomed to failure: see Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission (2007) 237 ALR 672 at 685. This was because Ms Kang did not produce any evidence capable of supporting her application and because the case she presented to the Court amounted to a mere allegation which could be rebutted by a simple denial by the respondent. 62 Ms Kang's application to the Federal Magistrates Court, insofar as it alleged a contravention of s 659(2)(e) , was bound to fail. Her own evidence established that she had not made any complaint to any external authority. In the absence of such a complaint, for reasons already given, she could not succeed. 63 It cannot, however, in my opinion, be said that her complaint alleging a contravention of s 659(2)(a) had no prospects of success or was doomed to fail. Ms Kang gave undisputed evidence about a series of absences from work which commenced in mid February 2007. She was absent when the decision was made to terminate her employment. She had provided the Attorney-General's Department with medical certificates to explain her absences. This evidence alone was, of course, not sufficient to make good a claim of contravention of s 659(2)(a). It was, however, sufficient, having regard to the provisions of s 664(b) , to require more than a mere denial on the part of the respondent. The respondent did not, apparently, consider that a mere denial would suffice. It accepted that it was necessary to call Mr Kennedy to give evidence about when he made his decision, why he made it and his knowledge (or lack of it) of the medical certificates and Ms Kang's absences prior to his making the decision.
Case: SZJUK v Minister for Immigration and Citizenship [2007] FMCA 439
Outcome: referred to
This is an appeal from a judgment of Federal Magistrate Scarlett given on 21 March 2007: SZJUK v Minister for Immigration and Citizenship [2007] FMCA 439. His Honour dismissed, with costs, an application to review a decision of the Refugee Review Tribunal ("the Tribunal") signed on 25 October 2006 and given on 14 November 2006. 2 The appellant is a citizen of the People's Republic of China. He arrived in Australia on 20 October 2004. On 3 December 2004 he applied for a protection (class XA) visa. On 7 March 2005 a delegate of the respondent Minister refused that application. The appellant then sought review of that decision from the Tribunal. The Tribunal affirmed the delegate's decision on 4 August 2005. The appellant then sought judicial review. 3 On 5 June 2006 Federal Magistrate Barnes made orders by consent quashing the Tribunal's decision and remitting the application for reconsideration. The appellant was then invited to attend a second Tribunal hearing, which he did. Ultimately, the Tribunal rejected his application. In doing so, it found that his evidence was not credible, largely because the claims that he advanced before the first Tribunal differed in certain respects from his claims before the second Tribunal. 4 The appellant's claims can be briefly stated. He says that he is a member of Falun Gong, and that by reason of that fact, he faces persecution if required to return to China. 5 In his application for a protection visa the appellant said that he was born in Fujian, China, in 1972 and was married in 1996. His wife and daughter continue to reside in China. He said that he was a sales/department manager prior to coming to Australia, and had held that position from March 2003 to October 2004. He claimed that he had been unemployed from February 1996 until February 2003 and that prior to that he had been a construction worker and a farmer. He claimed that he left China legally using a passport issued in his name in Fujian in November 2002 which would expire in November 2007. He claimed that he had had difficulties, which he detailed as "bribery", obtaining his passport. He claimed that his passport was not valid for return to China because "it must have been blacklisted".
Case: Minister for Immigration &amp; Multicultural Affairs v Eshetu [1999] HCA 21 (1999) 197 CLR 611
Outcome: followed
The contention that the Tribunal failed to act in accordance with substantial justice and the merits of the case, as it was required to do by s 353(2)(b) of the Migration Act , also appears to be an attempt to reargue the merits, and therefore impermissible. In Minister for Immigration &amp; Multicultural Affairs v Eshetu [1999] HCA 21 (1999) 197 CLR 611 at [46] [52] per Gleeson CJ and McHugh J (Hayne J concurring at [158]), [69] [77] per Gaudron and Kirby JJ, [106] [109] per Gummow J, and [175] [179] per Callinan J, the High Court held that s 420 of the Migration Act was insufficiently specific to constitute a ground for review of a decision under the limited jurisdiction then given to this Court by s 476 of the Migration Act , which has since been repealed. Section 420 makes provisions with respect to the Refugee Review Tribunal in terms identical to those made by s 353 with respect to the Tribunal. For reasons similar to those given in Eshetu , s 353 is unlikely to be the source of an obligation, failure to comply with which could be said to constitute jurisdictional error. 67 A consideration of whether the Tribunal made a jurisdictional error by misleading Ms Antipova about what was in issue requires an examination of further factual matters. On 6 August 2002, Ms Antipova and Mr Petrou were interviewed separately by an officer of the Department of Immigration and Multicultural Affairs (subsequently the Department of Immigration and Multicultural and Indigenous Affairs) (in both cases, 'the Department'). The notes of the interview record that Ms Antipova was asked when and where she moved in with Mr Petrou. Her answer was 18 May 2001, and she gave the address of the premises at which Mr Petrou lived in California. The officer asked if she had any other documents that would support this claim, and Ms Antipova said that she did not. By letter dated 16 August 2002, the officer referred to a request on 6 August 2002 'to provide further evidence of cohabitation within 28 days' and requested certain specified documents. With a letter dated 6 September 2002, Ms Antipova's migration agent provided the statutory declarations of Mr Petrou's parents, the statement of Ms Karagoz and a statement of Mr Petrou. With a letter dated 15 October 2002, the migration agent provided the letter of Ms Downie dated 15 August 2002. 68 The decision of the Minister's delegate to refuse to grant Ms Antipova a visa was accompanied by written reasons, dated 3 January 2003. According to those reasons, the delegate found 'conflicting information about the extent of commitment of this relationship since May 2001'. The delegate found that there was 'inadequate evidence...to support claims of a de facto marital relationship to have been in existence for at least 12 months prior to the date of application' for the visa [underlining in original]. It was for this reason that the delegate decided that Ms Antipova was not entitled to the visa.
Case: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 (2000) 204 CLR 82
Outcome: cited
Denial of procedural fairness, potentially affecting the outcome of a proceeding in the Tribunal, is a jurisdictional error. Ordinarily, it justifies the Court quashing the decision of the Tribunal. See Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 (2000) 204 CLR 82 and Plaintiff S157/2002 v Commonwealth [2003] HCA 2 (2003) 211 CLR 476. The question is whether any provision of the Migration Act prevents Ms Antipova from relying on this jurisdictional error in the present case. In particular, the question is whether s 357A(1) of the Migration Act has that effect.
Case: Plaintiff S157/2002 v Commonwealth [2003] HCA 2 (2003) 211 CLR 476
Outcome: cited
Denial of procedural fairness, potentially affecting the outcome of a proceeding in the Tribunal, is a jurisdictional error. Ordinarily, it justifies the Court quashing the decision of the Tribunal. See Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 (2000) 204 CLR 82 and Plaintiff S157/2002 v Commonwealth [2003] HCA 2 (2003) 211 CLR 476. The question is whether any provision of the Migration Act prevents Ms Antipova from relying on this jurisdictional error in the present case. In particular, the question is whether s 357A(1) of the Migration Act has that effect.
Case: Mazhar v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 1759 (2000) 183 ALR 188
Outcome: followed
There are two possible answers to this question. The first is that s 360(1) of the Migration Act requires the Tribunal to invite the applicant 'to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.' If the Tribunal has conducted what purports to be a hearing, but has not in truth allowed an applicant to give evidence and present arguments relating to those issues, it has not complied with this statutory obligation. The Tribunal has failed to comply with an essential precondition to making a decision on the applicant's application to review the decision of the Minister's delegate, and has therefore failed to perform the duty, conferred on it by s 348 of the Migration Act , to review that decision. Its decision is invalid and must be set aside. This is the reasoning followed by the Full Court in Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v SCAR [2003] FCAFC 126 (2003) 128 FCR 553 at [33] [41], in relation to s 425(1) of the Migration Act , which imposes on the Refugee Review Tribunal an obligation in terms identical with the obligation imposed on the Tribunal by s 360(1). At [33], the Full Court approved the statement of Goldberg J in Mazhar v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 1759 (2000) 183 ALR 188 at [31] that: 'The invitation must not be a hollow shell or an empty gesture.' 90 At [62], Ryan J quoted from NALQ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 121 at [30] , a passage in which the Full Court recognised that the invitation required by s 425 must be 'real and meaningful and not just an empty gesture', citing both SCAR and Mazhar . The Full Court in NALQ proceeded to discuss earlier authorities on the nature of the invitation required. At [34], there was a discussion of whether the Full Court in SCAR at [37] had misconstrued the judgment of Hely J in Applicant NAHF of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 140 (2003) 128 FCR 359, but the Full Court in NALQ did not determine this question.
Case: M17/2004 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 86 (2005) 85 ALD 597
Outcome: followed
In M17/2004 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 86 (2005) 85 ALD 597, Ryan J also dealt with the alleged failure of the Refugee Review Tribunal to raise at the hearing an issue on which it later found against the person applying for a protection visa. At [58], his Honour accepted that compliance with s 425 was held in SCAR to be a precondition to the valid exercise of the Refugee Review Tribunal's jurisdiction, and that failure to comply would therefore be jurisdictional error. At [59], his Honour quoted from the joint judgment of Tamberlin and Katz JJ in Minister for Immigration &amp; Multicultural Affairs v Cho [1999] FCA 946 (1999) 92 FCR 315 at [29] , where their Honours said: 'In considering the extent of the requirements imposed by s 425 it is important to keep in mind that the exercise is essentially one of statutory interpretation...Care must be taken not to confuse the question of the interpretation of s 425 according to its language with a question as to whether the full range of natural justice requirements should be injected into s 425 under the guise of giving content to an obligation to afford an "opportunity to give evidence".' 89 In M17/2004 , Ryan J did not refer to this additional passage, although what his Honour said at [61] indicates that he was aware of the requirement for the invitation required by s 425 to be a genuine one. What his Honour there said was: 'I accept the submission advanced on behalf of the Minister that s 425 in its present form requires the Tribunal to issue a genuine invitation to the applicant to appear but does not bear on the procedures to be followed at or after the hearing which results from acceptance of that invitation.'
Case: NALQ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 121
Outcome: cited
At [62], Ryan J quoted from NALQ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 121 at [30] , a passage in which the Full Court recognised that the invitation required by s 425 must be 'real and meaningful and not just an empty gesture', citing both SCAR and Mazhar . The Full Court in NALQ proceeded to discuss earlier authorities on the nature of the invitation required. At [34], there was a discussion of whether the Full Court in SCAR at [37] had misconstrued the judgment of Hely J in Applicant NAHF of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 140 (2003) 128 FCR 359, but the Full Court in NALQ did not determine this question.
Case: Applicant NAHF of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 140 (2003) 128 FCR 359
Outcome: cited
At [62], Ryan J quoted from NALQ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 121 at [30] , a passage in which the Full Court recognised that the invitation required by s 425 must be 'real and meaningful and not just an empty gesture', citing both SCAR and Mazhar . The Full Court in NALQ proceeded to discuss earlier authorities on the nature of the invitation required. At [34], there was a discussion of whether the Full Court in SCAR at [37] had misconstrued the judgment of Hely J in Applicant NAHF of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 140 (2003) 128 FCR 359, but the Full Court in NALQ did not determine this question.
Case: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v WAFJ [2004] FCAFC 5 (2004) 137 FCR 30
Outcome: cited
In Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v WAFJ [2004] FCAFC 5 (2004) 137 FCR 30, the Full Court dealt with a case in which, on more than one occasion, the Refugee Review Tribunal had interrupted the evidence of an applicant for a protection visa, accused him of misbehaving, asserted that his evidence could not be believed, and treated him rudely and with sarcasm, to the point where he was likely to have become upset, confused and distressed, and to have been deflected from the presentation of his case. By majority, the Full Court upheld a judgment of a federal magistrate, setting aside the Refugee Review Tribunal's decision, by reason of denial of procedural fairness. In Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v Maltsin [2005] FCAFC 118 (2005) 88 ALD 304, another Full Court dealt with the case of an applicant for a visa similar to that sought by Ms Antipova. In that case, similarly to this one, the Tribunal announced in the course of the hearing that it did not have sufficient time to hear all the evidence the applicant wished to give. The Tribunal also interrupted the applicant and prevented him from giving details in the course of his evidence. The Tribunal made repeated references to the need to hurry, and to the shortage of available time. It did not hear all the witnesses who had attended for the purpose of giving evidence on behalf of the applicant. The Full Court held that the resulting decision of the Tribunal was the result of jurisdictional error, which involved a denial of procedural fairness.