mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478
Outcome: cited
Full Court referred to the principles laid down in Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478; Attorney-General v Wentworth (1988) 14 NSWLR 481; Jones v Skyring [1992] HCA 39 ; (1992) 109 ALR 303; Horvath v Commonwealth Bank of Australia [1999] FCA 504 ; Commonwealth Bank of Australia v Heinrich [2003] FCA 540 ; and Granich &amp; Associates v Yap [2004] FCA 1567. It held that these cases accurately reflected the law on Order 21 r 2.
Case: Jones v Skyring [1992] HCA 39 ; (1992) 109 ALR 303
Outcome: cited
Full Court referred to the principles laid down in Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478; Attorney-General v Wentworth (1988) 14 NSWLR 481; Jones v Skyring [1992] HCA 39 ; (1992) 109 ALR 303; Horvath v Commonwealth Bank of Australia [1999] FCA 504 ; Commonwealth Bank of Australia v Heinrich [2003] FCA 540 ; and Granich &amp; Associates v Yap [2004] FCA 1567. It held that these cases accurately reflected the law on Order 21 r 2.
Case: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589
Outcome: applied
Singh is therefore confronted with the fact that, by reason of his failure to read the SSAT's reasons for decision, or to have them translated to him, he did not raise, on merits review, an argument that would have been open to him. This brings into play the estoppel discussed in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589. There the High Court accepted as correct the extended principle expressed by Sir James Wigram VC in Henderson v Henderson (1843) 3 Hare 100 at 115; (1843) 67 ER 313 at 319: "where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time." In Anshun , the Court found that the principle laid down in Henderson extended beyond res judicata. That broader form of estoppel applies to this case. I note that Ryan J, in his reasons for directing non-acceptance of process given on 8 March 2006, relied upon Anshun . Had Mr Singh read the 13 May 2002 reasons for decision, he would have seen the sentence to which he now objects. He could then, as part of ordinary merits review, have challenged the correctness of the assertion contained within it, and arguably gained some support for his broader challenge to the 4 November 1999 decision. His failure to read the reasons for decision, whether through "negligence, inadvertence or even accident" led to his not having raised the point at a time when something could have been done about it. He cannot now, years later, having failed at all stages to demonstrate relevant legal error, come back to the Tribunal, and thence to this Court, with a point that should have been raised long before this.
Case: Ramsey v Skyring (1999) 164 ALR 378
Outcome: cited
42B(1)(b) must be applied having regard to a fundamental principle of the rule of law. Every person has a right to apply to a tribunal, or a court, to seek remedies in consequence of an alleged infringement of his or her rights. Because a direction given under s 42B(1)(b) denies a person this right, it is a remedy that should not be invoked except in an extreme case. See generally Ramsey v Skyring (1999) 164 ALR 378 at 389-91 (per Sackville J).
Case: Secretary, Department of Social Security v Cunneen [1997] FCA 1033 ; (1997) 78 FCR 576
Outcome: referred to
Tribunal summarised Mr Singh's contentions as follows. He claimed that the application that he brought before the SSAT differed from his earlier applications because it raised a new and different issue, namely whether the payment of $129,382.87 (which he received as a lump sum) was a "lump sum compensation payment" or whether it was "arrears payments for the social security purposes". He further claimed that he was seeking, by the current proceedings, to have determined whether a decision of the Federal Court, Secretary, Department of Social Security v Cunneen [1997] FCA 1033 ; (1997) 78 FCR 576, was correct. The Tribunal concluded that Mr Singh was attempting again to review decisions that had previously been made by Centrelink, by the Tribunal itself, by the Federal Magistrates Court and by this Court regarding his compensation recovery. It found that Mr Singh believed that he had a right to bring this latest proceeding because he was of the view that there had been a "conspiracy and fraud on the part of Centrelink and the Insurer". The Tribunal referred to the various documents lodged by Mr Singh, noting that they contained inflammatory and derogatory references regarding the conduct of officers of Centrelink, the Workers' Compensation insurer and his former solicitors. According to the Tribunal, Mr Singh alleged conspiracy, lies, fraud, betrayal of trust, deception and that innocent injured workers had been cheated. The Tribunal noted that s 42B of the AAT Act was rarely invoked. It referred to dictionary definitions of the terms "frivolous" and "vexatious" and said (at [35]): "I am of the view, having regard to the history of the proceedings initiated by Mr Singh, that his intended application is in fact both frivolous and vexatious."
Case: Singh v Secretary, Dept of Family &amp; Community Services [2001] FCA 1281
Outcome: referred to
Singh then appealed to the Full Court of the Federal Court seeking to revoke the orders made by consent by Finkelstein J. That appeal was dismissed by Beaumont, Kiefel and Hely JJ on 21 September 2001: Singh v Secretary, Dept of Family &amp; Community Services [2001] FCA 1281. Following further requests from Mr Singh, Centrelink wrote to him on 22 January 2002 stating that it had reviewed his case and decided not to change its decision to recover a compensation debt of $88,633.34. Mr Singh asked that the matter be referred to an authorised review officer. On 4 February 2002, an authorised review officer informed Mr Singh that he had no power to review the matter as it had already been reviewed by the SSAT, as well as the Tribunal itself. Mr Singh then lodged a further application with the SSAT on 19 February 2002. The SSAT decided on 13 May 2002 to again affirm the decision under review.
Case: Singh v DFCS [2003] FMCA 566
Outcome: referred to
Singh then lodged a further appeal to the Tribunal, which on 17 December 2002 affirmed the decision of the SSAT dated 13 May 2002. On 2 January 2003, Mr Singh appealed to the Federal Court seeking to set aside the Tribunal's decision of 17 December 2002. On 19 March 2003, I ordered that Mr Singh's application be transferred to the Federal Magistrates Court. On 5 December 2003, Hartnett FM dismissed the appeal with costs: Singh v DFCS [2003] FMCA 566. Mr Singh appealed to the Federal Court, and the appeal was heard by Gray J. On 23 December 2004, his Honour dismissed the appeal with costs: S ingh v Secretary, Department of Family and Community Services (Centrelink) [2004] FCA 1685. On 9 September 2005, the High Court dismissed an application for special leave to appeal, with costs: Singh v Secretary, Dept of Family and Community Services (Centrelink) [2005] HCATrans 759.
Case: Singh v Secretary, Department of Family &amp; Community Services [2004] FCA 1685
Outcome: referred to
is necessary to set out something of the background to this matter. Gray J summarised a large part of that background in his judgment dated 23 December 2004: Singh v Secretary, Department of Family &amp; Community Services [2004] FCA 1685. The Tribunal also summarised the history of this matter in its decision dated 3 July 2006. Mr Singh was born in 1950. He was employed by the Public Transport Corporation from 1983, initially as a tram conductor, and later as a tram driver. On 2 January 1991, Mr Singh suffered a work-related injury, which resulted in an ongoing medical condition. Between 12 June 1991 and 30 November 1993, following an admission of liability, Mr Singh received weekly compensation payments from an insurer, pursuant to the Accident Compensation Act 1985 (Vic). Mr Singh then lodged a further appeal to the Tribunal, which on 17 December 2002 affirmed the decision of the SSAT dated 13 May 2002. On 2 January 2003, Mr Singh appealed to the Federal Court seeking to set aside the Tribunal's decision of 17 December 2002. On 19 March 2003, I ordered that Mr Singh's application be transferred to the Federal Magistrates Court. On 5 December 2003, Hartnett FM dismissed the appeal with costs: Singh v DFCS [2003] FMCA 566. Mr Singh appealed to the Federal Court, and the appeal was heard by Gray J. On 23 December 2004, his Honour dismissed the appeal with costs: S ingh v Secretary, Department of Family and Community Services (Centrelink) [2004] FCA 1685. On 9 September 2005, the High Court dismissed an application for special leave to appeal, with costs: Singh v Secretary, Dept of Family and Community Services (Centrelink) [2005] HCATrans 759.
Case: Singh v Secretary, Department of Family and Community Services [2005] FCA 1625
Outcome: referred to
Singh then filed a notice of motion in this Court seeking to set aside the reasons for judgment and the orders of Gray J made on 23 December 2004. On 24 October 2005, Gray J dismissed the motion, with costs: Singh v Secretary, Department of Family and Community Services [2005] FCA 1625.
Case: Hughes Motor Service Pty Ltd v Wang Computer Pty Ltd (1978) 35 FLR 346
Outcome: applied
The relevant power of the Court to control its own proceedings has been considered in Hughes Motor Service Pty Ltd v Wang Computer Pty Ltd (1978) 35 FLR 346 (' Wang ') at 351 to 354, and Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd (1992) 34 FCR 287 (' Sterling Pharmaceuticals '). As McClelland CJ in Equity said in Tamas v Silver Beach Resort Pty Ltd (unreported, NSWSC, 13 July 1994): 'a party bringing proceedings is entitled to have them dealt with and heard in the ordinary course of the Court's business unless some strong countervailing consideration can be demonstrated'. 16 In Wang , Bowen CJ stressed that, where a public regulator is seeking an injunction to restrain conduct which might mislead or deceive members of the public generally (and, I would interpolate, a relevant section or sections of the public, even if numerically small), 'the weight of public interest in the scales in favour of rejecting an application for a stay would be very heavy.' 17 There are legitimate public interest considerations to be ventilated, and possibly vindicated, in these proceedings and, while not overlooking the inconvenience for the respondents of having to fight on a number of fronts, and the expense and difficulty of so doing, it seems to me that the justification for a stay has not, on a balance of relevant factors, been made out. 18 Accordingly, I reject the application for a stay with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate: Dated: 29 March 2006 Counsel for the Applicants: Ms N Sharp Solicitor for the Applicants: Corrs Chambers Westgarth Solicitor for the Respondents: Ramrakha Jenkins Date of Hearing: 21 March 2006 Date of Judgment: 21 March 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/302.html
Case: Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd (1992) 34 FCR 287
Outcome: followed
The relevant power of the Court to control its own proceedings has been considered in Hughes Motor Service Pty Ltd v Wang Computer Pty Ltd (1978) 35 FLR 346 (' Wang ') at 351 to 354, and Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd (1992) 34 FCR 287 (' Sterling Pharmaceuticals '). As McClelland CJ in Equity said in Tamas v Silver Beach Resort Pty Ltd (unreported, NSWSC, 13 July 1994): 'a party bringing proceedings is entitled to have them dealt with and heard in the ordinary course of the Court's business unless some strong countervailing consideration can be demonstrated'. 15 In Sterling Pharmaceuticals at 291, Lockhart J sought to provide something of a check-list of matters that might be considered. These included the priority in point of time of the institution of the different proceedings; whether the termination of one proceeding was likely to have a material effect on the other; the public interest; the undesirability of waste of time and effort; and of course, costs, if substantially the same issues were to be ventilated in actions in different courts; the general policy of the law discouraging multiplicity of proceedings in relation to similar issues; and, as his Honour said, '[g]enerally balancing the advantages and disadvantages to each party'.
Case: Tamas v Silver Beach Resort Pty Ltd (unreported, NSWSC, 13 July 1994)
Outcome: followed
The relevant power of the Court to control its own proceedings has been considered in Hughes Motor Service Pty Ltd v Wang Computer Pty Ltd (1978) 35 FLR 346 (' Wang ') at 351 to 354, and Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd (1992) 34 FCR 287 (' Sterling Pharmaceuticals '). As McClelland CJ in Equity said in Tamas v Silver Beach Resort Pty Ltd (unreported, NSWSC, 13 July 1994): 'a party bringing proceedings is entitled to have them dealt with and heard in the ordinary course of the Court's business unless some strong countervailing consideration can be demonstrated'.
Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162
Outcome: referred to
Section 424A of the Act is one of a number of provisions designed to accord what might be described as "statutory procedural fairness" to applicants before the Tribunal. Relevantly its purpose was explained by Gummow J in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at 191 as follows: "[116] Paragraph (b) of s 424A(3) relieves the RRT from what otherwise might be an obligation to give particulars of information already supplied by the applicant for the purpose of the application. In Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 at 34, 38-39, the Full Court indicated that the subject matter of the exception is information provided by the applicant for review by statutory declaration under para (a) of s 423(1) and in response to an invitation by the RRT under s 424(2). That construction was not challenged on this appeal and should be accepted. [117] ... [118] What can be stated is that the evident object of s 424A is that, with the qualifications and exceptions just mentioned, fairness to the applicant is to be provided by alerting the applicant to adverse material and affording an opportunity to comment upon it. In Al Shamry, Merkel J correctly observed: " Section 424A does not require the RRT to provide to an applicant all of the information upon which it proposed to act, other than information provided by an applicant for the purpose of the review. Rather, the section requires the RRT to provide the applicant with "particulars of any information" that the RRT considers would form part of its reasons for refusing the application for review, to explain to the applicant why that information is relevant to the review and to invite a response to it" See also at 175 [50] per McHugh J.
Case: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214
Outcome: cited
The respondent Minister contends that, even if the Tribunal has failed to meet its obligations under s 424A of the Act , it should be held that it was, in any event, not obliged to comply with s 424A(1) because it was relieved of that obligation, in respect of the relevant item of information, by the terms of s 424A(3)(b). That provision stipulates that s 424A(1) does not apply to information "... that the applicant gave for the purpose of the application ..." The question then becomes one of identification: precisely what information was given by a particular applicant to the Tribunal that the Tribunal considers would be the reason or part of the reason for affirming the decision under review? The relevant application is the application to the Tribunal not the earlier application for a protection visa: see SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214. One can readily understand the purpose of a provision such as s 424A(3)(b) where an applicant has given the Tribunal information which is adverse to his or her interests. It is not as readily apparent that such an exemption is intended to apply in circumstances in which the Tribunal determines that it does not accept such a claim and proposes to reject it. 23 In NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at 435 Young J (with whom Gyles and Stone JJ agreed) drew attention to "the importance of giving careful consideration to the nature of the information that is said to fall within s 424A(3)(b) and the circumstances in which it is communicated to, or elicited by, the Tribunal." Although there are some decisions of the Court (see for example VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (which maybe understood as supporting the view that omissions from an applicant's account do not constitute "information" for the purposes of s 424A of the Act , the weight of authority supports the conclusion reached by Weinberg J in NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 174 ; (2006) 156 FCR 205 at 212-3 that: "There is no reason in principle why such an omission (which the Tribunal views as important, and which is plainly adverse to the applicant's case) should be treated any differently, when it comes to s 424A , than a positive statement. This is particularly so when, as the Tribunal seems to have done here, it treats the omission as though it provides implicit support for a positive assertion that is detrimental to an applicant's case. It makes no difference whether the omission is to be found in a prior statement of an applicant or, as in this case, in a statement provided by a third party." See also SZEEU at 252, 262-263; SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 at [72] .
Case: NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419
Outcome: referred to
In NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at 435 Young J (with whom Gyles and Stone JJ agreed) drew attention to "the importance of giving careful consideration to the nature of the information that is said to fall within s 424A(3)(b) and the circumstances in which it is communicated to, or elicited by, the Tribunal." Although there are some decisions of the Court (see for example VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (which maybe understood as supporting the view that omissions from an applicant's account do not constitute "information" for the purposes of s 424A of the Act , the weight of authority supports the conclusion reached by Weinberg J in NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 174 ; (2006) 156 FCR 205 at 212-3 that: "There is no reason in principle why such an omission (which the Tribunal views as important, and which is plainly adverse to the applicant's case) should be treated any differently, when it comes to s 424A , than a positive statement. This is particularly so when, as the Tribunal seems to have done here, it treats the omission as though it provides implicit support for a positive assertion that is detrimental to an applicant's case. It makes no difference whether the omission is to be found in a prior statement of an applicant or, as in this case, in a statement provided by a third party." See also SZEEU at 252, 262-263; SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 at [72] .
Case: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
Outcome: cited
In NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at 435 Young J (with whom Gyles and Stone JJ agreed) drew attention to "the importance of giving careful consideration to the nature of the information that is said to fall within s 424A(3)(b) and the circumstances in which it is communicated to, or elicited by, the Tribunal." Although there are some decisions of the Court (see for example VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (which maybe understood as supporting the view that omissions from an applicant's account do not constitute "information" for the purposes of s 424A of the Act , the weight of authority supports the conclusion reached by Weinberg J in NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 174 ; (2006) 156 FCR 205 at 212-3 that: "There is no reason in principle why such an omission (which the Tribunal views as important, and which is plainly adverse to the applicant's case) should be treated any differently, when it comes to s 424A , than a positive statement. This is particularly so when, as the Tribunal seems to have done here, it treats the omission as though it provides implicit support for a positive assertion that is detrimental to an applicant's case. It makes no difference whether the omission is to be found in a prior statement of an applicant or, as in this case, in a statement provided by a third party." See also SZEEU at 252, 262-263; SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 at [72] .