07 Jun

Posted at 03:41h in FCAFC

Catchwords: MIGRATION – appeal from decision of Federal Court of Australia dismissing application for review of decision of Administrative Appeals Tribunal not to revoke cancellation of applicant’s visa – material submitted by partner of applicant outside time period prescribed by s 500(6J) of Migration Act 1958 (Cth) – whether decision of Tribunal not to adjourn review hearing denied applicant procedural fairness or was legally unreasonable – whether Tribunal misunderstood its task by failing to correctly construe procedural fairness provisions in Administrative Appeals Tribunal Act 1975 (Cth) – consideration of whether alleged errors material to outcome of Tribunal’s review – appeal dismissed ...

07 Jun

Posted at 03:41h in FCAFC

Catchwords: EVIDENCE – privilege against self-incrimination – where disclosure order in connection with freezing orders required disclosure of worldwide assets – where respondent objected to disclosure of certain information on the basis that it may tend to incriminate and filed a privilege affidavit under s 128A(2) of the Evidence Act 1995 (Cth) (Evidence Act) – where respondent applied for return of privilege affidavit – construction of s 128A of the Evidence Act – onus of proof under s 128A(6) of the Evidence Act – whether primary judge erred in finding that the interests of justice did not require disclosure of the information in the privilege affidavit – interests of justice did not require disclosure ...

06 Jun

Posted at 04:02h in NSWCA

Catchwords: CIVIL PROCEDURE – Court of Appeal – application –assignment to the Court of Appeal for the punishment of contempt of the Court – assignment to the Court of Appeal of such matters as are necessary or convenient for the discharge of functions of the Court – notice of motion remitted to the Common Law Division of the Supreme Court CONTEMPT – Criminal contempt – contempt in the face of the court – here appellant was assaulted by first respondent at the appellant’s home far away from the court ...

05 Jun

Posted at 03:17h in NSWCA

Catchwords: APPEALS – interlocutory orders – appeal pending to High Court from permanent stay of one representative proceeding – interlocutory orders made in competing representative proceeding – whether House v King error in making orders which would render High Court appeal nugatory CIVIL PROCEDURE – representative proceedings – Pt 10 Civil Procedure Act 2005 (NSW) – orders and notices advising group members of representative plaintiff’s and defendants’ joint intention to apply for orders excluding group members who fail to register from participating in any settlement – whether orders beyond power – whether orders distinguishable from Haselhurst v Toyota Motor Corporation Australia Ltd [2020] NSWCA 66 ...

05 Jun

Posted at 03:17h in FCAFC

Catchwords: MIGRATION – appeal from Federal Circuit Court – judicial review of an international treaty obligations assessment (ITOA) undertaken in respect of the appellant – whether the appellant was afforded procedural fairness in the ITOA process – where documents containing country information were not put to the appellant – no denial of procedural fairness – whether ITOA assessor applied the wrong standard – correct inference to determine the content of the instructions given to the ITOA assessor – ITOA assessor applied the correct standard – appeal dismissed. ...

04 Jun

Posted at 03:27h in HCA

Catchwords: Criminal practice – Appeal – Crown appeal against sentence – Where appellant sentenced on pleas of guilty to six offences arising out of course of commercial dealing in cannabis plant material and MDMA – Where prosecution appealed against sentence on ground of manifest inadequacy – Where three-member Bench of Court of Criminal Appeal ("CCA") heard appeal and announced intention to allow appeal but referred relevant question of statutory construction to five‑member Bench – Where eleven months after initial hearing, CCA delivered judgment of five-member Bench, then immediately re-constituted to deliver judgment of three-member Bench, allowing appeal and re-sentencing to increased term of imprisonment – Where appellant not given opportunity to place material before CCA as to progress in custody, nor make submissions on re-sentence or dismissal of appeal in exercise of "residual discretion" – Whether CCA failed to accord appellant procedural fairness in conduct of hearing of appeal against sentence – Whether CCA erred in determining to allow appeal against sentence when all circumstances relevant to exercise of "residual discretion" not yet known – Whether matter should be remitted to CCA for re-sentencing of appellant. Words and phrases – "aggregate sentence", "Crown appeal against sentence", "delay in the appeal process", "discretionary factors against allowing the Crown appeal", "imminence of the offender's release", "manifestly inadequate", "procedural fairness", "proper exercise of discretion", "re‑sentencing exercise", "residual discretion". ...