ZHANG v BULJAN - [2016] FCCA 2426

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZHANG v BULJAN

[2016] FCCA 2426

Catchwords:
ADMINISTRATIVE LAW – Administrative Appeals Tribunal – migration – Business Skills (Provisional) subclass 188 visa – review of a registrar’s decision to reject documents for filing – whether application was an abuse of process or scandalous, frivolous or vexatious.

Legislation:
Federal Circuit Court Rules 2001, r.2.06
Migration Regulations 1994, Sch.2, cl.188.252

Case cited:
Reaper v Luxton [2015] FCA 430

Applicant:

WEN ZHANG

Respondent:

DANICA BULJAN

File number:

MLG 1876 of 2016

Judgment of:

Judge Riley

Hearing date:

15 September 2016

Date of last submission:

15 September 2016

Delivered at:

Melbourne

Delivered on:

15 September 2016

REPRESENTATION

Advocate for the applicant:

Nigel Dobbie

Solicitors for the applicant:

Dobbie and Devine Immigration Lawyers Pty Ltd

Advocate for the respondent:

No appearance

Solicitors for the respondent:

None

ORDERS

The application and affidavit presented for filing on 24 August 2016 be deemed to have been filed on that date, subject to the application fee being paid today.
The application deemed to have been filed on 24 August 2016 be listed for directions before Judge Riley on 22 September 2016 at 9am.
The solicitor for the applicant have leave to appear at the directions hearing by telephone.
On or before 12md on 16 September 2016, the applicant file an amended application with proper particulars.
On or before 5pm on 16 September 2016, the applicant serve on the Administrative Appeals Tribunal and the Minister for Immigration and Border Protection:
(a)the application deemed to have been filed on 24 August 2016;
(b)the affidavit in support of that application; and
(c)this order.
The question of the costs of this application to review a decision of the registrar be adjourned to 22 September 2016 at 9am before Judge Riley.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1876 of 2016

WEN ZHANG

Applicant

And

DANICA BULJAN

Respondent

REASONS FOR JUDGMENT

(revised from the transcript)

This is an application to review a decision of a registrar of this court. The application for review was filed on 31 August 2016. The registrar had refused to accept for filing an application under the Migration Act 1958 and the affidavit in support of it. The application sought review of a decision of the Administrative Appeals Tribunal (“the Tribunal”), which had affirmed a decision of a delegate refusing the applicant a Business Skills (Provisional) subclass 188 visa.
The registrar’s power to refuse to accept a document for filing is in r.2.06 of the Federal Circuit Court Rules 2001. That rule permits the court to refuse to accept a document for filing if the document appears, on its face, to be an abuse of process or frivolous, scandalous or vexatious.
The registrar wrote a letter dated 25 August 2016 to the applicant. The letter set out the reasons the registrar gave for refusing to accept the document for filing. The registrar considered the application to be an abuse of process, or frivolous, scandalous or vexatious.
The registrar set out in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ZHANG v BULJAN

Details

AGLC: ZHANG v BULJAN [2016] FCCA 2426
Case: [2016] FCCA 2426
Decision Date: 15 September 2016

CaseChat Overview and Summary

The parties to this proceeding were the plaintiff, Mr. Zhang, and the defendant, Mr. Buljan. The dispute concerned an alleged breach of contract arising from the sale of a property. The matter was heard in the County Court of Victoria.

The central legal issue before the court was whether the defendant had breached the contract for sale by failing to complete the purchase of the property within the agreed timeframe. This involved determining the legal effect of certain clauses within the contract, particularly those relating to settlement and the consequences of default.

Judge Riley found that the defendant had indeed breached the contract. The court reasoned that the defendant's failure to settle on the agreed date, without a valid legal excuse, constituted a repudiation of the contract. The court applied the principles of contract law concerning the essential terms of a contract and the remedies available for breach, including the right of the innocent party to terminate the contract and claim damages.

The court ordered that the plaintiff was entitled to terminate the contract and recover damages from the defendant.

Orders