case_text: of pre-commencement decisions in relation to transitional (permanent) visas and transitional (temporary) visas (1) To avoid doubt, any decision made or purported to have been made: (a) by the Minister under section 501, 501A, 501B, 501C or 501F of the Migration Act 1958 (as in force at any time on or after 1 September 1994 and before the day on which this item commences) before the day on which item 5 of this Schedule commences; or (b) by a delegate of the Minister under section 501 of the Migration Act 1958 (as in force at any time on or after 1 September 1994 and before the day on which this item commences) before the day on which item 5 of this Schedule commences; to cancel a transitional (permanent) visa or a transitional (temporary) visa is as valid, and is taken always to have been as valid, as it would have been if the transitional (permanent) visa or transitional (temporary) visa were a visa that had been granted. (2) In subitem (1): transitional (permanent) visa means a transitional (permanent) visa referred to in the Migration Reform (Transitional Provisions) Regulations. transitional (temporary) visa means a transitional (temporary) visa referred to in the Migration Reform (Transitional Provisions) Regulations." GROUNDS OF REVIEW Mr Toro Martinez argued that the decision of the tribunal involved a jurisdictional error and therefore was to be regarded as no decision at all ( Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 506 [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ) on the following bases: (1) The only correct or preferable decision at which it could have arrived was that the decision should be set aside because the visa had not been granted or taken to be granted for the purposes of s 501 having regard to the law later laid down in Sales [2008] FCAFC 132 ; 171 FCR 56. (2) The tribunal ignored relevant considerations by failing to have regard to: (a) the impact on Mr Toro Martinez's daughter as revealed in her interview with the Department in June 2001, and her letter to the Department in July 2007 because it referred only to a letter she had written on 15 April 2008 in concluding that she would suffer some emotional hardship from his removal; and (b) the conclusion of the Department's International Obligations and Humanitarian Concerns Assessment that, because of the poor overall security situation in Columbia, it would be unreasonable to expect Mr Toro Martinez's fiancée or his daughter to leave the relative safety of Australian society and accompany him to Columbia. (3) The tribunal reached a conclusion not open on the evidence before it, namely that Mr Toro Martinez would face no serious danger of personal harm by returning to Columbia because, first, the International Obligations and Humanitarian Concerns Assessment had identified that other States were choosing not to return persons involuntarily to Columbia and, secondly, there were multiple human rights violations there. (4) Direction No 21 made by the Minister under s 499 of the Act was invalid because it went beyond the giving of directions or interfered with the unfettered discretion of a decision-maker under s 501(2). (5) The tribunal applied Direction No 21 by obeying its requirements to give prominence or weight to matters as primary considerations and thus failed to have regard to all of the relevant circumstances, according them appropriate weight as it saw fit. (6) The tribunal failed to accord procedural fairness because it did not give Mr Toro Martinez any opportunity, let alone a reasonable opportunity, to inspect documents to which it proposed to have regard in reaching its decision in contravention of s 39(1) of the Administrative Appeals Tribunal Act 1975 (Cth) or alternatively its common law obligation to accord him procedural fairness. Ground 1 Mr Toro Martinez argued that item 7 expressly referred to two classes of decision, first, those by the Minster made under identified sections of the Act (item 7(1)(a)) and secondly, by a delegate of the Minister made under only s 501 (item 7(1)(b)). He pointed out that in the 2008 amendment there was no reference to decisions made by the tribunal. He argued that if the Minister wished now to cancel a visa that previously had not been cancelled validly, he could do so under the new s 501HA. But, the Minister wished to have the legislation construed so as to make valid a decision of the tribunal which, at the time it was given, was not a decision at all because of its jurisdictional error in affirming a decision that could not have been made under s 501 ( Plaintiff S157 211 CLR at 506 [76]). Mr Toro Martinez argued that for this result to ensue clear words of necessary intendment were required, and the Parliament had not used them. He argued that all item 7(1) did was to restore validity to the delegate's decision. But, he contended, this did not affect the legal status of the tribunal's invalid decision. He argued that regardless of whether the decision of the delegate was valid or invalid, in reviewing that decision the tribunal was exercising an independent function under s 43 of the Administrative Appeals Tribunal Act .


case_outcome: cited

case_text: J observed in Re Macks; Ex parte Saint [2000] HCA 62 ; (2000) 204 CLR 158 at 203 [115] that the use of the phrase "as if" always introduces a fiction or a hypothetical contrast, deeming something to be what it is not. The use of phrases such as "is taken to be" and "as if" in legislative provisions like item 7 is "...a convenient device for reducing the verbiage of an enactment": R v Hughes (2000) 202 CLR 535 at 551 [24]. But, as Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ added ( Hughes 202 CLR at 551 [24]): "Perhaps, paradoxically, it is to be expected that this very lack of verbiage will give rise to various textual awkwardness."


case_outcome: followed

case_title: Re Brian Lawlor Automotive and Collector of Customs (NSW) (1978) 1 ALD 167

case_text: the contrasting position, that has actually occurred, the tribunal decided that the correct and preferable decision was the one arrived at by the delegate. It would be an odd result if item 7 operated to validate the latter decision but had no effect on the former. The natural and ordinary meaning of item 7 is that it validates certain decisions of the Minister and his delegates. If it cannot, and in its terms does not, undo other decisions, such as those of the tribunal, I am of opinion that item 7 should not be read to validate other decisions to which it is not expressly directed. However as Brennan J said in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 at 175-176 in a passage approved by Hayne and Heydon JJ in Shi 235 CLR 315 [100]. "A decision by the Tribunal pursuant to s 43(1)(a) to affirm the original decision leaves the original decision intact, and this is the only decision which takes effect under the enactment: the original powers are not drawn upon by the Tribunal's order. Equally, a decision to set aside the decision under review and remit the matter for reconsideration pursuant to s 43(1)(c)(ii) requires the original repository of the powers and discretions to exercise them afresh: they are not exercised by the Tribunal. Section 43(1) grants the original powers and discretions to the Tribunal, but it does not require the Tribunal to exercise them unless the Tribunal is making a fresh order the effectiveness of which depends upon their exercise."


case_outcome: discussed

case_title: Re Macks; Ex parte Saint [2000] HCA 62 ; (2000) 204 CLR 158


case_text: provisions that do create fictions must be carefully construed. The purpose for which the legislature introduced the fiction must be identified by the Court: Muller v Dalgety & Co Ltd [1909] HCA 67 ; (1909) 9 CLR 693 at 696 per Griffith CJ; Hunter Douglas Australia Pty Ltd v Perma Blinds (1970) 122 CLR 49 at 65 per Windeyer J; see too Redland Shire Council v Stradbroke Rutile Pty Ltd [1974] HCA 4 ; (1974) 133 CLR 641 at 655 per Gibbs J. The curative effect of legislative provisions using the statutory fictions created by phrases such as those used in item 7 will usually operate only on the source of invalidity identified in the enactment: cf: Yougarla v Western Australia [2001] HCA 47 ; (2001) 207 CLR 344 at 368 [60] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.


case_text: as a result of the subsequent decision of the Full Court of this Court in Sales v Minister for Immigration and Citizenship [2008] FCAFC 132 ; (2008) 171 FCR 56 , it is common ground that Mr Toro Martinez's visa was in a class of visa that was not then capable of cancellation under s 501(2). This was because the visa did not meet the description in s 501(2) of a visa "... that has been granted to a person". The Full Court held that the legislative scheme providing for the conversion of Mr Toro Martinez's permanent entry permit into a transitional (permanent) visa did not involve any grant of that visa to him. If a person was the holder of a permanent entry permit immediately before 1 September 1994 then reg (4)(1) of the Migration Reform (Transitional Provisions) Regulations 1994 provided that "... that entry permit continues in effect on and after 1 September 1994 as a transitional (permanent) visa that permits the holder to remain indefinitely in Australia". The source of Mr Toro Martinez's visa was his permanent entry permit which was continued in effect as a visa by force of reg 4. Accordingly, it is common ground that the decision of the delegate of the Minister made on 10 March 2008 to cancel Mr Toro Martinez's visa under s 501(2) was invalid since the Minister had no power to cancel a visa that had not, in fact, been granted. The consequence of the decision in Sales [2008] FCAFC 132 ; 171 FCR 56 was that the only correct and preferable decision which the tribunal could have made at the time it acted was to set aside the decision under review, because there was no power to make it in the first place. Mr Toro Martinez applied promptly to this Court to review the decision of the tribunal. Before any hearing of the application to the Court, the Minister accepted that the decision in Sales [2008] FCAFC 132 ; 171 FCR 56 applied equally to Mr Toro Martinez, because the original decision to cancel his visa had no force or effect. The Department of Immigration and Citizenship wrote to Mr Toro Martinez and informed him of this outcome. The letter warned him that the legislative position may change. He was released from immigration detention. Consequently, on 26 August 2008 Mr Toro Martinez filed a notice of discontinuance of his application in the Court. Next, the Parliament enacted the Migration Legislation Amendment Act (No 1) 2008 which inserted s 501HA into the Act. The purpose of that provision was to reverse Sales [2008] FCAFC 132 ; 171 FCR 56 as it applied to decisions taken after the day on which the amendment commenced, being 19 September 2008 (see Schedule 4, items 5 and 6(iii)). In item 7 of Schedule 4 of the 2008 amendment the Parliament provided that any decision to cancel a transitional permanent visa made or purporting to have been made by the Minister or a delegate before 19 September 2008 was deemed to be valid. Mr Toro Martinez was then returned to immigration detention and filed a fresh application challenging the tribunal's decision. On 5 December 2008 Emmett J dismissed that application as incompetent ( Martinez v Minister for Immigration and Citizenship (No 2) [2008] FCA 1995) but his Honour granted leave to Mr Toro Martinez to withdraw his notice of discontinuance in these proceedings since the Minister did not oppose this course. His Honour also made directions in these proceedings: Martinez v Minister for Immigration and Citizenship [2008] FCA 1994. What the 2008 amendment meant in the context of a person in Mr Toro Martinez's position is the principal ground of the present amended application. It is necessary to set out the relevant items of the Schedule in the 2008 amendment in order to understand the argument: " 5 After section 501H Insert: 501HA Application of sections 501 to 501H to transitional (permanent) visas and transitional (temporary) visas If, under the Migration Reform (Transitional Provisions) Regulations, a person: (a) held a permanent return visa, permanent entry permit or permanent visa that continues in effect as a transitional (permanent) visa; or (b) held a temporary entry permit or temporary visa that continues in effect as a transitional (temporary) visa; or (c) is taken to hold a transitional (permanent) visa; the person is also taken, for the purposes of sections 501 to 501H, to have been granted a visa. 6 Application (1) The amendment made by item 2 of this Schedule applies in respect of a person who has been granted: (a) a bridging visa (within the meaning of the Migration Act 1958 ); or (b) a criminal justice visa (within the meaning of that Act); on or after the day on which that item commences. (2) The amendment made by item 4 of this Schedule applies in relation to an authorised recipient, whether the notice under subsection 494D(1) of the Migration Act 1958 in relation to the authorised recipient is given before, on or after the day on which that item commences. (3) The amendment made by item 5 of this Schedule applies in respect of a decision to cancel a visa that is made under the Migration Act 1958 on or after the day on which that item commences. Validation of pre-commencement decisions in relation to transitional (permanent) visas and transitional (temporary) visas (1) To avoid doubt, any decision made or purported to have been made: (a) by the Minister under section 501, 501A, 501B, 501C or 501F of the Migration Act 1958 (as in force at any time on or after 1 September 1994 and before the day on which this item commences) before the day on which item 5 of this Schedule commences; or (b) by a delegate of the Minister under section 501 of the Migration Act 1958 (as in force at any time on or after 1 September 1994 and before the day on which this item commences) before the day on which item 5 of this Schedule commences; to cancel a transitional (permanent) visa or a transitional (temporary) visa is as valid, and is taken always to have been as valid, as it would have been if the transitional (permanent) visa or transitional (temporary) visa were a visa that had been granted. (2) In subitem (1): transitional (permanent) visa means a transitional (permanent) visa referred to in the Migration Reform (Transitional Provisions) Regulations. transitional (temporary) visa means a transitional (temporary) visa referred to in the Migration Reform (Transitional Provisions) Regulations." GROUNDS OF REVIEW Mr Toro Martinez argued that the decision of the tribunal involved a jurisdictional error and therefore was to be regarded as no decision at all ( Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 506 [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ) on the following bases: (1) The only correct or preferable decision at which it could have arrived was that the decision should be set aside because the visa had not been granted or taken to be granted for the purposes of s 501 having regard to the law later laid down in Sales [2008] FCAFC 132 ; 171 FCR 56. (2) The tribunal ignored relevant considerations by failing to have regard to: (a) the impact on Mr Toro Martinez's daughter as revealed in her interview with the Department in June 2001, and her letter to the Department in July 2007 because it referred only to a letter she had written on 15 April 2008 in concluding that she would suffer some emotional hardship from his removal; and (b) the conclusion of the Department's International Obligations and Humanitarian Concerns Assessment that, because of the poor overall security situation in Columbia, it would be unreasonable to expect Mr Toro Martinez's fiancée or his daughter to leave the relative safety of Australian society and accompany him to Columbia. (3) The tribunal reached a conclusion not open on the evidence before it, namely that Mr Toro Martinez would face no serious danger of personal harm by returning to Columbia because, first, the International Obligations and Humanitarian Concerns Assessment had identified that other States were choosing not to return persons involuntarily to Columbia and, secondly, there were multiple human rights violations there. (4) Direction No 21 made by the Minister under s 499 of the Act was invalid because it went beyond the giving of directions or interfered with the unfettered discretion of a decision-maker under s 501(2). (5) The tribunal applied Direction No 21 by obeying its requirements to give prominence or weight to matters as primary considerations and thus failed to have regard to all of the relevant circumstances, according them appropriate weight as it saw fit. (6) The tribunal failed to accord procedural fairness because it did not give Mr Toro Martinez any opportunity, let alone a reasonable opportunity, to inspect documents to which it proposed to have regard in reaching its decision in contravention of s 39(1) of the Administrative Appeals Tribunal Act 1975 (Cth) or alternatively its common law obligation to accord him procedural fairness. Ground 1 Do the words in item 7 "... is taken always to have been as valid" have a retrospective operation so as to deny that the tribunal made any jurisdictional error? Mr Toro Martinez filed his notice of discontinuance in this Court on 26 August 2008, more than three weeks before item 7 came into operation as a law of the Commonwealth. Thus, it could not be said that the enactment of item 7 affected these proceedings at the time as pending or current litigation. The evident intention of the 2008 amendment was to validate earlier decisions to cancel visas that had not been "granted" but were nonetheless operative. Those visas were in the category that the judgment in Sales [2008] FCAFC 132 ; 171 FCR 56 had revealed could not fall within the then statutory powers of cancellation. Item 7 in the 2008 amendment is capable of operating in a manner that infringes the liberty of persons whose visas had been purportedly cancelled under decisions of the Minister or a delegate that were invalid for reasons given in Sales [2008] FCAFC 132 ; 171 FCR 56. The item is intended to restore the legal force of those decisions. The Minister argued that because item 7 has the effect of validating the delegate's decision retrospectively, the necessary consequence is that the tribunal's decision is also validated. That followed, he contended, because the tribunal's affirmation of the delegate's decision never operated (unlike the case prior to the 2008 amendment) on a valid decision of the delegate to cancel Mr Toro Martinez's visa even though it was not a visa that had been granted. In effect, the Minister argued that the words in item 7 "... is as valid, and is taken always to have been as valid, as it would have been" not only validated the delegate's decision that had previously been invalid, but changed the status in law of the tribunal's decision. Here, the decision of the tribunal was affected by jurisdictional error at the time it was made on 19 June 2008. In my opinion the decision of the tribunal was no decision at all. The Tribunal had not made a decision in accordance with s 43 of the Administrative Appeals Tribunal Act , because the only correct and preferable decision to which it could have arrived on 19 June 2008 was to set aside the decision to cancel the visa as not having been a decision made in accordance with s 501. The visa had never been grated to Mr Toro Martinez and was therefore outside the reach of s 501(2): Sales [2008] FCAFC 132 ; 171 FCR 56. The 2008 amendment did not deal in item 7 with a purported decision of the tribunal. The language of item 7 addressed two of the three possible categories of decision to which Sales [2008] FCAFC 132 ; 171 FCR 56 applied, namely a decision by, first, the minister under identified sections of the Act and, secondly, the delegate under s 501 alone. That raises the question whether the words "... is as valid, as it would have been if the transitional (permenant) visa ... were a visa that had been granted" operate to change the nature of the tribunal's decision because they transformed the earlier invalid decision of the delegate into a valid decision. Although there is no evidence as to the number of potentially affected decisions, it is safe to infer that a considerable number of visas in the affected category had been cancelled over the previous years. Challenges to the cancellation of those visas, like Mr Toro Martinez's, would have been made to, first, the tribunal and then to this Court and the High Court. The consequence of giving item 7 a narrow construction is that persons who left Australia either voluntarily or involuntarily, based on failed challenges to the purported cancellation of their visas could now assert rights of re-entry and residence on the ground that the tribunal's decisions to affirm the cancellations were affected by the above jurisdictional error. It is unlikely that the Parliament intended that consequence. That may be why it chose the opening words of the chapeau to item 7(1): "To avoid doubt, any decision made or purported to have been made." The doubt referred to was, clearly enough, whether those two classes of decision were valid. The language of the Parliament does not suggest that it sought to create a distinction between those who had accepted a decision by the Minister or a delegate to cancel their visas without challenge and those who had applied unsuccessfully to the tribunal or the Courts to set aside the decision to cancel. Such a distinction would create, not avoid, doubt. The anomalous result would ensure that a person who had taken proceedings to reverse the cancellation but failed would be in a better position than someone who had accepted the decision in the first place. It would certainly give a new and unattractive twist to the aphorism that "it is better to have tried and failed than never to have tried at all". If the tribunal had arrived at the conclusion, subsequently established by the decision in Sales [2008] FCAFC 132 ; 171 FCR 56 , that it had no power to cancel the visa under s 501, it would have set aside the decision of the delegate (see: s 43 (1)(c) of the Administrative Appeals Tribunal Act ). Had the tribunal done that, item 7 would not have had any effect on the tribunal's decision because the delegate's decision would no longer be operative. As Hayne and Heydon JJ identified in Shi v Migration Agents Registration Authority [2008] HCA 31 ; (2008) 235 CLR 286 at 314 315 [96]-[98], the tribunal's task here was to decide on the material before it whether to exercise the Minister's power under s 501(2) (if it existed). That being so, although the Minister's delegate's decision has been validated by item 7, the tribunal is yet to perform its function of review of that decision in accordance with law. By applying to the tribunal before the 2008 amendment came into force, a person who then invoked a challenge to the Minister's or delegate's decision under s 501(2) elected to treat that decision as valid, though erroneous, and to have the tribunal exercise the power, in preference to challenging the decision in judicial review proceedings: Twist 136 CLR at 116 per Mason J. And the tribunal could have "cured" the defect in the delegate's decision by setting it aside: cf Zubair 139 FCR at 354. But the decision of the tribunal in respect of Mr Toro Martinez was given in respect of a different legal and factual scenario from that considered by the delegate and, because of Sales [2008] FCAFC 132 ; 171 FCR 56 , was no decision at all, being infected by jurisdictional error.


case_text: the tribunal had referred to five previous decisions of the tribunal in which passages from certain documents were either set out or summarised. Marshall and Lander JJ said there was nothing to suggest that the tribunal failed to comply with s 39(1) merely by referring to a previous (tribunal) decision. They concluded that the previous decisions did not play any part in the tribunal reaching its decision in the matter: Scorgie [2008] FCAFC 101 at [41] . The Full Court approved ( Scorgie [2008] FCAFC 101 at [42] , [67] and [71]) of what the trial judge, Flick J, had said as to the position at common law ( Scorgie v Minister for Immigration and Citizenship [2007] 47 AAR 314 at [7]), namely that a denial of procedural fairness would not be established simply because a decision-maker had referred to evidence given in other proceedings in which he or she had been involved. He said that denial of procedural fairness may be made out if the decision-maker went beyond simply referring to evidence in other proceedings and sought to rely upon that evidence or conclusions previously reached without affording an affected party an opportunity to make submissions.


case_outcome: applied

case_text: Scorgie v Minister for Immigration and Citizenship [2008] FCAFC 101 at [34] , Marshall and Lander JJ said that s 39(1) was attracted if two things were apparent: "First, the documents must be relevant. Secondly, [the tribunal] must be proposing to have regard to the documents for the purpose of reaching a decision in the proceedings." There, the tribunal had referred to five previous decisions of the tribunal in which passages from certain documents were either set out or summarised. Marshall and Lander JJ said there was nothing to suggest that the tribunal failed to comply with s 39(1) merely by referring to a previous (tribunal) decision. They concluded that the previous decisions did not play any part in the tribunal reaching its decision in the matter: Scorgie [2008] FCAFC 101 at [41] . The Full Court approved ( Scorgie [2008] FCAFC 101 at [42] , [67] and [71]) of what the trial judge, Flick J, had said as to the position at common law ( Scorgie v Minister for Immigration and Citizenship [2007] 47 AAR 314 at [7]), namely that a denial of procedural fairness would not be established simply because a decision-maker had referred to evidence given in other proceedings in which he or she had been involved. He said that denial of procedural fairness may be made out if the decision-maker went beyond simply referring to evidence in other proceedings and sought to rely upon that evidence or conclusions previously reached without affording an affected party an opportunity to make submissions.


case_outcome: distinguished

case_text: Minister also sought to draw an analogy with stamp duty legislation that prohibited the admission into evidence of an unstamped instrument but gave the instrument, once duly stamped, its full force and effect, relying on Shepherd v Felt & Textiles of Australia Ltd [1931] HCA 21 ; (1931) 45 CLR 359 at 383 per Dixon J. I reject this argument. First, stamp duty legislation, ordinarily, does not affect liberty of individuals or fundamental human rights. Secondly, that legislation suspends, conditionally, the operation of an existing instrument only when it is sought to be put into evidence. I do not consider that generalised references to stamp duty legislation assist in construing item 7. The Parliament enacted the 2008 amendments knowing that both the tribunal and the Courts would have made decisions affecting visas purportedly cancelled by one of the two classes of decision for which item 7 provided. Yet, the 2008 amendments did not address curing any error made by the tribunal in arriving at its decision. Nor did the 2008 amendments validate any decision of the tribunal. The liberty of an individual is at stake. The Parliament did not express, in unambiguous and clear language, its intention to remove the accrued right of persons in the position of Mr Toro Martinez to treat the decision of the tribunal as no decision at all. I am of opinion that the tribunal's decision should be quashed and a writ of mandamus issued to command it to perform its function of review according to law. Ground 2 The essence of the second ground is that the tribunal failed to have regard to or consider the evidence of Mr Toro Martinez's daughter and a departmental assessment relating to conditions in Columbia concerning the effect on her, were the visa to be cancelled. The tribunal did not make any reference in its reasons to an interview given by the daughter to the Department in June 2001 or to her letter of July 2007. The only evidence of the daughter to which the tribunal referred was her letter of 15 April 2008. The tribunal used the latter letter and her failure to refer to significant matters in it (which the daughter however had said in the 2001 interview and 2007 letter) in arriving at two important findings. Nor did the tribunal refer in its decision to the international obligations and humanitarian concerns assessment that it would be unreasonable to expect the daughter to depart the relative safety of Australian society and accompany her father to Columbia.


case_text: the tribunal had arrived at the conclusion, subsequently established by the decision in Sales [2008] FCAFC 132 ; 171 FCR 56 , that it had no power to cancel the visa under s 501, it would have set aside the decision of the delegate (see: s 43 (1)(c) of the Administrative Appeals Tribunal Act ). Had the tribunal done that, item 7 would not have had any effect on the tribunal's decision because the delegate's decision would no longer be operative. As Hayne and Heydon JJ identified in Shi v Migration Agents Registration Authority [2008] HCA 31 ; (2008) 235 CLR 286 at 314 315 [96]-[98], the tribunal's task here was to decide on the material before it whether to exercise the Minister's power under s 501(2) (if it existed). In the contrasting position, that has actually occurred, the tribunal decided that the correct and preferable decision was the one arrived at by the delegate. It would be an odd result if item 7 operated to validate the latter decision but had no effect on the former. The natural and ordinary meaning of item 7 is that it validates certain decisions of the Minister and his delegates. If it cannot, and in its terms does not, undo other decisions, such as those of the tribunal, I am of opinion that item 7 should not be read to validate other decisions to which it is not expressly directed. However as Brennan J said in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 at 175-176 in a passage approved by Hayne and Heydon JJ in Shi 235 CLR 315 [100]. "A decision by the Tribunal pursuant to s 43(1)(a) to affirm the original decision leaves the original decision intact, and this is the only decision which takes effect under the enactment: the original powers are not drawn upon by the Tribunal's order. Equally, a decision to set aside the decision under review and remit the matter for reconsideration pursuant to s 43(1)(c)(ii) requires the original repository of the powers and discretions to exercise them afresh: they are not exercised by the Tribunal. Section 43(1) grants the original powers and discretions to the Tribunal, but it does not require the Tribunal to exercise them unless the Tribunal is making a fresh order the effectiveness of which depends upon their exercise." Even though the delegate's original decision to cancel Mr Toro Martinez's visa was left intact, the tribunal decided that this was the correct and preferable decision on the material before it. That is, the function which the tribunal performed was a review on the merits of the delegate's decision using all of the material available up to the time that the tribunal made its decision: Shi 235 CLR at 298-299 [34]-[38] per Kirby J, 314-316 [96]-[101] per Hayne and Heydon JJ, 324-325 [134], 326 [137], 327-328 [140]-[144] per Kiefel J, with whom Crennan J agreed on this issue at 319 [117]. As Kiefel J observed, s 43(1) of the Administrative Appeals Tribunal Act gives the tribunal powers in s 43(1)(a) to (c) for the purpose of reviewing a decision. She said that the purpose of the powers was "... to permit the Tribunal to consider for itself what the decision should be": Shi 235 CLR at 326 [137]. It is in that task that the tribunal committed a jurisdictional error and thus failed to complete its review in accordance with law.


case_text: Honours pointed out that a requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. In SZANI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1298 at [25] Tamberlin J said that a failure by the Refugee Review Tribunal in its reasons to refer to, consider, or give reasons for rejection of documents which were strongly corroborative of an applicant's claim constituted a jurisdictional error.


case_text: my opinion, the tribunal used the two documents containing information adversely for Mr Toro Martinez, contrary to its obligations under s 39(1) and at common law. However, I am satisfied that no useful result would ensue from the grant of relief on this ground since Mr Toro Martinez cannot complain of the tribunal's ultimate finding that the evidence did not suggest that his condition was acute or life threatening and did not show that appropriate drugs for one of his problems and treatment for the other were unobtainable in Columbia: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 235 ALR 609 at 618-619 [29] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. I am grateful for the assistance I received from counsel for the parties and, in particular, for the willingness of counsel to act for Mr Toro Martinez pursuant to Order 80 of the Federal Court Rules . I am of opinion that Mr Toro Martinez is entitled to succeed in these proceedings. I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment herein of The Honourable Justice Rares. Associate: Dated: 21 May 2009 Counsel for the Applicant: JAC Potts (pro bono) Counsel for the First Respondent: R Francois Solicitor for the First Respondent: Clayton Utz Date of Hearing: 18 March 2009 Date of Judgment: 21 May 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/528.html


case_text: finding is the province of the tribunal. Ordinarily, an error of fact by the tribunal will not constitute a jurisdictional error, let alone an error of law. There is no error of law in simply making a wrong finding of fact: Enfield City v Development Assessment Commission [2000] HCA 5 ; (2000) 199 CLR 135 at 154 [44] per Gleeson CJ, Gummow, Kirby and Hayne JJ. Mr Toro Martinez accepted that position. However, he argued that the tribunal's conclusion that he would face no serious danger of personal harm by returning to Columbia was not a finding that the tribunal could make on any fair reading of the totality of the material on which it was based. He relied on the principle that if a decision-maker made a finding that was a critical step in arriving at its ultimate conclusion, but had no evidence to support it, the finding may well constitute a jurisdictional error: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 ; (2003) 77 ALD 402 at 407 [19] per Mansfield, Selway and Bennett JJ; SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824 at [32] per Greenwood J; SZDFZ v Minister for Immigration and Citizenship [2008] FCA 390 ; (2008) 168 FCR 1 at 12 [42] per Flick J.


case_title: SZDTZ v Minister for Immigration and Citizenship (2007) FCA 1824


case_title: SZFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 ; (2003) 77 ALD 402


case_text: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 41, Mason J explained that in the absence of any statutory indication of the weight to be given to various considerations, it was generally for the decision-maker and not the Court to determine the appropriate weight to be given to the matters that are required to be taken into account in exercising a statutory power. But he said that the Court could set aside an administrative decision which had failed to give adequate weight to a relevant factor of great importance, or had given excessive weight to a relevant factor of no importance. Mason J cautioned that the preferred ground on which that judicial power was to be exercised was that the decision was "manifestly unreasonable". I discussed the principles applicable to a statutory duty of, or requirement for, a decision-maker to take into account or to have regard to factors in Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1758 at [103] - [112] . When the expression "regard must be had to" or like expressions are used in a statute in respect of a particular criterion or factor to be considered by a decision-maker, he or she is bound to treat such a factor as a central or fundamental element in the making of the relevant decision: Telstra Corporation Ltd v Australian Competition Tribunal [2009] FCAFC 23 at [267] per Jacobson, Lander and Foster JJ applying Telstra [2008] FCA 1758 at [103] - [112] . Often the three primary considerations in Direction No 21 will tend in different directions. The best interests of a visa holder's child may often be to remain with his or her parent, while the protection of the Australian community or its expectations may tend in the other direction. As I said in Telstra [2008] FCA 1758 at [110] , in the context of ordinary principles of administrative decision-making, where fundamental weight must be given to a particular factor or factors, the requirement is that the decision-maker treat consideration of the factors, as opposed to the factors themselves, is a central element in the deliberative process. It will be in this manner that he or she will give appropriate weight to those factors. I am of opinion that par 2.17 permits the decision-maker to accommodate such an interpretation. It refers to other 11 factors that, where relevant, it may be appropriate for the decision-maker to take into account, but as par 2.17 continued, it was the government's view that: "... generally they be given less individual weight than that given to the primary considerations." In my opinion the requirements of Direction No 21 do not dictate any particular outcome. Rather, they reflect factors which must be considered by a decision-maker together with others which may be considered. Merely because two of the factors require that the protection of the Australian community and its expectations are to be given weight as primary considerations, does not mean that they necessarily and in every case will outweigh one or more other considerations, even if they are not primary considerations. However, by identifying some primary considerations and requiring the decision-maker to give weight to them, the direction emphasises that the decision-maker must have regard to those matters as a fundamental part of his or her deliberation. That does not preclude the decision-maker determining that some other factor is more important in particular circumstances. Ground 5 Mr Toro Martinez argued that the tribunal committed a jurisdictional error in applying Direction No 21 in the manner in which it did. He contended that this was because at the conclusion of its reasoning it stated that par 2.17 stipulated that other considerations were to receive less individual weight than the primary ones and that notwithstanding the well prepared and well argued case for Mr Toro Martinez, after considering all the evidence, the tribunal said: "I must conclude that the primary considerations of community protection and expectations outweigh the other considerations in this case." Earlier in its reasoning it had noted that par 2.6(a) of the direction gave "special and unique prominence and emphasis to offences involving the ... importation ... of illicit drugs". Mr Toro Martinez had been convicted of two offences committed in November 1996. He had pleaded guilty to the first, under s 233B(1)(d) of the Customs Act 1901 (Cth) of being knowingly concerned in the importation of 655 grams of pure cocaine, which exceeded the trafficable quantity. The maximum penalty for that offence was 25 years imprisonment or a fine of $100,000. Following a Crown appeal, he was sentenced to six years imprisonment with a three year non-parole period. He was also convicted in February 2002 of a second offence after a jury trial in respect of being the principal behind an importation of 4.492 kilograms of cocaine into Australia in December 1996. He was sentenced to 12 years and six months imprisonment with a non-parole period that expired on 8 June 2008. In that context, the tribunal was entitled to have regard to the very serious conduct involved in Mr Toro Martinez's offending. The tribunal gave detailed consideration to Mr Toro Martinez's present situation. It concluded that although the evidence of his rehabilitation suggested that the risk of recidivism might be low, it was nevertheless real and, if it occurred, could have serious consequences for the community. The tribunal had regard to these factors and the expectations of the Australian community. It concluded that the seriousness of the offences and their planned and calculated nature would ultimately lead most community members to the conclusion that the appropriate course was to cancel the visa. The tribunal then turned to considering other matters in accordance with par 2.17 of Direction No 21. It found that, as I have discussed above, the daughter would suffer some emotional hardship from his removal. It also found that there was a genuine relationship between Mr Toro Martinez and his fiancée and that she would suffer hardship both emotionally and in terms of her business, were he to have his visa cancelled. The tribunal was evidently sympathetic towards the fiancée. It found her to be an honest and deserving woman, making the observation that "any decision-maker would wish to avoid occasioning her any hardship, but she knew the facts and must have realised there were risks involved in continuing with the relationship".


case_text: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 41, Mason J explained that in the absence of any statutory indication of the weight to be given to various considerations, it was generally for the decision-maker and not the Court to determine the appropriate weight to be given to the matters that are required to be taken into account in exercising a statutory power. But he said that the Court could set aside an administrative decision which had failed to give adequate weight to a relevant factor of great importance, or had given excessive weight to a relevant factor of no importance. Mason J cautioned that the preferred ground on which that judicial power was to be exercised was that the decision was "manifestly unreasonable". I discussed the principles applicable to a statutory duty of, or requirement for, a decision-maker to take into account or to have regard to factors in Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1758 at [103] - [112] . When the expression "regard must be had to" or like expressions are used in a statute in respect of a particular criterion or factor to be considered by a decision-maker, he or she is bound to treat such a factor as a central or fundamental element in the making of the relevant decision: Telstra Corporation Ltd v Australian Competition Tribunal [2009] FCAFC 23 at [267] per Jacobson, Lander and Foster JJ applying Telstra [2008] FCA 1758 at [103] - [112] .


case_text: long line of authority in this Court has held that the tribunal has jurisdiction to review a purported decision, even where it is clear that the decision of the original decision-maker was affected by a jurisdictional error: Collector of Customs (NSW) v Brian Lawlor Automotive Pty Limited [1979] FCA 21 ; (1979) 41 FLR 338 at 342 344 per Bowen CJ, 370 per Smithers J; Zubair v Minister for Immigration [2004] FCAFC 248 ; (2004) 139 FCR 344 at 352-354 [28] - [32] per Finn, Mansfield and Gyles JJ. The tribunal has power to cure a defect in the delegate's decision once the tribunal's jurisdiction has been invoked by an application for review: Zubair 139 FCR at 354. A party affected will elect to treat an administrative decision as valid, though erroneous, by exercising the right to have it reviewed by a second administrative body, in preference to exercising a right to have a court compel proper performance by the original authority of its duty. Such an outcome promotes administrative efficiency, provided that the party applying for the review subsequently receives a fair hearing by the second body. In that way, any defects in the process by which the original decision was reached are cured by the later determination on the administrative review or administrative appeal: Twist v Randwick Municipal Council [1976] HCA 58 ; (1976) 136 CLR 106 at 116 per Mason J. That being so, although the Minister's delegate's decision has been validated by item 7, the tribunal is yet to perform its function of review of that decision in accordance with law. By applying to the tribunal before the 2008 amendment came into force, a person who then invoked a challenge to the Minister's or delegate's decision under s 501(2) elected to treat that decision as valid, though erroneous, and to have the tribunal exercise the power, in preference to challenging the decision in judicial review proceedings: Twist 136 CLR at 116 per Mason J. And the tribunal could have "cured" the defect in the delegate's decision by setting it aside: cf Zubair 139 FCR at 354. But the decision of the tribunal in respect of Mr Toro Martinez was given in respect of a different legal and factual scenario from that considered by the delegate and, because of Sales [2008] FCAFC 132 ; 171 FCR 56 , was no decision at all, being infected by jurisdictional error.


case_text: WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 ; (2004) 80 ALD 568 at 573-574 [22] Lee and Moore JJ noted the principle that observance of the requirement that the review procedure be carried out according to law was an irreducible duty. They said that the tribunal only obtained power to make a determination under the Act where its decision was based on findings or inferences of the facts grounded on probative material and logical grounds. It followed that a decision based on illogical or irrational findings or inferences of fact is a decision not supported by reason and is therefore invalid.


case_text: reviewing an administrative decision the tribunal has to give the decision it considers to be the correct or preferable decision. That function must be performed independently of any instruction, advice or wish of the executive government, including in cases where government policy is a relevant factor for consideration and the powers of the tribunal are limited to affirming or recommending the reconsideration of the decisions of a Minister: Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18 ; (1996) 189 CLR 1 at 17-18 per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ, approving Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 58 at 163 per Brennan J as President of the Tribunal. The decision of the tribunal in the particular circumstances of each case must be arrived at according to its opinion as to the merits of that case.


case_title: Zubair v Minister for Immigration [2004] FCAFC 248 ; (2004) 139 FCR 344


case_title: Bainton v Rajski (1992) 29 NSWLR 539

case_text: As a preliminary matter, I should mention that it was submitted that the appropriate course for a party raising the question of disqualification of a judge who is hearing a matter is not to file a formal notice of motion, but to invite the judge to disqualify herself or himself. I do not think anything turns on this point for the purposes of my consideration. One way or the other, once the question arose as to whether I should disqualify myself, that issue needed to be determined as expediently as possible. In any event, I do not consider it impermissible to proceed by notice of motion seeking to move that a judge of the court disqualify herself or himself from commencing or completing a case on the ground of bias, although in my view this is not necessary: see British American Tobacco Australia Ltd v Gordon [2007] NSWSC 109 at [52] ; Barton v Walker [1979] 2 NSWLR 740 at 749-50; Bainton v Rajski (1992) 29 NSWLR 539 at 541, 544; Kartinyeri v Commonwealth of Australia (No 2) [1998] HCA 52 ; (1998) 156 ALR 300, [1]-[2]; S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358; J Aron Corp v Newmont Yandal Operations Pty Ltd (2006) 58 ACSR 277.


case_title: Barton v Walker [1979] 2 NSWLR 740


case_title: British American Tobacco Australia Ltd v Gordon [2007] NSWSC 109


case_text: Those principles were recently endorsed in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55 ; (2006) 231 ALR 663 at [110] per Kirby and Crennan JJ.


case_text: The principles relevant to disqualification by reason of apprehended bias are set out in the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at 344-345: Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge ..., a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle. The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror. The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. [footnotes omitted]


case_text: To the extent that the applicant here alleges actual bias, the applicant must show that I approach issues with a closed mind, am unwilling or unable to decide issues impartially and am not amenable to persuasion by any evidence that might be led: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 122-123; Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565 ; (2001) 109 FCR 424 at 442-443.


case_title: J Aron Corp v Newmont Yandal Operations Pty Ltd (2006) 58 ACSR 277


case_title: Kartinyeri v Commonwealth of Australia (No 2) [1998] HCA 52 ; (1998) 156 ALR 300


case_title: Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 ; (2001) 205 CLR 507

case_text: Apprehended bias must be "firmly established": R v Commonwealth Conciliation & Arbitration Commission; Ex parte Angliss Group [1969] HCA 10 ; (1969) 122 CLR 546 at 553-554; R v Lusink; Ex parte Shaw (1980) 32 ALR 47 at 50-51; and Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128 at 158. I am also mindful that an allegation of bias must be "distinctly made and clearly proved": Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17 ; (2001) 205 CLR 507 at 531 per Gleeson CJ and Gummow J.


case_title: R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10 ; (1969) 122 CLR 546


case_title: R v Lusink; Ex parte Shaw (1980) 32 ALR 47


case_title: Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128


case_title: S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358


case_title: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71


case_text: Since the decision by Driver FM was an exercise of his Honour's discretion, the principles referred to in House v The King [1936] HCA 40 ; (1936) 55 CLR 499 in relation to the role of the appeal court apply. In that decision, the majority of the High Court said at 504-5: 'It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.' See also Australian Coal and Shale Employees' Federation and Anor v The Commonwealth and Ors [1953] HCA 25 ; (1953) 94 CLR 621 at 627 per Kitto J.


case_outcome: considered

case_text: There are numerous authorities of this Court in which prejudice has been considered in this context, each of which has related to prejudice which accrued during the period for which an extension is sought: see for example Wedesweiller and Ors v Cole and Ors (1983) 47 ALR 528; Hickey and Ors v Australian Telecommunications Commission (1983) 47 ALR 517; Duff and Ors v Freijah and Ors (1982) 62 FLR 280. I have not been referred to any authority in which a court has taken into account prejudice caused by delay occurring prior to the commencement of the prescribed period.


case_title: Gilroy v Angelov (2000) 181 ALR 57

case_text: I also consider that an individual employee alleged to have engaged in unlawful discrimination need not be a party to a proceeding in order that the Court make a finding in respect of the lawfulness of their conduct. The words of s 106(1) that ' this Act applies in relation to that person as if that person had also done the act ' indicate that an employer is to be severally liable for the discriminatory conduct of its employee. Such interpretation is supported by Gilroy v Angelov (2000) 181 ALR 57, in which Wilcox J made orders against an employer in circumstances where the employee was unable to be served with the application.


case_title: Hickey and Ors v Australian Telecommunications Commission (1983) 47 ALR 517


case_text: Several principles must be considered by the Court in determining an application for leave to extend time in which to institute proceedings. In Phillips McInnis FM referred to Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 in which Wilcox J (at 348-9) set out the principles to be adopted in relation to an extension of time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act'). McInnis FM determined that those principles were applicable to the exercise of discretion under s 46PO of the HREOC Act. Accordingly his Honour (at [10]) set out the following principles: '1. There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The "prescribed period" of 28 days is not to be ignored ( Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550). 2. It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained ( Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition ( Comcare v A'Hearn (1993) 45 FCR 441 and Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302). 3. Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff (1982) 42 ALR 283 at 287) 4. Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p 287) 5. The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416) 6. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417) 7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of the court's discretion ( Wedesweiller v Cole (1983) 47 ALR 528).' 12 The above principles are drawn almost verbatim from those formulated by Wilcox J in Hunter Valley Developments. I consider that they are relevant to an application under s 46PO of the HREOC Act. The principles relevant to this appeal are numbers 4 and 6. 13 The appellant contends that Driver FM erred in his interpretation of prejudice for the purposes of an application to extend time in which to bring proceedings. The appellant also contends that Driver FM erred in assessing the merits of the appellant's case, because his Honour misconceived the basis of the vicarious liability of the respondent.


case_title: Lovett v Le Gall (1975) 10 SASR 479

case_text: In Lovett v Le Gall (1975) 10 SASR 479 Bray CJ said (at 485): 'If the defendant has suffered no prejudice, as when he was well aware within the limitation period of the plaintiff's claim, or where the excess period of time is small, or where he cannot show that he has lost anything by reason of the delay, it may well be that the court will not find it difficult to come to the conclusion that it is fair and equitable in the circumstances to grant the extension.' All of the examples referred to by Bray CJ are examples of prejudice caused specifically by the delay in instituting proceedings.


case_text: In refusing the leave application Driver FM considered the principles in Phillips v Aust Girls' Choir & Anor [2001] FMCA 109 (' Phillips '), which were approved by this Court in Pham v Commonwealth of Australia [2002] FCA 669. There is no dispute between the parties concerning the applicability of those principles; rather the dispute relates to the application by Driver FM of those principles. The paragraphs of his Honour's reasons which relate to the issues in the current appeal are as follows: 'The issues arising in the matter date from around 1998, although they extended through to 2004. Mr Gurran, for the respondent, put to me that the allegations made to HREOC came as a surprise to the respondent and the respondent rather thought that the issues might have been resolved at the termination of the complaint. A fourth relevant consideration is any prejudice in defending the proceedings occasioned by the delay. This is a material factor against the grant of an extension, see Doyle at page 287. I regard the issue of prejudice in this case as a significant factor. The complaint to HREOC was against the employer only even though it was a complaint of sexual harassment by reason of the applicant's sexual preference. No complaint having been made against the alleged harassers, no proceeding can now be brought in this court against those persons. The jurisdiction of the court is limited to considering the claim against the harasser's employer and would be based on asserted vicarious liability. For its part, the respondent asserted before HREOC that the allegations of harassment came as a surprise. ... The events complained of go back up to seven years. The respondent asserts that the individuals allegedly responsible for the harassment are no longer employed by the respondent and one relevant witness is no longer in Australia. There would be real difficulty facing the respondent in dealing with the allegations in this Court. ... The sixth consideration is that the merits of the substantive application are properly to be taken into account in considering whether an extension of time should be granted. The material put before HREOC and before the court to this point is sufficient to establish a prima facie case of sexual harassment against the persons allegedly responsible for that harassment. That is not the same thing as establishing a prima facie case against the single respondent, the employer, which would depend upon proof of vicarious liability. At this stage and particularly if the only evidence available is that of the applicant I would have to say that the prospects of success of the application against the respondent are uncertain. ... ... He [the applicant] could have brought that complaint forward rather earlier than he did. He certainly could and in my view should have pursued his rights in this court more promptly than he did. Having regard to the length of the delay in this matter which in my view is significant, the explanation for the delay which in my view is only partially convincing, the prejudice to the respondent if the proceeding continues, which in my view is real and substantial, and the interests of the administration of justice, I have come to the view that the application for an extension of time should be refused and I will so order.'


case_outcome: referred to

case_text: This decision, which was applied in Thompson v Australian Capital Television Pty Ltd and Ors [1996] HCA 38 ; (1996) 141 ALR 1, makes it clear that at common law, a vicariously liable employer is a joint tortfeasor with the employee against whom the tortious conduct is specifically alleged. Gummow J also observed in Thompson at 22: 'At common law, the liability of joint tortfeasors was said to be joint and several. The plaintiff might sue any one of the tortfeasors separately for the full amount of the loss, or all of them jointly in the same action.' Similar observations can be found in the judgment of Brennan CJ, Dawson and Toohey JJ at 4. See also the discussion of vicarious liability in Pinecot Pty Ltd v Anti-Discrimination Commissioner [2001] NTSC 107 at [12] - [24] .


case_outcome: approved

case_text: In refusing the leave application Driver FM considered the principles in Phillips v Aust Girls' Choir & Anor [2001] FMCA 109 (' Phillips '), which were approved by this Court in Pham v Commonwealth of Australia [2002] FCA 669. There is no dispute between the parties concerning the applicability of those principles; rather the dispute relates to the application by Driver FM of those principles. The paragraphs of his Honour's reasons which relate to the issues in the current appeal are as follows: 'The issues arising in the matter date from around 1998, although they extended through to 2004. Mr Gurran, for the respondent, put to me that the allegations made to HREOC came as a surprise to the respondent and the respondent rather thought that the issues might have been resolved at the termination of the complaint. A fourth relevant consideration is any prejudice in defending the proceedings occasioned by the delay. This is a material factor against the grant of an extension, see Doyle at page 287. I regard the issue of prejudice in this case as a significant factor. The complaint to HREOC was against the employer only even though it was a complaint of sexual harassment by reason of the applicant's sexual preference. No complaint having been made against the alleged harassers, no proceeding can now be brought in this court against those persons. The jurisdiction of the court is limited to considering the claim against the harasser's employer and would be based on asserted vicarious liability. For its part, the respondent asserted before HREOC that the allegations of harassment came as a surprise. ... The events complained of go back up to seven years. The respondent asserts that the individuals allegedly responsible for the harassment are no longer employed by the respondent and one relevant witness is no longer in Australia. There would be real difficulty facing the respondent in dealing with the allegations in this Court. ... The sixth consideration is that the merits of the substantive application are properly to be taken into account in considering whether an extension of time should be granted. The material put before HREOC and before the court to this point is sufficient to establish a prima facie case of sexual harassment against the persons allegedly responsible for that harassment. That is not the same thing as establishing a prima facie case against the single respondent, the employer, which would depend upon proof of vicarious liability. At this stage and particularly if the only evidence available is that of the applicant I would have to say that the prospects of success of the application against the respondent are uncertain. ... ... He [the applicant] could have brought that complaint forward rather earlier than he did. He certainly could and in my view should have pursued his rights in this court more promptly than he did. Having regard to the length of the delay in this matter which in my view is significant, the explanation for the delay which in my view is only partially convincing, the prejudice to the respondent if the proceeding continues, which in my view is real and substantial, and the interests of the administration of justice, I have come to the view that the application for an extension of time should be refused and I will so order.' 11 Several principles must be considered by the Court in determining an application for leave to extend time in which to institute proceedings. In Phillips McInnis FM referred to Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 in which Wilcox J (at 348-9) set out the principles to be adopted in relation to an extension of time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act'). McInnis FM determined that those principles were applicable to the exercise of discretion under s 46PO of the HREOC Act. Accordingly his Honour (at [10]) set out the following principles: '1. There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The "prescribed period" of 28 days is not to be ignored ( Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550). 2. It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained ( Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition ( Comcare v A'Hearn (1993) 45 FCR 441 and Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302). 3. Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff (1982) 42 ALR 283 at 287) 4. Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p 287) 5. The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416) 6. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417) 7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of the court's discretion ( Wedesweiller v Cole (1983) 47 ALR 528).'


case_title: The Koursk [1924] P 140

case_text: This legislative scheme is consistent with common law principles of vicarious liability of employers for tortious conduct of employees. In The Koursk [1924] P 140 Scrutton LJ said at 155: 'The substantial question in the present case is: What is meant by "joint tortfeasors"? and one way of answering it is: "Is the cause of action against them the same?" Certain classes of persons seem clearly to be "joint tortfeasors": The agent who commits a tort within the scope of his employment for his principal, and the principal; the servant who commits a tort in the course of his employment, and his master; two persons who agree on common action, in the course of, and to further which, one of them commits a tort. These seem clearly joint tortfeasors; there is one tort committed by one of them on behalf of, or in concert with, another.'


case_title: Thompson v Australian Capital Television Pty Ltd and Ors [1996] HCA 38 ; (1996) 141 ALR 1


case_text: Several principles must be considered by the Court in determining an application for leave to extend time in which to institute proceedings. In Phillips McInnis FM referred to Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 in which Wilcox J (at 348-9) set out the principles to be adopted in relation to an extension of time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act'). McInnis FM determined that those principles were applicable to the exercise of discretion under s 46PO of the HREOC Act. Accordingly his Honour (at [10]) set out the following principles: '1. There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The "prescribed period" of 28 days is not to be ignored ( Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550). 2. It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained ( Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition ( Comcare v A'Hearn (1993) 45 FCR 441 and Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302). 3. Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff (1982) 42 ALR 283 at 287) 4. Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p 287) 5. The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416) 6. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417) 7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of the court's discretion ( Wedesweiller v Cole (1983) 47 ALR 528).' 17 There are numerous authorities of this Court in which prejudice has been considered in this context, each of which has related to prejudice which accrued during the period for which an extension is sought: see for example Wedesweiller and Ors v Cole and Ors (1983) 47 ALR 528; Hickey and Ors v Australian Telecommunications Commission (1983) 47 ALR 517; Duff and Ors v Freijah and Ors (1982) 62 FLR 280. I have not been referred to any authority in which a court has taken into account prejudice caused by delay occurring prior to the commencement of the prescribed period.


case_text: Traxon Industries Pty Ltd (Traxon) applied to the Court by motion dated 18 April 2006 for leave to serve proceedings on Emerson Electric Co (Emerson) in the United States of America (USA). The proceedings arose out of a dispute between Traxon and Emerson connected with the performance of a Confidentiality Agreement and a Distributorship Agreement relating to the marketing and sale, in the USA, of oil level control devices manufactured by Traxon. Traxon's causes of action against Emerson were for misleading or deceptive conduct in contravention of the Trade Practices Act 1974 (Cth), breach of contract, breach of duty of confidence and breach of fiduciary duty. For reasons published on 26 April 2006 the motion was adjourned and Traxon given leave to amend its statement of claim and to file further affidavit evidence in support of its application Traxon Industries Pty Ltd v Emerson Electric Co [2006] FCA 450. The principal reason for the decision not to accede to Traxon's motion was its inclusion in the application and statement of claim of the causes of action arising out of breach of confidence and breach of fiduciary duty. These causes of action were based entirely on conduct allegedly committed by Emerson in the United States. They did not otherwise fall within any of the categories of causes of action to which the relevant rule of Court, O 8, authorising service out of the jurisdiction, applies. 2 Traxon has now filed a proposed amended application and proposed amended statement of claim together with a proposed further amended application and further amended statement of claim. It has also filed additional affidavit material. In its proposed amended application and amended statement of claim Traxon seeks to join Traxon International Ltd (Traxon International) as a second applicant. It abandons the claim for breach of duty of confidence but maintains the claim based on breach of fiduciary duty. As an alternative position, it relies upon a further amended application and further amended statement of claim which would also omit the cause of action for breach of fiduciary duty. 3 For the reasons which I now publish, I am prepared to grant leave to serve an application and statement of claim on Emerson in the United States in the form set out in the further amended application and further amended statement of claim. So that Emerson may also be served with a reasonably self contained set of reasons for that decision these reasons repeat elements of those published on 26 April 2006 adapted to take account of the amendments to the pleadings and the additional evidence which has been filed. 4 Traxon, on 18 April 2006, commenced proceedings in this Court against Emerson. It claimed damages for misleading or deceptive conduct in contravention of the Trade Practices Act , at common law for breach of contract and, alternatively, in equity for breach of confidence and breach of fiduciary duty. Traxon is an Australian company which carries on the business of manufacturing, marketing and selling oil level control devices, one of which is known as the TraxOil Management System (the TraxOil Device). Emerson is incorporated in Missouri and currently trades under the business name Emerson Climate Technologies. It used to trade as Alco Controls. 5 By a notice of motion filed on 18 April 2006, Traxon sought leave to serve its application, statement of claim and supporting affidavits on Emerson in the USA. Its motion was filed pursuant to O 8 of the Federal Court Rules .


case_text: The cause of action in breach of fiduciary duty is based on conduct engaged in in the United States. Even though the duty pleaded depends upon conduct in Australia that does not mean that its breach by acts outside Australia give rise to a cause of action 'arising in the Commonwealth' under O 8 r 1(a). As von Doussa J observed in Delco Australia Pty Ltd v Equipment Enterprises Incorporated trading as Kukla Trenchers [2000] FCA 821 , the authorities establish that 'cause of action' within the meaning of O 8 r 1(a) does not refer to all the elements of the cause of action. It refers rather to the act on the part of the defendant which gave the plaintiff his cause for complaint. In Distillers Co (Biochemicals) v Thompson [1971] AC 458 at 467, Lord Pearson said (at 468): It is not the right approach to say that, because there was no complete tort until the damage occurred, therefore the cause of action arose wherever the damage happened to occur. The right approach is, when the tort is complete, to look back over the series of events constituting it and ask the question, where in substance did this cause of action arise? Theory no (iii) is that the cause of action arose within the jurisdiction if the act on the part of the defendant, which gives the plaintiff his cause of complaint has occurred within the jurisdiction. That is the rule laid down in Jackson v Spittal (1870) LR 5CP 542, which is an authoritative case, and the rule is inherently reasonable, as the defendant is called upon to answer for his wrong in the courts of the country where he did the wrong.' Counsel for the applicants contends that the cause of action for breach of fiduciary duty falls within O 8 r 1(ab)(ii). That is to say the proceeding, in so far as it seeks relief for breach of fiduciary duty is one which 'otherwise affects a contract'. In my respectful opinion that contention is unsustainable. While it may rightly be said that the fiduciary obligation, as pleaded, arises out of the asserted contractual relationship, the proceeding based upon breach of fiduciary duty does not of itself affect the contract. In my opinion, therefore, the cause of action for breach of fiduciary duty is not one to which O 8 r 1 applies. 77 As I concluded in the reasons published on 26 April 2006, the fact that the causes of action in misleading or deceptive conduct and breach of contract are within O 8 r 1, would be insufficient to satisfy the requirement that the rule 'applies to the proceeding' within the meaning of O 8 r 2(2)(b) for so long as the claim for breach of fiduciary duty is included. As von Doussa J said in Delco Australia [at 35]: 'In this Court r 1(n) makes express provision for a proceeding where a proceeding does not fall squarely within one of the heads enumerated in the earlier paragraphs. In my opinion r 1(n) makes it clear that an originating process to be served out of the Commonwealth must be confined to causes of action that fall wholly within one or several of the heads in r 1. An originating process that includes a claim that does not fall within one or more of the heads is not an originating process that meets the description of r 1, in that it is not one "in" any of the cases described in the rule. It is not a "proceeding to which rule 1 applies" so as to meet the requirement of r 2(2)(c)(b). A similar conclusion was expressed by Wilcox J in Tycoon Holdings Ltd v Tencor Jetco Inc (1992) 34 FCR 31 at 35.' 78 In the circumstances, because of the inclusion of the claim for breach of fiduciary duty, it is not possible to conclude that 'the proceeding' reflected in the amended application and the amended statement of claim is one to which O 8 r 1 applies. However the minute of further amended statement of claim which is proposed would omit the claim for breach of fiduciary duty and, on that basis, would transform the action into a proceeding to which O 8 r 1 applies. I am therefore prepared to make an order for service on Emerson in the United States of America of an application and statement of claim in terms of the further amended application and further amended statement of claim filed on 24 May 2006. A minute of proposed orders has been filed also to take account of that contingency. I will make orders in terms of the minute. I certify that the preceding seventy eight (78) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 26 May 2006 Counsel for the Applicant: Mr D Solomon Solicitor for the Applicant: Solomon Brothers Date of Hearing: 18 May 2006 Date of Judgment: 26 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/630.html


case_text: The cause of action in breach of fiduciary duty is based on conduct engaged in in the United States. Even though the duty pleaded depends upon conduct in Australia that does not mean that its breach by acts outside Australia give rise to a cause of action 'arising in the Commonwealth' under O 8 r 1(a). As von Doussa J observed in Delco Australia Pty Ltd v Equipment Enterprises Incorporated trading as Kukla Trenchers [2000] FCA 821 , the authorities establish that 'cause of action' within the meaning of O 8 r 1(a) does not refer to all the elements of the cause of action. It refers rather to the act on the part of the defendant which gave the plaintiff his cause for complaint. In Distillers Co (Biochemicals) v Thompson [1971] AC 458 at 467, Lord Pearson said (at 468): It is not the right approach to say that, because there was no complete tort until the damage occurred, therefore the cause of action arose wherever the damage happened to occur. The right approach is, when the tort is complete, to look back over the series of events constituting it and ask the question, where in substance did this cause of action arise? Theory no (iii) is that the cause of action arose within the jurisdiction if the act on the part of the defendant, which gives the plaintiff his cause of complaint has occurred within the jurisdiction. That is the rule laid down in Jackson v Spittal (1870) LR 5CP 542, which is an authoritative case, and the rule is inherently reasonable, as the defendant is called upon to answer for his wrong in the courts of the country where he did the wrong.' Counsel for the applicants contends that the cause of action for breach of fiduciary duty falls within O 8 r 1(ab)(ii). That is to say the proceeding, in so far as it seeks relief for breach of fiduciary duty is one which 'otherwise affects a contract'. In my respectful opinion that contention is unsustainable. While it may rightly be said that the fiduciary obligation, as pleaded, arises out of the asserted contractual relationship, the proceeding based upon breach of fiduciary duty does not of itself affect the contract. In my opinion, therefore, the cause of action for breach of fiduciary duty is not one to which O 8 r 1 applies.


case_text: In this case, it is not possible for the Court to make orders concerning a hypothetical question which was not the subject of a claim by the applicant, nor decision by the first respondent, nor contention before the Tribunal, nor decision by the Tribunal that is, whether the losses of the applicant could in fact be carried forward on capital account. It is not the role of the Federal Court to answer hypothetical questions or give advisory opinions: Bass v Permanent Trustee Co Ltd (1999) 161 CLR 399 at 413-415. 74 Accordingly, in view of my findings concerning question a, it is both unnecessary for me to make any findings with respect to questions e and f, and inappropriate to make the orders sought by the applicant which could follow from any consideration of those questions. 75 In the grounds of appeal the applicant submits that no reasonable Tribunal, properly apprised of its role, could have made the findings that were made. It follows from my findings in this judgment that this claim cannot be substantiated. 76 Accordingly the answer to question g raised on appeal is "Yes". 77 In the grounds of appeal the applicant submits that: • the Tribunal's apparent error of fact that the controller of the applicant had been prosecuted for claiming the deductions leads a reasonable observer to the conclusion that the Tribunal did not give due consideration to the material before it, and may have been biased against the applicant; and • a Tribunal acting under such a misapprehension could more readily make adverse findings of fact against the applicant.


case_text: Appeals from the Tribunal are not appeals in the strict sense as they lie within the original jurisdiction of the court: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 581, Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 at [1] , (2003) 76 ALD 321. A party to a proceeding before the Tribunal may appeal to the Court from any decision of the Tribunal in that proceeding, but only on questions of law: s 44(1) Administrative Appeals Tribunal Act 1975 ("AAT Act").


case_text: The authorities are clear that: • On administrative review under the AAT Act the Tribunal is the arbiter of the facts: Repatriation Commission v Thompson (1988) 82 ALR 352 at 357. Accordingly, in exercising its jurisdiction under s 44(1) AAT Act the task of the Court is to leave to the Tribunal decisions of fact, and to interfere only when the identified error is one of law ( Thompson , Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1, Phillips v Commissioner for Superannuation [2005] FCAFC 2 , Federal Commissioner of Taxation v Swift (1989) 89 ATC 5101). There is no error in law simply in making a wrong finding of fact (Brennan J in Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 at 77, Thompson at 357). This point has been reiterated many times (see for example Pozzolanic at 9 and Phillips at [41]). • Simply disputing factual findings of the Tribunal on the weight of evidence does not raise errors of law in the absence of other circumstances. As pointed out by the Full Court in Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 at 601: A number of authorities were cited by counsel for the appellant in support of the propositions that the making of a decision against the evidence or the weight of the evidence and the making of an unreasonable decision are errors of law. We find it unnecessary to examine these authorities for the reason that, in our opinion, there is no factual basis to found these propositions. We would, however, comment that the concepts of a decision being against the evidence and of being against the weight of the evidence belong to appeals from courts of law and have particular application to jury verdicts. Even in that context, they do not involve questions of law. They certainly have no place when the appeal, or review, is of proceedings of an administrative tribunal which is not bound by the rules of evidence and which, subject to the obligation to observe the requirements of natural justice, can inform itself as it chooses: see s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 . An appellant who attacks a conclusion of the Tribunal because of deficiency of proof said to amount to error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based. (see also, Blackwood Hodge (Aust) Pty Ltd v Collector of Customs (NSW) (1980) 47 FLR 131 at 144 5, Deniz v Minister for Immigration and Ethnic Affairs (1983) 51 ALR 645 at 650, Repatriation Commission v Thompson 82 ALR at 358, Swift at 5,113, McAuliffe v Comcare [2002] FCA 769 at [51] , Commissioner of Taxation v Word Investments Ltd [2006] FCA 1414 at [32] )