case_text: The Tribunal next referred to the ' two stage process ' identified and discussed by Member Trowse in Re Filsell and Commissioner of Taxation [2004] AATA 1012 in the following context of his consideration of the implications of s 340-5(3) of the Administration Act: 'In the Tribunal's opinion, the language of the legislation requires a two stage approach. First, the decision-maker must decide whether the settlement of the liability will result in serious hardship. If that decision is favourable to the applicant, the discretion offered by sub-section 340-5(3) then falls for consideration. In reaching the decision to release in whole or part, the question to be addressed is whether, in all the circumstances, it is just and proper to provide the requested relief. Matters pertaining to the incidence and consequence of the tax and the effect of its exaction upon the affairs of the person will bear upon the issue of whether the relief is just and proper. Support for the two stage approach is to be found in the decision of the High Court in Rex v Trebilco; ex parte F.S. Falkiner & Sons Ltd [1936] HCA 63 ; (1936) 56 CLR 20 .' I have of course extracted s 340-5(3) of the Administration Act earlier in these reasons. I would respectfully seek to apply that principled approach. 24 Further in his reasons for judgment in Powell at 263, Hill J referred to the dictum of Windeyer J in Giris Pty Ltd v Commissioner of Taxation [1969] HCA 5 ; (1969) 119 CLR 365 at 384 concerning the need '... to be guided and controlled by the policy and purpose of the enactment, so far as that is manifest in it [and to] exclude from... consideration any matter which it would be unlawful... to take as a criterion... [subject to the qualification where] the statute seems to allow great latitude to the Commissioner in forming his opinion' . Moreover his Honour referred to what was said by Dixon J (as he then was) in R v Trebilco; Ex parte FS Falkiner & Sons Ltd [1936] HCA 63 ; (1936) 56 CLR 20 at 32 as to certain statutory 'considerations by which an exercise of discretion is to be guided... [t] he nature of those considerations [to] be gathered from the scope and object of the provision' . Additionally his Honour referred further to dictum of Mason J (as he then was) in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 40, where his Honour described the statutory discretion there addressed, albeit not related to fiscal exaction, as '... similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard', and where his Honour thereafter proceeded to emphasise that '[b]y analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act.' Those factors have aspects of materiality in relation to the issue or issues here falling for consideration.


case_outcome: cited

case_text: Further in his reasons for judgment in Powell at 263, Hill J referred to the dictum of Windeyer J in Giris Pty Ltd v Commissioner of Taxation [1969] HCA 5 ; (1969) 119 CLR 365 at 384 concerning the need '... to be guided and controlled by the policy and purpose of the enactment, so far as that is manifest in it [and to] exclude from... consideration any matter which it would be unlawful... to take as a criterion... [subject to the qualification where] the statute seems to allow great latitude to the Commissioner in forming his opinion' . Moreover his Honour referred to what was said by Dixon J (as he then was) in R v Trebilco; Ex parte FS Falkiner & Sons Ltd [1936] HCA 63 ; (1936) 56 CLR 20 at 32 as to certain statutory 'considerations by which an exercise of discretion is to be guided... [t] he nature of those considerations [to] be gathered from the scope and object of the provision' . Additionally his Honour referred further to dictum of Mason J (as he then was) in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 40, where his Honour described the statutory discretion there addressed, albeit not related to fiscal exaction, as '... similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard', and where his Honour thereafter proceeded to emphasise that '[b]y analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act.' Those factors have aspects of materiality in relation to the issue or issues here falling for consideration. 46 The Tribunal's finding as to likely 'serious hardship' was broadly contended by the Commissioner to be based on an hypothesis that caused the Tribunal to ignore matters that were relevant to the task required of it by s 340-5 of the Administration Act, those matters being the operation of the Bankruptcy Act , and also of the LP Act. The context, scope and object of s 340-5 of the Administration Act was said by the Commissioner to have required the Tribunal to consider the matters that would, or could, affect the financial circumstances of Mr Milne in the light of his then current tax liability. Accordingly, so the Commissioner's submissions continued, for the Tribunal to fail to take into consideration matters, such as the operation relevantly of those statutory provisions, constituted a further error of law, either by way of statutory misconstruction, or failure to take into account relevant considerations due to statutory misconstruction or otherwise. In that latter regard, I was referred to Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24, in particular in relation to what appears in the reasons for judgment of Mason J (as he then was) at 39, under the heading Failure To Take Into Account a Relevant Consideration . Of course in circumstances where the Tribunal, at least inherently or implicitly in the particular context the subject necessarily of consideration by the decision-maker, took into account relevant considerations and correspondingly took no account of irrelevant considerations, so much would normally suffice to satisfy the requirements of administrative obligations. 47 The power under s 340-5(3) was contended by the Commissioner in any event to require two matters in particular to be considered and determined: first, whether there would be serious hardship to Mr Milne in the circumstances postulated , and secondly, whether in all the circumstances otherwise prevailing, the Commissioner ought to have exercised the statutory discretion to release Mr Milne's subject taxation liability. In considering the first of those issues, it was contended by the Commissioner that the Tribunal addressed what it considered to be the so-called test of foreseeability and control, presumably thereby referring to the circumstances in which Mr Milne came to have incurred the subject tax liabilities in the first place. The second consideration was described in terms as to whether the release of Mr Milne, if granted, would be fair to 'others', whatever the implications of that broad description. The Tribunal was said by the Commissioner to have considered that in circumstances where a person had earnt a high level of income in the past, and was continuing to earn a high income, special factors were necessary in order to establish 'serious hardship'. The description 'high income' is in any event somewhat unspecific to be necessarily helpful. The Tribunal found that Mr Milne's 'battle to continue his professional work' , despite ill-health, and his need to support his dependent son until he finished school, were 'special factors' . 48 The approaches of the Tribunal's reasoning leading to its decision-making were attacked by the Commissioner as wrong, in that it was said to have 'misunderstood the meaning of serious hardship as a so-called backward looking matter, rather than a matter that turned on an objective analysis of the future'. On a proper understanding of that statutory term, questions as to special factors were said not to arise. In particular, the Commissioner asserted that a taxpayer's 'struggle to continue working' was simply irrelevant, but for what it may ultimately matter, I do not think that somewhat simplistic description sufficiently reflects the complexity of circumstances that the Tribunal explicitly and implicitly took into account in relation to Mr Milne. 49 Addressing a further basis advanced by the Commissioner for the present administrative review sought, it was contended that on a proper understanding of the two-tiered test in subs 340-5(3) of the Administration Act, no reasonable Tribunal could have exercised the statutory discretion to release Mr Milne from his taxation liability. Reference was made by the Commissioner in that regard to the grant of administrative relief made available in Parramatta City Council v Pestell [1972] HCA 59 ; (1972) 128 CLR 305, which related to a local Council's imposition of a rate because of the special benefit flowing from the Council's execution of a particular work or service on public property, and which the High Court affirmed to be invalid. It was argued by the Commissioner conversely that the factual circumstances of a high income earner having substantial assets, sufficient in value to meet all current liabilities, could not reasonably fall within the statutory notion of serious hardship . It is normally a formidable task to establish that the decision of an administrative decision-maker satisfies that test of invalidity. The Commissioner advanced the further case that the exercise of the Tribunal's power to release Mr Milne was unreasonable, in that on the evidence placed before it, no reasonable person could have come to the conclusions reached by the Tribunal in its decision the subject of appeal. I was referred again to Peko-Wallsend where at 41, Mason J discussed the scope of the principle of Wednesbury unreasonableness. I would make a similar observation upon that submission to that which I have made in relation to satisfaction of the test in Pestell .


case_text: Subsequently in Van Grieken v Veilands (1991) 21 ATR 1639, Gummow J cited the principled approach outlined by Hill J in Powell with at least implicit approval, observing that his Honour had further pointed out (at 626 of Powell ) that the decision-maker was entitled to 'consider not only such matters as go to the issue of serious hardship, but also other matters which, in the discretion of the Board, may be relevant'. 56 In my opinion submissions propounded by the Commissioner, which I have sought to outline in detail discretely or in the aggregate, do not vitiate the conclusions of the Tribunal according to law. The Tribunal's conclusions were reasonably open for adoption, being sufficiently founded upon evidentiary material bearing upon the critical statutory issue of serious hardship , including in particular the fraudulent conduct of Mr Milne's former partner in legal practice and its adverse effect upon Mr Milne financially and probably to at least an intangible extent professionally, and the unsaleable character of the Brindabella property for the time being for the reasons I have earlier indicated. It is of course necessary in that regard that the Commissioner's challenge to the factual findings of the Tribunal should establish a viable footing according to principles of administrative law, and the present appeal does not of course operate by way of a re-hearing. As I have foreshadowed, I am unable to accept that the Commissioner has distilled administrative error in the juridical sense referrable to the reasoning and findings of the Tribunal, being reasoning and findings which were rationally open for adoption in my opinion according to principles of administrative law, and in particular in the light of the relevant evidentiary material placed before the Tribunal. That material was consistent essentially with the conclusion that any enforced exaction of the outstanding income tax indebtedness of Mr Milne would cause serious hardship within the scope of that notion established for instance in Powell and subsequently in Van Grieken , and as continues in operation in the terms of operation of s 340-5 of the Administration Act.


case_outcome: discussed

case_title: Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634

case_text: I was next referred by the Commissioner to the assistance to be gained from government statements of policy, as outlined by Brennan J (then a member of the Tribunal) in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640, and in particular the following: 'There are powerful considerations in favour of a Minister adopting a guiding policy. It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.' I draw attention in particular to his Honour's reference to 'the guidance given by an adopted policy' . Of course the operations of that policy in relation to contemporary values may be a matter of difficulty when it comes to making a judgment in particular cases. 35 Upon the footing of what was described as 'those guiding principles and rulings', the Commissioner contended that the Tribunal 'misapplied or misinterpreted the statute in relation to the facts proved', since the present was not a case, so it was emphasised, where Mr Milne's 'financial difficulty was such that either he or his dependants would be '... in significant need warranting action... to relieve their condition' (those words cited appearing at [24] of the Tribunal's decision). The difficulty with that observation of generality lies in its application, and in particular in relation to Mr Milne's family exigencies as well as those of his own personally, involving as they do the need for reasonable accommodation for himself and apparently for two or at least the youngest of his three children, and completion of the education of that youngest child. 36 The Commissioner contended that in dealing with the issue of serious hardship , the Tribunal fell into error, in that the Tribunal: (i) failed to consider whether Mr Milne had sufficient equity in his assets to discharge all of his liabilities including the debt due to the Commissioner, without bankruptcy, and relied instead upon the statement of assets and liabilities provided by Mr Milne in September 2004, which however referred to his assets but not his liabilities; that material was said by the Commissioner to have demonstrated an excess of assets over liabilities of $409,800 and although Mr Milne subsequently provided an updated statement of assets and liabilities showing his financial position as of November 2004 (see in that regard what I have already reproduced in [8] above), nevertheless on the basis of that statement of assets and liabilities, there was available 'equity' in the sum of $199,200 to discharge a tax debt of $149,876.68; (ii) failed to take into account, adequately or at all, whether Mr Milne or his dependants would be deprived in reality of necessities according to normal community standards; in that regard it was said by the Commissioner that Mr Milne was in the position, at least for the foreseeable future, to earn significant income to provide for the necessities of life for one, or perhaps two, dependent children as well as himself; both the financial statement provided by Mr Milne to the Tribunal on 30 September 2004 and his updated financial information were further said to have demonstrated that just under one half of his estimated fortnightly expenses would be expended in mortgage payments; if the mortgage was to be discharged upon the sale of the properties at Eastwood and Brindabella, then on Mr Milne's own figures, there would be a fortnightly income surplus (even assuming the payment of a reasonable amount for rent on account of alternative accommodation, whatever that might be); and (iii) concentrated exclusively on what income Mr Milne required to survive on the assumption that he retained all of his assets, yet (according to the Commissioner) there were a number of errors inherent in that approach, in that: (a) if Mr Milne's level of expenditure remained approximately the same, and whether or not he was required to pay the amount due to the Commissioner, then absent the sale of his assets, he would face bankruptcy, yet relief of his income tax liability would not alleviate that plight, but would give preference to other creditors; (b) no or no proper regard was paid by the Tribunal to the extent of Mr Milne's assets generally; and (c) on Mr Milne's own case, some time within the next three years or so, he would cease to work; in such an event, he would have no income, and in order to discharge other creditors he would be required to sell his assets in any event. 40 The implications of all that were said by the Commissioner to be as follows: (i) Division 4B of Part VI of the Bankruptcy Act 1966 (Cth) came into force on 1 July 1992 by virtue of the Bankruptcy Amendment Act 1991 (Cth), and the objects of Division 4B of Part VI appear in s 139J as follows: '(a) to require a bankrupt who derives income during the bankruptcy to pay contributions towards the bankrupt's estate; and (b) to enable the recovery of certain money and property for the benefit of the bankrupt's estate;' (ii) in general terms, that Division provides for the trustee to assess the amount of a bankrupt's income in each successive year of the bankruptcy, and may establish a liability on the part of the bankrupt, pursuant to an income tax assessment, to make a contribution out of an excess of income assessed over a specified threshold; (iii) the threshold amount is defined in terms of the maximum basic rate of pension payable under the Social Security Act 1991 (Cth); (iv) the liability of a bankrupt to pay a contribution pursuant to his or her trustee's assessment is imposed by s 139P(1) of the Bankruptcy Act , which provides: 'Subject to s 139Q , if the income that a bankrupt is likely to derive during a contribution assessment period as assessed by the trustee under an original assessment exceeds the actual income threshold amount applicable in relation to the bankrupt when that assessment is made, the bankrupt is liable to pay to the trustee a contribution in respect of that period.' (v) section 139P(2) of the Bankruptcy Act provides for voluntary contributions where the assessed income falls below the threshold amount; s 139Q thereof imposes a liability to pay a contribution in respect of a contribution assessment period, where the trustee has made a subsequent assessment which exceeds the actual income threshold amount; (vi) the contribution payable by a bankrupt pursuant to that assessment process is defined in s 139S of the Bankruptcy Act as follows: 'The contribution that a bankrupt is liable to pay in respect of a contribution assessment period is the amount worked out in accordance with the formula: Assessed income-Actual income threshold amount 2 where: "Assessed income" means the amount assessed by the trustee to be the income that the bankrupt is likely to derive, or derived, during the contribution assessment period; "Actual income threshold amount" means the actual income threshold amount assessed by the trustee to be applicable in relation to the bankrupt when the assessment is made.'; (vii) the foregoing concept of 'actual income threshold amount' is further defined in s 139K on a sliding scale, increased according to the number of dependents that the bankrupt has and the extent of their dependency; 'the base income threshold amount' is defined in s 139K for a particular time as the amount that 'at that time, is specified in column 3, item 2, Table B, point 1064-B1, Pension Rate Calculator A, in the Social Security Act 1991 , multiplied by 3.5' ; (viii) in the present case, because Mr Milne has more than two dependents, the base income threshold amount is increased by 27% (s 139K(c)); and (ix) once Mr Milne became bankrupt, he would be liable to contribute 50% of the difference between his actual income (as assessed by the trustee) and the base income threshold amount so increased by 27%; according to the Commissioner's calculations, upon the basis of an assessable annual income of $90,000.00 and two dependent children, the formula in s 139K of the Bankruptcy Act required an annual contribution of $29,958.56 or a fortnightly contribution of $1,152.25 (being less than half of Mr Milne's fortnightly mortgage payments). 41 Significantly therefore, so the Commissioner submitted, Division 4B of the Bankruptcy Act contains within it a mechanism to determine a higher income threshold in cases of hardship; pursuant to s 139T(1) of the Bankruptcy Act , where the trustee has made an assessment of a contribution that a bankrupt is liable to pay and that bankrupt considers that if required to make any such contribution, he or she would suffer hardship (emphasised by the Commissioner incidentally to be 'not serious hardship ') for any reason or reasons set out in subs 139T(2), then the bankrupt may apply to the trustee for the making of a determination. The reasons which might be operative in the favour of Mr Milne, if made bankrupt, were said to be found within sub-paragraphs (a)-(e) of s 139T(2) , which read as follows: '(a) the bankrupt or the dependent of a bankrupt suffers from an illness or disability that requires on-going medical attention and the supply of medicines, and the bankrupt is required to meet a substantial proportion of the costs of that medical attention or those medicines from his or her income. (b) the bankrupt is required to make payments from his or her income to meet the cost of child day care to enable the bankrupt to continue in employment or other work; (c) the bankrupt is living in rented accommodation that is not provided by, or by an authority of, the Commonwealth, a State or a Territory, or by a local government authority, and the bankrupt is required to pay the cost of that accommodation wholly or mainly from his or her income: (d) the bankrupt incurs substantial expense in travelling to and from the bankrupt's place of employment or other work, whether by public transport or otherwise; (e) the spouse of the bankrupt, or another person residing with the bankrupt, who ordinarily contributes to the cost of maintaining the bankrupt's household has become unable to contribute to those costs because of unemployment, illness or injury.' 42 In summary, it was contended by the Commissioner that the Tribunal failed to consider all of the so-called 'true effects' which bankruptcy would have had on Mr Milne.


case_outcome: referred to

case_text: Moreover it was pointed out by the Commissioner that the value of a benefit received by a bankrupt fell within the operation of Subdivision D of Division 4B contained in Part VI of the Bankruptcy Act 1966 (Cth) ('the Bankruptcy Act '), which was said to have two elements: first it requires a bankrupt who derives income during the bankruptcy to pay contributions to his or her bankrupt's estate; secondly, it permits the bankrupt to seek to have contributions reduced in the case of hardship (in that regard I was referred to the circumstances considered by a Full Court (French, Cooper and Carr JJ) in Bond v The Trustee of the Property of Alan Bond, A Bankrupt (1994) 52 FCR 304 at 325, 327 and 332.


case_text: The test to be applied when determining fitness to hold a practising certificate, in the context of course of bankruptcy, was said by the Commissioner to be 'robust', the question not being whether the indebtedness which led to the bankruptcy was brought about by or associated with dishonest conduct by the applicant for a certificate, but whether the circumstances in which the act of bankruptcy was committed were such as to persuade the Council that at the time of its determination, the person is not a fit and proper person to hold a practising certificate (I was referred in that context generally to New South Wales Bar Association v Murphy [2002] NSWCA 138 ; (2002) 55 NSWLR 23). There was no material adduced in evidence indicative of any shortcoming in Mr Milne's fitness and propriety to practice as a lawyer. 45 The Commissioner submitted moreover that the Tribunal failed to consider and take into account the provisions relevantly of the LP Act. It was asserted in that regard that on a proper understanding of the meaning of serious hardship , a person such as Mr Milne, who had the capacity to meet his tax liability out of currently held assets, could never satisfy the Commissioner that his circumstances gave rise to the exercise of any discretion in favour of release from tax liability. For that reason alone, it was said by the Commissioner that the Tribunal's decision ought to be set aside, there being no utility in ordering that the matter be remitted to the Tribunal for proper or further consideration. Bearing in mind that the realty here involved in both instances was held jointly with his estranged wife, it would be a formidable exercise to determine what funds, if any, might ultimately be available for payment of the subject outstanding income taxes, and for the satisfaction of the secured creditors of Mr Milne and his wife to the extent of any shortfall on any mortgagee sale, and of her half share in the 'equity' of any remaining net proceeds in relation to the sale of their jointly held realty.


case_text: Addressing a further basis advanced by the Commissioner for the present administrative review sought, it was contended that on a proper understanding of the two-tiered test in subs 340-5(3) of the Administration Act, no reasonable Tribunal could have exercised the statutory discretion to release Mr Milne from his taxation liability. Reference was made by the Commissioner in that regard to the grant of administrative relief made available in Parramatta City Council v Pestell [1972] HCA 59 ; (1972) 128 CLR 305, which related to a local Council's imposition of a rate because of the special benefit flowing from the Council's execution of a particular work or service on public property, and which the High Court affirmed to be invalid. It was argued by the Commissioner conversely that the factual circumstances of a high income earner having substantial assets, sufficient in value to meet all current liabilities, could not reasonably fall within the statutory notion of serious hardship . It is normally a formidable task to establish that the decision of an administrative decision-maker satisfies that test of invalidity. The Commissioner advanced the further case that the exercise of the Tribunal's power to release Mr Milne was unreasonable, in that on the evidence placed before it, no reasonable person could have come to the conclusions reached by the Tribunal in its decision the subject of appeal. I was referred again to Peko-Wallsend where at 41, Mason J discussed the scope of the principle of Wednesbury unreasonableness. I would make a similar observation upon that submission to that which I have made in relation to satisfaction of the test in Pestell .


case_outcome: followed

case_text: A decision may be set aside upon an application for judicial review if it is " so unreasonable that no reasonable authority could properly have arrived at it ": Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118 per Gibbs J. The test is an objective one: Alexandra Private Geriatric Hospital Pty Ltd v Blewett (1985) 7 FCR 341. Sheppard J there stated, at 357, that a court: ... ought not to reach the conclusion that the decision is so entirely unreasonable unless [it] is clearly of the opinion that no reasonable mind could reach it. The decision will not be vitiated just because a court itself believes that the decision is unreasonable. It must be satisfied that no person acting reasonably could arrive at such a decision. ...


case_outcome: considered

case_title: Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72 , 225 CLR 88

case_text: No error may be discerned in the delegate adopting that approach. There is, in any event, only limited scope for contending that a decision is unreasonable by reason of a failure to pursue inquiries: cf Luu v Renevier (1989) 91 ALR 39 ; Visa International Service Association v Reserve Bank of Australia [2003] FCA 977 at [627] [628], [2003] FCA 977 ; 131 FCR 300 at 430 1 per Tamberlin J. Whatever may be the limits of an obligation upon a decision-maker to make inquiries when required to make relevant findings of fact, the obligation is even more confined when the administrative task being pursued is that of attempting to achieve a conciliated result. Only such inquiries need be undertaken by the delegate as are considered either appropriate or necessary to discharge the function of conciliation. The delegate is " not an independent arbiter charged with deciding an issue joined between adversaries " and was not bound to make his own inquiries for the purpose of forming a view about how a particular claim was to be resolved. Contrast: Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72 at [26] , [2005] HCA 72 ; 225 CLR 88 at 99 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.


case_title: Dunstan v von Doussa [2008] FCA 97

case_text: It should also be noted that an earlier interlocutory decision in these proceedings has caused to be joined the Attorney-General of the Commonwealth as the Fourth Respondent to the proceedings: Dunstan v von Doussa [2008] FCA 97. None of the remaining Respondents have taken any active part in the final hearing and each has instead filed a submitting appearance. 5 It is considered that the remaining claim for relief as made in the Further Amended Application should be dismissed. 6 The essential facts relevant to the decision not to revoke the Notice of Termination may be stated with some simplicity. 86 When the Attorney-General was joined as a party to the present proceedings, left open was this question as to whether he could seek an order for costs in the event that the Applicant was unsuccessful: Dunstan v von Doussa [2008] FCA 97 at [20] .


case_title: Haneef v Minister for Immigration & Citizenship [2007] FCA 1273 , 161 FCR 40

case_text: An " improper purpose ", it has been said, " will not lightly be inferred and, by application of a presumption of regularity, will only be inferred if the evidence cannot be reconciled with the proper exercise of the power ": Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46 ; (1990) 170 CLR 649 at 672 per Gaudron J. A person challenging an exercise of power upon the basis of improper purpose has the onus of establishing that contention. Where the purpose of a decision must be ascertained by inference from other facts, there is a presumption of regularity: Haneef v Minister for Immigration & Citizenship [2007] FCA 1273 at [278] , 161 FCR 40 at 88 per Spender J. An appeal has been dismissed: Minister for Immigration & Citizenship v Haneef [2007] FCAFC 203 , 163 FCR 414.


case_title: Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46 ; (1990) 170 CLR 649


case_title: Jones v Australian Competition & Consumer Commission [2002] FCA 1054 , 76 ALD 424

case_text: If attention is more specifically confined to the "Particulars" in fact provided in the Further Amended Application , there is no basis for concluding that the decision of the First Respondent was vitiated by reason of " apprehended bias ". A reasonable apprehension of bias must be " firmly established ": Re JRL; Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342 at 352. It is not sufficient if a reasonable bystander " has a vague sense of unease or disquiet ": Jones v Australian Competition & Consumer Commission [2002] FCA 1054 at [100] per Weinberg J, [2002] FCA 1054 ; 76 ALD 424. In the present proceedings there is not even a basis upon which any such " vague sense of unease " could be supported.


case_title: Luu v Renevier (1989) 91 ALR 39


case_text: A failure to take into account a relevant consideration only vitiates a decision if that consideration was one which the administrator was " bound " to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24. 39 None of the considerations identified by the Applicant are relevant considerations which the President was " bound " to take into account when making a decision pursuant to s 46PH(4). And some of the " Particulars " alleging considerations which, it is said, should have been taken into account do not fully set forth the facts relevant to the consideration relied upon. 40 One specific matter may be instanced. One "Particular" , again repeated in respect to the other Grounds of Review , asserts that the First Respondent failed to consider correspondence in which it is alleged the delegate " told the applicant he would be harmed if he continued the complaint ". Such a statement in correspondence emanating from the Commonwealth or its officers or delegates, without more, would be disturbing. The context, however, explains the true nature of what was being conveyed to the Applicant. 61 There is no objective basis upon which any such view could be reached in the present case. To the extent, for example, that it is alleged that it was unreasonable to take into account some considerations, a fundamental difficulty confronting the Applicant is that the considerations taken into account have been held to be relevant to the exercise of the discretionary power conferred by s 46PH(4). A further difficulty is that the weight to be given to any consideration is a matter for the First Respondent and not for the Court: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24. Mason J there at 41 2, in an oft cited passage, observed: It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power.... I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable". This ground of review was considered by Lord Greene MR in Wednesbury Corporation [[1948] 1 KB at 230, 233 4], in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it. This ground is now expressed in ss 5(2)(g) and 6(2)(g) of the AD(JR) Act in these terms. ... However, in its application, there has been considerable diversity in the readiness with which courts have found the test to be satisfied. ... But guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion. In the context of the latter, it has been held that an appellate court may review a discretionary judgment that has failed to give proper weight to a particular matter, but it will be slow to do so because a mere preference for a different result will not suffice. ... So too in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits. Nothing of that kind has been exposed in the present proceedings. 62 A further way in which the Applicant wishes to advance the Ground of unreasonableness, and also a way in which he seeks to contend that there has been a failure to take into account matters said to be relevant, is his repeated requests made of the Commission and the delegate as to the " need to gather more information ". The Applicant urged both the President of the Commission, and later the delegate, to make inquiries. The delegate took the position that it was not his task to conduct detailed inquiries with a view to resolving potentially competing factual accounts, but rather to seek to conciliate the complaint if at all possible. At the outset, in a letter written to the Applicant on 24 November 2006, the delegate wrote in part as follows: As I have indicated in previous correspondence my function is not as such to make a final or binding determination of the factual issues in the complaint; I am not required to make an operative decision of these matters. I am to inquire into the complaint and to attempt to conciliate it. This may or may not be what you would wish ideally to be the position; you may wish that the legislation provided something different from this. But I do ask you to understand that that is what the legislation provides and that it is all that I can do. Please assist me by focussing on this and by bearing in mind during the conciliation that this is what is involved. It will help you to understand what I am doing and what I have done.


case_title: Minister for Immigration & Citizenship v Haneef [2007] FCAFC 203 , 163 FCR 414


case_outcome: applied

case_text: Although it is by no means clear, it is considered that s 18(2) does not preclude an order for costs being made in favour of the Attorney-General. Such a conclusion is at least consistent with the following observations of Spender J in O'Keefe Nominees Pty Ltd v BP Australia Ltd (No 2) [1995] FCA 1079 ; (1995) 55 FCR 591 at 595. His Honour there addressed s 78A of the Judiciary Act 1903 (Cth) as follows: Section 78A(2) provides that where an Attorney-General of the Commonwealth of Australia intervenes in proceedings in a court under that section, the Court may make such order as to costs against the Commonwealth or the State as the case may be as the Court thinks fit. In my opinion, where there is intervention by an Attorney-General under that section, the Court does not have power to order costs in favour of the intervening Attorney-General. Subsection (3) provides that where an Attorney-General has intervened in a court, then "for the purposes of the institution and prosecution of an appeal ... the Attorney-General shall be taken to be a party to the proceedings". The effect of this subsection is that, where an Attorney-General has intervened under s 78A for the purposes of an appeal, costs orders may be made against him or her or in his or her favour. But subs (4) provides that where the Attorney-General has instituted an appeal in which the Attorney-General has intervened, the Court hearing the appeal may make such order as to costs ... "as the court thinks fit". 88 The significance of according to the Attorney-General the status of " a party to the proceedings ", as explained by his Honour, is a reason for concluding that costs can be awarded both for and against the Attorney-General. 89 The orders of the Court are: 1. The Further Amended Application as filed on 7 March 2008 be dismissed. 2. The Applicant to pay 80% of the costs of the Fourth Respondent. I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 5 June 2008 Counsel for the Applicant: The Applicant appeared in person Counsel for the Fourth Respondent: G McCarthy Solicitor for the Fourth Respondent: M Dubey (Blake Dawson) Date of Hearing: 24 April 2008 Date of Judgment: 5 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/827.html


case_title: SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 , 194 ALR 749

case_text: Such a Ground " is a serious matter involving personal fault on the part of the decision maker ": SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [43] , 194 ALR 749 at 756. It is a Ground which should not have been advanced in the present proceedings. It is certainly considered that the Ground would not have been relied upon had the Applicant been legally represented. 68 Reliance upon this Ground was rightly abandoned by the Applicant during the course of the hearing on 28 March 2008. 69 At the outset of the hearing on 28 March 2008 of the Further Amended Application , Mr Dunstan sought leave to file yet a further variant of that Further Amended Application .


case_title: Visa International Service Association v Reserve Bank of Australia [2003] FCA 977 , 131 FCR 300


case_text: Kowalski asserts that the primary judge misapplied the law in Anasson v Phillips (unreported, Sup Ct, NSW, Young J, 4 March 1988) and Levinge v Director of Custodial Services, Department of Corrective Services (1987) 9 NSWLR 546. These cases are, Mr Kowalski submits, authorities for the proposition that, where statements made in affidavits are not replied to or contradicted by other evidence and the deponents of the affidavits are not cross-examined, those statements will be accepted by the Court.


case_text: Kowalski has not presented any proper basis for asserting the primary judge did not bring an unprejudiced mind to the appeal ( Bienstein v Bienstein [2003] HCA 7 ; (2003) 195 ALR 225 at [35] - [36]). Mr Kowalski's dissatisfaction with his Honour's reasons is not sufficient to establish bias or reasonable apprehension of bias on the part of the primary judge ( Bienstein at [32]). As pointed out by Medicare, Mr Kowalski did not ask his Honour to disqualify himself before judgment was given. Mr Kowalski has not established any basis for such an allegation. None is apparent. Is there utility in the proceedings? What is Mr Kowalski's purpose in maintaining the proceedings? Mr Kowalski clarified why, despite the fact that Medicare has stated clearly that it will take no steps to recover any money he received from Mitsubishi, thus depriving the proceedings of any apparent utility, he wishes to maintain the proceedings. He says that he wishes to have determined at law whether or not monies received by him from Mitsubishi were compensation under the HOSC Act. He says that it is relevant to other proceedings presently before the Courts that he is bringing against the Military Compensation Commission and against Mitsubishi. He says that in both of these proceedings, the nature of the payments made by Mitsubishi is in issue. He also says that he believes that his failure to challenge Medicare will prejudice his claim against the Military Compensation Commission. There is no utility in the present proceeding. In effect, this case has no subject matter. An attempt by Mr Kowalski to maintain these proceedings in order to influence in some unspecified way other proceedings is an abuse of process and forms no basis for allowing this application for leave to appeal. Other matters have been raised in Mr Kowalski's notice of appeal, with which I will deal, although they were not pressed in oral argument. Alleged failure on the part of the Tribunal to provide reasons This ground seems to be based upon the fact that the Tribunal provided written reasons after the appeal was instituted in the Federal Court. The Tribunal did provide reasons for its decision and those reasons were considered by the primary judge. There is no suggestion in his Honour's reasons that the Tribunal's reasons were inadequate. There is no evidence before me to suggest that they were. Alleged failure correctly to apply the law regarding uncontradicted affidavit evidence


case_outcome: affirmed

case_text: 23D of the HOSC Act confers jurisdiction on the Tribunal to review a decision by the Medicare CEO that a statement under ss 18 or 23A, or an amended statement under s 23B, is not substantially correct. The Tribunal found that none of the correspondence from Mr Kowalski to Medicare constituted a statement under s 18 ( Kowalski v Chief Executive Officer of Medicare [2009] AATA 427 at [7] ). It found at [8] that it had no evidence before it that Medicare ever received a statement from Mr Kowalski under ss 18 or 23A, or an amended statement under s 23B, or that the Medicare CEO had made a decision of the kind referred to in s 23D(1). The Tribunal did not consider that there had been any reviewable decision by Medicare and dismissed Mr Kowalski's application.


case_text: Kowalski instituted an appeal to the Federal Court from the decision of the Tribunal. The primary judge dismissed the appeal pursuant to a motion brought by the Medicare CEO for summary dismissal pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) ( the FCA Act ) on the ground that Mr Kowalski had no reasonable prospects of success ( Kowalski v Chief Executive Officer of Medicare [2009] FCA 1072). The primary judge (at [13]) was of the view that the Tribunal's conclusion was correct. His Honour found that the Tribunal correctly concluded that the letters did not amount to statements of past benefits for the purposes of s 18(1) of the HOSC Act nor did they constitute or evidence a decision under s 23B of that Act. His Honour found that the Tribunal correctly concluded that the "decision" identified by Mr Kowalski by reference to the correspondence did not amount to or evidence a reviewable decision, that is, a decision reviewable by the Tribunal in accordance with the powers in ss 18, 23A and 23B of the HOSC Act. His Honour rejected the assertions that the Tribunal failed to provide adequate reasons and held that the Tribunal did not err in law in deciding that it did not have jurisdiction to entertain Mr Kowalski's application. His Honour dismissed the application and awarded indemnity costs. There was a further matter. As his Honour noted at [1], the purpose of these proceedings, in a practical sense, was not apparent. Medicare had informed Mr Kowalski in writing that it did not intend to take any further action against him under the HOSC Act to recover any monies paid by Mitsubishi and had pointed out to him that the proceedings appeared to be entirely unnecessary. As his Honour said at [19], '[t] hat is self-evident '. Application for leave to appeal


case_text: Kowalski made an oral application to the primary judge for leave to appeal both the judgment and the costs order after his Honour made orders and delivered reasons in this matter. His Honour ordered that the notice be treated as an application for leave to appeal for the purposes of the Federal Court Rules and that the proceedings be referred to another judge of the Court. An order under s 31A is interlocutory ( Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401 at [42]-[43] per Spender, Graham and Gilmour JJ ( Kowalski FCAFC ) approving Luck v University of Southern Queensland [2009] FCAFC 73 ; (2009) 176 FCR 268 at [101] per Rares J with whom Graham J agreed at [58]). Accordingly, Mr Kowalski needs leave to appeal the decision of the primary judge under s 24(1A) of the FCA Act.


case_text: Kowalski submits that the Court has no jurisdiction to award costs in this matter because the jurisdiction of the Court is enlivened by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ( AAT Act ). That submission was made and answered in Kowalski v Repatriation Commission (2009) 259 ALR 444 at [24] [28] per Spender, Graham and Gilmour JJ. The Full Court pointed out that there is no question of the Court's power to award costs and that the submission is answered by s 43(1) of the Federal Court of Australia Act which provides: Subject to subsection (1A) and section 570 of the Fair Work Act 2009, the Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs shall not be awarded. No other Act has been identified which provides that costs should not be awarded in these proceedings. The primary judge awarded costs against Mr Kowalski on an indemnity basis. I see no basis for any suggestion that his Honour's discretion in that regard miscarried. Medicare seeks costs of this application on an indemnity basis. Medicare submits that it was capricious for Mr Kowalski to institute these proceedings in circumstances where he should have known that there was no reasonable prospect of success and where Medicare was not seeking to recover anything from him or seeking in any way to implement what he described as a reviewable decision. Mr Kowalski was clearly on notice from the decision of the primary judge that his Honour was of the view that the proceedings had no utility. He had been warned by Medicare, when pointing out to him the futility of the proceedings commenced before the primary judge, that it would seek indemnity costs from his Honour. Mr Kowalski has persisted in this application for leave to appeal. There is no basis for his grounds of appeal. Medicare should be compensated for its costs of defending this application. Although the Court is generally more reluctant to order indemnity costs against self-represented litigants, I consider that it is appropriate to order costs against Mr Kowalski on an indemnity basis in these circumstances. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 2 December 2009 Counsel for the Applicant: The Applicant appeared in person. Solicitor for the Applicant: Mr A Schatz of Australian Government Solicitor Date of Hearing: 11 November 2009 Date of Final Submissions: 30 November 2009 Date of Judgment: 2 December 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1420.html


case_title: Levinge v Director of Custodial Services, Department of Corrective Services (1987) 9 NSWLR 546


case_title: Luck v University of Southern Queensland [2009] FCAFC 73 ; (2009) 176 FCR 268


case_text: Kowalski says that the primary judge failed to allow him to make oral submissions before dismissing his appeal against the Tribunal decision. Mr Kowalski states that he did not have an opportunity to make oral submissions, contrary to Twist v The Council of the Municipality of Randwick [1976] HCA 58 ; (1976) 136 CLR 106. He says that as a litigant in person, he should have been treated differently. Medicare contends that, at the directions hearing of 4 August 2009, both parties agreed to the primary judge hearing the appeal ' on the papers ' and that Mr Kowalski raised no objection to the absence of an oral hearing. Medicare says that Mr Kowalski only took exception to the course adopted by his Honour after judgment was handed down on 23 September 2009. The transcript of the relevant directions hearing before the primary judge is in evidence. During the hearing, the following exchange took place: His Honour: ....All right. Now, how do you want your appeal to proceed? Mr Kowalski: Well, I want it to proceed on papers His Honour: Okay, that's fine. What I'll do then is the following:... The primary judge then made directions, including for the filing of further affidavit evidence and written submissions by Mr Kowalski, taking into account Mr Kowalski's request for the time he required. His Honour then said: All right. 4. Direct notice of motion to be heard and determined on the papers. 5. Liberty to apply. So after 19 August I will consider all the material that's before me and I'll give you a ruling Mr Kowalski responded: Thank you, your Honour . Both Mr Kowalski and Medicare have referred to a number of decisions in which Mr Kowalski was a party and appeared for himself. It is apparent that, while Mr Kowalski is not legally represented and was not legally represented before the primary judge, he is not unfamiliar with court proceedings. To the extent that the question whether the parties would be content to have the primary judge deal with the matter ' on the papers ', his Honour was entitled to assume that Mr Kowalski understood what that meant. Mr Kowalski does not say that he questioned what that expression meant at the relevant time and, indeed, he used it himself. It is apparent to me after hearing Mr Kowalski present his application for leave to appeal that he is not reticent in making statements or asking questions if he feels the need to do so. In circumstances where the matter was raised clearly at the directions hearing, and that his Honour did not, on that occasion, fix the matter for an oral hearing, the course of conduct being addressed should have been apparent to Mr Kowalski. I see no denial of procedural fairness or of natural justice in the primary judge proceeding to do what he told the parties he would do, that is, to decide the matter on the papers. It is clear from his Honour's reasons that he gave full consideration to the subject matter before him. There is no basis for Mr Kowalski's claim that he was denied natural justice or procedural fairness by the primary judge. Alleged bias or reasonable apprehension of bias


case_text: All the individual respondents were knowingly concerned in such contraventions and thus are liable by virtue of s 75B. They were aware of the essential facts which constituted the contraventions indeed it was the individuals themselves who engaged in the relevant conduct. That they were not aware that the conduct was unlawful is relevant to the fixing of penalty but does not avoid liability: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661. 35 The original 1992 Agreement and its amendments and successive agreements were conceived by the orthodontists with extensive and ongoing legal advice. There seems to have been a widespread misunderstanding amongst the lawyers involved (and possibly many other lawyers) that professions were not subject to the Trade Practices Act . The assumption of legality was reinforced when Dr Gupta, prior to becoming a signatory to the Agreement in 2000, furnished the then existing contracts to a separate solicitor for perusal and that solicitor similarly failed to raise any competition law issues. The same occurred when Dr Stankevicius joined the arrangements. 36 While of course ignorance of the law is not an excuse, the Commission, properly in my view, accepts that the failure of lawyers in separate firms to properly advise their clients is a matter that goes some way towards explaining and mitigating the conduct of the orthodontists.


case_text: Litigation to establish contraventions such as those admitted by Messrs Knight and Ross can be very complex, time consuming and costly. It is in the public interest for litigation to be concluded in the shortest time frame that is consistent with justice being done between the parties, freeing the ACCC to deal with other matters and reducing the public cost of a lengthy hearing in the Court. Consequently, the Court has encouraged negotiated resolution of proceedings by the ACCC, provided that their terms recognise that the ultimate responsibility for determining the existence of a contravention or contraventions, and as to the proper orders to resolve the proceedings lies with the Court (see Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375; NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285). 72 I must of course be mindful that the respondents are individuals carrying on business, rather than corporate entities, so the penalty factors set out above must be adapted, where possible, to the circumstances of the respondents . I also bear in mind, as Burchett J pointed out in Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375 at 40,169, that the total penalty for related offences ought not to exceed what is proper for the entire contravening conduct involved (the 'totality principle' as known in the criminal law).


case_text: Litigation to establish contraventions such as those admitted by Messrs Knight and Ross can be very complex, time consuming and costly. It is in the public interest for litigation to be concluded in the shortest time frame that is consistent with justice being done between the parties, freeing the ACCC to deal with other matters and reducing the public cost of a lengthy hearing in the Court. Consequently, the Court has encouraged negotiated resolution of proceedings by the ACCC, provided that their terms recognise that the ultimate responsibility for determining the existence of a contravention or contraventions, and as to the proper orders to resolve the proceedings lies with the Court (see Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375; NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285). 8 That approach was considered and approved by the Full Federal Court in NW Frozen Foods 71 FCR 285. In that case, the Court held at 298 299: We agree with the statement made in several of the cases cited that it is not actually useful to investigate whether, unaided by the agreement of the parties, we would have arrived at the very figure they propose. The question is not that; it is simply whether, in the performance of the Court's duty under section 76 , this particular penalty, proposed with the consent of the corporation involved and of the Commission, is one that the Court should determine to be appropriate. 9 The Full Court further stated at 291: There is an important public policy involved. When corporations acknowledge contraventions, very lengthy and complex litigation is frequently avoided, freeing the courts to deal with other matters, and investigating officers of the Australian Competition and Consumer Commission to turn to other areas of the economy that await their attention. At the same time, a negotiated resolution in the instant case may be expected to include measures designed to promote, for the future, vigorous competition in the particular market concerned. These beneficial consequences would be jeopardised if corporations were to conclude that proper settlements were clouded by unpredictable risks. A proper figure is one within the permissible range in all the circumstances. The Court will not depart from an agreed figure merely because it might otherwise have been disposed to select some other figure, or except in a clear case. 10 The Full Court noted (at 290) that generally the most significant and relevant matters that the Court needed to consider about penalty were effects upon the functioning of markets and other economic effects. Although the Court is responsible for determining the appropriate penalty, the Full Court considered that it would be informed by the views of the ACCC about those effects. 11 The decision of the Full Court in NW Frozen Foods 71 FCR 285 was followed by a later Full Court in Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR 41-993. In that case, the Full Court at 48,626 also said that it considered that the following proposition emerged from NW Frozen Foods 71 FCR 285: ...the views of the regulator on matters within its expertise (such as the ACCC's views as to the deterrent effect of a proposed penalty in a given market) will usually be given greater weight than its views on more 'subjective' matters. 71 Those considerations were approved and expanded upon by the Full Court of the Federal Court in NW Frozen Foods 71 FCR 285 and by Heerey J in Australian Competition and Consumer Commission v J McPhee & Son (Australia) Pty Ltd (1998) ATPR 41-628 to include: (a) whether the person has previously been found by the Court to have engaged in similar conduct (a matter required to be taken into account by section 76); (b) the effect on the functioning of the market and other economic effects of the conduct; (c) the financial position of the contravening company; and (d) whether the conduct was systematic, deliberate or covert. 73 It has long been accepted that a principal object of a penalty under s 76 is deterrence (see Trade Practices Commission v Stihl Chain Saws (Aust) Pty Ltd (1978) ATPR 40-091 at 17,896 per Smithers J). In Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,152, French J stated: The principal, and I think probably the only, object of the penalties imposed by s. 76 is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravener and by others who might be tempted to contravene the Act. This approach was approved by the majority of the Full Federal Court in NW Frozen Foods 71 FCR 285 . 74 Deterrence has two aspects: specific deterrence in respect of the actual contravener and general deterrence of others "who may be disposed to engage in prohibited conduct of a similar kind" ( Trade Practices Commission v Mobil Oil Australia Ltd (1984) 4 FCR 296 at 298, per Toohey J). The Full Court in NW Frozen Foods 71 FCR 285 made it clear (at 294-295) that: The Court should not leave room for any impression of weakness in its resolve to impose penalties sufficient to ensure the deterrence, not only of the parties actually before it, but also of others who might be tempted to think that contravention would pay ...


case_text: The principles governing whether a Court should accept a penalty that has been agreed between the ACCC and a respondent were considered in Trade Practices Commission v Allied Mills Industries Pty Ltd (No 4) (1981) 37 ALR 256 by Sheppard J, who stated at 259: It is, of course, true that the penalty has been suggested to me by the agreement of the parties. Uninformed of their agreement, I may have selected a different figure, but I am satisfied that it would not have been very different from theirs. There is from time to time, amongst members of the profession and amongst the public, discussion concerning plea bargaining. Sometimes it is suggested that it involves disreputable conduct. It is my opinion that that is so if it at all implicates the court in private discussions as to what the court's attitude will or would be likely to be if a particular course is taken. In this case nothing of that kind has occurred. The parties have made their own agreement and put it to the court for approval, not knowing what its attitude was likely to be. ... This, of course, is not a criminal case; the liability is civil only. But, even in the most serious criminal cases, it is not unusual for the prosecution to accept a plea to a lesser charge, subject always to the approval of the court. I have said what I have only to explain that the course which the parties have adopted is both proper and not uncommon, even though perhaps novel in the comparatively new field of trade practices.


case_text: The decision of the Full Court in NW Frozen Foods 71 FCR 285 was followed by a later Full Court in Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR 41-993. In that case, the Full Court at 48,626 also said that it considered that the following proposition emerged from NW Frozen Foods 71 FCR 285: ...the views of the regulator on matters within its expertise (such as the ACCC's views as to the deterrent effect of a proposed penalty in a given market) will usually be given greater weight than its views on more 'subjective' matters.


case_text: Further, in Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 161 ALR 79 at 86, at [18], French J said: The question whether an undertaking is to be accepted or a consent order made is not concluded by a finding that it is within the power of the court to do so. The power of the court to make the orders sought is "defined and conferred by public law not by private agreement": Fiss, "Against Settlement" (1984) 93 Yale Law Journal 1073. In the exercise of that power the court is not merely giving effect to the wishes of the parties, it is exercising a public function and must have regard to the public interest in doing so. This principle applies to the resolution of private litigation by consent orders or undertakings. A fortiori it applies to proceedings brought by the Crown or public or statutory authorities to enforce the law in the public interest. The court has a responsibility to be satisfied that what is proposed is not contrary to the public interest and is at least consistent with it ... Consideration of the public interest, however, must also weigh the desirability of non-litigious resolution of enforcement proceedings . (emphasis added). 13 There have been many other decisions of the Court applying those general principles. 14 As I indicated at the close of submissions, I am satisfied that each of the declarations proposed is appropriate and is within power. I am also satisfied that the amount of the proposed pecuniary penalties in each instance and the further proposed order for each of Mr Knight and Mr Ross to attend a trade practices compliance program is appropriate and within power.


case_text: The Court has a wide discretion under section 21 of the Federal Court of Australia Act 1976 (Cth) to make binding declarations of right (see, for example: Trade Practices Commission v Santos Limited (1993) ATPR 41-221; Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89; RAIA Insurance Brokers Limited v FAI General Insurance Co Limited (1993) 41 FCR 164; Australian Competition & Consumer Commission v Target (2001) ATPR 41-840 at [14]). The proposed declarations go to the legal controversy between the parties ( Ainsworth and Anor v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 596) and the ACCC has a "real interest", as that expression was used in Forster v Jododex Aust Pty Limited [1972] HCA 61 ; (1972) 127 CLR 421 at 437 438, in seeking declaratory relief as the public body charged with enforcing the TPA and the Code (see Australian Competition & Consumer Commission v Goldy Motors Pty Ltd (2001) ATPR 41-801 at [30]).


case_title: Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89


case_title: RAIA Insurance Brokers Limited v FAI General Insurance Co Limited (1993) 41 FCR 164


case_title: Australian Competition & Consumer Commission v Target (2001) ATPR 41-840


case_title: Ainsworth and Anor v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564


case_title: Forster v Jododex Aust Pty Limited [1972] HCA 61 ; (1972) 127 CLR 421


case_title: Australian Competition and Consumer Commission v Goldy Motors Pty Ltd (2001) ATPR 41-801


case_text: In the light of those findings, I consider it appropriate to make declarations in the terms proposed by the parties. The matters they address are far from hypothetical, and the proposed declarations specifically address the particular contravening conduct on the part of Mr Knight and Mr Ross which has been established: see Rural Press Limited v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53. 67 Section 86C of the TPA contains the power to order a contravenor of a provision of the TPA to attend a compliance program. The text of the Code includes that (and other) provisions of the TPA which relate to the Schedule version of Part IV: see s 4(1)(b) of the Competition Policy Reform (South Australia) Act 1996 (SA). The proposed order that each of Mr Knight and Mr Ross attend a trade practices compliance program is therefore within power. As it is agreed that their contravening conduct was engaged in ignorance of the relevant provisions of the Code, it is appropriate that they should attend such a program provided it is relevant to the contraventions. The proposed order satisfies that proviso and is sufficiently clear and precise to enable the performance of it to be readily undertaken and assessed. 68 The proposed orders for costs are also clearly within the Court's power and are appropriate.


case_text: Section 76 of the Code and of the TPA sets out matters to which the Court must have regard in determining an appropriate level of penalty. The principles are generally equally relevant to the assessment of a pecuniary penalty under the Code. They were addressed by French J in Trade Practices Commission v CSR Limited (1991) ATPR 41-076 at 52,152 - 52,153. French J, dealing with a corporation not an individual, formulated these as follows: (a) the nature and extent of the contravening conduct; (b) the amount of loss or damage caused; (c) the circumstances in which the conduct took place; (d) the size of the contravening company; (e) the degree of power it has, as evidenced by its market share and ease of entry into the market; (f) the deliberateness of the contravention and the period over which it extended; (g) whether the contravention arose out of the conduct of senior management or at a lower level; (h) whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention; and (i) whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention. 73 It has long been accepted that a principal object of a penalty under s 76 is deterrence (see Trade Practices Commission v Stihl Chain Saws (Aust) Pty Ltd (1978) ATPR 40-091 at 17,896 per Smithers J). In Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,152, French J stated: The principal, and I think probably the only, object of the penalties imposed by s. 76 is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravener and by others who might be tempted to contravene the Act. This approach was approved by the majority of the Full Federal Court in NW Frozen Foods 71 FCR 285 .


case_text: Those considerations were approved and expanded upon by the Full Court of the Federal Court in NW Frozen Foods 71 FCR 285 and by Heerey J in Australian Competition and Consumer Commission v J McPhee & Son (Australia) Pty Ltd (1998) ATPR 41-628 to include: (a) whether the person has previously been found by the Court to have engaged in similar conduct (a matter required to be taken into account by section 76); (b) the effect on the functioning of the market and other economic effects of the conduct; (c) the financial position of the contravening company; and (d) whether the conduct was systematic, deliberate or covert.


case_text: It has long been accepted that a principal object of a penalty under s 76 is deterrence (see Trade Practices Commission v Stihl Chain Saws (Aust) Pty Ltd (1978) ATPR 40-091 at 17,896 per Smithers J). In Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,152, French J stated: The principal, and I think probably the only, object of the penalties imposed by s. 76 is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravener and by others who might be tempted to contravene the Act. This approach was approved by the majority of the Full Federal Court in NW Frozen Foods 71 FCR 285 .


case_text: Deterrence has two aspects: specific deterrence in respect of the actual contravener and general deterrence of others "who may be disposed to engage in prohibited conduct of a similar kind" ( Trade Practices Commission v Mobil Oil Australia Ltd (1984) 4 FCR 296 at 298, per Toohey J). The Full Court in NW Frozen Foods 71 FCR 285 made it clear (at 294-295) that: The Court should not leave room for any impression of weakness in its resolve to impose penalties sufficient to ensure the deterrence, not only of the parties actually before it, but also of others who might be tempted to think that contravention would pay ...


case_text: In Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301, Goldberg J concluded at [39] that: The penalty imposed must be substantial enough that the party realises the seriousness of its conduct and is not inclined to repeat such conduct. Obviously the sum required to achieve this object will be larger where the Court is setting a penalty for a company with vast resources. However, as specific deterrence is only one element and general deterrence must also be achieved, consideration of the party's capacity to pay must be weighed against the need to impose a sum which members of the public will recognise as significant and proportionate to the seriousness of the contravention. 76 In applying the above principles to the conduct of each respondent, and having regard to all the factors and circumstances including those outlined below, the ACCC and Messrs Knight and Ross submit that penalties in the following amounts are appropriate, and are within the range of penalties a Court would order in the circumstances: Mr Knight: $55,000 Mr Ross: $55,000 I consider that those proposed penalties are within the range of penalties which might properly be imposed for the contraventions. 77 I will briefly set out my reasons for that conclusion, in the light of the matters discussed in the cases referred to.


case_text: On 14 November 2005, the applicant was released from immigration detention by reason of his status as an ' Absorbed Person ', in conformity with the decision of the Full Federal Court in Nystrom v Minister for Immigration [2005] FCAFC 121 ; (2005) 143 FCR 420.


case_text: On 8 November 2006, the High Court allowed an appeal from the judgment of the Full Federal Court: Minister for Immigration v Nystrom [2006] HCA 50 ; (2006) 230 ALR 370. In consequence of the High Court's decision, on 28 November 2006 the applicant was again taken into immigration detention. 18 On 1 December 2006, the applicant was interviewed by a Departmental officer while in detention at Villawood. On 20 December 2006, the Department of Immigration advised the applicant that the previous cancellation of his visa was being reviewed.


case_text: On 23 January 2006, the applicant was released from immigration detention following the decision in Sales v Minister for Immigration [2006] FCA 1807. This decision apparently was taken to suggest that there may have been a failure to accord the applicant procedural fairness in relation to the earlier cancellation of his visa. 20 On 3 April 2007, the Department wrote to the applicant (who was then not in custody) advising that it was giving fresh consideration as to whether his Transitional (Permanent) (BF-C) visa should be cancelled under s 501 of the Migration Act . The letter encouraged the applicant to provide the Department with all information that he wished the Minister, or a delegate, to consider in making the decision. 21 On 5 April 2007, the Department sent the applicant a ' NOTICE OF INTENTION TO CONSIDER CANCELLATION OF YOUR VISA UNDER SUB-SECTION 501(2) OF THE MIGRATION ACT 1958 '. The Notice informed the applicant that the information to be relied upon would include his convictions for murder and attempted murder, the sentences imposed in respect of those offences and the redetermination of the sentence for murder that was made on 13 August 1998. The letter advised that the information that might be taken into account included the transcript of proceedings of a number of criminal proceedings involving the applicant, as well as other material specified in the letter. The applicant was further advised that all information that he had previously provided would be taken into account in making the decision. However, he was invited to provide information and comments in relation to the application of the character test and to address any matters that he considered that the Minister should take into account when exercising the statutory discretion.


case_title: Plaintiff S157/2002 v Commonwealth (2003) 162 CLR 476

case_text: The decision by the Minister to cancel the applicant's visa was a ' privative clause decision ': Migration Act s 474(2) , (3)(b). Accordingly, the applicant is entitled to the relief he claims, or some variation thereof, only if he can establish that the Minister has committed jurisdictional error: Migration Act s 474(1) ; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. In my opinion, none of the grounds identified by the applicant establishes jurisdictional error by the Minister in connection with the making of the visa cancellation decision. 39 The first ground merely asserts the existence of jurisdictional error, without providing particulars or any basis for the assertion. 40 The second ground seems to challenge the Minister's conclusion that the applicant had a substantial criminal record for the purposes of s 501(7) of the Migration Act . It is clear, however, that the applicant satisfied the definition. He was initially sentenced to life imprisonment following his conviction for murder and, subsequently, to a redetermined sentence of 21 years, with a minimum custodial term of 16 years.


case_text: While the rules of natural justice (or procedural fairness) apply to the decision in this case, they do not necessarily mean that the Minister was bound to afford the appellant an oral hearing: Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39 ; (1977) 137 CLR 487 , at 516, per Aickin J; Chen v Minister for Immigration and Ethnic Affairs [1994] FCA 985 ; (1994) 48 FCR 591 , at 597, per curiam . Whether there is such an obligation will depend on the circumstances including the terms of the legislation, the nature of the decision, the characteristics of the decision-maker and the factual matters, if any, in dispute: cf M Aronson, B Dyer and M Groves, Judicial Review of Administrative Actions (3 rd ed 2004), at 493-494.


case_title: Chen v Minister for Immigration and Ethnic Affairs [1994] FCA 985 ; (1994) 48 FCR 591


case_text: In M238/2002 v Minister for Immigration, Multicultural & Indigenous Affairs [2003] FCA 936 , Kenny J made some helpful observations on the requirements of procedural fairness in relation to a Ministerial visa cancellation decision under s 501(2). Her Honour noted (at [41]) that: 'Procedural fairness required that, before any decision was made, the Minister afford the applicant a fair opportunity to present information and argument against the cancellation of his visa. Precisely what constituted a fair opportunity depended on all the circumstances of the case, including the nature of the statutory power in question and the interests promoted by it, the interests of persons affected by the decision, and what was relevantly known by the decision-maker at the time the decision was made.' 45 Kenny J acknowledged (at [43]) that any visa cancellation decision made by the Minister has great importance to the person affected. However, her Honour also pointed out that: the power is conferred in order that the Minister can act in the public interest to protect of the Australian community. Under this provision, the legislature has entrusted to the Minister the responsibility for deciding whether the public interest should prevail over the private interest of a visa holder.' As Gleeson CJ and Gummow J stated in Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 ; (2000) 205 CLR 507 , at 539, the statutory power in s 501 is reposed in a political official, who is a member of the Executive and accountable to Parliament and the electorate. It is therefore unlikely that Parliament contemplated that every visa cancellation decision would require the Minister, as a pre-condition to the exercise of his or her powers, to afford an oral hearing to the visa holder. 46 Of course, the requirements of procedural fairness may be onerous, even without an obligation to provide an oral hearing. Procedural fairness requires the visa holder to be given an opportunity to: 'rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.' Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074 ; (1994) 49 FCR 576 , at 592, per curiam , cited by Kenny J in M238/2002 v Minister , at [44].


case_text: Kenny J acknowledged (at [43]) that any visa cancellation decision made by the Minister has great importance to the person affected. However, her Honour also pointed out that: the power is conferred in order that the Minister can act in the public interest to protect of the Australian community. Under this provision, the legislature has entrusted to the Minister the responsibility for deciding whether the public interest should prevail over the private interest of a visa holder.' As Gleeson CJ and Gummow J stated in Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 ; (2000) 205 CLR 507 , at 539, the statutory power in s 501 is reposed in a political official, who is a member of the Executive and accountable to Parliament and the electorate. It is therefore unlikely that Parliament contemplated that every visa cancellation decision would require the Minister, as a pre-condition to the exercise of his or her powers, to afford an oral hearing to the visa holder.


case_text: Of course, the requirements of procedural fairness may be onerous, even without an obligation to provide an oral hearing. Procedural fairness requires the visa holder to be given an opportunity to: 'rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.' Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074 ; (1994) 49 FCR 576 , at 592, per curiam , cited by Kenny J in M238/2002 v Minister , at [44].


case_title: Oxford Funding Proprietary Limited v Oxford Asia Pacific Investments Proprietary Limited (No 2) [2006) FCA 1542 at [5]

case_text: The considerations which apply when a matter has otherwise been resolved but the parties seek an order for costs has recently been discussed by me in Oxford Funding Proprietary Limited v Oxford Asia Pacific Investments Proprietary Limited (No 2) [2006) FCA 1542 at par [5]. 6 In the present case the dispute arose in circumstances of great urgency. The parties are fierce trade rivals, and understandably concerned to protect their commercial interests. The Court should not be too ready to dictate in hindsight a particular course of conduct which the parties could or should have taken. 7 I think the applicant acted reasonably in initiating proceedings to forestall what was arguably, in its view, misleading and deceptive conduct by the respondent which could be seriously damaging. The respondent, on the other hand, proffered firm assurances which would meet the applicant's concerns. As events have turned out, those assurances have been substantiated. It is possible that the respondent might have offered more corroborating detail in its letter of today's date. However, that was a matter for judgment which had to be made quickly and under pressure. Given its legitimate concern about confidentiality of dealings with the Therapeutic Goods Administration, I do not think that the respondent acted unreasonably, although it might have acted differently. 8 In the circumstances, I do not propose to make any order as to costs. The substantive application will be dismissed. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 30 November 2006 Counsel for the Applicant: D Shavin QC and I Horak Solicitors for the Applicant: Clayton Utz Counsel for the Respondent: S McVicar Solicitors for the Respondent: Freehills Date of Hearing: 30 November 2006 Date of Judgment: 30 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1763.html


case_text: It is said that such a purpose on the part of the respondent, in giving an authority to Nicholas Eddy under s 188 of the Act, 'is foreign to the bankruptcy laws': Edelsten v Deputy Commissioner of Taxation (NSW) & Ors (1989) 86 ALR 257 at 261. 13 The difficulty I have with this argument is that subs 188(1) of the Act is predicated on the following basis: 'A debtor who desires that his or her affairs be dealt with under this Part without his or her estate being sequestrated ...' 14 In other words, the outcome upon which the applicant relies as an abuse of process, namely, the avoidance of sequestration of the respondent's estate, is the very basis upon which an authority under subs 188(1) is predicated. If a debtor has a desire that his or her affairs be dealt with under Part X without his or her estate being sequestrated and that is his only purpose in giving an authority of the kind to which that section provides, that cannot be a purpose which is 'foreign to the bankruptcy laws'. Indeed, it is a purpose which is contemplated by such laws.


case_text: But this Court should not be left to speculate. Grounds of Appeal should be drafted in such a manner as to expose to both the respondents and to this Court the errors alleged to have been committed. An unrepresented party has no licence to not comply with O 52, r 13(2)(b) of the Federal Court Rules 1979 (Cth). That rule provides that a notice of appeal shall state " briefly, but specifically, the grounds relied upon in support of the appeal " . In Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 , 55 IPR 354 Branson J observed of this provision : [4] A ground of appeal is a basis upon which the appellant will contend that the judgment, or a part of the judgment, should be set aside or varied by the Court in the exercise of its appellate jurisdiction. Not every grievance entertained by a party, or its legal advisors, in respect of the factual findings or legal reasoning of the primary judge will constitute a ground of appeal. Findings as to subordinate or basic facts will rarely, if ever, found a ground of appeal. Even were the Full Court to be persuaded that different factual findings of this kind should have been made, this would not of itself lead to the judgment, or part of the judgment, being set aside or varied. This result would be achieved, if at all, only if the Full Court were persuaded that an ultimate fact in issue had been wrongly determined. The same applies with respect to steps in the primary judge's process of legal reasoning. Although alleged errors with respect to findings as to subordinate or basic facts, and as to steps in a process of legal reasoning leading to an ultimate conclusion of law, may be relied upon to support a ground of appeal, they do not themselves constitute a ground of appeal. [5] A useful practical guide is that a notice of appeal which cannot be used to provide a sensible framework for the appellant's submissions to the Full Court is almost certainly a notice of appeal which fails to comply with the requirements of O52 r13(2)(b). Neither the notice of appeal nor the document containing the revised grounds of appeal was, or could have been, so utilised in this case. See also: Commonwealth v Evans [2004] FCA 654 at [35] , 81 ALD 402 ; Argus Real Estate Holdings Pty Ltd v Lyristakis [2002] FCAFC 256 at [10] per Spender and Miles JJ.


case_title: Commonwealth v Evans [2004] FCA 654


case_text: Indeed, the Tribunal's reasons set forth a detailed account of the evidence before it and a detailed account as to its " Findings and reasons " based upon the evidence. Findings were made on " material questions of fact " and reference made to the evidence upon which those findings were based. The reasons of the Tribunal, it is considered, " inform " the Appellant (and others) as to why the application for review was unsuccessful. Those reasons are not to be scrutinised in any " over-zealous " manner seeking to discern some inadequacy by the way in which the reasons have been expressed: cf Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 , 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. 29 The second Ground of Appeal is also rejected. 30 The third Ground of Appeal asserts a jurisdictional error by reason of the fact that the Tribunal " mentioned that, ' the Tribunal does not accept that the applicant's business suffered losses as a result of a harm from Hindu' " and thereafter the fact that the Tribunal " mentioned that the Tribunal has accepted that the applicant's business has suffered losses in India and has been forced to close ".


case_text: This aspect of the first Ground of Appeal also does not prevail. Section 424A(3)(a) excludes from the operation of s 424A information " that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member ". This provision imposes one test and does not contain two disjunctive elements; that is to say, the provision is referring to information that is not specifically about an applicant or another person (such as a witness) but is " by way of contradistinction about a class of persons of which an applicant or the other person is a member ": Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 at [64] , [2004] FCAFC 264 ; 140 FCR 572 at 586 per Beaumont J; see also Merkel and Hely JJ at [138]. 20 A review of what is understood to be the " information " only exposes information that is " not specifically about " the Appellant. 21 The " information " set forth by the Tribunal contains an outline of the formation of the " People's War Group ", its aims and ideology and an extract of a United States Department of State Country Reports on Human Rights Practices 2000 . Further " information " is also set forth by the Tribunal as to freedom of religion in India and a Report from the UK Home Office on communal violence. None of this " information " refers at all to the Appellant.


case_text: The findings of fact made by the Tribunal were findings open to it, especially bearing in mind the adverse findings which had been made as to credit. If a tribunal does not believe a particular witness, no detailed reasons need be given for those adverse findings: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 , 168 ALR 407. Justice McHugh there concluded: [67] In addition, the prosecutor alleges that the Tribunal breached s430(1) by failing to set out reasons for its finding that the prosecutor's claim that members of PLOTE tried to recruit him were "utterly implausible". However, this was essentially a finding as to whether the prosecutor should be believed in his claim -- a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. ... 34 The final Ground of Appeal is also rejected. 35 The Orders of the Court are : 1. The appeal be dismissed. 2. The Appellant to pay the costs of the First Respondent of and incidental to the appeal. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 6 May 2008 Counsel for the Appellant The Appellant appeared in person Counsel for the First Respondent: T Reilly Solicitor for the First Respondent: N Johnson (Sparke Helmore) Date of Hearing: 6 May 2008 Date of Judgment: 6 May 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/614.html


case_text: Section 424A(1) requires the Tribunal to provide " clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review ". It is a provision which imposes a mandatory requirement and a breach of that section constitutes jurisdictional error: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 at [77] per McHugh J, at [173] per Kirby J, at [208] per Hayne J, [2005] HCA 24 ; 228 CLR 294 ; SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [13] , [2007] FCA 26 ; 235 ALR 609 at 614 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.


case_title: Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157


case_text: Section 424A(1) requires the Tribunal to provide " clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review ". It is a provision which imposes a mandatory requirement and a breach of that section constitutes jurisdictional error: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 at [77] per McHugh J, at [173] per Kirby J, at [208] per Hayne J, [2005] HCA 24 ; 228 CLR 294 ; SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [13] , [2007] FCA 26 ; 235 ALR 609 at 614 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. 14 Even if the deficiencies in the Notice of Appeal be left to one side, a review of the terms of the 4 April 2007 letter and the terms of the decision of the reconstituted Tribunal does not reveal any relevant " information " which should have been brought to the Appellant's attention and which was not referred to in the letter. In particular, it should be noted that the term " information " in s 424A(1) does not extend to " the existence of doubts, inconsistencies or the absence of evidence ": SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18] , [2007] FCA 26 ; 235 ALR 609 at 616. Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ there held: [18] ... if the reason why the tribunal affirmed the decision under review was the tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of para (a) of s 424A(1). Again, if the tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information": ... does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc ... If the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself. This may have been what was envisaged by the Appellant. The grounds of the application as made to the Federal Magistrates Court similarly contended that there had been a failure to comply with s 424A and separately contended that the Tribunal had not informed " the applicant regarding the inconsistent evidence ". It may be that the Appellant sought to combine these contentions into the first Ground of Appeal . But that is speculation. Even if that was what was intended, there has been no failure to inform the Appellant of the inconsistencies relied upon and no failure to comply with s 424A.