case_text: 234 has been described as a "gateway" opening the way for a challenge to the continued registration of a trade mark. In TGI Friday's Australia Pty Ltd v TGI Friday's Inc [2000] FCA 720 ; (2000) 100 FCR 358 at [32] [36] (p 364), the Full Court discussed s 234. At [35] [36], the Court said: Section 234(2) does not of itself authorise rectification of the Register by cancellation of a trade mark or otherwise. Rather, the subsection acts as an impediment to any proceeding alleging invalidity. Any application by Friday's Australia and Big Country for rectification of the Register must be made under s 88 of the 1995 Act. Even if, as Friday's Australia and Big Country contend, s 234(2)(d) or (e) applies in this case, the consequence is only that the conclusive presumption of validity does not arise. Satisfaction of one of the conditions in s 234(2) does not, of itself, constitute a ground under s 88(2) of the 1995 Act for rectification of the Register. Therefore, in addition to agitating the question of renewal, Friday's Australia and Big Country seek to establish grounds within s 88(2) that satisfy s 234. The respondent contended that it discharged its onus of proving that the applicant's BSS trade mark did not, as at 6 December 2006, distinguish the applicant's BSS balanced salt solution from the goods or services of other persons. I shall consider this contention when I come to evaluate the grounds for cancellation of that trade mark relied upon by the respondent. Assuming for the moment that the respondent was able to pass through the s 234 gateway, it then relied upon two grounds in support of its claim that the applicant's BSS trade mark should be removed from the Register. Ground 1 (Trade Mark Not Distinctive as at Application Date)


case_outcome: referred to

case_text: I think reading the reasons of the delegate as a whole she did conclude and then proceeded on the basis that the appellant was a Falun Gong practitioner in China, albeit not one of interest to the authorities. The Tribunal did not advise the appellant at or before the hearing that that fact was in issue. The letter from the Tribunal sent after the hearing, it seems with its obligation in s 424A in mind, raises that issue but a letter after the hearing cannot satisfy the provisions of s 425(1) of the Act . The Tribunal failed to comply with the obligation in s 425(1). It must be said that there may be circumstances where it will not be easy for the Tribunal to determine when the applicant for review should be given notice of an issue by reason of the provisions of s 425(1) of the Act . Those circumstances may arise if, on one view, the issue may be seen as but a part of a larger or more general issue which is clearly in dispute and which is not caught by the notice requirement in s 425(1). The difficulties will be exacerbated if (as happened in this case) the applicant for review makes considerable changes to his or her story after the delegate's decision and before the Tribunal hearing. I have given anxious consideration to the question whether the applicant's alleged practice of Falun Gong in China, albeit in a way that did not attract the attention of the authorities, was but part of a larger or more general issue which was clearly in dispute. I have decided that it was not because, absent any other relevant circumstances, the question is to be determined by reference to the reasons of the delegate and she drew a distinction between the two matters. This approach is consistent with that taken by the High Court in SZBEL . Finally, I note that it was not argued by the Minister that granting relief would be futile. It seems to me that in any event such an argument could not succeed. One might have some doubts as to whether the appellant has additional evidence but the onus to make out futility is much higher than that: Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181.


case_text: The appellant submitted that the obligation in s 424A arose as soon as the Tribunal reached the state of satisfaction referred to in subs (1)(a) and was to be discharged immediately. As to the matters referred to in the letter sent after the hearing, it may be that the Tribunal had the inconsistencies in mind before the hearing on 19 January 2006, but it was not unreasonable for it to see if they were dealt with satisfactorily at the hearing. To my mind, there is nothing in s 424A that suggests the obligation created by the section is to be discharged at any particular time prior to the Tribunal's decision. My conclusion is consistent with the approach taken by the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 79 ALJR 1009 at 1021 [56] per McHugh J, at 1039 [164] per Kirby J, at 1045 [202] per Hayne J, although the Court in that case was addressing a different point. 68 It was also submitted by the appellant that the Tribunal's letter dated 20 January 2006 did not comply with s 424A(1)(b) in that it did not "ensure as far as is reasonably practicable, that the applicant understands why it is relevant to the review". That contention was not developed in oral submissions before me and, in any event, it must be rejected. It seems to me the letter makes clear the significance of the apparent inconsistencies to the issues on the review. 69 I will deal with each piece of information said by the appellant to fall within s 424A in turn. It is important to note that other than the Liu information, which was his oral evidence given to the Tribunal, in each case the information was in a document before the Tribunal. In three of the four cases, the document was provided to the Tribunal at the hearing. The change of name information was in a document provided to the Department by the appellant. The Dellar information


case_text: The appellant applied to tender on the hearing of the appeal a transcript of the hearing before the Tribunal. It was said by the appellant that this was relevant to the allegation that the Federal Magistrate erred in failing to conclude that the Tribunal had not complied with s 425(1) of the Act . The application was opposed by the Minister. If unsuccessful in that opposition, the Minister sought to tender what he said was an accurate copy of the transcript. I have read both copies of the transcript and although there are differences they are not material to the issues on the appeal. It seems to me that if the appellant is able to raise the allegation of non-compliance with s 425(1) of the Act in the way in which it is now put, the discretion should be exercised to receive the transcript on the hearing of the appeal. It is strictly further evidence but it is, subject to the corrections, uncontroversial and it is clearly relevant or potentially relevant to the allegation of non-compliance with s 425(1). Furthermore, the appellant was unrepresented before the Federal Magistrate. There have been a number of decisions of this Court on the scope and effect of s 27 of the Federal Court of Australia Act 1976 (Cth) and the differences between the discretion in s 27 and the common law procedures relating to the receipt of fresh or further evidence on an appeal. For present purposes it is sufficient for me to refer to the decision of the Full Court of this Court in Sobey v Nicol and Davies, in the matter of Guiseppe Antonio Mercorella [2007] FCAFC 136 at [36] - [80] .


case_outcome: considered

case_text: It seems to me that the real question on the application to adduce further evidence is whether the alleged non-compliance with s 425(1) of the Act can be raised on appeal in the way in which it is now sought to be raised. Although the appellant raised an allegation of non-compliance with s 425(1) before the Federal Magistrate the allegation was not developed in the way it is now sought to be developed and it is not suggested by the appellant that the Federal Magistrate erred in rejecting the allegation as it was put to him. Nevertheless, I think the appellant should be permitted to raise the alleged non-compliance with s 425(1) in the way it is now put bearing in mind the fact that the appellant was not represented before the Federal Magistrate, the fact that the Minister is unable to point to any prejudice if the appellant is permitted to raise the point on the appeal and the fact that at the time of the hearing before the Federal Magistrate the High Court had not delivered its decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 (" SZBEL "), a decision which discusses the scope of s 425(1). 9 In conclusion, the appellant is permitted to raise the matter in ground 1 of the amended notice of appeal, and I will receive as further evidence the transcript (both the appellant's copy and the Minister's copy) as further evidence on the appeal. 10 For reasons which will become clear, the alleged failure to comply with s 425(1) of the Act means it is necessary to consider the delegate's decision in some detail and it is to that subject that I now turn. 49 There are three issues on the appeal to this Court. They are as follows: 1. The appellant submits that the Federal Magistrate erred in failing to conclude that the Tribunal had not complied with the rules of procedural fairness or s 425(1) of the Act , or both. The submission was that the Tribunal member found that the appellant had not been involved with the Falun Gong movement in China whereas the delegate had found that he had been involved in the Falun Gong movement in China and that the Tribunal had not complied with its obligation said to arise in those circumstances to put the appellant on notice at or before the hearing that the question of whether he was a Falun Gong practitioner in China was an issue before it. The appellant referred to the recent decision of the High Court in SZBEL. 2. The appellant submits that the Federal Magistrate erred in failing to conclude that the Tribunal had not complied with the provisions of s 424A of the Act . There were two limbs to that submission. First, in relation to the matters referred to in the letter which was sent after the hearing (see [35] above) the Tribunal had not complied with the provisions of s 424A because it was aware of each of those matters before the hearing and should have given notice (that is, the letter) before the hearing. In the alternative, it was submitted that the letter was deficient because it did not contain any or any sufficient explanation as to why the information referred to in the letter was relevant to the review. Secondly, it was submitted by the appellant that the information listed below (I have adopted the appellant's description of each piece of information) fell within the terms of s 424A(1) of the Act , and yet was not the subject of notice under that section. (1) the Dellar information; (2) the Liu information; (3) the PLA information; (4) the household registration information; (5) the change of name information. 3. The appellant submits that the question whether he was a Falun Gong practitioner in China was a jurisdictional fact and that the finding of the Tribunal member that he was not was erroneous and was made in circumstances in which she overlooked material evidence. As the submission was developed, it seemed to me that the effect of the submission was that the Tribunal member had overlooked material evidence in terms of the alleged fact and had gone so far as to say (erroneously according to the appellant) that there was no evidence with respect to the alleged fact. 50 Section 425 is in the following terms: 425 Tribunal must invite applicant to appear (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. (2) Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or (c) subsection 424C(1) or (2) applies to the applicant. (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal. Subsections (2) and (3) are not relevant in this case. 51 In SZBEL the High Court gave an example of how the obligation might arise in the context of the Act when it said (at 601 [37]): Suppose (as was the case here) the delegate concludes that the applicant for a protection visa is a national of a particular country (here, Iran). Absent any warning to the contrary from the tribunal, there would be no issue in the tribunal about nationality that could be described as an issue arising in relation to the decision under review. If the tribunal invited the applicant to appear, said nothing about any possible doubt about the applicant's nationality, and then decided the review on the basis that the applicant was not a national of the country claimed, there would not have been compliance with s 425(1) ; the applicant would not have been accorded procedural fairness. 52 The decision in SZBEL involved a consideration of the common law rules of procedural fairness and the provisions of s 425(1) of the Act . Although it seems to me the decision was based on a failure to comply with the common law rules of procedural fairness, the Court referred to the provisions of s 425(1) and in the example set out above said that not only would there have been a failure to accord procedural fairness, but also there would be non-compliance with s 425(1) of the Act . 53 In SZBEL , s 422B(1) did not apply to the appellant's application whereas it does apply to the appellant's application in this case. That section is in the following terms: (1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. 54 In my opinion, s 422B means that the issue in this case must be decided by reference to, and only by reference to, s 425(1). The common law rules in relation to the particular obligation in issue have been excluded by the Act . 55 Section 425(1) refers to "the issues arising in relation to the decision under review" in the context of extending an invitation to the applicant to appear before the Tribunal, and sections which follow, namely, s 425A and s 426A of the Act deal with the notice of invitation to appear and the failure to appear in response to the invitation under s 425. It might be said that if the obligation to identify an issue arises it can be satisfied only at the invitation stage and not (assuming it is not done at the invitation stage) at the hearing before the Tribunal. It appears, conversely, that the analogous common law obligation can be satisfied by the Tribunal at the hearing before it ( SZBEL at 602 [47]. I do not need to determine the question whether the obligation under s 425(1) can, like the obligation at common law, also be satisfied by the Tribunal at the hearing before it because even if it can be so satisfied, having read the transcript of the hearing before the Tribunal, I am not convinced that it was. 56 As I understand the decision in SZBEL an obligation arises under s 425(1) to advise an applicant that a particular matter is in issue if that matter was not a reason the delegate relied on to decide to reject the application for a protection visa ( SZBEL at [34]-[37]). I reject what I understood to be the Minister's submission that every matter in issue before the delegate, or every matter that must be established by an applicant to make out his claim for a protection visa, is taken to be in issue before the Tribunal and need not be the subject of notice by the Tribunal. That could be the case in a particular factual situation if, for example, the delegate rejected every aspect of an applicant's claim but it is not necessarily the case. An applicant is entitled to assume unless and until told otherwise that the issues are the matters decided adversely to him in a manner which is determinative of his claim. 57 The question in this case is whether on a fair reading of the delegate's reasons she decided that the appellant was a Falun Gong practitioner in China, albeit not one of interest to the authorities, but rejected his claim for a protection visa on other grounds. There can be no doubt the Tribunal rejected the claim by the appellant that he was Falun Gong practitioner in China (see [39], [40] and [41] above). For example, the Tribunal member said: In the present case, I have found that the applicant was not involved in Falun Gong before he left China ... . 58 The delegate gave extensive reasons for her decision refusing to grant a protection visa to the appellant. The critical findings on this point are summarised in [13], [14] and [16] above). 59 I think reading the reasons of the delegate as a whole she did conclude and then proceeded on the basis that the appellant was a Falun Gong practitioner in China, albeit not one of interest to the authorities. The Tribunal did not advise the appellant at or before the hearing that that fact was in issue. The letter from the Tribunal sent after the hearing, it seems with its obligation in s 424A in mind, raises that issue but a letter after the hearing cannot satisfy the provisions of s 425(1) of the Act . The Tribunal failed to comply with the obligation in s 425(1). It must be said that there may be circumstances where it will not be easy for the Tribunal to determine when the applicant for review should be given notice of an issue by reason of the provisions of s 425(1) of the Act . Those circumstances may arise if, on one view, the issue may be seen as but a part of a larger or more general issue which is clearly in dispute and which is not caught by the notice requirement in s 425(1). The difficulties will be exacerbated if (as happened in this case) the applicant for review makes considerable changes to his or her story after the delegate's decision and before the Tribunal hearing. I have given anxious consideration to the question whether the applicant's alleged practice of Falun Gong in China, albeit in a way that did not attract the attention of the authorities, was but part of a larger or more general issue which was clearly in dispute. I have decided that it was not because, absent any other relevant circumstances, the question is to be determined by reference to the reasons of the delegate and she drew a distinction between the two matters. This approach is consistent with that taken by the High Court in SZBEL . Finally, I note that it was not argued by the Minister that granting relief would be futile. It seems to me that in any event such an argument could not succeed. One might have some doubts as to whether the appellant has additional evidence but the onus to make out futility is much higher than that: Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181.


case_text: The scope of s 424A of the Act has been considered on many occasions. The most recent consideration of the section by the High Court was in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 (" SZBYR "). In that case, the Tribunal had found that the male applicant was not a reliable witness and one reason for that conclusion was the inconsistencies between a prior statutory declaration of the male applicant and his oral evidence. A question arose as to whether s 424A was engaged in relation to either the prior statutory declaration or the inconsistencies, or both. 64 The Court said that s 424A was not engaged. The prior statutory declaration could not constitute "the reason, or a part of the reason, for affirming the decision that is under review". The Court (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ) said (at 615 [17]): When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review. 70 The information in the letter from Mr Dellar is in the same category as the statutory declaration in SZBYR in that if its contents were accepted then that would be a reason for rejecting the decision under review, not affirming it. If the information is instead or, in addition, the Tribunal member's views of the letter's shortcomings that is not information within s 424A(1) because it is no more than a conclusion about a gap in the evidence.


case_text: In relation to the alleged failure to comply with s 424A(1) of the Act , the appellant claimed that he should have been given notice by the Tribunal of its proposed approach to the letter from Mr Dellar and the letter from the senior officer in the PLA. The Federal Magistrate rejected that argument on the basis that that "information" fell within the terms of s 424A(3)(b) of the Act . The appellant claimed that certain country information should have been provided to him, but the Federal Magistrate rejected that claim on the basis that country information fell within the terms of s 424A(3)(a) of the Act . The appellant claimed that the Tribunal's finding that it was highly implausible that if he had been a soldier for many years he would have no reliable documentary evidence at all recording the name under which he had performed his military service was information within s 424A(1). The Federal Magistrate held that this conclusion was not "information" and referred to the decision of the Full Court of this Court in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 (" SZEEU "). The appellant claimed that the Tribunal's finding that there was no evidence at all that he had brought with him to Australia a level of knowledge about the practice of Falun Gong consistent with his claim to have been a practitioner for seven years or, indeed, at all, in China was within s 424A(1) of the Act . The Federal Magistrate rejected that submission saying that it was "a conclusion drawn from the evidence and was not information comprehended by s 424A". 46 The Federal Magistrate rejected the submission that the Tribunal had taken into account irrelevant information, namely, stale independent country information. It is not necessary to set out the reasons of the Federal Magistrate with respect to that submission because it is not an issue on the appeal. 47 In relation to the Tribunal's alleged failure to comply with s 425 of the Act , the Federal Magistrate said that no evidence had been adduced by the appellant in support of his claim that the Tribunal had failed to provide him with a fair chance to give oral evidence and that on many occasions he was only required to answer the Tribunal's questions. The Federal Magistrate noted that no transcript of the hearing before the Tribunal had been put before him. The Federal Magistrate concluded that on the evidence before him it could not be said that there had been a failure to comply with s 425 of the Act . 71 In my opinion, there has been no breach of s 424A of the Act in relation to the Dellar information and it is not strictly necessary for me to consider the further argument advanced by the Minister to the effect that in any event the Dellar information was information the appellant gave for the purpose of the application and therefore within the exception in s 424A(3)(b). The appellant challenged that proposition on the basis that the information was given by the author of the document and the appellant did no more than provide the document. I am inclined to think that the Minister's contention is correct ( SZEEU (supra) at 52 [252] per Allsop J). In any event, the real thrust of the appellant's complaint are the views of the Tribunal member as to the shortcomings of the information contained in the letter and not the information itself. 72 One final matter in relation to the Dellar information is that the appellant suggested to the Tribunal member that she could contact Mr Dellar by telephone but it seems that she did not do so. It is suggested by the appellant that the Tribunal member erred in not contacting Mr Dellar. I reject that submission. The Tribunal member was not bound to do that and there is nothing that she said that created a legitimate or reasonable expectation in the appellant that she would contact Mr Dellar: SZEEU at 20 [59]-[61] per Moore J, 39 [171]-[172] Weinberg J, at 52 [251] per Allsop J. The Liu information 73 The evidence of Mr Liu was significant because it dealt with the appellant's involvement in Falun Gong after his arrival in Australia. In general terms, it is fair to say that conduct was not in dispute, although the Tribunal member made a finding adverse to the appellant in terms of his motive for engaging in the conduct. 74 The real significance of Mr Liu's evidence lay in what inference (if any) could be drawn from it as to the appellant's involvement in Falun Gong in China. The appellant came to Australia on 13 August 2002 and Mr Liu met him in September or October 2002. Mr Liu's statement that the appellant's knowledge of Falun Gong was "not too basic and not too deep" is very general and, insofar as it suggests some knowledge of Falun Gong, may be explained by the appellant's attendance at Falun Gong exercises in Australia before he met the appellant.


case_text: Whether under s 36(2) Australia has protection obligations to a particular person depends upon whether that person satisfies the definition of a refugee in Article 1A of the Convention, in the context of other relevant Articles (per Gummow A-CJ, Callinan, Heydon and Crennan JJ in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53 ; (2006) 231 CLR 1 ('QAAH') at [37]). 6 In Article 1A(2) of the Convention the term 'refugee' applies to any person who: '... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; ...' 7 By virtue of s 91R(1) of the Act, the requirements of Article 1A(2) in respect of persecution are not met unless the persecution involves serious harm to the person and the persecution involves systematic and discriminatory conduct. Instances of 'serious harm' for the purposes of s 91R are to be found in s 91R(2). 9 Proceedings before the Tribunal are not adversarial, but inquisitorial; the Tribunal is not in the position of a contradictor of the case being advanced by an applicant. A Tribunal Member conducting the enquiry is not an adversarial cross-examiner but an inquisitor obliged to be fair. In an application for review before the Tribunal it is for the applicant to advance whatever evidence or argument he wishes to advance, and for the Tribunal to decide whether his claim has been made out; it is not part of the function of the Tribunal to seek to damage the credibility of an applicant's story in the manner a cross-examiner might seek to damage the credibility of a witness being cross-examined in adversarial litigation. The Tribunal, conducting an inquisitorial hearing, is not obliged to prompt and stimulate an elaboration which an applicant chooses not to embark on (see per Gummow and Heydon JJ in Re RUDDOCK (in his capacity as Minister for Immigration and Multicultural Affairs); Ex parte APPLICANT S154/2002 [2003] HCA 60 ; (2003) 201 ALR 437 at [57] [58]; see also QAAH at [40]).


case_outcome: cited

case_text: Proceedings before the Tribunal are not adversarial, but inquisitorial; the Tribunal is not in the position of a contradictor of the case being advanced by an applicant. A Tribunal Member conducting the enquiry is not an adversarial cross-examiner but an inquisitor obliged to be fair. In an application for review before the Tribunal it is for the applicant to advance whatever evidence or argument he wishes to advance, and for the Tribunal to decide whether his claim has been made out; it is not part of the function of the Tribunal to seek to damage the credibility of an applicant's story in the manner a cross-examiner might seek to damage the credibility of a witness being cross-examined in adversarial litigation. The Tribunal, conducting an inquisitorial hearing, is not obliged to prompt and stimulate an elaboration which an applicant chooses not to embark on (see per Gummow and Heydon JJ in Re RUDDOCK (in his capacity as Minister for Immigration and Multicultural Affairs); Ex parte APPLICANT S154/2002 [2003] HCA 60 ; (2003) 201 ALR 437 at [57] [58]; see also QAAH at [40]).


case_text: The Act does not require that the Tribunal actively assist an applicant in putting his case, nor does it require the Tribunal to carry out an inquiry in order to identify what that case might be (see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553 at [36] ).


case_text: In relation to matters of procedural fairness at a Tribunal hearing Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 ('SZBEL') at [47]-[48]: '47. ... It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted. 48. ... as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry , "the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished." Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.' (footnotes omitted)


case_text: In relation to an alleged apprehension of bias on the part of a judge, Kirby and Crennan JJ said in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55 ; (2006) 229 CLR 577 ('Parramatta Design') at [110]-[112]: '110 The appeal [in Parramatta Design] involves the application of well-established principles, which were not in dispute and were both reiterated and explained in Ebner v Official Trustee in Bankruptcy in the joint reasons of Gleeson CJ, McHugh, Gummow and Hayne JJ: "Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge ..., a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the Tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle ... The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits." 111 In assessing the logical connection between a matter complained of and any deviation from deciding a case on the merits, (the "second step" in Ebner v Official Trustee in Bankruptcy) it is important to bear in mind the characteristics of modern litigation as recognised by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson: " Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly , Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of 'the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case'. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them. " 112 Sometimes judicial interventions and observations can exceed what is a proper and reasonable expression of tentative views. Whether that has happened is a matter of judgment taking into account all of the circumstances of the case. However, one thing that is clear is that the expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias.' (Footnotes omitted) 13 In Parramatta Design , Callinan J, after referring to a court procedure whereby statements and documents are prepared, exchanged and filed in advance of a hearing which may and almost always will be read before a trial begins, said in relation to an alleged apprehension of bias at [176]-[177]: '176 I mention these matters because in sum they may well incline a trial judge towards a degree of outspokenness of a kind to which he or she would not be inclined in a conventional trial on largely oral evidence. That this is so does not provide any excuse for the manifestation of apparent bias on the part of a trial judge but it may explain why a judge finds himself or herself speaking more candidly and strongly than he or she might otherwise do, or even have been able to do, in the past or in other jurisdictions. The question nonetheless remains whether the fair-minded lay observer might reasonably have apprehended that the judge might not be bringing an impartial and unprejudiced mind to the resolution of the questions he was required to decide. 177 It is axiomatic that the perception of a lay observer will not be as informed as the perception of a lawyer, particularly a litigation lawyer. But the notional lay person should not be taken to be completely unaware of the way in which cases are brought to trial and tried. In any event, it would have been apparent to any observer from the trial judge's remarks here that his Honour was already well acquainted with the issues, and many of the details of the respective cases of the parties. Indeed, no other conclusion would have been open having regard to the matters which the trial judge raised and the way in which he expressed himself. That he had not formed any final view appears from the number and type of questions that he asked. For example, at one stage he inquired whether one way of looking at the case was a distorted way of doing so. A little later he said that the responses which had been made to him had given him useful background.' (Footnotes omitted) 14 In Parramatta Design Gummow A-CJ and Hayne J separately agreed that the complaint of apprehended bias, which the majority of the Federal Court had found to affect the decision of the primary judge, had not been made out (at [4] and [120]). 15 In Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 ('Ebner') which was cited with approval by Kirby and Crennan JJ in Parramatta Design , Gleeson CJ, McHugh, Gummow and Hayne JJ said at [7]: '7 The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the Tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.'


case_text: In relation to an alleged apprehension of bias on the part of a judge, Kirby and Crennan JJ said in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55 ; (2006) 229 CLR 577 ('Parramatta Design') at [110]-[112]: '110 The appeal [in Parramatta Design] involves the application of well-established principles, which were not in dispute and were both reiterated and explained in Ebner v Official Trustee in Bankruptcy in the joint reasons of Gleeson CJ, McHugh, Gummow and Hayne JJ: "Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge ..., a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the Tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle ... The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits." 111 In assessing the logical connection between a matter complained of and any deviation from deciding a case on the merits, (the "second step" in Ebner v Official Trustee in Bankruptcy) it is important to bear in mind the characteristics of modern litigation as recognised by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson: " Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly , Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of 'the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case'. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them. " 112 Sometimes judicial interventions and observations can exceed what is a proper and reasonable expression of tentative views. Whether that has happened is a matter of judgment taking into account all of the circumstances of the case. However, one thing that is clear is that the expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias.' (Footnotes omitted) 15 In Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 ('Ebner') which was cited with approval by Kirby and Crennan JJ in Parramatta Design , Gleeson CJ, McHugh, Gummow and Hayne JJ said at [7]: '7 The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the Tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.' 64 In relation to (c) it is important to bear in mind what was said by Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner at [7] (see [15] above): '... if the matter has already been decided, the test [for apprehended bias] is one which requires no conclusion about what factors actually influenced the outcome.' 65 Federal Magistrate Raphael handed down his reasons for judgment in respect of the Amended Application on 29 May 2008. His Honour ordered that the application be dismissed and that the applicant pay the respondent Minister's costs assessed in the sum of $5,000. 66 The appellant was represented in the Federal Magistrates Court by Dr J E Griffiths SC and the respondent Minister by Mr M A Izzo of counsel. On the hearing of the appeal from the judgment of Federal Magistrate Raphael, Dr Griffiths SC again appeared for the appellant, on this occasion with Mr C N Bova of counsel, and Mr Izzo again appeared for the respondent Minister. 67 The appeal was instituted by a Notice of Appeal filed 11 June 2008. Once again the appeal was confined to the issue of whether the appellant had been denied natural justice on the basis that the third Tribunal member, Giles Short, had reached a decision which was not free from any reasonable apprehension of bias. No submission was put suggesting that the Tribunal Member's decision had been affected by actual bias. 68 The appellant's grounds of appeal were summarised by his senior counsel in oral submissions as follows: '... there are three separate grounds that are raised and they can be succinctly stated along the following lines. The first raises a complaint that the federal magistrate applied the incorrect test for apprehended bias. The second is a complaint that the federal magistrate, at times, seems to have treated the particulars of the apprehended bias as though they were individual judicial review grounds in their own right; leading him to then call in aid and apply principles relating to the limits on fact-finding or the limits on reviewing decisions for illogicality as somehow being relevant to him disposing of the apprehended bias case. There were particulars of apprehended bias not being advanced as individual heads of review whether it be illogicality or no evidence or whatever in their own right. That was not the way that they were being presented. ... The third ground ... says that [i]f the correct test is applied, namely a 'might might' test ... as opposed to a 'would' test then [,] applied to these facts [,] the ultimate conclusion was wrong. ...' 78 In relation to the application of the apprehended bias test to the facts, it must be remembered that his Honour was not concerned with an allegation of actual bias. In a case of alleged apprehended bias, possibility is the primary concern not actuality, viewing the matter with the benefit of hindsight (see Ebner at [7] as quoted at [15] above). 79 What his Honour appears to have done at [26], in my view impermissibly, was to have regard to the conclusions actually reached by the third Tribunal member with a view to considering whether a hypothetical lay observer would or might reach the same conclusions. The observation 'I do not see in [the Tribunal's] findings a pattern which would suggest to the hypothetical lay observer a closed mind' could only be relevant to a claim of actual bias and no such claim is advanced here. The apprehended bias test requires no conclusion about what factors actually influenced the outcome. 80 What his Honour should have focussed upon was whether a hypothetical fair-minded lay person, properly informed as to the nature of the application for review and the processes of the Tribunal, might have reasonably apprehended, either as at 17 September 2007 or at some stage thereafter, but before 7 November 2007 that the third Tribunal member might not bring an impartial mind to the questions which he had to decide. 81 Insofar as the appellant sought to place reliance upon findings actually made by the third Tribunal member, he, in my opinion, approached the matter the wrong way given that the issue which he had tendered was one of apprehended bias. 82 In relation to the attack upon the learned Federal Magistrate's approach of isolating the particulars relied upon and treating them as individual grounds for judicial review in their own right, I do not think there is any substance in the appellant's case. This is made abundantly clear by what was said by the learned Federal Magistrate at [24]: '24 I have dealt above individually with the matters raised by the applicant as indicating that the Tribunal might be considered by the hypothetical lay person to have approached this matter with a fixed mind intent upon finding against the applicant, whatever he might have said. The applicant, rightly in my view, relies on the cumulative effect of all these matters and argues that even if there is an explanation for each of them individually, then cumulatively they would have the necessary effect upon the lay observer's mind. ...' 83 Turning to the question of whether, applying the correct test for apprehended bias to the facts of this case, a finding of apprehended bias should be made, I am of the opinion that no such finding would be appropriate. 84 If one turns to the transcript of the hearing before the third Tribunal member it seems clear to me that the third Tribunal member explored those aspects of the appellant's account that the Tribunal member considered to be important to the decision, which he was required to make, and which might be open to doubt. In doing so he tested the evidence presented by the appellant. However, he did not test the evidence so vigorously that the testing might be seen to have become overbearing or intimidatory. Furthermore the Tribunal member did not appear to me to have interrupted the appellant in a way which might have conveyed a preconceived view that the appellant's account of the events was such that there was nothing that he could say or do which might change that view. 85 One also finds in the transcript that the Tribunal member probed the identity of the person who posted a $25,000 security to obtain the appellant's release from detention in September 2005 (at page 5.5). The Tribunal member explored the conflicting accounts as to how the appellants claimed friend Mr Li had been run off the road (at pages 7-8). The Tribunal member proceeded to question the appellant about his claimed involvement in a 10 October 2003 demonstration, the location of it and the significance of it (at pages 10-16). The Tribunal member then questioned the appellant about his travel documents (at pages 16-18) and the Tribunal member questioned the reasons for the appellant leaving the People's Republic of China in circumstances where his brother was already living in Australia (at page 18). 86 After questioning the appellant about these matters the Tribunal member invited the appellant's migration agent to raise matters that may not have been covered. He said: 'Miss Stoltz is there anything we have not covered?'


case_outcome: followed

case_text: In Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 ('Re RRT; Ex parte H') Gleeson CJ, Gaudron and Gummow JJ said, at [27]-[34], in respect of the test for apprehended bias and its application in administrative proceedings where credibility was in issue: '27 The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the tribunal, proceedings are held in private. 28 Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof. 29 Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account. In the present case, a significant difference between curial proceedings and the proceedings of the tribunal is that the former are adversarial and the parties are usually legally represented, whereas the latter are inquisitorial in nature and the parties are not represented. 30 Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings. 31 Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker's view. 32 In the present case, a fair-minded lay observer or a properly informed lay person, in our view, might well infer, from the constant interruptions of the male prosecutor's evidence and the constant challenges to his truthfulness and to the plausibility of his account of events, that there was nothing he could say or do to change the tribunal's preconceived view that he had fabricated his account of the events upon which he based his application for a protection visa. In other words, a fair-minded lay observer or a properly informed lay person might well apprehend bias by the tribunal against the male prosecutor. And because the female prosecutor's application stood or fell with his, a fair-minded lay observer or a properly informed lay person might, in our view, form the same view in her case.' (Footnotes omitted) 17 In Re RRT; Ex parte H the High Court held that prohibition should issue to prevent further action on the decision of the Tribunal. In doing so it opined that a properly informed hypothetical fair-minded lay person might reasonably apprehend that the Tribunal might not bring an impartial mind to the question of satisfaction in respect of the criterion posited by s 36(2) of the Act when taken with the definition of refugee in the Convention. 18 Having formed the view that the prosecutors had made good their claim of apprehended bias, the High Court addressed whether Constitutional writ relief should be granted, in the exercise of the relevant discretion to do so. Notwithstanding a finding that the Tribunal decision was not affected by actual bias, the Court nevertheless decided that relief should be granted. At [33]-[34] their Honours said: '33 Although, in our view, the prosecutors have made good their claim of apprehended bias, we would not grant relief under s 75(v) of the Constitution simply on that account. It is now established that, in the case of a breach of the rules of natural justice, relief under s 75(v) of the Constitution is discretionary. Where, as here, there is a final determination by a superior court, that the decision in question was not affected by actual bias, discretionary considerations necessarily arise. However, in this case, we would grant relief as sought. 34 Where, as in the proceedings before the tribunal, the central issue is credibility, the decision-maker's assessment will often depend upon the demeanour of the witnesses and the manner in which they give their evidence. It cannot be assumed that the prosecutors would have received an unfavourable assessment of their credibility if they had had the opportunity to present their claims without repeated interruptions from the tribunal affirming its lack of belief in their claims. Nor can it be assumed that they could not have given further details of events which might have supported their applications. In particular, it should be noted that the male prosecutor was interrupted when he attempted to give an account of a stoning episode in which, presumably, his home was stoned. These considerations may not, of themselves, constitute a failure to provide the prosecutors with an opportunity to present their claims, but they constitute good reason why relief should not be refused on discretionary grounds.' (Footnotes omitted)


case_text: In Hot Holdings Pty Limited v Creasy [2002] HCA 51 ; (2002) 210 CLR 438 ('Hot Holdings') McHugh J stated the test for apprehended bias in relation to administrative decision-making at [68] by effectively paraphrasing what had been said by Gleeson CJ, Gaudron and Gummow JJ in Re RRT; Ex parte H at [27]-[28] above. His Honour said: '68 The rules of natural justice require that any decision of a Minister that affects a person's rights, interests or legitimate expectations must be unbiased and free from any reasonable apprehension of bias. Where an administrative decision is made in private, the test for apprehended bias is whether a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings or process, might reasonably apprehend that the decision-maker might not have brought an impartial mind to making the decision. In deciding the issue, the court determines the issue objectively.' (Footnote omitted) 20 McHugh J continued at [70] by saying: '70 While the test for a reasonable apprehension of bias is the same for administrative and judicial decision-makers, its content may often be different. ...' 21 I would respectfully adopt as the applicable test for apprehension of bias in respect of the conduct of proceedings before the Tribunal, upon the hearing of an application for judicial review of the ultimate decision of the Tribunal, the test as summarised by McHugh J in Hot Holdings . 22 In addressing the content of the test and its application to the factual situation in the present case, the following matters and issues need to be considered: (a) The Tribunal must be seen to be independent and impartial. (b) The ultimate issue for consideration and in respect of which the Tribunal member had to be satisfied or not satisfied, was whether owing to well-founded fear of being persecuted for reasons of political opinion, the applicant was outside the People's Republic of China and owing to such fear unwilling to avail himself of the protection of the People's Republic of China. (c) The Tribunal member was called upon to address the ultimate issue in circumstances where the applicant had previously given evidence before the Tribunal differently constituted and in circumstances where two earlier decisions had been quashed as a result of applications for judicial review. (d) In order for the Tribunal member to be satisfied that the applicant before him was a non-citizen in Australia, who satisfied the definition of a refugee in Article 1A of the Convention, it was for the applicant to advance whatever evidence and arguments he wished to advance to make out his claim. The applicant had to get his case across the line, there being no responsibility on the Tribunal member to prompt or stimulate the applicant's presentation of his case. (e) The Tribunal member was required to be fair. (f) Notwithstanding the obligation resting upon the applicant to get his case for refugee status across the line, the Tribunal member was required to explore those aspects of the applicant's account that the Tribunal member considered to be important to the decision, which he was required to make, and which might be open to doubt. (g) It was open to the Tribunal member to vigorously test the evidence presented by the applicant. In so doing, questioning could be more vigorous than might be seen to be appropriate if undertaken by a judge in adversarial court proceedings. (h) Given that the Tribunal hearing had concluded and a decision had been reached, the apprehension of bias test did not require any conclusions to be reached about the factors that actually influenced the decision as made. (i) The applicant had been represented at the hearing before the Tribunal in respect of which the apprehension of bias claim had been made. (j) Were constant challenges made to the truthfulness or plausibility of the applicant's account of the events upon which he relied? (k) Was the applicant's evidence constantly interrupted? If so, might the Tribunal member, by his interruptions, have conveyed a preconceived view that the applicant's account of the events on which his claim to refugee status was based had been fabricated such that there was nothing that the applicant could say or do which might change that view? (l) Viewed objectively, might the testing by the Tribunal member of the applicant's evidence be seen to have become overbearing or intimidatory? (m) If there was a possibility that the Tribunal member might not bring an impartial mind to the questions which he had to decide, was that possibility, objectively assessed, real as opposed to remote? (n) In the circumstances, might a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings and processes of the Tribunal, including the Tribunal member's role, have reasonably apprehended that the Tribunal member might not bring an impartial mind to the questions which he had to decide? 23 The appellant in the proceedings presently before the Court is a married man who was born in Fujian in China on 27 April 1975. On 3 August 2004 he lodged an Application for a Protection (Class XA) visa in which he claimed that he had arrived in Australia on 19 June 2004, travelling on a Taiwanese passport that had been issued on 28 August 2000. His claim to refugee status was recorded in a statutory declaration made on 2 August 2004 which was lodged with the then Department of Immigration & Multicultural & Indigenous Affairs with his application for a protection visa. He claimed that he was outside the country of his nationality, the People's Republic of China, and unwilling to avail himself of the protection of that country owing to a fear, said to be well-founded, of being persecuted for reasons of political opinion. The relevant political opinion was said to have been expressed by the appellant in respect of the lack of regard or respect and protection for self-employed truck drivers' basic human rights. It was said that the appellant had been involved in organising demonstrations and in endeavouring to form unions, an activity which could lead to criminal charges and imprisonment. 24 The appellant claimed that around the middle of June 2003 he, as a self-employed owner/driver, was given a job to deliver some building materials from Hui'an County to a construction site in Sanming City. The appellant claimed to have a friend, a Mr Li, who had a greater need for money than he did, given that he was supporting his aged mother who was then suffering from a serious illness. In the circumstances he transferred the opportunity to his friend, Mr Li, to perform the work of delivering the relevant building materials from Hui'an County to the construction site in Sanming City. The appellant claimed that his friend, Mr Li, suffered a serious traffic accident whilst doing so which rendered him a paraplegic or quadriplegic. In his statutory declaration the appellant said: 'Unexpectedly, Mr Li's small truck fell into a ravine in the mountainous area while he tried to dodge a big truck which had overtaken him illegally.' 25 The appellant asserted that Mr Li had been accompanied by an assistant driver who jumped free from the truck before the accident. That assistant driver was said to have been able to identify the driver of the big truck, who caused the accident, as being a Mr Jin. The appellant claimed that Mr Jin was an illegal driver who did not hold a driver's licence. However it was said that Mr Jin's father was a senior government official in Sanming City of Fujian Province with a very powerful background who used his wide contacts in the government and particularly in the traffic administrative section of the Public Security Bureau (PSB), to conceal the truth. The appellant contended that the PSB and relevant authorities unfairly decided that the accident was caused simply as a result of Mr Li failing to abide by the traffic laws. The appellant claimed that Mr Jin escaped from legal punishment and Mr Li received not one cent by way of compensation. This circumstance is said to have led the appellant to seek compensation for Mr Li and a fair go for self-employed drivers.


case_text: An application by the appellant to the Federal Magistrates Court for constitutional writ relief was dismissed. However, an appeal from that decision was upheld by Rares J on 15 August 2007. He made an order quashing the decision of the second Tribunal member of 27 November 2006 and granted relief in the nature of mandamus directing the Tribunal to hear and determine the application for review lodged 14 September 2004 according to law (see SZHBP v Minister for Immigration and Citizenship (2007) 97 ALD 84). 41 Thereupon, by letter dated 17 September 2007, the appellant was invited to a further hearing before the Tribunal on 28 September 2007. By its letter the Tribunal informed the appellant that it had considered the material before it but was unable to make a favourable decision on that information alone. 42 The appellant again responded to the hearing invitation by indicating that he wished to attend the proposed hearing.


case_text: In SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 , a decision of the High Court which was handed down on 13 June 2007, the High Court gave close attention to the circumstances in which s 424A was engaged. At [22] Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ, in their joint judgment, drew attention to the 'limited scope of s 424A' and at [15] and [21] said: '15 ... Section 424A does not require notice to be given of every matter the Tribunal might think relevant to the decision under review. ... ... 21 ... Section 424A has a more limited operation than the appellants assumed: its effect is not to create a back-door route to a merits review in the federal courts of credibility findings made by the Tribunal. ...' 53 On 17 October 2007 the Tribunal wrote to the appellant's agent following the Tribunal hearing before the third Tribunal member on 12 October 2007, presumably in the belief that certain information which it had available to it came within s 424A(1)(a) of the Act. The letter invited comment on five separate items. These included: 'First, in the statutory declaration accompanying your original application you said that your friend Mr Li ... had been involved in a traffic accident in June 2003 "while he tried to dodge a big truck which had overtaken him illegally". At the hearing on 12 October 2007, however, you said that the accident had involved a small car, not a big truck, and that the car had not been overtaking your friend but had in fact been coming from the opposite direction. You said this in an attempt to explain your claim that the assistant driver on Mr Li's truck had been able to jump off the truck and had thus escaped with only a minor injury although the truck had fallen in a ravine. At the hearing on 12 October 2007 you claimed that the statutory declaration accompanying your original application had not been read back to you in your own language. However you signed the statutory declaration before a Justice of the Peace ... and you initialled each page of the statutory declaration ... The Tribunal may therefore not accept your claim that you had no knowledge of what was written in the statutory declaration accompanying your original application. This inconsistency between what you said in the statutory declaration ... and what you said at the hearing ... is relevant to the review because it may lead the Tribunal to conclude that your claims regarding the accident in which your friend Mr Li was involved (and therefore your claims regarding your involvement in protests following that accident) are not true. The inconsistency in your evidence is also relevant to the review because it cast doubt on your credibility, that is, whether you can be believed. Secondly, in the statutory declaration accompanying your application you said that on 10 October 2003 you had organised more than 100 people to hold a big protest at an intersection of the highway from Xiamen City to Fuzhou City. At the hearing before the Tribunal (differently constituted) on 20 November 2006 you said that the demonstration had been at the mid point on the highway between Xiamen and Fuzhou. You said that there had been a crossroads there and that you had been at the centre of it but that you had not been obstructing traffic. At the hearing on 12 October 2007 you said that the demonstration had been in the city of Putian, at an entrance ramp where vehicles from Putian joined the highway. You said that you and the other people involved in the demonstration had stood by the side of the road. The inconsistency in your evidence regarding whether the demonstration was at a crossroads or at an entrance ramp and whether you and the other people involved in the demonstration stood at the centre of the crossroads or by the side of the road is relevant to the review because it casts doubt on whether you are telling the truth about the demonstration. The inconsistency in your evidence is once again also relevant to the review because it casts doubt on your overall credibility. Thirdly, if, as you said at the hearing before the Tribunal (differently constituted) on 20 November 2006, you were not obstructing traffic, it is difficult to accept that you would have been arrested as a result of this demonstration as you claim. Conversely, if you had been regarded as a key organiser of anti-government activity, as you likewise said at the hearing before the Tribunal (differently constituted) on 20 November 2006, it is difficult to accept that you would not have been charged with some offence and imprisoned for longer than the period of two and a half months for which you claim to have been detained. Your representative referred at the hearing on 12 October 2007 to your claim in the statutory declaration accompanying your original application that you had been calling on your fellow self-employed drivers to establish their own union. However, as the Tribunal noted, people who have tried to organise workers to form unions in China have been charged with offences and imprisoned ... This information is relevant to the review because it may lead the Tribunal to conclude that you are not telling the truth when you claim that you were arrested following the demonstration on 10 October 2003 and detained for two and a half months and that you were regarded as a key organiser of anti-government activity. Once again this information is also relevant to the review because it casts doubt on your overall credibility. ...' 54 Other information was put to the appellant concerning the Taiwanese passport on which it was said that the appellant had travelled when leaving the People's Republic of China and an apparent inconsistency between a disclosure in the appellant's application for a protection visa, where he had indicated that he had no close relatives in Australia, and the fact that the appellant's brother had come to Australia in May 2000. Reference was also made to the fact that the appellant had apparently obtained a passport from the People's Republic of China on 7 August 2002 which passport was produced to the authorities when the appellant was detained in October 2006.


case_text: At [12] of his reasons for judgment (see SZHBP v Minister for Immigration & Citizenship [2008] FMCA 699) Federal Magistrate Raphael referred to senior counsel for the appellant's written submissions where he set out the basis upon which he proposed to argue that 'a fair-minded lay person properly informed as to the nature of the proceedings and other relevant matters might reasonably apprehend that the third Tribunal might not have brought an impartial mind to the applicant's review' (emphasis added).


case_outcome: distinguished

case_title: Friends of Hinchinbrook Society Inc. v The Minister for the Environment (No.1) (1996) 69 FCR 1

case_text: IFT contends that the fact that Gunns was joined to the proceeding on its own application should be taken into account when exercising the Court's discretion to award costs. IFT relies on the case of Friends of Hinchinbrook Society Inc. v The Minister for the Environment (No. 1) (1996) 69 FCR 1 for the proposition that it is appropriate to deny Gunns its costs in circumstances where it was joined to the proceeding as an interested person on its own application. In Friends of Hinchinbrook , Branson J imposed a condition on the joinder that the additional respondent not seek its costs in the proceeding. That decision was upheld on appeal: Friends of Hinchinbrook Society Inc. v The Minister for Environment (unreported, Northrop, Burchett and Hill JJ, 27 May 1997). 9 In Friends of Hinchinbrook at 13, Branson J did not view the State of Queensland as a necessary party to the proceeding. In this matter Gunns was a necessary party to the proceeding. Its rights and interests were capable of being directly affected by any order made in the proceeding. It should have been joined at the outset: see, News Limited v Australian Rugby Football League Limited (1996) 64 FCR 410 at 523-525. It is irrelevant that IFT did not seek any relief against Gunns. The challenge to the Minister's decisions involved IFT seeking relief against him and not Gunns. Even so, Gunns' direct interest in the outcome of the challenge was greater than any direct interest apart from that of the Minister.


case_text: IFT contends that the fact that Gunns was joined to the proceeding on its own application should be taken into account when exercising the Court's discretion to award costs. IFT relies on the case of Friends of Hinchinbrook Society Inc. v The Minister for the Environment (No. 1) (1996) 69 FCR 1 for the proposition that it is appropriate to deny Gunns its costs in circumstances where it was joined to the proceeding as an interested person on its own application. In Friends of Hinchinbrook , Branson J imposed a condition on the joinder that the additional respondent not seek its costs in the proceeding. That decision was upheld on appeal: Friends of Hinchinbrook Society Inc. v The Minister for Environment (unreported, Northrop, Burchett and Hill JJ, 27 May 1997).


case_outcome: applied

case_text: In Friends of Hinchinbrook at 13, Branson J did not view the State of Queensland as a necessary party to the proceeding. In this matter Gunns was a necessary party to the proceeding. Its rights and interests were capable of being directly affected by any order made in the proceeding. It should have been joined at the outset: see, News Limited v Australian Rugby Football League Limited (1996) 64 FCR 410 at 523-525. It is irrelevant that IFT did not seek any relief against Gunns. The challenge to the Minister's decisions involved IFT seeking relief against him and not Gunns. Even so, Gunns' direct interest in the outcome of the challenge was greater than any direct interest apart from that of the Minister.


case_text: The submissions on costs from the applicant and the respondents overlap substantially with the submissions on costs relied on in The Wilderness Society proceeding, as the proceedings were heard together and evidence in one was evidence in the other: see, The Wilderness Society Inc. v The Hon. Malcolm Turnbull, Minister for the Environment and Water Resources [2007] FCA 1863 (TWS proceeding). These reasons should be read in conjunction with the reasons published in the TWS proceeding today. 4 IFT submits that the Court should make no order as to costs. Where IFT submits that no order should be made in favour of the first respondent, I reject that submission and adopt the reasons contained in the TWS proceeding. 5 There is a difference between the submissions of the parties in this matter and those in the TWS proceeding which emphasise the fact that Gunns was joined as a party to the proceeding on its own application over the opposition of IFT. IFT made specific submissions seeking an order that Gunns would not be entitled to its costs if it was joined to the proceeding as an additional respondent. In making orders joining Gunns as an additional respondent, the Court reserved its determination on the question of costs.


case_text: The Court published its judgment in the substantive proceeding on 9 August 2007, dismissing the application wholly in favour of the first and second respondents : see, The Investors for the Future of Tasmania Inc. v Minister for the Environment and Water Resources [2007] FCA 1179. In that judgment, orders as to costs were reserved and an order made that the parties file and serve written submissions on the question of costs within 21 days of the primary judgment. Accordingly, written submissions were received from the parties under an agreed extended timetable. I now set out my reasons regarding the question of costs.


case_title: Comcare v Burton (1998) 50 ALD 846

case_text: Cheung seeks to distinguish Power on the basis that, in that case, the only prior determination had been by the determining authority and not by the Tribunal following a contested hearing of the claim. However, the Tribunal's power is enlivened upon reconsideration of a determination in accordance with s 62 of the SRC Act. As Finn J said in Comcare v Burton (1998) 50 ALD 846 , the review procedure under the SRC Act has three stages: (a) the initial determination as defined in s 60; (b) reconsideration of the determination under s 62; and (c) review of the reconsideration decision (a reviewable decision) by the Tribunal under s 64. The 2008 Tribunal had the jurisdiction to review the reviewable decisions of Australia Post, being decisions which gave rise to determinations (s 60 of the SRC Act) and had been reconsidered so as to constitute s 62 reviewable decisions ( Power at 525 citing Burton ). As Sackville J noted in Power at 525 (citing Burton ), s 43(1) of the AAT Act is not a source of jurisdiction but confers powers on the Tribunal in relation to matters in which it has jurisdiction.


case_text: Hanna v Australian Postal Corporation [1990] FCA 153 ; (1990) 12 AAR 511 at 513, Davies J said that s 62(1) of the SRC Act meant that the determining authority was entitled to reconsider its own determinations. A reconsideration decision made under s 62 is a "reviewable decision" which may be reviewed by the Tribunal under s 64. That is, on a s 64 application to the Tribunal, the Tribunal reviews the reviewable decision; in this case, the reconsideration decisions made by Australia Post, the determining authority. For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by the SRC Act on the decision-maker and may affirm, vary or set aside the decision under review (s 43(1) of the AAT Act). The Tribunal decision is then, for all relevant purposes, the decision of the decision-maker (s 43(6) of the AAT Act). The reconsideration of a determination is not confined. There is no statutory requirement to apply the earlier determination or to take it into account. Inherent in the provision for reconsideration is the concept that that reconsideration is untrammelled by any previous determination. This does not preclude the determining authority from taking the previous determination into account but there is no requirement to do so. Similarly, there is no statutory requirement on the Tribunal to take into account any previous determinations or reconsideration decisions when reviewing a reviewable decision.


case_title: Lang v Comcare (2007) 94 ALD 141

case_text: 43 refers to a substantive decision on the merits of the matter and not to each and every preliminary determination on the receipt or rejection of evidence, or to whether or not the Tribunal will allow argument on a specific issue sought to be raised before it. It goes without saying that there is no specific provision obliging the Tribunal to consider a previous Tribunal decision in relation to the same parties. The Tribunal had a duty to record its reasons for the substantive decision and the evidence upon which those reasons where based. The Tribunal was obliged to give reasons in relation to an application made to it. No application was made to the 2008 Tribunal in respect of the weight to be given to the 2001 Tribunal decision, nor did it form part of the evidence tendered by Ms Cheung (cf Lang v Comcare (2007) 94 ALD 141). The Tribunal is not bound by the laws of evidence and is entitled to inform itself on any matter in such manner as it thinks appropriate (s 33(1)(c) of the AAT Act). The 2008 Tribunal decision does refer to the 2001 Tribunal decision in circumstances where it is apparent that the 2008 Tribunal made up its own mind on the evidence before it. Ms Cheung has not submitted that the 2001 Tribunal decision formed any part of the material facts relied upon by the 2008 Tribunal. The 2008 Tribunal had before it evidence that differed from the evidence before the 2001 Tribunal. The 2008 Tribunal was entitled to form its own view on the merits of the case, including the credibility of Ms Cheung and to determine the question before it as a review of reconsideration (reviewable) decisions made under s 62 of the SRC Act.


case_text: the 2001 Tribunal decision was not "a relevant consideration" in the sense that it was not required by the legislation to be considered, either expressly or by implication ( Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24). The 2008 Tribunal was not bound to apply the 2001 Tribunal decision but did have a discretion to take the 2001 Tribunal decision into account. No interlocutory application was made to the 2008 Tribunal prior to the calling of evidence and the making of submissions on the basis that the 2001 Tribunal decision was determinative. The 2008 Tribunal was aware of the 2001 Tribunal decision but embarked upon its own determination in the light of fresh medical evidence and in the context of different reviewable decisions. That course was made clear to counsel. There is no allegation that there was a denial of procedural fairness. As Australia Post was entitled to reconsider a determination without applying or considering an earlier determination of the 2001 Tribunal decision, the 2008 Tribunal was entitled to do the same.


case_text: Tribunal is obliged to give reasons for its final and operative decision ( Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323). Section 43(2) of the AAT Act requires the Tribunal to give reasons either orally or in writing for its decision. Section 43(2B) provides that the reasons should include findings on material questions of fact and refer to the evidence or other material on which those findings were based.


case_text: speaking, there should not be relitigation without reason of the same issues before the Tribunal where the relitigation is of the same facts and issues already decided. In those circumstances, previous Tribunal decisions would generally be regarded as establishing the matters actually decided and the grounds for determination. It is open to a subsequent Tribunal to regard a previous decision as determinative of an issue and to decide that an issue should not be reopened. The Tribunal has a discretion in those circumstances to take such a course ( Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374 at 390).


case_text: noted by Lockhart J (with whom Black CJ and Gummow J agreed) in Plumb v Comcare [1992] FCA 595 ; (1992) 39 FCR 236 at 241, the Tribunal derives its jurisdiction and many of its powers from statutes other than the AAT Act, in this case the SRC Act. The 2008 Tribunal was conducting a review of a number of reviewable decisions following applications made by the claimant, Ms Cheung, pursuant to s 64 of the SRC Act. Section 64 provides that an application to the Tribunal for review of a reviewable decision may be made by a claimant or a party affected by the decision the Commonwealth, a Commonwealth authority or a corporation that holds a licence under Part VIII of the SRC Act. A reviewable decision is a decision made, relevantly, under s 62 of the SRC Act (s 60 of the SRC Act). Section 62 relevantly provides: (1) A determining authority may, on its own motion: (a) reconsider a determination made by it; or (b) cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination; whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination. (2) A request to a determining authority to reconsider a determination made by it may be made by: (a) the claimant; or (b) if the determination affects the Commonwealth — the Commonwealth; or (c) if the determination affects a Commonwealth authority — that Commonwealth authority.


case_title: Power v Comcare (1998) 89 FCR 514

case_text: Power v Comcare (1998) 89 FCR 514 Sackville J confirmed that the reconsideration decision-maker and the Tribunal have power to consider whether an applicant's condition has ever been causally related to his or her work. Ms Cheung does not say that the 2008 Tribunal was compelled to hold the 2001 Tribunal decision as determinative and therefore appears to accept that the 2008 Tribunal had jurisdiction to revisit the question of causation as determined by the 2001 Tribunal. However, she relies upon the existence of the 2008 Tribunal's discretion to regard the 2001 Tribunal decision as determinative and says that, in any event, it was a relevant consideration which was required to be taken into account. Ms Cheung seeks to distinguish Power on the basis that, in that case, the only prior determination had been by the determining authority and not by the Tribunal following a contested hearing of the claim. However, the Tribunal's power is enlivened upon reconsideration of a determination in accordance with s 62 of the SRC Act. As Finn J said in Comcare v Burton (1998) 50 ALD 846 , the review procedure under the SRC Act has three stages: (a) the initial determination as defined in s 60; (b) reconsideration of the determination under s 62; and (c) review of the reconsideration decision (a reviewable decision) by the Tribunal under s 64. The 2008 Tribunal had the jurisdiction to review the reviewable decisions of Australia Post, being decisions which gave rise to determinations (s 60 of the SRC Act) and had been reconsidered so as to constitute s 62 reviewable decisions ( Power at 525 citing Burton ). As Sackville J noted in Power at 525 (citing Burton ), s 43(1) of the AAT Act is not a source of jurisdiction but confers powers on the Tribunal in relation to matters in which it has jurisdiction. There is no dispute in the present case that there were determinations under the SRC Act followed by reconsideration of those determinations which gave rise to the 2008 Tribunal decision. As Sackville J pointed out in Power at 525, s 43(1) of the AAT Act confers on the Tribunal the same powers and discretions as were available to the decision-maker, including the power provided in s 62(5) of the SRC Act to affirm, revoke or vary the delegate's decision that liability previously accepted had ceased. For the purpose of reviewing each reconsideration decision (ie. each reviewable decision) the 2008 Tribunal could exercise all the powers and discretions conferred by the SRC Act on the reconsideration decision-maker ( Power at 526). This included a power to consider whether Ms Cheung's conditions had ever been causally related to her work. This consideration involved the reconsideration decision-maker and then the 2008 Tribunal analysing all the necessary facts, including further medical reports, to determine whether or not there was a continuing liability. The 2008 Tribunal could have exercised its discretionary powers to exclude evidence recanvassing the issues resolved in the 2001 Tribunal decision ( Power at 526 citing Re Quinn ). No issue as to the Tribunal's discretionary power was raised in Power .


case_text: 33 of the AAT Act provides for the Tribunal the flexibility needed to control its processes in the ordinary course, as pointed out in Re Quinn and Australian Postal Corporation (1992) 15 AAR 519. Ms Cheung draws attention to the comments by President O'Connor and Mr Barbour in Re Quinn at [32] where they pointed out that a Tribunal should not generally allow relitigation of issues already decided and that previous Tribunal decisions should be regarded as establishing the matters actually decided and the grounds for the determination. They gave as examples compensation cases, where issues of causation and level of incapacity for the period the subject of the earlier decision would not be areas contested in a subsequent hearing. Confirming that estoppel does not apply where there is a ' different decision [to be reviewed] , a clear legislative intent, the reconsideration decision is not "final" and there has been prima facie a change in circumstances ', Re Quinn emphasised the flexibility provided for in s 33 of the AAT Act to enable the Tribunal to control its processes. The thrust of Ms Cheung's submissions is that, while the 2008 Tribunal was not estopped from reconsidering the issues the subject of the 2001 Tribunal decision, it was at least required to have regard to that decision. It was open to the 2008 Tribunal to apply the previous decision to some or all of its findings and, Ms Cheung submits, the 2008 Tribunal was obliged to consider whether or not to do so. She submits that the failure even to consider the exercise of such a discretion, or to consider whether or not the previous decision should be applied or given weight, is an error of law. Further, the failure to provide reasons for taking the course that it did is, Ms Cheung submits, a further error of law. There is no dispute in the present case that there were determinations under the SRC Act followed by reconsideration of those determinations which gave rise to the 2008 Tribunal decision. As Sackville J pointed out in Power at 525, s 43(1) of the AAT Act confers on the Tribunal the same powers and discretions as were available to the decision-maker, including the power provided in s 62(5) of the SRC Act to affirm, revoke or vary the delegate's decision that liability previously accepted had ceased. For the purpose of reviewing each reconsideration decision (ie. each reviewable decision) the 2008 Tribunal could exercise all the powers and discretions conferred by the SRC Act on the reconsideration decision-maker ( Power at 526). This included a power to consider whether Ms Cheung's conditions had ever been causally related to her work. This consideration involved the reconsideration decision-maker and then the 2008 Tribunal analysing all the necessary facts, including further medical reports, to determine whether or not there was a continuing liability. The 2008 Tribunal could have exercised its discretionary powers to exclude evidence recanvassing the issues resolved in the 2001 Tribunal decision ( Power at 526 citing Re Quinn ). No issue as to the Tribunal's discretionary power was raised in Power .


case_text: Cheung relies upon the "flexible" approach that the Tribunal may take in considering matters before it. That, she says, includes the ability simply to apply an earlier decision of the Tribunal. She points out that in Re Rana and Military Rehabilitation and Compensation Commission (2008) 104 ALD 595 , Deputy President Forgie concluded that an applicant should not be permitted to rehearse the circumstances of his employment a further time or to challenge findings that had been made about the circumstances of his employment and the compensability of his conditions and in respect of which the Tribunal had affirmed previous reviewable decisions. The Deputy President concluded in that case that, under s 33(1)(c) of the AAT Act, the Tribunal would inform itself as to the circumstances of the applicant's employment and of the conditions he suffered by reference to the findings of fact made by the earlier Tribunals and that she would not permit the parties to lead further evidence on these matters. She stated that any evidence given should be directed to establishing the necessary causal links between the facts as found by those previous Tribunals and the conditions now claimed by the applicant (at [134] to [137]). However, as is apparent in Re Rana , the context was a situation where events had been comprehensively considered in previous Tribunal decisions, the applicant applied for compensation in relation to the same set of events as in previous cases, those earlier decisions had either not been challenged or had been considered on appeal and no error of law in the findings of fact had been found. The circumstances in Re Rana formed the basis for the Tribunal's conclusions in that case.


case_text: Telstra Corporation Ltd v Hannaford [2006] FCAFC 87 ; (2006) 151 FCR 253 at [57] , the statutory scheme was described by Conti J (with whom Heerey and Dowsett JJ agreed) as allowing for: ... progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen. This may empower the Tribunal to make findings of fact ' that effectively undercut the necessary findings of fact made in the initial or original decision ... to accept liability ' (at [59]). The Tribunal is not excluded from revisiting and making its own findings on questions of fact that have been the subject of findings by a prior Tribunal in an application to review a different reviewable decision. Until the subsequent decision is made, the earlier decision remains in operation. Australia Post relies on the conduct of the hearing before the 2008 Tribunal. It points out that Ms Cheung's counsel was on notice that it was in issue whether she suffered any injury which gave rise to liability. The 2008 Tribunal made it clear that it was going to rehear medical evidence on that issue, including fresh medical evidence that was not before the 2001 Tribunal, and there was no application to exclude that evidence. Nor was an application made to the 2008 Tribunal to treat the decision of the 2001 Tribunal as determinative of the conclusions to be drawn. There was no application to exclude any evidence concerning the subject matter of the 2001 Tribunal decision. There was no application to exclude evidence going to the issue of causation of Ms Cheung's left shoulder condition or her neck and right shoulder condition.


case_text: Whilst I accept that Nommack (No 75) as trustee of the Sydney trust contracted to purchase the Elizabeth Street property and lost its deposit, the question is whether or not those circumstances led to its incurring a loss for the purposes of the ITA Act. As I understand it that depends upon its being a loss or outgoing of the kind previously contemplated by s 51 of the ITA Act and now by s 8-1. As Dixon J observed in New Zealand Flax Investments Ltd v Federal Commissioner of Taxation [1938] HCA 60 ; (1938) 61 CLR 179 at 207: 'To come within that provision there must be a loss or outgoing actually incurred. "Incurred" does not mean only defrayed, discharged, or borne, but rather it includes encountered, run into, or fallen upon. It is unsafe to attempt exhaustive definitions of a concept intended to have such a various or multifarious application. But it does not include a loss or expenditure which is no more than impending, threatened, or expected.' 145 Drummond J said in Kajewski v Federal Commissioner of Taxation (2003) 52 ATR 455 at [107]: 'The applicants have sought to show that the Commissioner erred in forming the opinion that there was an avoidance of tax due to fraud or evasion because the applicants, their advisers and other witnesses had given evidence in this court to the effect that there was no such fraud or evasion, evidence it is said which this Court should accept. In rejecting the applicant's attack on the amended assessments because they are excessive, I have explained why this part of the applicant's case is, on the evidence before me, unfounded. But, in any event, for the reasons given, the issue of fraud and evasion is not at large for this Court. In accordance with Avon Downs and Kolotex [(1975) [1975] HCA 5 ; 132 CLR 535] the Commissioner's opinion that there was fraud or evasion involved must stand unless the applicants can show that the Commissioner, in forming that opinion, fell into the kind of error therein referred to. Only if the applicants can establish, by reference only to the material that was before the Commissioner, that his opinion was vitiated by some such deficiency in the approach he took in reaching that opinion would it be open to this court to form its own view on the question of fraud or evasion. Consistently with their submissions that the appeal to this court is by way of hearing de novo , the applicants did not seek to mount the kind of attack on the Commissioner's determination that there was fraud or evasion involved that must be made before this court can consider that issue for itself. No challenge to the formation by the Commissioner of the opinion necessary to enliven his power under s 170(2) to issue the amended assessments here in question within the principle in Avon Downs was raised by the applicants, let alone made out at trial.'