case_text: In Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476, the High Court was concerned with provisions in the Migration Act , namely ss 474(2) and 474 (1), which, on their face, purported to render some decisions made under the Migration Act immune from judicial review. 21 Section 474(2) provided: In this section: "privative clause decision" means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act .... 22 Section 474(1) of the Migration Act provided: A privative clause decision: (a) is final and conclusive; (b) must not be challenged, appealed against, reviewed, quashed or called into question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. 24 The centrality of the constitutional writs for the protection of the Rule of Law in Australia appears from their Honours' observations in Plaintiff S157/2002 , immediately following the significance of the Rule of Law for the Constitution noted in the quotation by Dixon J set out above. The five judges said: [104] The reservation to this court by the Constitution of the jurisdiction in all matters in which the named constitutional writs or an injunction are sought against an officer of the Commonwealth is a means of assuring to all people affected that officers of the Commonwealth obey the law and neither exceed nor neglect any jurisdiction which the law confers on them. The centrality, and protective purpose, of the jurisdiction of this court in that regard places significant barriers in the way of legislative attempts (by privative clauses or otherwise) to impair judicial review of administrative action. Such jurisdiction exists to maintain the federal compact by ensuring that propounded laws are constitutionally valid and ministerial or other official action lawful and within jurisdiction. In any written constitution, where there are disputes over such matters, there must be an authoritative decision-maker. Under the Constitution of the Commonwealth the ultimate decision-maker in all matters where there is a contest, is this court. The court must be obedient to its constitutional function. In the end, pursuant to s 75 of the Constitution , this limits the powers of the parliament or of the executive to avoid, or confine, judicial review. 25 The primary question in the present proceedings is whether, as the applicant claims, the Minister committed jurisdictional error in his exercise of the powers that s 501 of the Migration Act confers on him in relation to the cancellation of the applicant's visa. 27 Chief Justice Gleeson in Plaintiff S157/2002 said at [5]: Section 75(v) of the Constitution confers upon this court, as part of its original jurisdiction, jurisdiction in all matters in which a writ of mandamus, or prohibition, or an injunction, is sought against an officer of the Commonwealth. It secures a basic element of the rule of law. The jurisdiction of the court to require officers of the Commonwealth to act within the law cannot be taken away by parliament. Within the limits of its legislative capacity, which are themselves set by the Constitution , parliament may enact the law to which officers of the Commonwealth must conform. If the law imposes a duty, mandamus may issue to compel performance of that duty. If the law confers power or jurisdiction, prohibition may issue to prevent excess of power or jurisdiction. An injunction may issue to restrain unlawful behaviour. Parliament may create, and define, the duty, or the power, or the jurisdiction, and determine the content of the law to be obeyed. But it cannot deprive this court of its constitutional jurisdiction to enforce the law so enacted. 28 Parliament has in s 501 of the Migration Act created and defined the requirements that have to be met before the power given to the Minister to cancel a person's visa can be exercised. 29 Callinan J in Plaintiff S157/2002 commenced his reasons for judgment with the following: Constitutional law in a federal system has been described as "a unique mixture of history, statutory interpretation, and some political philosophy".[Menzies, Afternoon Light , 1967, p 320.] In resolving this case, resort to each of these is necessary: history for an understanding of the law in relation to prerogative writs at the time of Federation and the considerations which moved the founders to use the language that they did in s 51(xxix) and (xxxvii), and Ch III of the Constitution ; statutory interpretation to construe both the provisions of the enactment under challenge, and the Constitution which is both the source of the power to enact them, and the instrument which prescribes the powers conferred on this court to examine and pronounce upon their validity; and, political philosophy for an understanding of the need for each of the arms of government, the parliament, the executive and the judiciary to pay due deference to, and not to intrude upon the roles of one another, in the good, that is to say the lawful and efficient government of the nation. 30 As Callinan J's observation emphasises, in the proper administration of the lawful and efficient government of the nation, each of the arms of government - the parliament, the executive, and the judiciary - has a role to play, and each of the arms of government must pay due deference to, and not to intrude upon, the roles of the other arms of government. 31 The preceding observations demonstrate that there is no room for the view, sometimes uttered, that the executive should have exclusive responsibility over all matters involving national security. 32 True it is that the executive is charged with a heavy responsibility in matters of national security, but parliament has defined the limits defining the discharge by the executive of that responsibility, and it is for the judicial arm of government "to ensure that ministerial or other official action (is) lawful and within jurisdiction," as the plurality judgment at [104] of Plaintiff S157 , set out at [23], makes plain. 33 As David Jackson said in the article on the growth of constitutional writs earlier referred to (at 29): ... Section 75(v) reflects a distinct constitutional value, namely that there will always be a court which has jurisdiction to determine the legality of the performance by officers of the Commonwealth, judicial or non-judicial, of their functions, or the legality of their failure to perform them. It is a value which I think does assist in maintaining the rule of law in this country ... 34 The Right Honourable Lord Bingham of Cornhill, the former Lord Chief Justice of England and Wales, speaking extra-judicially on "The Rule of Law" ((2004) 15(3) Commonwealth Lawyer 22) referred to the Constitutional Reform Act 2005 (UK), which radically reconfigures the legal system in the United Kingdom. 132 The Full Court noted that the joint judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ in Plaintiff S157 held, at [76], that an administrative decision which involves jurisdictional error is "regarded in law as no decision at all".


case_outcome: applied

case_text: Gaudron J said in Re Patterson; Ex parte Taylor [2001] HCA 51 ; (2001) 182 ALR 657 at [82] - [83] : A decision-maker falls into jurisdictional error if he or she misunderstands the nature of the jurisdiction to be exercised, misconceives his or her duty, fails to apply himself or herself to the question to be decided or misunderstands the nature of the opinion which he or she is to form. ... ... the parliamentary secretary misunderstood the nature of the jurisdiction she was exercising by failing to appreciate that there would, in effect, be no opportunity for Mr Taylor to seek revocation of her decision.


case_outcome: cited

case_text: The European Court of Human Rights said in Sunday Times v United Kingdom (1979) 2 EHRR 245 at 271, [49]: The law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case ... a norm cannot be regarded as a 'law' unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able if need be with appropriate advice to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. 43 The third sub-rule advanced by Lord Bingham at 25 was that: ... the laws of the land should apply equally to all, save to the extent that objective differences justify differentiation. ... While some special legislative provision can properly be made for some categories of people such as children, prisoners and the mentally ill, based on the peculiar characteristics of such categories, we would regard legislation directed to those with red hair (to adapt Warrington LJ's long-lived example) as incompatible with the rule of law.


case_title: Short v Poole Corporation [1926] Ch 66

case_text: Warrington LJ said in Short v Poole Corporation [1926] Ch 66 at 91: It may be also possible to prove that an act of the public body, though performed in good faith and without the taint of corruption, was so clearly founded on alien and irrelevant grounds as to be outside the authority conferred upon the body, and therefore inoperative. It is difficult to suggest any act which would be held ultra vires under this head, though performed bona fide. To look for one example germane to the present case, I suppose that if the defendants were to dismiss a teacher because she had red hair, or for some equally frivolous and foolish reason, the Court would declare the attempted dismissal to be void. My view then is that the only case in which the Court can interfere with an act of a public body which is, on the face of it, regular and within its powers, is when it is proved to be in fact ultra vires, and that the references in the judgments in the several cases cited in argument to bad faith, corruption, alien and irrelevant motives, collateral and indirect objects, and so forth, are merely intended when properly understood as examples of matters which if proved to exist might establish the ultra vires character of the act in question. 238 Further, if the discretion to cancel a visa holder's visa were to be enlivened on the basis of a perfectly innocent association with a person who had engaged in criminal activity, the position is not much different from the exercise of a power conditioned on the circumstance that a person had red hair, in the celebrated example of Warrington LJ in Short v Poole Corporation [1926] Ch 66. 239 It is no answer to this criticism of the Chan test that the Minister's power, if conditioned on such a premise, could be expected to be exercised only in those circumstances where the Minister thought it appropriate to exercise the power. The exercise of a power conditioned on such an consideration would be an exercise of power alien to the object of the purposes of the Migration Act .


case_outcome: considered

case_title: R v Zaphir [1978] Qd R 151

case_text: In R v Zaphir [1978] Qd. R 151, Zaphir had been charged with an offence under s 359 of the Criminal Code (Qld) which relevantly provided: Any person who threatens ... cause any detriment ... to another with intent to compel him to do any act which he is lawfully entitled to abstain from doing, is guilty of a misdemeanour ... 51 On the appeal to the Court of Criminal Appeal, it was argued that the "detriment" in the section had necessarily to involve a criminal or unlawful connotation. 52 Wanstall CJ with whom Matthews J agreed said at 164: It is sufficient for present purposes to treat s. 359 of the Code as at least bringing within its scope the uttering of a threat to cause a detriment to another by inducing a violation of his legal right, contractual or otherwise. Whether or not it extends to threats to cause a detriment to another by bringing about a consequence which is not in violation of the other's legal right should be left for decision in an appropriate case.


case_title: Railway Express Agency Inc v New York 336 US 106 (1949)

case_text: Concerning the requirement that the law be of general application, and equal in operation, Lord Bingham quotes the observation of Justice Jackson in the Supreme Court of the United States in Railway Express Agency Inc v New York 336 US 106, 112-113 (1949): The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation. 56 These comments, in my opinion, bear on how the "association test" in s 501(6)(b) of the Migration Act is properly to be construed. Did Parliament intend that the definition of "not passing the character test" should apply to persons whose "association" with persons who are criminals does not bear adversely on their character, as well as to those whose "association" with such persons does bear adversely on their character? 57 Lord Bingham said at 27: My sixth sub-rule expresses what many would, with reason, regard as the core of the rule of law principle. It is that ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers. This sub-rule reflects the well-established and familiar grounds of judicial review. [See Jeffrey Jowell, "The Rule of Law Today" in Jeffrey Jowell and Dawn Oliver (eds), The Changing Constitution , 5 th ed, (Oxford, 2004), pp 20-21]


case_text: As to the deference that Courts ought properly give to decisions of the executive in matters of national security, observations by the High Court in Church of Scientology v Woodward [1980] HCA 38 ; (1982) 154 CLR 25 are relevant. 63 Mason J, as his Honour then was, said, at 55: It would be too much to say that the supervisory jurisdiction of the courts cannot be impliedly excluded by statute, though no case of implied exclusion was cited to us in argument. But it is not too much to say that any suggestion that Parliament has impliedly excluded judicial review, especially for ultra vires, should be viewed with extreme caution, indeed with healthy scepticism. 64 At 59, Mason J said: Surveillance in association with the obtaining, storage and dissemination by a government organization of information relating to private citizens can only be justified in a democratic society by the need to protect that society, i.e., on security grounds. ... No-one could doubt that the revelation of security intelligence in legal proceedings would be detrimental to national security. But it does not follow that ASIO's activities should be completely free from judicial review. To so conclude would be to ignore the protection which is given by the doctrine of Crown privilege to information the disclosure of which is prejudicial to national security. It is one thing to say that security intelligence is not readily susceptible of judicial evaluation and assessment. It is another thing to say that the courts cannot determine whether intelligence is "relevant to security" and whether a communication of intelligence is "for purposes relevant to security". 65 Brennan J, as his Honour then was, said, at 70: Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected accordingly. 66 At 74, Brennan J asked: ... how can the gravity of a security risk be evaluated by a court? It may be necessary to evaluate Australia's relationships with foreign countries, the stability of international affairs, the passion inspired by a particular cause or the likelihood of adherents to the cause taking violent steps in support of it; it may be necessary to evaluate rumour or suspicion as well as proof. It may be reasonable, even necessary, to determine the gravity of a risk by intuition rather than deduction. It may be truly said that the skills and procedures of a court do not fit it to find the point on the scale of gravity of every risk which may be thought to pose a threat to the Commonwealth, the States and Territories and the people thereof, and it may be accepted that a court will not necessarily have or be able to obtain all the evidence needed to allow it to quantify a risk precisely. However, it does not follow that judicial review is excluded. 67 As to the intersection of matters of national security with the administration of civil justice, Brennan J said at 76: The secrecy of the work of an intelligence organization which is to counter espionage, sabotage, etc. is essential to national security, and the public interest in national security will seldom yield to the public interest in the administration of civil justice. ... 68 It is right to acknowledge the political character of the Minister's office, and his accountability to the Parliament, and of the government ultimately to the electorate. The Minister is nonetheless susceptible to the requirements of the law that he act within the jurisdiction conferred by the Parliament on him.


case_text: Whether such an inference can be drawn in the circumstances where a Minister of the Crown has not given evidence was the subject of separate observations by Kirby J and Callinan J in Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 ; (2001) 205 CLR 507. 315 Before that decision, there was commentary in the textbooks and in the authorities supporting the view that the rule did, in fact, apply to Ministers. 319 In Minister for Immigration and Multicultural Affairs v Jia , Kirby J and Callinan J, in separate opinions, observed that the rule in Jones v Dunkel may not apply in the same way to Ministers as it does to others. 320 Kirby J said at [143]: Similarly, I would not attach a great deal of significance to (or draw adverse inferences in these cases from) the failure of the Minister to give oral evidence or to submit himself to cross-examination. Although Ministers, whilst holding office, are not immune in this country from giving evidence before courts, a court would not ordinarily hasten to draw an inference that the Minister had deliberately refrained from giving oral evidence because of a concern that the impugned decision would be revealed as affected by bias or that the Minister would be forced to make concessions damaging to the Minister's case. Ministers have to perform highly complex and onerous functions. They carry heavy burdens that severely limit the time available for them to give evidence in individual cases. In Mr Jia's case, the Minister might have considered it sufficient to rely on the record as, in the opinion of the majority of this Court, it is held to be. Applying the test of whether the parties, or the public, might entertain a reasonable apprehension that the Minister might have been biased, I do not believe that the principle expressed in Jones v Dunkel , that an adverse inference may sometimes be drawn from a failure to give evidence, should loom large in evaluating appearances in the applications brought to this Court by Mr Jia and Mr White. 321 Similarly, Callinan J stated at [284]: Adverse inferences may not be so readily drawn against a Minister in this type of litigation as might be drawn against a party who avoids the witness box in other proceedings. 323 More recently, in Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389 ; (2001) 109 FCR 152 at [72] , Sackville J referred to the High Court's observations in Jia but found it unnecessary to decide whether it applied to the circumstances of the case before him which did not involve purported bias by the Minister as was the case in Jia , but rather, failure to have regard to certain information. Sackville J had concluded, at [71], that assuming the rule applied, it would not assist the applicant. 325 However, in most, if not all, cases, because of the factors expressed by Pincus J, and also Kirby J and Callinan J in the passages set out above, the absence of a Minister giving evidence in the for the witness box will be easily understood.


case_text: As to what constitutes jurisdictional error, the High Court in Craig v State of South Australia (1995) CLR 163 said at 179: If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.


case_text: This passage was referred to by McHugh, Gummow and Hayne JJ in MIMA v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323. Their Honours continued at [82]: "Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law. 128 The central question in this case is whether the Minister misconstrued the terms of s 501(6)(b): A person does not pass the character test if: ... (b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct;


case_text: The judgment of the Full Court of the Federal Court (French, Sackville and Hely JJ) in Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 168 ; (2003) 200 ALR 359 ( Lobo) is directly relevant to the present question. 130 In Lobo , the delegate of the Minister was concerned with the grant of a subclass 845 visa. Clause 845.216 of the Second Schedule of the Migration Regulations prescribed a criterion in which the Minister must be satisfied before he could grant such a visa. His satisfaction that the criterion had been satisfied was a necessary condition of his power to grant the visa. If he was satisfied that the criterion had been satisfied, and that the other conditions set out in s 65(1)(a) of the Migration Act were met, then he had a statutory duty to grant the visa. 131 The Full Court said at [43]: Where the minister misconstrues one of the criteria prescribed in the Act or regulations and, because of that misconstruction he considers that the criterion has not been satisfied, it is as though he did not consider the criterion at all. For, on the face of it, he has failed to ask the question which the Act and regulations, upon a proper construction of the criterion, require him to ask. In such a case, absent s 474, the minister's decision would be a nullity. The minister has not done that which the Act requires him to have done. The decision would be a purported decision of no legal effect. 133 On the appeal to the Full Court in Lobo , it was not disputed that the departmental policy to which the Tribunal adverted was narrower than the criterion for a subclause 845 visa set out in cl 845.216 of the Second Schedule to the regulations. In the light of that concession, the Full Court concluded that failure to satisfy the criteria set out in the departmental policy did not equate to failure to satisfy the criterion in cl 845.216. In consequence, the Tribunal fell into jurisdictional error. 134 The Full Court said at [65]: It is apparent from the reasons of the tribunal ... that the tribunal treated assessment according to the departmental policy as assessment for the purposes of cl 845.216. In so doing it erred and its error was jurisdictional. It did not address the question which s 65(1) of the Act required it to address. 135 An application for special leave was refused by the High Court (Gummow and Hayne JJ) [2004] HCATrans 21) on 13 February 2004, their Honours stating that the decision in Lobo by the Full Court of the Federal Court was "not attended by doubt".


case_text: In MIMIA v SGLB [2004] HCA 32 ; (2004) 207 ALR 12, Gummow and Hayne JJ (with whom Gleeson CJ agreed) indicated at [49] that the nature of the alleged error in Plaintiff 157 was the denial to the plaintiff of jurisdictional fairness. 137 Their Honours in [50] and [51] turned to other cases where the nature of the alleged error turned on the meaning of the legislative criterion of jurisdiction. Their Honours said: [50] In other cases, the nature of the alleged error will turn upon the meaning of the legislative criterion of jurisdiction, making the construction of the legislation the primary and essential task. Re Minister for Immigration and Multicultural Indigenous Affairs; Ex parte Applicants S134/2002 was such a case. The court divided on the question whether, on the proper construction of the relevant regulations under the Act, as picked up by s 65(1), the tribunal had been obliged to determine to its satisfaction whether applicants were entitled to protection visas by reason of membership of the family unit of a person who had already been granted a protection visa. The majority answered "no"; Gaudron and Kirby JJ were of the other view. [51] However, in the light of the detailed specification of the criteria for the grant of the various classes of visa, including protection visas, it is impossible to treat the consideration by the minister's delegate (and hence the tribunal) of what are the relevant criteria (the issue in Applicants S134 ), and the satisfaction thereof, as other than conditions precedent to the making of a valid decision to grant or refuse to grant a visa under s 65. Further, certain observations by Gaudron and Kirby JJ in Applicants S134 (not on an issue upon which the division in the court turned) are, with respect, compelling. Their Honours said: The detailed specification of matters bearing upon the grant of a protection visa inserted into the Act at the same time as was s 474 makes it clear that the Parliament was not enacting provisions to the effect that decision-makers could validly grant or refuse to grant protection visas on the basis of a bona fide attempt to determine whether the criteria for the grant of a protection visa have been satisfied, as distinct from the decision-maker's actual satisfaction or lack of satisfaction as to those criteria. And as already pointed out, a decision-maker cannot be said to be satisfied or not satisfied if effect is not given to those criteria because, for example, they have been misconstrued or overlooked. 138 The grounds of the application to this Court by Dr Haneef are: 1. The Respondent fell into jurisdictional error by deciding that the threshold requirement under s.501(3)(c) of the Migration Act had been satisfied based on upon misconstruction of the expression "association" in s.501(6)(b). 2 . The Respondent fell into jurisdictional error by failing to take into account a relevant consideration in the exercise of the discretion under s.501(3) , namely: (a) the nature and extent of the alleged "association" between the Applicant and the persons whom the Respondent suspected of criminal conduct; (b) the weakness or strength of the evidence supporting the charge against the Applicant; (c) hardship to the Applicant as a result of the cancellation; ... 3. The Respondent fell into jurisdictional error by taking irrelevant considerations into account in the exercise of the discretion under s.501(3) , namely: (a) that the Applicant had been granted bail by the Brisbane Magistrates Court; (b) that the "Australian Government has a strong interest in deterring non-citizens from providing support to terrorist organisations/networks", when the Applicant has not been convicted of any offence involving provision of such support. 4. The Respondent's purpose in cancelling the visa under s.501(3) was to allow the Applicant to be detained when he had been granted bail and that was an improper purpose. Particulars (a) The Respondent knew that the Applicant had been granted bail on 16 July 2007; (b) the Respondent expressly took into account that that Applicant had been granted bail in making his decision to cancel the Applicant's visa; (c) the Respondent cancelled the visa on 16 July 2007 within several hours of the decision to grant bail being made; (d) the Respondent had not previously notified the Applicant that he was considering the cancellation of the visa; (e) on 16 July 2007 the Respondent also knew that the Commissioner of the Australian Federal Police intended to ask the Attorney-General to issue a criminal justice stay certificate, or believed that the Commissioner had the power to issue such a certificate himself; (f) on 17 July 2007 the Respondent informed the media that the Applicant would remain in detention until his trial; (g) the Respondent knew that if he cancelled the visa and a criminal justice stay certificate was issued by the Attorney-General, ss.150 and 152 of the Migration Act would operate to require that the Applicant be kept in immigration detention pending his trial; (h) a criminal justice stay certificate will be issued which will operate to authorise the detention of the Applicant; (i) the purpose of the Respondent is to be inferred from the matters set out above. 139 It is to be noted, particularly in the light of ground 4, that ground 3(a) was not pressed by the applicant in these proceedings. 140 It is necessary to consider each of these grounds in turn. 141 The argument for the application on this ground focuses on the four paragraphs of the Minister's Statement of Reasons which appear under the heading "Character Test". 183 Its relevance for the present case is for the guidance it gives as to the proper approach of statutory construction of a composite phrase. The High Court (Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ) said at [66]: The primary judge considered "craftsmanship" and "aesthetic appeal" as distinct and consecutive questions, before going on and "considering both aspects together". This was an error in the construction and application of the Copyright Act ... 184 In this case, in my opinion, the importance of context cannot be overestimated. 185 The "association test" is one of four criteria by which a person does not pass the character test. It is relevant that the other three are (a) if the person has a substantial criminal record; (c) if, having regard to either or both of the person's past and present criminal conduct, or the person's past and present general conduct, the person is not of good character; or (d) the presence of the person in Australia would involve a significant risk that the person would engage in criminal conduct or act in the other reprehensible ways specified in s 501(6)(d)(ii)-(v). 186 Each of (a), (c) and (d) requires the decision maker to look at the person (ie, the visa holder); each of them requires an assessment of qualities personal to them, which qualities, parliament has said, determine that that person fails the character test. 187 In that context, it would be striking if the criterion in (b), which this case is concerned, could be met by an or any association with a person, group or organisation reasonably suspected of having been or is involved in criminal conduct. Such an association could be a completely innocent, and involve not the slightest reflection on that person's character. The association could be of the most transient kind, could be not only innocent but historically ancient. 188 Having regard to the context, it seems to me impossible to conclude that Parliament would have intended that a person fail the character test where relationship of a visa holder with a person, group or organisation was utterly remote from the criminality that person, group or organisation.


case_text: The applicant concedes, "The Respondent's reasons cannot be construed as if they were as statute, or with an eye finely attuned for error." This statement adopts the thrust of the observations of the Full Court in Collector of Customs v Pozzolanic (1993) 43 FCR 280, including the mis-combination of visual and aural senses. Of these observations, the joint judgment in the High Court of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 said: These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin : [(1990) [1990] HCA 21 ; 170 CLR 1 at 35-36.] The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.


case_title: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259


case_title: Godley v MIMIA (2004) ALD 411

case_text: The applicant submitted that some support for the conclusion that an "innocent association" is not sufficient for the purposes of s 501(6)(b) and that there must be some nexus between the visa holder and the criminal conduct by way of knowledge of, or belief in, or even suspicion of criminal conduct, was to be found in the observations, albeit dicta , of Lee J in Godley v MIMIA (2004) ALD 411. 147 Lee J said at [47]: [47] Section 501(6)(b) combines a finding of fact by the minister with the formation of a reasonable suspicion. First, the minister must form a reasonable suspicion that a person, group or organisation has been or is involved in criminal conduct. It may be taken that to be a reasonable suspicion the suspicion must be based on reasonable grounds. Second, the minister must make a finding of fact that the visa applicant has, or has had, an association with that person, group or organisation. Again it would be necessary for there to be material capable of supporting that finding. It is unnecessary to consider the meaning of the word "association" but for a visa applicant not to pass the character test it may be taken to require the minister to make relevant findings of fact as to the knowledge, or awareness, by the visa applicant of the facts that point to the involvement of the person, group or organisation in criminal conduct.


case_text: The decision of Lee J was upheld on appeal in MIMIA v Godley [2005] FCAFC 10 ; (2005) 141 FCR 552. The Full Court, however, did not refer to or deal with that passage in Lee J's judgment. 149 It was submitted by the Solicitor-General that the Full Court quoted the passage of Lee J's judgment preceding [47] and subsequent to that paragraph, but did not quote that passage, the suggestion being that the Full Court declined to endorse those remarks. 150 However, the position is that, having spoken of s 501(6) generally, Lee J, in [46] dealt with s 501(6)(a) ; in [47], dealt with s 501(6)(b) , and in [48], dealt with s 501(6)(d).


case_title: Chan v MIMA [2001] AATA 487

case_text: It is necessary to consider Emmet Js judgment in Chan in some detail, as well as the reasons for decision of Deputy President Purvis QC in the Administrative Appeals Tribunal from whose decision the appeal was made to the Federal Court by the Minister: Chan v MIMA [2001] AATA 487. Mrs Wai Kuen Chan did not appear on the appeal. 164 The Minister for Immigration and Multicultural Affairs, on 26 February 2001, cancelled the applicant's class UC (temporary business entry) sub class 457 visa on the basis that the respondent Minister was not satisfied that the applicant passed the character test, pursuant to s 501(6) of the Migration Act . Deputy President Purvis said, at [3]: The issues that arise for determination in this application are: (a) Whether there is or has been a relevant association between the Applicant and her ex husband Mr Wong Kam Fei. (b) if the answer to (a) is in the affirmative whether, the Tribunal reasonably suspects that Mr Wong has been or is involved in criminal conduct. (c) if the answers to (a) and (b) above are both in the affirmative and the applicant thereby does not satisfy the character test, whether the Tribunal should or should not exercise its discretion to cancel the Applicant's visa. 165 Deputy President Purvis, at [10], referred to paragraph 1.5 of Direction Number 17, the forerunner to Direction Number 21, which replaced it. The paragraphs in each Direction are identical: The meaning of "association" for the purposes of the Character Test encompasses a very wide range of relationships including having an "alliance" or a "link" or "connection" with a person, a group or an organised body that is involved in criminal activities. "Association" does not require actual membership of a group or an organised body that is involved in criminal activities. In establishing criminal association, the decision-maker may have regard to the following: (a) the degree and frequency of association the non-citizen had or has with the individual group or organisation; (b) the duration of the association; and (c) the nature of the association. 209 A professional association, whether as a doctor, lawyer, social worker, or teacher, would be within the respondent's construction of the association test. A mere familial or social association would be enough. So much is implicit in Emmet J's rejection of the view of the Tribunal that the association by way of family ties, summarised by Emmett J in [7] of his reasons, was sufficient to ground the relevant association.


case_text: In a case factually quite different from the present, and involving quite a different statutory regime, namely the Copyright Act 1968 (Cth) (the Copyright Act ) the High Court was concerned with the application of provisions of the Copyright Act , particularly the phrase "a work of artistic craftsmanship" which appears in the definition of "artistic work" in s 10 and in s 77(1) of the Copyright Act : Burge v Swarbrick [2007] HCA 17 ; (2007) 234 ALR 204. The case was concerned with the Copyright Act in its form before amendment by the Designs (Consequential Amendments) Act 2003 (Cth).


case_text: In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355, McHugh, Gummow, Kirby and Hayne JJ held at [69], [71] and [78]: [69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos , Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed. ... [71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent". ... [78] However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning." 190 The third edition of the Macquarie Dictionary defines "association" as: 1. An organisation of people with a common purpose and having a formal structure. 2. the act of associating. 3. the state of being associated. 4. companionship or intimacy. 5. connection or combination.; 6. the connection of ideas in thought, or an idea connected with or suggested by a subject of thought. ... 191 The word "associate", which can either be a verb or a noun, is defined as: 1. to connect by some relation, as in thought. 2. to join as a companion, partner, or ally. 3. to unite; combine: coal associated with shale. verb (i) 4. to enter into a league or union; unite. 5. to keep company, as a friend or intimate; to associate only with wealthy people. noun 6. a partner in interest, as in business or in an enterprise or action. 7. a companion or comrade: my most intimate associates. 8. a confederate; an accomplice; an ally. 201 The observations of the High Court in Project Blue Sky at [71] in the judgment earlier set out have direct application to this consideration. 202 Counsel for the Minister said that the character test, which a person does not pass if the person has or has an association with a person or group or organisation that the Minister reasonably suspects has been or is involved in criminal conduct, does not involve any question about the character of the person being assessed. 203 Mr Bennett submitted that the words "the character test" are not words to be read as having a meaning. He says that those words are "just a convenient definition". He submitted, "one does not read character test and say, 'oh, well, this is about character; that means something about character'. Of course it doesn't." 240 It is not consistent with the direction given by the High Court in Project Blue Sky to construe a statutory provision in such a wide fashion as to include circumstances that are clearly alien to the object of the statute. The provision should be read so as to accord with the object and purpose of the statute. A wider construction, which goes beyond that object, is not to be adopted on the basis that the Minister will confine the exercise of his powers to only those instances within the wider construction which are consistent with the object and purpose of the statute. 241 In my opinion, there is nothing in the legislative history of the section, including the changes introduced by the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 , which provides support for the interpretation which the Minister applied, and for which his counsel in these proceedings, seeks to vindicate. 242 Emmett J in Chan placed some reliance on the amendments to s 501 brought about by that Amending 1998 Act in reaching the "any association is sufficient" view.


case_text: In Concrete Pty Ltd v Parramatta Design and Developments Ltd [2006] HCA 55 ; (2006) 231 ALR 663 at 690, Kirby and Crennan JJ said at [111]: ... 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 [(2000) [2000] HCA 48 ; 174 ALR 655] (at [13]): [13] 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. (Emphasis added).


case_title: Vakauta v Kelly (1989) 87 ALR 633

case_text: In Concrete Pty Ltd v Parramatta Design and Developments Ltd [2006] HCA 55 ; (2006) 231 ALR 663 at 690, Kirby and Crennan JJ said at [111]: ... 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 [(2000) [2000] HCA 48 ; 174 ALR 655] (at [13]): [13] 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. (Emphasis added). 224 In Vakauta v Kelly (1989) 87 ALR 633, after comments set out in the above observation, Brennan, Deane, and Gaudron JJ said at p 635: It seems to us that a trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in her or her judgment would not represent a model to be emulated. 225 According to Direction 21: The object of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens. To facilitate this object, the Minister has been given a discretion to ... cancel a visa where ... the visa holder does not pass the Character Test. In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to ... cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to ... remain within it. (Emphases added). 226 In my opinion, the requirement of some nexus between the visa holder and the criminal conduct suspected of the person or group with whom the visa holder has an association, is reinforced by the terms of paragraph 1.5 of Direction 21.


case_title: Akpata v MIMIA [2004] FCAFC 65

case_text: Lander J in Akpata v MIMIA [2004] FCAFC 65 (with whom Carr and Sundberg JJ agreed) said of the purpose of s 501: [103] Section 501 is designed to provide a procedure whereby persons who have been granted visas or persons who would otherwise be entitled to the grant of a visa may have that visa cancelled or refused if those persons are undesirable persons to travel to or remain in Australia . Persons will be undesirable if they fail to pass the character test. ... [105] The definition of a person passing the character test in s 501(6) shows that Parliament intended that persons who have been convicted of relatively serious crime; associate with criminals ; have a history including an immediate history of criminal conduct or general conduct indicating bad character; are a significant risk of engaging in criminal conduct or undesirable conduct (s 501(6)(d)), should not be permitted to travel to or remain in Australia . Shortly put, persons who have committed or are likely to commit criminal or other like conduct should not be permitted to travel to or remain in Australia. Because the purpose is to exclude those persons, the matters that are relevant to the exercise of the Minister's discretion will include any fact or circumstance which would suggest that a person of otherwise bad character (as it is defined in the Act) should be allowed to travel to or remain in Australia. (Emphases added). 232 For the Minister, it is said that the approach for the applicant to the interpretation of s 501(6)(b) is to impose limitations in the section, which do not exist, and which could have been easily imposed if the legislature had so intended. 233 However, the submissions by the Minister attribute to the applicant a desire to introduce limitations, which in fact the applicant does not seek to do. The Minister's submissions assert that the section does not say that the visa holder need be a member of a group or organisation, nor a participant in criminal activity, nor does the section say that the association of the visa holder with the person, group, or organisation, need be an ideological or criminal association, or an association by which the visa holder or applicant would benefit from the criminal activity. Moreover, the section does not say that the circumstances identified have to be such as to reflect adversely on the character of the visa holder or applicant. All of this may be accepted.


case_text: Section 501(3) of the Act confers a discretion on the Minister which is in terms "unconfined". The Minister is not bound to take a particular matter into account in the exercise of that discretion unless an implication to that effect is to be found in the subject matter, scope, and purpose of the statute: Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 40 (per Mason J, as his Honour then was). Failure to take into account a particular consideration cannot constitute jurisdictional error unless the consideration is one which, on the proper construction of the Act, is made compulsorily relevant: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at 423


case_title: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396


case_title: Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256 ; (2004) 139 FCR 505

case_text: See also Herrera v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 314 at [5] ; and Minister for Immigration v Huynh (2004) 139 FCR 535 per Kiefel and Bennett JJ at [71]-[74].


case_title: Herrera v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 314


case_title: Thompson v The Council of the Municipality of Randwick [1950] HCA 33 ; (1950) 81 CLR 87

case_text: If a discretionary statutory power is exercised for a purpose other than the purpose for which the power was conferred, the exercise of that power is invalid. The purpose for the grant of a power is to be derived from the statute conferring it. If there is a combination of purposes actuating the exercise of the discretionary power, the exercise will be invalid if an improper purpose was the "substantial" or the "true and dominant" purpose of the exercise of the power: Thompson v The Council of Municipality of the Randwick [1950] HCA 33 ; (1950) 81 CLR 87 at [186] ; Samrein v Metropolitan Water, Sewerage and Drainage Board (1982) 41 ALR 467 at [7]-[8].


case_title: Samrein v Metropolitan Water, Sewerage and Drainage Board (1982) 41 ALR 467


case_text: Thus in Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719, the Full Court of the Federal Court (Fox, Wilcox and French JJ) held that where a particular deportee was wanted by authorities in West Germany, of which he was a national, Australian authorities were entitled to do everything necessary for the enforcement of a deportation order under the Act, but were not entitled to go beyond that. In particular, the Court held that to deport a person to a particular country for the purpose of presenting a person to the law enforcement authorities of that country is outside the purposes of the Migration Act . 289 Wilcox and French JJ in their joint judgment said, at 731: The golden rule is that the Australian authorities are entitled, notwithstanding their knowledge that a particular deportee is wanted in the country of destination, to do everything which is necessary for the enforcement of the Migration Act and the proper implementation of the deportation order. But they are not entitled to go beyond that, and in purported exercise of powers under that Act, to take steps whose only purpose is the bringing to justice of the deportee in a foreign country. At that stage the Australian authorities would not be exercising deportation powers; they would be involved in an unlawful extradition.


case_outcome: distinguished

case_text: In Park Oh Ho v Minister of State for Immigration and Ethnic Affairs (1988) 81 ALR 288, the Full Court of the Federal Court (Sweeney and Foster JJ, Morling J dissenting) held that a deportation order had not been issued for the purpose of securing various persons' removal from Australia, but was to secure their continued detention in custody, so that their evidence would be available in contemplated criminal proceedings. 291 The decision of the Full Court upheld the decision of Davies J at first instance, to declare the deportation orders a nullity and set them aside. The matter went to the High Court, but only on the question of whether the Full Court had been correct in upholding the refusal of Davies J to make a declaration of unlawfulness. It was on this basis that the decision of the Full Court of the Federal Court was reversed.


case_text: In the High Court, Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 88 ALR 517, (Mason CJ, Deane, Toohey, Gaudron and McHugh JJ) referred to the findings of Davies J, confirmed by the Full Court, that more of the deportation orders had been made by the delegate of the Minister for the legitimate purpose of giving effect to a decision that a prohibited non-citizen should be deported as soon as appropriate arrangements for that deportation could be made, and that each had been made for the impermissible purpose of detaining the particular appellant in custody so that his evidence would be available in the criminal proceedings, and the conclusion of Davies J that the deportations were all intrinsically flawed. 293 Their Honours noted at 519: Davies J. held that each of them [the deportation orders] "should be treated as a nullity" and ordered that they be "set aside ab initio ". 294 A decision by the Minister to cancel a visa on character grounds under s 501 of the Migration Act , validly made, has the result of the visa thereupon ceases to be in effect: s 82(1) of the Migration Act . Thereafter, the person to whom the visa is issued is an unlawful non-citizen, in the terms of sections 14 and 15 of the Migration Act , is liable to detention under s 189 of the Migration Act , and for removal from Australia under s 198 of the Migration Act . 295 As a consequence of s 501E , no further application for the grant of a visa can be made by the person whose visa has been cancelled. The only exception, pursuant to s 501E(2)(a) , is an application for a protection visa. Because the person cannot, after cancellation, obtain a visa, that person's status has been determined for all time. That person is an unlawful non-citizen liable to detention and removal from Australia.


case_text: A person challenging the exercise of a power on the basis of improper purpose has the onus of establishing that contention: Sydney Municipal Council v Campbell [1925] AC 338 at 343. Where the purpose of a decision has to be ascertained by inference from other facts, there is a presumption of regularity: Industrial Equity Limited v Deputy Commissioner of Taxation [1990] HCA 46 ; (1990) 170 CLR 649 at 671 per Gaudron J.


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


case_text: In Cross on Evidence (6 th Edition, Butterworth, 2000), the learned authors stated at p 39: A Jones v Dunkel inference can be drawn against a Minister who does not give evidence, [ Minister for Aboriginal Affairs and Torres Strait Islander Affairs v State of Western Australia (1996) 67 FCR 40 at 62] notwithstanding that the difficulties busy Ministers could have in giving evidence frequently might justify a departure from the ordinary application of Jones v Dunkel. [ Lebanese Moslem Association v Minister for Immigration and Ethnic Affairs (1986) 11 FCR 543 at 548.]


case_text: In Lebanese Moslem Association (reversed on other points of law in Minister for Immigration and Ethnic Affairs v Lebanese Moslem Association (1987) 17 FCR 373) Pincus J, at 548, found it "hard to resist" drawing certain inferences that assisted the applicants in that case. This was despite the fact that Senior Counsel to the respondent Minister argued, so Pincus J said, "with some cogency that performance of his ministerial duties would be impractical if he were to spend substantial amounts of time in courts being cross-examined about his decisions." 322 After stating, at [316], that Pincus J only hesitantly concluded in Lebanese Moslem Association that the rule applied to Ministers not giving evidence, Callinan J said, at [317]: It is unnecessary to decide in this case whether the rule should have application to a Minister in modern times. But on any view it cannot be applied in any unqualified way to a modern Minister of State, and not just for the reasons that Pincus J described as cogent. Considerations of public interest immunity may loom large in some cases. A Minister is a policymaker and policy advocate as well as a decision-maker. Further, the statement of principle in Jones v Dunkel is no more than a particular instance of the old rule stated by Lord Mansfield in Blatch v Archer and cited recently by this Court in Vetter v Lake Macquarie City Council , that evidence has to be weighed according to the circumstances of, as well as the capacity of, a party to adduce it. 325 However, in most, if not all, cases, because of the factors expressed by Pincus J, and also Kirby J and Callinan J in the passages set out above, the absence of a Minister giving evidence in the for the witness box will be easily understood.


case_title: Minister for Aboriginal and Torres Strait Islander Affairs v State of Western Australia (1996) 67 FCR 40

case_text: In Cross on Evidence (6 th Edition, Butterworth, 2000), the learned authors stated at p 39: A Jones v Dunkel inference can be drawn against a Minister who does not give evidence, [ Minister for Aboriginal Affairs and Torres Strait Islander Affairs v State of Western Australia (1996) 67 FCR 40 at 62] notwithstanding that the difficulties busy Ministers could have in giving evidence frequently might justify a departure from the ordinary application of Jones v Dunkel. [ Lebanese Moslem Association v Minister for Immigration and Ethnic Affairs (1986) 11 FCR 543 at 548.] 318 In Minister for Aboriginal and Torres Strait Islander Affairs v State of Western Australia , the Full Court of the Federal Court (Black CJ, Burchett and Kiefel JJ) at 62 (citing the Lebanese Moslem Association ) concluded that the Minister's failure to call evidence allowed the Court to more confidently draw an inference favourable to the other party. See also Citibank Ltd v Federal Commissioner of Taxation & Others (1988) 83 ALR 144 at 159, where Lockhart J notes that if the inference is capable of applying to Ministers and senior corporate executives, then it is capable of applying to senior public servants (citing to Lebanese Moslem Association, Cross on Evidence, and Electronics Industries Ltd v Mayor of City of Oakleigh [1973] VR 177 at 189).


case_text: More recently, in Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389 ; (2001) 109 FCR 152 at [72] , Sackville J referred to the High Court's observations in Jia but found it unnecessary to decide whether it applied to the circumstances of the case before him which did not involve purported bias by the Minister as was the case in Jia , but rather, failure to have regard to certain information. Sackville J had concluded, at [71], that assuming the rule applied, it would not assist the applicant.


case_text: Given the rule in Jones v Dunkel is one of the "commonsense reasoning" and one which allows parties to satisfactorily explain their failure to call a witness ( Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336 at 342), there can be no per se rule that a Jones v Dunkel inference is not available where a Minister does not testify.


case_outcome: referred to

case_text: The Commissioner issued three bankruptcy notices against Mr Croker. Mr Croker challenged these notices in the Federal Court and was successful in having each set aside. One such notice was set aside by the Full Federal Court because it was founded upon an award of costs by the High Court of Australia, for which a judgment debt could not be validly registered in a local court: see Croker v Federal Commissioner of Taxation (2003) 52 ATR 226. The second notice was set aside because the amount claimed was greater than the original award of costs against Mr Croker, since it included costs of registration of the judgment and interest: see Croker v Commissioner of Taxation [2005] FCA 127 ; (2005) 145 FCR 150. The third notice was set aside by consent because it included two judgments in the same notice, contrary to legislative requirements. 11. The Respondent well knew or should have well known that the commissions of bankruptcy and affidavit's [sic] in support of those commissions of bankruptcy therefore were made, falsely and maliciously and without reason and probable cause. 7 Mr Croker also alleges that the Commissioner has violated the Constitution (see pars 12 and 13), that the Commissioner has violated Mr Croker's constitutional right to procedural fairness (see pars 14-17), and that this involves a tortious interference with Mr Croker's constitutional rights (pars 19-21). Mr Croker says that he has exhausted his extra-judicial remedies in relation to the conduct of the Commissioner and asks the Court to provide redress for the tortious interference with his constitutional rights. THE COMMISSIONER'S SUBMISSIONS 8 The Commissioner submits that this Court has no jurisdiction to hear Mr Croker's claims. Whilst the Mr Croker alleges Court has jurisdiction pursuant to the Federal Court of Australia Act 1976 (Cth), the Bankruptcy Act 1966 (Cth), the Judiciary Act 1903 (Cth) and the Constitution , the Commissioner submits that these statutes do not confer jurisdiction upon the Federal Court to grant the relief sought. 9 Alternatively, the Commissioner submits that the proceedings should be struck out on the basis that they constitute an abuse of process, that they fail to disclose any reasonable cause of action, and have a tendency to cause embarrassment. The Commissioner submits that these proceedings re-agitate issues which were raised in the earlier proceedings relating to the bankruptcy notices, namely the entitlement of the Commissioner to issue the bankruptcy notices and a claim by Mr Croker for damages in relation to defective administration: see Croker v Federal Commissioner of Taxation [2005] FCA 127 ; (2005) 145 FCR 150 at [19] - [20] . The Commissioner submits these proceedings are accordingly an abuse of process. 10 The Commissioner submits that no cause of action is contained in Mr Croker's application. In particular, no duty of care is identified, nor are details of the content of any such duty provided, nor is there any assertion of a breach of duty or details of damage sustained by Mr Croker. The Commissioner refers to the two possible causes of action which are suggested the Mr Croker's application, namely the tort of malicious prosecution and the tort of misfeasance in public office. The Commissioner states that a tort of malicious prosecution could not be made out because there have been no proceedings instituted by the Commissioner against Mr Croker. In relation to any tort of misfeasance in public office, the statement of claim and affidavits of the applicant do not contain the material facts upon which such a suit must be founded. 11 In respect of embarrassment, the Commissioner submits that the entire pleading is embarrassing and confusing. The Commissioner refers to the terminology contained in the statement of claim such as "violation of the Constitution ", "violation of right to procedural due process protected by the Constitution " and "exhaustion of administrative remedies".


case_title: Croker v Federal Commissioner of Taxation (2003) 52 ATR 226


case_text: The Federal Court is a court of limited jurisdiction. Pursuant to s 19 of the Federal Court of Australia Act , the Court only has jurisdiction where the Parliament has specifically conferred jurisdiction upon the Court (see Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48 ; (1981) 148 CLR 150) or where the accrued or associated jurisdiction of the Court arises. 21 Mr Croker's claim against the Commissioner is based in tort. He has variously relied upon the Constitution , the Bankruptcy Act , the Judiciary Act and the common law as the basis of the Court's jurisdiction. 22 Section 56 of the Judiciary Act , on which Mr Croker relied, provides as follows: '(1) A person making a claim against the Commonwealth, whether in contract or in tort, may in respect of the claim bring a suit against the Commonwealth: (a) in the High Court; (b) if the claim arose in a State or Territory--in the Supreme Court of that State or Territory or in any other court of competent jurisdiction of that State or Territory; or (c) if the claim did not arise in a State or Territory--in the Supreme Court of any State or Territory or in any other court of competent jurisdiction of any State or Territory. (2) For the purposes of paragraphs (b) and (c) of the last preceding subsection: (a) any court exercising jurisdiction at any place in the capital city of a State, or in the principal or only city or town of a Territory, that would be competent to hear the suit if the Commonwealth were, or had at any time been, resident in that city or town, or in a particular area in that city or town, is a court of competent jurisdiction; and (b) any other court is not a court of competent jurisdiction if its competence to hear the suit would depend upon the place where the Commonwealth resides or carries on business or at any time resided or carried on business.'


case_text: Further, the Court considers that Mr Croker's application and statement of claim do not disclose any reasonable cause of action. The elements of a cause of action in tort, either of malicious prosecution or of misfeasance in public office, are not pleaded in his application. Pleadings must contain a statement of the material facts relied upon to support the cause of action: O 11 r 2 FCR. In Trade Practices Commission v David Jones (Australia) Pty Ltd & Ors (1985) 7 FCR 109, Fisher J considered a motion for strike out of a statement of claim. His Honour said at 114: Paragraph 15 of the statement of claim does not state any material facts. It is merely a statement of a conclusion drawn from facts which are not in the statement of claim. Standing alone, par 15 does not disclose a reasonable cause of action against the respondents. Furthermore all of the authorities abovementioned very clearly indicate that material facts set out in the particulars can not be used to make good the deficiencies in the statement of claim.


case_text: In my opinion, Mr Croker's application and statement of claim in the present case are in a similar position. Although it sets out conclusions, for example with respect to the motivation of the Commissioner of Taxation in issuing the bankruptcy notices, it does not state the facts upon which those conclusions are based. The application and statement of claim do not contain the material facts on which the claim is made, and therefore do not disclose a reasonable cause of action. The application as pleaded could not be sustained. In Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378, the majority of the High Court observed: '... it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail.' 30 Accordingly, even if the Court did have jurisdiction to hear these claims, the Court would strike out the pleadings under O 11 r 16 of the FCR. 31 For the reasons set out above, the Court will dismiss Mr Croker's application on the basis that the Court does not have jurisdiction to hear and determine the matter. In the circumstances, costs of the application and of the Commissioner's motion should be awarded in favour of the Commissioner.


case_text: 51AA incorporates into the Act the unwritten law in relation to unconscionable conduct thereby extending the remedies available under the Act for unconscionable conduct to the extent that this concept is presently part of the common law or equitable principles recognised by the courts. Unconscionable conduct is conduct which attracts a sufficient level of judicial opprobrium to support the grant of relief based on principles set out in specific equitable doctrines established by Courts of Equity: Australian Competition & Consumer Commission v CG Berbatis Holdings Pty Limited (2003) 214 CLR 51. Unconscionability is a concept which requires a high level of moral obloquy. It is not necessary for the party who has benefited from a transaction challenged as unconscionable to itself have created the special advantage which forms the basis of the unconscionability claim. It is sufficient if that party knows, or ought to have known, of the other party's situation of special disadvantage and takes unfair advantage of the opportunity presented: Louth v Diprose [1992] HCA 61 ; (1992) 175 CLR 621. A person will be under a special disadvantage if there are circumstances seriously affecting the ability of the person to make a judgement in his or her own best interests: Berbatis Holdings per Gleeson CJ at [5]. A person is not under a special disadvantage simply because of inequality of bargaining power: Berbatis Holdings .


case_text: the present circumstances, the unconscionable conduct on the part of Zanok was the promise that, in return for a fee, the applicant would receive training and thereafter guaranteed skilled employment in circumstances where Zanok knew or ought to have known that many of the applicants were temporary residents and anxious to find skilled employment to assist with their applications for permanent resident status. This conduct constituted more than simply taking advantage of a superior bargaining position but involved an unconscientious exploitation of another's inability or diminished ability to conserve his or her own interests. Dangling the 'employment carrot' in return for a fee in circumstances in which the applicant faces having to leave Australia, constitutes a high level of moral obloquy especially where the promised employment does not exist: Australian Competition & Consumer Commission v Chats House Investments (1996) 71 FCR 250. In the circumstances, the ACCC submitted the Court should make a declaration in terms of para 1 of the amended application.


case_text: power to make a declaration is a discretionary one and the basis upon which it should be exercised is conveniently summarised by Kenny J in Australian Competition & Consumer Commission v Henry Kaye and National Investment Institute Pty Limited [2004] FCA 1363 at [200] [201]. In Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc [1993] FCA 83 ; (1993) 41 FCR 89 , Sheppard J held that the concern of the Act with the public interest supported the view that the Court may, in appropriate cases, exercise its power to grant the declaratory relief to mark its disapproval of particular conduct engaged in contravention of the Act: [1993] FCA 83 ; [1993] 41 FCR 89 at 100 see also 106 per Foster J and 107 per Hill J; Australian Competition & Consumer Commission v Goldy Motors Pty Limited (2001) ATPR 41-801 at [34] per Carr J; Australian Competition & Consumer Commission v Target Australia Pty Limited [2001] FCA 1326 ; (2001) ATPR 41-840 at [18] per Lee J. In the circumstances, the ACCC submitted that the Court should make the declaratory relief sought in paras 1 9 of the amended application, particularly given the important public interest element involved and also having regard to the fact that the ACCC stands apart from other litigants in that its functions include the furtherance of those public interests. I agree.


case_title: Australian Competition & Consumer Commission v Henry Kaye and National Investment Institute Pty Limited [2004] FCA 1363


case_title: Australian Competition & Consumer Commission v Target Australia Pty Limited [2001] FCA 1326 ; (2001) ATPR 41-840


case_title: Australian Competition & Consumer Commission v Z-Tek Computer Pty Limited (1997) 78 FCR 197


case_text: ICI Australia Operations Pty Limited v TPC [1992] FCA 474 ; (1992) 38 FCR 248 , Lockhart J said that the Act permitted the granting of an injunction to deter an offender from repeating the offence and in TPC v Mobil Oil Australia Limited [1984] FCA 363 ; (1985) 4 FCR 296 , Toohey J said that even where there was no evidence to indicate the offenders intention to continue the offending conduct, it might be appropriate to mark the Courts disapproval by an injunction. In Glev Pty Limited v Kentucky Fried Chicken Pty Limited [1994] FCA 916 ; (1994) ATPR 41-299 , von Doussa J pointed out that in applications for an injunction under the Act there is an element of public interest involved and the Court should be slower to withhold relief.


case_title: ICI Australia Operations Pty Limited v TPC [1992] FCA 474 ; (1992) 38 FCR 248


case_title: Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc [1993] FCA 83 ; (1993) 41 FCR 89


case_title: TPC v Mobil Oil Australia Limited [1984] FCA 363 ; (1985) 4 FCR 296


case_text: 75B of the Act provides that a person is involved in a contravention of a provision of Part V (which includes ss 51AA, 52, 53B and 58 of the Act) where a person has been in any way, directly or indirectly, knowingly concerned in, or a party to, the contravention. The words 'party to a contravention' refer to a person who participates in, or assents to, the contravention. To be regarded as participating, a person must have knowledge of the essential elements constituting the contravention: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at 670. The evidence establishes that Mr Darley Stephen was knowingly concerned in or a party to the contraventions which the ACCC alleges as against Zanok. That evidence is contained in the following: In the circumstances, the ACCC submitted the Court should make a declaration in accordance with para 8 of the amended application. For the reasons outlined above, including at [19] above, I agree. The ACCC also submitted the evidence establishes that Ms Vanitha Darley was a person directly or indirectly knowingly concerned in or a party to the contraventions of Zanok alleged by the ACCC. That evidence is contained in the following:


case_text: Cadbury submitted that the onus rested on Effem to establish that, if granted, the Patent would be clearly invalid: F Hoffman-La Roche AG v New England Biolabs Inc [2000] FCA 283 ; (2000) 99 FCR 56 at [48] - [67] . 14 Cadbury further submitted that in the circumstances, it was not required to adduce any evidence to counter the ground of opposition that succeeded before the Delegate or any other ground of opposition.


case_text: Recently, in European Community v Commissioner of Patents [2006] FCA 706 , Young J dealt with a similar submission made in similar forensic circumstances. Young J accepted the submission and held that the appeal should be allowed and that the application for the patent should proceed to grant. His Honour referred to Caroma Sales Pty Ltd v Philmac Pty Ltd (1972) 46 ALJR 324 per Walsh J; Brickwood Holdings Pty Ltd v ACI Operations Pty Ltd [1983] 2 VR 587 at 588-589 per King J; and Titan Mining & Engineering Pty Ltd v Arnall's Engineering Pty Ltd (1988) 12 NSWLR 73 at 75-76 per McLelland J.


case_title: Brickwood Holdings Pty Ltd v ACI Operations Pty Ltd [1983] 2 VR 587


case_outcome: followed

case_text: Recently, in European Community v Commissioner of Patents [2006] FCA 706 , Young J dealt with a similar submission made in similar forensic circumstances. Young J accepted the submission and held that the appeal should be allowed and that the application for the patent should proceed to grant. His Honour referred to Caroma Sales Pty Ltd v Philmac Pty Ltd (1972) 46 ALJR 324 per Walsh J; Brickwood Holdings Pty Ltd v ACI Operations Pty Ltd [1983] 2 VR 587 at 588-589 per King J; and Titan Mining & Engineering Pty Ltd v Arnall's Engineering Pty Ltd (1988) 12 NSWLR 73 at 75-76 per McLelland J. 16 I have read those authorities, but will not review them. They support the following propositions: • on the hearing of an appeal under s 60(4) of the Act (the precursor provision, with which the cases to which Young J referred were concerned, was s 60(5) of the Patents Act 1952 ), the only evidence to be taken into consideration is that adduced on that hearing; • the applicant is not obliged to put into evidence the evidentiary material that was before the Commissioner or other evidence, going to the merits of the appeal or going to actual or potential grounds of opposition; • where, as in the present case, the opponent has withdrawn and the Commissioner has indicated on the hearing of the appeal that she does not wish to take any active part in the proceeding, and there is no evidence before the Court capable of supporting any actual or potential ground of opposition, there is no basis on which the Court can uphold any ground of opposition. 17 It is important to note that in the light of the history of the application, and, in particular, the Commissioner's acceptance of the application and the complete specification, s 61 of the Act would have obliged the Commissioner to grant the Patent if there had been no opposition to the grant. In substance, that is now the position on the appeal. 18 The appeal should be allowed, the Commissioner's decision allowing the opposition should be reversed, and the Patent application should proceed to grant.


case_text: The Court's task in construing a certified agreement such as the 2005 Enterprise Agreement was described by the High Court in Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10 ; (2005) 222 CLR 241 at [30] (per Gummow, Hayne and Heydon JJ). Adapting the language of that paragraph, the question of construction is to be resolved as follows: "[Clause 17.4] must be read in context. It is necessary, therefore, to have regard not only to the text of [cl 17.4], but also to a number of other matters: first, the other provisions made by [cl 17]; secondly, the text and operation of the [2005 Enterprise Agreement] both as a whole and by reference to other particular provisions made by it; and, thirdly, the legislative background against which the [2005 Enterprise Agreement] was made and in which it was to operate." See also Gleeson CJ and McHugh J at [2]; Kirby J at [93] and [96] and Callinan J at [130] - [131]. See also Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union v Ardmona Foods Ltd (2006) 155 IR 211 at [27] and Liquor, Hospitality and Miscellaneous Union v Prestige Property Services Pty Ltd (2005) 141 IR 105 at [48]-[49].


case_title: Ansett Australia Ltd (Subject to Deed of Company Arrangement) v Australian Licenced Aircraft Engineers' Association [2003] FCAFC 209

case_text: The Court's adoption of a "purposive" approach to the interpretation of statutory instruments, awards and certified agreements has been explained by various courts: Vision Super Pty Ltd v Poulter [2006] FCA 849 ; (2006) 154 FCR 185 at [66] [69]; Ansett Australia Ltd (Subject to Deed of Company Arrangement) v Australian Licenced Aircraft Engineers Association [2003] FCAFC 209 at [8] ; Australasian Meat Industry Employees' Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208 at 212 and Hawkins v Commonwealth Bank of Australia (No 2) (1996) 70 IR 213 at 218. In Kucks v CSR Limited (1996) 66 IR 182 at 184, Madgwick J put the point in the following terms: "It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand. But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning."


case_title: Australasian Meat Industry Employees' Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208


case_title: Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union v Ardmona Foods Ltd (2006) 155 IR 211


case_text: Telstra will be ordered to pay William McDonald $18,194.16 which sum comprises the amounts listed in [9] above. I will also allow pre-judgment interest under s 51A(1)(a) of the Federal Court of Australia Act 1976 (Cth) calculated at the rate fixed from time to time in accordance with the Penalty Interest Rates Act 1983 (Vic). This follows the usual practice of this Court in adopting the rates of interest applied in the relevant State Supreme Court: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 201 ALR 55; Walker v Citigroup Global Market Pty Ltd [2005] FCA 1866 and Paramount Pictures Corporation v Hasluck (2006) 70 IPR 293. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon. Associate: Dated: 2 October 2007 Counsel for the Applicant: Mr R Reitano Solicitor for the Applicant: Slater & Gordon Counsel for the Respondent: Mr R Dalton Solicitor for the Respondent: Freehills Date of Hearing: 17 September 2007 Date of Judgment: 2 October 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1515.html


case_title: Hawkins v Commonwealth Bank of Australia (No 2) (1996) 70 IR 213


case_title: Kucks v CSR Limited (1996) 66 IR 182


case_title: Liquor, Hospitality and Miscellaneous Union v Prestige Property Services Pty Ltd (2005) 141 IR 105


case_title: Paramount Pictures Corporation v Hasluck (2006) 70 IPR 293


case_title: Vision Super Pty Ltd v Poulter [2006] FCA 849 ; (2006) 154 FCR 185


case_title: Walker v Citigroup Global Market Pty Ltd [2005] FCA 1866


case_text: In the proceedings in this Court, the Commonwealth had attempted, one way and another, to have determined separately and early the question of whether there was a justiciable duty of care by the Commonwealth to its citizens as alleged, in order, if there were not, to narrow the factual issues in the case. That legal question is, at present, an open one: Hicks v Ruddock [2007] FCA 299 ; (2007) 156 FCR 574. In the course of interlocutory proceedings related to such procedural attempt by the Commonwealth, Mr Habib first made the allegation that he had actually been in the Australian High Commission to the knowledge of at least one Commonwealth officer, Mr Adams. Counsel for the Commonwealth then conceived, correctly as it appears to me, that such an allegation would bear strongly on whether the Commonwealth had a duty of care of the kind alleged. 7 I was then persuaded, over the opposition of the applicant, to try the discrete question, whether Mr Habib had ever been at the Australian High Commission in Islamabad, separately pursuant to O 29 r 2 of the Federal Court Rules . As I indicated in the course of discussion with counsel, prima facie it seemed unlikely that any participation by an Australian officer in the maltreatment of Mr Habib, or turning of a blind eye to it, would have occurred at Australian diplomatic premises. Further, the circumstances alleged by Mr Habib as to how he came to believe and to assert late in the piece that he had been at the High Commission, viewed in the light of the bad treatment he says that he received in Pakistan, Egypt and at a US military base, made it unlikely that to decide the issue I would need to cast any reflection on Mr Habib's truthfulness or even general reliability, such as might prejudice or embarrass a manifestly unbiased trial of the other factual issues in the case. Because of my impending departure from the Court, the trial of other factual issues, and of the legal issues, in the case will be before (or as directed by) another judge. 8 This is now my judgment on a final trial of the factual issue: was Mr Habib ever in the Australian High Commission in Islamabad before he was taken to Egypt?


case_text: Section 33V(1) of the Act provides that a representative proceeding may not be settled or discontinued without the approval of the Court. The purpose intended to be served by s 33V was stated succinctly by Branson J in Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 142 ALR 177 at 184. Her Honour said: It is appropriate for the court to be satisfied that any settlement or discontinuance of representative proceedings has been undertaken in the interests of the group members as a whole and not just in the interests of the applicant and the respondent.


case_text: I do not consider that it is necessary to take the step which was taken by Sackville J in Courtney v Medtel Pty Ltd (No. 5) 212 ALR 311 at [57] to [60]. His Honour there suggested that evidence should be presented from an independent cost consultant. Here I have such evidence in Mr Thompson's affidavit. 75 The third objection was as to the possible destruction of documents. However, the objection is based on a misreading of cl 10(a) of the Deed of Settlement. The destruction of documents contemplated by that clause does not authorise the destruction of the primary evidence in the possession, custody or power of Telstra. It provides only for destruction of documents in the possession of, or controlled by, Mr Taylor. 76 The final objection deals with the exclusion of certain group members from participation in the settlement. The confidential affidavit of Mr Fowlie of 9 November 2007 dealt with this in [26], [28] and [29]. I did make an order for confidentiality of the whole of the affidavit but Mr Gageler SC has this afternoon waived the confidentiality of the provisions of those paragraphs and it is convenient to refer to them because they explain why the eligible participants in the settlement comprise fewer than all of those who are members of the group defined in the statement of claim.


case_text: In Darwalla Milling Co Pty Ltd v F Hoffmann-La Roche Ltd (No. 2) (2007) 236 ALR 322, Jessup J took a slightly different approach from Goldberg J. His Honour observed at [3] that each case is dealt with on its own merits and by reference to specific factors which might raise serious doubts as to fairness. His Honour said at [35] that he could see no particular warrant for incorporating into Part IVA of the Act the requirements of the rules of the court of an overseas jurisdiction. His Honour said at [39] that: The practical judicial approach has been...to identify any features of the settlement that are obviously unreasonable or unfair... [and] where some group members object to a settlement and state their reasons..., their reasons will provide a convenient focus by reference to which the court will decide matters of fairness and reasonableness. 61 Jessup J at [41] proceeded on the basis of considering whether the overall settlement sum was reasonable having regard to: the manner of its calculation and its relationship to the best possible case outcome for the group as a whole; the prospects of achieving an outcome at or near the best probable case; the extent of the weaknesses, substantive or procedural, in the applicant's case; [and] whether the settlement sum falls within a realistic range of likely outcomes... 62 The test applied by his Honour at [41] was to determine whether the settlement involved any actual potential unfairness to any group member or categories of group members having regard to all relevant matters, including: whether the overall settlement sum involved unfair compromises by some members or categories of members for the benefit of others; and whether the distribution scheme fairly reflected the apparent or assumed relative losses suffered by particular members or categories of members. 63 Jessup J at [50] also said that he did not consider that it was the Court's function under s 33V to second-guess the applicants' advisers as to the answer to the question whether the applicants ought to have accepted the respondents' offer. 64 He also said at [50]: the court's function is, relevantly, confined to the question of whether the settlement was fair and reasonable. There will rarely, if ever, be a case in which there is a unique outcome which should be regarded as the only fair and reasonable one...the court should, up to a point at least, take the applicants and their advisers as it finds them...So long as the agreed settlement falls within the range of fair and reasonable outcomes, taking everything into account, it should be regarded as qualifying for approval under s 33V. 67 It seems to me that whether I adopt the approach of Jessup J or that taken earlier by Goldberg J, I ought to approve the settlement. My reasons for this are as follows. 68 Counsel for the applicant have provided a joint opinion that the proposed settlement is fair and reasonable. This is a matter which carries weight in the exercise of my discretion although, of course, ultimately it is for me to satisfy myself in accordance with the relevant principles. 69 I have given careful consideration to the objections which have been raised. 71 As I have said earlier, Jessup J in Darwalla drew attention to the approach which the Court should take, namely that the Court should take the legal advisers as it finds them. Of course, that is a matter which has bearing in relation to the members of the group who retained Slater & Gordon, but it does seem to me also to be a matter which I ought to take into account in considering the fairness and reasonableness of the settlement proposal. 72 The second objection was as to the fees that are payable. I have considered the evidence of Mr Thompson who is an independent and accredited costs assessor. He is the principal of the firm known as Blackstone Legal Costing Pty Ltd. He has assessed the costs as fair and reasonable. It should be noted that Mr Thompson points out that the actual professional costs incurred by Messrs Slater & Gordon exceed the amount that has been claimed. Moreover, although Slater & Gordon have undertaken work in relation to the files of the 223 group members who retained them, the firm will not be charging costs for that work. The estimate of the amount of those costs would be in excess of $100,000. Slater & Gordon will incur irrecoverable costs in administering the settlement. They have not charged a success fee or any uplift in their fees nor have they charged for disbursements including overseas calls. 73 Although the amount of the costs looked at in isolation seems to be a large figure, it is necessary to take into account the stage at which the settlement has been reached. It is evident from the evidence that has been filed and the fact that settlement was reached only about two weeks before the hearing that a substantial amount of work has gone into the preparation of the case. The global figure is as I have said $1.25 million, but approximately a third of that is comprised of expenses and disbursements including counsel's fees.


case_text: More recently in Haslam v Money for Living (Aust) Pty Ltd (Administrators Appointed) [2007] FCA 897 Gordon J said at [19] to [20] said that she did not consider that the analysis undertaken by Goldberg J ought to be read as seeking to incorporate into Part IVA of the Act the requirements of the rules of court of an overseas jurisdiction. 66 She said at [20]: The analysis provided and continues to provide a useful guide in considering applications for approval under s 33V...It should, in appropriate cases and subject to the circumstances of any particular case, continue to be employed as a useful guide.


case_text: In Lopez v Starworld Enterprises Pty Ltd [1999] FCA104, Finkelstein J pointed out at [16] that the Court's task under s 33V is an onerous one. His Honour observed at [15] that he was not concerned so much with the position of the applicant, who was represented by solicitors and counsel, but with other group members, many of whom are not protected in this way.


case_text: In Williams v FAI Home Security Pty Ltd (No. 4) (2001) 180 ALR 459 at [19], Goldberg J said: Ordinarily the task of a court upon an application such as this, is to determine whether the proposed settlement or compromise is fair and reasonable, having regard to the claims made on behalf of the group members who will be bound by the settlement. Ordinarily...the court will take into account the amount offered to each group member, the prospects of success..., the likelihood of group members obtaining judgment for an amount significantly in excess of the settlement offer, the terms of any advice received from counsel and from any independent expert in relation to the issues which arise in the proceeding, the likely duration and cost of the proceeding... and the attitude of the group members to the settlement. 59 His Honour referred to a nine-factor test which has been adopted in the United States in considering whether to approve settlements as fair and reasonable.