case_text: In short, whatever the employees suffered by way of psychological distress was not caused by any act of Tristar. Rather, the choice they made to continue in employment was the operative reason for the prejudice ( Maritime Union of Australia v CSL Australia Pty Ltd [2002] FCA 513 , (2002) 113 IR 326 at [53] and [54]). In my opinion, none of these employees was injured, nor was the position of any of them prejudicially altered by any act of the employer as required by s 792. 32 Even if the necessary injury or alteration of position had been established, a sole or dominant prohibited reason has not been established (s 792(4)). The selection of employees for retrenchment had no scintilla of connection with freedom of association. All employees covered by the Certified Agreement had the benefit of that agreement without discrimination between them. There is no suggestion that selection for retrenchment was made for any reason associated with union membership or non-membership, or union activity or non-activity, or because these employees were covered by the Certified Agreement and other potential persons affected were covered by some other agreement. There is simply no basis for suggestion of discrimination or victimisation in any relevant respect. The employees the subject of this proceeding are only a proportion of the workforce as it stood in 2006. 33 So far as s 793(1)(i) is concerned, the affected employees were, or are, entitled to the benefit of the Certified Agreement in common with all production employees. There is no discrimination between employees in that respect. There is no suggestion that persons with the benefit of the Certified Agreement were being discriminated against as compared with people who did not have the benefit of that Agreement. The fact that the employer was, or may have been, advantaged by not dismissing particular employees because of the way in which cl 21.5 worked, is not pertinent to this statutory obligation. The content and effect of an agreement may not always be irrelevant for example, if the way a particular clause operates is related to some relevant form of discrimination. The decision of the Full Court in Greater Dandenong City Council [2001] FCA 349 ; 112 FCR 232 may provide an example of that, although it is a difficult decision as Branson J said in CSL Australia Pty Ltd [2002] FCA 513 , 113 IR 326 at [54] , it is not easy to derive a ratio decidendi. The decision in Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18 ; 157 FCR 329 may be another. In each case, the employer had work to be done by those employed pursuant to an industrial instrument. The proposed change meant that the work would be done by those who were willing to take alternative employment pursuant to different industrial instruments or perhaps no industrial instrument. That is not the case here. 35 Early in the history of these provisions it was established that they could not be used to restrict genuine business decisions by an employer, notwithstanding that the objective of the provisions then was the protection of unions and collective action ( Connington v Municipality of Kogarah [1913] AR (NSW) 40 at 44; Grayndler v Broun [1928] AR (NSW) 46 at 49; Klanjscek v Silver (1961) 4 FLR 182 at 187; Moss v Fantil Pty Ltd t/as Central Coast Security Services (1994) 58 IR 118 at 127). The underlying principle is that a decision that may affect an employee or a class of employee does not discriminate against or victimise that employee or those employees if it is taken for a sound business reason. This principle has been applied in various situations in more recent times in considering a prohibited reason within the meaning of s 793 and similar provisions. Examples include Qenos Pty Ltd [2001] FCA 178 ; 108 FCR 90 at [119] [126]; Australian Collieries' Staff Association v BHP Coal Pty Ltd [2000] FCA 318 ; (2000) 99 FCR 137 , particularly at [66] [67]; CSL Australia Pty Ltd [2002] FCA 513 , 113 IR 326, particularly at [55] [60]; BHP Iron Ore Pty Ltd v Australian Workers' Union [2000] FCA 430 ; 102 FCR 97 at [48] ; and Geraldton Port Authority [1999] FCA 899 ; 93 FCR 34 , particularly at [294] [302]. 36 There is no causal link between any injury or alteration of position which might be found to have been incurred and the alleged prohibited reason in this case. On one view, s 809 has no work to do in those circumstances (cf CSL Australia Pty Ltd [2002] FCA 513 , 113 IR 326 at [56] [60]). In any event, the evidence that was led for Tristar is inconsistent with the existence of any particular reason or intent connected with s 793(1)(i) notwithstanding that I accept that the length of service of the employees was a factor taken into account in not dismissing them because of the size of the severance payment which would have to be made. As I have endeavoured to show, that does not establish that any conduct of Tristar was for a prohibited reason. The manner in which the particular clause in the Certified Agreement worked out in practice does not fall within s 793(1)(i) as construed in the context of the rest of s 793(1), the rest of Pt 16 and the objects and structure of the Act as a whole ( Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355).


case_outcome: discussed

case_text: The decision in Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899 ; (1999) 93 FCR 34 is a good illustration of where the dividing line might be drawn. Cases on the non-contravening side of the line include Burnie Port Corp Pty Ltd v Maritime Union of Australia [2000] FCA 1768 ; (2000) 104 FCR 440 and Australian Workers' Union v BHP Iron-Ore Pty Ltd [2001] FCA 3 ; 106 FCR 482. A case with some similarities to the present is National Union of Workers v Qenos Pty Ltd [2001] FCA 178 ; (2001) 108 FCR 90. It dealt with a situation where there was a surplus of employees for genuine business reasons. A "spill and fill" selection and retrenchment process was held not to be capable of giving rise to an injury to any particular employee in his or her employment and could not be said to have altered the position of any individual employee to his or her prejudice. (See also Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 , (2006) 160 IR 1 at [29] and [31].) 35 Early in the history of these provisions it was established that they could not be used to restrict genuine business decisions by an employer, notwithstanding that the objective of the provisions then was the protection of unions and collective action ( Connington v Municipality of Kogarah [1913] AR (NSW) 40 at 44; Grayndler v Broun [1928] AR (NSW) 46 at 49; Klanjscek v Silver (1961) 4 FLR 182 at 187; Moss v Fantil Pty Ltd t/as Central Coast Security Services (1994) 58 IR 118 at 127). The underlying principle is that a decision that may affect an employee or a class of employee does not discriminate against or victimise that employee or those employees if it is taken for a sound business reason. This principle has been applied in various situations in more recent times in considering a prohibited reason within the meaning of s 793 and similar provisions. Examples include Qenos Pty Ltd [2001] FCA 178 ; 108 FCR 90 at [119] [126]; Australian Collieries' Staff Association v BHP Coal Pty Ltd [2000] FCA 318 ; (2000) 99 FCR 137 , particularly at [66] [67]; CSL Australia Pty Ltd [2002] FCA 513 , 113 IR 326, particularly at [55] [60]; BHP Iron Ore Pty Ltd v Australian Workers' Union [2000] FCA 430 ; 102 FCR 97 at [48] ; and Geraldton Port Authority [1999] FCA 899 ; 93 FCR 34 , particularly at [294] [302].


case_outcome: cited

case_text: There may be circumstances where the conduct of the employer towards an employee is such that the employee, upon leaving, can assert that he or she has been constructively dismissed, triggering whatever rights the employee may have upon dismissal ( Westen v Union des Assurances de Paris (1996) 88 IR 259 at 261; Brackenridge v Toyota Motor Corporation Australia Ltd (1996) 142 ALR 99 at 106; in the case of position redundancy see Commonwealth Bank of Australia v Finance Sector Union of Australia [2002] FCAFC 193 ; (2002) 125 FCR 9 at [27] ; cf Martech International Pty Ltd v Energy World Corp Ltd [2007] FCAFC 35 at [19] ). In the present case, that may have included a claim pursuant to cl 21.5. That case could have been pursued by or on behalf of these employees. That course was adopted in Finance Sector Union of Australia v Commonwealth Bank of Australia [2001] FCA 1613 , (2001) 111 IR 241 (although set aside in the result on appeal Commonwealth Bank of Australia v Finance Sector Union of Australia [2002] FCAFC 193 ; 125 FCR 9). Rather, the choice was made here to seek to use the freedom of association provisions to, in effect, act as a means of specific enforcement of cl 21.5.


case_text: Early in the history of these provisions it was established that they could not be used to restrict genuine business decisions by an employer, notwithstanding that the objective of the provisions then was the protection of unions and collective action ( Connington v Municipality of Kogarah [1913] AR (NSW) 40 at 44; Grayndler v Broun [1928] AR (NSW) 46 at 49; Klanjscek v Silver (1961) 4 FLR 182 at 187; Moss v Fantil Pty Ltd t/as Central Coast Security Services (1994) 58 IR 118 at 127). The underlying principle is that a decision that may affect an employee or a class of employee does not discriminate against or victimise that employee or those employees if it is taken for a sound business reason. This principle has been applied in various situations in more recent times in considering a prohibited reason within the meaning of s 793 and similar provisions. Examples include Qenos Pty Ltd [2001] FCA 178 ; 108 FCR 90 at [119] [126]; Australian Collieries' Staff Association v BHP Coal Pty Ltd [2000] FCA 318 ; (2000) 99 FCR 137 , particularly at [66] [67]; CSL Australia Pty Ltd [2002] FCA 513 , 113 IR 326, particularly at [55] [60]; BHP Iron Ore Pty Ltd v Australian Workers' Union [2000] FCA 430 ; 102 FCR 97 at [48] ; and Geraldton Port Authority [1999] FCA 899 ; 93 FCR 34 , particularly at [294] [302].


case_outcome: followed

case_title: National Union of Workers v Qenos Pty Ltd [2001] FCA 178 ; (2001) 108 FCR 90


case_outcome: referred to

case_text: Tracey J usefully summarised the authorities as to the former s 298K in Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 , (2006) 160 IR 1 at [13] [22]. "Injury" is concerned with an adverse effect upon an existing legal right, or "compensable" injury. Prejudicial alteration of position goes beyond that concept. There are many examples in the cases. It is sufficient to refer to Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30 ; (1998) 195 CLR 1 per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ at [37] and [38]; Community and Public Sector Union v Telstra Corp Ltd [2001] FCA 267 ; 107 FCR 93 at [17] [22]; Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union [2001] FCA 349 ; (2001) 112 FCR 232 ; and Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18 ; 157 FCR 329.


case_text: There is no causal link between any injury or alteration of position which might be found to have been incurred and the alleged prohibited reason in this case. On one view, s 809 has no work to do in those circumstances (cf CSL Australia Pty Ltd [2002] FCA 513 , 113 IR 326 at [56] [60]). In any event, the evidence that was led for Tristar is inconsistent with the existence of any particular reason or intent connected with s 793(1)(i) notwithstanding that I accept that the length of service of the employees was a factor taken into account in not dismissing them because of the size of the severance payment which would have to be made. As I have endeavoured to show, that does not establish that any conduct of Tristar was for a prohibited reason. The manner in which the particular clause in the Certified Agreement worked out in practice does not fall within s 793(1)(i) as construed in the context of the rest of s 793(1), the rest of Pt 16 and the objects and structure of the Act as a whole ( Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355).


case_text: There is a respectable argument that an employee cannot be indefinitely denied work to do if work of an appropriate kind is available ( Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22 ; (2005) 221 CLR 539 , particularly per Callinan and Heydon JJ at [80]; Squires v Flight Stewards Assn of Australia (1982) 2 IR 155 at 164; Downe v Sydney West Area Health Service (No 2) [2008] NSWSC 159 at [410] [431]). No such appropriate work was available here.


case_title: Westen v Union des Assurances de Paris (1996) 88 IR 259


case_text: In the ordinary case, an opportunity should be given to a person affected by a decision to deal with adverse information that is credible, relevant and significant to the decision to be made. While procedural fairness does not normally require the decision maker to disclose his or her thinking processes or proposed conclusions, it may be that an adverse conclusion of a type that could not reasonably be expected by a person affected by a decision ought to be brought to that person's attention, as a matter of fairness ( Minister for Local Government v South Sydney City Council [2002] NSWCA 288 ; 55 NSWLR 381 at [260] and [261]).


case_text: Where the requirements for procedural fairness apply, a person likely to be affected by the decision is entitled to put information and submissions to the decision maker in support of an outcome that supports that person's interests. That entitlement extends to the right to rebut or qualify, by further information and comment, adverse material from other sources that are put before the decision maker. The decision maker is required to identify to the person affected any issue critical to the decision that is not apparent from its nature or the terms of the statute under which it is made. The decision maker must advise of any adverse conclusion that has been arrived at that would not obviously be open on the known material. On the other hand, a decision maker is not obliged to expose his or her mental processes or provisional views for comment by an affected person before making the decision in question ( Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd 127 ALR 699 at pp 714-715).


case_text: The content to be given to an obligation to accord procedural fairness must accommodate the particular provisions made in the enactment that regulates how the decision maker is to go about the task of decision making. The application of principles of procedural fairness in a particular case must always be moulded to the particular circumstances of that case ( Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; 225 CLR 88 at [10] and [25]).


case_text: When a statute confers a power on a public official, the exercise of which affects a person's rights, interests or expectations, that power must be exercised in accordance with the rules of procedural fairness unless the rules are excluded by express terms or by necessary implication. A legislative intention to exclude the rules will not be assumed or spelt out from indirect references, uncertain inferences or equivocal considerations. In particular, such an intention should not be inferred merely from the presence in the relevant statute of rights that are commensurate with some of the rules of procedural fairness. The rules may be excluded because the power in question is, of its nature, one that is to be exercised in circumstances of urgency or emergency. However, urgency will not of itself exclude the right to procedural fairness, although it may, in particular circumstances, reduce the content of the right to procedural fairness ( South Australia v Slipper [2004] FCAFC 164 ; 136 FCR 259 at [93] ). 55 The requirement for procedural fairness does not require a decision maker to disclose what the decision maker is minded to decide, so that parties affected may have a further opportunity of criticising the mental processes of the decision maker before a final decision is reached. A decision maker is generally not obliged to invite comment on the evaluation of the subject's case. On the other hand, procedural fairness requires that a party affected by a decision be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material. Thus, the subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it and is entitled to respond to any adverse conclusion drawn by the decision maker on material supplied by or known to the subject that is not an obvious and natural evaluation of that material.


case_text: An executive or administrative decision of a kind that affects a person as a member of the public or a class of the public may properly be characterised as a " policy " or " political " decision. In such a case, there will be no entitlement to procedural fairness in relation to the making of the decision vested in a member of the public or a member of a class of the public affected by the decision ( Salemi v Mackellar No 2 [1977] HCA 26 ; 137 CLR 396 at 452). A minister is not bound to hear an individual before formulating or applying a general policy or exercising a discretion in a particular case by reference to the interests of the general public, even where the decision affects an individual's interests. A minister may determine general policy or the interests of the general public free of procedural constraints. A minister will be confined only by the limits otherwise expressed or implied by statute ( South Australia v O'Shea [1987] HCA 39 ; 163 CLR 378 at 411).


case_title: South Australia v O'Shea [1987] HCA 39 ; 163 CLR 378


case_text: a general case management directions hearing convened on Thursday Island on 7 July 2006 the joinder motions were argued. Orders were made for the joinder of MG Kailis Pty Ltd. A motion for the joinder of the Torres Shire Council was heard on that day and dismissed on 18 August 2006 Akiba v State of Queensland (No 1) [2006] FCA 1102. A further motion by Mr Pende Gamogab for the Dangaloub-Gizra group at Kupere Village sought his joinder on their behalf. For the reasons that follow, although I consider that Mr Gamogab has an interest which would render him eligible for joinder as a party, I am of the opinion that as a matter of discretion he should not be joined and his motion will be dismissed. The reasons informing the exercise of my discretion in that respect may also affect the position of other PNG nationals who are currently parties to these proceedings. In an affidavit sworn on 14 July 2005, Mr Gamogab described himself as a subsistence farmer and says he lives at the Kupere Village in the South Fly District. He asserted, on behalf of a group he called the Dangaloub-Gizra, traditional rights of movement and ownership and use of resources in the Torres Strait region which is now subject to the Torres Strait Regional Seas Claim. He said, inter alia: claim ourselves to be a party to true traditional inherent land and resource owners and users as original inhabitants of our customary land on the coast and in the sea together with our SIEPAM (TORRES STRAIT ISLANDER) and ABARSEN (MALIG and GUDANG ABORIGINES) relatives.' He said that they seek recognition by Australia of their traditional inherent rights of access and movement for traditional purposes in the Torres Strait region and of their usage and ownership of traditionally shared resources in the same or similar manner as Australia has done for their Torres Strait Islander and Aboriginal relatives. Mr Gamogab set out some Dangaloub-Gizra oral history and what he called the Myth of Origin passed orally from generation to generation, from time in antiquity to the present. According to this myth the Gizra (Dangaloub and Gizra), the Siepam (Torres Strait Islanders) and the Abarsen (Malig and Gudang Aborigines) were all created together. They initially lived together in a traditional village (KOBO) sharing life and culture, initiation practices and the resources of the land and sea until separation. The reference to separation appears to have been related to the inundation of the ancient land bridge joining Australia and PNG.


case_text: kind of interest necessary to enliven the discretion under s 84(5) can include '... a special well-established non-proprietary connection with land or waters that is of significance to that person'. The interest need not be proprietary or legal or equitable in nature. It must not be indirect, remote or lacking in substance. It will not include interests of an emotional, conscientious, ideological or intellectual kind Byron Environment Centre Inc v The Arakwal People (1997) 148 ALR 46 at 51-52 (Black CJ, see also at 84 Merkel J).


case_text: Australia indigenous persons who are not claimants but contend that they have traditional rights and interests within the area of an application for a determination of native title, may have an interest which renders them eligible for joinder as parties. In Kokatha Native Title Claim v The State of South Australia [2005] FCA 836 , Mansfield J so held and observed (at [24]): assertion of those rights, to the extent that they are actually enjoyed by the party-applicants as individual members of the group, cannot lead in the Kokatha claim to a determination of native title rights and interests. They may however lead to a more informed decision on the Kokatha claim as to whether the native title rights and interests should be granted as expressed in that application. That is, the assertion of those rights may result in the Kokatha claim being less successful than it may otherwise be. Where there may be a competing native title group who claim communal rights and interests which may be affected by a determination in the Kokatha claim, but there is no application by that group over the claim area, the members of that group should not be precluded from putting forward their claim in a defensive attempt to avoid the dilution of those interests.' The criteria for the recognition of native title rights and interests at common law do not exclude the possibility that the common law could recognise the traditional rights and interests of persons who are neither Australian residents or citizens. It is not therefore beyond the bounds of possibility that a PNG national living in PNG who is a traditional inhabitant of the claim area may have rights and interests capable of recognition by the common law. The effect of the Act on the ability of such persons to obtain a determination under its provisions, is another matter. The expression 'native title' and 'native title rights and interests' as defined in s 223 of the Act '... means the communal, group or individual rights and interests of Aboriginal people or Torres Strait Islanders in relation to land or waters ...'. The term 'Torres Strait Islander' is defined in s 253 to mean '.... A descendant of an indigenous inhabitant of the Torres Strait Islands'. It would not seem, therefore, that a determination of native title could be obtained by PNG nationals on the strength of rights and interests possessed within Australian waters under the traditional laws acknowledged and the traditional customs observed by the society of which they are part. Nevertheless, the rights and interests of such persons might limit or qualify the native title rights and interests of Torres Strait Islanders. Such a limitation could arise as an element of the traditional laws acknowledged and the traditional customs observed by the Islanders themselves. This would be consistent with traditional concurrent use of areas of the Torres Strait within the claim area with people from PNG. In my opinion, on that basis, the interests asserted by Mr Gamogab, as a member of the relevant traditional community, would render him eligible for joinder as a party. It cannot be said that the interests of traditional inhabitants of the Torres Strait regional claim area from PNG would be unaffected by a native title determination over the sea. A native title determination recognising native title rights and interests on the part of the applicants could render enforceable and protected at Australian law, rights and interests which accord no recognition to the rights and interests asserted by Mr Gamogab and his community. In so saying, I offer no opinion on the question whether Mr Gamogab's asserted rights and interests as a traditional inhabitant do in truth exist in the claim area.


case_text: Insofar as the second contention is concerned, it may be accepted that the Tribunal carries out an " inquisitorial process ": SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 at [53] , [2007] FCA 1592 ; 164 FCR 14 at 27 8. Allsop J there observed: [53] ... the obligation of the Tribunal to give a real and meaningful invitation to comment carried with it the obligation to take reasonably open and regular administrative procedural steps to permit or facilitate fulfilment of the real and meaningful nature of the invitation, where not to take such steps would undermine or subvert the meaningfulness or the reality of the invitation. That obligation involves such mundane things as opening letters, reading them once opened and taking at least basic simple steps that would be taken in any well-run commercial, professional or governmental office, conformable with the recognition of the importance of the response to the invitation to the rights of the applicant and the review process contained within Pt 7 of the Migration Act . This does not rest on some posited duty of inquiry. It is not engaging in steps that require for their enforcement some express statutory power. ... ... [57] These conclusions can be fortified by the recognition, so often stated, that the Tribunal is engaged in an inquisitorial process... [58] This inquisitorial function has become relevant in a number of contexts. In Applicant S 217 CLR 387 at [76] McHugh J said: If the Tribunal had considered the issue that it was legally required to consider, it was open to the Tribunal to investigate whether such a perception existed, whether within the Afghan society or some section of it, or objectively. Indeed, arguably in the context of its inquisitorial process, the Tribunal had a duty to seek evidence concerning this vital matter. See also: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 154/2002 [2003] HCA 60 at [58] , [2003] HCA 60 ; 201 ALR 437 at 450 1; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [73] , [2004] HCA 32 ; 207 ALR 12 at 30 3. 16 A general answer may be provided to the alleged " duty to investigate ": even though the Tribunal performs an " inquisitorial function ", the primary responsibility nevertheless remains upon an applicant appearing before it to present such evidence and to advance such submissions as are considered relevant to his claims. It is no part of the task of the Tribunal to make out an applicant's case for him: cf Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550. Mason J there observed at 587: ... The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward. ... And in Abebe v Commonwealth [2004] HCA 32 ; (1999) 197 CLR 510 at 576, Gummow and Hayne JJ concluded that the Refugee Review Tribunal was not in the position of a contradictor. Their Honours held that it was: ... for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The tribunal must then decide whether that claim is made out. See also: Brehoi v Attorney-General of the Commonwealth [2000] FCA 1747 at [35] per Hely J. The legislative requirement is that an invitation must be extended to an applicant " to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review ": Migration Act , s 425(1). This right is " clearly an important and central right " in the review system established by Part 7 of the Migration Act : Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362 at [44] , [2001] FCA 1362 ; 113 FCR 541 at 552; Amankwah v Minister for Immigration and Multicultural Affairs [1999] FCA 1162 at [13] , [1999] FCA 1162 ; 91 FCR 248 at 251. And the obligation imposed upon the Tribunal is an obligation to give a " real and meaningful invitation to comment ": SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 at [53] , [2007] FCA 1592 ; 164 FCR 14 at 27 8 per Allsop J. 19 There is no unqualified duty imposed upon the Tribunal to make all such inquiries or to undertake all such investigations as a party may wish to be undertaken: cf Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [42] [43], [2004] HCA 32 ; 207 ALR 12 at 21 2 per Gummow and Hayne JJ. See also: SZEEU v Minister for Immigration & Citizenship [2008] FCA 269 at [44] .


case_title: Amankwah v Minister for Immigration and Multicultural Affairs [1999] FCA 1162 , 91 FCR 248

case_text: A general answer may be provided to the alleged " duty to investigate ": even though the Tribunal performs an " inquisitorial function ", the primary responsibility nevertheless remains upon an applicant appearing before it to present such evidence and to advance such submissions as are considered relevant to his claims. It is no part of the task of the Tribunal to make out an applicant's case for him: cf Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550. Mason J there observed at 587: ... The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward. ... And in Abebe v Commonwealth [2004] HCA 32 ; (1999) 197 CLR 510 at 576, Gummow and Hayne JJ concluded that the Refugee Review Tribunal was not in the position of a contradictor. Their Honours held that it was: ... for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The tribunal must then decide whether that claim is made out. See also: Brehoi v Attorney-General of the Commonwealth [2000] FCA 1747 at [35] per Hely J. The legislative requirement is that an invitation must be extended to an applicant " to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review ": Migration Act , s 425(1). This right is " clearly an important and central right " in the review system established by Part 7 of the Migration Act : Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362 at [44] , [2001] FCA 1362 ; 113 FCR 541 at 552; Amankwah v Minister for Immigration and Multicultural Affairs [1999] FCA 1162 at [13] , [1999] FCA 1162 ; 91 FCR 248 at 251. And the obligation imposed upon the Tribunal is an obligation to give a " real and meaningful invitation to comment ": SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 at [53] , [2007] FCA 1592 ; 164 FCR 14 at 27 8 per Allsop J.


case_text: Other decisions have also recognised that a meaningful opportunity to give evidence and present arguments, in the case of a person who is not fluent in the English language, will only be afforded if an interpreter is present and it is evident that, subject to reasonably accurate interpretation, that which an applicant wishes to convey to the Tribunal and that which the Tribunal wishes to convey to an applicant is fairly interpreted: SZGYM v Minister for Immigration & Citizenship [2007] FCA 1923 at [27] . An inadequate translation service may deprive a party of an effective opportunity to present his case where the standard of interpretation at the Tribunal hearing is so inadequate that the appellant is effectively prevented from giving evidence at the Tribunal: W284 v Minister for Immigration & Multicultural Affairs [2001] FCA 1788 ; Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050 , 122 FCR 322 ; Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230.


case_text: In the present proceedings there is thus no basis upon which it can be concluded that there has been any denial of procedural fairness and no basis upon which it can be concluded that the Appellant has been deprived of an effective opportunity to present his case before the Tribunal. No instance has been given of the assistance in fact provided to the now Appellant by the interpreter being in any way deficient or inadequate. No question arises in the present proceedings of any consideration having to be given to whether a requirement to provide an interpreter is to be constrained by reference to any " reasonableness requirement ": cf Attorney-General v Udompun [2005] 3 NZLR 204 at 225. 35 The second Ground of Appeal is also rejected.


case_title: Brehoi v Attorney-General of the Commonwealth [2000] FCA 1747


case_outcome: considered

case_title: Chief Executive Officer of Customs v ICB Medical Distributors Pty Ltd [2007] FCA 1538 , 97 ALD 746

case_text: As was correctly concluded by the Federal Magistrates Court, there is no obligation upon an administrative tribunal, and no obligation imposed upon the Refugee Review Tribunal, to refer to each piece of evidence placed before it for consideration and no obligation to either explain why it accepts or rejects particular evidence. An administrative tribunal is thus not normally required to state what evidence is accepted, rejected or taken into account with respect to findings of fact: cf Guy v Repatriation Commission [2002] FCA 525 , 74 ALD 617. An administrative tribunal is not required " to give a subset of reasons [as to] why it accepted or rejected individual pieces of evidence ": cf Chief Executive Officer of Customs v ICB Medical Distributors Pty Ltd [2007] FCA 1538 at [44] , [2007] FCA 1538 ; 97 ALD 746 at 755.


case_title: Guy v Repatriation Commission [2002] FCA 525 , 74 ALD 617


case_title: Liu v Minister for Immigration & Multicultural Affairs [2001] FCA 136


case_title: Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759 , 183 ALR 188

case_text: The invitation to attend an oral hearing " must not be a hollow shell or an empty gesture ": Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759 at [31] , [2000] FCA 1759 ; 183 ALR 188 at 194 5. 30 The importance of the role potentially to be played by a competent interpreter in ensuring the effectiveness of such a hearing has been recognised in both the legislation and prior decisions of this Court. Section 427(7) of the 1958 Act thus provides: If a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with that person during his or her appearance proceed through an interpreter. The sub-section, it is noted, confers a discretion. 31 Prior decisions of this Court also recognise that an effective opportunity to be heard may require the provision of an interpreter. In Mazhar , Goldberg J went on to observe: [31] ... If an invitation to appear is extended to an applicant, where the tribunal knows that an interpreter is required, the obligation to extend the invitation will not be satisfied if the tribunal provides an interpreter whose interpretation is such that the applicant is unable adequately to give evidence and present argument to the tribunal. If that situation arises the tribunal will not have fulfilled its obligation under s 425(1). Absent an interpreter, the Tribunal may be unable to afford an effective opportunity to a non-English speaking applicant to give evidence and the Tribunal, it has been said, lacks jurisdiction to continue the hearing unless an interpreter is provided: Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 at [21] , [1999] FCA 507 ; 92 FCR 6 at 17 per Kenny J.


case_title: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 , 207 ALR 12

case_text: Insofar as the second contention is concerned, it may be accepted that the Tribunal carries out an " inquisitorial process ": SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 at [53] , [2007] FCA 1592 ; 164 FCR 14 at 27 8. Allsop J there observed: [53] ... the obligation of the Tribunal to give a real and meaningful invitation to comment carried with it the obligation to take reasonably open and regular administrative procedural steps to permit or facilitate fulfilment of the real and meaningful nature of the invitation, where not to take such steps would undermine or subvert the meaningfulness or the reality of the invitation. That obligation involves such mundane things as opening letters, reading them once opened and taking at least basic simple steps that would be taken in any well-run commercial, professional or governmental office, conformable with the recognition of the importance of the response to the invitation to the rights of the applicant and the review process contained within Pt 7 of the Migration Act . This does not rest on some posited duty of inquiry. It is not engaging in steps that require for their enforcement some express statutory power. ... ... [57] These conclusions can be fortified by the recognition, so often stated, that the Tribunal is engaged in an inquisitorial process... [58] This inquisitorial function has become relevant in a number of contexts. In Applicant S 217 CLR 387 at [76] McHugh J said: If the Tribunal had considered the issue that it was legally required to consider, it was open to the Tribunal to investigate whether such a perception existed, whether within the Afghan society or some section of it, or objectively. Indeed, arguably in the context of its inquisitorial process, the Tribunal had a duty to seek evidence concerning this vital matter. See also: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 154/2002 [2003] HCA 60 at [58] , [2003] HCA 60 ; 201 ALR 437 at 450 1; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [73] , [2004] HCA 32 ; 207 ALR 12 at 30 3. 19 There is no unqualified duty imposed upon the Tribunal to make all such inquiries or to undertake all such investigations as a party may wish to be undertaken: cf Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [42] [43], [2004] HCA 32 ; 207 ALR 12 at 21 2 per Gummow and Hayne JJ. See also: SZEEU v Minister for Immigration & Citizenship [2008] FCA 269 at [44] .


case_title: NADH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 , 214 ALR 264

case_text: A discrete submission made orally by the Appellant at the hearing of the appeal was that the provision of the interpreter in fact provided was made " intentionally " so as to deprive the Appellant of an opportunity to be heard. The submission was understood to be that the Tribunal was biased. It was not a submission advanced before the Federal Magistrates Court. That submission is, however, without substance and is rejected. There is no basis upon which a " fair-minded and informed person might reasonably apprehend that the [Tribunal] might not bring or have brought an impartial mind to bear on the decision " by reason of the interpreter in fact provided to the now Appellant: cf NADH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 at [14] , [2004] FCAFC 328 ; 214 ALR 264 at 268. A reasonable apprehension of bias, it has been said, must be " firmly established ": Re JRL ; Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342 at 352. Nothing in the present proceedings even approaches such a basis being established.


case_title: Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 , 92 FCR 6

case_text: Prior decisions of this Court also recognise that an effective opportunity to be heard may require the provision of an interpreter. In Mazhar , Goldberg J went on to observe: [31] ... If an invitation to appear is extended to an applicant, where the tribunal knows that an interpreter is required, the obligation to extend the invitation will not be satisfied if the tribunal provides an interpreter whose interpretation is such that the applicant is unable adequately to give evidence and present argument to the tribunal. If that situation arises the tribunal will not have fulfilled its obligation under s 425(1). Absent an interpreter, the Tribunal may be unable to afford an effective opportunity to a non-English speaking applicant to give evidence and the Tribunal, it has been said, lacks jurisdiction to continue the hearing unless an interpreter is provided: Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 at [21] , [1999] FCA 507 ; 92 FCR 6 at 17 per Kenny J.


case_title: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 154/2002 [2003] HCA 60 , 201 ALR 437

case_text: Insofar as the second contention is concerned, it may be accepted that the Tribunal carries out an " inquisitorial process ": SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 at [53] , [2007] FCA 1592 ; 164 FCR 14 at 27 8. Allsop J there observed: [53] ... the obligation of the Tribunal to give a real and meaningful invitation to comment carried with it the obligation to take reasonably open and regular administrative procedural steps to permit or facilitate fulfilment of the real and meaningful nature of the invitation, where not to take such steps would undermine or subvert the meaningfulness or the reality of the invitation. That obligation involves such mundane things as opening letters, reading them once opened and taking at least basic simple steps that would be taken in any well-run commercial, professional or governmental office, conformable with the recognition of the importance of the response to the invitation to the rights of the applicant and the review process contained within Pt 7 of the Migration Act . This does not rest on some posited duty of inquiry. It is not engaging in steps that require for their enforcement some express statutory power. ... ... [57] These conclusions can be fortified by the recognition, so often stated, that the Tribunal is engaged in an inquisitorial process... [58] This inquisitorial function has become relevant in a number of contexts. In Applicant S 217 CLR 387 at [76] McHugh J said: If the Tribunal had considered the issue that it was legally required to consider, it was open to the Tribunal to investigate whether such a perception existed, whether within the Afghan society or some section of it, or objectively. Indeed, arguably in the context of its inquisitorial process, the Tribunal had a duty to seek evidence concerning this vital matter. See also: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 154/2002 [2003] HCA 60 at [58] , [2003] HCA 60 ; 201 ALR 437 at 450 1; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [73] , [2004] HCA 32 ; 207 ALR 12 at 30 3.


case_title: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 , 228 CLR 152

case_text: Nor is there any obligation imposed upon the Tribunal to inform an applicant as to whether it proposes to accept or reject individual claims or pieces of evidence and, in effect, inform an applicant as to its " mental processes before [it] reaches a final decision ": SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [48] , [2006] HCA 63 ; 228 CLR 152 at 166. 14 The first of the three contentions is thus rejected.


case_text: There is no unqualified duty imposed upon the Tribunal to make all such inquiries or to undertake all such investigations as a party may wish to be undertaken: cf Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [42] [43], [2004] HCA 32 ; 207 ALR 12 at 21 2 per Gummow and Hayne JJ. See also: SZEEU v Minister for Immigration & Citizenship [2008] FCA 269 at [44] .


case_title: SZGYM v Minister for Immigration & Citizenship [2007] FCA 1923


case_title: SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 , 164 FCR 14

case_text: Insofar as the second contention is concerned, it may be accepted that the Tribunal carries out an " inquisitorial process ": SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 at [53] , [2007] FCA 1592 ; 164 FCR 14 at 27 8. Allsop J there observed: [53] ... the obligation of the Tribunal to give a real and meaningful invitation to comment carried with it the obligation to take reasonably open and regular administrative procedural steps to permit or facilitate fulfilment of the real and meaningful nature of the invitation, where not to take such steps would undermine or subvert the meaningfulness or the reality of the invitation. That obligation involves such mundane things as opening letters, reading them once opened and taking at least basic simple steps that would be taken in any well-run commercial, professional or governmental office, conformable with the recognition of the importance of the response to the invitation to the rights of the applicant and the review process contained within Pt 7 of the Migration Act . This does not rest on some posited duty of inquiry. It is not engaging in steps that require for their enforcement some express statutory power. ... ... [57] These conclusions can be fortified by the recognition, so often stated, that the Tribunal is engaged in an inquisitorial process... [58] This inquisitorial function has become relevant in a number of contexts. In Applicant S 217 CLR 387 at [76] McHugh J said: If the Tribunal had considered the issue that it was legally required to consider, it was open to the Tribunal to investigate whether such a perception existed, whether within the Afghan society or some section of it, or objectively. Indeed, arguably in the context of its inquisitorial process, the Tribunal had a duty to seek evidence concerning this vital matter. See also: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 154/2002 [2003] HCA 60 at [58] , [2003] HCA 60 ; 201 ALR 437 at 450 1; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [73] , [2004] HCA 32 ; 207 ALR 12 at 30 3. 16 A general answer may be provided to the alleged " duty to investigate ": even though the Tribunal performs an " inquisitorial function ", the primary responsibility nevertheless remains upon an applicant appearing before it to present such evidence and to advance such submissions as are considered relevant to his claims. It is no part of the task of the Tribunal to make out an applicant's case for him: cf Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550. Mason J there observed at 587: ... The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward. ... And in Abebe v Commonwealth [2004] HCA 32 ; (1999) 197 CLR 510 at 576, Gummow and Hayne JJ concluded that the Refugee Review Tribunal was not in the position of a contradictor. Their Honours held that it was: ... for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The tribunal must then decide whether that claim is made out. See also: Brehoi v Attorney-General of the Commonwealth [2000] FCA 1747 at [35] per Hely J. The legislative requirement is that an invitation must be extended to an applicant " to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review ": Migration Act , s 425(1). This right is " clearly an important and central right " in the review system established by Part 7 of the Migration Act : Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362 at [44] , [2001] FCA 1362 ; 113 FCR 541 at 552; Amankwah v Minister for Immigration and Multicultural Affairs [1999] FCA 1162 at [13] , [1999] FCA 1162 ; 91 FCR 248 at 251. And the obligation imposed upon the Tribunal is an obligation to give a " real and meaningful invitation to comment ": SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 at [53] , [2007] FCA 1592 ; 164 FCR 14 at 27 8 per Allsop J.


case_text: On 24 November 2006 the Tribunal affirmed the delegate's decision and on 4 December 2007 the Federal Magistrates Court dismissed an application seeking to review the decision of the Tribunal: SZJZS v Minister for Immigration & Citizenship [2007] FMCA 2003. 4 The Appellant now appeals to this Court against the decision of the Federal Magistrate. He appeared before the Court unrepresented, albeit with the assistance of an interpreter. Previously filed on his behalf were written submissions. 5 The two Grounds of Appeal as set forth in the Notice of Appeal are expressed as follows (without alteration): GROUNDS. 1. The Honorable Federal Magistrate erred in considering that the Refugee Review Tribunal (the Tribunal) made a jurisdictional error not following the obligation u/s 424A of the Migration Act 1958 ( the Act). The Federal Magistrate wrongly agreed witht the written submissions provided by Ms wong in paragraph 16. Because the Court gave an opportunity to applicant to respond the documents issue (21) but the Tribunal did not give any opprtunity to the applicant to respond any issues. Absence of Tribunal hearing transcript can not be the reason to reject the genuine claim (23) 2. The Honorable Federal Magistrate erred in finding that the Tribunal denied the applicant natural justice when the Tribunal did not arrange 'Pakistani Pushto Language Interprator' and this issue was rejected only that there was no transcript of the Tribunal hearing before the Court and the Court wrongly agreed in paragraph 21 with the respondednt.


case_title: Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050 , 122 FCR 322


case_text: Even if the Appellant could overcome the initial difficulty encountered by reason of an interpreter in fact being made available, and even if there is a relevant difference as between an Afghani and a Pakistani Pushto interpreter, he nevertheless faces two further difficulties, namely: (i) an absence of any indication that any deficiency in the translation facilities in fact provided before the Tribunal deprived him of an opportunity to present his case; and (ii) the fact that any deficiency in the provision of translation facilities in the Pushto language does not address the Appellant's ability to speak English, as noted by the Tribunal. The onus in judicial review proceedings remains upon an applicant to make out the ground of review upon which he wishes to proceed: cf VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ. That onus was not discharged before the Federal Magistrates Court in the present proceedings and no appellable error is exposed as to the manner in which the Federal Magistrate proceeded.


case_title: W284 v Minister for Immigration & Multicultural Affairs [2001] FCA 1788


case_text: If legal expenses are properly treated as having been incurred by a taxpayer in defending the manner of his performance of his duties, the expenses will be deductible. If a liability is incurred, or a claim is encountered, because of the very act of performing the work by which a taxpayer earns assessable income, the expense will be deductible. If a proceeding in respect of which legal expenses are incurred arises from activities by which a taxpayer earns his income or the mode of his performance of a particular task carried out in the course of earning his income, the legal expenses incurred in relation to that proceeding will be deductible. That is to say, if the cause or the purpose of a taxpayer's incurring of legal expenses is his assertion that he had faithfully performed the duties by which he had earned assessable income, the expenditure will be deductible ( Commissioner of Taxation v Rowe (1995) 60 FCR 99 at 113 (' Rowe '). 34 If incurring costs can be shown to contribute to the success of an employee in defending himself from dismissal from his employment and costs are incurred to preserve the employee's entitlement to receive, in return for his services, assessable income, the costs will be deductible ( Rowe at 115-116). If legal expenses are incurred by an employee in defending himself from dismissal, the expenditure will be incurred on revenue account and not capital account ( Rowe at 118). Whether or not legal expenses constitute an outgoing of a capital nature or an outgoing on account of revenue depends upon the cause or the purpose of incurring the expense. It is therefore necessary to consider the object in view when the legal proceedings were undertaken or the situation that impelled a taxpayer to undertake the proceedings ( Hallstroms Pty Limited v Federal Commissioner of Taxation [1946] HCA 34 ; (1946) 72 CLR 634 at 647).


case_title: Hallstroms Pty Ltd v Federal Commissioner of Taxation [1946] HCA 34 ; (1946) 72 CLR 634

case_text: If incurring costs can be shown to contribute to the success of an employee in defending himself from dismissal from his employment and costs are incurred to preserve the employee's entitlement to receive, in return for his services, assessable income, the costs will be deductible ( Rowe at 115-116). If legal expenses are incurred by an employee in defending himself from dismissal, the expenditure will be incurred on revenue account and not capital account ( Rowe at 118). Whether or not legal expenses constitute an outgoing of a capital nature or an outgoing on account of revenue depends upon the cause or the purpose of incurring the expense. It is therefore necessary to consider the object in view when the legal proceedings were undertaken or the situation that impelled a taxpayer to undertake the proceedings ( Hallstroms Pty Limited v Federal Commissioner of Taxation [1946] HCA 34 ; (1946) 72 CLR 634 at 647).


case_text: If that which produces assessable income for a taxpayer is what exposes the taxpayer to a liability or claim that is discharged by expenditure, that expenditure will be deductible. Even if, when the expenditure is actually paid by a taxpayer, the taxpayer was actuated in paying the expenditure, not by a desire to produce income, but by the necessity of satisfying a liability or claim to which the taxpayer had become subject in deriving assessable income, the expenditure will be still deductible. The question of whether money is expended in and for the production of assessable income is not to be determined by considering only the immediate reason for making the payment, but must also be determined by having regard to the purpose for which the liability or claim that gives rise to the expenditure was incurred (see Herald and Weekly Times Limited v Federal Commissioner of Taxation [1932] HCA 56 ; (1932) 48 CLR 113 at 118).


case_text: The Commissioner accepts that an issue estoppel can arise out of a judgment or order given on an appeal from an objection decision in relation to a particular year of income, which can be pleaded in a subsequent appeal in relation to a different year of income. Nevertheless, the prerequisites for the existence of an issue estoppel must be satisfied. That is to say, it must be demonstrated that the issue in respect of which an estoppel is raised is the same issue as was determined or, by necessary implication, must have been determined as between the parties in order for the earlier order or judgment to have been made or given. Thus, it must be established that the issue raised in a subsequent proceeding in respect of which an estoppel is pleaded was an issue the determination of which was an essential and fundamental step in leading to the judgment or order in the earlier proceeding. The issue might be one of fact or law or of mixed fact and law but it must be the same issue (see generally IEL Finance Limited v Commissioner of Taxation [2006] FCA 267). 68 Clearly enough, there is some connection between the advice given by Mr Jackson QC and the advice and appearances of Mr Gageler SC and Mr Roberts SC in relation to the Third Charges, in so far as they were concerned with the litigation in the Federal Court and with an application for special leave to appeal from the orders of the Full Court dismissing the appeal from Einfeld J. Notwithstanding the references to the Second Charges in the Statement of Facts, Issues and Contentions that are highlighted in the extracts set out above and the references to the First Charges and the Second Charges in the affidavit of 22 September 2003, the product of the telephonic interceptions does not appear to have been raised in conjunction with the Second Charges. The material indicates that Mr Jackson's advice was sought only in relation to the application for special leave to appeal to the High Court from the decision of the Full Court, which related only to the Third Charges. Insofar as the Commissioner and Taxpayer referred to the Second Charges in the earlier proceeding, it is clear the reference was to use that may have been made by Customs of the product of the interceptions in considering the Second Charges. That may have been a misapprehension. 69 The fee of $6,000 paid by the Taxpayer to Mr Jackson QC was for an opinion on the proposed appeal to the High Court. That appeal related to a challenge to the use, in connection with the Third Charges, of the product of telephonic interceptions made by the Australian Federal Police. By making the order of 5 December 2003, albeit by consent, Finn J must be taken to have determined that those fees were allowable as a deduction from the assessable income of the Taxpayer for the year ended 30 June 2001.


case_outcome: applied

case_text: response to a question put to him in the same terms, counsel for the appellant said it was incumbent on the Tribunal to ascertain the appellant's means as to whether he would be able to prosecute any appeal against charges that might be made against him up to the superior courts. This was put in the context that the information in the US Department of State report was correct and the information in the DFAT ICI, to the extent of the dichotomy drawn between the lower courts and the higher courts by the US Department of State, was wrong. This, in itself, illustrates that if there was error, it was error of fact, not law. Moreover, even if the US Department of State report correctly reflected the position as at the date of the Tribunal's decision, the Tribunal was under no obligation to enquire of the appellant as to whether or not he had the means to prosecute an appeal to the higher appellate courts: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at [42] [44]. This ground of appeal cannot be sustained. The second ground asserts that his Honour erred in finding at [4] that s 424A of the Act did not apply in circumstances where 'it appeared ... the decision of the [Tribunal] turned on information provided by the [ appellant ] himself for the purposes of the review application to the [Tribunal] and also general country information'. This second ground was particularised in the amended Notice of Appeal in the following way: (i) Contrary to his Honour's finding, information specifically concerning the appellant was provided by the appellant's adviser who faxed a copy of a document dated 6 August 2003. (ii) The appellant's adviser also 'submitted by fax a number of photographs of the [appellant] and a copy of a poster of the [appellant] seeking support in the student council election of 1991'. The appellant's argument in relation to this ground was put on two bases: One correct, the other incorrect. First, it is correct to say that, as a matter of fact, the information referred to in the particulars was not given by the appellant himself; it was given by his adviser. Second it is incorrect to say that, as a matter of the proper construction of s 424A(3)(b) of the Act, such information was not given by the appellant, and therefore excluded from the obligation imposed on the Tribunal by s 424A(1). Counsel for the appellant disavowed any reliance on an argument that the information given was not for the purpose of the appellant's application. His case was confined to his Honour's reference to the word 'himself', in reliance on a contention that the information was not given by the appellant himself, but by the appellant's adviser. His Honour's use of the word 'himself' is perhaps unfortunate, but I do not think it conveys any suggestion that his Honour was of the view that information falling within the exclusion that is s 424A(3)(b) is confined to information which the appellant himself gives and does not include information given by others on his behalf. If it does then, in my view, that construction is wrong. This ground of appeal must be rejected. The third ground of appeal asserts that the Tribunal constructively failed to exercise jurisdiction by concluding its fact finding task substantially in a manner that a fair-minded observer might reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly. This third ground was particularised in the amended Notice of Appeal in the following way: (i) The Tribunal did not accept 'that outside of student politics the [appellant] has a high political profile' because of 'the generality of his answers to the Tribunal's questions about the philosophy, mandate and objectives of the Chatra League and Awami League'. (ii) The transcript of the Tribunal hearing demonstrates that, contrary to the Tribunal's assessment of the generality of the appellant's responses, the appellant responded specifically to the Tribunal's generic question Q182. (iii) The appellant's response to the Tribunal's Q182 spans approximately six typed pages of the transcript and was made in difficult circumstances where the appellant was specifically told by the Tribunal 'No, I don't want a political discourse' and later, 'Now, I think I've got that'. (v) The particulars to grounds 1 above and 4 below were repeated.


case_text: else may be said about the Tribunal's reliance on the Department of Foreign Affairs and Trading ('DFAT') ICI and its failure to even refer to the more recent US Department of State information, let alone rely on it, one thing is clear: It does not, in my view, amount to jurisdictional error. At most, any error that may be reflected in the reasons for decision of the Tribunal that derives from the Tribunal's acceptance of the accuracy of the DFAT ICI is an error within the Tribunal's jurisdiction: See SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 773 ; (2005) 144 FCR 368 at [44] per Branson J; see, too, NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2004] FCAFC 263 ; (2004) 219 ALR 27 at [52] [54].


case_title: SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 773 ; (2005) 144 FCR 368


case_outcome: related

case_text: On 3 May 2006 I delivered what was called Reasons for Judgment. The only order made was that the proceeding stand over to a date to be fixed ( Council of the City of Sydney v Goldspar Australia Pty Limited [2006] FCA 472). The last paragraph of the reasons was as follows: 'It follows that Goldspar is entitled to damages for the repudiation by the Council of its obligations under the contract. During the course of submissions, it was agreed that the quantum of damages would not be dealt with before I had decided issues of liability. I have now done so and the matter will stand over to enable the hearing on damages to be scheduled and for the parties to raise any other issues arising out of these reasons.' 2 The matter was stood over to 24 May 2006. The following exchange then took place. '... MR CONDON: Your Honour, I'm not certain your Honour made a formal order under order 29, separating the issue. HIS HONOUR: No, I didn't. I wasn't asked to. MR CONDON: No, that wasn't said critically, I was just trying to address my own recollection, but if one has regard to order 52 rule 10(2A)(b), we have seven days if we wish to seek leave to appeal from your Honour's judgment. You Honour can extend time --- HIS HONOUR: I don't think you can, Mr Condon. I mean you couldn't appeal against the order that the matter stand over. MR CONDON: Yes, I think that's probably right, your Honour. HIS HONOUR: If you wish to contend that the matter should be put in that state --- MR CONDON: Yes, I'm not sure if I want to, your Honour. HIS HONOUR: No. I think it's a matter of substance, but you can take it that well, I don't suppose I can give any assurances, but I do not believe that time will be running at the moment. MR CONDON: Thank you, your Honour. HIS HONOUR: If you, or if your side wishes to put the matter in a position where it can appeal then you'll need to persuade me that that's the right thing to do. I must say at the moment I would require some persuasion about that. MR CONDON: I understand your Honour's reasons why. HIS HONOUR: I don't have a closed mind. ...' Discussion then ensued about the preparation of the matter for hearing on the issue of damages. 3 Prior to 24 May, the cross-respondent, the Council of the City of Sydney (the Council) (for whom Mr Condon appeared on 3 May 2006) sought leave to appeal in the appellate jurisdiction of the Court. That motion has not yet been dealt with.


case_text: Whilst it may be technically possible to make the order after the event, in this case it would be wrong to do so against the opposition of the moving party. It is too late to make or change the rules at this stage. A useful summary of the position appears in the judgment of the Full Court in Australian Building Construction Employees and Builders' Labourers' Federation v Employment Advocate [2001] FCA 1443 ; (2001) 114 FCR 22 at [5] [7]. I did not, and do not, intend to lose control of this cross-claim. I wish to complete disposition of it to final judgment as soon as reasonably possible. The proceeding as a whole has been fragmented more than enough already. 7 Many of the arguments advanced by counsel for the parties were, in truth, directed to the question as to whether or not there should be an interlocutory appeal. That issue would have arisen if I had made dispositive orders or declarations. It is a false issue so far as I am concerned. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Ruling herein of the Honourable Justice Gyles. Associate: Dated: 26 May 2006 Counsel for the Cross-claimant: Mr JV Nicholas SC; Mr DAC Robertson Solicitor for the Cross-claimant: Osbornes Lawyers Counsel for the Cross-respondent: Mr M Condon Solicitor for the Cross-respondent: PricewaterhouseCoopers Legal Dates of Hearing: 24 May 2006 Date of Ruling: 26 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/641.html


case_text: Order 29(2) can be a useful procedure. It was utilised at an earlier stage of this proceeding. However, both authority and practical experience indicate that use of it should be approached cautiously ( Save the Ridge Inc v Commonwealth [2005] FCAFC 203 at [15] ; Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495). It would be unusual for the procedure to be adopted without the consent of both parties in a case such as this. Breach of contract is a common law cause of action. The common law only envisages one result the ultimate verdict. As I indicated to counsel during the course of argument, if an application for an order had been made by consent in advance, I may have acceded to it. I probably would have declined to do so if it had been opposed by the moving party, in this case Goldspar. But the occasion did not arise for consideration of that question as no application was made by either party. It is not suggested that this is a case in which the Court and the parties proceeded upon the basis that an order would be made pursuant to O 29(2) but neglected to attend to that formality.


case_title: Save the Ridge Inc v Commonwealth [2005] FCAFC 203


case_text: Members of the High Court were at pains in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355, at [100] (per McHugh, Gummow, Kirby and Hayne JJ), to affirm that failure by a public officer to comply with a statutory obligation, while it may or may not affect the validity of an act or decision in question, may nevertheless be attended by legal consequences and that a court may restrain subsequent administrative action predicated upon supposed compliance with the unmet statutory condition until the default has been remedied. 9 I add that the appellant sought to raise some new grounds without descending to particulars. There appears to be nothing in any of them. 10 The appeal will be dismissed with costs assessed at $3,000. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate: Dated: 4 July 2007 Counsel for the Appellant: The appellant appeared in person Counsel for the Respondent: Rachel Pepper Solicitor for the Respondent: DLA Phillips Fox Date of Hearing: 10 May 2007 Date of Judgment: 10 May 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/863.html


case_title: SZICO v The Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 435

case_text: His Honour accepted the submission of the first respondent that the only relevant consequence of a breach of s 430B(6) was to suspend the running of time for the purposes of the statutory time limits on judicial review and that no jurisdictional error arose. In this regard his Honour followed WACB v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 50 ; (2004) 210 ALR 190 and SZICO v The Minister for Immigration and Multicultural Affairs [2006] FMCA 435 at [14] . As his Honour pointed out at [26]: "The potential mischief resulting from a failure to comply with sub section [430B](6) is that an applicant may hypothetically be deprived of the opportunity of seeking judicial review of a tribunal decision." His Honour continued at [26]-[27]: However, as was made clear by the High Court in WACB , that mischief does not in fact arise because time does not run for the purposes of statutory time limits on access to the courts until the required notification is given. Hypothetically, an applicant might challenge a purported notification of a tribunal decision which did not meet the requirements of s 430B(6) but there would be no point in doing so, given that in the absence of the required notification, it remains open to an applicant to apply in this Court or the High Court to challenge the Tribunal decision, not simply the notification. It follows, and I find that, compliance with s 430B(6) is not generally a condition subsequent to the making of a lawful decision in accordance with Part 7 of the Migration Act . It is a separate and enforceable statutory obligation on the Tribunal and a failure to comply with it, in accordance with the High Court decision in WACB, will render inoperative current statutory time limits on judicial review applications to the courts. The point is academic in this case as the judicial review application was filed within the prescribed time limit.


case_title: WACB v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 50 ; (2004) 210 ALR 190


case_text: two previous occasions I have refused summarily to dismiss Mr Kowalski's application and gave him leave to file and serve an amended application and statement of claim: see Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2007) 242 ALR 370 and Kowalski v MMAL Staff Superannuation Fund Pty Ltd (No 2) [2008] FCA 691. On the latter occasion I indicated that I was providing him with his last opportunity to provide an intelligible and unobjectionable pleading. I have, though with little optimism, recommended to him that he obtain competent legal assistance. He has to date demonstrated little understanding both of the law he seeks to invoke in his own favour and of how to present, albeit in lay form, a clear statement of the claim he seeks to prosecute. My recommendation was not accepted. As he has done in so many proceedings in this Court and in other courts and tribunals concerning his relationship with his past employer, Mitsubishi Motors Australia Ltd (MMAL), he acted without legal representation on the motion presently before me. That motion, brought by the two respondents, again seeks the summary dismissal of the proceeding pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) or else under O 20 r 5 of the Federal Court Rules .


case_title: Kowalski v MMAL Staff Superannuation Fund Pty Ltd (No 2) [2008] FCA 691


case_text: is not a matter in which it is necessary to consider in detail the varying and by no means harmonious views that have been expressed by judges as to the burden of the "no reasonable prospect of successfully prosecuting" formula and of the nature of, and limits to, the assessment it requires be made. As I have indicated, I have a plethora of evidence before me and the principal task it presents is the making of an assessment of it, as a matter of fact, as to whether Mr Kowalski has no reasonable prospect of proving each of the facts necessary to perfect the elements of the causes of action he advances in his pleading: cf Paramasivam v University of New South Wales [2007] FCAFC 176 at [41] ; see also Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372 at [23] . Beyond that, as I will indicate, there is also a question whether his claims are legally untenable in any event.


case_text: is not a matter in which it is necessary to consider in detail the varying and by no means harmonious views that have been expressed by judges as to the burden of the "no reasonable prospect of successfully prosecuting" formula and of the nature of, and limits to, the assessment it requires be made. As I have indicated, I have a plethora of evidence before me and the principal task it presents is the making of an assessment of it, as a matter of fact, as to whether Mr Kowalski has no reasonable prospect of proving each of the facts necessary to perfect the elements of the causes of action he advances in his pleading: cf Paramasivam v University of New South Wales [2007] FCAFC 176 at [41] ; see also Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372 at [23] . Beyond that, as I will indicate, there is also a question whether his claims are legally untenable in any event. It is well accepted that the moving party bears the onus of persuading the Court that the applicant has no reasonable prospects of success. But once that party has established a prima facie case that the applicant has no reasonable prospect of success, the applicant must respond by pointing to specific factual or evidentiary disputes that make a trial necessary: Jefferson Ford at [127]. Importantly for present purposes, as Gordon J observed in Jefferson Ford at [130] (citations omitted): ... where there is a real issue of fact relevant to a pleaded cause of action, it is unlikely that that part of the proceeding has no prospect of success ... So, for example, if the pleadings, affidavits, and other materials considered in connection with the summary judgment motion, reveal a factual dispute and that factual dispute must be resolved to determine whether or not the claim succeeds, it cannot be said that the claim has "no reasonable prospect of success" ... On the other hand, if the factual contest is unnecessary to the resolution of the cause of action pleaded, then in the absence of other relevant material, there is nothing to prevent the court entering judgment on that claim. Breach of Trust/Fiduciary Duty Doing the best I can with the underlying material which is said to found the complaints made, and conscious of the opportunities I have given Mr Kowalski to propound a cause of action, albeit in lay terms, I have as I have foreshadowed, concluded that the proceedings should be summarily dismissed. While it will not often be the case that a Court will be required to or should properly conduct as detailed an examination of the materials put on by the parties as I have, this is not an ordinary proceeding with an ordinary and uneventful provenance. The evolving manner in which Mr Kowalski has perceived his grievances and has formulated them to secure the relief he has in mind, has necessitated that I conduct in essence a "preliminary trial": Jefferson Ford , at [23]. I intend to deal briefly with the factual material chronologically, focussing primarily upon those matters which have led me to my conclusion. It is, I consider, important to acknowledge that in 1992 both the insurer and the Trustee declined Mr Kowalski's formal application for a TPD Benefit. The Trustee's decision has not been challenged in this proceeding. I mention this decision because, as the Trustee later recognised, it did not preclude the further consideration of whether Mr Kowalski may have been entitled to a TPD Benefit when his employment terminated in 1994.


case_text: 31A is not concerned as such with the bare question whether a person's pleading discloses a reasonable cause of action. Its concern is with substance and not just form. But as Lindgren J observed in White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 at [47] , while the existence of a reasonable cause of action and the pleading of a reasonable cause of action remain distinct concepts [a] failure after ample opportunity to plead a reasonable cause of action may suggest that none exists and therefore that the applicant has no reasonable prospects of success.


case_text: Kowalski (No 2) I set out in relatively short form the principles governing the review of a decision of a superannuation trustee denying a member's entitlement to a claimed benefit. As I then indicated there is now a significant body of Australian case law dealing with that matter and many of the cases have involved claims for total and permanent disability benefits having criteria similar to those embedded in cl 1(6) of the Deed: see eg Jeffrey Guy Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173 ; Hay v Total Risk Management Pty Ltd [2004] NSWSC 94 ; Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945 ; Flegeltaub v Telstra Super Pty Ltd [2000] VSC 107 ; Minehan v AGL Employees Superannuation Pty Ltd (1998) 134 ACTR 1 ; Vidovic v Email Superannuation Pty Ltd (unreported, Supreme Court of New South Wales, Bryson J, 3 March 1995). For present purposes, I accept that the grounds upon which a court will review an exercise of a superannuation trustee's discretionary determination are essentially those stated by McGarvie J in Karger v Paul [1984] VR 161 , though they have been somewhat elaborated if not adapted: see Baker v Local Government Superannuation Scheme Pty Ltd at [8] in the superannuation context. They are that (i) the discretion was not exercised in good faith; (ii) there was not a real and genuine consideration of the correct question; (iii) the discretion was not exercised for the purpose for which it was conferred; (iv) if the trustee has given reasons for its exercise of discretion, those reasons were not sound; and (v) if the material before the trustee can be identified, that the trustee's decision was one that no reasonable person could come to on that material. There are three additional matters I should emphasise. First, I have emphasised that it is the review of the Trustee's decision that is of present concern. The present is not a case in which the Trustee was, in substance, deciding a question that was assigned by the Deed itself to an insurer: cf Chammas v Harwood Nominees Pty Ltd [No 1] (1993) 7 ANZ Ins Cas 61-175. Secondly, while both under the general law and under cl 3(1) of the trust deed the Trustee had no duty to give reasons for a determination adverse to Mr Kowalski, a failure to give reasons in circumstances where explanation might be called for is another matter. As Young J observed in Maciejewski v Telstra Super Pty Ltd (1998) 44 NSWLR 601 at 604, in dealing with the suggestion that because a trustee is not bound to give any reasons, therefore the matter is completely unreviewable: Nothing could be further from the truth. Indeed, whilst trustees do not have to give reasons in a case where a plaintiff puts forward a prima facie case that the trustee's discretion has miscarried, the absence of reasons and the absence of any evidence before the Court as to what happened, will tend to make that prima facie case a virtual certainty. This view has been endorsed in many subsequent cases: see Baker v Local Government Superannuation Scheme Pty Ltd ; Hay v Total Risk Management Pty Ltd ; Alcoa of Australia Retirement Plan Pty Ltd v Thompson (2002) 116 FCR 139 at [37]; Flegeltaub v Telstra Super Pty Ltd ; see also Butler LM, "Reviewing Trustees' Decisions: The Right to Reasons" (1999) 7 Aust Property LJ 251. Thirdly, as the Trustee has considered Mr Kowalski's entitlement to a TPD Benefit on a number of occasions and has decided against it, an issue that presently arises is whether, if at all, it is obliged to reconsider that matter and, if so, in what circumstances. These issues have helpfully been considered by the Full Court of Western Australia in Tonkin v Western Mining Corporation Ltd (1998) 10 ANZ Ins Cases 61-397 and in a context not dissimilar from the present. In a judgment endorsed by the other members of the Court, Franklyn J made observations which though lengthy are presently relevant in several respects (at 74,270): In my view, having regard to the terms of the Deed and the relevant definition, there is no obligation on the trustee, on an application for the TPD Benefit supported by evidence inadequate to give rise to the necessary opinion, to seek out, on its own initiative, evidence for its consideration and so strain to obtain evidence relevant to the formation of the necessary opinion, thereby attempting to bring within the definition a member not otherwise within its terms. It may, however, in the exercise of its fiduciary duty and as a matter of discretion, if it considers it appropriate, seek and obtain additional medical evidence. It may also, as a matter of discretion, require medical evidence to be submitted to it for the purposes of its consideration. As trustee, it is not an adversary either for or against an applicant for the benefit. Relevantly, it has a duty only to act in accordance with the trust. If it fails to perform the same, the court will compel it to do so or do so for it. It is not bound by any rules as to how it exercises a discretion conferred on it, save such as it is obliged to comply with by the terms of the Deed, provided always that it must act honestly and in good faith, on an informed view of whether or not to exercise its discretion, and exercise the power with due consideration for the purpose for which it was conferred and for no ulterior purpose. In the case of powers conferred on it and as to whether it should do or refrain from doing something, it must exercise its judgment actively and honestly and act accordingly. The court will not control a trustee in the exercise of its purely discretionary powers unless it is acting mala fide or has misconceived the nature of its discretion and acted upon that misconception. When appointed to exercise a trust according to discretion, a trustee is not bound to state reasons for any conclusion at which it may have arrived and on which it has acted, but again the discretion must be exercised with an absence of indirect motive with honesty of intention and on a fair consideration of the issues. The duty of the court generally is to see that the discretion of the trustee has been exercised in this manner and not to deal with the accuracy of the conclusion at which it may have arrived. See Jacobs' Law of Trusts in Australia , 5 th Ed, p 372-379. In my opinion, it has at all times been open to the appellant to submit further medical evidence, including the reports relied on in para 17.2A to the respondent for its consideration pursuant to the Deed definition in respect of the claim for the TPD Benefit. In such case the respondent is bound to give them proper consideration. No time limit is fixed or imposed by the Deed for making application for the Benefit or for the required consideration of medical evidence. Whether any statutory limitation might apply is not relevant to our consideration as no issue in that respect has been raised. In the event of the respondent, having considered medical evidence before it, failing to form the necessary opinion there is nothing in the Deed or rules to inhibit the appellant from providing, for its further consideration, further medical evidence relevant to the formation of that opinion. There is nothing in the Deed to lead to the conclusion that, once having failed or refused to form the necessary opinion after consideration of the medical evidence then before it, the respondent is under no obligation to consider further medical evidence relevant to the formation of that opinion. Indeed, in my opinion, on the proper construction of the Deed and having regard to the fiduciary nature of the trustee's obligations, the respondent, if requested to do so, is bound to consider such evidence relevant to formation of the opinion as may from time to time be put before it. Consequently, medical evidence, whether coming into existence prior or subsequent to any particular failure or refusal to form the necessary opinion will necessarily have to be considered if made available by or on behalf of the applicant for that purpose. I should note that for present purposes the respondents have conceded that, beyond medical evidence, if other material is provided to a trustee and is of such character as would lead a reasonable trustee to consider whether or not to reconsider its former opinion, that material will have to be considered. Finally, though it is not a matter which it is appropriate for me to enter upon in this proceeding, I acknowledge that there remains a real question as to the appropriateness of applying to superannuation trusts as of course principles of review evolved in contexts of settlor bounty and charity contexts which are remote from the modern employment relationship: see eg Vidovic v Email Superannuation Pty Ltd ; Baker v Local Government Superannuation Scheme at [8]; and see generally Dal Pont and Chalmers, Equity and Trusts in Australia , 727 ff (4 th ed, 2007). THE CLAIMS (i) The 1994 Claim: FASC paras 14, 16, 29.1 and 30


case_text: Kowalski (No 2) I set out in relatively short form the principles governing the review of a decision of a superannuation trustee denying a member's entitlement to a claimed benefit. As I then indicated there is now a significant body of Australian case law dealing with that matter and many of the cases have involved claims for total and permanent disability benefits having criteria similar to those embedded in cl 1(6) of the Deed: see eg Jeffrey Guy Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173 ; Hay v Total Risk Management Pty Ltd [2004] NSWSC 94 ; Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945 ; Flegeltaub v Telstra Super Pty Ltd [2000] VSC 107 ; Minehan v AGL Employees Superannuation Pty Ltd (1998) 134 ACTR 1 ; Vidovic v Email Superannuation Pty Ltd (unreported, Supreme Court of New South Wales, Bryson J, 3 March 1995). There are three additional matters I should emphasise. First, I have emphasised that it is the review of the Trustee's decision that is of present concern. The present is not a case in which the Trustee was, in substance, deciding a question that was assigned by the Deed itself to an insurer: cf Chammas v Harwood Nominees Pty Ltd [No 1] (1993) 7 ANZ Ins Cas 61-175. Secondly, while both under the general law and under cl 3(1) of the trust deed the Trustee had no duty to give reasons for a determination adverse to Mr Kowalski, a failure to give reasons in circumstances where explanation might be called for is another matter. As Young J observed in Maciejewski v Telstra Super Pty Ltd (1998) 44 NSWLR 601 at 604, in dealing with the suggestion that because a trustee is not bound to give any reasons, therefore the matter is completely unreviewable: Nothing could be further from the truth. Indeed, whilst trustees do not have to give reasons in a case where a plaintiff puts forward a prima facie case that the trustee's discretion has miscarried, the absence of reasons and the absence of any evidence before the Court as to what happened, will tend to make that prima facie case a virtual certainty. This view has been endorsed in many subsequent cases: see Baker v Local Government Superannuation Scheme Pty Ltd ; Hay v Total Risk Management Pty Ltd ; Alcoa of Australia Retirement Plan Pty Ltd v Thompson (2002) 116 FCR 139 at [37]; Flegeltaub v Telstra Super Pty Ltd ; see also Butler LM, "Reviewing Trustees' Decisions: The Right to Reasons" (1999) 7 Aust Property LJ 251. Thirdly, as the Trustee has considered Mr Kowalski's entitlement to a TPD Benefit on a number of occasions and has decided against it, an issue that presently arises is whether, if at all, it is obliged to reconsider that matter and, if so, in what circumstances. These issues have helpfully been considered by the Full Court of Western Australia in Tonkin v Western Mining Corporation Ltd (1998) 10 ANZ Ins Cases 61-397 and in a context not dissimilar from the present. In a judgment endorsed by the other members of the Court, Franklyn J made observations which though lengthy are presently relevant in several respects (at 74,270): In my view, having regard to the terms of the Deed and the relevant definition, there is no obligation on the trustee, on an application for the TPD Benefit supported by evidence inadequate to give rise to the necessary opinion, to seek out, on its own initiative, evidence for its consideration and so strain to obtain evidence relevant to the formation of the necessary opinion, thereby attempting to bring within the definition a member not otherwise within its terms. It may, however, in the exercise of its fiduciary duty and as a matter of discretion, if it considers it appropriate, seek and obtain additional medical evidence. It may also, as a matter of discretion, require medical evidence to be submitted to it for the purposes of its consideration. As trustee, it is not an adversary either for or against an applicant for the benefit. Relevantly, it has a duty only to act in accordance with the trust. If it fails to perform the same, the court will compel it to do so or do so for it. It is not bound by any rules as to how it exercises a discretion conferred on it, save such as it is obliged to comply with by the terms of the Deed, provided always that it must act honestly and in good faith, on an informed view of whether or not to exercise its discretion, and exercise the power with due consideration for the purpose for which it was conferred and for no ulterior purpose. In the case of powers conferred on it and as to whether it should do or refrain from doing something, it must exercise its judgment actively and honestly and act accordingly. The court will not control a trustee in the exercise of its purely discretionary powers unless it is acting mala fide or has misconceived the nature of its discretion and acted upon that misconception. When appointed to exercise a trust according to discretion, a trustee is not bound to state reasons for any conclusion at which it may have arrived and on which it has acted, but again the discretion must be exercised with an absence of indirect motive with honesty of intention and on a fair consideration of the issues. The duty of the court generally is to see that the discretion of the trustee has been exercised in this manner and not to deal with the accuracy of the conclusion at which it may have arrived. See Jacobs' Law of Trusts in Australia , 5 th Ed, p 372-379. In my opinion, it has at all times been open to the appellant to submit further medical evidence, including the reports relied on in para 17.2A to the respondent for its consideration pursuant to the Deed definition in respect of the claim for the TPD Benefit. In such case the respondent is bound to give them proper consideration. No time limit is fixed or imposed by the Deed for making application for the Benefit or for the required consideration of medical evidence. Whether any statutory limitation might apply is not relevant to our consideration as no issue in that respect has been raised. In the event of the respondent, having considered medical evidence before it, failing to form the necessary opinion there is nothing in the Deed or rules to inhibit the appellant from providing, for its further consideration, further medical evidence relevant to the formation of that opinion. There is nothing in the Deed to lead to the conclusion that, once having failed or refused to form the necessary opinion after consideration of the medical evidence then before it, the respondent is under no obligation to consider further medical evidence relevant to the formation of that opinion. Indeed, in my opinion, on the proper construction of the Deed and having regard to the fiduciary nature of the trustee's obligations, the respondent, if requested to do so, is bound to consider such evidence relevant to formation of the opinion as may from time to time be put before it. Consequently, medical evidence, whether coming into existence prior or subsequent to any particular failure or refusal to form the necessary opinion will necessarily have to be considered if made available by or on behalf of the applicant for that purpose. I should note that for present purposes the respondents have conceded that, beyond medical evidence, if other material is provided to a trustee and is of such character as would lead a reasonable trustee to consider whether or not to reconsider its former opinion, that material will have to be considered.


case_text: Kowalski (No 2) I set out in relatively short form the principles governing the review of a decision of a superannuation trustee denying a member's entitlement to a claimed benefit. As I then indicated there is now a significant body of Australian case law dealing with that matter and many of the cases have involved claims for total and permanent disability benefits having criteria similar to those embedded in cl 1(6) of the Deed: see eg Jeffrey Guy Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173 ; Hay v Total Risk Management Pty Ltd [2004] NSWSC 94 ; Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945 ; Flegeltaub v Telstra Super Pty Ltd [2000] VSC 107 ; Minehan v AGL Employees Superannuation Pty Ltd (1998) 134 ACTR 1 ; Vidovic v Email Superannuation Pty Ltd (unreported, Supreme Court of New South Wales, Bryson J, 3 March 1995).


case_title: Flegeltaub v Telstra Super Pty Ltd [2000] VSC 107


case_title: Minehan v AGL Employees Superannuation Pty Ltd (1998) 134 ACTR 1


case_text: Kowalski (No 2) I set out in relatively short form the principles governing the review of a decision of a superannuation trustee denying a member's entitlement to a claimed benefit. As I then indicated there is now a significant body of Australian case law dealing with that matter and many of the cases have involved claims for total and permanent disability benefits having criteria similar to those embedded in cl 1(6) of the Deed: see eg Jeffrey Guy Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173 ; Hay v Total Risk Management Pty Ltd [2004] NSWSC 94 ; Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945 ; Flegeltaub v Telstra Super Pty Ltd [2000] VSC 107 ; Minehan v AGL Employees Superannuation Pty Ltd (1998) 134 ACTR 1 ; Vidovic v Email Superannuation Pty Ltd (unreported, Supreme Court of New South Wales, Bryson J, 3 March 1995). Finally, though it is not a matter which it is appropriate for me to enter upon in this proceeding, I acknowledge that there remains a real question as to the appropriateness of applying to superannuation trusts as of course principles of review evolved in contexts of settlor bounty and charity contexts which are remote from the modern employment relationship: see eg Vidovic v Email Superannuation Pty Ltd ; Baker v Local Government Superannuation Scheme at [8]; and see generally Dal Pont and Chalmers, Equity and Trusts in Australia , 727 ff (4 th ed, 2007). THE CLAIMS (i) The 1994 Claim: FASC paras 14, 16, 29.1 and 30


case_title: Karger v Paul [1984] VR 161

case_text: present purposes, I accept that the grounds upon which a court will review an exercise of a superannuation trustee's discretionary determination are essentially those stated by McGarvie J in Karger v Paul [1984] VR 161 , though they have been somewhat elaborated if not adapted: see Baker v Local Government Superannuation Scheme Pty Ltd at [8] in the superannuation context. They are that (i) the discretion was not exercised in good faith; (ii) there was not a real and genuine consideration of the correct question; (iii) the discretion was not exercised for the purpose for which it was conferred; (iv) if the trustee has given reasons for its exercise of discretion, those reasons were not sound; and (v) if the material before the trustee can be identified, that the trustee's decision was one that no reasonable person could come to on that material.