case_text: an administrative decision is made in private, the test for apprehended bias is whether a hypothetical fair-minded lay person properly informed as to the nature of the proceedings or process, might reasonably apprehend that the decision-maker might not have brought an impartial mind to the making of the decision. In deciding such a matter, the Court determines the issues objectively (see per McHugh J in Hot Holdings Pty Limited v Creasy [2002] HCA 51 ; (2002) 210 CLR 438 ('Hot Holdings) at [68] where his Honour effectively paraphrased what had been said by Gleeson CJ, Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 ('Re RRT; Ex parte H') at [27]-[28]). While the test for a reasonable apprehension of bias is the same for administrative and judicial decision-makers, its content may often be different (per McHugh J in Hot Holdings at [70]).


case_outcome: cited

case_text: an administrative decision is made in private, the test for apprehended bias is whether a hypothetical fair-minded lay person properly informed as to the nature of the proceedings or process, might reasonably apprehend that the decision-maker might not have brought an impartial mind to the making of the decision. In deciding such a matter, the Court determines the issues objectively (see per McHugh J in Hot Holdings Pty Limited v Creasy [2002] HCA 51 ; (2002) 210 CLR 438 ('Hot Holdings) at [68] where his Honour effectively paraphrased what had been said by Gleeson CJ, Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 ('Re RRT; Ex parte H') at [27]-[28]).


case_text: relation to an alleged apprehension of bias on the part of a judge, Kirby and Crennan JJ said in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55 ; (2006) 229 CLR 577 ('Parramatta Design') at [110]-[112]: '110 The appeal [in Parramatta Design] involves the application of well-established principles, which were not in dispute and were both reiterated and explained in Ebner v Official Trustee in Bankruptcy in the joint reasons of Gleeson CJ, McHugh, Gummow and Hayne JJ: "Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge ..., a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the Tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle ... The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits." 111 In assessing the logical connection between a matter complained of and any deviation from deciding a case on the merits, (the "second step" in Ebner v Official Trustee in Bankruptcy) it is important to bear in mind the characteristics of modern litigation as recognised by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson: " Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly , Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of 'the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case'. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them. " 112 Sometimes judicial interventions and observations can exceed what is a proper and reasonable expression of tentative views. Whether that has happened is a matter of judgment taking into account all of the circumstances of the case. However, one thing that is clear is that the expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias.' (Footnotes omitted) In Parramatta Design Gummow A-CJ and Hayne J separately agreed that the complaint of apprehended bias, which the majority of the Federal Court had found to affect the decision of the primary judge, had not been made out (at [4] and [120]). In Re RRT; Ex parte H Gleeson CJ, Gaudron and Gummow JJ said, at [27]-[29], in respect of the test for apprehended bias and its application in administrative proceedings: '27 The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the tribunal, proceedings are held in private. 28 Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof. 29 Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account. In the present case, a significant difference between curial proceedings and the proceedings of the tribunal is that the former are adversarial and the parties are usually legally represented, whereas the latter are inquisitorial in nature and the parties are not represented.' (Footnotes omitted)


case_outcome: referred to

case_text: justice and fairness are not to be equated. In the context of administrative decision-making it is more appropriate to speak of a duty to act fairly or to accord procedural fairness (per Mason J, as his Honour then was, in Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 ('Kioa v West') at 583). In most cases the critical question is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case? (see per Kitto J in Mobil Oil Australia Proprietary Limited v The Commissioner of Taxation [1963] HCA 41 ; (1963) 113 CLR 475 at 504, per Mason J in Kioa v West at 585 and per Ellicott J in Finch v Goldstein [1981] FCA 132 ; (1981) 36 ALR 287 ; see also In re Pergamon Press Ltd [1971] 1 Ch 388). The expression 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e. in accordance with procedures that are fair to the individual in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the Act seeks to advance or protect or permits to be taken into account as legitimate considerations (per Mason J in Kioa v West at 585 cf Salemi v MacKellar [No. 2] [1977] HCA 26 ; (1977) 137 CLR 396 at 451 per Jacobs J).


case_text: most cases the critical question is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case? (see per Kitto J in Mobil Oil Australia Proprietary Limited v The Commissioner of Taxation [1963] HCA 41 ; (1963) 113 CLR 475 at 504, per Mason J in Kioa v West at 585 and per Ellicott J in Finch v Goldstein [1981] FCA 132 ; (1981) 36 ALR 287 ; see also In re Pergamon Press Ltd [1971] 1 Ch 388).


case_text: most cases the critical question is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case? (see per Kitto J in Mobil Oil Australia Proprietary Limited v The Commissioner of Taxation [1963] HCA 41 ; (1963) 113 CLR 475 at 504, per Mason J in Kioa v West at 585 and per Ellicott J in Finch v Goldstein [1981] FCA 132 ; (1981) 36 ALR 287 ; see also In re Pergamon Press Ltd [1971] 1 Ch 388). In circumstances where no formal hearing was held in relation to the suspected breaches by Mr Lohse of the Code of Conduct and he was without an opportunity to test evidence provided to the decision-maker by others, it was essential, in my opinion, that he knew what was being put to the decision-maker, by, in particular, the complainant Ms Barclay, against himself. Mr Lohse was entitled to know about material that was clearly put against him (see by way of analogy Finch v Goldstein ). As procedural fairness is directed to the obligation to give a person such as Mr Lohse a fair go, it is necessary to begin by looking at what procedural fairness required the relevant decision-maker to do in the course of conducting the process of determining whether Mr Lohse had breached the code of conduct. Because principles of procedural fairness focus upon procedures rather than outcomes, it is evident that they are principles that govern what a decision-maker must do in the course of deciding how the particular power given to the decision-maker is to be exercised. They are to be applied to the processes by which a decision will be reached. If adverse information that was credible, relevant and significant to the determination to be made by the decision-maker was placed before the decision-maker it would be unfair to deny a person such as Mr Lohse an opportunity to deal with it where there was a real risk of prejudice, albeit subconscious, arising from the decision-maker's possession of the relevant information.


case_title: In re Pergamon Press Ltd [1971] 1 Ch 388


case_text: expression 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e. in accordance with procedures that are fair to the individual in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the Act seeks to advance or protect or permits to be taken into account as legitimate considerations (per Mason J in Kioa v West at 585 cf Salemi v MacKellar [No. 2] [1977] HCA 26 ; (1977) 137 CLR 396 at 451 per Jacobs J).


case_text: is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice (per Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 ('Lam') at [37]). The content of the requirement for procedural fairness may fluctuate during the course of particular administrative decision-making (per Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 ('Aala') at [62]; see also per McHugh and Gummow JJ in Lam at [48]).


case_text: content of the requirement for procedural fairness may fluctuate during the course of particular administrative decision-making (per Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 ('Aala') at [62]; see also per McHugh and Gummow JJ in Lam at [48]).


case_text: before a decision-maker engaged in determining whether an APS employee has breached the Code of Conduct are not adversarial but inquisitorial. Such a decision-maker is an inquisitor obliged to be fair. In my opinion, such a decision-maker is not required to carry out an inquiry in order to identify what the case of an employee suspected of breaching the Code of Conduct might be (see by way of analogy Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553 at [36] ).


case_outcome: considered

case_text: fact that a decision-maker may later have chosen not to apply adverse information does not bear upon whether an affected person should be afforded an opportunity to deal with adverse information that is credible, relevant and significant to the determination to be made. A decision-maker can only dismiss information from further consideration if it is evidently not credible, nor relevant and of little or no significance to the determination to be made (see Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 ('Applicant VEAL') at [14]-[18]). In Applicant VEAL the High Court held that procedural fairness required the Refugee Review Tribunal to inform the applicant for a protection visa of the existence of an unsolicited letter which had been forwarded to the Department in which the author made certain allegations against the appellant, and of its contents, before the Tribunal decided to affirm the refusal of the Minister's delegate to grant the appellant a protection visa. In my opinion, the primary issues in this case should be decided as follows: (a) Mr Arthur did not exceed his authority in making the findings that he did. Whilst the 'scope' of the investigation for which his contract for services dated 10 December 2007 provided could be said to limit his authority to the making of a determination in respect of a suspected breach of that part of the Code of Conduct contained in s 13(3) of the Act in respect of Mr Lohse's alleged behaviour 'in a harassing manner' towards Ms Barclay, especially given the express qualification 'In the case Ian Arthur believes there is a requirement to investigate outside of this scope it must first be discussed and approved by the Project Officer', coupled with the respondents' concession that no approval to investigate otherwise was discussed and obtained, nevertheless the limitation of the relevant 'scope' needs to be viewed in the light of Mr Arthur's formal selection of 4 December 2007 to determine, in accordance with the Secretary's Procedures for Determining Breaches of the APS Code of Conduct dated 5 December 2009, whether Mr Lohse breached the 'APS Code of Conduct' and not simply a discrete part of it. In addition, the Secretary's Procedures clearly contemplated consideration of 'details of the suspected breach of the Code of Conduct ( including any variation of those details )'. (b) Mr Arthur did fail to comply with the procedures established by the Head of the Department for the determination of whether Mr Lohse, as an APS employee, breached the Code of Conduct. Firstly, Mr Lohse was never informed of the suspected breach of the Code of Conduct, which led to Mr Arthur's appointment as the decision-maker, before the variation of those details by Mr Arthur as recorded in his letter to Mr Lohse of 22 January 2008. In my view the details of the suspected breach of the Code of Conduct as recorded in the three bullet points in paragraph 2 of the Terms of Reference, forming part of Mr Arthur's contract for services dated 10 December 2007, were details of which disclosure to Mr Lohse was mandatory (see [13] above). The Secretary's procedures (see [23] et seq) provided 'the employee must be informed of' such details (emphasis added). Whilst it was open to Mr Arthur to inform Mr Lohse of a variation of those details, as he did in his letter dated 22 January 2008, it was not sufficient to simply inform Mr Lohse of the details as varied. Mr Lohse was entitled to the details of the suspected breach which led to the appointment of Mr Arthur and also to the variation of those details, which emanated from Mr Arthur. Secondly, and perhaps more importantly, the mandatory requirement that Mr Lohse ' must also be given the opportunity to make an oral statement in relation to the suspected breach' (emphasis added), as stipulated in the Secretary's procedures (see [29] above), was denied to him. Whatever Mr Lohse may have said about declining to be interviewed by Mr Arthur on tape, that was clearly put to him as an alternative to his provision, in the first instance, of a written response to the details of the suspected breach of the Code of Conduct. What Step 3 in the Secretary's Procedures makes clear is that if, as here, Mr Lohse made a written statement in response to the details of the suspected breach of the Code of Conduct of which he was informed, it was obligatory that he be given an opportunity to make an oral statement in relation to the suspected breach thereafter. No such opportunity was provided. A failure to observe the Secretary's procedures as procedures established by the 'Agency Head' for determining whether an APS employee in the Agency had breached the Code of Conduct in this case constituted jurisdictional error. One can well imagine that if an APS employee in the position of Mr Lohse had an opportunity to make an oral statement in relation to the suspected breach he would be able to ensure that appropriate emphasis was given to the matters addressed in his written statement thereby ensuring that the decision-maker did not misunderstand what had been written. No doubt an oral statement would also be relevant to matters of credit which would ensure that justice was done and that matters were not simply decided on a '3 against 1' basis. Counsel for the respondents relies upon the preferred test stated by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390 in respect of invalidity, where a relevant provision had not been complied with. At [93] their Honours said: '... a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. ... In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute".' (Footnotes omitted) In the present case the legislation made it clear that the Agency Head's procedures for determining whether an APS employee had breached the Code of Conduct or not 'must have due regard to procedural fairness'. In the circumstances it is hardly surprising that the Secretary's Procedures for determining Breaches of the APS Code of Conduct provided that ' If the employee makes a written statement [within the requisite period of time] of being given the opportunity to do so, the employee must also be give the opportunity to make an oral statement in relation to the suspected breach'. The use of the expression 'must also' following the words commencing with 'if' make it clear that the opportunity to make an oral statement must be afforded after the written statement for which the procedures provide, has been made. Given the range of possible sanctions available, in circumstances where a person in the position of Mr Arthur may find that a person in the position of the applicant breached the Code of Conduct, fairness clearly required that an opportunity be afforded to Mr Lohse to make an oral statement following the making by him of his written submission to Mr Arthur on 11 March 2008 and before Mr Arthur made his determination of 30 March 2008. Given that there was no 'hearing', Mr Lohse was not invited to be present when Ms Barclay and Mr Hislop were interviewed and Mr Lohse did not have an opportunity to cross-examine them, fairness clearly required that there be a procedure such as that established by the Agency Head and further that such procedure be strictly complied with. This is not a case where earlier indications by Mr Lohse of his preference for making a written statement, as opposed to participating in an oral interview, in response to the details of the suspected breach of the Code of Conduct, of which he was informed, could be relied upon to justify refusal of the relief sought by Mr Lohse, in the exercise of the Court's discretion in that regard. (c) In my opinion procedural fairness did not require disclosure by Mr Arthur to Mr Lohse of the allegations made by Ms Barclay referable to Mrs Lane or Mrs Lane's 14 year old daughter. It is evident that Ms Barclay did not know anything about any alleged misconduct of Mr Lohse towards Mrs Lane's 14 year of daughter. She conceded as much in her interview with Mr Arthur. In relation to Mrs Lane, Ms Barclay suggested that Mrs Lane had informed her that she felt a bit uneasy with Mr Lohse, that he had 'tried to make moves' and had sent Mrs Lane 'some text messages on a trip'. Ms Barclay informed Mr Arthur that she had no knowledge as to the content of those messages. In the circumstances a failure to disclose these matters to Mr Lohse could not constitute procedural unfairness. Allegations of misconduct in dealings with Mrs Lane and her daughter which were devoid of any content could not, in my opinion, have subconsciously affected Mr Arthur's decision-making process in respect of the suspected breaches of the Code of Conduct to which he was invited to respond. However, there should in my opinion, have been a disclosure to Mr Lohse of the matters put to Mr Arthur by Ms Barclay about Mr Lohse's alleged viewing of Ms Barclay and her breasts in a 'sleazy manner' on earlier occasions. The ultimate finding of Mr Arthur in relation to a suspected contravention of s 13(3) of the Act (part of the Code of Conduct), was not that Mr Lohse behaved in a 'harassing manner' towards Ms Barclay, but rather, that he failed to treat her 'with respect and courtesy'. During the course of her interview with Mr Arthur on 21 December 2007 Ms Barclay was asked about the level of contact she had had with Mr Lohse in the five months preceding the incident. She said: '... he has the first desk within the office and as I walk in ... he looks straight up as I walk in. When I walk in, every time I feel he looks down and does this look like he's looking he looks over his glasses and looks at me, yes, in a sleazy manner, if I could say.' When asked if she might be 'over reacting' Ms Barclay said to Mr Arthur: 'No. On a couple of occasions, like when I've ... a different top ... other than a business shirt ... on one occasion I walked out of the door and he ... stood there at the door ...looked at my like, my breasts. Or, to me, he was looking at that direction.' Later Ms Barclay said in relation to her working relationship with Mr Lohse: 'He makes me feel uncomfortable'. Later she said: 'I find him creepy and I don't feel comfortable with him ...' Ms Barclay further alleged that on the evening of 7 November 2007 when Mr Lohse left the table to have a cigarette and said to female passers-by 'Here, puss, puss, puss' he: '.... was doing like, hand gestures also, like rubbing his thumb and his finger, going like downwards you know, sort of the genital area, I guess you'd say, down further.' Ms Barclay opined that members of the public viewing Mr Lohse's behaviour: '... would have thought it was disgusting and disgraceful and probably would have thought they're wasting their taxpayer's money ... if people are seeing badly behaved public servants.' When asked whether any people in the vicinity objected to Mr Lohse's alleged behaviour Ms Barclay said no more than 'I did see a couple of expressions of females ...' In my opinion the above quoted information answered the description of being credible, relevant and significant to the determinations to be made by Mr Arthur such that it would be unfair to deny Mr Lohse an opportunity to deal with it, there being a real risk of prejudice, albeit subconscious, arising from Mr Arthur's possession of the relevant information and Mr Lohse's ignorance of it. This was a classic case for the application of the principles stated in Applicant VEAL , especially in circumstances where there was no formal hearing, Mr Lohse had no opportunity to hear what Ms Barclay said to Mr Arthur at her interview on 21 December 2007 nor did he have an opportunity to test its accuracy by cross-examining her. The consequences for Mr Lohse of acceptance of Ms Barclay's untested assertions obliged Mr Arthur, acting fairly, to disclose the matters mentioned by Ms Barclay to Mr Lohse, thereby affording him an opportunity to respond to same. (d) Procedural fairness did not require Mr Arthur to make inquiries into the matters referred to at [16](d)(i)-(vi) above. There were no relevant rare or exceptional circumstances requiring Mr Arthur to make the further inquiries for which Mr Lohse contended. There was no matter that obviously required further inquiry in relation to a critical fact or facts. Had Mr Lohse wished to provide support for his claims of prior good character, it was perfectly open to him to obtain character references and attach them to his response of 11 March 2008. Similarly, if Mr Lohse was of the view that Ms Barclay and/or Mr Coloe bore ill will towards him, he could have obtained statements from others to support that suggestion and attached them to his response of 11 March 2008. (e) Much of the evidence touching upon Mr Arthur's consideration of this matter prior to the making by him of his determination on 30 March 2008 supports an inference that Mr Arthur did not bring an open mind to the determination of the issues with which he was confronted. In my opinion one cannot simply look at his ultimate reasons and work backwards from the manner in which he expressed them to an inference that he did bring an open mind to the issues. As previously mentioned Mr Arthur's more detailed summary of the particulars of the allegations against Mr Lohse of 3 March 2008 included: 'Upon completing your duties [on 7 November 2007] , the four of you gathered at the Jetty Hotel for a meal and debriefing of the day's activities.' In my opinion the applicant's submission that the word 'debriefing' was one suggested by Mr Arthur should be upheld. The first issue in the 'scope' of Mr Arthur's engagement to which he was required to adhere when conducting his investigation (see [13] above) was: '● As a threshold matter, determine if any of Mr Lohse's alleged behaviour(s) occurred while Mr Lohse was acting in the course of APS employment; ...' Not one of the four APS employees who gathered at the Jetty Hotel on 7 November 2007 suggested that the purpose of the gathering was to effect a 'debrief'. The suggestion that this was the purpose of the gathering was that of Mr Arthur who on two occasions in the course of his interview of Ms Barclay on 21 December 2007 said 'essentially, it was a debrief'. On the first occasion he raised it as a question and on the second he asserted it as conclusion. This characterisation of the gathering was in the face of Mr Coloe's, Ms Barclay's and Mr Hislop's observations. Mr Coloe said: 'After executing the warrants, seizing property and having it secured [on 7 November 2007] we returned to our accommodation [a hotel located near to the Jetty Hotel at Glenelg] . That evening the four of us went out for dinner and a few drinks. ...' In Ms Barclay's statement of 21 November 2007 she said: 'On completion of our duties [on 7 November 2007] we returned to our hotel. That evening we all met in the foyer of the hotel and walked to the Jetty Hotel for drinks and dinner. ...' In his interview of Mr Hislop on 21 December 2007 the following exchange took place with Mr Arthur: Arthur: '... I understand that that search warrant was in fact executed on the 7 th November during the day?' Hislop: 'That's right, yes.' Arthur: 'Okay. And later that evening you went somewhere for drinks.' Hislop: '... yes, we just went to a general bar [at the Jetty Hotel in Glenelg] for just down from the hotel.' After Mr Arthur, in his interview of Ms Barclay, queried whether the purpose of the gathering at the Jetty Hotel was essentially a debrief, Ms Barclay did agree. She said: '... so we spoke about the things that we'd observed in that shop. ... ... after we'd finished that warrant ... I went back to the hotel with John [Coloe] in one car and he [Mr Lohse] went back in another car with Andrew [Hislop] . So we didn't have any time of talking about what had happened during the day until we'd met up for dinner.' It was at this stage that Mr Arthur observed ' all right. So, yes, it's essentially a debrief ', to which proposition Ms Barclay assented. Given that a contravention of s 13(3) of the Code of Conduct required a finding that an 'APS employee, when acting in the course of APS employment , must treat everyone with respect and courtesy' it may be said that Mr Arthur's suggestion and subsequent confirmation of the purpose of the gathering at the Jetty Hotel demonstrated a prejudgment on a material issue before Mr Lohse was even informed of the allegations against him on 22 January 2008. Other matters arose during Mr Arthur's interview of Ms Barclay on 21 December 2007 which supported an inference that, by the time Mr Lohse first had notice of the investigation into his alleged breach of the APS Code of Conduct, Mr Arthur had a closed mind which was not open to persuasion one way or the other. Just as Mr Arthur had suggested that the dinner and drinks gathering of the four APS employees had essentially been an employment based debriefing meeting, he also suggested to Ms Barclay that Mr Coloe's reaction to what had happened when Mr Lohse presented Ms Barclay with the flower was one of 'surprise' when she had failed to articulate any matter which would justify such a conclusion. When Ms Barclay said that the alleged statement attributed to Mr Lohse about 'how I always smell good' intimidated her, Mr Arthur impliedly accepted the premise upon which the claimed intimidation was based by saying 'Yes, I can understand that'. When Ms Barclay made mention of Mrs Lane and an alleged conversation in which Mrs Lane spoke about Mr Lohse's behaviour towards Mrs Lane on some trips that they had previously made together, Mr Arthur inquired as to what sort of behaviour. Rather than allowing Ms Barclay to answer the question as to what Mrs Lane had allegedly spoken of, he suggested the word 'similar'. He then proceeded to suggest that Mr Lohse had been 'making advances' to Mrs Lane. The suggestion was embraced by Ms Barclay who agreed with it. In relation to Mr Lohse's alleged 'here puss puss puss' remark and movement of his hand, Ms Barclay said on 21 December 2007 'he just disgusted me'. Once again, it would appear that Mr Arthur accepted the premise upon which the observation was made by saying and repeating it 'I'm not doubting that'. Ms Barclay said of Mr Lohse's behaviour, ' it's not the behaviour that I am used to being around ... you know, starting in a workplace that you're on an Executive Level 2 position, I thought that ... you should be ... better behaved .' Mr Arthur responded to this proposition again indicating a seeming acceptance of the premise on which the observation had been based by saying: '... yes, I agree.' It would appear that before the interview concluded steps were taken to relocate Mr Arthur and Ms Barclay from the interview room. In this context Mr Arthur is recorded as saying: '... there is a bit more I'd like to go through. Actually, ... the remainder of this ... is fairly good. It's all good, anyway.' Rather than record that he understood the remaining matters which were addressed in Ms Barclay's statement of 21 November 2007, Mr Arthur appears to have communicated an acceptance of what had been said. In my opinion Mr Arthur did not approach the task which was entrusted to him with an open mind and he was not open to persuasion. The applicant's claim of bias has been made good. (f) Even if the evidence mentioned was not sufficiently strong to establish actual bias on the part of Mr Arthur, it was sufficient, in my opinion, to draw a conclusion of apprehended bias sufficient to constitute a denial of natural justice to Mr Lohse. In my opinion a hypothetical fair-minded lay person properly informed as to the nature of the process which Mr Arthur was engaged in and the possible sanctions which might be imposed upon Mr Lohse, might reasonably apprehend that Mr Arthur might not have brought an impartial mind to the making of his decision on alleged breaches of the APS Code of Conduct by Mr Lohse. A case of reasonable of apprehension of bias has clearly been made out. (g) In my opinion the decision of Mr Arthur as recorded in his report of 30 March 2008 was not on its face so unreasonable that no reasonable decision-maker could have made it. Whilst one could criticise Mr Arthur's approach to the proof of matters on a '3 against 1' basis rather than who was to be believed and, whilst he may have failed to approach the determination of the matter before him on a Briginshaw v Briginshaw basis (see Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336) , I am inclined to the view that there was no relevant Wednesbury unreasonableness. This of course provides no answer to the case, given the other findings going to jurisdictional error and denial of natural justice which have been made.


case_text: decision-maker engaged in determining whether an APS employee has breached the Code of Conduct has no general obligation to initiate inquiries or to make out a case for an APS employee in Mr Lohse's position. It is only in rare or exceptional circumstances that a decision-maker's failure to inquire may ground a finding of jurisdictional error because the failure may render the ensuing decision manifestly unreasonable in the sense used in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 ('Wednesbury') (See Minister for Immigration and Citizenship v Le [2007] FCA 1318 ; (2007) 164 FCR 151 ('Le')) or may allow a conclusion that there was a constructive failure to exercise jurisdiction on the part of the decision-maker (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [24]-[26]). For there to be a finding of jurisdictional error in this regard one would need to find a failure to make an obvious inquiry about a critical fact. In my opinion, the primary issues in this case should be decided as follows: (a) Mr Arthur did not exceed his authority in making the findings that he did. Whilst the 'scope' of the investigation for which his contract for services dated 10 December 2007 provided could be said to limit his authority to the making of a determination in respect of a suspected breach of that part of the Code of Conduct contained in s 13(3) of the Act in respect of Mr Lohse's alleged behaviour 'in a harassing manner' towards Ms Barclay, especially given the express qualification 'In the case Ian Arthur believes there is a requirement to investigate outside of this scope it must first be discussed and approved by the Project Officer', coupled with the respondents' concession that no approval to investigate otherwise was discussed and obtained, nevertheless the limitation of the relevant 'scope' needs to be viewed in the light of Mr Arthur's formal selection of 4 December 2007 to determine, in accordance with the Secretary's Procedures for Determining Breaches of the APS Code of Conduct dated 5 December 2009, whether Mr Lohse breached the 'APS Code of Conduct' and not simply a discrete part of it. In addition, the Secretary's Procedures clearly contemplated consideration of 'details of the suspected breach of the Code of Conduct ( including any variation of those details )'. (b) Mr Arthur did fail to comply with the procedures established by the Head of the Department for the determination of whether Mr Lohse, as an APS employee, breached the Code of Conduct. Firstly, Mr Lohse was never informed of the suspected breach of the Code of Conduct, which led to Mr Arthur's appointment as the decision-maker, before the variation of those details by Mr Arthur as recorded in his letter to Mr Lohse of 22 January 2008. In my view the details of the suspected breach of the Code of Conduct as recorded in the three bullet points in paragraph 2 of the Terms of Reference, forming part of Mr Arthur's contract for services dated 10 December 2007, were details of which disclosure to Mr Lohse was mandatory (see [13] above). The Secretary's procedures (see [23] et seq) provided 'the employee must be informed of' such details (emphasis added). Whilst it was open to Mr Arthur to inform Mr Lohse of a variation of those details, as he did in his letter dated 22 January 2008, it was not sufficient to simply inform Mr Lohse of the details as varied. Mr Lohse was entitled to the details of the suspected breach which led to the appointment of Mr Arthur and also to the variation of those details, which emanated from Mr Arthur. Secondly, and perhaps more importantly, the mandatory requirement that Mr Lohse ' must also be given the opportunity to make an oral statement in relation to the suspected breach' (emphasis added), as stipulated in the Secretary's procedures (see [29] above), was denied to him. Whatever Mr Lohse may have said about declining to be interviewed by Mr Arthur on tape, that was clearly put to him as an alternative to his provision, in the first instance, of a written response to the details of the suspected breach of the Code of Conduct. What Step 3 in the Secretary's Procedures makes clear is that if, as here, Mr Lohse made a written statement in response to the details of the suspected breach of the Code of Conduct of which he was informed, it was obligatory that he be given an opportunity to make an oral statement in relation to the suspected breach thereafter. No such opportunity was provided. A failure to observe the Secretary's procedures as procedures established by the 'Agency Head' for determining whether an APS employee in the Agency had breached the Code of Conduct in this case constituted jurisdictional error. One can well imagine that if an APS employee in the position of Mr Lohse had an opportunity to make an oral statement in relation to the suspected breach he would be able to ensure that appropriate emphasis was given to the matters addressed in his written statement thereby ensuring that the decision-maker did not misunderstand what had been written. No doubt an oral statement would also be relevant to matters of credit which would ensure that justice was done and that matters were not simply decided on a '3 against 1' basis. Counsel for the respondents relies upon the preferred test stated by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390 in respect of invalidity, where a relevant provision had not been complied with. At [93] their Honours said: '... a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. ... In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute".' (Footnotes omitted) In the present case the legislation made it clear that the Agency Head's procedures for determining whether an APS employee had breached the Code of Conduct or not 'must have due regard to procedural fairness'. In the circumstances it is hardly surprising that the Secretary's Procedures for determining Breaches of the APS Code of Conduct provided that ' If the employee makes a written statement [within the requisite period of time] of being given the opportunity to do so, the employee must also be give the opportunity to make an oral statement in relation to the suspected breach'. The use of the expression 'must also' following the words commencing with 'if' make it clear that the opportunity to make an oral statement must be afforded after the written statement for which the procedures provide, has been made. Given the range of possible sanctions available, in circumstances where a person in the position of Mr Arthur may find that a person in the position of the applicant breached the Code of Conduct, fairness clearly required that an opportunity be afforded to Mr Lohse to make an oral statement following the making by him of his written submission to Mr Arthur on 11 March 2008 and before Mr Arthur made his determination of 30 March 2008. Given that there was no 'hearing', Mr Lohse was not invited to be present when Ms Barclay and Mr Hislop were interviewed and Mr Lohse did not have an opportunity to cross-examine them, fairness clearly required that there be a procedure such as that established by the Agency Head and further that such procedure be strictly complied with. This is not a case where earlier indications by Mr Lohse of his preference for making a written statement, as opposed to participating in an oral interview, in response to the details of the suspected breach of the Code of Conduct, of which he was informed, could be relied upon to justify refusal of the relief sought by Mr Lohse, in the exercise of the Court's discretion in that regard. (c) In my opinion procedural fairness did not require disclosure by Mr Arthur to Mr Lohse of the allegations made by Ms Barclay referable to Mrs Lane or Mrs Lane's 14 year old daughter. It is evident that Ms Barclay did not know anything about any alleged misconduct of Mr Lohse towards Mrs Lane's 14 year of daughter. She conceded as much in her interview with Mr Arthur. In relation to Mrs Lane, Ms Barclay suggested that Mrs Lane had informed her that she felt a bit uneasy with Mr Lohse, that he had 'tried to make moves' and had sent Mrs Lane 'some text messages on a trip'. Ms Barclay informed Mr Arthur that she had no knowledge as to the content of those messages. In the circumstances a failure to disclose these matters to Mr Lohse could not constitute procedural unfairness. Allegations of misconduct in dealings with Mrs Lane and her daughter which were devoid of any content could not, in my opinion, have subconsciously affected Mr Arthur's decision-making process in respect of the suspected breaches of the Code of Conduct to which he was invited to respond. However, there should in my opinion, have been a disclosure to Mr Lohse of the matters put to Mr Arthur by Ms Barclay about Mr Lohse's alleged viewing of Ms Barclay and her breasts in a 'sleazy manner' on earlier occasions. The ultimate finding of Mr Arthur in relation to a suspected contravention of s 13(3) of the Act (part of the Code of Conduct), was not that Mr Lohse behaved in a 'harassing manner' towards Ms Barclay, but rather, that he failed to treat her 'with respect and courtesy'. During the course of her interview with Mr Arthur on 21 December 2007 Ms Barclay was asked about the level of contact she had had with Mr Lohse in the five months preceding the incident. She said: '... he has the first desk within the office and as I walk in ... he looks straight up as I walk in. When I walk in, every time I feel he looks down and does this look like he's looking he looks over his glasses and looks at me, yes, in a sleazy manner, if I could say.' When asked if she might be 'over reacting' Ms Barclay said to Mr Arthur: 'No. On a couple of occasions, like when I've ... a different top ... other than a business shirt ... on one occasion I walked out of the door and he ... stood there at the door ...looked at my like, my breasts. Or, to me, he was looking at that direction.' Later Ms Barclay said in relation to her working relationship with Mr Lohse: 'He makes me feel uncomfortable'. Later she said: 'I find him creepy and I don't feel comfortable with him ...' Ms Barclay further alleged that on the evening of 7 November 2007 when Mr Lohse left the table to have a cigarette and said to female passers-by 'Here, puss, puss, puss' he: '.... was doing like, hand gestures also, like rubbing his thumb and his finger, going like downwards you know, sort of the genital area, I guess you'd say, down further.' Ms Barclay opined that members of the public viewing Mr Lohse's behaviour: '... would have thought it was disgusting and disgraceful and probably would have thought they're wasting their taxpayer's money ... if people are seeing badly behaved public servants.' When asked whether any people in the vicinity objected to Mr Lohse's alleged behaviour Ms Barclay said no more than 'I did see a couple of expressions of females ...' In my opinion the above quoted information answered the description of being credible, relevant and significant to the determinations to be made by Mr Arthur such that it would be unfair to deny Mr Lohse an opportunity to deal with it, there being a real risk of prejudice, albeit subconscious, arising from Mr Arthur's possession of the relevant information and Mr Lohse's ignorance of it. This was a classic case for the application of the principles stated in Applicant VEAL , especially in circumstances where there was no formal hearing, Mr Lohse had no opportunity to hear what Ms Barclay said to Mr Arthur at her interview on 21 December 2007 nor did he have an opportunity to test its accuracy by cross-examining her. The consequences for Mr Lohse of acceptance of Ms Barclay's untested assertions obliged Mr Arthur, acting fairly, to disclose the matters mentioned by Ms Barclay to Mr Lohse, thereby affording him an opportunity to respond to same. (d) Procedural fairness did not require Mr Arthur to make inquiries into the matters referred to at [16](d)(i)-(vi) above. There were no relevant rare or exceptional circumstances requiring Mr Arthur to make the further inquiries for which Mr Lohse contended. There was no matter that obviously required further inquiry in relation to a critical fact or facts. Had Mr Lohse wished to provide support for his claims of prior good character, it was perfectly open to him to obtain character references and attach them to his response of 11 March 2008. Similarly, if Mr Lohse was of the view that Ms Barclay and/or Mr Coloe bore ill will towards him, he could have obtained statements from others to support that suggestion and attached them to his response of 11 March 2008. (e) Much of the evidence touching upon Mr Arthur's consideration of this matter prior to the making by him of his determination on 30 March 2008 supports an inference that Mr Arthur did not bring an open mind to the determination of the issues with which he was confronted. In my opinion one cannot simply look at his ultimate reasons and work backwards from the manner in which he expressed them to an inference that he did bring an open mind to the issues. As previously mentioned Mr Arthur's more detailed summary of the particulars of the allegations against Mr Lohse of 3 March 2008 included: 'Upon completing your duties [on 7 November 2007] , the four of you gathered at the Jetty Hotel for a meal and debriefing of the day's activities.' In my opinion the applicant's submission that the word 'debriefing' was one suggested by Mr Arthur should be upheld. The first issue in the 'scope' of Mr Arthur's engagement to which he was required to adhere when conducting his investigation (see [13] above) was: '● As a threshold matter, determine if any of Mr Lohse's alleged behaviour(s) occurred while Mr Lohse was acting in the course of APS employment; ...' Not one of the four APS employees who gathered at the Jetty Hotel on 7 November 2007 suggested that the purpose of the gathering was to effect a 'debrief'. The suggestion that this was the purpose of the gathering was that of Mr Arthur who on two occasions in the course of his interview of Ms Barclay on 21 December 2007 said 'essentially, it was a debrief'. On the first occasion he raised it as a question and on the second he asserted it as conclusion. This characterisation of the gathering was in the face of Mr Coloe's, Ms Barclay's and Mr Hislop's observations. Mr Coloe said: 'After executing the warrants, seizing property and having it secured [on 7 November 2007] we returned to our accommodation [a hotel located near to the Jetty Hotel at Glenelg] . That evening the four of us went out for dinner and a few drinks. ...' In Ms Barclay's statement of 21 November 2007 she said: 'On completion of our duties [on 7 November 2007] we returned to our hotel. That evening we all met in the foyer of the hotel and walked to the Jetty Hotel for drinks and dinner. ...' In his interview of Mr Hislop on 21 December 2007 the following exchange took place with Mr Arthur: Arthur: '... I understand that that search warrant was in fact executed on the 7 th November during the day?' Hislop: 'That's right, yes.' Arthur: 'Okay. And later that evening you went somewhere for drinks.' Hislop: '... yes, we just went to a general bar [at the Jetty Hotel in Glenelg] for just down from the hotel.' After Mr Arthur, in his interview of Ms Barclay, queried whether the purpose of the gathering at the Jetty Hotel was essentially a debrief, Ms Barclay did agree. She said: '... so we spoke about the things that we'd observed in that shop. ... ... after we'd finished that warrant ... I went back to the hotel with John [Coloe] in one car and he [Mr Lohse] went back in another car with Andrew [Hislop] . So we didn't have any time of talking about what had happened during the day until we'd met up for dinner.' It was at this stage that Mr Arthur observed ' all right. So, yes, it's essentially a debrief ', to which proposition Ms Barclay assented. Given that a contravention of s 13(3) of the Code of Conduct required a finding that an 'APS employee, when acting in the course of APS employment , must treat everyone with respect and courtesy' it may be said that Mr Arthur's suggestion and subsequent confirmation of the purpose of the gathering at the Jetty Hotel demonstrated a prejudgment on a material issue before Mr Lohse was even informed of the allegations against him on 22 January 2008. Other matters arose during Mr Arthur's interview of Ms Barclay on 21 December 2007 which supported an inference that, by the time Mr Lohse first had notice of the investigation into his alleged breach of the APS Code of Conduct, Mr Arthur had a closed mind which was not open to persuasion one way or the other. Just as Mr Arthur had suggested that the dinner and drinks gathering of the four APS employees had essentially been an employment based debriefing meeting, he also suggested to Ms Barclay that Mr Coloe's reaction to what had happened when Mr Lohse presented Ms Barclay with the flower was one of 'surprise' when she had failed to articulate any matter which would justify such a conclusion. When Ms Barclay said that the alleged statement attributed to Mr Lohse about 'how I always smell good' intimidated her, Mr Arthur impliedly accepted the premise upon which the claimed intimidation was based by saying 'Yes, I can understand that'. When Ms Barclay made mention of Mrs Lane and an alleged conversation in which Mrs Lane spoke about Mr Lohse's behaviour towards Mrs Lane on some trips that they had previously made together, Mr Arthur inquired as to what sort of behaviour. Rather than allowing Ms Barclay to answer the question as to what Mrs Lane had allegedly spoken of, he suggested the word 'similar'. He then proceeded to suggest that Mr Lohse had been 'making advances' to Mrs Lane. The suggestion was embraced by Ms Barclay who agreed with it. In relation to Mr Lohse's alleged 'here puss puss puss' remark and movement of his hand, Ms Barclay said on 21 December 2007 'he just disgusted me'. Once again, it would appear that Mr Arthur accepted the premise upon which the observation was made by saying and repeating it 'I'm not doubting that'. Ms Barclay said of Mr Lohse's behaviour, ' it's not the behaviour that I am used to being around ... you know, starting in a workplace that you're on an Executive Level 2 position, I thought that ... you should be ... better behaved .' Mr Arthur responded to this proposition again indicating a seeming acceptance of the premise on which the observation had been based by saying: '... yes, I agree.' It would appear that before the interview concluded steps were taken to relocate Mr Arthur and Ms Barclay from the interview room. In this context Mr Arthur is recorded as saying: '... there is a bit more I'd like to go through. Actually, ... the remainder of this ... is fairly good. It's all good, anyway.' Rather than record that he understood the remaining matters which were addressed in Ms Barclay's statement of 21 November 2007, Mr Arthur appears to have communicated an acceptance of what had been said. In my opinion Mr Arthur did not approach the task which was entrusted to him with an open mind and he was not open to persuasion. The applicant's claim of bias has been made good. (f) Even if the evidence mentioned was not sufficiently strong to establish actual bias on the part of Mr Arthur, it was sufficient, in my opinion, to draw a conclusion of apprehended bias sufficient to constitute a denial of natural justice to Mr Lohse. In my opinion a hypothetical fair-minded lay person properly informed as to the nature of the process which Mr Arthur was engaged in and the possible sanctions which might be imposed upon Mr Lohse, might reasonably apprehend that Mr Arthur might not have brought an impartial mind to the making of his decision on alleged breaches of the APS Code of Conduct by Mr Lohse. A case of reasonable of apprehension of bias has clearly been made out. (g) In my opinion the decision of Mr Arthur as recorded in his report of 30 March 2008 was not on its face so unreasonable that no reasonable decision-maker could have made it. Whilst one could criticise Mr Arthur's approach to the proof of matters on a '3 against 1' basis rather than who was to be believed and, whilst he may have failed to approach the determination of the matter before him on a Briginshaw v Briginshaw basis (see Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336) , I am inclined to the view that there was no relevant Wednesbury unreasonableness. This of course provides no answer to the case, given the other findings going to jurisdictional error and denial of natural justice which have been made.


case_text: decision-maker engaged in determining whether an APS employee has breached the Code of Conduct has no general obligation to initiate inquiries or to make out a case for an APS employee in Mr Lohse's position. It is only in rare or exceptional circumstances that a decision-maker's failure to inquire may ground a finding of jurisdictional error because the failure may render the ensuing decision manifestly unreasonable in the sense used in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 ('Wednesbury') (See Minister for Immigration and Citizenship v Le [2007] FCA 1318 ; (2007) 164 FCR 151 ('Le')) or may allow a conclusion that there was a constructive failure to exercise jurisdiction on the part of the decision-maker (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [24]-[26]). For there to be a finding of jurisdictional error in this regard one would need to find a failure to make an obvious inquiry about a critical fact. Le was a case where the circumstances were rare or exceptional. In Le reliance had been placed by the Refugee Review Tribunal upon a transcript of a five and a half hour interview which had been recorded on seven only pages of notes. Kenny J referred to the fact that there had been a mistranslation which meant that the significance of the primary decision-maker's decision record and the typed notes of interview were doubtful or uncertain in a number of critical respects. The mistranslation raised several uncertainties.


case_text: decision-maker engaged in determining whether an APS employee has breached the Code of Conduct has no general obligation to initiate inquiries or to make out a case for an APS employee in Mr Lohse's position. It is only in rare or exceptional circumstances that a decision-maker's failure to inquire may ground a finding of jurisdictional error because the failure may render the ensuing decision manifestly unreasonable in the sense used in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 ('Wednesbury') (See Minister for Immigration and Citizenship v Le [2007] FCA 1318 ; (2007) 164 FCR 151 ('Le')) or may allow a conclusion that there was a constructive failure to exercise jurisdiction on the part of the decision-maker (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [24]-[26]). For there to be a finding of jurisdictional error in this regard one would need to find a failure to make an obvious inquiry about a critical fact.


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

case_text: v Minister for Immigration and Citizenship [2007] FCA 1592 ; (2007) 164 FCR 14 was another case where the circumstances were rare or exceptional. In that case a coversheet together with a five page submission had apparently been forwarded by facsimile to the Refugee Review Tribunal in response to a s 424A letter under the Migration Act 1958 (Cth) inviting comment on certain information, but only the cover sheet was received. Allsop J, as his Honour then was, held that it was a case where the Tribunal needed to see and should have inquired about the absence of the missing five page submission.


case_text: my opinion, the primary issues in this case should be decided as follows: (a) Mr Arthur did not exceed his authority in making the findings that he did. Whilst the 'scope' of the investigation for which his contract for services dated 10 December 2007 provided could be said to limit his authority to the making of a determination in respect of a suspected breach of that part of the Code of Conduct contained in s 13(3) of the Act in respect of Mr Lohse's alleged behaviour 'in a harassing manner' towards Ms Barclay, especially given the express qualification 'In the case Ian Arthur believes there is a requirement to investigate outside of this scope it must first be discussed and approved by the Project Officer', coupled with the respondents' concession that no approval to investigate otherwise was discussed and obtained, nevertheless the limitation of the relevant 'scope' needs to be viewed in the light of Mr Arthur's formal selection of 4 December 2007 to determine, in accordance with the Secretary's Procedures for Determining Breaches of the APS Code of Conduct dated 5 December 2009, whether Mr Lohse breached the 'APS Code of Conduct' and not simply a discrete part of it. In addition, the Secretary's Procedures clearly contemplated consideration of 'details of the suspected breach of the Code of Conduct ( including any variation of those details )'. (b) Mr Arthur did fail to comply with the procedures established by the Head of the Department for the determination of whether Mr Lohse, as an APS employee, breached the Code of Conduct. Firstly, Mr Lohse was never informed of the suspected breach of the Code of Conduct, which led to Mr Arthur's appointment as the decision-maker, before the variation of those details by Mr Arthur as recorded in his letter to Mr Lohse of 22 January 2008. In my view the details of the suspected breach of the Code of Conduct as recorded in the three bullet points in paragraph 2 of the Terms of Reference, forming part of Mr Arthur's contract for services dated 10 December 2007, were details of which disclosure to Mr Lohse was mandatory (see [13] above). The Secretary's procedures (see [23] et seq) provided 'the employee must be informed of' such details (emphasis added). Whilst it was open to Mr Arthur to inform Mr Lohse of a variation of those details, as he did in his letter dated 22 January 2008, it was not sufficient to simply inform Mr Lohse of the details as varied. Mr Lohse was entitled to the details of the suspected breach which led to the appointment of Mr Arthur and also to the variation of those details, which emanated from Mr Arthur. Secondly, and perhaps more importantly, the mandatory requirement that Mr Lohse ' must also be given the opportunity to make an oral statement in relation to the suspected breach' (emphasis added), as stipulated in the Secretary's procedures (see [29] above), was denied to him. Whatever Mr Lohse may have said about declining to be interviewed by Mr Arthur on tape, that was clearly put to him as an alternative to his provision, in the first instance, of a written response to the details of the suspected breach of the Code of Conduct. What Step 3 in the Secretary's Procedures makes clear is that if, as here, Mr Lohse made a written statement in response to the details of the suspected breach of the Code of Conduct of which he was informed, it was obligatory that he be given an opportunity to make an oral statement in relation to the suspected breach thereafter. No such opportunity was provided. A failure to observe the Secretary's procedures as procedures established by the 'Agency Head' for determining whether an APS employee in the Agency had breached the Code of Conduct in this case constituted jurisdictional error. One can well imagine that if an APS employee in the position of Mr Lohse had an opportunity to make an oral statement in relation to the suspected breach he would be able to ensure that appropriate emphasis was given to the matters addressed in his written statement thereby ensuring that the decision-maker did not misunderstand what had been written. No doubt an oral statement would also be relevant to matters of credit which would ensure that justice was done and that matters were not simply decided on a '3 against 1' basis. Counsel for the respondents relies upon the preferred test stated by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390 in respect of invalidity, where a relevant provision had not been complied with. At [93] their Honours said: '... a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. ... In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute".' (Footnotes omitted) In the present case the legislation made it clear that the Agency Head's procedures for determining whether an APS employee had breached the Code of Conduct or not 'must have due regard to procedural fairness'. In the circumstances it is hardly surprising that the Secretary's Procedures for determining Breaches of the APS Code of Conduct provided that ' If the employee makes a written statement [within the requisite period of time] of being given the opportunity to do so, the employee must also be give the opportunity to make an oral statement in relation to the suspected breach'. The use of the expression 'must also' following the words commencing with 'if' make it clear that the opportunity to make an oral statement must be afforded after the written statement for which the procedures provide, has been made. Given the range of possible sanctions available, in circumstances where a person in the position of Mr Arthur may find that a person in the position of the applicant breached the Code of Conduct, fairness clearly required that an opportunity be afforded to Mr Lohse to make an oral statement following the making by him of his written submission to Mr Arthur on 11 March 2008 and before Mr Arthur made his determination of 30 March 2008. Given that there was no 'hearing', Mr Lohse was not invited to be present when Ms Barclay and Mr Hislop were interviewed and Mr Lohse did not have an opportunity to cross-examine them, fairness clearly required that there be a procedure such as that established by the Agency Head and further that such procedure be strictly complied with. This is not a case where earlier indications by Mr Lohse of his preference for making a written statement, as opposed to participating in an oral interview, in response to the details of the suspected breach of the Code of Conduct, of which he was informed, could be relied upon to justify refusal of the relief sought by Mr Lohse, in the exercise of the Court's discretion in that regard. (c) In my opinion procedural fairness did not require disclosure by Mr Arthur to Mr Lohse of the allegations made by Ms Barclay referable to Mrs Lane or Mrs Lane's 14 year old daughter. It is evident that Ms Barclay did not know anything about any alleged misconduct of Mr Lohse towards Mrs Lane's 14 year of daughter. She conceded as much in her interview with Mr Arthur. In relation to Mrs Lane, Ms Barclay suggested that Mrs Lane had informed her that she felt a bit uneasy with Mr Lohse, that he had 'tried to make moves' and had sent Mrs Lane 'some text messages on a trip'. Ms Barclay informed Mr Arthur that she had no knowledge as to the content of those messages. In the circumstances a failure to disclose these matters to Mr Lohse could not constitute procedural unfairness. Allegations of misconduct in dealings with Mrs Lane and her daughter which were devoid of any content could not, in my opinion, have subconsciously affected Mr Arthur's decision-making process in respect of the suspected breaches of the Code of Conduct to which he was invited to respond. However, there should in my opinion, have been a disclosure to Mr Lohse of the matters put to Mr Arthur by Ms Barclay about Mr Lohse's alleged viewing of Ms Barclay and her breasts in a 'sleazy manner' on earlier occasions. The ultimate finding of Mr Arthur in relation to a suspected contravention of s 13(3) of the Act (part of the Code of Conduct), was not that Mr Lohse behaved in a 'harassing manner' towards Ms Barclay, but rather, that he failed to treat her 'with respect and courtesy'. During the course of her interview with Mr Arthur on 21 December 2007 Ms Barclay was asked about the level of contact she had had with Mr Lohse in the five months preceding the incident. She said: '... he has the first desk within the office and as I walk in ... he looks straight up as I walk in. When I walk in, every time I feel he looks down and does this look like he's looking he looks over his glasses and looks at me, yes, in a sleazy manner, if I could say.' When asked if she might be 'over reacting' Ms Barclay said to Mr Arthur: 'No. On a couple of occasions, like when I've ... a different top ... other than a business shirt ... on one occasion I walked out of the door and he ... stood there at the door ...looked at my like, my breasts. Or, to me, he was looking at that direction.' Later Ms Barclay said in relation to her working relationship with Mr Lohse: 'He makes me feel uncomfortable'. Later she said: 'I find him creepy and I don't feel comfortable with him ...' Ms Barclay further alleged that on the evening of 7 November 2007 when Mr Lohse left the table to have a cigarette and said to female passers-by 'Here, puss, puss, puss' he: '.... was doing like, hand gestures also, like rubbing his thumb and his finger, going like downwards you know, sort of the genital area, I guess you'd say, down further.' Ms Barclay opined that members of the public viewing Mr Lohse's behaviour: '... would have thought it was disgusting and disgraceful and probably would have thought they're wasting their taxpayer's money ... if people are seeing badly behaved public servants.' When asked whether any people in the vicinity objected to Mr Lohse's alleged behaviour Ms Barclay said no more than 'I did see a couple of expressions of females ...' In my opinion the above quoted information answered the description of being credible, relevant and significant to the determinations to be made by Mr Arthur such that it would be unfair to deny Mr Lohse an opportunity to deal with it, there being a real risk of prejudice, albeit subconscious, arising from Mr Arthur's possession of the relevant information and Mr Lohse's ignorance of it. This was a classic case for the application of the principles stated in Applicant VEAL , especially in circumstances where there was no formal hearing, Mr Lohse had no opportunity to hear what Ms Barclay said to Mr Arthur at her interview on 21 December 2007 nor did he have an opportunity to test its accuracy by cross-examining her. The consequences for Mr Lohse of acceptance of Ms Barclay's untested assertions obliged Mr Arthur, acting fairly, to disclose the matters mentioned by Ms Barclay to Mr Lohse, thereby affording him an opportunity to respond to same. (d) Procedural fairness did not require Mr Arthur to make inquiries into the matters referred to at [16](d)(i)-(vi) above. There were no relevant rare or exceptional circumstances requiring Mr Arthur to make the further inquiries for which Mr Lohse contended. There was no matter that obviously required further inquiry in relation to a critical fact or facts. Had Mr Lohse wished to provide support for his claims of prior good character, it was perfectly open to him to obtain character references and attach them to his response of 11 March 2008. Similarly, if Mr Lohse was of the view that Ms Barclay and/or Mr Coloe bore ill will towards him, he could have obtained statements from others to support that suggestion and attached them to his response of 11 March 2008. (e) Much of the evidence touching upon Mr Arthur's consideration of this matter prior to the making by him of his determination on 30 March 2008 supports an inference that Mr Arthur did not bring an open mind to the determination of the issues with which he was confronted. In my opinion one cannot simply look at his ultimate reasons and work backwards from the manner in which he expressed them to an inference that he did bring an open mind to the issues. As previously mentioned Mr Arthur's more detailed summary of the particulars of the allegations against Mr Lohse of 3 March 2008 included: 'Upon completing your duties [on 7 November 2007] , the four of you gathered at the Jetty Hotel for a meal and debriefing of the day's activities.' In my opinion the applicant's submission that the word 'debriefing' was one suggested by Mr Arthur should be upheld. The first issue in the 'scope' of Mr Arthur's engagement to which he was required to adhere when conducting his investigation (see [13] above) was: '● As a threshold matter, determine if any of Mr Lohse's alleged behaviour(s) occurred while Mr Lohse was acting in the course of APS employment; ...' Not one of the four APS employees who gathered at the Jetty Hotel on 7 November 2007 suggested that the purpose of the gathering was to effect a 'debrief'. The suggestion that this was the purpose of the gathering was that of Mr Arthur who on two occasions in the course of his interview of Ms Barclay on 21 December 2007 said 'essentially, it was a debrief'. On the first occasion he raised it as a question and on the second he asserted it as conclusion. This characterisation of the gathering was in the face of Mr Coloe's, Ms Barclay's and Mr Hislop's observations. Mr Coloe said: 'After executing the warrants, seizing property and having it secured [on 7 November 2007] we returned to our accommodation [a hotel located near to the Jetty Hotel at Glenelg] . That evening the four of us went out for dinner and a few drinks. ...' In Ms Barclay's statement of 21 November 2007 she said: 'On completion of our duties [on 7 November 2007] we returned to our hotel. That evening we all met in the foyer of the hotel and walked to the Jetty Hotel for drinks and dinner. ...' In his interview of Mr Hislop on 21 December 2007 the following exchange took place with Mr Arthur: Arthur: '... I understand that that search warrant was in fact executed on the 7 th November during the day?' Hislop: 'That's right, yes.' Arthur: 'Okay. And later that evening you went somewhere for drinks.' Hislop: '... yes, we just went to a general bar [at the Jetty Hotel in Glenelg] for just down from the hotel.' After Mr Arthur, in his interview of Ms Barclay, queried whether the purpose of the gathering at the Jetty Hotel was essentially a debrief, Ms Barclay did agree. She said: '... so we spoke about the things that we'd observed in that shop. ... ... after we'd finished that warrant ... I went back to the hotel with John [Coloe] in one car and he [Mr Lohse] went back in another car with Andrew [Hislop] . So we didn't have any time of talking about what had happened during the day until we'd met up for dinner.' It was at this stage that Mr Arthur observed ' all right. So, yes, it's essentially a debrief ', to which proposition Ms Barclay assented. Given that a contravention of s 13(3) of the Code of Conduct required a finding that an 'APS employee, when acting in the course of APS employment , must treat everyone with respect and courtesy' it may be said that Mr Arthur's suggestion and subsequent confirmation of the purpose of the gathering at the Jetty Hotel demonstrated a prejudgment on a material issue before Mr Lohse was even informed of the allegations against him on 22 January 2008. Other matters arose during Mr Arthur's interview of Ms Barclay on 21 December 2007 which supported an inference that, by the time Mr Lohse first had notice of the investigation into his alleged breach of the APS Code of Conduct, Mr Arthur had a closed mind which was not open to persuasion one way or the other. Just as Mr Arthur had suggested that the dinner and drinks gathering of the four APS employees had essentially been an employment based debriefing meeting, he also suggested to Ms Barclay that Mr Coloe's reaction to what had happened when Mr Lohse presented Ms Barclay with the flower was one of 'surprise' when she had failed to articulate any matter which would justify such a conclusion. When Ms Barclay said that the alleged statement attributed to Mr Lohse about 'how I always smell good' intimidated her, Mr Arthur impliedly accepted the premise upon which the claimed intimidation was based by saying 'Yes, I can understand that'. When Ms Barclay made mention of Mrs Lane and an alleged conversation in which Mrs Lane spoke about Mr Lohse's behaviour towards Mrs Lane on some trips that they had previously made together, Mr Arthur inquired as to what sort of behaviour. Rather than allowing Ms Barclay to answer the question as to what Mrs Lane had allegedly spoken of, he suggested the word 'similar'. He then proceeded to suggest that Mr Lohse had been 'making advances' to Mrs Lane. The suggestion was embraced by Ms Barclay who agreed with it. In relation to Mr Lohse's alleged 'here puss puss puss' remark and movement of his hand, Ms Barclay said on 21 December 2007 'he just disgusted me'. Once again, it would appear that Mr Arthur accepted the premise upon which the observation was made by saying and repeating it 'I'm not doubting that'. Ms Barclay said of Mr Lohse's behaviour, ' it's not the behaviour that I am used to being around ... you know, starting in a workplace that you're on an Executive Level 2 position, I thought that ... you should be ... better behaved .' Mr Arthur responded to this proposition again indicating a seeming acceptance of the premise on which the observation had been based by saying: '... yes, I agree.' It would appear that before the interview concluded steps were taken to relocate Mr Arthur and Ms Barclay from the interview room. In this context Mr Arthur is recorded as saying: '... there is a bit more I'd like to go through. Actually, ... the remainder of this ... is fairly good. It's all good, anyway.' Rather than record that he understood the remaining matters which were addressed in Ms Barclay's statement of 21 November 2007, Mr Arthur appears to have communicated an acceptance of what had been said. In my opinion Mr Arthur did not approach the task which was entrusted to him with an open mind and he was not open to persuasion. The applicant's claim of bias has been made good. (f) Even if the evidence mentioned was not sufficiently strong to establish actual bias on the part of Mr Arthur, it was sufficient, in my opinion, to draw a conclusion of apprehended bias sufficient to constitute a denial of natural justice to Mr Lohse. In my opinion a hypothetical fair-minded lay person properly informed as to the nature of the process which Mr Arthur was engaged in and the possible sanctions which might be imposed upon Mr Lohse, might reasonably apprehend that Mr Arthur might not have brought an impartial mind to the making of his decision on alleged breaches of the APS Code of Conduct by Mr Lohse. A case of reasonable of apprehension of bias has clearly been made out. (g) In my opinion the decision of Mr Arthur as recorded in his report of 30 March 2008 was not on its face so unreasonable that no reasonable decision-maker could have made it. Whilst one could criticise Mr Arthur's approach to the proof of matters on a '3 against 1' basis rather than who was to be believed and, whilst he may have failed to approach the determination of the matter before him on a Briginshaw v Briginshaw basis (see Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336) , I am inclined to the view that there was no relevant Wednesbury unreasonableness. This of course provides no answer to the case, given the other findings going to jurisdictional error and denial of natural justice which have been made.


case_title: Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336


case_text: In support of its submissions on the question of whether there is a serious question to be tried in relation to the application for a stay, counsel for the applicant referred to the decision in Pongrass Group Operations Pty Ltd v Lowerpinems Pty Ltd (1994) 15 ACSR 341. In that case, Sackville J considered the principles applicable where it was proposed that a person who had a prior connection with the company be appointed as liquidator. At page 345, his Honour said: '...a proposal to appoint as a liquidator a person who has had a prior nexus with the relevant company should receive close scrutiny. It is also clear that due recognition should be given to the legitimate fears and perceptions of a substantial body of creditors. In this case, the wishes of Sensor Technologies Pty Ltd, as expressed by Mr Shearer ... should be taken into account. However, in my view, it is necessary to examine the evidence carefully and not to act on fears or suspicions that are not explained or justified by reference to underlying facts. Furthermore, it is relevant, although by no means decisive to take account of the advantages of continuity of administration if they apply in the circumstances of a particular case .' (Emphasis added).


case_text: After giving due consideration to the prior nexus between Ferrier Hodgson and the respondent, His Honour decided that on balance it was not inappropriate that the proposed appointee be appointed as liquidator of the company. Other cases which indicate that it is necessary to look at the particular circumstances of each case before making a decision as to whether there is a reasonable apprehension of a conflict of interest in relation to the appointment of a proposed liquidator include Commonwealth of Australia v Irving (1996) 144 ALR 172; Network Exchange Pty Ltd v MIG Communications Pty Ltd (1994) 13 ACSR 544 and Advance Housing Pty Ltd (In Liq) v Newcastle Classic Developments Pty Ltd (1994) 14 ACSR 230. 15 In Irving , Branson J, after a careful analysis of the facts, considered that it had been shown that a fair minded person informed of the facts could reasonably entertain a doubt as to the capacity of Mr Irving to be independent in circumstances where he was required to investigate the past conduct of a person with whom he had a professional relationship. It was on this basis that Her Honour expressed the view that it would not be appropriate for Mr Irving to continue as an administrator of the estate of the respondent. 16 These authorities support the view that in the present case, there is a serious question as to whether the broad approach taken by the Board was in accordance with the established legal and equitable principles applicable to liquidators and administrators. In failing to investigate and consider the circumstances of particular appointments, and by accepting the relationship and the potential for conflict as the decisive consideration, it is at least reasonably arguable that the Board applied the test at too high a level of generality. 17 In my view, there is a serious question to be tried in this matter arising from the way in which the issue dividing the parties was formulated in the Board's reasons for determination. This question concerns whether the relationship alone is sufficient, or whether there must be requisite conduct where, having regard to the circumstances of each particular appointment at the time of the appointment, there are circumstances known which could lead to conflict of interest. It is arguably necessary to investigate the particular circumstances of appointment in relation to specific entities in order to determine whether there is a possibility of conflict. 18 In relation to the balance of convenience, ASIC accepts that publication of the notice that the applicant seeks to have stayed will have an adverse effect on the applicant's reputation. ASIC recognises that the applicant has been a registered liquidator and official liquidator for a substantial period of time and has a substantial reputation at stake. It also acknowledges the inconvenience which will arise if applications have to be made for the applicant's removal from the numerous positions to which he has been appointed. On the other hand, ASIC refers to the important fact that the Board has exercised a broad discretion as to the appropriate sanction. It notes that the Board's determination represents the evaluation of an experienced and qualified expert body, and requires due deference because of this evaluation. It is further urged that on a general basis and paying due regard to the protective nature of the Board's function the issues raised are directed to protection of the public interest as opposed to the resolution of competing private interests. ASIC refers to the application of appropriate standards and sanctions which are fundamental to the proper discharge of its functions, and points out that there is a weighty and legitimate necessity to ensure compliance with carefully formulated Codes of professional conduct. 19 The applicant, on the other hand, submits that ASIC points to no prospect or potential circumstance where any actual conflict of interest may arise or detriment be caused. The applicant also emphasises that the conduct occurred between 5 to 8 years ago, and that there have been no complaints about appointments after 2003 when the joint venture came to an end. There is uncontested evidence from Mr Dean-Willcocks that he has no present intention of entering into any similar arrangements. The applicant also points to the substantial expense and inconvenience in making applications for substituted appointees to handle the large number of commitments, liquidations and administrations in question. In addition, the applicant is also extremely concerned as to the impact on his reputation and that of his practice. In the event that he is ultimately successful, the applicant contends that publication of the Board's determination will cause irreparable harm which is not compensable. The lack of any likely or reasonably foreseeable harm arising if the stay is granted and an early hearing with a tight expedited schedule imposed is important in relation to the balance of convenience.


case_text: After giving due consideration to the prior nexus between Ferrier Hodgson and the respondent, His Honour decided that on balance it was not inappropriate that the proposed appointee be appointed as liquidator of the company. Other cases which indicate that it is necessary to look at the particular circumstances of each case before making a decision as to whether there is a reasonable apprehension of a conflict of interest in relation to the appointment of a proposed liquidator include Commonwealth of Australia v Irving (1996) 144 ALR 172; Network Exchange Pty Ltd v MIG Communications Pty Ltd (1994) 13 ACSR 544 and Advance Housing Pty Ltd (In Liq) v Newcastle Classic Developments Pty Ltd (1994) 14 ACSR 230.


case_title: Advance Housing Pty Ltd (In Liq) v Newcastle Classic Developments Pty Ltd (1994) 14 ACSR 230


case_text: No forms of request are prescribed and there are no Regulations or Rules of Court setting out any procedural requirements. The general procedure has a long history (briefly reviewed by Fox J in Ayres v Evans (1981) 39 ALR 129; 56 FLR 235 at 239) but the details have varied over time. The complexities of modern cross-border insolvency make it likely that this beneficial provision will be exercised more in the future than it has been exercised in the past. Jersey is a prescribed country by reason of reg 3.01 of the Bankruptcy Regulations 1996 . Therefore, the Court is obliged to act in aid of, and be auxiliary to, Jersey courts with jurisdiction in bankruptcy (s 29(2)(a) of the Act). A request pursuant to s 29(4) is not limited to the court of a prescribed country. Although there is no requirement to establish that it is likely that the foreign court will honour the request before the court should act under s 29(4) ( Clunies-Ross v Totterdell (1988) 20 FCR 358 at 361), the evidence establishes that the Royal Court of Jersey will so act.


case_title: Clunies-Ross v Totterdell (1988) 20 FCR 358


case_outcome: distinguished

case_text: The application has not been served on any party. In Official Trustee in Bankruptcy v Lyons [2000] FCA 1428 ; (2000) 104 FCR 486 Tamberlin J explained why it will normally be necessary to give notice to a live bankrupt see also Re Hudson (2005) 3 ABC(NS) 350 illustrating the exceptions to that principle. It may be accepted that a similar principle would normally apply in the case of a bankrupt deceased estate where probate has been granted. Even where probate has not been granted there may be occasions where it would be appropriate to serve the next of kin. The present case is somewhat out of the ordinary. The next of kin applied for the administration of the deceased estate in bankruptcy. The wife and children of the deceased are aware of this application and support it. In those circumstances, formal service is not necessary. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 18 December 2007 Counsel for the Applicant: Mr M Aldridge SC Solicitor for the Applicant: Colin Biggers & Paisley Date of Hearing: 12 December 2007 Date of Order: 12 December 2007 Date of Reasons: 18 December 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/2020.html


case_title: Re Hudson (2005) 3 ABC(NS) 350


case_text: I am satisfied that a request is appropriate in the circumstances. I am satisfied that the form of the request is appropriately specific in accordance with Re Mann (1887) 13 VLR 590. I would leave for another day the question whether that authority should continue to be applied to the provision as now framed. It is not clear to me that a request should not be general in form, the "matter" being the administration of the particular bankrupt estate, leaving it to the foreign court to decide precisely how the assistance might be afforded.


case_outcome: discussed

case_title: Australian Competition & Consumer Commission v Seven Network Ltd [2007] FCA 1505

case_text: Counsel for the applicants referred to a recent decision of the Court concerning s 65A: Australian Competition & Consumer Commission v Seven Network Limited [2007] FCA 1505. It was delivered on 5 October 2007 (the day that the applicants filed and served their submissions in support of this application). It was submitted that, in this decision, Bennett J at [77] and [80] had placed a different construction upon s 65A to that of French J at [42] and that on the construction of the section adopted in the Seven Network decision, it is arguable that the applicants' case has reasonable prospect of success. 31 However, the judgment in Seven Network does not immediately assist the present applicant. In that case, the necessary elements of s 65A(1)(a)(i) and (iii) which in turn lead to a consideration of s 65A(1)(a)(vi) were not in dispute, [70]. Bennett J was concerned with the inter-relationship between the "matter" in s 65(1)(a) and the "contract, arrangement or understanding" in s 65A(1)(a)(vi). 32 That was not the position in this case. French J concluded that the transmission by a freelance journalist of a news article to a newspaper or other media outlet with whom he or she has a contract to supply such services was not a publication of matter " in connection " with the supply of such services. Thus the necessary element under s 65A(1)(a)(i) was held not to have been made out. 33 Nonetheless I propose to grant leave. Section 65A is an important statutory provision. Its interpretation is not without difficulty. Bennett J said, in Seven Network at [92], that the "drafting of the section is not a model of clarity". I respectfully agree. It has ramifications beyond the protection, if any, available to freelance journalists. Its reach ought to be considered by a Full Court. Although I have accorded the matter little weight, I note that an appeal has been lodged in the Seven Network case. To that extent therefore s 65A will be the subject of reconsideration by a Full Court which may then examine the section as a whole. 34 The construction placed on the provision by French J has considerable force. However in all of the circumstances I am persuaded that there is sufficient doubt in respect to the decision to warrant it being reconsidered by the Full Court. Certainly, substantial injustice would follow if leave were refused, assuming the decision to be wrong: Decor Corporation and Another Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.


case_text: The construction placed on the provision by French J has considerable force. However in all of the circumstances I am persuaded that there is sufficient doubt in respect to the decision to warrant it being reconsidered by the Full Court. Certainly, substantial injustice would follow if leave were refused, assuming the decision to be wrong: Decor Corporation and Another Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.


case_text: The judgment, whilst interlocutory, is one on points of substance and not merely practice or procedure. A distinction is drawn between these: Yap v Granich & Associates [2001] FCA 1735 at [6] ; Dunstan v Orr [2007] FCA 873 at [6] ; see also Visy Industries Holdings Pty Limited v Australian Competition and Consumer Commission [2007] FCAFC 147 at [39] per Lander J with Moore J concurring. In a case where judgment has the practical effect of finally determining a party's rights, a prima facie case exists for granting leave to appeal: Ian Duncan v Secretary, Department of Family and Community Services [2007] FCA 507 at [18] .


case_title: Dunstan v Orr [2007] FCA 873


case_title: Yap v Granich & Associates [2001] FCA 1735


case_text: Without further hearing from the appellant, the Tribunal was not satisfied on the very limited material before it that the appellant's claimed political involvement with the Akali Dal Baadal in India or the false charges and attacks on his family that the appellant claimed to have suffered as a result of his political activities were true. These were factual conclusions that were open to the Tribunal. According to the decision in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272 the Court cannot review the merits of the Tribunal's decision. Further, there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: see Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at 560, [137] .


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


case_text: The real difficulty facing the appellant is that the appellant declined a hearing before the Tribunal. It may have been that he was ill-advised in so acting, but the appellant must accept the consequences of that choice: see S58 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 85 ALD 492 at [25]. As was pointed out in SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 at [16] : The RRT made it pellucidly clear in its letter of 12 March 2004 that it was unable to make a decision in the appellant's favour on the basis of the information before it, and as the Full Court observed in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 , when the appellant failed to accept the opportunity to elaborate on that information at the scheduled hearing, the inevitable consequence was the rejection of his application.


case_title: SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306


case_outcome: affirmed

case_title: SZITZ v Minister for Immigration [2006] FMCA 1314


case_title: Hamdan v Ramsfeld 126 S.Ct. 2749 (2006)

case_text: In recent times, challenges to certain US government actions at Guantanamo Bay have centred on appeals as to the lawfulness of the laws rather than their lawful application ( Hamdan v Ramsfeld 126 S.Ct. 2749 (2006)).


case_title: Marbury v Madison 5 U.S. 137 (1803)

case_text: Section 75(v) appears in the Australian Constitution as a consequence of the finding by the Supreme Court in the United States in Marbury v Madison 5 U.S. 137 (1803). Sir Edmund Barton (later an original judge of the High Court) in the debates of the Australasian Federal Convention in Melbourne in 1898 ("Official Record of the Debates of the Australasian Federal Convention", Melbourne , 4 March 1898 Vol II at page 1883) referred to the terms of section 2 of Article III of the United States Constitution . After referring to Marbury v Madison , Sir Edmund said: ...although jurisdiction was given as to cases arising out of the Constitution that itself was only an appellate jurisdiction. Jurisdiction was not given in any express terms as to writs of mandamus, prohibition, or injunction. Therefore there was only an appellate jurisdiction. When the United States Congress tried to confer an original jurisdiction upon the Supreme Court of the United States, it was held that, as there was no such jurisdiction conferred by the Constitution , it could not be conferred by an Act of Congress, because such an Act was outside the Constitution . For that reason, the statute was held to be void. 14 The purpose of s 75(v) in the Australian Constitution was to ensure that, unlike the Supreme Court, the High Court had original jurisdiction in respect of writs of mandamus, prohibition or injunction. 15 Sir Edmund said, at p 1884: This will give the High Court original jurisdiction, as well as appellate jurisdiction, in these cases, so that when a person wishes to obtain the performance of a clear statutory duty, or to restrain an officer of the Commonwealth from going beyond his duty, or to restrain him in the performance of some statutory duty from doing some wrong, he can obtain a writ of mandamus, a writ of prohibition, or a writ of injunction.