case_text: The operation of s 541 was discussed by the High Court in Hamilton v Oades [1989] HCA 21 ; (1989) 166 CLR 486 in the context of its effect upon the privilege of self incrimination. Mason CJ, in the leading majority judgment, described the section as creating "a system of discovery". It gave to the liquidator rights not possessed by an ordinary litigant. The Chief Justice quoted with approval from the judgment of Street J in Re Hugh J Roberts Pty Ltd (1970) 91 WN (NSW) 537 at 541 when he said that it must be accepted that the section applies equally to proceedings which a liquidator: '.. might be able to bring, proceedings he contemplates bringing, proceedings he has decided to bring, and proceedings he has already brought." See also: Rothwells Ltd (No 2) (1989) 7 ACLC 576 at 588 (Nicholson J) in which authorities relevant to the scope of the inquiry which may be undertaken under compulsory examination were collected. In that judgment Nicholson J acknowledged a difference of approach between Australian and English authorities the latter holding, as a general rule, that a liquidator could not undertake such an examination when a firm decision had been taken to commence proceedings to which the proposed examination was relevant. The Australian approach to that point merely required the court to treat the liquidator's application with greater caution (588).


case_outcome: cited

case_title: Re Hugh J Roberts Pty Ltd (1970) 91 WN (NSW) 537


case_title: Rothwells Ltd (No 2) (1989) 7 ACLC 576


case_text: In 1989 the Commonwealth, in reliance upon the Corporations power in s 51(xx) of the Commonwealth Constitution , passed the Corporations Act 1989 (Cth) imposing a national scheme of corporate regulation. It also established the Australian Securities Commission. However in New South Wales v Commonwealth [1990] HCA 2 ; (1990) 169 CLR 482 the High Court held that the Commonwealth did not have power to make laws about the incorporation of companies. This led to the introduction of the 1991 Cooperative Scheme. The Commonwealth Parliament enacted the Corporations Act 1989 as a law of the Government of the Australian Capital Territory pursuant to s 122 of the Constitution . Each of the States then passed its own Corporations Act applying the Corporations Law set out in the Corporations Act 1989 and the Australian Securities Commission Act 1989 as laws of the State. Each State conferred jurisdiction on the Federal Court "with respect to civil matters arising under the Corporations Law of [the State]". Like jurisdiction was conferred by each State Act on the Supreme Court of the State and the Supreme Court of the Australian Capital Territory. The scheme reflected the more general provisions of the reciprocal Federal and State cross vesting legislation which had been introduced in 1987. It provided a special purpose cross vesting arrangement. It operated from 1 January 1991. 59 Section 597 of the Corporations Act 1989 and the Corporations Law of each State reflected s 541 of the former Companies Codes. As the Explanatory Memorandum for the Corporations Bill 1988 succinctly stated: 'This provision is based on CA s 541. ' The examination power conferred by s 597 was subsequently described as: 'In many respects a conflation of the powers of examination in ss 249, 250 and 367A of the Uniform Companies Act 1961." AR Keay , op cit at 70. Conflation as confusion was the view of the new provisions advanced by Parker G in Liquidator's Examinations (1993) 10 Aust Bar Rev 25. He found it hard to escape the conclusion that most of the changes made in 1981 were accidental (at 29): 'The Explanatory Memoranda betrayed no awareness of the separate origins and purposes of the examination provisions which were being fused together. Not all the changes made to the previous law were identified. No reasons were given for those that were identified.'


case_text: The legislative antecedents of s 597 were discussed by Lockhart J (Beaumont and Gummow JJ concurring) in Re Compass Airlines Pty Ltd (1992) 35 FCR 446 at 452-453. His Honour referred to the "long history" of the section in companies legislation and noted that neither s 597 nor its predecessor, s 541 of the Companies Code, had been confined to companies in the course of being wound up. He referred also to the "close correspondence" between the "inquisitorial provisions" under the companies legislation and the equivalent provisions with respect to individuals under bankruptcy legislation. He said (at 453): 'Like its predecessors, s 597 plays an important role in the administration of companies in liquidation, other administrations in insolvency and "external administrations" generally:...' He contrasted such provisions with those which relate to the investigation of the affairs of companies (whether or not in the course of being wound up) by government regulatory authorities and the making of reports by those authorities. The Compass case was concerned with the effect of s 597 upon legal professional privilege. 89 In my respectful opinion, the weight of authority, to the extent that it has considered the matter tends to support the proposition that ss 596A and 596B and their predecessors have been seen as provisions applicable to companies in one or other form of administration and not as applicable to companies at large. So much appears from the judgment of the Full Court in Re Compass Airlines and the Court of Appeal of New South Wales in HongKong Bank. New Zealand Steel also appears to be consistent with the views expressed by Gleeson J that the statutory context of s 597 was that of "external administration". It follows, that I would not, with respect, agree with the obiter observations at [84] of the Wainter judgment which would see the application of ss 596A and 596B extended to solvent corporations not under any form of external administration. 103 Neither McHugh J nor Gummow J who held the cross vesting of jurisdiction to be invalid made any comment on the characterisation of the examination process. Kirby J who held the cross vesting provisions to be valid, said that the examination function was "... a necessary and usual step in the process of the judicial winding up of a company". He acknowledged that it was a more difficult question whether the extension of the power to other "eligible applicants" such as the Australian Securities Commission and the inclusion of other inquisitorial powers contaminated the legislative provisions in such a way that they could not be severed to uphold permissible provisions and exercise the impermissible. As to that he agreed with the reasons of Brennan CJ and Toohey J (500). 104 Spinks v Prentice (1998) 87 FCR 89 was one of a group of appeals decided in conjunction with Re Wakim . It was an appeal from the Full Court of the Federal Court with respect to an order for examination of former officers of a company in liquidation. The company was taken to be incorporated in the Australian Capital Territory. The Full Court held that the Corporations Act 1989 (Cth), which applied the Corporations Law to the ACT, validly conferred jurisdiction on the Federal Court to entertain the application for an examination summons. The examination orders were also challenged before the Full Court on the basis that they did not involve an exercise of judicial power. As to that the Court said (at 96): 'It is true that, although there is no challenge to the winding up order made here, s 596A would permit an examination where there has been no winding up. But given the long history of courts exercising such powers, we can see nothing foreign to the exercise of judicial power in this aspect of s 596A.' They referred to the Compass Airlines and Grosvenor Hall cases. It is not clear, given the absence of any long history of judicial examination of corporations at large unrelated to winding up or other judicial procedures, whether their Honours were saying that applications under s 596A when there was no winding up order or pending court proceedings were an exercise of judicial power. To the extent that they were so saying, their observations were dicta.


case_text: The extension of the examination power to companies under external administration, not limited to winding up, was noted by Gleeson CJ (Mahoney and Priestley JJA agreeing) in HongKong Bank of Australia Ltd v Murphy (1992) 28 NSWLR 512 at 521. His Honour said: 'The statutory context of " external administration ", in which s 597 has its place, throws light on the purposes for which the power to order examinations (or to authorise persons to apply for examination orders) is conferred. Those purposes include the protection of shareholders and creditors and of interested members of the public. They are not however confined to the need for such protection in the case of winding up. Winding up is only one form of external administration. The scope of s 597 is wider.' The company whose officers were the subject of examination in that case was the former trustee of unit trusts known as the Estate Mortgage Trust. The trustee itself was in liquidation. The question whether s 597 was limited to companies in liquidation was relevant because s 601 of the Corporations Law stated that its provisions with respect to winding up did not apply to any body corporate, the winding up of which was started before the commencement of the chapter. The section was held not to apply to s 597 because that section was not a law with respect to winding up. 62 The Corporations Law was amended by the Corporate Law Reform Act 1992 (Cth) which introduced a new Div 1 in Pt 5.9. That Division was entitled "Examining a person about a corporation". It comprised ss 596A to 596F inclusive. Section 597 was reduced to its present form as a provision about the way in which examinations authorised under ss 596A and 596B are to be conducted. 63 The 1992 amendments implemented the Report of the Australian Law Reform Commission in its General Insolvency Inquiry Report No 45 (The Harmer Report). In par 584 of that Report the chief purposes of inquisitorial examinations in bankruptcy and company insolvency law were described thus: '... to facilitate the recovery of property, to discover whether conduct of the insolvent led to the insolvency and to investigate possible causes of action against third parties.' The Commission recommended that company law be brought into closer alignment with bankruptcy law by allowing examination without court order of any person who had been a relevant company officer within two years before winding up commenced (par 586). It also recommended the retention of the requirement for a court order for examination of persons other than officers of the company who might nevertheless be able to provide information relating to the company's affairs. The Commission recommended as wide a definition of "examinable affairs" as applied to bankrupts under recent amendments. It agreed with the observation by Lockhart J in re Csidei that "the very nature and breadth of the inquisitorial power ... requires the exercise by the Court or Registrar of considerable care before it is invoked". On that basis it recommended that applications to the Court for examination orders be supported by affidavit. 68 In New Zealand Steel (Australia) Pty Ltd v Burton (1994) 13 ACSR 610 Hayne J, in the Supreme Court of Victoria, quoted and evidently adopted for the purposes of s 596B of the Corporations Law, what Gleeson CJ had said in HongKong Bank v Murphy . His Honour did so in aid of the proposition that (at 616): '... no longer are the examination provisions of the companies legislation to be regarded as restricted to cases in which the company has been wound up and it therefore follows that the provisions are not to be limited to cases in which the examination will be for the purpose of a winding up and the benefit of those interested in that winding up.' In New Zealand Steel the company whose examinable affairs were in issue had a receiver and manager appointed. The question before the court was whether the examination proposed was an abuse of process because it was directed to obtaining a private forensic advantage in pending litigation.


case_text: In New Zealand Steel (Australia) Pty Ltd v Burton (1994) 13 ACSR 610 Hayne J, in the Supreme Court of Victoria, quoted and evidently adopted for the purposes of s 596B of the Corporations Law, what Gleeson CJ had said in HongKong Bank v Murphy . His Honour did so in aid of the proposition that (at 616): '... no longer are the examination provisions of the companies legislation to be regarded as restricted to cases in which the company has been wound up and it therefore follows that the provisions are not to be limited to cases in which the examination will be for the purpose of a winding up and the benefit of those interested in that winding up.' In New Zealand Steel the company whose examinable affairs were in issue had a receiver and manager appointed. The question before the court was whether the examination proposed was an abuse of process because it was directed to obtaining a private forensic advantage in pending litigation. 77 Lander J made some observations relevant to the question now before the Court on whether Pt 5.9 is limited in its application to the examinable affairs of corporations under external administration. At one point he said of s 596A (at [84]): 'The corporation may be in administration, subject to a deed of company arrangement, or being wound up. However, that is not essential. ASIC, or a person authorised by ASIC, could apply to summon an examinable officer about the corporation's examinable affairs even where the company is solvent and still trading provided that the person is an examinable officer at the time of the application: s 596A(b)(iv).' That observation was, with respect, obiter as the case before the Court concerned the examinable affairs of a company in liquidation. And later in the reasons for judgment his Honour agreed with the observations of Hayne J in New Zealand Steel , and said (at [245]): 'In my opinion, the procedure in Pt 5.9 of the Law and the Act is to aid persons who have the responsibility of the external administration of the company in carrying out their duties.'


case_text: A broad view of "examinable affairs" was adopted by the Full Federal Court in Grosvenor Hill (Qld) Pty Ltd v Barber (1994) 48 FCR 301. In that case the challenged orders had been made under s 596B and had required a valuer employed by Grosvenor Hill to be examined to determine whether the liquidators of a second company, Interchase Corporation Ltd (In Liq), had a good cause of action for damages against Grosvenor Hill in respect of valuation advice which the individuals had provided. In holding that the inquiry was within the examinable affairs of Interchase, their Honours said (at 305 - 306): 'In accordance with the settled course of authority ... information with respect to the probability or otherwise of success in litigation contemplated by the corporation would be information with respect to the "examinable affairs" of the corporation in question. This information would be "relevant", that is to say, it would bear upon or be connected with, the question whether the corporation possessed a cause of action, that is, a chose in action, as its property. It is not, and could not be, seriously disputed that an inquiry as to the existence, and value, of any property that the corporation may possess would be a "relevant" inquiry for the purposes of s 597(9).' The "examinable affairs" in that case were those of the company which was the subject of a winding up order albeit it was an officer of another company that was to be examined about them. The Court also referred to the special position of the liquidator as an officer of the Court under a duty and responsibility to get in and maximise the assets of the company for distribution for the benefit of the creditors. The limited knowledge of the company's assets and business affairs possessed by a liquidator had been recognised by the legislature in the enactment of the examination provisions of the Corporations Law and its predecessors. 70 The Full Court said that the language of s 597B, having regard to the definition of "examinable affairs" in s 9, had a broader operation than its statutory ancestor, s 115 of the Companies Act 1862 (UK) (at 308 - 309): 'The fact that the examination of a person under s 596B of the Law is not a proceeding inter partes is a circumstance in favour of a broad and generous construction of the section having regard to its statutory purpose, subject to the power of the Court not to allow the provision to be used oppressively to the private interests of the examinee.' The Court also held that the power could be used to order the production of relevant documents including insurance policies to ascertain whether or not the person against whom action might be taken by the liquidator had an enforceable right to indemnity from an insurer or other person (at 311): 'Realisation of the chose in action is an "examinable affair" within the meaning of ss 596B(1)(6)(ii) and 9 of the Law. Any policy of professional indemnity insurance containing the terms of the indemnity, including any exclusions and excesses and the amount of cover is, we think, a document "relevant to matters to which the examination relates or will relate" (s 597(9) of the Law)."


case_text: The cross vesting arrangements under the Corporations Law were challenged in Gould v Brown as an element of a challenge to the exercise of the examinations power under ss 596A and 596B by the Federal Court. The High Court divided evenly on the challenge to the cross vesting scheme which was therefore upheld as it had been in the Full Federal Court below. It was, however, only a matter of time before the validity of the cross vesting arrangements would come up again for consideration by the High Court. They did so and were held by a majority in Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511 to be invalid to the extent that the State Corporations Laws purported to confer jurisdiction on the Federal Court. 104 Spinks v Prentice (1998) 87 FCR 89 was one of a group of appeals decided in conjunction with Re Wakim . It was an appeal from the Full Court of the Federal Court with respect to an order for examination of former officers of a company in liquidation. The company was taken to be incorporated in the Australian Capital Territory. The Full Court held that the Corporations Act 1989 (Cth), which applied the Corporations Law to the ACT, validly conferred jurisdiction on the Federal Court to entertain the application for an examination summons. The examination orders were also challenged before the Full Court on the basis that they did not involve an exercise of judicial power. As to that the Court said (at 96): 'It is true that, although there is no challenge to the winding up order made here, s 596A would permit an examination where there has been no winding up. But given the long history of courts exercising such powers, we can see nothing foreign to the exercise of judicial power in this aspect of s 596A.' They referred to the Compass Airlines and Grosvenor Hall cases. It is not clear, given the absence of any long history of judicial examination of corporations at large unrelated to winding up or other judicial procedures, whether their Honours were saying that applications under s 596A when there was no winding up order or pending court proceedings were an exercise of judicial power. To the extent that they were so saying, their observations were dicta.


case_text: The operation of the examination powers was given comprehensive consideration by Lander J who wrote the principal judgment in the Full Court of the Federal Court in Evans v Wainter Pty Ltd [2005] FCAFC 114 ; (2005) 145 FCR 176. The case involved the issue of summonses under ss 596A and 596B for the examination of persons in relation to the examinable affairs of New Tel Ltd (in liq). An interlocutory application to discharge the summonses was refused and an appeal by leave taken to the Full Court, which appeal was ultimately dismissed. The appellants contended that the sole purpose of the examinations was to elicit evidence in relation to causes of action said to have arisen out of representations made by them to the company Wainter Pty Ltd in relation to New Tel. The Full Court held that New Tel stood to benefit from any action brought by Wainter against the appellants as recovery by Wainter against the appellants would reduce its claim against New Tel. 74 Lander J reviewed the history and authorities relevant to the examination powers and identified their legislative purposes in terms which may be paraphrased as follows (at [252]): 3.1 To enable an eligible applicant to gather information to assist the eligible applicant in the administration of the corporation. 3.2 To assist the corporation's administrators to identify the corporation's assets, both tangible and intangible, and to allow its liabilities to be identified. 3.3 To protect the interests of the corporation's creditors. 3.4 To enable evidence and information to be obtained to support the bringing of proceedings against examinable officers and other persons in connection with the examinable affairs of the corporation. 3.5 To assist in the regulation of corporations by providing a public forum for the examination of examinable officers of corporations. With respect, the last mentioned purpose must be regarded with some reserve in terms of its compatibility with the exercise of judicial power. This is, however, subsumed in the discussion that follows about the characterisation of the examination power, for purposes of assessing constitutional validity, as judicial or administrative. 75 His Honour also advanced the following propositions about the exercise of the examinations power which he said emerged from the legislation and the authorities (at [252]): '4. If an eligible applicant applies for an order for examination of a person for a purpose unconnected with the purposes authorised by the legislation that will be an abuse of process and the order, if obtained, will be set aside. 5. The procedure may not be used to allow a party to obtain a forensic advantage and, if it is, any order obtained will be set aside. 6. The procedure may not be used as a dress rehearsal for the cross- examination of a person in a pending or subsequent action. However, it is not improper to seek an order of the Court to summon a person for examination whilst litigation is pending against that person or entities connected with that person. 7. The question whether in any particular case the applicant has used the procedure abusively will depend upon the applicant's purpose in seeking the order and all of the surrounding circumstances. It will not be an abuse unless an offensive purpose is at least the predominant purpose. 8. It will be an offensive purpose if the application cannot be characterised as being for the benefit of the corporation, its contributories or creditors. 9. A creditor may, if first authorised by ASIC, apply to the Court for an order to summon for examination a person for the purpose of obtaining information in relation to a debt owed to the creditor if such an examination would be in the interests of the corporation or its creditors as a whole. 10. A creditor may not use the procedure for the purpose of obtaining a forensic advantage which would not have been available to the creditor if the corporation had not gone into administration.' 76 Ryan and Crennan JJ generally agreed with Lander J subject to certain expressed qualifications. Lander J did not accept the correctness of the opinions of the Full Court of the Supreme Court of Victoria in Flanders v Beatty (1995) 16 ACSR 324 and the Full Court of the Supreme Court of South Australia in Sandhurst Trustees Ltd v Harvey (2004) 88 SASR 519, that the scope of the examination process had been greatly expanded by the 1992 amendments ([187] and [206]). Ryan and Crennan JJ both held it unnecessary to reflect upon those views for the purpose of dealing with the appeal before them. 78 In Meteyard v Love [2005] NSWCA 444 ; (2005) 224 ALR 588 summonses for examination had issued to the insurer of a company in receivership on the application of its creditors. Basten JA, who wrote the principal judgment, dealt with questions of oppression, abuse of process and the effect of the examination power on legal professional privilege. Santow JA, who agreed with Basten JA, noted that the particular purpose of the examinations in that case was not to expose misconduct but to provide information that would advance the external administration of the company under receivership. His Honour considered that the limitations upon the examination power, in that context, were as articulated by Lander J in Wainter in [245] [251] (at [7]). There is nothing in that judgment supportive of the application of the power in respect of examinable affairs of companies not under external administration. 79 This case concerns in part the scope of the following statutory powers and obligations: (i) The power of ASIC to authorise a person to make an application under Pt 5.9. (ii) The obligation and associated power of the Court, under s 596A, to summon a person for examination about a corporation's examinable affairs and the power under s 597 to examine a person so summoned. 89 In my respectful opinion, the weight of authority, to the extent that it has considered the matter tends to support the proposition that ss 596A and 596B and their predecessors have been seen as provisions applicable to companies in one or other form of administration and not as applicable to companies at large. So much appears from the judgment of the Full Court in Re Compass Airlines and the Court of Appeal of New South Wales in HongKong Bank. New Zealand Steel also appears to be consistent with the views expressed by Gleeson J that the statutory context of s 597 was that of "external administration". It follows, that I would not, with respect, agree with the obiter observations at [84] of the Wainter judgment which would see the application of ss 596A and 596B extended to solvent corporations not under any form of external administration.


case_title: Flanders v Beatty (1995) 16 ACSR 324

case_text: Ryan and Crennan JJ generally agreed with Lander J subject to certain expressed qualifications. Lander J did not accept the correctness of the opinions of the Full Court of the Supreme Court of Victoria in Flanders v Beatty (1995) 16 ACSR 324 and the Full Court of the Supreme Court of South Australia in Sandhurst Trustees Ltd v Harvey (2004) 88 SASR 519, that the scope of the examination process had been greatly expanded by the 1992 amendments ([187] and [206]). Ryan and Crennan JJ both held it unnecessary to reflect upon those views for the purpose of dealing with the appeal before them.


case_title: Sandhurst Trustees Ltd v Harvey (2004) 88 SASR 519


case_text: The Corporations Act makes no express provision for ASIC to authorise a person to make an application under Pt 5.9. Its function in that respect is identified in the definition of "eligible applicant". The function so identified is picked up by the general provisions of s 11(1) of the ASIC Act. The power to do whatever is necessary for the performance of its functions is conferred upon ASIC by s 11(4). Section 11(4) is therefore the source of ASIC's power to authorise a person as an "eligible applicant". That has been so held in respect of analogous provisions of the Corporations Law in three decisions of the Full Court: HongKong Bank of Australia Ltd v Australian Securities Commission (1992) 40 FCR 402; Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409 and Re Excel; Worthley v England (1994) 52 FCR 69. The Court of Appeal of New South Wales in Burns Philp & Co Ltd v Murphy (1993) 29 NSWLR 723 held that the power was located in the definitional provision of s 597(1) of the Corporations Law, reflected in the definition of "eligible applicant" in s 9 of the Corporations Act . I will, with respect, follow and apply the analysis and conclusions of the Full Court of the Federal Court in the three decisions mentioned. They are helpfully discussed in Zumbo F, Liquidator's Power of Examination under the Corporations Law: The State of Play (1994) 12 C & SLJ 504. The precise location of the statutory power to authorise a person to make application for an examination summons was relevant, in those cases, to the availability of administrative review by the Administrative Appeals Tribunal. The decisions of the Full Court of the Federal Court had the consequence that such review was not available. No such limitation applies in respect of judicial review of the ASIC decision whether under the ADJR Act or the provisions of s 39B(1A) of the Judiciary Act 1903 (Cth).


case_title: Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409


case_title: Re Excel; Worthley v England (1994) 52 FCR 69


case_title: Burns Philp & Co Ltd v Murphy (1993) 29 NSWLR 7232


case_text: The limits of the judicial power of the Commonwealth are not easily defined. At its heart is "the power which any sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property": Huddart Parker & Co Pty Ltd v Moorehead [1909] HCA 36 ; (1909) 8 CLR 330 at 357 (Griffith CJ). But as was pointed out in R v Davison [1954] HCA 46 ; (1954) 90 CLR 353, the elements of controversy between subjects and the determination of existing rights and liabilities were "entirely lacking from many proceedings falling within the jurisdiction of various courts of justice in English law" (per Dixon CJ and McTiernan J at 368). Examples given included directions as to the administration of trusts, orders relating to the maintenance and guardianship of infants and declarations of legitimacy. Their Honours also referred to incidental administrative functions such as the issue of warrants of execution and said (at 368): 'But to say that a thing may be done in the course of the exercise of judicial power is not to say that it may be done without the exercise of judicial power.' Their Honours recognised that some functions are treated as judicial because they have long been so treated (at 369): 'The truth is that the ascertainment of existing rights by the judicial determination of issues of fact or law falls exclusively within judicial power so that the Parliament cannot confide the function to any person or body but a court constituted under ss 71 and 72 of the Constitution and this may be true also of some duties or powers hitherto invariably discharged by courts under our system of jurisprudence but not exactly of the foregoing description.' 97 When a regulatory body or authority such as ASIC or the Australian Competition and Consumer Commission or the Commissioner of Taxation is given such a power it is a power to investigate not to decide in the sense that a court decides when it gives judgment upon a matter before it: Huddart Parker & Co Pty Ltd v Moorehead at 358 (Griffiths CJ), 380 (O'Connor J), 384 (Isaacs J), 418 (Higgins J); Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission [1982] HCA 65 ; (1982) 152 CLR 460. The latter case concerned s 155 of the Trade Practices Act conferring power on the Chairman of the Trade Practices Commission to orally examine persons or require production of documents relevant to possible contraventions of the Act. The Court held that s 155 did not purport to confer judicial power on the Commission. Mason J made some observations relevant to the distinction between the exercise of an investigative power which may lead to subsequent judicial proceedings but nevertheless remains administrative and the exercise of an administrative power as an incident of judicial power. He said (at 471 - 472): 'The absence in s 155 of any power to decide or determine a dispute between parties the central element in the exercise of judicial power might be thought to be an overwhelming answer to the argument that there is an attempt to confer judicial power on the Commission. However, it is suggested that if the Commission requires information to be given for the purpose of obtaining evidence in a matter before the Court then it is exercising judicial power. According to Holmes J in Prentis v Atlantic Coastline [(1908) 211 US 210 at p 227], "The nature of the final act determines the nature of the previous inquiry". But this does not mean that because the determination ultimately made by the Federal Court in proceedings in respect of a contravention of the Act is an exercise of judicial power the issue and service of the notices is itself such an exercise. Holmes J was merely saying that the character of the order or final decision made by a tribunal will determine the character of the inquiry which precedes its decision, so that if its determination is a judicial order then its inquiry will constitute an exercise of judicial power. R v Davison [(1954) [1954] HCA 46 ; 90 CLR 353] was just such a case. This is not to say that it is legitimate to characterize the nature of the power exercised by the Commission under s 155 by reference to the judicial power which the Court exercises when it hears proceedings for a penalty under the Act. What the Commission does will produce information which may be presented in evidence by a party in proceedings in respect of a contravention under the Act, but this is no basis for saying that there is an exercise of judicial power on the part of the Commission. The exercise of a power to compel the provision of information is not inherently such an exercise. It may constitute an element in the exercise of judicial power when the power is part of the proceedings of the court, its object being to aid the court or the parties to obtain and present evidence in those proceedings. Then the exercise of the power by the court or the parties in proceedings in the court is for the purpose of enabling the court to hear and determine the lis and is, accordingly, incidental to, if not an element in, the exercise of judicial power.' See also Kluver and Woellner , Powers of Investigation in Revenue, Companies and Trade Practices Law (Butterworths, 1983, [102] - [103]) 108 The above passage states no new principle and indeed refers generally in a footnote to the discussion by Dixon CJ and McTiernan J in R v Davison. But to say that the courts have historically exercised investigative functions does not mean that all investigative functions conferred on a court, absent relevant historical antecedents or analogues, are to be regarded as judicial if not otherwise incidental to the exercise of judicial power. Without some limitation of that kind investigative obligations may be imposed by statute upon courts exercising federal jurisdiction on any subject within the legislative competence of the Commonwealth Parliament. 109 The question in this case is where there is any historical basis for characterising the examination power as now propounded as judicial in character. Its purported extension to corporations which are not being wound up or otherwise subject to judicial processes is an event of recent and certainly post-federation history. Nor can its characterisation as judicial be treated as analogous to such processes as preliminary discovery or bills of discovery in equity which have, in any event, a narrower field of operation than that which is proposed for s 596A. In so saying it is necessary to bear in mind that the validity of s 596A in its general application to solvent corporations not under any form of administration or judicial process is not to be judged by reference to this particular application in respect of such a corporation. The examination power cannot be justified on the basis that there is a damages claim pending against the company being examined. The construction of s 596A relied upon and necessary to support the issue of the examination summons in this case does not depend upon the existence of the damages claim but upon the status of Hayes Knight as a corporation. 110 In my opinion if the construction of s 596A for which Highstoke contends is the correct construction, then s 596A purports to confer on the Court a power which is not capable of characterisation as judicial and which, in its present application, is not incidental to the exercise of judicial power. To that extent, s 596A would exceed the legislative power of the Commonwealth. It may be that, by virtue of s 15A of the Acts Interpretation Act s 596A can be read down to yield the construction which, in my opinion, is in any event the correct one. The outcome is the same. The summons must be discharged. 111 The disposition of the Judicial Review Proceedings is effectively governed by the conclusions in respect of the Examination Proceedings. It was at the very least a mandatory relevant consideration to be taken into account by the ASIC delegate, if not a factor defining the limits of the delegate's power that Hayes Knight was not under any form of external administration of the kind referred to in Ch 5 of the Act or otherwise amenable to the provisions of the Act. The stated purpose for which authorisation was sought was for an application which, on the proper construction of the relevant provisions, would be beyond the power of the Court. The authorisation decision should be quashed. There is no point in remitting the matter for reconsideration by ASIC as the quashing of the authorisation decision depends upon the proposition that, having regard to the purpose for which the application for authorisation was made, authorisation could not properly have been granted. 112 The question whether the issue of the summons was for an improper purpose because it was related to an examination not for the benefit of Hayes Knight falls away.


case_text: Non-judicial functions may be conferred as an incident of judicial power. As was said in R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10 ; (1956) 94 CLR 254 at 278: '... it must not be forgotten that s 51(xxxix) expressly empowers the Parliament to make laws with respect to matters incidental to the execution of any power vested by the Constitution in the federal judicature. What belongs to the judicial power or is incidental or ancillary to it cannot be determined except by ascertaining if it has a sufficient relation to the principal or judicial function or purpose to which it may be thought to be accessory.' More recently in Re Tracey; Ex parte Ryan [1989] HCA 12 ; (1989) 166 CLR 518 Deane J observed (at 580): 'The Executive Government cannot absorb or be amalgamated with the judicature by the conferral of non-ancillary executive functions upon the courts.'


case_title: Re Tracey; Ex parte Ryan [1989] HCA 12 ; (1989) 166 CLR 518


case_text: When a regulatory body or authority such as ASIC or the Australian Competition and Consumer Commission or the Commissioner of Taxation is given such a power it is a power to investigate not to decide in the sense that a court decides when it gives judgment upon a matter before it: Huddart Parker & Co Pty Ltd v Moorehead at 358 (Griffiths CJ), 380 (O'Connor J), 384 (Isaacs J), 418 (Higgins J); Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission [1982] HCA 65 ; (1982) 152 CLR 460. The latter case concerned s 155 of the Trade Practices Act conferring power on the Chairman of the Trade Practices Commission to orally examine persons or require production of documents relevant to possible contraventions of the Act. The Court held that s 155 did not purport to confer judicial power on the Commission. Mason J made some observations relevant to the distinction between the exercise of an investigative power which may lead to subsequent judicial proceedings but nevertheless remains administrative and the exercise of an administrative power as an incident of judicial power. He said (at 471 - 472): 'The absence in s 155 of any power to decide or determine a dispute between parties the central element in the exercise of judicial power might be thought to be an overwhelming answer to the argument that there is an attempt to confer judicial power on the Commission. However, it is suggested that if the Commission requires information to be given for the purpose of obtaining evidence in a matter before the Court then it is exercising judicial power. According to Holmes J in Prentis v Atlantic Coastline [(1908) 211 US 210 at p 227], "The nature of the final act determines the nature of the previous inquiry". But this does not mean that because the determination ultimately made by the Federal Court in proceedings in respect of a contravention of the Act is an exercise of judicial power the issue and service of the notices is itself such an exercise. Holmes J was merely saying that the character of the order or final decision made by a tribunal will determine the character of the inquiry which precedes its decision, so that if its determination is a judicial order then its inquiry will constitute an exercise of judicial power. R v Davison [(1954) [1954] HCA 46 ; 90 CLR 353] was just such a case. This is not to say that it is legitimate to characterize the nature of the power exercised by the Commission under s 155 by reference to the judicial power which the Court exercises when it hears proceedings for a penalty under the Act. What the Commission does will produce information which may be presented in evidence by a party in proceedings in respect of a contravention under the Act, but this is no basis for saying that there is an exercise of judicial power on the part of the Commission. The exercise of a power to compel the provision of information is not inherently such an exercise. It may constitute an element in the exercise of judicial power when the power is part of the proceedings of the court, its object being to aid the court or the parties to obtain and present evidence in those proceedings. Then the exercise of the power by the court or the parties in proceedings in the court is for the purpose of enabling the court to hear and determine the lis and is, accordingly, incidental to, if not an element in, the exercise of judicial power.' See also Kluver and Woellner , Powers of Investigation in Revenue, Companies and Trade Practices Law (Butterworths, 1983, [102] - [103])


case_title: Re Monadelphous Engineering Associates (NZ) Ltd (in liq); ex parte McDonald and Watson (1989) 7 ACLC 220

case_text: In Re Monadelphous Engineering Associates (NZ) Ltd (in liq) ; ex parte McDonald and Watson (1989) 7 ACLC 220 Northrop J referred to the investigative character of the examination procedure under s 541 of the Companies (Victoria) Code and said it was "inappropriate" for a judge of the Federal Court to conduct such a process (at 225-226): '... examination is not a court hearing in the true sense. It is not the exercise of judicial power. It is part of an investigative procedure ... In my opinion it would not be appropriate for a Judge of the Federal Court to conduct examinations of an investigatory nature, and not truly judicial.' He transferred the matter, which was an application by a liquidator, to the Supreme Court of Victoria. The same characterisation of the examination process was made by the Full Court of the Supreme Court of Victoria in Friedrich v Herald & Weekly Times Ltd [1990] VR 995 at 1003: '... essentially this procedure is administrative and does not result in judicial decisions as to any parties' rights, except decisions as to the manner in which the examination itself should be conducted.'


case_title: Friedrich v Herald & Weekly Times Ltd [1990] VR 995


case_text: Gaudron J held that Ch III would preclude conferral on the Federal Court of a non-judicial examinations power "not confined to examination by a court which has exercised or is exercising jurisdiction to make an order for the winding up of corporations" (405). However there was nothing to prevent the Commonwealth from conferring power of that kind on the Supreme Court of the Australian Capital Territory (405). Reference should be made in that regard to the developing jurisprudence about the interaction of Ch III and the Territories' power in Spratt v Hermes [1965] HCA 66 ; (1965) 114 CLR 226; Capital TV and Appliances Pty Ltd v Falconer [1971] HCA 10 ; (1971) 125 CLR 591; Re Governor, Goulburn Correctional Centre; Ex parte Eastman [1999] HCA 44 ; (1999) 165 ALR 171 and in the joint judgment of Black CJ and Hely J in North Australian Aboriginal Legal Aid Service Inc v Bradley [2002] FCAFC 297 ; (2002) 122 FCR 204 at [106] [133].


case_title: Capital TV and Appliances Pty Ltd v Falconer [1971] HCA 10 ; (1971) 125 CLR 591


case_title: Spinks v Prentice (1998) 87 FCR 89

case_text: Spinks v Prentice (1998) 87 FCR 89 was one of a group of appeals decided in conjunction with Re Wakim . It was an appeal from the Full Court of the Federal Court with respect to an order for examination of former officers of a company in liquidation. The company was taken to be incorporated in the Australian Capital Territory. The Full Court held that the Corporations Act 1989 (Cth), which applied the Corporations Law to the ACT, validly conferred jurisdiction on the Federal Court to entertain the application for an examination summons. The examination orders were also challenged before the Full Court on the basis that they did not involve an exercise of judicial power. As to that the Court said (at 96): 'It is true that, although there is no challenge to the winding up order made here, s 596A would permit an examination where there has been no winding up. But given the long history of courts exercising such powers, we can see nothing foreign to the exercise of judicial power in this aspect of s 596A.' They referred to the Compass Airlines and Grosvenor Hall cases. It is not clear, given the absence of any long history of judicial examination of corporations at large unrelated to winding up or other judicial procedures, whether their Honours were saying that applications under s 596A when there was no winding up order or pending court proceedings were an exercise of judicial power. To the extent that they were so saying, their observations were dicta. 105 In the High Court, on appeal from the Full Federal Court in Spinks v Prentice , Gummow and Hayne JJ noted that it had not been contended that the power to order the examination of witnesses and the production of documents for the purposes of a winding up and to supervise the conduct of the examination was otherwise than in the exercise of a function incidental to the exercise of judicial power. Their Honours did not think it appropriate to express any view on the validity of provisions conferring jurisdiction on the Federal Court to make orders under Pt 5.9 save for those immediately in question. On that point Kirby J agreed with them (619).


case_title: Re Governor, Goulburn Correctional Centre; Ex parte Eastman [1999] HCA 44 ; (1999) 165 ALR 171


case_title: North Australian Aboriginal Legal Aid Service Inc v Bradley [2002] FCAFC 297 ; (2002) 122 FCR 204


case_text: Divorced from association with a judicial proceeding nothing about the examination power under the Corporations Act marks it as judicial in character. It lacks the core elements of the judicial process such as the finding of facts, the making of value judgments and binding determinations as to legal rights and obligations. There are of course, functions, which can be viewed as administrative or judicial depending upon the body that discharges them: Federal Commissioner of Taxation v Munro [1926] HCA 58 ; (1926) 38 CLR 153 at 175-179; Cominos v Cominos [1972] HCA 54 ; (1972) 127 CLR 588 at 599, 605 and 606; R v Quinn ; Ex parte Consolidated Foods Corporation [1977] HCA 62 ; (1977) 138 CLR 1 at 6. It is nevertheless a necessary condition of the attribution of this "chameleon" status to a particular function that it be capable of constituting an exercise of judicial power.


case_title: Cominos v Cominos [1972] HCA 54 ; (1972) 127 CLR 588


case_title: R v Quinn; Ex parte Consolidated Foods Corporation [1977] HCA 62 ; (1977) 138 CLR 1


case_text: The examination power taken alone, in the sense used above, is not an exercise of judicial power nor, taken alone, is it judicial when exercised by a court. It can only be accommodated within the exercise of judicial power if incidental to it or justified by historical usage. An examination ordered in aid of the implementation of a winding up order made by a court can be seen as incidental to the exercise of judicial power and has long been accepted as such, at least implicitly if not explicitly, on that basis. On the other hand an examination which is "free standing" in the sense that it is exercised without reference to any pending proceeding does not fall within the scope of the judicial power unless it can be characterised as judicial on the basis that it is a function which courts have long carried out. The historical incidence of investigative functions exercised by courts was referred to in Dalton v New South Wales Crime Commission [2006] HCA 17 ; (2006) 226 ALR 570. That case concerned the validity of s 76 of the Service and Execution of Process Act 1992 (Cth). The section empowers the Supreme Court of a State, in which a subpoena is issued by a tribunal for a person to give evidence before the tribunal, to give leave to serve the subpoena out of the State. It was submitted in the High Court that the exercise by the Courts of investigative functions did not occasion or support the issue and service of process under s 51(xxiv) of the Constitution . There was therefore said to be no foundation for an analogical extension in respect of the investigative functions of tribunals. To the extent that this argument involved a denial of the investigative function of courts it was rejected in the joint judgment of Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ. Their Honours said (at [45]): 'From a time well before federation, the courts of the Australian colonies, like those in England and elsewhere in the Empire, exercised a range of administrative and investigative functions. Provisions for the examination of judgment debtors, bankrupts, and officers of failed corporations are in point. In Cheney v Spooner [(1929) [1929] HCA 12 ; 41 CLR 532] this court upheld the application of the 1901 Act to an order by the Supreme Court of New South Wales under ss 123 and 124 of the Companies Act 1899 (NSW) which gave leave to the liquidator of a company in voluntary liquidation to summons a number of persons to attend for examination by the Master in Equity. The equity jurisdiction of the Supreme Courts with respect to bills of discovery (or preliminary discovery in more recent parlance) provides another instance of an investigative procedure. So also the courts of marine inquiry established in the Australian colonies. Likewise the next of kin inquiry in an administration suit, conducted in New South Wales by the master in equity. Further, the 1901 Act, as King CJ pointed out in [ Alliance Petroleum Australia NL v Australian Gaslight Co (1983) 34 SASR 215 at 236], applied to subpoenas and summonses issued by coroners.'


case_outcome: applied

case_text: Where a claim relates to operational service, as the applicant's claim did, the standard of proof to be applied to the question whether an injury or disease is war-caused is prescribed by subss 120(1) and (3) of the Act. Those provisions are applied in the manner explained by the High Court in Byrnes v Repatriation Commission [1993] HCA 51 ; (1993) 177 CLR 564 at 571 and may be summarised as follows: (1) The threshold question is posed by subs 120(3) namely, whether the whole of the material before the decision-maker raises a reasonable hypothesis connecting the veteran's injury or disease with the circumstances of his service. The question whether the material raises a reasonable hypothesis of that kind does not involve the finding of any facts relating to the veteran's service or relating to any connection between that service and the relevant injury or disease. (2) If the material does raise such a reasonable hypothesis, the decision-maker proceeds to the question posed by subs 120(1) namely, is the decision-maker satisfied beyond reasonable doubt that the facts required to connect the veteran's injury or disease with his service were not present or were displaced by other facts. It is only at this stage that the Tribunal finds any facts. 12 Subsection 120(3) 'is affected by s 120A'; and, according to subs 120A(1), s 120A applies to a claim under Part II of the Act made on or after 1 June 1994 that relates to operational service rendered by a veteran. The applicant's claim was such a claim.


case_text: The appeal focuses on the alleged failure of the Tribunal to approach the question whether the applicant's CP was war-caused in the manner prescribed by subss 120(1) and (3) and 120A(3) of the Veterans' Entitlements Act 1986 (Cth) ('the Act'), as explained in the authorities, including Repatriation Commission v Deledio [1998] FCA 391 ; (1998) 83 FCR 82 ; Repatriation Commission v Cornelius [2002] FCA 750 ; Meehan v Repatriation Commission (2002) 35 AAR 353 ; Lees v Repatriation Commission [2002] FCAFC 398 ; (2002) 125 FCR 331 ; and Hardman v Repatriation Commission [2005] FCAFC 83. In particular, the applicant contends that the Tribunal erred in law by: (1) Treating clinical onset of CP as requiring the contemporaneous diagnosis of CP ground 4(i); (2) impermissible fact-finding at the reasonable hypothesis stage that one of the elements required to raise a reasonable hypothesis connecting CP with the applicant's war service (clinical onset of CP within six months of direct trauma to the patella) did not occur within the prescribed time ground 4(ii); and (3) rejecting the alternative hypothesis (of inability to obtain appropriate clinical management in Vietnam for pre-existing CP) on the basis of impermissible fact-finding that the applicant's CP did not have its clinical onset until after his operational service grounds 4(iii) and 4(iv).


case_text: The appeal focuses on the alleged failure of the Tribunal to approach the question whether the applicant's CP was war-caused in the manner prescribed by subss 120(1) and (3) and 120A(3) of the Veterans' Entitlements Act 1986 (Cth) ('the Act'), as explained in the authorities, including Repatriation Commission v Deledio [1998] FCA 391 ; (1998) 83 FCR 82 ; Repatriation Commission v Cornelius [2002] FCA 750 ; Meehan v Repatriation Commission (2002) 35 AAR 353 ; Lees v Repatriation Commission [2002] FCAFC 398 ; (2002) 125 FCR 331 ; and Hardman v Repatriation Commission [2005] FCAFC 83. In particular, the applicant contends that the Tribunal erred in law by: (1) Treating clinical onset of CP as requiring the contemporaneous diagnosis of CP ground 4(i); (2) impermissible fact-finding at the reasonable hypothesis stage that one of the elements required to raise a reasonable hypothesis connecting CP with the applicant's war service (clinical onset of CP within six months of direct trauma to the patella) did not occur within the prescribed time ground 4(ii); and (3) rejecting the alternative hypothesis (of inability to obtain appropriate clinical management in Vietnam for pre-existing CP) on the basis of impermissible fact-finding that the applicant's CP did not have its clinical onset until after his operational service grounds 4(iii) and 4(iv). 33 The Tribunal then referred to the meaning of 'clinical onset' considered by the Full Court in Lees v Repatriation Commission [2002] FCAFC 398 ; (2002) 125 FCR 331 , referring to the analysis of the Tribunal in Re Robertson v Repatriation Commission (1998) 50 ALD 668 , in which Senior Member Dwyer concluded at 670 that: '... there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.' and noted this analysis was specifically endorsed by Branson J in Cornelius at [26].


case_title: Meehan v Repatriation Commission (2002) 35 AAR 353


case_text: The Tribunal then referred to the meaning of 'clinical onset' considered by the Full Court in Lees v Repatriation Commission [2002] FCAFC 398 ; (2002) 125 FCR 331 , referring to the analysis of the Tribunal in Re Robertson v Repatriation Commission (1998) 50 ALD 668 , in which Senior Member Dwyer concluded at 670 that: '... there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.' and noted this analysis was specifically endorsed by Branson J in Cornelius at [26].


case_title: Repatriation Commission v Cornelius [2002] FCA 750


case_text: The appeal focuses on the alleged failure of the Tribunal to approach the question whether the applicant's CP was war-caused in the manner prescribed by subss 120(1) and (3) and 120A(3) of the Veterans' Entitlements Act 1986 (Cth) ('the Act'), as explained in the authorities, including Repatriation Commission v Deledio [1998] FCA 391 ; (1998) 83 FCR 82 ; Repatriation Commission v Cornelius [2002] FCA 750 ; Meehan v Repatriation Commission (2002) 35 AAR 353 ; Lees v Repatriation Commission [2002] FCAFC 398 ; (2002) 125 FCR 331 ; and Hardman v Repatriation Commission [2005] FCAFC 83. In particular, the applicant contends that the Tribunal erred in law by: (1) Treating clinical onset of CP as requiring the contemporaneous diagnosis of CP ground 4(i); (2) impermissible fact-finding at the reasonable hypothesis stage that one of the elements required to raise a reasonable hypothesis connecting CP with the applicant's war service (clinical onset of CP within six months of direct trauma to the patella) did not occur within the prescribed time ground 4(ii); and (3) rejecting the alternative hypothesis (of inability to obtain appropriate clinical management in Vietnam for pre-existing CP) on the basis of impermissible fact-finding that the applicant's CP did not have its clinical onset until after his operational service grounds 4(iii) and 4(iv). 13 Subsection 120A(3) of the Act relevantly provides that a hypothesis connecting a person's injury or disease with the circumstances of any particular service rendered by the person is reasonable only if there is in force a Statement of Principles that upholds the hypothesis. That is, the hypothesis raised by the material will only be reasonable if the hypothesis is consistent with, or fits the template of, the Statement of Principles: see Deledio at 96, endorsing the observations of Heerey J at first instance in Deledio v Repatriation Commission (1997) 47 ALD 261 at 275. 14 The method by which subss 120(1), 120(3) and 120A(3) are applied was explained in Deledio at 97 98, to which the Tribunal referred at [33] [35]. The threshold question remains whether the material before the decision-maker points to an hypothesis of connection between (in the case of a claim in respect of a veteran's injury or disease) the injury or disease and the particular circumstances of the veteran's service. Subsection 120A(3) adds the additional requirement that the hypothesis must be upheld by the SoP made under subs 196B(2) of the Act for the kind of injury suffered or disease contracted by the veteran. 26 Consistent with the first step in Deledio at 97, the Tribunal considered all the material before it and found at [33] of its reasons that that material '... raises a reasonable hypothesis connecting Mr Riley's CP with his war service within the meaning of subs 120(3) of the Act'. 27 The Tribunal then proceeded to the second Deledio step and found at [34] that there is an SoP in force in respect of the relevant injury, which it identified as Instrument No. 33 of 2001. 28 The Tribunal then turned to the third Deledio step in 'determining whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoP'. The Tribunal at [35] said: 'This step involves considering all of the material before me, but without making any findings of fact at this stage of the process. If the evidence taken as a whole does not fit within the relevant SoP factors, then any hypothesis would not be reasonable: section 120A(3). The claim would therefore not be successful.' 29 The Tribunal then proceeded to 'determine' when the clinical onset (or clinical worsening) of the condition occurred because, in its words '... in respect of all of the relevant factors with the exception of factor 5(h) it is essential ...' (at [36]). 30 At [37] the Tribunal reasoned that because the precise dates of the incidents in Vietnam are unclear, the most generous interpretation of the date of the incidents, being the date the applicant ceased operational service in May 1967, the clinical onset (or worsening) would need to have occurred by November 1967. 44 The applicant's complaint appears to be with the Tribunal's use of the expression 'determine' in [36] of its reasons. He suggests that the expression 'determine' means that the Tribunal embarked on impermissible fact-finding. I do not agree. I agree with the Commission's short answer, that the Tribunal was simply acknowledging that, in terms of the third step in Deledio , it was required to 'form an opinion' and that the expression 'determine', in the context of the Tribunal's understanding that its task was not to find facts (at [35]), meant no more than forming an opinion. 45 The Tribunal, at [45] (second) and [46] (second) of its reasons, was doing no more than setting out the process by which it formed the opinion that the hypotheses were not reasonable by reference to factors 5(a), 5(b) and 5(e) of the SoP. It was not, despite the use of the word 'find' in [46] (second), involved in an exercise in fact-finding, specifically, as to the time when the applicant experienced clinical onset of his CP, outside the process of forming that opinion. 46 Nor was the Tribunal involved in resolving possible conflicts in the evidence because there were none. The Tribunal's non-acceptance of the evidence of Dr Giblin referred to at [45] (second) of its reasons was not by way of preferring the evidence of another practitioner; rather, it was by reference to the accepted definition of clinical onset referred to in [33] above.


case_text: In Repatriation Commission v Hill [2002] FCAFC 192 ; (2002) 69 ALD 581 , a Full Court (Black CJ, Drummond and Kenny JJ) said that the function of the Statement of Principles is to prescribe the essential content of what is a reasonable hypothesis, for subs 120(3) purposes, capable of connecting the particular kind of injury, disease or death with the circumstances of the veteran's particular service. In order to satisfy subss 120(3) and 120A(3) of the Act, an hypothesis relied on by a dependent of a veteran to support a pension claim must be supported by material pointing to each element that the Statement of Principles makes essential for the hypothesis to be reasonable. The Court said at [57] [58]: 'Whatever the situation may have been in relation to claims before 1 June 1994, the effect of s 120A(3) (where there is an SoP under s 196B(2)) is that a hypothesis is reasonable only if it is upheld by the SoP. Pursuant to s 196B(2), the SoP must set out "the factors that must as a minimum exist" and "which of those factors must be related to service". The result is that, where it applies, the SoP prescribes the essential content of what is a reasonable hypothesis, for s 120(3) purposes, capable of connecting the particular kind of injury, diseases or death with the circumstances of a veteran's particular service. In order to satisfy ss 120(3) and 120A(3), a hypothesis relied on by a veteran to support a pension claim must be supported by material pointing to each element that the SoP makes essential for the hypothesis to be reasonable. In order for Mr Hill to succeed, the hypothesis raised by the material before the Tribunal had to fit the template set out in the PTSD SoP. ...' (Emphasis added) 16 At the time of the decision and of the Tribunal's decision, there was in force a Statement of Principles concerning CP, No. 33 of 2001 ('the SoP'). Clause 4 of the SoP provides that one of the factors set out in cl 5 of the SoP must be related to any relevant service rendered by the person. 17 The applicant relied on factors 5(a), (b) and (h) in the SoP (presumably for both knees): '(5)(a) "suffering direct trauma to the patella of the affected knee within the six months immediately before the clinical onset of chondromalacia patellae;" (5)(b) "suffering an injury to the affected knee resulting in meniscal damage or permanent ligamentous instability within the six months immediately before the clinical onset of chondromalacia patella ..." (5)(h) "inability to obtain appropriate clinical management for chondromalacia patellae."' In the alternative, the applicant relied on factor 5(e) in relation to his right knee: '(5)(e) "suffering direct trauma to the patella of the affected knee within the six months immediately before the clinical worsening of chondromalacia patellae ..."'


case_text: The test for reasonable apprehension of bias in 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" that is to be decided; see Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at [27] . See also Antoun v The Queen [2006] HCA 2 ; (2006) 224 ALR 51 at [51] ; Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at [6] .


case_text: The observations of O'Connor J in Al Abdullatif Industrial Group Co Ltd v Minister for Justice and Customs [2000] FCA 758 at [22] are to the same effect. Her Honour pointed out that in many cases, an implied duty to investigate each avenue suggested by an interested party would make the statutory scheme unworkable. 205 It is plain from the passages of the Trade Measures Report which I have set out at [80]-[85], [97] and [100] that the CEO did investigate the relative significance of price to other factors and that he made findings as to the existence of the necessary causal link. 206 However, Schaefer submitted that the CEO breached the duty to investigate by failing to make further enquiries, in particular to ask further questions as to the relative significance of price to other factors.


case_text: The CEO is required by s 269TEA(5)(b) of the Act to provide particulars of the evidence relied on in support of the findings. But it is not necessary for him to refer to every piece of evidence put before him; the Court will infer that matters not mentioned were not considered to be material; see Yusuf at [69]; see also Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46].


case_text: The difficulty was illustrated at a practical level because, apart from contending that there was a duty to ask further questions, Dr Flick was unable to formulate the particular questions which Customs ought to have asked. This is hardly surprising. Once it is determined that the decision-maker has asked himself/herself the correct question, how can the Court determine what particular questions the repository of the power ought to ask to complete the exercise of jurisdiction? To do so may well be to cross the limits of judicial intervention delineated by Brennan J in Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35-36.


case_outcome: followed

case_text: The authorities confine the duty to investigate to rare and exceptional circumstances. It is limited to cases where it is obvious that material is readily available that is centrally relevant to the decision; see Prasad at 169-170; Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 558-559, 561; Luu v Renevier (1989) 91 ALR 39 at 50; Azzi v Minister for Immigration and Multicultural Affairs [2002] FCA 24 ; (2002) 120 FCR 48 at [102] - [112] .


case_text: The duty to hold an investigation under Part XVB does not impose upon Customs an obligation to itself investigate and ascertain all relevant facts; it is a duty to investigate within the statutory framework and the CEO is entitled to rely primarily on submissions received from interested parties; see C A Ford Pty Ltd v Comptroller-General of Customs (1993) 46 FCR 443 at 447 per Davies J. 200 That is not to say that the CEO's duty to investigate is limited entirely to a consideration of the application and the submission of interested parties. Clearly enough, the Act imposes a duty to carry out an investigation. There are numerous references to it; see for example ss 269TC(4)(e), 269TDAA(1) and 269TEA(1). 201 As may be expected, the Act does not direct the CEO as to how to conduct the investigation. It leaves to the CEO/Minister the task of reaching the necessary state of satisfaction having regard to the matters he or she may, or in certain instances must, take into account; ss 269TAE(1), 269TAE(2A), 269TE(2) and 269TG(1).


case_text: To the extent that Dr Flick's submissions rested upon the proposition that the CEO is required to expose his or her reasoning in advance of the provision of the report to the Minister under s 269TEA, this would be contrary to well-established authority; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592. See also Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212.


case_title: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337


case_text: This test was applied by the Full Court in Fraser and by other Full Courts in Enichem Anic Srl v Anti-Dumping Authority (1992) 39 FCR 458 at 470 and Minister for Small Business, Construction and Customs v La Doria di Diodata Ferraiolli SPA (1994) 33 ALD 35 at 48. It has also been applied by single judges; see Mullins Wheels Pty Ltd v Minister for Customs and Consumer Affairs (1999) 166 ALR 449 at [18], [21]; N.V. Beaulieu Real v Minister for Justice and Customs ("N.V. Beaulieu Real") [2002] FCA 467 at [50] ; affirmed on appeal [2002] FCAFC 339. 203 It is true, as Hill J observed in Enichem at 469, that decision-making is a "function of the real world". His Honour pointed out that a decision-maker is not bound to investigate each avenue that may be suggested to him/her by an interested party; ultimately, the decision-maker must do the best he or she can on the material available after giving interested parties the right to be heard. Gummow and O'Connor JJ agreed with Hill J.


case_outcome: distinguished

case_title: GTE (Aust) Pty Ltd v Brown (1986) 14 FCR 309

case_text: Dr Flick sought to overcome this difficulty by referring to the decision of Burchett J in GTE (Aust) Pty Ltd v Brown ("Brown's case") (1986) 14 FCR 309 at 337. He submitted that this was authority for the proposition that a statement of essential facts which omitted material facts known to the CEO must create a materially inaccurate impression to the Minister which was reviewable under ss 5(2)(a) and 5 (2)(g) of the ADJR Act . 140 However, Brown's case was decided under a different statutory scheme to that which is now applicable. The observations to which Dr Flick pointed have no application to the provisions of s 269TDAA in their present form.


case_title: ICI Australia Operations Pty Limited Ltd v Fraser (1992) 34 FCR 564

case_text: The subject matter of the enquiry which the CEO/Minister must make under s 269TAE(1), read with s 269TG(1), is material injury to an Australian industry that is causally connected to, "by reason of" or "because of", dumping; see ICI Australia Operations Pty Ltd v Fraser (1992) 34 FCR 564 at 571. 148 This test was applied by the Full Court in Fraser and by other Full Courts in Enichem Anic Srl v Anti-Dumping Authority (1992) 39 FCR 458 at 470 and Minister for Small Business, Construction and Customs v La Doria di Diodata Ferraiolli SPA (1994) 33 ALD 35 at 48. It has also been applied by single judges; see Mullins Wheels Pty Ltd v Minister for Customs and Consumer Affairs (1999) 166 ALR 449 at [18], [21]; N.V. Beaulieu Real v Minister for Justice and Customs ("N.V. Beaulieu Real") [2002] FCA 467 at [50] ; affirmed on appeal [2002] FCAFC 339. 202 After holding an investigation, the CEO must make a recommendation as to whether the Minister ought to be satisfied of the necessary causal link; s 269TEA(1)(d). The question is one ultimately for the Minister having regard to the matters relevant to the determination of material injury and causation; see Fraser at 571.


case_text: A similar discretion exits to refuse a claim for relief under the ADJR Act ; see Kamha v Australian Prudential Regulation Authority [2005] FCAFC 248 ; (2005) 147 FCR 516 at [87] . 286 Since I have come to the view that Schaefer has failed to make out a claim for judicial review, the question of discretion does not arise. 287 The orders I will make are that the application be dismissed with costs. I certify that the preceding two hundred and eighty-seven (287) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Date: 29 November 2006 Counsel for the Applicant: G Flick SC with M Izzo Solicitor for the Applicant: Moulis Legal Counsel for the Respondents: S Gageler SC with S Lloyd Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 28-29 August 2006 Date of Judgment: 29 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1644.html


case_title: Luu v Renevier (1989) 91 ALR 39

case_text: The authorities confine the duty to investigate to rare and exceptional circumstances. It is limited to cases where it is obvious that material is readily available that is centrally relevant to the decision; see Prasad at 169-170; Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 558-559, 561; Luu v Renevier (1989) 91 ALR 39 at 50; Azzi v Minister for Immigration and Multicultural Affairs [2002] FCA 24 ; (2002) 120 FCR 48 at [102] - [112] . 211 Indeed, as the Full Court said in Luu v Renevier at 50, the underlying rationale for the duty to investigate is the ground of unreasonableness; see also Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273 at 290.


case_text: However, I do not think it is a question of parsing and analysing these passages to criticise what may be thought to be contestable fact finding. Subject to any questions of unreasonableness or perversity, it was a matter for the CEO as to what weight he was to give to the various considerations to be taken into account; Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24 at 41-42. 158 The findings in Chapters 7, 8 and 9 of the Trade Measures Report pave the way for a consideration of the question of causation which is dealt with in Chapter 10. That chapter opens by stating that it considers whether there is a "causal link" between the dumped MGBs and the injury suffered by the Australian industry and whether the injury is material. This is a further clear statement of the question which the CEO was required to address. 159 The chapter contains findings of material injury including the loss of approximately 213,000 units representing 8% of the total market, as well as price depression of about 8% in the market for 120 litre MGBs.


case_title: Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553


case_text: But that is not to make immune from judicial intervention the CEO's decision as to the existence of a causal link. In my view, what really underlies Dr Flick's attack on the decision is that it was based on findings or inferences of fact that were not supported by probative material or logical grounds; see Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at [145] ; Re Minister For Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59. 220 I do not consider that these findings were so unreasonable that no reasonable authority could have arrived at them; see Eshetu at [136]; Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-119. 221 The CEO was not bound to accept the contractor's statement. Of course, a different fact finder may have reached a different view. But, as Gummow J said in Eshetu at [137]: ... where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way. 222 I do not consider that the evidence was all one way. It was open for the CEO to find that, notwithstanding the contractor's stated views, the position would have been different if the MGBs were offered at undumped prices. 223 Dr Flick submitted that the omission of the confidential material from the SEF, the Report and the public site visit report for Coffs indicated perversity on the part of the CEO. He submitted that s 269ZJ(4) cannot be construed so as to confer upon Customs a power to select from the information which it has been told and to exclude from the public record other information of which it is aware.


case_text: In order to make out a finding of actual bias, an applicant must demonstrate that the decision-maker was guilty of pre-judgment. He or she must be committed to a conclusion, and not open to a contrary view, whatever arguments or evidence may be presented; see Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 ; (2001) 205 CLR 507 at [71] - [72] ; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [36] .


case_text: Section 269TEA(5) of the Act is in similar terms to s 430(1)(c) and (d) of the Migration Act 1958 (Cth). Thus, the CEO is only required to set out in the report to the Minister the findings which he did make; he is not required to set out findings additional to those which he actually made. What is required is the material findings of fact which the CEO actually made and upon which he based his recommendation; see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at [67] - [68] . 166 The CEO is required by s 269TEA(5)(b) of the Act to provide particulars of the evidence relied on in support of the findings. But it is not necessary for him to refer to every piece of evidence put before him; the Court will infer that matters not mentioned were not considered to be material; see Yusuf at [69]; see also Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46]. 169 However, Schaefer's approach to construction is contrary to that which is laid down by the High Court in Yusuf . The Report contains the findings the CEO did make on these facts. He is not required to go further. He is required only to make recommendations and set out his material findings on which the recommendations were based. He is not required to provide the Minister with competing interpretations of the evidence so as to allow the Minister to make the ultimate decision. 170 That is not the scheme of Part XVB. What is required is the CEO's recommendation and findings. The Minister is not bound to accept the recommendation. He or she is required to reach the state of satisfaction as to whether dumping caused material injury as provided in s 269TG. 171 The effect of this ground, as argued by Schaefer, is that the finding of causation cannot be supported because the CEO did not disclose material facts known to him as to the reasons why the tenders were successful. Alternatively, it was submitted that, in light of the primary materials, the CEO's findings as to the importance of price were stated in a misleading way.


case_text: This test was applied by the Full Court in Fraser and by other Full Courts in Enichem Anic Srl v Anti-Dumping Authority (1992) 39 FCR 458 at 470 and Minister for Small Business, Construction and Customs v La Doria di Diodata Ferraiolli SPA (1994) 33 ALD 35 at 48. It has also been applied by single judges; see Mullins Wheels Pty Ltd v Minister for Customs and Consumer Affairs (1999) 166 ALR 449 at [18], [21]; N.V. Beaulieu Real v Minister for Justice and Customs ("N.V. Beaulieu Real") [2002] FCA 467 at [50] ; affirmed on appeal [2002] FCAFC 339.


case_text: Indeed, as the Full Court said in Luu v Renevier at 50, the underlying rationale for the duty to investigate is the ground of unreasonableness; see also Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273 at 290.


case_text: This test was applied by the Full Court in Fraser and by other Full Courts in Enichem Anic Srl v Anti-Dumping Authority (1992) 39 FCR 458 at 470 and Minister for Small Business, Construction and Customs v La Doria di Diodata Ferraiolli SPA (1994) 33 ALD 35 at 48. It has also been applied by single judges; see Mullins Wheels Pty Ltd v Minister for Customs and Consumer Affairs (1999) 166 ALR 449 at [18], [21]; N.V. Beaulieu Real v Minister for Justice and Customs ("N.V. Beaulieu Real") [2002] FCA 467 at [50] ; affirmed on appeal [2002] FCAFC 339. 149 Moreover, the authorities referred to in the previous paragraphs establish that the determination is one of fact and degree; see eg Mullins at [20], Swan at 145.


case_text: An alternative way in which the case was apparently put was that the finding of causation was so much against the weight of evidence as to be arbitrary, perverse or capricious; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [130]-[135]. 215 There are two separate strands to the argument. The first is that the information provided by some of the councils, eg Canterbury, pointed to price and non-price factors without differentiating between the relative importance of those factors. Thus, it was said to be irrational, perverse or unreasonable to make a finding of causation without knowing more about those factors. 216 The second strand is that for a number of the councils, most notably Eurobodalla and Coffs Coast, there was material in the site visit reports which clearly stated the contractor's view that price was not determinative. I will deal with this strand of the argument first.


case_title: N.V. Beaulieu Real v Minister for Justice and Customs [2002] FCA 467


case_title: N.V. Beaulieu Real v Minister for Justice and Customs [2002] FCAFC 339


case_text: The Act provides for a multi-staged fact finding and decision-making process which is intended to treat all interested parties fairly, giving them an opportunity to comment on facts proposed to be relied upon by the CEO as the basis for his or her recommendation to the Minister; Pilkington (Australia) Ltd v Minister of State for Justice and Customs [2002] FCAFC 423 ; (2002) 127 FCR 92 at [56] . 6 One of the steps in the process is for the CEO to place on public record a statement of essential facts, usually described by the acronym "SEF". The SEF is to contain a statement of the facts on which the CEO proposes to base a recommendation to the Minister as to whether or not to impose duties; see s 269TDAA. 7 A further step in the process is for the CEO, after holding an investigation into the application, to report to the Minister. The report is to recommend, amongst other things, whether the Minister ought to be satisfied as to the necessary matters before publishing a dumping notice; s 269TEA. 23 The provisions of Part XVB were fully explained in Pilkington at [29]-[75]. I will not repeat what was said but I will endeavour to summarise or set out the provisions salient to these proceedings. Amendments made to the Act since 2002 are not material for present purposes. 24 Divisions 1, 2 and 3 of Part XVB deal with the preliminary and procedural matters leading to a decision by the Minister whether to publish a dumping duty notice; s 269SM(3). 25 An investigation about dumping may be initiated by an application lodged with Customs under s 269TB. 29 The Act lays down tight time-frames within which the process prescribed in Divs 1 and 2 of Part XVB is to move forward; Pilkington at [43]. 30 Within 20 days after Customs receives an application under s 269TB(1), the CEO must examine it and must reject it if not satisfied of the matters stated in s 269TC(1) and (2). 31 If the CEO decides not to reject an application within that period, he or she must give public notice of acceptance of the application; s 269TC(4). 42 Section 269ZJ of the Act gives effect to Australia's obligations under agreements negotiated in the Uruguay Round of the General Agreement on Tariffs and Trade (GATT). The agreements provided for a formalisation and expansion of the public file system to give interested parties an opportunity to comment on information available to investigating authorities; Pilkington at [22]. Section 269ZJ provides, relevantly: Section 269ZJ CEO to maintain public record for certain purposes (1) The CEO must, in relation to each application received under section 269TB that leads to an investigation, each application or request under section 269ZA that leads to a review and each application under section 269ZHB that leads to an inquiry: (a) maintain a public record of the investigation, review or inquiry conducted for the purposes of the application or request, containing, subject to subsection (2), a copy of all submissions from interested parties, the statement of essential facts compiled in respect of that investigation, review or inquiry, and a copy of all relevant correspondence between the CEO and other persons; and (b) draw the attention of all interested parties to the existence of the public record, and to their entitlement to inspect that record; and (c) at the request of an interested party, make the record available to that party for inspection. (2) To the extent that information given to the CEO by a person is claimed to be confidential or to be information whose publication would adversely affect a person's business or commercial interests, the person giving that information must ensure that a summary of that information: (a) that contains sufficient detail to allow a reasonable understanding of the substance of the information; but (b) that does not breach that confidentiality or adversely affect those interests; is given to the CEO for inclusion in the public record. (3) A person is not required to give the CEO a summary of information under subsection (2) for inclusion in the public record if the person satisfies the CEO that there is no way such a summary can be given to allow a reasonable understanding of the substance of the information. (4) If oral information is given to the CEO by a person, the CEO must not take that information into account unless it is subsequently put in writing by the person or by the CEO and thereby becomes available, subject to considerations of confidentiality and to the need to protect business and commercial interests, as a part of the public record. [...] 43 The purpose, background and proper approach to construction of Part XVB were explained in Pilkington at [19]-[28]. I will summarise the essential points. 44 Part XVB reflects, in substance, amendments to the Act made by legislation passed in 1994 and 1998. I will not repeat the titles of those enactments; Pilkington at [22]. 45 The provisions of the implementation agreement negotiated in the Uruguay Round of the GATT were summarised in Pilkington at [22]. Article VI of that Agreement appears to be the genesis of s 269ZJ of the Act. It provides, inter alia , that, subject to the requirement to protect confidential information, evidence presented in writing by an interested party should be made available promptly to other interested parties. 46 Article VI also provides that oral information is to be taken into account by the authorities only insofar as it is subsequently reproduced in writing and made available to other interested parties. 47 The Second Reading Speech of the Bill, which became the 1998 Act, included a statement set out in Pilkington at [23]. This was that, "throughout an investigation all interested parties must have a full opportunity to see all relevant information, to acquaint themselves with opposing views and to offer rebuttal arguments". 48 The provisions of Part XVB are to be interpreted and applied, as far as the language permits, in accordance with Australia's international obligations; Pilkington at [25]. 49 A broad approach to construction is to be adopted; Pilkington at [26]-[27]. 50 Over a period of about 15 months ending in July 2005, Schaefer won five large Australian contracts for the supply of MGBs. These were with local councils or their contractors as follows: • Ku-ring-gai Collex Pty Limited • Canterbury City Council • Bega Valley Watts Waste • Eurobodalla Staples Waste Removals Pty Limited • Coffs Coast SMS Municipal Services Pty Limited (which uses Handybin Waste Services (Coffs Harbour) Pty Limited, a related company, to supply waste services) 51 On 23 September 2005 Nylex Limited and Sulo MGB Australia Pty Limited lodged an application under s 269TB(1) of the Act requesting the Minister to publish a dumping notice. 133 Two things underlie the legislative scheme. The first is a high level of transparency, with opportunities for interested parties to comment and tender evidence at each relevant stage of the process; see Pilkington at [56]. The second is the formalisation and expansion of the public file system which was intended to make available to interested parties the material which would enable them to defend their interests; see Pilkington at [22]-[23]. 134 These objectives are reflected in particular in ss 269TC(4), 269TDAA(2), 269TEA(3) and 269ZJ(1)-(4). 135 Moreover, s 269TDAA(1) makes it plain that the statement of essential facts is not a report to the Minister upon which the Minister is to make his or her decision. Rather, it is a document which the CEO must place on the public record for the benefit of interested parties. 181 It is true that the apparent purpose of s 269ZJ is to give effect to the policy of transparency which underlies the statutory scheme in Part XVB of the Act. Thus, the CEO's recommendation should ordinarily to be made only by reference to that which is available on the public record. This enables interested parties to defend their interests; see Article VI of the Implementation Agreement for the Uruguay Round of GATT; see also Pilkington at [22], [23] and [28]. 182 However, I do not accept Dr Flick's submission as to the proper construction of s 269ZJ(4). The flaw in his argument is that it fails to take into account the provisions of s 269ZJ(2) and (3) which make special provision for the inclusion of some details of the confidential information to be placed on the public record. 183 Section 269ZJ(2) provides that a person giving information to the CEO that is claimed to be confidential must ensure that a summary of that information is given to the CEO for inclusion in the public record. The summary must contain sufficient detail to allow a reasonable understanding of the substance of the information and is to be given in a way that does not breach confidentiality. 283 I agree with the submission of the respondents that most of the changes between the SEF and the Trade Measures Report were as a result of considering and responding to the applicant's post-SEF submissions. There is no obligation on the Minister to provide a copy of the Trade Measures Report before making any decision to impose dumping duties, nor to consider any material outside the Report; see Pilkington at [126].


case_text: The issues may be summarised as follows: (1) Whether, upon the proper construction and application of s 269TDAA of the Act, the SEF was required to contain a statement of all material facts known to Customs at the time of preparation. (2) Whether the CEO made an error of law, or asked himself the wrong question, by failing to consider whether the Minister ought to be satisfied of a causal link between the price of the goods and material injury to an Australian industry; see s 269 TEA(1)(d), s 269TG(1). (3) Whether the Trade Measures Report contravened s 269TEA(5) by failing to include a statement of the CEO's reasons for his recommendation that set out the material findings of fact and particulars of the evidence relied on to support the findings. (4) Whether Schaefer was deprived of the statutory opportunity to respond to the SEF by reason of the non-disclosure of material facts known to the CEO. These facts are said to be the statements by the purchasers of the MGBs of factors, other than price, which influenced their decisions. (5) Whether the CEO failed to conduct an investigation in accordance with Div 2 of Part XVB, by failing to make any further enquiry of the purchasers as to whether price was the causative factor. Schaefer relies upon the principle stated by Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 to enliven a duty to make further enquiries in the present case. (6) Whether the SEF or the Trade Measures Report was perverse or affected by Wednesbury unreasonableness in light of the factual material contained in the site visit reports. (7) In addition to (6), whether the SEF or the Trade Measures Report was affected by bias. (8) Whether the power of the Minister to make a declaration pursuant to s 269TG was vitiated by an error in the SEF placed on the public record, or an error in the Trade Measures Report provided to the Minister, or otherwise involved a denial of procedural fairness. (9) Whether, in any event, relief ought to be declined on discretionary grounds. This issue arises because Schaefer has sought merits review of the Minister's decision from the Trade Measures Review Officer in accordance with Div 9 of Part XVB. 207 The authorities confine the duty to investigate to rare and exceptional circumstances. It is limited to cases where it is obvious that material is readily available that is centrally relevant to the decision; see Prasad at 169-170; Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 558-559, 561; Luu v Renevier (1989) 91 ALR 39 at 50; Azzi v Minister for Immigration and Multicultural Affairs [2002] FCA 24 ; (2002) 120 FCR 48 at [102] - [112] . 208 Given that the CEO did investigate the central question, the duty which Schaefer seeks to impose, namely a duty to ask further questions, does not fit neatly within the formulation expressed in Prasad and the other cases.


case_text: The Court has a discretion to refuse relief under s 39B of the Judiciary Act if a more convenient and satisfactory remedy exists; see R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389 at 400. See also Wyeth Australia Pty Ltd v Minister for Health and Aged Care (2000) 61 ALD 372 at [47].


case_text: To the extent that Dr Flick's submissions rested upon the proposition that the CEO is required to expose his or her reasoning in advance of the provision of the report to the Minister under s 269TEA, this would be contrary to well-established authority; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592. See also Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212.


case_text: The test for reasonable apprehension of bias in 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" that is to be decided; see Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at [27] . See also Antoun v The Queen [2006] HCA 2 ; (2006) 224 ALR 51 at [51] ; Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at [6] . 258 For administrative proceedings, the test is expressed by reference to a hypothetical fair-minded lay person, properly informed of the nature of the proceeding, the matters that are in issue and the conduct which is said to give rise to the claimed apprehension of bias; se Ex parte H at [28]. 259 The substance of Schaefer's claim of bias was that the five councils gave central information to Customs "which slipped off the table" and did not find its way into the SEF or Trade Measures Report. 260 Dr Flick pointed in particular to the statements made by the contractor for Coffs that whilst price was an issue, quality was the determining factor and there was a breakdown in the relationship with the relevant Australian supplier.


case_text: In order to make out a finding of actual bias, an applicant must demonstrate that the decision-maker was guilty of pre-judgment. He or she must be committed to a conclusion, and not open to a contrary view, whatever arguments or evidence may be presented; see Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 ; (2001) 205 CLR 507 at [71] - [72] ; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [36] . 256 An applicant bears a heavy onus; it will rarely be discharged by pointing solely to the reasons of the decision-maker or adverse fact finding; see SCAA at [36]-[38]. 268 As von Doussa J said in SCAA at [38], even where it is possible to show that findings are contrary to evidence, or unreasonable, or that the reasoning process is hopelessly flawed, that, without more, is unlikely to demonstrate pre-judgment amounting to bias. Here, the most that can be said is that the findings of fact are highly contestable. 269 I dealt, under Issue 6, with the question of compliance with the EN840 standard in the Coffs contract. Customs considered and dealt with Schaefer's submission. It seems to me that the way in which it addressed that question shows that its decision was not affected by actual or apprehended bias. 270 There was nothing in the other matters recorded in Schaefer's written submissions which could make good the claim of bias. They are all complaints about fact finding.