case_text: French J then discussed more recent High Court authority. He referred to Re Patterson; Ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391, a case which concerned the extent of the naturalization and aliens power under s 51(xix) of the Constitution . Mr Taylor, who faced deportation on account of criminal conviction, was a non-citizen whose absorption into the Australian community was not in issue. He had come to Australia in 1966 as a child, and been educated and made his home in this country. However, he had not taken out Australian citizenship. The Minister had purportedly cancelled his "absorbed person visa" which Gaudron J suggested reflected a concession that he had been completely absorbed into the community prior to April 1984. That, of course, was one of the requisites for an "absorbed person visa". 32 In Ex parte Taylor the High Court held, by a four to three majority, that Mr Taylor, as a British subject, was not an alien but a subject of the Queen of Australia. As such the power to cancel a visa under s 501(3) of the Act could not apply to him. 33 Ex parte Taylor was effectively overruled in Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72 ; (2003) 218 CLR 28 in relation to the time from which British subjects entering Australia would remain as aliens for constitutional purposes notwithstanding their absorption into the community and the ending of their status as immigrants. As in Ex parte Taylor , the question of absorption was not an issue in Shaw .


case_outcome: discussed

case_text: Ex parte Taylor was effectively overruled in Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72 ; (2003) 218 CLR 28 in relation to the time from which British subjects entering Australia would remain as aliens for constitutional purposes notwithstanding their absorption into the community and the ending of their status as immigrants. As in Ex parte Taylor , the question of absorption was not an issue in Shaw . 34 Importantly for present purposes, in Shaw Callinan J (at [183]) accepted that the commission of serious crimes against the community may be inconsistent with a person's absorption into the community. He referred to Re Minister for Immigration and Multicultural Affairs; Ex parte Te [2002] HCA 48 ; (2002) 212 CLR 162 in that regard. He noted, however, that Mr Shaw had been living in Australia for more than twelve years before his first conviction which occurred when he was still a child. His Honour concluded that, in those circumstances, Mr Shaw had been absorbed into the Australian community by the time he came to the notice of the criminal courts. He added that he would not regard that first conviction, occurring as it did when Mr Shaw was so young, as putting him beyond the community of ordinary Australians.


case_outcome: referred to

case_text: Importantly for present purposes, in Shaw Callinan J (at [183]) accepted that the commission of serious crimes against the community may be inconsistent with a person's absorption into the community. He referred to Re Minister for Immigration and Multicultural Affairs; Ex parte Te [2002] HCA 48 ; (2002) 212 CLR 162 in that regard. He noted, however, that Mr Shaw had been living in Australia for more than twelve years before his first conviction which occurred when he was still a child. His Honour concluded that, in those circumstances, Mr Shaw had been absorbed into the Australian community by the time he came to the notice of the criminal courts. He added that he would not regard that first conviction, occurring as it did when Mr Shaw was so young, as putting him beyond the community of ordinary Australians.


case_text: It was submitted on behalf of the applicant that the Minister must have paid only lip service to the best interests of the child, otherwise she would not have come to the decision that she did. In support of that submission counsel referred to Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 ; (2001) 107 FCR 133. There the Full Court held that the Administrative Appeals Tribunal had failed to treat the best interests of the children as a "primary consideration" in its determination. 48 In Wan , it was said to be of particular significance that the Tribunal had failed to identify anywhere in its written reasons for decision what the best interests of the children indicated that it should decide with respect to the application for a visa. It was also noted that the Tribunal had failed to describe the best interests of the children as a "primary consideration". 49 Neither of those factors is present in this case. The Minister plainly gave detailed attention to the best interests of the applicant's son, which she accepted favoured non-cancellation. She recognised that this was a primary consideration. She said she gave it "great weight". 50 Counsel for the applicant relied, in particular, upon the following extract from the Full Court's judgment in Wan (at [32]): "An identification by the Tribunal of what the best interests of Mr Wan's children required, and a recognition by the Tribunal of the need to treat such interests as a primary consideration, would not have led inexorably to a decision by the Tribunal to adopt a course in conformity with those interests. That is, even had the Tribunal concluded that the best interests of the children indicated that Mr Wan should be granted a visa, it was legally open to it to refuse to grant Mr Wan a visa. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan's children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration." 51 In my view, there is nothing in this passage which supports the applicant's claim. The balancing process described above accords precisely with the approach that the Minister herself adopted. 52 In truth, Ground 2, and the applicant's submissions in support of that ground, seek merely to have this Court engage in merits review. That the Court cannot do.


case_text: The applicant's argument in support of Ground 3 relied almost entirely upon the decision of Allsop J in Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807. In that case his Honour set aside a decision by the Minister to cancel the applicant's visas, namely an absorbed person visa and a transitional (permanent) visa, because the applicant had been denied procedural fairness. 54 In Sales the applicant was given only 14 days to respond to a letter hand delivered to him on 8 August 2006 together with a copy of the Direction that set out, over some 11 pages, the matters that the Minister regarded as relevant to her determination. The letter also included a number of other documents, such as extracts from the Act , the applicant's criminal history, pre-release reports of various dates, parole reports and a copy of the sentencing judge's remarks. 55 Allsop J took into account the fact that the applicant in Sales was not a well-educated man. He also inferred that his family were not "people of wide or deep resources", or otherwise of significant education. His Honour said that it was clear that the task at hand for the applicant and those concerned with his welfare was likely to be a difficult one because of the seriousness of the crime for which he had served 18 years in prison, namely a particularly callous and brutal murder. To require him to put forward in a coherent fashion a response to the Department's letter in the space of 14 days was unrealistic and plainly inadequate. 56 However, the case of Mr Moore can, in no way, be equated with Sales . As previously indicated, Mr Moore was served with a notice of intention to consider cancellation of his absorbed person visa no later than about 5 July 2006 (seven days after the date on which the letter was sent). He was told that any response must be received by 24 July 2006. 57 Had matters rested there, the applicant would have had reasonable grounds for complaint. Nineteen days is scarcely an improvement over the 14 days regarded as inadequate in Sales . However, on 11 July 2006 Victoria Legal Aid requested an extension of time within which to respond. On 18 July 2006 the Department granted an extension until 21 August 2006. Thus the applicant was given more than six weeks to provide a response to the Minister's notice, a period I regard as reasonable in the circumstances. 58 Indeed, the applicant's position was actually stronger than this. On 12 October 2006 the Department wrote to Victoria Legal Aid inviting comment on matters it considered relevant to the notice of intention to consider cancellation. On 24 October 2006, Victoria Legal Aid responded to that letter. There was nothing to suggest that the applicant could not have added anything further to his earlier submission, in support of his claim to be permitted to retain his absorbed person visa. In fact the Department's letter of 12 October 2006 stated, after inviting the applicant to address the matters specifically drawn to his attention for comment, that he: " ... may also wish to provide other information that he considers should be taken into account when a decision is made whether to cancel his visa." 59 In my view, the applicant was given ample opportunity to respond to the notice. He was not denied procedural fairness. Accordingly, Ground 3 is not made out.


case_text: It was submitted on behalf of Mr Moore, in the proceeding before me, that, in accordance with the authorities, his criminal record prior to 1984 was such that it precluded him from having been absorbed into the Australian community. As a result, he had not "ceased to be an immigrant" within the meaning of s 34(2)(b) of the Act , and therefore had not acquired an absorbed person visa. That in turn meant, using the reasoning of French J in Johnson, that the Minister had cancelled a non-existent visa. If that were so, s 501F(3) would have no application to this case because, as is implicit in the reasoning of the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50 ; (2006) 230 ALR 370, that section can only be invoked in circumstances where a valid visa has been cancelled.


case_outcome: followed

case_text: In Webb v Block [1928] HCA 47 ; (1928) 41 CLR 331 at 367 Isaacs J used that passage to emphasise that omission of material matter can change the sense in which what is communicated is understood by the ordinary reasonable publishee, adding that such an omission could make what was published 'lie like truth' as in Lord Blackburn's famous speech in Smith v Chadwick (1884) 9 App Cas 187 at 201. And in a passage applied by the English Court of Criminal Appeal in Rex v Kylsant (Lord) [1932] 1 KB 442 at 447-448, Lord Halsbury said in Aaron's Reefs Limited v Twiss [1896] AC 273 at 281: 'It remains only to consider the final question, namely, whether or not there was evidence for the jury which would justify them in finding that this was a fraudulent prospectus that these statements were fraudulent and false. Now, in dealing with that question, again I say I protest against being called on only to look at some specific allegation in it; I think one is entitled to look at the whole document and see what it means taken together . Now, if you look at the whole document taken together, knowing what we now know and what the jury had before them, I suppose nobody can doubt that this was a fraudulent conspiracy .... It is said there is no specific allegation of fact which is proved to be false. Again I protest, as I have said, against that being the true test. I should say, taking the whole thing together, was there false representation? I do not care by what means it is conveyed by what trick or device or ambiguous language: all those are expedients by which fraudulent people seem to think they can escape from the real substance of the transaction. If by a number of statements you intentionally give a false impression and induce a person to act upon it, it is not the less false although if one takes each statement by itself there may be a difficulty in shewing that any specific statement is untrue.' (emphasis added)


case_text: For these reasons, I am of opinion that the appeal must be allowed. The Tribunal did not exercise its jurisdiction in accordance with the Act. The appellant is entitled to orders quashing the decision and remitting the matter to the Tribunal (see Re Macks; Ex parte Saint [2000] HCA 62 ; (2000) 204 CLR 158 at p 287; Attorney-General (Q) v Australian Industrial Relations Commission [2002] HCA 42 ; (2002) 213 CLR 485 at 503[43]). I certify that the preceding eighty seven (87) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 21 April 2006 Applicant: In person Solicitor for the Respondents: Clayton Utz Date of Hearing: 14 February 2006 Date final written submissions were received: 14 March 2006 Date of Judgment: 21 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/435.html


case_outcome: cited

case_text: When parties to a contract intend to incorporate material by reference, likewise, the Court makes an objective assessment of what was intended to be brought into the contract (e.g. China Ocean Shipping Co Ltd v PS Chellaram & Co Ltd (1990) 28 NSWLR 354 at p 363B-E per Gleeson CJ, 395F per Samuels JA agreeing; Trustees Executors and Agency Co Ltd v Peters [1960] HCA 16 ; (1960) 102 CLR 537 at p 548 per Kitto J). And, when the question of a whether a term ought be implied into a contract is considered, the Courts have used the expression, in the past, whether an 'officious bystander' would have assented to the proposition that the parties intended, without expressly so stating, that the term form part of their contract: cp BP Refinery (Westernport) Pty Ltd v Shire of Hastings [1977] HCA 40 ; (1977) 180 CLR 266 at 282-284.


case_title: Campomar Sociedad Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45

case_text: In contrast, in other areas of law, regard is had to the subjective effect on a person of representations or conduct. In Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45 at 83-89 [98] - [110] the High Court discussed circumstances in respect of claims of misleading and deceptive conduct in contravention of s 52 of the Trade Practices Act 1974 (Cth) and the tort of passing off which were relevant to establishing either cause of action. The Court contrasted situations in which such claims were made, on the one hand, to identified individuals, with those on the other hand, to the public at large or to a section thereof (202 CLR at 84-85 [100]-[101]). In the former case a nexus may be easier to find because of the availability of evidence of the context in which the representation or conduct occurred. Where the case involves the public generally or a section of it, the court, inter alia, has regard to the effect of the conduct on reasonable members of the class (202 CLR at 85 [103], 86-87 [105]). That introduces an objective standard by reference to which conduct can be assessed.


case_title: China Ocean Shipping Co Ltd v PS Chellaram & Co Ltd (1990) 28 NSWLR 354


case_outcome: applied

case_text: I am of opinion that all of the grounds in the notice of appeal other than the ground involving s 39B of the Judiciary Act 1903 (Cth), are without substance and should be dismissed for the reasons given by the primary judge. The appellant told me that he was unable to articulate any arguments in support of his claim because he did not understand the law and was not a lawyer. I explained to him that it was not the function of the Court to make a case for him, rather it was the function of the Court to adjudicate impartially between him and the Minister. And a court such as this, in cases where there has been no further evidence admitted on the appeal and no change in the law, can exercise its appellate powers only if satisfied that there was error on the part of the primary judge ( Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 ; (2000) 203 CLR 194 at 203 [14] per Gleeson CJ, Gaudron and Hayne JJ). Apart from the ground I consider below, neither the notice of appeal nor the appellant's submissions identify any error by the trial judge or any other basis for me to exercise the Court's appellate powers. 23 The issue for decision is whether the Tribunal was entitled to proceed to the conclusion it did without giving the appellant notice in writing under s 424A of the Act in respect of the material in the departmental file. That section provides: ' (1) Subject to subsection (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies - by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person. (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or (c) that is non-disclosable information.' 24 The Tribunal stated in its reasons that it had the file before it and had considered its contents. In his letter in support of the application for review made to the Tribunal, the appellant, dealing with the reasons he left China, said 'as I explained before' and 'I gave full explanations in my previous statement'. These statements incorporate by reference what the appellant had said to the delegate as contained in the departmental file for the purposes of s 424A(3)(b); that is, the information which he had explained before in his previous statement was given to the Tribunal by the references in his letter accompanying his application for review 'for the purpose of the application'.


case_title: E Hulton & Co v Jones [1910] AC 20

case_text: In the law of torts, the law has created the 'reasonable person'. In the law of defamation, from which the notion of republication may have been sourced, the question as to whether a subsequent publication was intended by the original publisher or was a natural and probable result of providing the information in the first place is assessed objectively ( John Fairfax & Sons Ltd v Cojuangco [1988] HCA 54 ; (1988) 165 CLR 346 at 350: Webb v Bloch [1928] HCA 47 ; (1928) 41 CLR 331 at 363-366 and see as to the objective nature of the act of publication E Hulton & Co v Jones [1910] AC 20).


case_title: Gluckstein v Barnes [1900] AC 240

case_text: Of course, there is a difference between a claim for a visa and a statement of opinion, but in the present context it is not, in my opinion, material. As Lord Macnaghten said in Gluckstein v Barnes [1900] AC 240 at 250: '... it is a trite observation that every document as against its author must be read in the sense which it was intended to convey. And everybody knows that sometimes half truth is no better than a downright falsehood.'


case_title: In re Piracy Jure Gentium [1934] AC 586

case_text: As Viscount Sankey LC said on behalf of a strong Judicial Committee in In re Piracy Jure Gentium [1934] AC 586 at 600 of attempts to be prescriptive: 'However that may be, their Lordships do not themselves propose to hazard a definition of piracy. They remember the words of M. Portalis, one of Napoleon's commissioners, who said "We have guarded against the dangerous ambition of wishing to regulate and to foresee everything ... A new question springs up. Then how is it to be decided? To this question it is replied that the office of the law is to fix by enlarged rules the general maxims of right and wrong, to establish firm principles fruitful in consequences, and not to descend to the detail of all questions which may arise upon each particular topic." (Quoted by Halsbury LC in Halsbury's Laws of England, Introduction, p. ccxi.)' (see too per Weinberg J in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [174] , [182], [183])


case_title: John Fairfax & Sons Ltd v Cojuangco [1988] HCA 54 ; (1988) 165 CLR 346


case_text: The Minister also relied on what Gray J had said in M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 and what Moore J had said in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [20] when he was dealing with the SZBMJ case. Moore J dissented in this point. 58 The Minister referred to M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 , a decision of Gray J given on 25 February 2005, some three months before the High Court decided SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162. Gray J held that information in the applicant's passport given for the purposes of the original application for a protection visa to which the applicant's counsel invited reference in submissions made to the Tribunal was not excluded by s 424A(3)(b) ([2005] FCA 131 [25]). But his Honour held in respect of other information that the Tribunal had not complied with the obligations imposed by ss 424A(1) and (2) ([2005] FCA 131 [23] and [31]). Gray J ultimately concluded that as a matter of discretion the error of the Tribunal in failing to comply with its obligations under s 424A(1) did not attract the grant of relief because the appellant in that case had not revealed what submissions might have been made were he afforded an opportunity to comment ([2005] FCA 131 [35]).


case_text: If the Parliament had intended that merely by seeking review of the decision relevantly to refuse a protection visa put before the Tribunal the reasons for arriving at that decision as 'information' within the meaning of s 424A(3)(b) given by the applicant for review for the purpose of the application, it could have said so. The decision of the Full Court of this Court in Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 proceeded on this basis, namely, that the material put by an applicant for review to the original decision maker was not, simply because a review was sought, 'information' within the exception in s 424A(3)(b) unless the applicant for review had done something more to give that 'information' to the Tribunal. That decision has stood for nearly 5 years. The question here is what more is sufficient. 36 In this, as in a number of areas of the law, I am of opinion that the question whether an applicant for review has given information for the purpose of the application within the meaning of s 424A(3)(b) when it is sought to say that he or she 'republished' something which had been provided at a different time by him or her, it is necessary to make an objective assessment as to what a reasonable person in the position of an observer of the interchange would have understood.


case_text: A conclusion of fabrication and elaboration of claims is substantively different from a finding that the Tribunal was not satisfied as to the claims. It is one thing for a body, such as the Tribunal, where the question for its decision, as here (see s 65(1) of the Act), is whether a person has satisfied it, to reach a decision on the material before it, that it is not so satisfied (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 275-277). And in reaching such a conclusion, the body can weigh the material properly before it in accordance with its statutory functions ( Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559 at 573: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 281-282). In such a case, the decision may not necessarily be invalid if, as here, the Tribunal considered other material together with what the appellant had given it and, without complying with s 424A, was still not satisfied that he had made out his claim. This is because the reason why it was not so satisfied would be and would remain that what the appellant had 'given' it was insufficient. The extra material would not be a reason or a part of the reason for that state of mind since it did not affect it.


case_text: A conclusion of fabrication and elaboration of claims is substantively different from a finding that the Tribunal was not satisfied as to the claims. It is one thing for a body, such as the Tribunal, where the question for its decision, as here (see s 65(1) of the Act), is whether a person has satisfied it, to reach a decision on the material before it, that it is not so satisfied (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 275-277). And in reaching such a conclusion, the body can weigh the material properly before it in accordance with its statutory functions ( Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559 at 573: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 281-282). In such a case, the decision may not necessarily be invalid if, as here, the Tribunal considered other material together with what the appellant had given it and, without complying with s 424A, was still not satisfied that he had made out his claim. This is because the reason why it was not so satisfied would be and would remain that what the appellant had 'given' it was insufficient. The extra material would not be a reason or a part of the reason for that state of mind since it did not affect it. 61 But, it is another thing for such a body to use material not properly before it in coming to a positive conclusion of fabrication or elaboration. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 280, Brennan CJ, Toohey, McHugh and Gummow JJ said: 'Giving greater weight to one matter indicates that less weight is being given to another. Lesser weight is not the equivalent of rejection.' 62 Here, part of the reason for the Tribunal not being satisfied of the appellant's claims was its rejection of them as fabrications or elaborations after it took all of the information in the departmental file into account. 81 The reasons of an administrative decision-maker, including the Tribunal, are meant to inform and are not to be scrutinized upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at p 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. There is no such inadequacy to be found in the reasons of the Tribunal in the instant case. Rather, the reasons reveal as the Act required what the reasons were and the matters which the Tribunal considered were material. 82 The Minister submitted that the proper characterization of the Tribunal's reasons concerning the omissions in the appellant's initial claim was that this was simply an assessment or subjective appraisal of the information provided by the appellant. The Minister contended that the finding, based on what it said was the appellant's 'vague and generalized evidence in support of his claim' (at [30] of its decision: see [53] above), that his sur place claim was to elaborate on his claims based in China, to provide for himself the profile of and to enhance his claim to be a refugee, was mere assessment or appraisal which did not use any 'information' so as to enliven an obligation to provide particulars under s 424A. 83 But, in order to assess the appellant's 'general information' and 'vague and general evidence', the Tribunal had to have that evidence before it in accordance with the regime of procedural fairness for which s 424A provides. And, in stating its ultimate conclusion that it was not satisfied that the appellant was a person to whom Australia owed protection obligations the Tribunal said (at [32]) that it had '... considered the evidence as a whole'. The flaw in the Minister's argument is that the Tribunal made its assessment of all the information and evidence sourced to the appellant in the material before it, which included information he had earlier provided to the delegate but which he had not expressly given to the Tribunal for the purpose of his application pursuant to s 424(3)(b).


case_text: Section 430 of the Act requires the Tribunal, in making a decision on a review, to set out 'the reasons for the decision' (see esp s. 430(1)(b)). As McHugh, Gummow and Hayne JJ said in Minister for Immigration v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 346 [69] that provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. McHugh J said in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at 422-423 [65] : '... the obligation to set out "the reasons for the decision" (s 430(1)(b)) will often require the tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the tribunal must set that out as one of its reasons. But that said, it is not necessary for the tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal.'


case_text: In the law of defamation, as Mason J pointed out in Mirror Newspapers Limited v Harrison [1982] HCA 50 ; (1982) 149 CLR 293 at 301, a distinction needs to be drawn between the reader's understanding of what a publisher is saying and judgments or conclusions which the reader may reach as a result of his or her own beliefs and prejudices. It is, his Honour said: '... one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published material is to be determined by the first, not by the second, proposition. Its importance for present purposes is that it focuses attention on what is conveyed by the published material in the mind of the ordinary reasonable reader.' 78 Here, the ordinary reasonable person in the position of the Tribunal would understand an initial claim, in the ordinary course of things, drawing on its knowledge and experience of human affairs, to be a complete statement of all material circumstances which the applicant had at that time to justify to the Minister the grant of a protection visa. And because of that, what is sought to be relied on as an 'omission' is properly capable of being characterised as information in the initial claim, being a representation of the, in effect, completeness and fullness of the material put forward. 79 Of course there may be cases, because of what is said or not said, where a different conclusion will be appropriate. For these reasons, I am of opinion that the reasoning of Allsop J in the authorities above is the appropriate way to analyse the Tribunal's use of the initial claim of the appellant in this matter. The earlier account given by the appellant was information which the Tribunal had before it, defective or not. The Tribunal regarded, as part of the reason for its rejection of the appellant's case, the totality of the appellant's explanation of his sur place application.


case_text: In the law of contract, the Court looks not at the subjective intentions of the parties to the contract as to what either intended to be conveyed by the words chosen but adopts the position that the construction of a contract is an objective process ascertained by what a reasonable person in the position of the parties, that is to say with knowledge of the objective matrix of facts with reference to which the parties contracted, would be taken to have intended by the actual words used ( Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 at 462 [22] ; Toll FGCT Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at 186-187 [60] ).


case_text: So, in RAIA Insurance Brokers Ltd v FAI General Insurance Co Ltd (1993) 41 FCR 164 at 166, 172 a Full Court of this Court held that where an expert insurance broker published its opinion on a rival insurer's policy wording there was '... implicit in the expression of opinion a statement of fact, namely [the broker] knew of facts which justified the opinion' (41 FCR at 172 per Beaumont and Spender JJ). The Full Court there had followed a line of English authority starting with Smith v Land and House Property Corporation (1884) 28 Ch D 7 at 15 where Bowen LJ had said: 'It is material to observe that it is often fallaciously assumed that a statement of opinion cannot involve the statement of a fact. In a case where the facts are equally well known to both parties, what one of them says to the other is frequently nothing but an expression of opinion. The statement of such opinion is in a sense a statement of a fact, about the condition of the man's own mind, but only of an irrelevant fact, for it is of no consequence what the opinion is. But if the facts are not equally known to both sides, then a statement of opinion by the one who knows the facts best involves very often a statement of a material fact, for he impliedly states that he knows facts which justify his opinion .' (emphasis added)


case_title: Re Macks; Ex parte Saint [2000] HCA 62 ; (2000) 204 CLR 158


case_text: In contrast, in other areas of law, regard is had to the subjective effect on a person of representations or conduct. In Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45 at 83-89 [98] - [110] the High Court discussed circumstances in respect of claims of misleading and deceptive conduct in contravention of s 52 of the Trade Practices Act 1974 (Cth) and the tort of passing off which were relevant to establishing either cause of action. The Court contrasted situations in which such claims were made, on the one hand, to identified individuals, with those on the other hand, to the public at large or to a section thereof (202 CLR at 84-85 [100]-[101]). In the former case a nexus may be easier to find because of the availability of evidence of the context in which the representation or conduct occurred. Where the case involves the public generally or a section of it, the court, inter alia, has regard to the effect of the conduct on reasonable members of the class (202 CLR at 85 [103], 86-87 [105]). That introduces an objective standard by reference to which conduct can be assessed. 80 Section 430 of the Act requires the Tribunal, in making a decision on a review, to set out 'the reasons for the decision' (see esp s. 430(1)(b)). As McHugh, Gummow and Hayne JJ said in Minister for Immigration v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 346 [69] that provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. McHugh J said in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at 422-423 [65] : '... the obligation to set out "the reasons for the decision" (s 430(1)(b)) will often require the tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the tribunal must set that out as one of its reasons. But that said, it is not necessary for the tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal.'


case_title: Rex v Kylsant (Lord) [1932] 1 KB 442

case_text: In Webb v Block [1928] HCA 47 ; (1928) 41 CLR 331 at 367 Isaacs J used that passage to emphasise that omission of material matter can change the sense in which what is communicated is understood by the ordinary reasonable publishee, adding that such an omission could make what was published 'lie like truth' as in Lord Blackburn's famous speech in Smith v Chadwick (1884) 9 App Cas 187 at 201. And in a passage applied by the English Court of Criminal Appeal in Rex v Kylsant (Lord) [1932] 1 KB 442 at 447-448, Lord Halsbury said in Aaron's Reefs Limited v Twiss [1896] AC 273 at 281: 'It remains only to consider the final question, namely, whether or not there was evidence for the jury which would justify them in finding that this was a fraudulent prospectus that these statements were fraudulent and false. Now, in dealing with that question, again I say I protest against being called on only to look at some specific allegation in it; I think one is entitled to look at the whole document and see what it means taken together . Now, if you look at the whole document taken together, knowing what we now know and what the jury had before them, I suppose nobody can doubt that this was a fraudulent conspiracy .... It is said there is no specific allegation of fact which is proved to be false. Again I protest, as I have said, against that being the true test. I should say, taking the whole thing together, was there false representation? I do not care by what means it is conveyed by what trick or device or ambiguous language: all those are expedients by which fraudulent people seem to think they can escape from the real substance of the transaction. If by a number of statements you intentionally give a false impression and induce a person to act upon it, it is not the less false although if one takes each statement by itself there may be a difficulty in shewing that any specific statement is untrue.' (emphasis added)


case_title: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 79 ALJR 1009, 215 ALR 162

case_text: In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 79 ALJR 1009; 215 ALR 162 the majority, McHugh, Kirby and Hayne JJ, held that where the Tribunal obtained information which it considers would be the reason, or part of the reason, for affirming the decision that is under review, it had to inform an applicant in writing of that information as part of the fulfilment of the duty of procedural fairness, described as the natural justice hearing rule in s 422B. McHugh J said that s 424A was a statutory formulation of the obligation to accord procedural fairness in the conduct of a review (215 ALR at 181 [73]). His Honour continued (215 ALR at 183 [77]): 'However, because the Act compels the tribunal in the conduct of the review to take certain steps in order to accord procedural fairness to the applicant for review, before recording a decision, it would be an anomalous result if the tribunal's decision were found to be valid, notwithstanding that the tribunal has failed to discharge that obligation. It is not to the point that the tribunal may have given the applicant particulars of the adverse information orally. It is also not to the point that in some cases it might seem unnecessary to give the applicant written particulars of adverse information (for example, if the applicant is present when the tribunal receives the adverse information as evidence from another person and the tribunal there and then invites the applicant orally to comment on it). If the requirement to give written particulars is mandatory, then failure to comply means that the tribunal has not discharged its statutory function. There can be no "partial compliance" with a statutory obligation to accord procedural fairness. Either there has been compliance or there has not. Given the significance of the obligation in the context of the review process (the obligation is mandated in every case), it is difficult to accept the proposition that a decision made despite the lack of strict compliance is a valid decision under the Act. Any suggestion by the Full Federal Court in NAHV to the contrary should not be accepted. Parliament has made the provisions of s 424A one of the centrepieces of its regime of statutory procedural fairness. Because that is so, the best view of the section is that failure to comply with it goes to the heart of the decision-making process. Consequently, a decision made after a breach of s 424A is invalid.' Hayne J, with whose reasoning Kirby J agreed (215 ALR at 199 [154]; 203 [173]-[174]) said (215 ALR at 210-211 [206]-[208]): 'The language of s 424A is, of course, imperative: "the Tribunal must " take the several steps it prescribes. That imperative language stands in sharp contrast with the permissive terms of, for example, s 424 which says that "the Tribunal may " take various steps. The evident purpose of the provisions of s 424A (and several other provisions in Div 4 of Pt 7) is to give applicants for review procedural fairness. It is clear that want of procedural fairness may constitute jurisdictional error ( Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82; 176 ALR 219; [2000] HCA 57 ; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; 179 ALR 238; [2001] HCA 22 ). As Gaudron and Gummow JJ said in Re Refugee Review Tribunal; Ex parte Aala ((2000) [2000] HCA 57 ; 204 CLR 82 at 109 [59] ; [2000] HCA 57 ; 176 ALR 219 at 237-8; [2000] HCA 57): However, the conditioning of a statutory power so as to require the provision of procedural fairness has, as its basis, a rationale which differs from that which generally underpins the doctrine of excess of power or jurisdiction. The concern is with observance of fair decision-making procedures rather than with the character of the decision which emerges from the observance of those procedures. Unless the limitation ordinarily implied on the statutory power is to be rewritten as denying jurisdictional error for "trivial" breaches of the requirements of procedural fairness, the bearing of the breach upon the ultimate decision should not itself determine whether prohibition under s 75(v) should go. The issue always is whether or not there has been a breach of the obligation to accord procedural fairness and, if so, there will have been jurisdictional error for the purposes of s 75(v). In the present matter, although the provision now in question was, as I have pointed out earlier, one of several intended to achieve procedural fairness, the immediate focus is not upon the "observance of fair decision-making procedures". It is upon "the character of the decision". Has the tribunal validly decided the review? Or is the decision reached in the review, in breach of s 424A, invalid? Where the Act prescribes steps that the tribunal must take in conducting its review and those steps are directed to informing the applicant for review (among other things) of the relevance to the review of the information that is conveyed, both the language of the Act and its scope and objects point inexorably to the conclusion that want of compliance with s 424A renders the decision invalid. Whether those steps would be judged to be necessary or even desirable in the circumstances of a particular case, to give procedural fairness to that applicant, is not to the point. The Act prescribes what is to be done in every case.' (his Honour's emphasis) 30 The Minister submitted that where in an application for review an applicant cites, refers to, discusses, explains, elaborates on or cavils with information, that other information must be regarded as information provided by the applicant for the purposes of the review within the meaning of s 424A(3)(b). The Minister argued that: 'This must be so because of 2 things: firstly it must be presumed that if an applicant refers to information s/he must have intended that the information be considered for the purpose of the review; secondly, once that information is referred to by an applicant the tribunal must consider it in full.' 31 Taken to its logical conclusion this argument must mean that by applying for a review of the delegate's decision, that decision itself is 'information that the applicant gave for the purpose of the application' . And, it would follow, if this were a correct interpretation, that everything which the delegate referred to in his or her decision was also given by the applicant for that purpose. 32 I am of opinion that this construction is not open because the applicant, under s 412 of the Act, has a right to apply to the Tribunal for a review of the decision. The decision in a case like the present is simply the determination to refuse to grant a protection visa. The reasons for the decision are not made into information given by the applicant 'for the purpose of the application' simply because the applicant for review makes an application under s 412. It is pursuant to s 414 of the Act that the original decision, not the reasons for it, is before the Tribunal for review and its statutory function is to review the decision. In conducting that review the Tribunal must conform to the requirements in the Act for the exercise of its jurisdiction, including the requirements of Division 4 of Part 7, and relevantly s 424A. 51 Nor in my opinion is this defect in procedure cured by the fact that the Tribunal told the appellant that it would be in receipt of the departmental file. It would render nugatory the purpose identified by the majority in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 for the relevant information to be identified and of communicating to the applicant for review what Hayne J described (215 ALR at 211 [208]) as '... the relevance to the review of the information that is conveyed'. 52 I am of opinion that it follows from the way in which the Tribunal expressed its reasons, that the reason or a part of the reason for affirming the decision the subject of the review included what the applicant had said and failed to say in the material placed before the delegate in relation to his application as a refugee sur place . The Tribunal had no further information than what had been put before the delegate and what was the subject of the application for review. Having formed the view, communicated in its letter of 8 December 2003, that on the written material before it, it was unable to make a decision in favour of the appellant, the Tribunal necessarily had regard to information in the file which, as it said in its reasons, was before it. Throughout the operative parts of its reasoning (in [24]-[31]), the Tribunal referred to the failure of the appellant to provide supporting documentation, details of the circumstances of his claim and the generality with which he expressed himself about important matters, including, his knowledge of Falun Gong. Critically, the Tribunal said at [28]: 'While the applicant has provided general information about Falungong, its practices and beliefs, information which is freely available through public resources, he has not provided any specific details of his Falungong adherence or practice. The applicant has not provided any supporting evidence of his Falungong membership in Australia, merely making assertions of what he had done.' 53 The Tribunal continued at [30]: 'I have found that the applicant did not have any interest in Falungong prior to leaving China and arriving in Australia, and in light of the applicant's vague and generalised evidence in support of his claim of interest in and adherence to Falungong in Australia , I am unable to accept that the claim has been advanced for any other purpose than to elaborate on his claims based in China, and to provide for himself the profile of, and to enhance his claims to be, a refugee. In this respect I am satisfied that section 91R(3) of the Act applies to the applicant and his conduct in Australia must be disregarded in determining whether he has a well founded fear for being persecuted for a Convention reason.' (emphasis added) 54 The Tribunal had before it the departmental file including the appellant's letter to the delegate of 22 June 2003. I am of opinion that the Tribunal, in coming to its positive finding at [24] of its reasons that the appellant 'elaborated and fabricated his claims to bring himself within the definition of a refugee', took into account what it said was before it, namely all of what was in that file in the applicant's letter accompanying his application for a protection visa. If all of that was not information 'that the applicant gave for the purpose of the application' for review (see s 424A(3)(b)) because it had not been incorporated by reference in his application for review, then the appellant had to be given particulars of the balance of that information to which the Tribunal was having regard contained on the departmental file but not incorporated into the application for review. As Hayne J said in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR at 211 [208], s 424A(2) required the Tribunal to inform the applicant for review, among other things, of the relevance to the review of the information that was conveyed by the information which was extraneous to the application for review. 55 The Minister submitted that it was not necessary for the Tribunal to foreshadow to the appellant any reasoning process which it proposed to adopt in its determination of the application. That submission, however, does not meet the difficulty that no particulars were given about the information which the Tribunal proposed to use from the material which the applicant for review had put before the delegate nor did it inform him of 'the relevance to the review of the information that [was] conveyed', as s 424A(2) required. 58 The Minister referred to M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 , a decision of Gray J given on 25 February 2005, some three months before the High Court decided SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162. Gray J held that information in the applicant's passport given for the purposes of the original application for a protection visa to which the applicant's counsel invited reference in submissions made to the Tribunal was not excluded by s 424A(3)(b) ([2005] FCA 131 [25]). But his Honour held in respect of other information that the Tribunal had not complied with the obligations imposed by ss 424A(1) and (2) ([2005] FCA 131 [23] and [31]). Gray J ultimately concluded that as a matter of discretion the error of the Tribunal in failing to comply with its obligations under s 424A(1) did not attract the grant of relief because the appellant in that case had not revealed what submissions might have been made were he afforded an opportunity to comment ([2005] FCA 131 [35]). 59 His Honour's reasoning on the exercise of the discretion to withhold prerogative relief cannot now be supported because in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at 184-185 [83] per McHugh J 203 [174] per Kirby J and 211-212 [210]-[211] per Hayne J it was held that any failure to comply with s 424A(1) was a jurisdictional error. Their Honours held that where there had been no delay, waiver, acquiescence or other conduct of the appellant such as might found a reason for the exercise of the Court's discretion to refuse prerogative relief, a writ of certiorari should issue to quash the decision and a constitutional writ of mandamus should issue to require the Tribunal to hear the application for review according to law. In SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [111] , [155], [231]-[232], which was decided after the oral hearing in this matter, the majority, Weinberg and Allsop JJ decided that this was the proper approach to the grant of relief where a contravention of s 424A(1) had occurred in the Tribunal.


case_title: Smith v Land and House Property Corporation (1884) 28 Ch D 7


case_title: SZBUS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1233

case_text: In SZBUS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1233 at [18] , [20] Allsop J held that a conclusion by the Tribunal of fabrication of claims, based in part on information outside the exception in s 424A(3)(b) provided by an applicant for review with his initial claim for a visa, was important and formed part of the reason for the decision. He explained why this vitiated the decision saying ([2006] FCA 1233 [20]): 'However, a question arises whether primary relief should be granted. In particular, whether in the light of the previous unwillingness of the appellant to attend the Tribunal hearing in the face of a letter making plain that unless he came, in all likelihood, he would not be granted a visa, any different result would have obtained had a somewhat different letter been sent, identifying with a little more specificity (reflecting the findings in the above mentioned paragraph) why the appellant would not be granted a visa unless he gave further assistance.' 64 I agree with that analysis. Here, the Tribunal came to a conclusion that the appellant had fabricated and elaborated claims. That was based on all the information which he had provided. It included what had been given to the delegate at an earlier stage and was not limited solely to that given for the purpose of the application for review. Contrary to the obligation under s 424A(1) the appellant was not given an opportunity to comment on information in, or the adequacy or completeness of, what he had put forward on the earlier occasion or its impact on the present application.


case_outcome: distinguished

case_text: In SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 Gyles J held that there was a clear republication of original claims made in a declaration by the applicant for review as part of his application for review. That declaration critically examined the reasons given by the delegate for refusing his application in the course of which the there applicant for review referred several times to the claims that he had originally made. Gyles J held that there was a republication of the original claims made to the delegate in the application for review. The precise terms in which the republication was said to have taken place are not set out in his Honour's judgment. Each case will obviously depend on its own facts. In one sense applicants for review could be treated, on every occasion to be asking the Tribunal, because it is reviewing the original refusal, to review all that they had previously put to the delegate. But I am of opinion that that is not the proper construction of the general position having regard, to the terms of s 424A as construed by the High Court.


case_text: One of the problems created by s 424A is the dilemma, in a practical sense, which a decision maker faces in categorizing whether what is before him or her, or that to which he or she wishes to refer, constitutes 'information' which attracts an obligation to notify under that section. In SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200 at [21] , Allsop J pointed out that notwithstanding what Finn and Stone JJ had said in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 476-477 [24]: '... it is important to recognise that there is a distinction, sometimes fine, but nevertheless important, between information which may be knowledge acquired by the Tribunal and the subjective appraisal or thought processes of the Tribunal.' 66 His Honour noted ([2005] FCA 1200 at [27]) that Finn and Stone JJ had held that 'identified gaps, defects or lack of detail or specificity in evidence or conclusions arrived at by weighing up the evidence by reference to those gaps' were not information and that a failure to mention something to the Tribunal was also not information, relying on WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 ; (2002) 124 FCR 276 at 282-283 [26] - [29] . 68 Subsequently in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [224] Allsop J, with whose reasoning on this Weinberg J agreed ([2006] FCAFC 2 [155], [158]-[164]) adhered to and adopted what he had earlier said in SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200 concerning the reasoning of Finn and Stone JJ in VAF v Minister (2004) 206 ALR 471 at 477 [24 (iii)]. He said that: '... it is necessary to exercise care in applying what was said in VAF by Finn J and Stone J at [24(iii)] that the word information does not: Extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps etc.'


case_text: The Minister also relied on what Gray J had said in M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 and what Moore J had said in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [20] when he was dealing with the SZBMJ case. Moore J dissented in this point. 56 Supplementary written submissions were filed on 3 March 2006 pursuant to directions which I made at the hearing to take account of the imminent decision in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2. There, the Minister characterized the appellant's statement in his letter forming part of the application to the Tribunal for review, set out in [5] above namely: 'I gave full explanations in my previous statement' as inviting reference to the whole previous statement, not just that section which dealt with the subject matter of the appellant's work unit in China. The Minister submitted that there could '... be little doubt that the [a]ppellant intended that the Tribunal look at this material and thereby provided this information to the Tribunal ...' within the meaning of s 424A(3)(b). But, for the reasons I have given, I am of opinion that it is essential to consider, objectively, what was the extent of the material which the applicant for review was thereby giving to the Tribunal within the meaning of s 424A(3)(b). 57 The Minister made further submissions on 13 March 2006 on this issue in response to a letter from the Court. The Minister drew attention to the Tribunal having said that the matter had been '... determined on the evidence available' arguing that it thus had assessed the totality of the evidence. The Minister pointed to the reference in the application for review (see [5] above) in which the appellant 'cavilled' with the delegate's reasons, and, so the submission ran, thus incorporated the appellant's letter of 22 June 2003 to the delegate. 59 His Honour's reasoning on the exercise of the discretion to withhold prerogative relief cannot now be supported because in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at 184-185 [83] per McHugh J 203 [174] per Kirby J and 211-212 [210]-[211] per Hayne J it was held that any failure to comply with s 424A(1) was a jurisdictional error. Their Honours held that where there had been no delay, waiver, acquiescence or other conduct of the appellant such as might found a reason for the exercise of the Court's discretion to refuse prerogative relief, a writ of certiorari should issue to quash the decision and a constitutional writ of mandamus should issue to require the Tribunal to hear the application for review according to law. In SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [111] , [155], [231]-[232], which was decided after the oral hearing in this matter, the majority, Weinberg and Allsop JJ decided that this was the proper approach to the grant of relief where a contravention of s 424A(1) had occurred in the Tribunal. 68 Subsequently in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [224] Allsop J, with whose reasoning on this Weinberg J agreed ([2006] FCAFC 2 [155], [158]-[164]) adhered to and adopted what he had earlier said in SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200 concerning the reasoning of Finn and Stone JJ in VAF v Minister (2004) 206 ALR 471 at 477 [24 (iii)]. He said that: '... it is necessary to exercise care in applying what was said in VAF by Finn J and Stone J at [24(iii)] that the word information does not: Extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps etc.' 69 Allsop J, with whose reasons Weinberg J appears to have agreed ([2006] FCAFC 2 at [94], [155], [158], [169]) held that the operation of s 424A(1) is not limited to circumstances where the information imports some positive factual finding ([2006] FCAFC 2 [221]). Rather, his Honour observed, that was but one way in which information could be part of the reason for affirming a decision under review within the meaning of s 424A(1)(a). He continued ([2006] FCAFC 2 [221], [223]: 'Another would be the inconsistency between the information and what was now being said. If the Tribunal considers that inconsistency relevant to the assessment of the claims, it may be that the information would be part of the reason. If a Tribunal says that it does not believe an applicant for reasons that can be seen to include the fact that one thing was said in the prior statement and another at the hearing, or the fact that if what is now being asserted at the hearing is true it would have been in the prior statement in that form, the information would be part of the reason. The information is the knowledge imparted to the Tribunal of a prior statement in a particular form. The significance given to it by considering it in the light of evidence is the product of mental processes. This significance and those mental processes are not information, but rather, are why the information is relevant for s 424A(1)(b). ... ... I do not see Finn J and Stone J in VAF in [24(iii)] of their reasons as requiring a formalistic analysis of information such as prior statements depending upon whether its or their relevance is from the text or from the absence of text. Where there are things such as a prior statement or a visa application form, the information for the purposes of s 424A will be that a document in that form was provided. That information may have relevance to the Tribunal for all sorts of reasons. Such relevance is not limited to whether the information leads to a positive factual finding based on its terms. It may be relevant because it plays some part (as here) in the conclusion as to the truthfulness of the applicant.' 70 Ordinarily, the reason why an omission of information from the initial claim is relevant to a review is that a person in the position of the Minister or his or her delegate or the Tribunal would be able to expect the initial claim to include all material 'information' which the applicant for a visa had to put forward in support of his or her claim. A later provision of such a material matter could be capable of being characterized as a recent invention calculated to enhance the claim rather than as a genuine supplementation of the original material (see e.g. the analysis of Weinberg J in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [177] - [180] ). Hence in such a situation, the relevance to the review of the 'omission' may be its bearing on the likelihood that each of the applicant's initial claim, and the later addition, would be accepted as reliable or as satisfying the Tribunal, as the decision maker, for the purposes of s 65(1) of the Act. 71 A process of reasoning which uses an 'omission' in the way described above is both common in every day life and, provided the facts support its use, unexceptionable. But, often times it will proceed upon the unstated premise that the initial claim gave, or could be expected to give, a full account of all the material facts which an applicant had available to give. That is, where such a premise is present, the initial claim will have included a representation, by implication or inference, that all of the bases which the applicant knew of had been put forward then and there by him or her. After all, the only person or the best person to tell the applicant's whole story in support of his or her claim, is ordinarily that applicant. As Allsop J said in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [205] : 'Information is that of which one is told or apprised; it is knowledge concerning some particular fact, subject or event.' 72 The later provision of some material fact to support a claim is often, if not usually, able to be characterized as an 'omission' from the initial claim only because the initial claim conveys a representation, by implication or inference, that it is itself a complete account. And, in such a case it will be that latter representation which, in my opinion, is 'information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision which is under review' within the meaning of s 424A(1)(a). 73 The law dealing with representations, as well as the law concerning defamatory meanings or imputations, looks at the overall effect of the words and conduct of a representor or publisher and assesses whether, in the context in which the communication was made, a particular piece of information a representation or imputation was conveyed by it to an ordinary reasonable person in the position of a recipient of the communication. 85 As Viscount Sankey LC said on behalf of a strong Judicial Committee in In re Piracy Jure Gentium [1934] AC 586 at 600 of attempts to be prescriptive: 'However that may be, their Lordships do not themselves propose to hazard a definition of piracy. They remember the words of M. Portalis, one of Napoleon's commissioners, who said "We have guarded against the dangerous ambition of wishing to regulate and to foresee everything ... A new question springs up. Then how is it to be decided? To this question it is replied that the office of the law is to fix by enlarged rules the general maxims of right and wrong, to establish firm principles fruitful in consequences, and not to descend to the detail of all questions which may arise upon each particular topic." (Quoted by Halsbury LC in Halsbury's Laws of England, Introduction, p. ccxi.)' (see too per Weinberg J in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [174] , [182], [183])


case_title: Toll FGCT Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165


case_text: When parties to a contract intend to incorporate material by reference, likewise, the Court makes an objective assessment of what was intended to be brought into the contract (e.g. China Ocean Shipping Co Ltd v PS Chellaram & Co Ltd (1990) 28 NSWLR 354 at p 363B-E per Gleeson CJ, 395F per Samuels JA agreeing; Trustees Executors and Agency Co Ltd v Peters [1960] HCA 16 ; (1960) 102 CLR 537 at p 548 per Kitto J). And, when the question of a whether a term ought be implied into a contract is considered, the Courts have used the expression, in the past, whether an 'officious bystander' would have assented to the proposition that the parties intended, without expressly so stating, that the term form part of their contract: cp BP Refinery (Westernport) Pty Ltd v Shire of Hastings [1977] HCA 40 ; (1977) 180 CLR 266 at 282-284.


case_text: One of the problems created by s 424A is the dilemma, in a practical sense, which a decision maker faces in categorizing whether what is before him or her, or that to which he or she wishes to refer, constitutes 'information' which attracts an obligation to notify under that section. In SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200 at [21] , Allsop J pointed out that notwithstanding what Finn and Stone JJ had said in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 476-477 [24]: '... it is important to recognise that there is a distinction, sometimes fine, but nevertheless important, between information which may be knowledge acquired by the Tribunal and the subjective appraisal or thought processes of the Tribunal.' 68 Subsequently in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [224] Allsop J, with whose reasoning on this Weinberg J agreed ([2006] FCAFC 2 [155], [158]-[164]) adhered to and adopted what he had earlier said in SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200 concerning the reasoning of Finn and Stone JJ in VAF v Minister (2004) 206 ALR 471 at 477 [24 (iii)]. He said that: '... it is necessary to exercise care in applying what was said in VAF by Finn J and Stone J at [24(iii)] that the word information does not: Extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps etc.'


case_title: WAGP of 2002v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 ; (2002) 124 FCR 276

case_text: His Honour noted ([2005] FCA 1200 at [27]) that Finn and Stone JJ had held that 'identified gaps, defects or lack of detail or specificity in evidence or conclusions arrived at by weighing up the evidence by reference to those gaps' were not information and that a failure to mention something to the Tribunal was also not information, relying on WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 ; (2002) 124 FCR 276 at 282-283 [26] - [29] .


case_text: In the law of torts, the law has created the 'reasonable person'. In the law of defamation, from which the notion of republication may have been sourced, the question as to whether a subsequent publication was intended by the original publisher or was a natural and probable result of providing the information in the first place is assessed objectively ( John Fairfax & Sons Ltd v Cojuangco [1988] HCA 54 ; (1988) 165 CLR 346 at 350: Webb v Bloch [1928] HCA 47 ; (1928) 41 CLR 331 at 363-366 and see as to the objective nature of the act of publication E Hulton & Co v Jones [1910] AC 20). 76 In Webb v Block [1928] HCA 47 ; (1928) 41 CLR 331 at 367 Isaacs J used that passage to emphasise that omission of material matter can change the sense in which what is communicated is understood by the ordinary reasonable publishee, adding that such an omission could make what was published 'lie like truth' as in Lord Blackburn's famous speech in Smith v Chadwick (1884) 9 App Cas 187 at 201. And in a passage applied by the English Court of Criminal Appeal in Rex v Kylsant (Lord) [1932] 1 KB 442 at 447-448, Lord Halsbury said in Aaron's Reefs Limited v Twiss [1896] AC 273 at 281: 'It remains only to consider the final question, namely, whether or not there was evidence for the jury which would justify them in finding that this was a fraudulent prospectus that these statements were fraudulent and false. Now, in dealing with that question, again I say I protest against being called on only to look at some specific allegation in it; I think one is entitled to look at the whole document and see what it means taken together . Now, if you look at the whole document taken together, knowing what we now know and what the jury had before them, I suppose nobody can doubt that this was a fraudulent conspiracy .... It is said there is no specific allegation of fact which is proved to be false. Again I protest, as I have said, against that being the true test. I should say, taking the whole thing together, was there false representation? I do not care by what means it is conveyed by what trick or device or ambiguous language: all those are expedients by which fraudulent people seem to think they can escape from the real substance of the transaction. If by a number of statements you intentionally give a false impression and induce a person to act upon it, it is not the less false although if one takes each statement by itself there may be a difficulty in shewing that any specific statement is untrue.' (emphasis added)


case_text: And part of the statutory function of the Tribunal is to decide the application for review by exercising its powers in accordance with s 415 and then giving what it considers to be the correct or preferable decision ( Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18 ; (1996) 189 CLR 1 at p 18). It forms that opinion after considering the views of the original decision maker (189 CLR at p 18), but if there is some matter comprising 'information' in the reasons for that original decision then in my opinion s 424A(1) requires that 'information' to be furnished to the applicant for review unless it is excepted in s 424A(3). The very language of s 424A(1)(a) denies the construction put here by the Minister for it contemplates 'information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review '. It is the decision, not the reasons for it or the information on which it was based, which the Tribunal could so affirm. 34 Thus, while the reasons for the original decision may not all be 'information' within the meaning of s 424A, no doubt some of the material before the original decision maker to which he or she referred in the reasons for that decision will be 'information' to which s 424A applies.


case_title: Tait v Harris [2003] FCA 446

case_text: first respondent, a Deputy Registrar of the High Court of Australia, has agreed to abide by any order of the Court save as to costs. As I understand Mr Rana's application against the Registrar it is without foundation once its essence is appreciated. The Official Trustee having filed a notice of discontinuance in an application in the High Court in A20 of 2008 for an order to show cause against a judge of this Court, the Registrar has taken no further steps in that matter. Unless and until the Official Trustee's decision to file that notice is declared invalid, the Registrar was entitled to act upon it. In any event, any decisions taken by the Registrar in relation to the acceptance or otherwise of material for filing in the High Court, even where potentially amenable to review under the AD(JR) Act; see Tait v Harris [2003] FCA 446 ; are not ones in relation to which I should make any determination. Such matters, which involve the conduct of the High Court's own officers in the discharge of their duties, are, in my view, ones for that Court itself properly to determine. The real respondent in this matter is the Official Trustee and Mr Rana's complaints are in relation to decisions allegedly taken by the Trustee in relation to proceedings which Mr Rana has prosecuted and lost in this Court (whether at first instance or on appeal). Because the application relates to decisions taken by the Trustee in that capacity, the application has been dealt with as well as if it were made under s 178 of the Bankruptcy Act 1966 (Cth). The section provides: 178(1) If the bankrupt, a creditor or any other person is affected by an act, omission or decision of the trustee, he or she may apply to the Court, and the Court may make such order in the matter as it thinks just and equitable. 178(2) The application must be made not later than 60 days after the day on which the person became aware of the trustee's act, omission or decision. I simply note that the application initiating this proceeding appears to have been filed within the time limited by s 178(2) in respect of what I consider to be operative decisions of the Trustee in this matter.


case_text: provisions have been subjected to considerable judicial exegesis. It suffices for present purposes if I refer without further comment to observations of Kirby P in Daemar v Industrial Commission of New South Wales (1988) 12 NSWLR 45 at 50: These provisions make it clear that the scheme and purpose of the Act is, upon the debtor's becoming a bankrupt, to transfer property rights, including certainly the right to sue in respect of claims to property, from the bankrupt to his trustee. This is so, notwithstanding that it involves personal inconvenience to the bankrupt: see Faulkner v Bluett [1981] FCA 5 ; (1981) 52 FLR 115 at 119. Indeed, it is so notwithstanding the fact that it deprives the bankrupt of important civil rights which he or she would otherwise normally enjoy. It is of the essence of bankruptcy, as provided for by the Act, that property which belongs to the bankrupt, including choses in action (other than those which are specifically exempted) are vested upon bankruptcy in the bankrupt's trustee.


case_text: was an appeal by Mr Rana from the decision of the Federal Magistrate who made the sequestration order against him. The Trustee wrote to the court on 29 August 2008 notifying its decision to elect to discontinue the appeal. Nonetheless, the matter properly was heard: Cirillo v Consolidated Press Property Pty Ltd [2007] FCA 592 at [11] ; and the appeal was dismissed on 20 October 2008. An application was made to the High Court for special leave. As will be seen below that application has been dismissed. There is no decision of the Trustee in relation to the appeal to the Federal Court that could now found proceedings under the AD(JR) Act or s 178 of the Bankruptcy Act. (iv) A 32 of 2008 This was the application for special leave to appeal against the decision in SAD 124 of 2008. It was dismissed on 29 April 2009. The Official Trustee does not appear, on the evidence before me, to have made any decision after the decision in SAD 124 of 2008 which could now be the subject of review in this matter. (v) A 20 of 2008


case_text: the decision refusing the application for an extension of time in which to appeal against the above orders, Lander J indicated that judgment had been entered against Mr Rana under s 31A , not because of some failure in the pleading to identify a cause of action: Judgment was entered against him [on 17 March] because, manifestly, in the manner in which the proceeding was presented, he had no claim against any of those four respondents. He could not have, in my opinion, amended his statement of claim so as to cure those defects: Rana v University of Adelaide [2008] FCA 940 at [14] . See also Rana v University of Adelaide [No 2] [2008] FCA 494 at [7] in relation to the 3 rd respondent where the claim dismissed was based on an email found to be not authentic.


case_text: would interpolate that, having regard to the complaints made by Mr Rana against the various respondents, the proceeding before Lander J was, manifestly, an abuse of process: it was "foredoomed to fail": Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378 at 393. The preliminary point to be noted about A 20 of 2008 is that the action was commenced after Mr Rana's bankruptcy. Importantly it thus falls outside of the provisions of s 60(2) and (4) of the Bankruptcy Act . This requires emphasis. In Daemar a proceedings by way of summons claiming orders in the nature of prerogative relief (together with damages and declaratory relief) was held by the Court of Appeal of New South Wales to be an "action" for the purposes of s 60(2) of the Bankruptcy Act . It was, in the circumstances, further held to be an action in which the plaintiff sought relief affecting his property. It was not one in respect of any personal injury or wrong done to the bankrupt, Mr Daemar, for the purposes of the s 60(4) exemption from the s 60(2) stay. Mr Rana's obvious motivation in instituting the show cause action was as a step along the way to establishing and vindicating the right he alleges he has to recover damages for a personal injury or wrong to him. This is clear on the face of the application which joined all of the respondents in the proceeding before Lander J. Moreover the grounds on which relief was sought were directed at those respondents. It is not for me in this proceeding to consider whether he had standing to institute the action. That is a matter for the High Court. My present concern, rather, is with whether it can properly be said he is able to seek succour in s 116(2)(g) and hence challenge the trustee's discontinuance of the proceeding. I do not consider that he can do so. I can state my reasons shortly. First, though the various causes of action are widely cast in the Statement of Claim, at their centre are claims for breaches of contracts against some of the respondents and breaches of confidence, with satellite claims for negligence, defamation (to which I will refer separately below) and contraventions of s 52 of the Trade Practices Act against one or other of them. The contracts in question were a series of settlement agreements with several of the respondents in respect of outstanding litigations against them. The damages said to flow from all of these various wrongs, as best one can understand it, appears to be constituted primarily by a claim for $4,000,000 for "the loss and damage occurring to the applicant's compensation and benefits claims against the Commonwealth ... and its various agencies". It is to say the least difficult to see how such damages could be said to result from the wrong alleged. They clearly are not relevantly damages for a "personal injury or wrong done to [him]": cf s 60(4) and s 116(2)(g). Distinctly, I am not satisfied that Mr Rana is seeking to vindicate or establish a "personal wrong or injury" for s 116(2)(g) purposes. All of the claims he advanced (in SAD 12 of 2008) against all five respondents were struck out as abuses of process. No legally intelligible claims were disclosed against four of the respondents; the remaining claim against the University of South Australia was also struck out for the same reason, his Honour having found it was based on a document relied upon by Mr Rana which was "not authentic": Rana v University of Adelaide (No 2) at [7]. The proceedings before Lander J were doomed to failure. The imagined claims made did not give that degree of authenticity to the rights asserted such as would justify characterising them as rights to recover damages for personal injury or wrong to the bankrupt for s 116(2)(g) purposes. They are illusory rights. The final comment I should make is this. If I was not satisfied that, for whatever reason, the show cause action had not vested in the Trustee, I would not have declined to award Mr Rana relief on the grounds of futility. The present proceedings is quite unlike Daemar [No 2] . The High Court, not this Court, is seized of the show cause application. It is not for me to express a view on whether the High Court action is either competent or has any prospects of success. It is for that Court to do so. Having found that the proceeding A20 of 2008 was one for the Trustee and not Mr Rana to prosecute if it was to be prosecuted at all the Trustee's decision to discontinue it was, on the material before me, unimpeachable. That decision as I have indicated was the only one which raised any issue of substance for the purposes either of the AD(JR) Act or s 178 of the Bankruptcy Act . I have already indicated why there are no grounds at all for providing relief against the Trustee in respect of his decisions (actual or alleged) concerning the other proceedings referred to in Mr Rana's application. Accordingly, I will give summary judgment in favour of the respondents and will order that the proceeding be dismissed against each respondent. I will also order the applicant pay the costs of each respondent. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 18 September 2009 Counsel for the Applicant: The Applicant appeared in person. Counsel for the First Respondent: The First Respondent did not appear. Counsel for the Second Respondent: G Gretsas Solicitor for the Second Respondent: Gretsas & Associates Counsel for the Third Respondent: The Third Respondent did not appear. Date of Submissions: 20 and 25 May 2009 Date of Judgment: 18 September 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1050.html


case_text: am for present purposes obliged to accept the Court's ruling in relation to its characterisation of the proceedings in that case as "an action": Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 ; (2007) 230 CLR 89 at [135] . The Bankruptcy Act does not make express provision for actions instituted by a bankrupt after his or her bankruptcy in respect of a cause of action which either predates or post-dates the bankruptcy. The effect of the bankruptcy on that cause of action is said to be governed by s 58 and s 116 of the Act, these being the provisions relating to the vesting of the bankrupt's property in the trustee in bankruptcy and to the property available for distribution among the creditors: see 3 The Laws of Australia, "Bankruptcy" at [3.8.940]. If such be the case, the issue which arises is not, as in Daemar , with the question whether Mr Rana's show cause proceedings is an "action". Rather, it is with whether it is "property" passing to the Trustee under s 58(1) and, if so, whether it is divisible amongst his creditors under s 116(1) or exempted therefrom by s 116(2)(g) (ie is it a "right ... to recover damages or compensation ... for personal injury or wrong done to [him]"). In Daemar Kirby P acknowledged the possibility of "a serious disharmony" between s 60(2) and s 58(1) and their respective operations upon claims brought, respectively, before and after bankruptcy supervened: at 53 and 55. In the case there before the Court, the claim (as noted) was instituted before the bankruptcy and thus fell clearly within s 60(2). His Honour went on to say (at 55): If the section is clear, as I believe it to be, the fact that it may sometimes provide a wider provision for a stay on proceedings commenced before bankruptcy than would effectively be secured by proceedings commenced after bankruptcy does not avail the claimant. Especially because the Parliament has specifically adumbrated the exceptions to the operation of the statutory stay, in the terms of s 60(4), this indicates that it attended to the way in which prior civil action should go forward at the option only of the trustee, or be stayed by the statute. The scheme of Part IV, Division 4 of the Bankruptcy Act (which contains s 58(1) and s 60(2) and (4)) would appear to proceed upon the premise that, subject to s 60(4), all "actions" encompassed by s 60(2) have been vested in the trustee by s 58(1) such that in the administration of the bankrupt's estate, he or she can make the election envisaged by s 60. Such vesting necessarily presupposes that all such actions were the bankrupt's property.


case_outcome: considered

case_text: Daemar v Industrial Commission of New South Wales [No 2] (1990) 22 NSWLR 178 , the New South Wales Court of Appeal revisited its earlier orders. Mr Daemar had by now been discharged from bankruptcy and sought the vacation or variation of the stay which the Court had held was in place by force of s 60(2) .


case_title: Madden v Madden [1995] FCA 297

case_text: present, as I have noted, is not a s 60 case, and neither is Mr Rana an undischarged bankrupt. Nonetheless I consider I am obliged to follow the reasoning of the Daemar cases insofar as it has a direct bearing upon the matter before me: cf Farar Constructions . Whatever my own concerns, they are decisions of long standing which have been considered and applied without demur including in decisions of this Court: see eg Madden v Madden [1995] FCA 297 ; Fitzpatrick v Keelty [2008] FCA 35.


case_title: Fitzpatrick v Keelty [2008] FCA 35


case_text: Cox v Journeux [No 2] [1935] HCA 48 ; (1935) 52 CLR 713 Dixon J indicated (at 721) that the test whether the above Bankruptcy Act formula was satisfied was ... whether the damages or part of them are to be estimated by immediate reference to pain felt by the bankrupt in respect of his mind, body or character and without reference to his rights of property. The losses of compensation and benefits from the Commonwealth which Mr Rana claims by way of damages are manifestly not so estimated. Rather, they are presumably referable to entitlements which he alleges he has against the Commonwealth and its agencies but of which he has been deprived. To the extent that these make up the major part of the damages he claims, then the causes of action to which they relate have passed to the Trustee to the exclusion of Mr Rana.


case_text: provisions have been subjected to considerable judicial exegesis. It suffices for present purposes if I refer without further comment to observations of Kirby P in Daemar v Industrial Commission of New South Wales (1988) 12 NSWLR 45 at 50: These provisions make it clear that the scheme and purpose of the Act is, upon the debtor's becoming a bankrupt, to transfer property rights, including certainly the right to sue in respect of claims to property, from the bankrupt to his trustee. This is so, notwithstanding that it involves personal inconvenience to the bankrupt: see Faulkner v Bluett [1981] FCA 5 ; (1981) 52 FLR 115 at 119. Indeed, it is so notwithstanding the fact that it deprives the bankrupt of important civil rights which he or she would otherwise normally enjoy. It is of the essence of bankruptcy, as provided for by the Act, that property which belongs to the bankrupt, including choses in action (other than those which are specifically exempted) are vested upon bankruptcy in the bankrupt's trustee. As to Mr Rana's alleged cause of action for damages against the University of Adelaide for defamation for which the University was alleged to be vicariously liable, the claim, while hopelessly misconceived, was in form for a personal injury or wrong done to him: s 116(2)(g). As such, it could be said not to be of a type that would vest in the Trustee. Nonetheless, it failed for the same reason as did all of the claims made against the University. The actions giving rise to those claims were done by a person acting in his private capacity and not as an employee of the University. In this sense this claim was integrally interconnected in the proceedings with the other non-personal claims made in SAD 12 of 2008 which made up the real substance of that litigation. In these circumstances I regard it as unnecessary here to enter upon any consideration of apportionment of Mr Rana's claims against the University: cf Faulkner v Bluett [1981] FCA 5 ; (1981) 52 FLR 115 at 115; Rogers v Asset Loan Co Pty Ltd [2006] FCA 434 at [47] and [51] for the purposes of A20 of 2008. Apportionment was not raised before me in any event. It was for the Trustee, not Mr Rana, to determine whether the show cause application would be prosecuted.


case_text: to Mr Rana's alleged cause of action for damages against the University of Adelaide for defamation for which the University was alleged to be vicariously liable, the claim, while hopelessly misconceived, was in form for a personal injury or wrong done to him: s 116(2)(g). As such, it could be said not to be of a type that would vest in the Trustee. Nonetheless, it failed for the same reason as did all of the claims made against the University. The actions giving rise to those claims were done by a person acting in his private capacity and not as an employee of the University. In this sense this claim was integrally interconnected in the proceedings with the other non-personal claims made in SAD 12 of 2008 which made up the real substance of that litigation. In these circumstances I regard it as unnecessary here to enter upon any consideration of apportionment of Mr Rana's claims against the University: cf Faulkner v Bluett [1981] FCA 5 ; (1981) 52 FLR 115 at 115; Rogers v Asset Loan Co Pty Ltd [2006] FCA 434 at [47] and [51] for the purposes of A20 of 2008. Apportionment was not raised before me in any event. It was for the Trustee, not Mr Rana, to determine whether the show cause application would be prosecuted.


case_text: The meaning of 'decision' in s 3(1) was considered at length by Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321. His Honour, with whom Brennan and Deane JJ agreed, observed that 'decision' in the context of s 3(1) indicates that: • the decision is one required or authorised by statute rather than merely a step taken in the course of reasoning on the way to the making of the ultimate decision (at 336) • the decision has the character or quality of finality (although qualified by s 3(3)) (at 336) and is not merely an expression of opinion or a statement which can of itself have no effect on a person (at 338) • 'decision' does not include acts preparatory to making a decision such acts may fall within 'conduct' engaged in for the purpose of making a decision (at 336) • as a general rule, it is a substantive determination rather than a procedural determination (at 337). 39 For the purpose of an analysis as to the application of s 9A ADJR Act to the decision of the first respondent, I shall assume for the moment that the decision of the first respondent to obtain a search warrant was a 'decision' within the meaning of s 3(1) (although I will consider this issue in more detail later in this judgment). 40 In order for the decision of the first respondent to obtain the search warrant to be a related criminal justice process decision, the decision must have been made in the criminal justice process in relation to the offences for which the applicant has been charged. Section 9A(4)(a) defines a related criminal justice process decision as including 'a decision in connection with the investigation, committal for trial or prosecution of the defendant' (s 9A(4)(a)(i)) and 'a decision in connection with the issue of a warrant, including a search warrant or a seizure warrant' (s 9A(4)(a)(iii)). 41 In his written submissions, Mr Asuzu for the applicant in par 2 stated that the search warrant was obtained 'as a procedural step...in commencing action against the applicant'. The offences with which the applicant has been charged were described in par 1 of Mr Asuzu's written submissions. 65 'Conduct' for the purposes of s 6 ADJR Act is: 'action taken, rather than a decision made, for the purpose of making a reviewable decision. In other words, the concept of conduct looks to the way in which the proceedings have been conducted, the conduct of the proceedings, rather than decisions made along the way with a view to the making of a final determination. Thus, conduct is essentially procedural and not substantive in character.' (Mason CJ in Australian Broadcasting Tribunal v Bond at 341-342) 66 Mason CJ in Bond explained the fundamental difference between 'a decision' and 'conduct' as follows: 'In relation to conduct, the complaint is that the process of decision-making was flawed; in relation to a decision, the complaint is that the actual decision was erroneous. To give an example, the continuation of proceedings in such a way as to involve a denial of natural justice would amount to 'conduct'. That is not to deny that the final determination of the proceedings would constitute a decision reviewable for denial of natural justice.' (at 342) 67 Of the applicant's particularised grounds concerning the second respondent, the only claim which could possibly bear any relationship to 'conduct' which is essentially procedural in nature concerned the alleged insertion by the second respondent of the wrong and incorrect sequence of her registration number on the search warrant. To the extent that this is reviewable conduct (and in my view, that is dubious) this allegation is buried in a substantive claim that the second respondent 'perverted the course of justice' presumably in respect of the manner in which she issued the search warrant. Other than this possible issue, the claim of the applicant concerning the second respondent concerns her decision to issue the search warrant, not procedural issues relevant to the decision. 74 As I said earlier in this judgment, a 'decision' under the ADJR Act requires an element of finality, rather than acts preparatory to the making of a decision (Mason CJ in Bond at 336). Further, the meaning of a decision made 'under an enactment' was explained by Gummow, Callinan and Heydon JJ in Griffith University v Tang [2005] HCA 7 ; (2005) 221 CLR 99 as follows: 'The determination of whether a decision is "made... under an enactment" involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be "made... under an enactment" if both these criteria are met.' (at 130)