mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374
Outcome: cited
this principle applies in relation to decisions of the Tribunal appears settled law: Comcare Australia v Grimes [1994] FCA 1054 at [24] , Cheung v AAT [2009] FCA 241 at [49] . In affirming the principle, the Full Court in Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374 said at 390: In our view, the essentially administrative nature of the Tribunal's function and the nature of its task in looking to the correct or preferable decision, in circumstances where it is to have regard amongst other things to the dictates of fairness, point to the conclusion that the Tribunal may, in appropriate circumstances, conclude that a previous decision should be applied again as the correct and preferable decision when it is sought to revisit the earlier decision at some later time. Of course, the circumstance that a Court has set aside an entire decision may mean that it is either impermissible, or quite inappropriate, to adopt such a course but that would not necessarily be the case where, as here, a particular determination had not itself been the subject of challenge. In the present case, we think it was open to Purvis J, having considered all the relevant circumstances, to regard the previous decision of Mr McMahon as determinative of the s 501(2) issue and to decide that this issue should not be reopened. Of course, his Honour might have concluded that this course was not appropriate in the circumstances; but it was a matter of discretion and his Honour's reasons lead us to conclude that he did not see himself as having such discretion. In this respect there was an error of law. The law is clear that failure to consider a submission of substance which, if accepted, would be capable of affecting the outcome of the case, constitutes an error of law ( Applicant WAEE v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 184 ; Casarotto v Australian Postal Corporation [1989] FCA 116 ; (1989) 86 ALR 399 at 403; Dennis Willcox Pty Ltd v FCT (1988) 79 ALR 267 at 276; Sellick [2008] FCA 236 at [35] ). Was the submission of the Authority in relation to previous consideration of the issue of Mr House's personality disorder a submission of substance? In my view it was. While the Tribunal was not necessarily bound by its early decision indeed the decision of the Full Court in Morales (1998) 82 FCR 374 indicates that the issue was one of discretion nevertheless the submission should have been considered by the Tribunal in reaching its decision. Failure by the Tribunal to do so in my view constitutes an error of law. Second and third grounds of appeal
Case: Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) [1987] FCA 301 ; (1987) 77 ALR 577
Outcome: cited
my view, in the circumstances the Tribunal's statement of reasons were inadequate. I accept the Authority's submission that these reasons do not satisfy the test in Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) [1987] FCA 301 ; (1987) 77 ALR 577 , namely that the unsuccessful party, having read the decision, must be in a position to say: Even though I may not agree with it, now I understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging. ( Our Town FM Pty Ltd [1987] FCA 301 ; (1987) 77 ALR 577 at 593)
Case: Tobacco Institute of Australia Ltd v National Health and Medical Research Council (1996) 71 FCR 265
Outcome: cited
a failure by the Tribunal to advert to the content of submissions does not of itself necessarily mean that the matter was not considered ( Tobacco Institute of Australia Ltd v National Health and Medical Research Council (1996) 71 FCR 265 at 279, Australian Postal Corporation v Sellick [2008] FCA 236 at [35] ). However in this case, aside from a bare reference by the Tribunal to the existence of its 2004 decision (at [4]), there is no indication that it had taken into consideration the submission of the Authority concerning previous consideration by the Tribunal of issues relating to Mr House's personality disorder. This absence of reference to its earlier decision is particularly surprising where the Tribunal has found that Mr House had greater incapacity than that found by the Tribunal in 2004, notwithstanding the evidence before the Tribunal in these proceedings that, between August 2001 and November 2004, inter alia , Mr House had stopped drinking ( House [2008] AATA 38 at [15] ), was no longer an active alcoholic ( House [2008] AATA 38 at [52] ), and Mr House was maturing and less affected by his personality disorder ( House [2008] AATA 38 at [60] ).
Case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1985-1986) 162 CLR 24
Outcome: applied
consideration is "irrelevant" in an administrative law error sense only if it is a consideration the taking into account of which is forbidden by the legislation concerned, either expressly or by implication having regard to its subject matter, scope and purpose: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1985-1986) 162 CLR 24 at 39-40. The considerations that the Act made relevant to the formation of an opinion as to whether Mrs Holmes were living separately and apart on a permanent or indefinite basis were those specified in s 4(3). It is significant that this subsection's opening command is to have regard to all the circumstances of the relationship between two people. In the statutory context of whether she was a "member of a couple", the only effect in law of Mrs Holmes' subsisting legal marriage was that she was in form in a relationship with her husband. That this was the form of the relationship meant nothing more in the circumstances than that the requirement to have regard to the considerations mentioned in s 4(3) came both from the opening words of that subsection as well as from s 4(2)(a) of the Act. Irrespective of whether its application is engaged via the existence of a legal marriage, the primary direction given by s 4(3) is to assess the nature and quality of a relationship between two people by reference to all of the circumstances of that relationship. The evident intent of Parliament is to ensure that administrative decision-makers concern themselves with the substance, not the form, of a relationship; hence this primary direction in the subsection's preamble. The considerations which follow in that subsection are not intended to be exhaustive. They are though "relevant considerations" in the sense described in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (ibid). Depending on the level of abstraction at which one approaches the meaning and application of s 4(3), there is no error in approaching the question of whether to form the required statutory opinion with a pre-conception of what constitutes a "marriage". How else, especially when the members of a couple are legally married, is sensible meaning to be given to the consideration specified in s 4(3)(e)(iv), " whether the people see their relationship as a marriage-like relationship "? In that context, the Act anticipates that a concept of marriage will serve as a touchstone against which is to be measured how the parties to a relationship themselves conceive of their relationship, irrespective of its legal form. The learned senior member, correctly in my respectful opinion makes this very observation in par 16 of his reasons.
Case: Re VCG and Secretary, Department of Employment and Workplace Relations ; [2006] AATA 956 ; (2006) 93 ALD 215
Outcome: cited
means nothing more than resembling a marriage. In this very general sense some meaning, a usual or "normal" meaning, must be given to the word "marriage". In considering what this meaning might be the learned senior member evidently gained assistance from and came to apply a meaning given to the word by Deputy President Forgie in Re VCG and Secretary, Department of Employment and Workplace Relations ; [2006] AATA 956 ; (2006) 93 ALD 215 , at 223, [15] in which she observed that a general feature of marriage was "..... a sense of union between two people and a common purpose" . That observation by the Deputy President followed a comprehensive survey by her of judicial observations and those in the texts of various religions as to what constituted "marriage". A similar meaning for the word "marriage" is derived by recourse to standard Australian dictionaries, "a lawful union between a man and a woman for life": Macquarie Dictionary, Federation Edition , p. 1172; "the legal union of a man and a woman in order to live together and often to have children": Australian Oxford Dictionary , p. 828. The essential quality of the word, "marriage" is union. The word "marriage" as used as part of the expression "marriage-like" in ss 4(2), 4(3) and 4(3A) of the Act is intended to apply to persons irrespective of their personal religious beliefs or in the absence of any such beliefs. These subsections are intended to have application irrespective of cultural and religious predominance or difference in our society. Beyond the general level of abstraction that "marriage" as used in this expression involves a sense of union between two people and a common purpose one must be careful to guard against discounting whether a relationship is or is seen to be "marriage-like" because of a priori assumptions concerning marriage grounded, for example, in Judeo-Christian beliefs, however deeply and sincerely one personally holds those beliefs. Reading the published reasons as a whole, it seems to me that the Tribunal was astute to approach the assessment of the relationship between Mrs Holmes and her husband in this way and without such assumptions. In deciding, as he thought was his task, whether the parties were in a marriage-like relationship or conversely were living separately and apart on a permanent or indefinite basis the learned senior member cautioned that a relationship " is not assessed against some hypothetical standard which assumes that a marriage or marriage-like relationship is mostly full of positive aspects and goodwill. Families and those within them, the adult members and children, are all capable of the range of human emotions including the negative traits such as violence, hatred, selfishness and mental health disorders. The complexity of human behaviour and the capacity for some to withstand the stressors of life to a greater or lesser degree makes it complex and often unpredictable " (Reasons, par 18).
Case: Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110
Outcome: cited
have already referred to the reminder given by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 as to the distinction in law between a "jurisdictional fact" grounded in the holding of an opinion or state of satisfaction as to whether a given state of affairs exists and one grounded in whether that state of affairs truly exists. Earlier in time and in a passage to which Gummow J drew attention in his judgment in Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 , at 653-654 [136], Gibbs J had observed in Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-119, in relation to the review of a "satisfaction" based decision by a court: "In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached." The formation of an opinion for the purposes of s 4(2)(a) of the Act as to whether a legally married couple were living separately and apart on a permanent or indefinite basis is a paradigm example of the kind of statutory provision to which reference is made in the passages quoted from Eshetu and Buck v Bavone .
Case: Puhlhofer v Hillingdon [1986] UKHL 1 ; [1986] AC 484
Outcome: cited
similar effect is a passage in the speech of Lord Brightman in Puhlhofer v Hillingdon [1986] UKHL 1 ; [1986] AC 484 , at 518, referred to with approval by Gleeson CJ and McHugh J in their separate, joint judgment in Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 , at 626-627 [41], with whose reasons Hayne J (at 659 [158]) relevantly agreed: "Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely."
Case: Waterford v The Commonwealth (1986-1987) 163 LR 54
Outcome: cited
these circumstances, the answering of the questions posed in pars 2.10 and 2.11 of the notice of appeal is ultimately nothing to the point. Why that is so was explained in the following remarks made by Brennan J in Waterford v The Commonwealth [1987] HCA 25 ; (1986-1987) 163 CLR 54 at 77: "A finding by the AAT on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law. Section 44 of the AAT Act confers on a party to a proceeding before the AAT a right of appeal to the Federal Court of Australia 'from any decision of the Tribunal in that proceeding' but only 'on a question of law'. The error of law which an appellant must rely on to succeed must arise on the facts as the AAT has found them to be or it must vitiate the findings made or it must have led the AAT to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact. " (Emphasis added)
Case: Minister for Immigration &amp; Multicultural Affairs v Epeabaka [1999] FCA 1 ; (1998) 84 FCR 411
Outcome: cited
aside, the judicial review of a finding of fact on an error of law ground is to be undertaken in conformity with Minister for Immigration &amp; Multicultural Affairs v Epeabaka [1999] FCA 1 ; (1998) 84 FCR 411 , at 421, [22] in which the Full Court (Black CJ, von Doussa and Carr JJ) held that the following passage from the judgment of Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 356 is to be regarded as providing "authoritative guidance": "Thus, at common law, according to Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place."
Case: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321
Outcome: cited
aside, the judicial review of a finding of fact on an error of law ground is to be undertaken in conformity with Minister for Immigration &amp; Multicultural Affairs v Epeabaka [1999] FCA 1 ; (1998) 84 FCR 411 , at 421, [22] in which the Full Court (Black CJ, von Doussa and Carr JJ) held that the following passage from the judgment of Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 356 is to be regarded as providing "authoritative guidance": "Thus, at common law, according to Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place."
Case: Tankey v Adams [2000] FCA 1089 ; (2000) 104 FCR 152
Outcome: applied
in time and having referred with approval to Morales' Case , the Full Court (Ryan, O'Connor and Weinberg JJ) in Tankey v Adams [2000] FCA 1089 ; (2000) 104 FCR 152 at 183 [119] stated that, " The relief which may be granted will depend on the effect of the error of law on the decision-making process. Errors of law which are 'harmless' or 'trivial' do not normally warrant the setting aside of an administrative decision Department of Social Security v McKenzie." This statement, in my respectful opinion, is peculiarly apposite in the circumstances of the present case. The Tribunal did err in law in formulating the questions before it for decision but, for the reasons I have given, that error was "harmless". It seems to me that this is a case in which it is open to determine the appeal by dismissing it. After the conclusion of oral argument on the appeal the Court was advised that the Secretary's legal representatives had reached an agreement with those of Mrs Holmes in relation to costs.
Case: Victoria v The Commonwealth [1971] HCA 16 ; (1970-1971) 122 CLR 353
Outcome: cited
the conclusion of his judgment in Victoria v The Commonwealth [1971] HCA 16 ; (1970-1971) 122 CLR 353 , at 404-405 Windeyer J felt moved to refer to a passage from Edmund Burke's Observations on a Late Publication intituled The Present State of the Nation , written in 1769 which he had recently come across in which Burke had opined, "Men of sense when new projects come before them always think a discourse proving the mere right or mere power of acting in the manner proposed to be no more than a very unpleasant way of misspending time." That reference, of course, had a particular resonance in a case concerning the power of the Commonwealth Parliament to subject the States to pay-roll tax. The present case concerns not high matters of public finance and constitutional law but government at its most intimate, whether an administrative body's value judgment that a woman subjected to domestic violence was living separately and apart from her husband on an indefinite basis was flawed by error of law such that the case had to be considered on the merits yet again. Seized with the knowledge that the error was one induced by the Secretary and that it was, in the circumstances, harmless, any man of sense might well consider that Burke's description also had application in relation to the Secretary's appeal. It only comes to this, that I dismiss the appeal and make no order as to costs. I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 20 February 2008 Counsel for the Applicant: Ms L Walker Solicitor for the Applicant: Sparke Helmore Lawyers Counsel for the Respondent: Ms N Kidson Solicitor for the Respondent: Welfare Rights Centre Inc Date of Hearing: 19 December 2007; further written submissions by direction February 2008 Date of Judgment: 20 February 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/105.html
Case: Conway v Petronious Clothing Co Ltd [1978] 1 WLR 72
Outcome: considered
Conway v Petronious Clothing Co Ltd [1978] 1 WLR 72 , Slade J followed this observation of Street CJ and reached the following conclusions in relation to the nature of the rights of a director to inspect the books of account of a company: "1. The right exists, but it is a right conferred by the common law, and not by statute ... The right of a director to see his company's books of account, which is exercisable both at and outside meetings, is conferred by the common law in order to enable the director to carry out his duties as a director ... The right of a director to inspect the company's books of account must determine upon removal of the director from office. The right not being a statutory right, the court is left with a residue of discretion as to whether or not to order an inspection." The only issue which might be controversial is the observation of Slade J in Conway v Petronious Clothing Co Ltd , that the court has a discretion whether or not to allow inspection. In Berlei Hestia (NZ) Ltd v Fernyhough [1980] 2 NZLR 150 , Mahon J rejected the proposition that the court had a discretion whether or not to permit a director to have access to the books of the Company.
Case: Burn v London and South Wales Coal Co (1890) 7 TLR 118
Outcome: followed
J also relied upon, and adopted, the observations of North J in Burn v London and South Wales Coal Co (1890) 7 TLR 118 at 119, where North J accepted that a director, in order that he might properly perform his duties, had, from the nature of the case, a right to see all the documents under the control of the Company. Edman v Ross (supra) was also followed by De Jersey J, as he then was, in Kriewaldt v Independent Direction Ltd (1996) 14 ACLC 73 , where at 75, his Honour said: "A director obviously has a right of access to company documents to facilitate the performance of his or her duty, and that carries with it a right to make copies. See Edman v Ross and McGee v Sanders [1991] FCA 554 ; (1991) 32 FCR 397 , 405".
Case: Molomby v Whitehead [1985] FCA 421 ; (1985) 7 FCR 541
Outcome: cited
observations of Street CJ in Eq have been followed in subsequent cases. See for example Molomby v Whitehead [1985] FCA 421 ; (1985) 7 FCR 541 at 550, where Beaumont J said: "The right or power of a director of a company or a corporation to inspect corporate material in aid of the proper execution of his fiduciary obligations to advance the interests of the Company or corporation is well recognised." Beaumont J cited a number of earlier cases in support of this proposition, to which I do not need to refer at this point of time.
Case: Boulos v Carter; Re TARBS World TV Australia Pty Ltd (2005) 220 ALR 572
Outcome: cited
Boulos v Carter; Re TARBS World TV Australia Pty Ltd (2005) 220 ALR 572 , Barrett J said at 582: It is unnecessary to go into any detailed analysis of the general law position. The right of a director to inspect company documents, and, if necessary, to take copies of them has long been recognised as one of the rights that general law affords a director for the purpose of enabling him or her to perform the functions and discharge the duties of the office of director. The classic statement of this right appears in a judgment of Street CJ in Eq Edman v Ross ."