mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Van Grieken v Veilands (1991) 21 ATR 1639 
Outcome: cited
Subsequently in Van Grieken v Veilands (1991) 21 ATR 1639, Gummow J cited the principled approach outlined by Hill J in Powell with at least implicit approval, observing that his Honour had further pointed out (at 626 of Powell ) that the decision-maker was entitled to 'consider not only such matters as go to the issue of serious hardship, but also other matters which, in the discretion of the Board, may be relevant'. 56 In my opinion submissions propounded by the Commissioner, which I have sought to outline in detail discretely or in the aggregate, do not vitiate the conclusions of the Tribunal according to law. The Tribunal's conclusions were reasonably open for adoption, being sufficiently founded upon evidentiary material bearing upon the critical statutory issue of serious hardship , including in particular the fraudulent conduct of Mr Milne's former partner in legal practice and its adverse effect upon Mr Milne financially and probably to at least an intangible extent professionally, and the unsaleable character of the Brindabella property for the time being for the reasons I have earlier indicated. It is of course necessary in that regard that the Commissioner's challenge to the factual findings of the Tribunal should establish a viable footing according to principles of administrative law, and the present appeal does not of course operate by way of a re-hearing. As I have foreshadowed, I am unable to accept that the Commissioner has distilled administrative error in the juridical sense referrable to the reasoning and findings of the Tribunal, being reasoning and findings which were rationally open for adoption in my opinion according to principles of administrative law, and in particular in the light of the relevant evidentiary material placed before the Tribunal. That material was consistent essentially with the conclusion that any enforced exaction of the outstanding income tax indebtedness of Mr Milne would cause serious hardship within the scope of that notion established for instance in Powell and subsequently in Van Grieken , and as continues in operation in the terms of operation of s 340-5 of the Administration Act.
Case: Bond v The Trustee of the Property of Alan Bond, A Bankrupt (1994) 52 FCR 304 
Outcome: referred to
Moreover it was pointed out by the Commissioner that the value of a benefit received by a bankrupt fell within the operation of Subdivision D of Division 4B contained in Part VI of the Bankruptcy Act 1966 (Cth) ('the Bankruptcy Act '), which was said to have two elements: first it requires a bankrupt who derives income during the bankruptcy to pay contributions to his or her bankrupt's estate; secondly, it permits the bankrupt to seek to have contributions reduced in the case of hardship (in that regard I was referred to the circumstances considered by a Full Court (French, Cooper and Carr JJ) in Bond v The Trustee of the Property of Alan Bond, A Bankrupt (1994) 52 FCR 304 at 325, 327 and 332.
Case: New South Wales Bar Association v Murphy [2002] NSWCA 138 ; (2002) 55 NSWLR 23 
Outcome: referred to
The test to be applied when determining fitness to hold a practising certificate, in the context of course of bankruptcy, was said by the Commissioner to be 'robust', the question not being whether the indebtedness which led to the bankruptcy was brought about by or associated with dishonest conduct by the applicant for a certificate, but whether the circumstances in which the act of bankruptcy was committed were such as to persuade the Council that at the time of its determination, the person is not a fit and proper person to hold a practising certificate (I was referred in that context generally to New South Wales Bar Association v Murphy [2002] NSWCA 138 ; (2002) 55 NSWLR 23). There was no material adduced in evidence indicative of any shortcoming in Mr Milne's fitness and propriety to practice as a lawyer. 45 The Commissioner submitted moreover that the Tribunal failed to consider and take into account the provisions relevantly of the LP Act. It was asserted in that regard that on a proper understanding of the meaning of serious hardship , a person such as Mr Milne, who had the capacity to meet his tax liability out of currently held assets, could never satisfy the Commissioner that his circumstances gave rise to the exercise of any discretion in favour of release from tax liability. For that reason alone, it was said by the Commissioner that the Tribunal's decision ought to be set aside, there being no utility in ordering that the matter be remitted to the Tribunal for proper or further consideration. Bearing in mind that the realty here involved in both instances was held jointly with his estranged wife, it would be a formidable exercise to determine what funds, if any, might ultimately be available for payment of the subject outstanding income taxes, and for the satisfaction of the secured creditors of Mr Milne and his wife to the extent of any shortfall on any mortgagee sale, and of her half share in the 'equity' of any remaining net proceeds in relation to the sale of their jointly held realty.
Case: Parramatta City Council v Pestell [1972] HCA 59 ; (1972) 128 CLR 305
Outcome: referred to
Addressing a further basis advanced by the Commissioner for the present administrative review sought, it was contended that on a proper understanding of the two-tiered test in subs 340-5(3) of the Administration Act, no reasonable Tribunal could have exercised the statutory discretion to release Mr Milne from his taxation liability. Reference was made by the Commissioner in that regard to the grant of administrative relief made available in Parramatta City Council v Pestell [1972] HCA 59 ; (1972) 128 CLR 305, which related to a local Council's imposition of a rate because of the special benefit flowing from the Council's execution of a particular work or service on public property, and which the High Court affirmed to be invalid. It was argued by the Commissioner conversely that the factual circumstances of a high income earner having substantial assets, sufficient in value to meet all current liabilities, could not reasonably fall within the statutory notion of serious hardship . It is normally a formidable task to establish that the decision of an administrative decision-maker satisfies that test of invalidity. The Commissioner advanced the further case that the exercise of the Tribunal's power to release Mr Milne was unreasonable, in that on the evidence placed before it, no reasonable person could have come to the conclusions reached by the Tribunal in its decision the subject of appeal. I was referred again to Peko-Wallsend where at 41, Mason J discussed the scope of the principle of Wednesbury unreasonableness. I would make a similar observation upon that submission to that which I have made in relation to satisfaction of the test in Pestell .
Case: Alexandra Private Geriatric Hospital Pty Ltd v Blewett (1985) 7 FCR 341
Outcome: followed
A decision may be set aside upon an application for judicial review if it is " so unreasonable that no reasonable authority could properly have arrived at it ": Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118 per Gibbs J. The test is an objective one: Alexandra Private Geriatric Hospital Pty Ltd v Blewett (1985) 7 FCR 341. Sheppard J there stated, at 357, that a court: ... ought not to reach the conclusion that the decision is so entirely unreasonable unless [it] is clearly of the opinion that no reasonable mind could reach it. The decision will not be vitiated just because a court itself believes that the decision is unreasonable. It must be satisfied that no person acting reasonably could arrive at such a decision. ...
Case: Applicant VEAL of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 72 , 225 CLR 88
Outcome: considered
No error may be discerned in the delegate adopting that approach. There is, in any event, only limited scope for contending that a decision is unreasonable by reason of a failure to pursue inquiries: cf Luu v Renevier (1989) 91 ALR 39 ; Visa International Service Association v Reserve Bank of Australia [2003] FCA 977 at [627] [628], [2003] FCA 977 ; 131 FCR 300 at 430 1 per Tamberlin J. Whatever may be the limits of an obligation upon a decision-maker to make inquiries when required to make relevant findings of fact, the obligation is even more confined when the administrative task being pursued is that of attempting to achieve a conciliated result. Only such inquiries need be undertaken by the delegate as are considered either appropriate or necessary to discharge the function of conciliation. The delegate is " not an independent arbiter charged with deciding an issue joined between adversaries " and was not bound to make his own inquiries for the purpose of forming a view about how a particular claim was to be resolved. Contrast: Applicant VEAL of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 72 at [26] , [2005] HCA 72 ; 225 CLR 88 at 99 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.
Case: Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110
Outcome: followed
A decision may be set aside upon an application for judicial review if it is " so unreasonable that no reasonable authority could properly have arrived at it ": Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118 per Gibbs J. The test is an objective one: Alexandra Private Geriatric Hospital Pty Ltd v Blewett (1985) 7 FCR 341. Sheppard J there stated, at 357, that a court: ... ought not to reach the conclusion that the decision is so entirely unreasonable unless [it] is clearly of the opinion that no reasonable mind could reach it. The decision will not be vitiated just because a court itself believes that the decision is unreasonable. It must be satisfied that no person acting reasonably could arrive at such a decision. ...
Case: Dunstan v von Doussa [2008] FCA 97
Outcome: cited
It should also be noted that an earlier interlocutory decision in these proceedings has caused to be joined the Attorney-General of the Commonwealth as the Fourth Respondent to the proceedings: Dunstan v von Doussa [2008] FCA 97. None of the remaining Respondents have taken any active part in the final hearing and each has instead filed a submitting appearance. 5 It is considered that the remaining claim for relief as made in the Further Amended Application should be dismissed. 6 The essential facts relevant to the decision not to revoke the Notice of Termination may be stated with some simplicity. 86 When the Attorney-General was joined as a party to the present proceedings, left open was this question as to whether he could seek an order for costs in the event that the Applicant was unsuccessful: Dunstan v von Doussa [2008] FCA 97 at [20] .
Case: Haneef v Minister for Immigration &amp; Citizenship [2007] FCA 1273 , 161 FCR 40
Outcome: followed
An " improper purpose ", it has been said, " will not lightly be inferred and, by application of a presumption of regularity, will only be inferred if the evidence cannot be reconciled with the proper exercise of the power ": Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46 ; (1990) 170 CLR 649 at 672 per Gaudron J. A person challenging an exercise of power upon the basis of improper purpose has the onus of establishing that contention. Where the purpose of a decision must be ascertained by inference from other facts, there is a presumption of regularity: Haneef v Minister for Immigration &amp; Citizenship [2007] FCA 1273 at [278] , 161 FCR 40 at 88 per Spender J. An appeal has been dismissed: Minister for Immigration &amp; Citizenship v Haneef [2007] FCAFC 203 , 163 FCR 414.
Case: Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46 ; (1990) 170 CLR 649
Outcome: followed
An " improper purpose ", it has been said, " will not lightly be inferred and, by application of a presumption of regularity, will only be inferred if the evidence cannot be reconciled with the proper exercise of the power ": Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46 ; (1990) 170 CLR 649 at 672 per Gaudron J. A person challenging an exercise of power upon the basis of improper purpose has the onus of establishing that contention. Where the purpose of a decision must be ascertained by inference from other facts, there is a presumption of regularity: Haneef v Minister for Immigration &amp; Citizenship [2007] FCA 1273 at [278] , 161 FCR 40 at 88 per Spender J. An appeal has been dismissed: Minister for Immigration &amp; Citizenship v Haneef [2007] FCAFC 203 , 163 FCR 414.
Case: Jones v Australian Competition &amp; Consumer Commission [2002] FCA 1054 , 76 ALD 424
Outcome: followed
If attention is more specifically confined to the "Particulars" in fact provided in the Further Amended Application , there is no basis for concluding that the decision of the First Respondent was vitiated by reason of " apprehended bias ". A reasonable apprehension of bias must be " firmly established ": Re JRL; Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342 at 352. It is not sufficient if a reasonable bystander " has a vague sense of unease or disquiet ": Jones v Australian Competition &amp; Consumer Commission [2002] FCA 1054 at [100] per Weinberg J, [2002] FCA 1054 ; 76 ALD 424. In the present proceedings there is not even a basis upon which any such " vague sense of unease " could be supported.
Case: Luu v Renevier (1989) 91 ALR 39
Outcome: discussed
No error may be discerned in the delegate adopting that approach. There is, in any event, only limited scope for contending that a decision is unreasonable by reason of a failure to pursue inquiries: cf Luu v Renevier (1989) 91 ALR 39 ; Visa International Service Association v Reserve Bank of Australia [2003] FCA 977 at [627] [628], [2003] FCA 977 ; 131 FCR 300 at 430 1 per Tamberlin J. Whatever may be the limits of an obligation upon a decision-maker to make inquiries when required to make relevant findings of fact, the obligation is even more confined when the administrative task being pursued is that of attempting to achieve a conciliated result. Only such inquiries need be undertaken by the delegate as are considered either appropriate or necessary to discharge the function of conciliation. The delegate is " not an independent arbiter charged with deciding an issue joined between adversaries " and was not bound to make his own inquiries for the purpose of forming a view about how a particular claim was to be resolved. Contrast: Applicant VEAL of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 72 at [26] , [2005] HCA 72 ; 225 CLR 88 at 99 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.
Case: Minister for Immigration &amp; Citizenship v Haneef [2007] FCAFC 203 , 163 FCR 414
Outcome: cited
An " improper purpose ", it has been said, " will not lightly be inferred and, by application of a presumption of regularity, will only be inferred if the evidence cannot be reconciled with the proper exercise of the power ": Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46 ; (1990) 170 CLR 649 at 672 per Gaudron J. A person challenging an exercise of power upon the basis of improper purpose has the onus of establishing that contention. Where the purpose of a decision must be ascertained by inference from other facts, there is a presumption of regularity: Haneef v Minister for Immigration &amp; Citizenship [2007] FCA 1273 at [278] , 161 FCR 40 at 88 per Spender J. An appeal has been dismissed: Minister for Immigration &amp; Citizenship v Haneef [2007] FCAFC 203 , 163 FCR 414.
Case: O'Keefe Nominees Pty Ltd v BP Australia Ltd (No 2) [1995] FCA 1079 ; (1995) 55 FCR 591
Outcome: applied
Although it is by no means clear, it is considered that s 18(2) does not preclude an order for costs being made in favour of the Attorney-General. Such a conclusion is at least consistent with the following observations of Spender J in O'Keefe Nominees Pty Ltd v BP Australia Ltd (No 2) [1995] FCA 1079 ; (1995) 55 FCR 591 at 595. His Honour there addressed s 78A of the Judiciary Act 1903 (Cth) as follows: Section 78A(2) provides that where an Attorney-General of the Commonwealth of Australia intervenes in proceedings in a court under that section, the Court may make such order as to costs against the Commonwealth or the State as the case may be as the Court thinks fit. In my opinion, where there is intervention by an Attorney-General under that section, the Court does not have power to order costs in favour of the intervening Attorney-General. Subsection (3) provides that where an Attorney-General has intervened in a court, then "for the purposes of the institution and prosecution of an appeal ... the Attorney-General shall be taken to be a party to the proceedings". The effect of this subsection is that, where an Attorney-General has intervened under s 78A for the purposes of an appeal, costs orders may be made against him or her or in his or her favour. But subs (4) provides that where the Attorney-General has instituted an appeal in which the Attorney-General has intervened, the Court hearing the appeal may make such order as to costs ... "as the court thinks fit". 88 The significance of according to the Attorney-General the status of " a party to the proceedings ", as explained by his Honour, is a reason for concluding that costs can be awarded both for and against the Attorney-General. 89 The orders of the Court are: 1. The Further Amended Application as filed on 7 March 2008 be dismissed. 2. The Applicant to pay 80% of the costs of the Fourth Respondent. I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 5 June 2008 Counsel for the Applicant: The Applicant appeared in person Counsel for the Fourth Respondent: G McCarthy Solicitor for the Fourth Respondent: M Dubey (Blake Dawson) Date of Hearing: 24 April 2008 Date of Judgment: 5 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/827.html
Case: Re JRL; Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342
Outcome: followed
If attention is more specifically confined to the "Particulars" in fact provided in the Further Amended Application , there is no basis for concluding that the decision of the First Respondent was vitiated by reason of " apprehended bias ". A reasonable apprehension of bias must be " firmly established ": Re JRL; Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342 at 352. It is not sufficient if a reasonable bystander " has a vague sense of unease or disquiet ": Jones v Australian Competition &amp; Consumer Commission [2002] FCA 1054 at [100] per Weinberg J, [2002] FCA 1054 ; 76 ALD 424. In the present proceedings there is not even a basis upon which any such " vague sense of unease " could be supported.
Case: SBBS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 361 , 194 ALR 749
Outcome: followed
Such a Ground " is a serious matter involving personal fault on the part of the decision maker ": SBBS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 361 at [43] , 194 ALR 749 at 756. It is a Ground which should not have been advanced in the present proceedings. It is certainly considered that the Ground would not have been relied upon had the Applicant been legally represented. 68 Reliance upon this Ground was rightly abandoned by the Applicant during the course of the hearing on 28 March 2008. 69 At the outset of the hearing on 28 March 2008 of the Further Amended Application , Mr Dunstan sought leave to file yet a further variant of that Further Amended Application .
Case: Visa International Service Association v Reserve Bank of Australia [2003] FCA 977 , 131 FCR 300
Outcome: discussed
No error may be discerned in the delegate adopting that approach. There is, in any event, only limited scope for contending that a decision is unreasonable by reason of a failure to pursue inquiries: cf Luu v Renevier (1989) 91 ALR 39 ; Visa International Service Association v Reserve Bank of Australia [2003] FCA 977 at [627] [628], [2003] FCA 977 ; 131 FCR 300 at 430 1 per Tamberlin J. Whatever may be the limits of an obligation upon a decision-maker to make inquiries when required to make relevant findings of fact, the obligation is even more confined when the administrative task being pursued is that of attempting to achieve a conciliated result. Only such inquiries need be undertaken by the delegate as are considered either appropriate or necessary to discharge the function of conciliation. The delegate is " not an independent arbiter charged with deciding an issue joined between adversaries " and was not bound to make his own inquiries for the purpose of forming a view about how a particular claim was to be resolved. Contrast: Applicant VEAL of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 72 at [26] , [2005] HCA 72 ; 225 CLR 88 at 99 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.
Case: Anasson v Phillips (unreported, Sup Ct, NSW, Young J, 4 March 1988)
Outcome: cited
Kowalski asserts that the primary judge misapplied the law in Anasson v Phillips (unreported, Sup Ct, NSW, Young J, 4 March 1988) and Levinge v Director of Custodial Services, Department of Corrective Services (1987) 9 NSWLR 546. These cases are, Mr Kowalski submits, authorities for the proposition that, where statements made in affidavits are not replied to or contradicted by other evidence and the deponents of the affidavits are not cross-examined, those statements will be accepted by the Court.