mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88
Outcome: distinguished
Telstra submits that procedural fairness requires a decision-maker to disclose to an interested party the substance of material that is significant, relevant, credible and obtained from a source other than that party (citing Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 ( Kioa v West) and Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 ( VEAL )). As formulated, the submission is based on the High Court judgment in VEAL at [14]-[18] which refers to the judgment of Brennan J in Kioa v West at 628-629. Brennan J there referred to adverse information that is credible, relevant and significant which the decision-maker possesses and proposes to take into account. VEAL concerned an unsolicited letter from a third party which had been forwarded by the Department of Immigration and Multicultural and Indigenous Affairs to the Refugee Review Tribunal. 484 In my respectful opinion neither Kioa v West nor VEAL is of direct relevance to the present case, which is not one of "information" of the kind referred to in them. The relevant information that ACCC "possessed" was that Telstra had implemented a churn process that required the participation of both the losing and gaining access seekers, and that neither Telstra (Bigpond) nor Request were participants in that process. This information came from Telstra or was at least known to Telstra. Furthermore, Telstra knew that ACCC's objective was to avoid disconnection charges in the case of an end-user switching service providers, and the information referred to was of obvious relevance to that objective. The procedural fairness issue raised in the present case concerns the solution arrived at and the reasoning process that led to it. This is a different area of discourse from that of information received by a decision-maker from a third party.
Case: Australasian Meat Industry Employees' Union (WA Branch); ex parte Ferguson (1986) 67 ALR 491
Outcome: cited
The particular criterion relevant to the present circumstances is whether it is probable to the required degree that the additional evidence will affect the result. There is not a single formulation in the cases as to the degree of probability required. In Australasian Meat Industry Employees' Union (WA Branch); ex parte Ferguson (1986) 67 ALR 491 , Toohey J said (at 493-494): In situations where a hearing has concluded but judgment has been reserved and not delivered, it has been said that fresh evidence should be admitted only when it is so material that the interests of justice require it; the evidence is believed would most probably affect the result; ... [my emphasis] In Daniel , RD Nicholson J stated (at 269) that it must be shown that the new evidence, if accepted, would " most certainly affect the result" (my emphasis).
Case: Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472
Outcome: cited
A party liable to be directly affected by a decision (such as Telstra) is, however, entitled to have its mind directed to the critical issue or factor on which the administrative decision is likely to turn ( Kioa v West at 587; Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 517; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 481-482; Somaghi v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 389 ; (1991) 31 FCR 100 ( Somaghi ) at 108). This does not mean that the party is entitled to have its mind directed to the provisional views of the decision-maker so that it may have a further opportunity of criticising the decision-maker's mental processes before a final decision is reached ( Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074 ; (1994) 49 FCR 576 at 590-592). Similarly, a decision-maker is not required to alert parties to "evaluative conclusions" on the material before the decision-maker ( Somaghi at 108). What the rules of procedural fairness require depends on the statutory framework and the facts and circumstances of the particular case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 at [26] . Consideration of Telstra's Ground 9(a)
Case: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074 ; (1994) 49 FCR 576
Outcome: cited
A party liable to be directly affected by a decision (such as Telstra) is, however, entitled to have its mind directed to the critical issue or factor on which the administrative decision is likely to turn ( Kioa v West at 587; Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 517; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 481-482; Somaghi v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 389 ; (1991) 31 FCR 100 ( Somaghi ) at 108). This does not mean that the party is entitled to have its mind directed to the provisional views of the decision-maker so that it may have a further opportunity of criticising the decision-maker's mental processes before a final decision is reached ( Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074 ; (1994) 49 FCR 576 at 590-592). Similarly, a decision-maker is not required to alert parties to "evaluative conclusions" on the material before the decision-maker ( Somaghi at 108). What the rules of procedural fairness require depends on the statutory framework and the facts and circumstances of the particular case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 at [26] . Consideration of Telstra's Ground 9(a)
Case: Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163
Outcome: cited
Jurisdictional error occurs where a decision-maker fails to exercise the jurisdiction it has by making or refusing to make an order or decision by reason of "a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction" ( Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 177). In Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420, Jordan CJ said that there was a failure to exercise jurisdiction where the decision-maker "misunderstand[s] the nature of the jurisdiction which [he or she] is to exercise, and ... appl[ies] a 'wrong and inadmissible test' ... or ... 'misconceive[s his or her] duty,' ... or '[fails] to apply [himself or herself] to the question which the law prescribes' ... or '... misunderstand[s] the nature of the opinion which [he or she] is to form'". This description of constructive jurisdictional error was approved by Guadron J in Re Minister for Immigration and Multicultural Affairs; ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 at [80] .
Case: Daniel v State of Western Australia [2004] FCA 849 ; (2004) 138 FCR 254
Outcome: cited
The ultimate question for the Court is whether it is in the interests of justice that the further evidence be admitted (see, for example, Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24] ; Daniel v State of Western Australia [2004] FCA 849 ; (2004) 138 FCR 254 ( Daniel ) at 269; Urban Transit Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478-479 (per Clarke JA, Mahoney &amp; Meagher JJA agreeing); Dumitrov v SC Johnson and Son Superannuation Pty Ltd (No 2) [2007] NSWSC 42 at [7] ). 209 The particular criterion relevant to the present circumstances is whether it is probable to the required degree that the additional evidence will affect the result. There is not a single formulation in the cases as to the degree of probability required. In Australasian Meat Industry Employees' Union (WA Branch); ex parte Ferguson (1986) 67 ALR 491 , Toohey J said (at 493-494): In situations where a hearing has concluded but judgment has been reserved and not delivered, it has been said that fresh evidence should be admitted only when it is so material that the interests of justice require it; the evidence is believed would most probably affect the result; ... [my emphasis] In Daniel , RD Nicholson J stated (at 269) that it must be shown that the new evidence, if accepted, would " most certainly affect the result" (my emphasis).
Case: Dumitrov v SC Johnson and Son Superannuation Pty Ltd (No 2) [2007] NSWSC 42
Outcome: cited
The ultimate question for the Court is whether it is in the interests of justice that the further evidence be admitted (see, for example, Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24] ; Daniel v State of Western Australia [2004] FCA 849 ; (2004) 138 FCR 254 ( Daniel ) at 269; Urban Transit Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478-479 (per Clarke JA, Mahoney &amp; Meagher JJA agreeing); Dumitrov v SC Johnson and Son Superannuation Pty Ltd (No 2) [2007] NSWSC 42 at [7] ).
Case: East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission [2007] HCA 44 ; (2007) 239 ALR 50
Outcome: discussed
Telstra refers to East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission [2007] HCA 44 ; (2007) 239 ALR 50. The factual context was not alien to that of the present case "a national access regime for gas pipeline systems within the framework of a national competition policy" (headnote, p 50). The facts and legislation are complex. Central to the issue for decision was s 8.10 of the National Third Party Access Code for Natural Gas Pipeline Systems contained in Schedule 2 to the Gas Pipelines Access (South Australia) Act 1997 (SA). Section 8.10 listed in paras (a) to (k) eleven factors that were required to be considered when the initial capital base of certain pipelines was being established by a "Relevant Regulator". 117 The High Court held that the Australian Competition Tribunal had not erred in taking as its starting point, and giving priority to, known valuation methodologies identified in the early paragraphs of paras (a) to (k). 118 The case is not authority for the proposition that para (d), for example, of s 152CR(1) must be accorded priority over the matters identified in the other paragraphs of that subsection. The most that can be said is that the case shows that the correct approach to a list of mandatory relevant considerations can lead to priority properly being given to particular matters in the list.
Case: Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416
Outcome: cited
Jurisdictional error occurs where a decision-maker fails to exercise the jurisdiction it has by making or refusing to make an order or decision by reason of "a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction" ( Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 177). In Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420, Jordan CJ said that there was a failure to exercise jurisdiction where the decision-maker "misunderstand[s] the nature of the jurisdiction which [he or she] is to exercise, and ... appl[ies] a 'wrong and inadmissible test' ... or ... 'misconceive[s his or her] duty,' ... or '[fails] to apply [himself or herself] to the question which the law prescribes' ... or '... misunderstand[s] the nature of the opinion which [he or she] is to form'". This description of constructive jurisdictional error was approved by Guadron J in Re Minister for Immigration and Multicultural Affairs; ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 at [80] .
Case: Girretti v Deputy Commissioner of Taxation (1996) 70 FCR 151
Outcome: cited
In the context of a failure to accord procedural fairness, Telstra refers to Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 , where the Court stated (at 147): ... if the Full Court is properly to be understood as saying no more than that a new trial would probably make no difference to the result, their Honours failed to apply the correct criterion. All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result. [my emphasis] The "possibility of a different result" was also referred to in the context of alleged failure to accord procedural fairness by Gaudron and Gummow JJ in Re Refugee Tribunal; ex parte Aala [2000] FCA 57 ; (2000) 204 CLR 82 ( ex parte Aala ) at 116-117, and by myself (Jenkinson J agreeing) in Girretti v Deputy Commissioner of Taxation (1996) 70 FCR 151 at 166.
Case: Idonz Pty Ltd v National Capital Development Commission (1986) 13 FCR 70
Outcome: discussed
In Idonz Pty Ltd v National Capital Development Commission (1986) 13 FCR 70 ( Idonz ), the Court refused an application by the respondents to an appeal to reopen the hearing of the appeal to allow them to call fresh evidence. One reason given by Fox J, with whom Everett J agreed, was that the evidence had been available when the appeal was heard. Other reasons given by Woodward J (in relation to the application by the second and third respondents) were that the evidence would be complex, contested and not appropriate for consideration by an appellate court, and that the evidence would have added little probative value to material already before the Court and would have related only to the possible exercise of discretion against the appellant if it were otherwise successful in its appeal. 211 Idonz is both different from and similar to the present case. In the present case, the evidence is sought to be tendered at trial, was not available at the time of hearing, and consists simply of two documents. On the other hand, the evidence relates to the possible exercise of discretion against Telstra if it were otherwise successful on Telstra's Cost Model G\rounds. Moreover, as appears below, complex questions as to the probative value of those documents are raised. 212 Telstra submits that Request erroneously states the test as to the circumstances in which relief may be refused on discretionary grounds where a judicial review ground vitiating a decision (relevantly, a failure to take into account a relevant consideration and a denial of procedural fairness) is established. Telstra submits that to ask whether it "would have made any difference" if that ground had not existed involves legal error. 213 Telstra submits that where there is a failure to take into account a relevant consideration, relief will be refused only if that consideration was so insignificant that the failure to take it into account could not have materially affected the decision. I referred to the relevant authorities in relation to a failure to take into account a relevant consideration at [192] above.
Case: Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22
Outcome: cited
The ultimate question for the Court is whether it is in the interests of justice that the further evidence be admitted (see, for example, Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24] ; Daniel v State of Western Australia [2004] FCA 849 ; (2004) 138 FCR 254 ( Daniel ) at 269; Urban Transit Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478-479 (per Clarke JA, Mahoney &amp; Meagher JJA agreeing); Dumitrov v SC Johnson and Son Superannuation Pty Ltd (No 2) [2007] NSWSC 42 at [7] ). 480 In my opinion, Telstra's Ground 8 is not made out. Telstra's Ground 9(a) and (b) General 481 The relevant facts were set out in relation to Ground 8 above. 482 As the parties agree, the Act does not dispense with ACCC's obligation to accord Telstra procedural fairness.
Case: Jones v Dunkel (1959) 101 CLR 298
Outcome: distinguished
Telstra points to the fact that no officer of ACCC was called to give evidence that regard was had to the two Spreadsheets. Telstra refers to the "rule of evidence" associated with Jones v Dunkel (1959) 101 CLR 298 at 305, 308, 320-321. That rule has been recognised as having scope for operation in applications for judicial review of administrative decisions: see the authorities cited in Minister for Aboriginal and Torres Strait Islander Affairs v State of Western Australia (1996) 67 FCR 40 at 61. In that case the Full Court stated (at 62): The application of the rule requires ... that there be inferences available from the evidence which favour the other party. The failure of the Minister to call evidence does not provide positive evidence that he did not consider the representation but, unexplained, it leaves the Court in a position where opposing inferences can be more confidently drawn because they stand uncontradicted by the person who could say something about the true state of the facts: Jones v Dunkel at 308. The question then is what inferences were open on the evidence. 182 I therefore do not think the principle recognised in Jones v Dunkel is appropriately invoked in the present circumstances. Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia is distinguishable. Unlike ACCC, the Minister was not arbitrating a dispute pursuant to an arbitration regime laid down by statute.
Case: Martincevic v Commonwealth (2007) 164 FCR 45
Outcome: referred to
The relevant test was described by Mason J in Peko-Wallsend at 40: Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision. More recently, a Full Court of this Court in Martincevic v Commonwealth (2007) 164 FCR 45 observed (at [68]) that: It is not for the court to guess what view [the decision-maker] would have taken of the report and its significance. It is enough that it cannot be said that the failure to have regard to the report was so insignificant that it could not have materially affected the decision.
Case: Minister for Aboriginal and Torres Strait Islander Affairs v State of Western Australia (1996) 67 FCR 40
Outcome: distinguished
Telstra points to the fact that no officer of ACCC was called to give evidence that regard was had to the two Spreadsheets. Telstra refers to the "rule of evidence" associated with Jones v Dunkel (1959) 101 CLR 298 at 305, 308, 320-321. That rule has been recognised as having scope for operation in applications for judicial review of administrative decisions: see the authorities cited in Minister for Aboriginal and Torres Strait Islander Affairs v State of Western Australia (1996) 67 FCR 40 at 61. In that case the Full Court stated (at 62): The application of the rule requires ... that there be inferences available from the evidence which favour the other party. The failure of the Minister to call evidence does not provide positive evidence that he did not consider the representation but, unexplained, it leaves the Court in a position where opposing inferences can be more confidently drawn because they stand uncontradicted by the person who could say something about the true state of the facts: Jones v Dunkel at 308. The question then is what inferences were open on the evidence. 182 I therefore do not think the principle recognised in Jones v Dunkel is appropriately invoked in the present circumstances. Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia is distinguishable. Unlike ACCC, the Minister was not arbitrating a dispute pursuant to an arbitration regime laid down by statute.
Case: Minister for Immigration v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611
Outcome: cited
I regard s 152DB(1) as a general exhortatory provision: it exhorts ACCC to strive to achieve broad objectives. Some of those broad objectives, at least if regarded in isolation, are antithetical to one another. The notions of "speed", "proper consideration of the dispute", "careful inquiry and investigation", "quick inquiry and investigation", "inquiry into and investigation of ... all matters affecting the merits" (my emphasis) and "fairness" pull in different directions: cf the discussion of ss 420 and 476 of the Migration Act 1958 (Cth) in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 6 May 1997, Lindgren J) at 39-41, and see Minister for Immigration v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at [49] per Gleeson CJ and McHugh J.
Case: Nevistic v Minister for Immigration &amp; Ethnic Affairs (1981) 34 ALR 639
Outcome: cited
Telstra submits that it cannot be assumed that ACCC "would have" decided in relation to Telstra's cost model in the same way in the Request/Telstra and Adam/Telstra arbitrations. Each arbitration must be decided on its own merits and there is no principle of stare decisis in administrative decision making. Telstra cites statements by Tobias JA in Segal v Waverley Council (2005) 64 NSWLR 177 at [96] and by Deane J in Nevistic v Minister for Immigration &amp; Ethnic Affairs (1981) 34 ALR 639 at 646-647, generally to the effect that an administrative decision-maker must decide each case on its facts and merits, and must not blindly follow a fixed policy. It seems to be inherent in the submission that it should be accepted that ACCC may properly determine different charges for the supply of the (identical) LSS by Telstra to different access seekers, such as Request and Adam.
Case: Prasad v Minister for Immigration &amp; Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155
Outcome: cited
In so far as Telstra relies on an alleged failure by ACCC to seek further material from Telstra, Request submits that ACCC's decision would be vulnerable to attack under the ADJR Act for a failure in this respect only if the failure was so unreasonable that no reasonable decision-maker would have failed to make the inquiry (Request cites Prasad v Minister for Immigration &amp; Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155 at 169-170). Telstra's Ground 1 To what extent, if at all, did ACCC in fact engage with the Telstra cost model? 168 Request puts its submission that ACCC engaged with Telstra's cost model in two ways. First, it submits that it should be inferred that ACCC did in fact read the Spreadsheets on the CD, but did not appreciate that they were the complete or final version of Telstra's cost model that was referred to in Telstra's submissions. Second, it submits that the FD Statement of Reasons shows that ACCC took into account the essential features of Telstra's cost model that were reflected in the Spreadsheets, even if it did not read the Spreadsheets themselves. 169 Request submits that the passages from the FD Statement of Reasons on which Telstra relies (section 4.1.8, the relevant extracts from which were set out at [152] and [153] above) show only that ACCC considered that it had not received from Telstra the complete or full version of Telstra's cost model that it was expecting to receive. Request argues that Telstra ignores the heading's use of the word "Summary" and the simplistic nature of the two Spreadsheets which Telstra now characterises as constituting the cost model.
Case: Queensland Medical Laboratory v Blewett (1988) 84 ALR 615
Outcome: cited
Telstra also referred to other authorities such as R v Toohey; ex parte Meneling Station Pty Ltd [1982] HCA 69 ; (1983) 158 CLR 327 ; Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 and Epic Energy .