mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550
Outcome: applied
The Commission refused to provide Telstra with material on which it relied in coming to a decision to issue the Competition Notice and on which it based the allegations and statements in the Competition Notice which were not included in the Consultation Notice. Telstra submits that the failure on the part of the Commission to provide that information, which was necessarily significant to the decision ( Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 629 per Brennan J), constituted a denial of procedural fairness. 195 Optus accepts that Telstra was entitled to be informed of the nature and subject of the matter under consideration and to be afforded the right to be heard in respect of the issues on which the decision was based. However, it submits that Telstra was not entitled, at the stage of examination and consideration by the Commission, to see any material that was adverse to its interest. 227 There is no dispute that a common law duty of procedural fairness must accommodate to the statutory scheme. As stated by Mason J in Kioa at 585, the statutory power: ' must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations. ' 229 The Commission contends that the requirements of procedural fairness for the issue of a Part A competition notice are less onerous than those applicable to a quasi-judicial Tribunal determining, for example, whether a person is entitled to refugee status, as in VEAL . The Commission points to the flexible nature of the duty and the need to adapt to the statutory requirements. For example, a judicial hearing with rights of appeal must precede the pecuniary consequences arising from the issue of a Part A competition notice. The Commission also challenges the impact of the reasoning in VEAL and Kioa . It emphasises the comment by Brennan J in Kioa at 628 that the person whose interests are likely to be affected by the exercise of a statutory power does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. As Brennan J recognised in Kioa , '[a] dministrative decision-making is not to be clogged' by unnecessary inquiries. That observation is particularly relevant in a statutory context where the legislature has sought to respond to the fast moving pace of telecommunications markets and, in so doing, placed the Commission under an obligation to act expeditiously.
Case: Hot Holdings Pty Ltd v Creasy [1995] HCA 60 ; (1996) 185 CLR 149
Outcome: cited
The Commission accepts for present purposes that, consistent with authority binding on this Court ( Hot Holdings Pty Ltd v Creasy [1995] HCA 60 ; (1996) 185 CLR 149), it was required to afford Telstra procedural fairness in relation to the issue of the Competition Notice at common law. Optus accepts that s 151AKA(10) of the Act does not displace the Commission's obligations of procedural fairness. The Commission wishes to reserve the question whether a common law duty exists should the occasion to contend otherwise arise but submits that, in any event and in the specific statutory context, the scope and content of that obligation have been satisfied. Put another way, the Commission says that the common law duty extends no further than what is required by s 151AKA(10). Optus submits that s 151AKA(10) reflects the procedural fairness required and that that obligation has been complied with. 223 I do not accept the Commission's submission that the requirement to afford procedural fairness takes its content only from s 151AKA(10) of the Act. While the requirements of s 151AKA(10) of the Act clearly inform the obligation to accord procedural fairness at common law they do not displace it.
Case: Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 3) (1980) 47 FLR 163
Outcome: cited
As stated in SA Brewing at 375, with respect to notices under s 155 of the Act, the Statutory Notices ' must specify the information sought with sufficient clarity to enable [the] recipient to know what is required '. As with s 155 notices, the Statutory Notices are to be reasonably construed and terms used in them ' will ordinarily take their meaning ' from the commercial circumstances in which the notices are given ( SA Brewing at 369 citing Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 3) (1980) 47 FLR 163 at 175 6).
Case: Minister for Immigration &amp; Multicultural Affairs v Lat [2006] FCAFC 61 ; (2006) 151 FCR 214
Outcome: cited
It is not the case that the Act purports to exclude the rules of natural justice. There is nothing in Pt XIB that amounts to unmistakable and unambiguous language clearly expressing an intention to exclude natural justice in connection with the issue of a Part A competition notice ( Plaintiff S157/2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at [30] per Gleeson CJ; cf Minister for Immigration &amp; Multicultural Affairs v Lat [2006] FCAFC 61 ; (2006) 151 FCR 214 at [65] to [68] in considering s 51A of the Migration Act 1958 (Cth)). The fact that the Act provides for the provision of certain information in a s 151AKA(10) notice does not of itself evince an intention otherwise to exclude procedural fairness ( Miah at [139] per McHugh J) or, indeed, the possibility of the provision of further information or further consultation. The Act mandates the giving of certain information in a s 151AKA(10) notice as a minimum. Such latitude in the information to be provided is encompassed by the requirement to describe in summary form the kind of anti-competitive conduct proposed to be specified in the Part A competition notice. A "summary form" allows for a minimum but not a maximum of information to be provided. There is no inconsistency between the application of subss (9) and (10), which impose a minimum standard and a common law duty of procedural fairness ( Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at [10] ).
Case: Minister for Local Government v South Sydney City Council [2002] NSWCA 288 ; (2002) 55 NSWLR 381
Outcome: considered
Optus relies upon a number of propositions as expounded by Mason P in Minister for Local Government v South Sydney City Council [2002] NSWCA 288 ; (2002) 55 NSWLR 381 at [250] and following. In particular, it adopts what his Honour said at [267] to the effect that, if Telstra were entitled to see adverse submissions of third parties, the whole process would be unworkable ' because it would lead to an infinite regression of counter disputation ' and, at [251] that, while there is no exclusion of an obligation of procedural fairness at the examination and report stage, an obligation to provide any submission supportive of an adverse proposal ' effectively converts the examination and report stage of the process into a full-blown adversarial trial '. 198 As Mason P discussed in South Sydney City Council , a party is entitled to be provided with the opportunity to address issues upon which an adverse finding is based. As his Honour noted at [259], much depends on the nature of the investigation, the specificity and importance of the "adverse" recommendation, the nature of the interest affected and the likelihood of it being anticipated as a matter to be addressed. His Honour gave as an example of the effect of specific interest and direct impact of adverse material the facts in Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 76 ALJR 966. In the present case, the circumstances include the statutory framework of the decisions, the purposes of the notices, the confidentiality of third party submissions and the ability to obtain the information in subsequent legal proceedings.
Case: Mison v Randwick Municipal Council (1991) 23 NSWLR 734
Outcome: cited
Telstra accepts that there was some "matching" between the subject matter of the Consultation Notice and that of the Competition Notice and that there was, in the Competition Notice, further particularisation of the matters set out in the Consultation Notice. However, it contends that this does not extend to all of the new matters raised. Telstra refers to Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 737 and submits that, by 'significantly altering ' the content of the Competition Notice from what had been foreshadowed in the Consultation Notice, the Commission changed the nature of the content.
Case: Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 76 ALJR 966
Outcome: cited
As Mason P discussed in South Sydney City Council , a party is entitled to be provided with the opportunity to address issues upon which an adverse finding is based. As his Honour noted at [259], much depends on the nature of the investigation, the specificity and importance of the "adverse" recommendation, the nature of the interest affected and the likelihood of it being anticipated as a matter to be addressed. His Honour gave as an example of the effect of specific interest and direct impact of adverse material the facts in Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 76 ALJR 966. In the present case, the circumstances include the statutory framework of the decisions, the purposes of the notices, the confidentiality of third party submissions and the ability to obtain the information in subsequent legal proceedings.
Case: Murphy v KRM Holdings Pty Ltd (1985) 8 FCR 349
Outcome: cited
Telstra submits that the words "in connection with", though broad, must be construed in context. In its submission, the purpose of the exclusion in para (f) is to avoid the disruption of investigative procedures or court process with the requirement to furnish reasons. It relies on the observation of Fox J in Murphy v KRM Holdings Pty Ltd (1985) 8 FCR 349 at 351 to the effect that: ' [t] he general idea behind par (f) seems to be that civil procedure will itself take care of what s 13 seeks to achieve when it requires reasons to be given. Conversely, civil procedure is not to be complicated by the s 13 procedure' . The decision to issue a Part A competition notice is said by Telstra to be distinct both from an investigation and a decision to institute or conduct proceedings. 259 There may be no correlative decision by the Commission to institute pecuniary penalty proceedings pursuant to ss 151BX and 151BY of the Act following the issue of a Part A competition notice. Further, third parties will not necessarily issue proceedings to recover damages pursuant to s 151CC of the Act. Certainty of legal proceedings, however, is not necessary for a decision to fall within the broad terms of para (f) of Sch 2. Decisions which "relate to, or may result" in the bringing of proceedings in a civil court for the recovery of pecuniary penalties expressly are included in para (f) of Sch 2 to the ADJR Act. The issue of a Part A competition notice is a prerequisite to the bringing of proceedings in this Court for the recovery of pecuniary penalties for a contravention of the competition rule (s 151BY(3)(g) of the Act). The scheme of the Act expressly contemplates that such proceedings may result from a decision by the Commission to issue a Part A competition notice. Were it not for the fact that such proceedings may result, the desired incentive for the carrier to cease the allegedly anti-competitive conduct would diminish significantly. Indeed, Telstra relies upon that very consequence of the decision in its submissions as to the requirements of common law procedural fairness. 260 The Commission's decision to issue the Competition Notice was a decision within the terms of para (f) of Sch 2 to the ADJR Act. It follows that the Commission was not obliged by s 13(1) of the ADJR Act to furnish Telstra with a statement of reasons for its decision to issue that notice.
Case: NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 ; (2005) 223 ALR 171
Outcome: cited
The Commission contends that Telstra has not established that any departure from the requirements of procedural fairness was material or significant in reliance on NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 ; (2005) 223 ALR 171 at [71] per Kirby J; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [87] per McHugh J in dissent but not on this point). Even if there were deficiencies in the Statutory Notices, the Commission submits that the anti-competitive conduct there described may be sufficiently clear that Telstra suffered no prejudice ( Salim v Loh [2005] FCA 372 at [4] , [32]).
Case: Neate v Australian Securities Commission (1995) 60 FCR 518
Outcome: cited
The Commission accepts that the "decision" to issue the Consultation Notice is a step taken under the Act. It submits, however, that that step is determinative of nothing ( Neate v Australian Securities Commission (1995) 60 FCR 518 at 520 1); it does not confer, alter or otherwise affect legal rights or obligations, whether arising under the Act or otherwise. At most, the decision is said by the Commission to precede ' an act (the issue of a notice under s 151AKA(10)(a)) which gives rise to a limited procedural right (to have a submission considered) and a concomitant obligation to consider it '. 54 The Commission further submits that, in any event, Telstra did not apply for a review of the alleged "decision" to issue the Consultation Notice within time (s 11(3)(b)(iii) of the ADJR Act). 55 Telstra submits that the decision to issue the Consultation Notice depended upon the exercise of a specific statutory power under s 151AKA(10) of the Act, which decision gave rise to a legal right to put submissions to the Commission and legal obligation on the Commission to consider those submissions. It was a prerequisite to the issue of a Competition Notice and therefore had, according to Telstra, operative effect and impacted directly on Telstra's legal rights and obligations. Further, Telstra submits that an extension of time to review that decision should be granted as the Commission has pointed to no prejudice arising from such an extension being granted. Optus consents to an extension of time being granted.
Case: Newcastle City Council v GIO General Limited [1997] HCA 53 ; (1997) 191 CLR 85
Outcome: cited
The historical context of statutory provisions may be referred to where appropriate to give the statutory words a meaning that will give effect to the purpose of the legislation ( Newcastle City Council v GIO General Limited [1997] HCA 53 ; (1997) 191 CLR 85 at 112 per McHugh J). That may include a relevant report laid before Parliament where that report was part of that background and, for example, is referred to in the explanatory memorandum ( Newcastle City Council at 100). 211 In September 2001, the Productivity Commission issued a report titled "Telecommunications Competition Regulation" (Productivity Commission, Telecommunications Competition Regulation , Report No. 16 (2001) ('the Productivity Report')). The Productivity Report contained an observation that there appeared to be no requirements for the Commission to publish its reasons for a decision to issue or not to issue a Part A competition notice (at 161). 212 The 2002 Amending Act implemented the Government's response to the Productivity Report. In part, the 2002 Amending Act contained measures to enhance accountability and transparency of decision making under Pt XIB of the Act. Those measures required the Commission to publish guidelines on the exercise of its powers (Pt 9 of the 2002 Amending Act; now s 151AP(3) and (4)) and to "consult" prior to the issue of a Part A competition notice (Pt 15 of the 2002 Amending Act; now s 151AKA(9) and (10)). The recommendations of the Productivity Report were not adopted universally by Parliament in the 2002 Amending Act. To the extent that Telstra refers to the Productivity Report, it must be read with this in mind.
Case: Plaintiff S157/2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476
Outcome: cited
It is not the case that the Act purports to exclude the rules of natural justice. There is nothing in Pt XIB that amounts to unmistakable and unambiguous language clearly expressing an intention to exclude natural justice in connection with the issue of a Part A competition notice ( Plaintiff S157/2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at [30] per Gleeson CJ; cf Minister for Immigration &amp; Multicultural Affairs v Lat [2006] FCAFC 61 ; (2006) 151 FCR 214 at [65] to [68] in considering s 51A of the Migration Act 1958 (Cth)). The fact that the Act provides for the provision of certain information in a s 151AKA(10) notice does not of itself evince an intention otherwise to exclude procedural fairness ( Miah at [139] per McHugh J) or, indeed, the possibility of the provision of further information or further consultation. The Act mandates the giving of certain information in a s 151AKA(10) notice as a minimum. Such latitude in the information to be provided is encompassed by the requirement to describe in summary form the kind of anti-competitive conduct proposed to be specified in the Part A competition notice. A "summary form" allows for a minimum but not a maximum of information to be provided. There is no inconsistency between the application of subss (9) and (10), which impose a minimum standard and a common law duty of procedural fairness ( Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at [10] ).
Case: Pyneboard Pty Ltd v Trade Practices Commission (1982) 57 FLR 368
Outcome: cited
There is no general principle that uncertainty in an executive instrument spells invalidity ( Television Corporation Ltd v The Commonwealth [1963] HCA 30 ; (1963) 109 CLR 59 at 71 per Kitto J). The question is whether what has been done in fact answers the description of what the statute permits to be done in law. A statutory notice such as a s 151AKA(10) notice or a Part A competition notice (together, 'the Statutory Notices') must not be so vaguely expressed that its meaning of application is a matter of real uncertainty. The Statutory Notices must convey, with reasonable and sufficient clarity and certainty, the subject matter with which they deal and enable the recipient to know what is required if their issue is to be a valid exercise of statutory power ( Television Corporation Ltd at 70 per Kitto J; SA Brewing Holdings Ltd v Baxt (1989) 23 FCR 357 at 369 per Fisher and French JJ (with whom Wilcox J agreed); Pyneboard Pty Ltd v Trade Practices Commission (1982) 57 FLR 368 at 373, 374 per the Full Court). Where different kinds of subject matter are dealt with by different statutory provisions, the Statutory Notices should specify or make clear which particular aspects of the statutory regime are referred to and/or relied upon ( Department of Industrial Relations v Forrest (1990) 21 FCR 93 at 118 per Lockhart and Hill JJ). 37 The severity of prospective penalties or consequences of failure to comply with a statutory notice that flow from the subject matter and the impact of the characterisation of the conduct are relevant factors in identifying the requisite degree of certainty (see Pyneboard at 374 , Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187 at 208 per Hill J). Account is to be taken of the statutory context in which the issue of a statutory notice arises and of the relevant interests of third parties. To take an example relevant to a Part A competition notice, a third party may contemplate bringing an action for damages in reliance on that notice and has an interest in knowing with clarity the ambit and scope of the notice. 39 The Statutory Notices should be reasonably construed and the requirement for clarity is not to be applied ' in a precious or hypercritical fashion ' ( Pyneboard at 375). Nor should the Statutory Notices themselves be construed as statutory provisions: '[a] rtificial dissection, in the cause of determined obfuscation, can introduce an argumentative element of uncertainty into words which, when read reasonably in context, are adequate to convey a plain and clear meaning ' of what is required ( Pyneboard at 375). The Statutory Notices need not plead all the facts necessary to constitute a contravention or possible contravention of the Act ( SA Brewing at 370 per Fisher and French JJ).
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57
Outcome: cited
As Gaudron J said in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 at [99] , the basic principle of procedural fairness is an opportunity to meet the opposing case, although this does not mean that all material which comes before the decision-maker must be disclosed ( Miah at [140] per McHugh J). 225 As pointed out by Aronson M, Dyer B and Groves M, Judicial Review of Administrative Action (3 rd ed, Lawbook Co., 2004) at 438 41, it is common for statutes to impose procedural requirements which might otherwise be imposed by the rules of natural justice without indicating what effect these express requirements are intended to have on the application of ordinary principles of natural justice. The authors conclude that the presence of express procedural requirements will not normally, of itself, exclude or limit the application of natural justice. The common law rules of natural justice are taken to apply to the exercise of public power unless clearly excluded ( Miah at [126] per McHugh J). The content of the duty is determined in the statutory context (at [130]). 226 It is not the case that the Act purports to exclude the rules of natural justice. There is nothing in Pt XIB that amounts to unmistakable and unambiguous language clearly expressing an intention to exclude natural justice in connection with the issue of a Part A competition notice ( Plaintiff S157/2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at [30] per Gleeson CJ; cf Minister for Immigration &amp; Multicultural Affairs v Lat [2006] FCAFC 61 ; (2006) 151 FCR 214 at [65] to [68] in considering s 51A of the Migration Act 1958 (Cth)). The fact that the Act provides for the provision of certain information in a s 151AKA(10) notice does not of itself evince an intention otherwise to exclude procedural fairness ( Miah at [139] per McHugh J) or, indeed, the possibility of the provision of further information or further consultation. The Act mandates the giving of certain information in a s 151AKA(10) notice as a minimum. Such latitude in the information to be provided is encompassed by the requirement to describe in summary form the kind of anti-competitive conduct proposed to be specified in the Part A competition notice. A "summary form" allows for a minimum but not a maximum of information to be provided. There is no inconsistency between the application of subss (9) and (10), which impose a minimum standard and a common law duty of procedural fairness ( Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at [10] ).
Case: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82
Outcome: cited
The Commission contends that Telstra has not established that any departure from the requirements of procedural fairness was material or significant in reliance on NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 ; (2005) 223 ALR 171 at [71] per Kirby J; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [87] per McHugh J in dissent but not on this point). Even if there were deficiencies in the Statutory Notices, the Commission submits that the anti-competitive conduct there described may be sufficiently clear that Telstra suffered no prejudice ( Salim v Loh [2005] FCA 372 at [4] , [32]).