mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Roncevich v Repatriation Commission [2005] HCA 40 ; (2005) 222 CLR 115
Outcome: cited
In Repatriation Commission v Gosewinckel (1999) 59 ALD 690 at 704 [64] Weinberg J pointed out in a case under s 120A that where a statement of principles requires the presence of a number of distinct symptoms, unless each of those symptoms is present, the case will not fit within the requirements of legislation. However, the relevant operation of s 120B and its interaction with s 196B(3) is not distinguishable for present purposes (although the degree of satisfaction which the decision-maker must have is, of course, distinct) (cf: Roncevich v Repatriation Commission [2005] HCA 40 ; (2005) 222 CLR 115 at 120 [11] , 125-126 [23]-[28]. 34 I am of opinion that when the Tribunal referred to his drinking constituting a habit and being addictive it was referring to the submission made by counsel for Mr Cotton (at [2006] AATA 648 at [27] ). That submission had relied on the decision of the Full Court in Repatriation Commission v Tuite (1993) 39 FCR 540 at 541, 545 (and see too Roncevich v Repatriation Commission [2005] HCA 40 ; (2005) 222 CLR 115 at 125 [22] - [25] ) to suggest that his service was a cause in making alcohol part of the fabric of Mr Cotton's social life and that the setting in which he found himself helped to constitute his drinking into a habit. There was no requirement for Mr Cotton to cease drinking. While neither party has an onus (s 120(6)) the Tribunal had to deal with the material before it with the assistance which the parties offered it in deciding the question. It had the benefit of and made careful factual findings about the evidence. When referring to Repatriation Commission v Tuite (1993) 39 FCR 540, the Tribunal quoted from what Davies J (at 541) and Burchett and Einfeld JJ had said (at 545) that the social pressures and incidences of camp life were plainly capable of having a causal influence upon a decision to take up smoking and upon its continuance. 35 The Commission argued that I should make factual findings pursuant to s 44(7) of the AAT Act as to Mr Cotton's ability to decrease his alcohol consumption to less than an average of 300 grams per week. Having regard to the fact that the Tribunal made credibility based findings which depended upon its assessment of, among other things, Mr Cotton and its acceptance and rejection of parts of his evidence, it would not be appropriate for me to embark upon such an enquiry even were I minded to accept the Commission's construction of factor 5(b) (see too Roncevich v Repatriation Commission [2005] HCA 40 ; (2005) 222 CLR 115 at 126 [28] ). 36 Next, the Commission initially sought an order that, were the Tribunal's decision to be set aside, the decision of the Veterans Review Board which the Tribunal reviewed, be restored. I indicated during the course of argument that the effect of setting aside the Tribunal's decision would be to leave as the then operative decision whatever was the last administrative act preceding the Tribunal's decision. The Commission withdrew the application for an order dealing with this matter.
Case: The Newbattle (1885) 10 PD 33
Outcome: considered
In its natural and ordinary meaning in factor 5(b) the word 'cannot' means that it is not possible to decrease the quantity. In other contexts the word 'cannot' has a natural and ordinary meaning of excluding the possibility of something occurring. So, in 29 Equities Ltd v Bank Leumi (UK) Ltd [1986] 1 WLR 1490 at 1496G-H Dillon LJ said that it was a simple question of fact to be decided in the light of common sense whether at the date on which a vendor purported to rescind a contract of sale a licence 'cannot be obtained'. And, in The Newbattle (1885) 10 PD 33 the English Court of Appeal held that a statutory provision referring to a ship which 'cannot be arrested' connoted that it was impossible to arrest the ship. In Rhymney Iron Company v Gelligaer District Council [1917] 1 KB 589 at 594, Viscount Reading CJ had to construe a provision empowering a local authority to service a notice on an owner or occupier where the person responsible for a nuisance 'cannot be found'. He said that having regard to the public health purpose in the legislation, the authority had only to be unable to ascertain, in its then state of knowledge, who was responsible for the nuisance.
Case: Australian Workers' Union v BHP Iron-Ore Pty Ltd [2001] FCA 3 ; (2001) 106 FCR 482 
Outcome: referred to
I should interpolate to point out that in relation to the subsequent single judge decision in BHP Iron Ore following upon the Full Court's remitter of the proceedings to the trial judge, Kenny J of this Court decided in Australian Workers Union v BHP Iron Ore Pty Ltd [2001] FCA 3 ; (2001) 106 FCR 482, that '[ b ] efore s 298K(1) can apply , it must be possible to say of an employee that he or she is, individually speaking, in a worse situation after the employer's acts than before them; that the deterioration had been caused by those acts; and that the acts were intentional in the sense that the employer intended the deterioration to occur ' (see [54]). Upon that footing, the case foreshadowed by ANSTO was that Mr Lever '... has not established, or even alleged, that he ceased to be entitled to the benefits of an industrial instrument by reason of conduct of [ANSTO]', since '... there can have been no conduct of [ANSTO] that was for the reason prohibited by s 298L(1)(h)'. 132 As I think rightly articulated by ANSTO, '[t]he evidence must be consistent with the hypothesis that [ANSTO] was motivated by the reason alleged by [Mr Lever]', yet there was 'no suggestion in the evidence or in [his] submissions... that his entitlement to the benefit of an industrial instrument was an issue, or even a topic of discussion, at or about the time of the alleged conduct', or that Mr Lever '... ceased to be entitled to the benefits of an industrial instrument by reason of conduct of [ANSTO]', within or pursuant to s 298L(1)(h). I was referred again to what was subsequently decided on remitter in Australian Workers' Union v BHP Iron-Ore Pty Ltd [2001] FCA 3 ; (2001) 106 FCR 482 as appears at [67] and [210] of the comprehensive reasons for judgment of Kenny J, with the explanation by ANSTO that '... the fact that the relevant employees continued to be entitled to the benefits of the same industrial instruments after the employer's conduct allegedly forbidden by s 298K(1) was sufficient to satisfy Kenny J that the employer had not engaged in that conduct for the reason that the employees were entitled to the benefit of that instrument as prohibited by s 298L(1)(h)'. Accordingly ANSTO relied on the circumstance that Mr Lever had not established, or even alleged, that he ceased to be entitled to the benefit of an industrial instrument by reason of the conduct of ANSTO. Reference was made moreover to Dr Doherty's testimony to the effect that his conduct on behalf of ANSTO sought to be impugned was motivated by his belief that he had in fact correctly classified Mr Lever as not being qualified for promotion to the ranking or level of SPO1, and it was submitted that such testimony of Dr Doherty should be accepted by the Court. It was testimony which I would find to have been genuinely expressed on grounds reasonably open objectively for Dr Doherty to have based his decision-making.
Case: National Union of Workers v Qenos Pty Ltd [2001] FCA 178 ; (2001) 108 FCR 90
Outcome: cited
Further as to the operation of s 298K(1), attention was drawn by ANSTO to Community and Public Sector Union v Telstra Corporation Ltd (2000) 99 IR 238, where at [19] Finkelstein J observed as follows: 'In the context of this legislation, there will not be a threat of proscribed conduct unless the employer communicates to his employee that proscribed action will be taken. One meaning of the word "threaten" is to menace or warn beforehand of an intention to inflict harm. That is the meaning that should be given to the word in s 298K.' That observation was adopted in National Union of Workers v Qenos Pty Ltd [2001] FCA 178 ; (2001) 108 FCR 90 at [119] (Weinberg J) and in Australian and International Pilots Association v Qantas Airways Ltd 160 IR 1 at [20] (Tracey J).
Case: Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326 
Outcome: referred to
More recently in Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326 Branson J had occasion to consider the operation of s 298V in the context of an alleged breach of s 298K(1) of the Act, in the course of which consideration was given to the operation or otherwise of the s 298V presumption. Her Honour referred at [57] to the decision of the High Court in General Motors-Holden Pty Ltd v Bowling (1976) 51 ALJR 235, where in the judgment of Mason J (as he then was) at 241 (with whose reasons Stephen and Jacobs JJ agreed), the following appeared in relation to the precursor to s 298V, namely s 5(4) of the Conciliation and Arbitration Act 1904 (Cth): 'Section 5(4) imposed the onus on the appellant of establishing affirmatively that it was not actuated by the reason alleged in the charge. The consequence was that the respondent, in order to succeed, was not bound to adduce evidence that the appellant was actuated by that reason, a matter peculiarly within the knowledge of the appellant. The respondent was entitled to succeed if the evidence was consistent with the hypothesis that the appellant was so actuated and that hypothesis was not displaced by the appellant. To hold that, despite the sub-section, there is some requirement that the prosecutor brings evidence of this fact is to make an implication which in my view is unwarranted and which is at variance with the plain purpose of the provision in throwing on to the defendant the onus of proving that which lies peculiarly within his own knowledge.' Moreover in his dissenting reasons, Barwick CJ observed at 238 as follows: 'In my opinion, before resort can be had to this onus provision, there must be before the Court evidence which reasonably warrants the conclusion that the circumstance that the employee had been placed in the appropriate office of his union was possibly a reason for his dismissal. If, on the evidence, there is no basis for concluding that that circumstance might be or have been a reason for the dismissal, there is no room for requiring the employer to negative the proposition that that circumstance was such a reason.' On the footing of the approach taken in General Motors and duly adopted by Branson J in Maritime Union at [57], ANSTO submitted that '[i]t is not sufficient for [Mr Lever] to arbitrarily allege any one of the 15 prohibited reasons listed in s 298L(1)' and that '[t]he evidence must be consistent with the hypothesis that [ANSTO] was motivated by the reason alleged by [Mr Lever]', and further that 'there is no suggestion in the evidence or in the submissions of [Mr Lever] that his entitlement to the benefit of an industrial instrument was an issue, or even a topic of discussion at or about the time of the alleged conduct'. It was pointed out that '[m]ost employees of [ANSTO] were entitled to the benefit of an industrial instrument', and further that '[Mr Lever's] hypothesis that this reason actuated [ANSTO] is arbitrary and fanciful'.
Case: Annetts and Another v McCann and Others [1990] HCA 57 ; (1990) 170 CLR 596
Outcome: referred to
Annetts and Another v McCann and Others [1990] HCA 57 ; (1990) 170 CLR 596 Mason CJ, Deane and McHugh JJ at 598 observed: It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment.
Case: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another [2005] HCA 72 ; (2005) 225 CLR 88
Outcome: cited
observing that not every adverse piece of information needs to be put, his Honour said at 629: Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. See also Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another [2005] HCA 72 ; (2005) 225 CLR 88 at [17] . In Teoh at 311 McHugh J (in dissent) said of the rules of procedural fairness: In the absence of a clear contrary legislative intention, those rules require a decision-maker 'to bring to a person's attention the critical issue or factor on which the administrative decision on which is likely to turn so that he may have an opportunity of dealing with it'. Footnotes omitted.
Case: Applicant Y v Minister for Immigration and Citizenship and Another (2008) 100 ALD 544
Outcome: distinguished
applicants contend that the passing reference to the two integers made by the Finance Minister in his concluding observations is not adequate. Reliance is placed upon Applicant Y v Minister for Immigration and Citizenship and Another (2008) 100 ALD 544 in which the Court found (at [32]) that the Migration Review Tribunal 'did not engage any assessment of' the weight or relevance of expert medical opinions. The applicants submit that the same conclusion should be drawn in the present circumstance because the Finance Minister indicated the matters of real concern and made no mention of the two integers. The Finance Minister acknowledges that the two integers are not expressly referred to in that portion of the Reasons which itemise the three categories which he identified as ' circumstances to which I must have regard '. The Court is satisfied that the Finance Minister included the two integers in his Reasons and took them into consideration. Accordingly, Applicant Y has no application to the facts in these proceedings. For these reasons the Court rejects the applicants' submissions that the entirety of the Minister for Health's conduct was not taken into account by the Finance Minister when he made his decision. In view of such finding, it is unnecessary to consider the Finance Minister's second ground of defence, namely whether he was under an obligation to consider such matter. Ground 3 Parliamentary Privilege
Case: Attorney-General for the State of New South Wales v Quin [1990] HCA 21 ; (1990) 170 CLR 1
Outcome: referred to
33 provides no indication of the manner in which the Finance Minister is to exercise his discretion. In Attorney-General for the State of New South Wales v Quin [1990] HCA 21 ; (1990) 170 CLR 1 Brennan J at 33 observed: If the power is conferred by statute but the statute prescribes no procedure for the making of appointments nor any criteria governing the exercise of the power, the power must be at large...
Case: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389
Outcome: distinguished
applicants submit that it is mandatory that the Finance Minister respond to their claims. The applicants rely upon Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 in which the High Court found that a denial of natural justice occurred when the Refugee Review Tribunal failed to respond to a substantial and clearly articulated argument. The applicants also rely upon HTUN v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 ; (2001) 194 ALR 244 in which the Court found at [42] that the Refugee Review Tribunal 'failed to address and deal with how the claim was put to it, at least in part' and accordingly failed to complete the exercise of its jurisdiction. In view of the above no issue arises relating to the kind of matters which were required to be put as considered in HTUN at [42], and the facts in the present proceedings are distinguishable from those in Dranichnikov since the Court is satisfied that the appellant's submissions were not overlooked.
Case: HTUN v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 ; (2001) 194 ALR 244
Outcome: distinguished
applicants submit that it is mandatory that the Finance Minister respond to their claims. The applicants rely upon Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 in which the High Court found that a denial of natural justice occurred when the Refugee Review Tribunal failed to respond to a substantial and clearly articulated argument. The applicants also rely upon HTUN v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 ; (2001) 194 ALR 244 in which the Court found at [42] that the Refugee Review Tribunal 'failed to address and deal with how the claim was put to it, at least in part' and accordingly failed to complete the exercise of its jurisdiction. In view of the above no issue arises relating to the kind of matters which were required to be put as considered in HTUN at [42], and the facts in the present proceedings are distinguishable from those in Dranichnikov since the Court is satisfied that the appellant's submissions were not overlooked.
Case: Jarrat v Commissioner of Police for New South Wales and Another [2005] HCA 50 ; (2005) 224 CLR 44
Outcome: referred to
principle was confirmed by the High Court in Jarratt v Commissioner of Police for New South Wales and Another [2005] HCA 50 ; (2005) 224 CLR 44 at [24] per Gleeson CJ; at [51] per McHugh, Gummow and Hayne JJ and at [138] per Callinan J. At [26] Gleeson CJ said: Where Parliament confers a statutory power to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, Parliament is taken to intend that the power be exercised fairly and in accordance with natural justice unless it makes the contrary intention plain. This principle of interpretation is an acknowledgment by the courts of Parliament's assumed respect for justice.
Case: Minister for Immigration and Multicultural Affairs v Yusuf; Re Minister for Immigration and Multicultural Affairs v Israelian [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: referred to
Minister for Immigration and Multicultural Affairs v Yusuf; Re Minister for Immigration and Multicultural Affairs v Israelian [2001] HCA 30 ; (2001) 206 CLR 323 at [73] McHugh, Gummow and Hayne JJ observed the necessity to consider, at the outset, 'the statutory scheme as a whole' . At [74] the majority said: What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law.
Case: Re Minister for Immigration and Multicultural Affairs and Another; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57
Outcome: referred to
Re Minister for Immigration and Multicultural Affairs and Another: Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 at [99] Gaudron J said: The basic principle with respect to procedural fairness is that a person should have an opportunity to put his or her case and to meet the case that is put against him or her.
Case: Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1
Outcome: cited
Finance Minister submits that procedural fairness does not require that every piece of information that might potentially be used adversely to another person's interest must be provided. Rather, the obligation to provide procedural fairness is limited. Reliance is placed upon the observations of McHugh J in Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh [1995] HCA 20 ; (1995) 183 CLR 273 at 311-312 wherein his Honour observed (in his dissenting judgment): In the absence of a clear contrary legislative intention, those rules require a decision-maker "to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it". Footnotes omitted. His Honour's decision has been recently approved by McHugh and Gummow JJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 at [81] - [83] .
Case: Pfizer Pty Ltd v Birkett [2001] FCA 828 ; (2001) 112 FCR 305
Outcome: referred to
Pfizer Pty Ltd v Birkett [2001] FCA 828 ; (2001) 112 FCR 305 at [60] the Full Court confirmed the necessity to consider 'the relevant content of the requirement' that the decision maker proceed in a manner so as to provide natural justice.
Case: Salemi v Mackellar [No. 2] [1977] HCA 26 ; (1977) 137 CLR 396
Outcome: referred to
the width of such power does not have the consequence that the rules of procedural fairness have no application to the Finance Minister when exercising his discretion under s 33. As was observed by Gibbs J in Salemi v Mackellar [No. 2] [1977] HCA 26 ; (1977) 137 CLR 396 at 419: There is nothing technical about the principles of natural justice. It is sometimes said, or suggested, that those principles apply only to proceedings which are judicial or quasi-judicial, or where there is a duty to act judicially. To state the rule in that way seems to me to be unduly restrictive and misleading. It is at least clear that when the power which is being exercised is a statutory one, it is not necessary to be able to find in the words of the statute itself a duty to hear the party affected or otherwise to act judicially. His Honour continued (at 419): It may be enough if an interest or privilege is affected, or, as Lord Denning M.R. has said, if a man has a "legitimate expectation", of which it would not be fair to deprive him without a hearing, or reasons given: Breen v. Amalgamated Engineering Union ; and see Schmidt v. Secretary of State for Home Affairs . Footnotes omitted
Case: Toomer v Slipper [2001] FCA 981
Outcome: followed
power of the Finance Minister to approve an act of grace payment is unconfined and thus depends solely upon his opinion that it is 'appropriate' to do so. Such was found by Weinberg J when considering the application of s 33 in Toomer v Slipper [2001] FCA 981 at [31] : There are any number of circumstances which may give rise to a claim for payment of this type. It is impossible to anticipate the situations in which such payments may be warranted. The discretion vested in the Minister is obviously broad. In Toomer a claim was made for an act of grace payment under s 33 arising out of the applicant's termination of employment. After considering the complaint that the respondent Finance Minister had failed to accord procedural fairness to the applicant, the Court observed that a full opportunity had been provided to the applicant to be heard. The Court accordingly dismissed the applicant's claim alleging breach of procedural fairness. Weinberg J apparently proceeded on the assumption that the rules of natural justice applied to decisions of the Finance Minister made pursuant to s 33. This Court respectfully adopts his Honour's approach. The decision of the Finance Minister made upon an application under s 33 affects the rights of an applicants, since it determines whether an act of grace payment may be made in respect of a claim which may otherwise be compensable or not compensable at law. Provided the power is exercised lawfully, his decision cannot be impugned: see Toomer at [47]. Extent of the application of the rules of natural justice Having established the threshold question whether the rules of natural justice do attach to an exercise of s 33, the next question for determination is the extent of the application of the rules of natural justice.