Case: Craine v Colonial and Mutual Life Fire Insurance Company Limited [1920] HCA 64 ; (1920) 28 CLR 305
Outcome: cited
As Isaacs J observed giving the judgment of the Court in Craine v Colonial and Mutual Life Fire Insurance Company Limited [1920] HCA 64 ; (1920) 28 CLR 305 at 326: '"Waiver" is a doctrine of some arbitrariness introduced by the law to prevent a man in certain circumstances from taking up two inconsistent positions (see per James L.J. in Pilcher v. Rawlins (7 Ch App 259, at pp. 268 et seqq)). It is a conclusion of law when the necessary facts are established. It looks, however, chiefly to the conduct and position of the person who is said to have waived, in order to see whether he has "approbated" so as to prevent him from "reprobating"--in English terms, whether he has elected to get some advantage to which he would not otherwise have been entitled, so as to deny to him a later election to the contrary (see per Lord Shaw in Pitman v. Crum Ewing ((1911) AC 217, at p. 239)). His knowledge is necessary, or he cannot be said to have approbated or elected.' 40 This, of course, is not a case of election per se but it is a case in which the appellant sought to get from the Tribunal the benefit of having his new migration agent act for him, apparently on the evidence, by instructing that agent to seek an adjournment. Such was Mr Sardar's request of 28 April 2003. 41 I think that if the appellant wants to rely on that request having been made for an adjournment, as having been one which the Tribunal should have taken notice of, he must accept that it was reasonable for the Tribunal in the circumstances to take Mr Sardar as being the person authorised to receive communications in response to that request, including a rejection and to leave it to him to communicate with the appellant about it. Therefore, in addition to the reasons that his Honour gave for rejecting the argument concerning the refusal of the adjournment for these additional reasons above, I would also refuse that ground of appeal. I hasten to add that I agree with his Honour's analysis and the analysis for rejecting that ground as an independent ground. 42 The appellant argued that the letter of 31 March 2003 was not signed by a person within the meaning of s 407 of the Act, being a Registrar of the Tribunal, a Deputy Registrar or other officer of the Tribunal. In my opinion this ground is without substance. The letter stated that there was a contact officer, Ms Flores, who I infer, pursuant to my powers under the Evidence Act 1995 (Cth) from the form of the document was authorised to send the document. It is a business record. It records accurately that Ms Flores was an officer of the Tribunal as it stated. She was the person who sent the document or on whose behalf it was sent. Therefore it was a document that emanated from an officer of the Tribunal. I reject the ground of appeal that asserts to the contrary. 43 Next it was argued that there was non-compliance with the statutory regime prescribed by Division 4, Part 7 of the Act in relation to the way in which the letter of 31 March 2003 notified the hearing. It is necessary to set out the relevant sections of the Act, namely ss 425, 425A, 426A and 427(1): S 425 ' Tribunal must invite applicant to appear (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. (2) Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it: or (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it: or (c) subsection 424C(1) or (2) applies to the applicant. (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal. S 425A Notice of invitation to appear (1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear. (2) The notice must be given to the applicant: (a) except where paragraph (b) applies by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention by a method prescribed for the purposes of giving documents to such a person. (3) The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period. (4) The notice must contain a statement of the effect of section 426A. S 426A Failure of applicant to appear before Tribunal (1) If the applicant: (a) is invited under section 425 to appear before the Tribunal; and (b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear; the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. (2) This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled. S 427 Powers of the Refugee Review Tribunal etc. (1) For the purpose of the review of a decision, the Tribunal may: (a) take evidence on oath or affirmation; or (b) adjourn the review from time to time; or (c) subject to sections 438 and 440, give information to the applicant and to the Secretary; or (d) require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.'