mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Hatfield v Health Insurance Commission (1987) 15 FCR 487
Outcome: cited
introduction of the requirement that administrative decision-makers provide reasons for their decisions (or do so on request from persons affected by those decisions) was a fundamental development in Australia's system of administrative law. In his 1989 Blackburn Lecture, the then Chief Justice of the High Court, Sir Anthony Mason, said that the creation of the obligation to provide a statement of reasons for decisions "was a dramatic advance in arming the individual with effective remedies in the overall scheme to ensure administrative justice" and that "reasoned and principled administrative decisions are an indispensable element in a modern democracy." The provision of reasons serves a number of useful functions: see Osmond v Public Service Board of New South Wales [1984] 3 NSWLR 447 at 463 (per Kirby P); Comcare Australia v Lees (1997) 151 ALR 647 at 656 (per Finkelstein J). Relevantly, the provision of reasons enables the parties, and, particularly, unsuccessful parties, to understand why the decision was made and to make an informed judgment as to whether to seek redress or to accept the decision. To this end "[i]t is necessary that the statement be sufficiently explicit to enable the recipient to determine whether "the making of the decision was an improper exercise of the power conferred by the enactment", "the decision involved in error of law", the decision-maker took into account an irrelevant consideration or failed to take into account a relevant consideration and like matters referred to in ss 5 and 6 of the [ADJR] Act": Hatfield v Health Insurance Commission (1987) 15 FCR 487 at 490. In a frequently quoted passage from his judgment in Ansett Transport Industries (Operations) Pty Ltd v Wraith [1983] FCA 179 ; (1983) 48 ALR 500 at 507, Woodward J explained the obligation, imposed on decision-makers by s 13 of the ADJR Act, as follows: "The passages from judgments which are conveniently brought together in Re Palmer and Minister for the Capital Territory (1978) 23 ALR 176 at 206-207; 1 ALD 183 at 193-4, serve to confirm my view that s 13(1) of the Judicial Review Act requires the decision-maker to explain his decision in a way which will enable a person aggrieved to say, in effect: "Even though I may not agree with it, I now understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging." This requires that the decision-maker should set out his understanding of the relevant law, any findings of fact on which his conclusions depend (especially if those facts have been in dispute), and the reasoning processes which led him to those conclusions. He should do so in clear and unambiguous language, not in vague generalities or the formal language of legislation." See also ARM Constructions Pty Ltd v Deputy Commissioner of Taxation (1986) 10 FCR 197 at 203; Soldatow v Australia Council [1991] FCA 160 ; (1991) 28 FCR 1 at 2.
Case: ARM Constructions Pty Ltd v Deputy Commissioner of Taxation (1986) 10 FCR 197
Outcome: cited
introduction of the requirement that administrative decision-makers provide reasons for their decisions (or do so on request from persons affected by those decisions) was a fundamental development in Australia's system of administrative law. In his 1989 Blackburn Lecture, the then Chief Justice of the High Court, Sir Anthony Mason, said that the creation of the obligation to provide a statement of reasons for decisions "was a dramatic advance in arming the individual with effective remedies in the overall scheme to ensure administrative justice" and that "reasoned and principled administrative decisions are an indispensable element in a modern democracy." The provision of reasons serves a number of useful functions: see Osmond v Public Service Board of New South Wales [1984] 3 NSWLR 447 at 463 (per Kirby P); Comcare Australia v Lees (1997) 151 ALR 647 at 656 (per Finkelstein J). Relevantly, the provision of reasons enables the parties, and, particularly, unsuccessful parties, to understand why the decision was made and to make an informed judgment as to whether to seek redress or to accept the decision. To this end "[i]t is necessary that the statement be sufficiently explicit to enable the recipient to determine whether "the making of the decision was an improper exercise of the power conferred by the enactment", "the decision involved in error of law", the decision-maker took into account an irrelevant consideration or failed to take into account a relevant consideration and like matters referred to in ss 5 and 6 of the [ADJR] Act": Hatfield v Health Insurance Commission (1987) 15 FCR 487 at 490. In a frequently quoted passage from his judgment in Ansett Transport Industries (Operations) Pty Ltd v Wraith [1983] FCA 179 ; (1983) 48 ALR 500 at 507, Woodward J explained the obligation, imposed on decision-makers by s 13 of the ADJR Act, as follows: "The passages from judgments which are conveniently brought together in Re Palmer and Minister for the Capital Territory (1978) 23 ALR 176 at 206-207; 1 ALD 183 at 193-4, serve to confirm my view that s 13(1) of the Judicial Review Act requires the decision-maker to explain his decision in a way which will enable a person aggrieved to say, in effect: "Even though I may not agree with it, I now understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging." This requires that the decision-maker should set out his understanding of the relevant law, any findings of fact on which his conclusions depend (especially if those facts have been in dispute), and the reasoning processes which led him to those conclusions. He should do so in clear and unambiguous language, not in vague generalities or the formal language of legislation." See also ARM Constructions Pty Ltd v Deputy Commissioner of Taxation (1986) 10 FCR 197 at 203; Soldatow v Australia Council [1991] FCA 160 ; (1991) 28 FCR 1 at 2.
Case: Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) [1987] FCA 301 ; (1987) 16 FCR 465
Outcome: cited
statement will be treated as inadequate if it states conclusions without providing particulars of or explanations for those conclusions: Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) [1987] FCA 301 ; (1987) 16 FCR 465 at 482-3 or if it does not record the decision-maker's findings on material questions of fact: Sullivan v Department of Transport (1978) 20 ALR 323 at 348-9. Section 13 does not, however, impose an onerous burden on decision-makers. As Lockhart J observed in Ansett Transport Industries (Operations) Ltd v Taylor (1987) 18 FCR 498 at 502 a decision on whether reasons are adequate or not must depend on the circumstances of a particular case. His Honour said: "The section does not require that the findings on all questions of fact be set out; it is sufficient if the statement sets out the findings on material questions of fact. Nor is it necessary that the evidence or other material be set out in the statement; it is sufficient if it is referred to in it. Nor should the statement be interpreted by the courts narrowly or technically."
Case: Sullivan v Department of Transport (1978) 20 ALR 323
Outcome: cited
statement will be treated as inadequate if it states conclusions without providing particulars of or explanations for those conclusions: Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) [1987] FCA 301 ; (1987) 16 FCR 465 at 482-3 or if it does not record the decision-maker's findings on material questions of fact: Sullivan v Department of Transport (1978) 20 ALR 323 at 348-9. Section 13 does not, however, impose an onerous burden on decision-makers. As Lockhart J observed in Ansett Transport Industries (Operations) Ltd v Taylor (1987) 18 FCR 498 at 502 a decision on whether reasons are adequate or not must depend on the circumstances of a particular case. His Honour said: "The section does not require that the findings on all questions of fact be set out; it is sufficient if the statement sets out the findings on material questions of fact. Nor is it necessary that the evidence or other material be set out in the statement; it is sufficient if it is referred to in it. Nor should the statement be interpreted by the courts narrowly or technically."
Case: Ansett Transport Industries (Operations) Ltd v Taylor (1987) 18 FCR 498
Outcome: cited
statement will be treated as inadequate if it states conclusions without providing particulars of or explanations for those conclusions: Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) [1987] FCA 301 ; (1987) 16 FCR 465 at 482-3 or if it does not record the decision-maker's findings on material questions of fact: Sullivan v Department of Transport (1978) 20 ALR 323 at 348-9. Section 13 does not, however, impose an onerous burden on decision-makers. As Lockhart J observed in Ansett Transport Industries (Operations) Ltd v Taylor (1987) 18 FCR 498 at 502 a decision on whether reasons are adequate or not must depend on the circumstances of a particular case. His Honour said: "The section does not require that the findings on all questions of fact be set out; it is sufficient if the statement sets out the findings on material questions of fact. Nor is it necessary that the evidence or other material be set out in the statement; it is sufficient if it is referred to in it. Nor should the statement be interpreted by the courts narrowly or technically."
Case: Madera v Commissioner of Taxation [2004] FCA 1616 ; (2004) 214 ALR 327
Outcome: cited
next question becomes whether the provisions of s 13(11)(b) of the ADJR Act relieved his Honour of the obligation to comply with the applicant's request. He would be so relieved if his original decision had been accompanied by a statement which satisfied the elements prescribed by s 13(1). I have framed the proposition in this way because, although there are some linguistic differences between s 13(1) and s 13(11)(b), like Stone J in Madera v Commissioner of Taxation [2004] FCA 1616 ; (2004) 214 ALR 327 at 333, I consider that the similarities in the language employed suggests no relevant difference in the nature of the statement which will satisfy these provisions. So understood s 13(11)(b) does not apply because, as I have already held, the notation did not constitute a statement of reasons within the meaning of s 13(1) of the ADJR Act. Operation of s 13(11)(c) I also sought submissions from the parties as to whether or not s 13(11)(c) might have application by reason of some of the provisions of paragraph (f) of Schedule 2 of the ADJR Act. Schedule 2 contains a list of classes of decisions that are not decisions to which s 13 applies. Relevantly, paragraph (f) reads: "(f) decisions in connection with the institution or conduct of proceedings in a civil court, including decisions that relate to, or may result in, the bringing of such proceedings for recovery of pecuniary penalties arising from contraventions of enactments, and, in particular: (i) ... (ii) ... (iii) decisions in connection with the issue of search warrants ... under enactments; and (iv) decisions under enactments requiring the production of documents, the giving of information or the summoning of persons as witnesses ..." Counsel for the applicants submitted that the decision to issue a warrant under s 130 of the Bankruptcy Act was not a decision caught by paragraph (f). Counsel for the second respondent drew the Court's attention to potentially relevant authorities but did not make a firm submission one way or the other as to whether paragraph (f) applied to decisions made under s 130.
Case: Telstra Corporation Limited v Australian Competition and Consumer Commission (No 2) [2007] FCA 493 ; 240 ALR 135
Outcome: cited
Telstra Corporation Limited v Australian Competition and Consumer Commission (No 2) [2007] FCA 493 ; 240 ALR 135 Bennett J was called on to determine whether the Australian Competition and Consumer Commission ("the ACCC") was required, by s 13 of the ADJR Act, to provide reasons for its decision to issue a competition notice to Telstra under s 151AKA of the Trade Practices Act . The purpose of such a notice was to give the recipient a warning that it was engaging in proscribed anti-competitive conduct. If the recipient of the notice, despite the warning, continued to engage in the conduct certain consequences might follow. These included the institution of a proceeding by the ACCC for recovery of a pecuniary penalty, actions for damages by third parties who had suffered loss or damage by reason of the anti-competitive conduct and other compensatory orders. Having referred to Ricegrowers and Murphy her Honour said (at 184) that: "There may be no correlative decision by the [ACCC] to institute pecuniary penalty proceedings ... following the issue of a Part A competition notice. Further, third parties will not necessarily issue proceedings to recover damages pursuant to ... 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 ... . The scheme of the Act expressly contemplates that such proceedings may result from the decision by the [ACCC] 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. The [ACCC's] decision to issue the Competition Notice was a decision within the terms of para (f) to Sch 2 of the ADJR Act. It follows that the [ACCC] 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." Although her Honour was principally concerned with the nexus between a decision to issue a competition notice and proceedings which might be brought seeking the imposition of a pecuniary penalty it is to be noted that she was also satisfied that the necessary connection existed between the decision and third party proceedings which might be commenced to recover damages.
Case: Logue v Hansen Technologies Ltd [2003] FCA 81 ; (2003) 125 FCR 590
Outcome: referred to
The applicant referred the Court to Logue v Hansen Technologies Ltd [2003] FCA 81 ; (2003) 125 FCR 590 (a case concerning an application for security for costs) in which Weinberg J noted at 599: '... the test for ordinary residence depends to a significant degree upon the state of mind of the person whose residence is in question. The language used in a number of the cases focuses upon whether the person habitually and normally resides in the jurisdiction, and does so for a settled purpose.'
Case: Mathai v Kwee [2005] FCA 932
Outcome: referred to
This statement was referred to with apparent approval by Graham J in Mathai v Kwee [2005] FCA 932 at [124] . His Honour referred to tennis and golf professionals as examples of people who travel away from the place or places where they are ordinarily resident, in order to earn their incomes. Indeed, in Mathai , Graham J found that a tax consultant who had spent only two out of the preceding 20 or so years actually residing in Australian was, nonetheless, ordinarily resident here.
Case: Re Vassis; Ex parte Leung (1986) 9 FCR 518
Outcome: referred to
Lockhart J's views are consistent with those expressed by Burchett J in Re Vassis; Ex parte Leung (1986) 9 FCR 518 to which his Honour referred. In Vassis, at 524 525, Burchett J made the following comment: 'The question where a person is ordinarily resident is a question of fact: ... It is obviously not to be answered, in respect of any particular time, by asking where that person was then resident . Otherwise, the word, "ordinarily" would have no meaning. But even the unqualified concept of residence is not tied to the accidents of a day; for, as Viscount Sumner said in Commissioners of Inland Revenue v Lysaght [1928] AC 234 at 245: "One thinks of a man's settled and usual place of abode as his residence." At the same time his Lordship pointed out that "in many cases in ordinary speech one residence at a time is the underlying assumption and, though a man may be the occupier of two houses, he is thought of as only resident in the one he lives in at the time in question". In s 43 of the Bankruptcy Act , the phrase is not "resident in Australia" but "ordinarily resident in Australia", and it expresses an alternative to "personally present ... in Australia". In such a context it must convey the former of the meanings which I have quoted from Viscount Summer's speech rather than the latter. If a man's home is in Australia, a merely temporary absence will not prevent his being ''ordinarily resident in Australia". It is a question of fact and degree at what point a temporary absence might, if sufficiently prolonged, prevent its being proper to continue to regard him as ordinarily resident in Australia.' 9 The extracts from Vassis and Taylor above both focus on the conduct and habits of the debtors in question however, in their respective judgments, both Burchett J and Lockhart J also referred to the debtors' statements or beliefs regarding their residency. In Taylor Lockhart J placed significant reliance on outgoing and incoming passenger cards, on which the debtor had recorded that he was an Australian resident, either leaving Australia temporarily or returning from a temporary absence. Although his Honour stated (at 200) that '[o]f course, statements by persons on migration forms are not definitive of their truth', in the context of the rest of the evidence his Honour found the passenger cards persuasive. In Vassis , Burchett J also referred to a departing passenger card in which the debtor indicated that he was an Australian resident, and to the debtor's evidence that he intended to come back to Australia to live permanently after his trip to Greece. Burchett J found that the debtor was ordinarily resident in Australia throughout the two year period that he spent living in Greece.
Case: Turner v Trevorrow (1994) 49 FCR 566
Outcome: referred to
In Turner v Trevorrow (1994) 49 FCR 566 at 575 the Full Federal Court acknowledged the possibility that notwithstanding a long physical absence, a continuing link to Australia could establish that a debtor was ordinarily resident in Australia. The Court's statement of the factors that negatived a conclusion that, on the date in question, Mr Turner was ordinarily resident in Australia, is a clear indication of the factors that the Court considered relevant: 'He did not have a dwelling in Australia. He had left Australia with his family, with the intention of spending a substantial period of time - as much as five years - overseas. He was not engaged in employment which by its very nature created a link between himself and Australia notwithstanding long physical absence - such as employment by the Australian Government or an Australian company. He had, for the time being at least, severed his ties with Australia and made arrangements for the winding down (if not winding up) of the company's business affairs.' 12 Accordingly, the question for the Court in these proceedings is whether, as a matter of fact and degree, the respondent could be said to be ordinarily resident in Australia at the time when the act of bankruptcy was committed on 6 June 2005. The applicants accept that they bear the onus of establishing that, as at 6 June 2005, the respondent was ordinarily resident in Australia within the meaning of s 43(1)(b)(i) of Bankruptcy Act . 13 It is not in contention that the respondent was born in Sydney in 1962 and practised as an accountant and as a registered liquidator between 1991 and 1997. From 1998 to 2003 the respondent lived with his mother, Mrs Ailsa Lee, at Ethersey House, Sutton Forest in New South Wales. Ethersey House was purchased by Cape Vale Pty Limited, a company owned by the respondent's mother and Mr Rudi Fabian in June 1998. It was apparently sold in April 2006. In April 2004 the respondent left Australia for Scotland. The respondent purchased the lease of Dunfallandy House in Scotland in about 2004. He is no longer in possession of Dunfallandy House, apparently because the landlord claims that he has failed to pay the rent. Despite that, he persists in describing it as his 'principal residence' . The respondent presently lives in London with his partner who, he says, supports him. Mrs Lee gave evidence that he had returned on several occasions to visit her; that each visit had lasted only 3 or 4 days; and that the respondent did not have any clothes or personal belongings left in Australia. She further deposed that the respondent did not have a rental agreement with her or Cape Vale Pty Limited.
Case: Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601
Outcome: referred to
In WAGP , the Full Court of this Court discussed the decision of the High Court in Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601 (" Muin "). It is not necessary for me to repeat the Court's analysis of that decision. At the time Muin was decided, the provisions of the Act (other than s 418) were in quite different terms from the provisions of the Act as they stand today. It is sufficient for me to say that a mere breach of s 418(3) of the Act by the Secretary will not vitiate the Tribunal's decision. That is not to say that a breach of the section may not in some other way result in the Tribunal committing jurisdictional error. In this case, the Tribunal gave the appellant the opportunity to remedy any deficiency (assuming for the moment that there was a deficiency) in the information before it, and it was within the appellant's power to do that. He did not take that opportunity. In any event, the important document in the Department's file which was not before the Tribunal was the appellant's statement, and the essence of the information in that statement was fairly reproduced in the record of decision which was before the Tribunal. That was the finding of the Magistrate and I see no reason to interfere with that finding. In the circumstances of this case, if there was a breach of s 418(3) of the Act , it did not lead to jurisdictional error on the part of the Tribunal.