mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Alcoa of Australia Retirement Plan Pty Ltd v Thompson (2002) 116 FCR 139
Outcome: cited
Accepting that both under the general law and under cl 3(1) of the trust deed, MMA Super had no duty to give reasons for its adverse determination, a failure to give reasons in circumstances where explanation might be called for is another matter. As Young J observed in Maciejewski v Telstra Super Pty Ltd (1998) 44 NSWLR 601 at 604, in dealing with the suggestion that because a trustee is not bound to give any reasons, therefore the matter is completely unreviewable: Nothing could be further from the truth. Indeed, whilst trustees do not have to give reasons in a case where a plaintiff puts forward a prima facie case that the trustee's discretion has miscarried, the absence of reasons and the absence of any evidence before the Court as to what happened, will tend to make that prima facie case a virtual certainty. This view has been endorsed in many subsequent cases: see Baker v Local Government Superannuation Scheme Pty Ltd ; Hay v Total Risk Management Pty Ltd ; Alcoa of Australia Retirement Plan Pty Ltd v Thompson (2002) 116 FCR 139 at [37]; Flegeltaub v Telstra Super Pty Ltd ; see also Butler LM, "Reviewing Trustees' Decisions: The Right to Reasons" (1999) 7 Aust Property LJ 251.
Case: Karger v Paul [1984] VR 161
Outcome: cited
For present purposes, I accept that the grounds upon which a court will review an exercise of a superannuation trustee's discretionary determination are essentially those stated by McGarvie J in Karger v Paul [1984] VR 161 , though they have been somewhat elaborated if not adapted: see Baker v Local Government Superannuation Scheme Pty Ltd at [8] in the superannuation context. They are that the discretion was not exercised in good faith; that there was not a real and genuine consideration of the correct question; that the discretion was not exercised for the purpose for which it was conferred; if the trustee has given reasons for its exercise of discretion, that those reasons were not sound; and, if the material before the trustee can be identified, that the trustee's decision was one that no reasonable person could come to on that material.
Case: WA Pines Pty Ltd v Bannerman [1980] FCA 79 ; (1980) 30 ALR 559
Outcome: cited
That is not to say that discovery is unavailable in judicial review. Whether discovery is ordered in a particular case "depends upon the nature of the case and the stage of the proceedings at which the discovery is sought": WA Pines Pty Ltd v Bannerman [1980] FCA 79 ; (1980) 30 ALR 559 at 567. The fact that an applicant can obtain a statement of reasons under s 13 of the ADJR Act is not determinative of whether discovery should be ordered. There are numerous instances of judicial review proceedings in which discovery has been ordered in this Court or where the jurisdiction to do so has been accepted: WA Pines Pty Ltd v Bannerman; Commissioner of Taxation v Nestle Australia Ltd [1986] FCA 368 ; (1986) 12 FCR 257 ; TNT Australia Pty Ltd v Fels (1992) ATPR 41-190 per Gummow J; and Australian Securities Commission v Somerville (1994) 51 FCR 38 and Canwest Global Communications Corp v Australian Broadcasting Authority (Hill J, 16 June 1997, unreported). See also Re Federal Commissioner of Taxation, Ex parte Swiss Aluminium Australia Ltd (1987) 72 ALR 247. 46 To grant leave to interrogate in the circumstances presented here would be to encourage not merely "fishing" but full-scale "trawling". It is well-established in relation to discovery that a party who can demonstrate nothing to support an allegation will not be granted access to the documents of the opposing party in the hope of discovering some such support. See, for example, WA Pines Pty Ltd v Bannerman. This principle applies with equal force to those seeking relief under the ADJR Act : Minister for Immigration and Multicultural and Indigenous Affairs v Wong at [29]-[32]. It is not open to a party merely to allege that a decision was made without any proper basis and then seek to use the compulsory process of the Court to attempt to find out if that allegation has any foundation. Before discovery can be ordered, there must be some evidence that can support an arguable case for review, proof of which is likely to be aided by requiring production of relevant documents.
Case: Canwest Global Communications Corp v Australian Broadcasting Authority (Hill J, 16 June 1997, unreported)
Outcome: cited
That is not to say that discovery is unavailable in judicial review. Whether discovery is ordered in a particular case "depends upon the nature of the case and the stage of the proceedings at which the discovery is sought": WA Pines Pty Ltd v Bannerman [1980] FCA 79 ; (1980) 30 ALR 559 at 567. The fact that an applicant can obtain a statement of reasons under s 13 of the ADJR Act is not determinative of whether discovery should be ordered. There are numerous instances of judicial review proceedings in which discovery has been ordered in this Court or where the jurisdiction to do so has been accepted: WA Pines Pty Ltd v Bannerman; Commissioner of Taxation v Nestle Australia Ltd [1986] FCA 368 ; (1986) 12 FCR 257 ; TNT Australia Pty Ltd v Fels (1992) ATPR 41-190 per Gummow J; and Australian Securities Commission v Somerville (1994) 51 FCR 38 and Canwest Global Communications Corp v Australian Broadcasting Authority (Hill J, 16 June 1997, unreported). See also Re Federal Commissioner of Taxation, Ex parte Swiss Aluminium Australia Ltd (1987) 72 ALR 247.
Case: Commissioner of Taxation v Nestle Australia Ltd [1986] FCA 368 ; (1986) 12 FCR 257 
Outcome: cited
That is not to say that discovery is unavailable in judicial review. Whether discovery is ordered in a particular case "depends upon the nature of the case and the stage of the proceedings at which the discovery is sought": WA Pines Pty Ltd v Bannerman [1980] FCA 79 ; (1980) 30 ALR 559 at 567. The fact that an applicant can obtain a statement of reasons under s 13 of the ADJR Act is not determinative of whether discovery should be ordered. There are numerous instances of judicial review proceedings in which discovery has been ordered in this Court or where the jurisdiction to do so has been accepted: WA Pines Pty Ltd v Bannerman; Commissioner of Taxation v Nestle Australia Ltd [1986] FCA 368 ; (1986) 12 FCR 257 ; TNT Australia Pty Ltd v Fels (1992) ATPR 41-190 per Gummow J; and Australian Securities Commission v Somerville (1994) 51 FCR 38 and Canwest Global Communications Corp v Australian Broadcasting Authority (Hill J, 16 June 1997, unreported). See also Re Federal Commissioner of Taxation, Ex parte Swiss Aluminium Australia Ltd (1987) 72 ALR 247.
Case: TNT Australia Pty Ltd v Fels (1992) ATPR 41-190
Outcome: cited
That is not to say that discovery is unavailable in judicial review. Whether discovery is ordered in a particular case "depends upon the nature of the case and the stage of the proceedings at which the discovery is sought": WA Pines Pty Ltd v Bannerman [1980] FCA 79 ; (1980) 30 ALR 559 at 567. The fact that an applicant can obtain a statement of reasons under s 13 of the ADJR Act is not determinative of whether discovery should be ordered. There are numerous instances of judicial review proceedings in which discovery has been ordered in this Court or where the jurisdiction to do so has been accepted: WA Pines Pty Ltd v Bannerman; Commissioner of Taxation v Nestle Australia Ltd [1986] FCA 368 ; (1986) 12 FCR 257 ; TNT Australia Pty Ltd v Fels (1992) ATPR 41-190 per Gummow J; and Australian Securities Commission v Somerville (1994) 51 FCR 38 and Canwest Global Communications Corp v Australian Broadcasting Authority (Hill J, 16 June 1997, unreported). See also Re Federal Commissioner of Taxation, Ex parte Swiss Aluminium Australia Ltd (1987) 72 ALR 247.
Case: Australian Securities Commission v Somerville (1994) 51 FCR 38
Outcome: cited
That is not to say that discovery is unavailable in judicial review. Whether discovery is ordered in a particular case "depends upon the nature of the case and the stage of the proceedings at which the discovery is sought": WA Pines Pty Ltd v Bannerman [1980] FCA 79 ; (1980) 30 ALR 559 at 567. The fact that an applicant can obtain a statement of reasons under s 13 of the ADJR Act is not determinative of whether discovery should be ordered. There are numerous instances of judicial review proceedings in which discovery has been ordered in this Court or where the jurisdiction to do so has been accepted: WA Pines Pty Ltd v Bannerman; Commissioner of Taxation v Nestle Australia Ltd [1986] FCA 368 ; (1986) 12 FCR 257 ; TNT Australia Pty Ltd v Fels (1992) ATPR 41-190 per Gummow J; and Australian Securities Commission v Somerville (1994) 51 FCR 38 and Canwest Global Communications Corp v Australian Broadcasting Authority (Hill J, 16 June 1997, unreported). See also Re Federal Commissioner of Taxation, Ex parte Swiss Aluminium Australia Ltd (1987) 72 ALR 247.
Case: Re Federal Commissioner of Taxation, Ex parte Swiss Aluminium Australia Ltd (1987) 72 ALR 247 
Outcome: cited
That is not to say that discovery is unavailable in judicial review. Whether discovery is ordered in a particular case "depends upon the nature of the case and the stage of the proceedings at which the discovery is sought": WA Pines Pty Ltd v Bannerman [1980] FCA 79 ; (1980) 30 ALR 559 at 567. The fact that an applicant can obtain a statement of reasons under s 13 of the ADJR Act is not determinative of whether discovery should be ordered. There are numerous instances of judicial review proceedings in which discovery has been ordered in this Court or where the jurisdiction to do so has been accepted: WA Pines Pty Ltd v Bannerman; Commissioner of Taxation v Nestle Australia Ltd [1986] FCA 368 ; (1986) 12 FCR 257 ; TNT Australia Pty Ltd v Fels (1992) ATPR 41-190 per Gummow J; and Australian Securities Commission v Somerville (1994) 51 FCR 38 and Canwest Global Communications Corp v Australian Broadcasting Authority (Hill J, 16 June 1997, unreported). See also Re Federal Commissioner of Taxation, Ex parte Swiss Aluminium Australia Ltd (1987) 72 ALR 247.
Case: Minister for Immigration and Multicultural Affairs v Wong [2002] FCAFC 327
Outcome: considered
In Minister for Immigration and Multicultural and Indigenous Affairs v Wong [2002] FCAFC 327 , a Full Court of the Federal Court, while not determining whether the Court had power generally to order interrogatories to be answered in judicial review proceedings, said that it saw no reason "why there should be a differentiation in Australia between the power to order discovery and the power to order that interrogatories be answered". 48 It should not be thought that I reject absolutely the use of additional evidence on judicial review. While generally the state of mind of the decision maker would be irrelevant in judicial review, there are cases which warrant the reception of such evidence: see, for example, Percerep v Minister for Immigration and Multicultural Affairs [1998] FCA 1088 ; (1998) 86 FCR 483 and McCormack v Deputy Commissioner of Taxation Large Business &amp; International [2001] FCA 1700 at [38] . For example, allegations of actual bias may require evidence relating to extraneous matters going far beyond the material before the decision maker. Claims of improper purpose typically present evidentiary difficulties. The Court must determine, in cases of that type, whether a stated purpose was in fact the real purpose. Such claims often fail for lack of sufficient evidence. On occasion, however, documents obtained on discovery and answers to interrogatories can provide evidence of motive or purpose and, accordingly, may be of relevance. See, for example, Minister for Immigration and Multicultural and Indigenous Affairs v Wong at [26].
Case: Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Live-Stock Corporation [1990] FCA 139 ; (1990) 96 ALR 153
Outcome: cited
The respondents accept that discrimination without apparent justification has, in some circumstances, been held to constitute Wednesbury unreasonableness: Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Live-Stock Corporation [1990] FCA 139 ; (1990) 96 ALR 153. They say, however, that the Minister's exercise of power under s 77EA(1) is not susceptible to review purely because different Ministers have acted differently in the past in relation to similar imported goods. 24 The respondents also say that the Minister is under no obligation to consider whether to exercise his power under s 77EA in relation to all goods that are imported. The power is one that involves ordering Customs to detain goods if the Minister considers that it is in the public interest to do so. There is no requirement under the section that Customs inform the Minister of any particular situations in which he or she may potentially exercise the power, still less any requirement that the Minister initiate investigations into all such cases. Accordingly, so it is submitted, it cannot be inferred, even on the basis of apparently unequal treatment, that there has been unlawful discrimination.
Case: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: cited
The respondents observe that the power conferred under s 77EA is necessarily very broad. It is plainly intended that government policy can be taken into account: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24 at 42 and Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at 529. A new Minister must be free to develop and change government policy, even if that means that weapons that were in the past generally available for importation and sale may now be detained. The respondents refer in that regard to Hot Holdings Pty Limited v Creasy [2002] HCA 51 ; (2002) 210 CLR 438 at 455, where Gaudron, Gummow and Hayne JJ referred with approval to Professor Wade's statement that the whole object of a statutory provision placing a power into the hands of the Minister "is that he may exercise it according to government policy".
Case: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507
Outcome: cited
The respondents observe that the power conferred under s 77EA is necessarily very broad. It is plainly intended that government policy can be taken into account: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24 at 42 and Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at 529. A new Minister must be free to develop and change government policy, even if that means that weapons that were in the past generally available for importation and sale may now be detained. The respondents refer in that regard to Hot Holdings Pty Limited v Creasy [2002] HCA 51 ; (2002) 210 CLR 438 at 455, where Gaudron, Gummow and Hayne JJ referred with approval to Professor Wade's statement that the whole object of a statutory provision placing a power into the hands of the Minister "is that he may exercise it according to government policy".
Case: Hot Holdings Pty Limited v Creasy [2002] HCA 51 ; (2002) 210 CLR 438 
Outcome: cited
The respondents observe that the power conferred under s 77EA is necessarily very broad. It is plainly intended that government policy can be taken into account: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24 at 42 and Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at 529. A new Minister must be free to develop and change government policy, even if that means that weapons that were in the past generally available for importation and sale may now be detained. The respondents refer in that regard to Hot Holdings Pty Limited v Creasy [2002] HCA 51 ; (2002) 210 CLR 438 at 455, where Gaudron, Gummow and Hayne JJ referred with approval to Professor Wade's statement that the whole object of a statutory provision placing a power into the hands of the Minister "is that he may exercise it according to government policy".
Case: Whim Creek Consolidated NL v Colgan [1989] FCA 261 ; (1989) 25 FCR 50 
Outcome: cited
It is obvious that grounds in support of an application for review are in no sense pleadings. It follows that O 11 r 16 of the Rules, which enables the Court to order that the whole or any part of a pleading be struck out, has no direct application to this case. Nonetheless, the authorities that deal with that order can be invoked, by analogy, in relation to grounds specified in an application under the ADJR Act : Whim Creek Consolidated NL v Colgan [1989] FCA 261 ; (1989) 25 FCR 50.
Case: Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62
Outcome: cited
The Court will always be slow to exercise its discretion to strike out a pleading: Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125. The power will be used sparingly and only where there is a clearly untenable case. It is of course an abuse of process to maintain an action which is doomed to fail: Walton v Gardiner [1993] HCA 77 ; (1993) 177 CLR 378 at 393. The onus of satisfying the Court that this criterion is met lies upon the party alleging that to be the case.
Case: Walton v Gardiner [1993] HCA 77 ; (1993) 177 CLR 378
Outcome: cited
The Court will always be slow to exercise its discretion to strike out a pleading: Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125. The power will be used sparingly and only where there is a clearly untenable case. It is of course an abuse of process to maintain an action which is doomed to fail: Walton v Gardiner [1993] HCA 77 ; (1993) 177 CLR 378 at 393. The onus of satisfying the Court that this criterion is met lies upon the party alleging that to be the case.
Case: Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 
Outcome: cited
It is a nice question whether s 31A can be invoked in relation to grounds of review that seem untenable. The section permits judgment to be given in favour of one party against another only, and does not address grounds of review as such: see Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401. Order 54 r 7(1)(a) of the Rules, which governs applications brought under the ADJR Act , provides that a party may apply to the Court for "judgment" in an application for an order for review under O 20 r 2 or s 31A of the Federal Court of Australia Act . Order 54 r 7(1)(b) enables a party to apply to have an application for an order of review stayed or dismissed under O 20 r 4 or r 5. It follows that the Court can dismiss a "claim for relief" in a particular proceeding if that claim constitutes an abuse of process.
Case: Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1271
Outcome: cited
In Minister for Immigration and Multicultural and Indigenous Affairs v Wong [2002] FCAFC 327 , a Full Court of the Federal Court, while not determining whether the Court had power generally to order interrogatories to be answered in judicial review proceedings, said that it saw no reason "why there should be a differentiation in Australia between the power to order discovery and the power to order that interrogatories be answered". 46 To grant leave to interrogate in the circumstances presented here would be to encourage not merely "fishing" but full-scale "trawling". It is well-established in relation to discovery that a party who can demonstrate nothing to support an allegation will not be granted access to the documents of the opposing party in the hope of discovering some such support. See, for example, WA Pines Pty Ltd v Bannerman. This principle applies with equal force to those seeking relief under the ADJR Act : Minister for Immigration and Multicultural and Indigenous Affairs v Wong at [29]-[32]. It is not open to a party merely to allege that a decision was made without any proper basis and then seek to use the compulsory process of the Court to attempt to find out if that allegation has any foundation. Before discovery can be ordered, there must be some evidence that can support an arguable case for review, proof of which is likely to be aided by requiring production of relevant documents. 48 It should not be thought that I reject absolutely the use of additional evidence on judicial review. While generally the state of mind of the decision maker would be irrelevant in judicial review, there are cases which warrant the reception of such evidence: see, for example, Percerep v Minister for Immigration and Multicultural Affairs [1998] FCA 1088 ; (1998) 86 FCR 483 and McCormack v Deputy Commissioner of Taxation Large Business &amp; International [2001] FCA 1700 at [38] . For example, allegations of actual bias may require evidence relating to extraneous matters going far beyond the material before the decision maker. Claims of improper purpose typically present evidentiary difficulties. The Court must determine, in cases of that type, whether a stated purpose was in fact the real purpose. Such claims often fail for lack of sufficient evidence. On occasion, however, documents obtained on discovery and answers to interrogatories can provide evidence of motive or purpose and, accordingly, may be of relevance. See, for example, Minister for Immigration and Multicultural and Indigenous Affairs v Wong at [26].
Case: Percerep v Minister for Immigration and Multicultural Affairs [1998] FCA 1088 ; (1998) 86 FCR 483
Outcome: cited
It should not be thought that I reject absolutely the use of additional evidence on judicial review. While generally the state of mind of the decision maker would be irrelevant in judicial review, there are cases which warrant the reception of such evidence: see, for example, Percerep v Minister for Immigration and Multicultural Affairs [1998] FCA 1088 ; (1998) 86 FCR 483 and McCormack v Deputy Commissioner of Taxation Large Business &amp; International [2001] FCA 1700 at [38] . For example, allegations of actual bias may require evidence relating to extraneous matters going far beyond the material before the decision maker. Claims of improper purpose typically present evidentiary difficulties. The Court must determine, in cases of that type, whether a stated purpose was in fact the real purpose. Such claims often fail for lack of sufficient evidence. On occasion, however, documents obtained on discovery and answers to interrogatories can provide evidence of motive or purpose and, accordingly, may be of relevance. See, for example, Minister for Immigration and Multicultural and Indigenous Affairs v Wong at [26].
Case: McCormack v Deputy Commissioner of Taxation Large Business &amp; International [2001] FCA 1700
Outcome: cited
It should not be thought that I reject absolutely the use of additional evidence on judicial review. While generally the state of mind of the decision maker would be irrelevant in judicial review, there are cases which warrant the reception of such evidence: see, for example, Percerep v Minister for Immigration and Multicultural Affairs [1998] FCA 1088 ; (1998) 86 FCR 483 and McCormack v Deputy Commissioner of Taxation Large Business &amp; International [2001] FCA 1700 at [38] . For example, allegations of actual bias may require evidence relating to extraneous matters going far beyond the material before the decision maker. Claims of improper purpose typically present evidentiary difficulties. The Court must determine, in cases of that type, whether a stated purpose was in fact the real purpose. Such claims often fail for lack of sufficient evidence. On occasion, however, documents obtained on discovery and answers to interrogatories can provide evidence of motive or purpose and, accordingly, may be of relevance. See, for example, Minister for Immigration and Multicultural and Indigenous Affairs v Wong at [26].