Case: CDJ v VAJ [1998] HCA 67 ; (1998) 197 CLR 172
Outcome: referred to
In my respectful opinion, the Federal Magistrate erred in taking the approach identified in the passages from his reasons set out above. It seems to me that in the circumstances before him the Federal Magistrate had the choice of granting the appellant an adjournment so that he could obtain the tape recording of the Tribunal hearing or, upon a proper exercise of the discretion, refusing an adjournment and proceeding to hear the application for judicial review. He must be taken to have rejected the suggestion of an adjournment, but in my respectful opinion he exercised his discretion to refuse an adjournment on a basis which was incorrect in law and, it follows, by taking into account an irrelevant consideration. The Federal Magistrate was exercising original jurisdiction and it is trite to say that in the usual course all evidence will be called before the Court exercising original jurisdiction. Whether or not an appeal is inevitable is irrelevant. Furthermore, it is not right to say that this Court exercising appellate jurisdiction will "no doubt" take into account further evidence. Whilst this Court has a discretion to receive further evidence under s 27 of the Federal Court of Australia Act 1976 (Cth), that discretion is exercised in accordance with well-established principles. One such principle, which I think is uncontroversial, is that the discretion is not to be exercised so as to have the practical effect of obliterating the distinction between original and appellate jurisdiction: CDJ v VAJ [1998] HCA 67 ; (1998) 197 CLR 172 , 201-202 at [111] per McHugh, Gummow and Callinan JJ. 15 In my opinion, the Federal Magistrate erred in law in the manner in which he exercised his discretion whether to adjourn the hearing of the application for judicial review. 16 Even if, contrary to my view, the Federal Magistrate did not err in deciding to proceed to hear and determine the application for judicial review by reference to the considerations he identified, he erred in law in the manner in which he dealt with the appellant's claim that he did not have a competent interpreter at the Tribunal hearing. The tape recording of the Tribunal hearing was, no doubt, likely to be the best evidence in terms of supporting or negating the appellant's claim and even if the appellant were not given an opportunity to obtain it, the first respondent may have wished to obtain it if some evidence in support of his claim was otherwise put forward by the appellant. However, it seems, from his reasons at least, that the Federal Magistrate was saying that evidence from the appellant as to what transpired at the hearing would not be evidence in support of his claim, or could not be, or could not be accepted in the absence of corroboration. Such views are incorrect. Needless to say, whether evidence from the appellant alone would be sufficient to establish his claim or whether it would even be accepted are other matters. It seems to me that if the application for judicial review proceeded (and was not adjourned) and the appellant wished to press his claim that he did not have a competent interpreter at the Tribunal hearing then he should have been told that he would need to give evidence from the witness box and that he would be subject to cross-examination.