mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Comcare v Lees (1997) 151 ALR 647
Outcome: discussed
issues which arise from s 43(2) are more subtle. There is no doubt it requires the Tribunal to provide reasons which are adequate. There is also little question but that the question of adequacy, in the present circumstances, directs attention at least to the efficacy of the appeal process contemplated by s 44. The reasons must be at least sufficient in quality to permit that appeal process to be efficacious. However, the appeal process under s 44 is subject to the constraint that there be present a "question of law". Debate exists as to whether a failure to provide reasons is an error of law. There is an obiter dictum of Brennan J in Repatriation Commission v O'Brien [1985] HCA 10 ; (1985) 155 CLR 422 at 445-446 which suggests that a failure by the Tribunal to provide adequate reasons does not result in the invalidity of its decision and that the proper remedy is a mandatory order that reasons be provided. That view has not prevailed in this Court where it has instead been held that a failure to provide adequate reasons is an error of law: Dornan v Riordan (1990) 24 FCR 564 at 573 per Sweeney, Davies and Burchett JJ. The contrary view is set forth in Comcare v Lees (1997) 151 ALR 647 at 658-659 by Finkelstein J. The existence of the debate about the correctness of Dornan has been noted on a number of occasions by Full Courts of this Court, but none have thought it necessary to resolve it. To the extent that Lees assumes that there is no question of law where there is no error of law I respectfully differ. Every error of law corresponds with a question of law but the converse is not true. Questions of law concerning the processes of the Tribunal rather than its actual decision are likely to give rise to questions of law which do not correspond with any error of law in the decision of the Tribunal. The provision of inadequate reasons is one illustration; a departure from a statutorily mandated procedure during the course of a hearing may be another. There is a textual argument available against this view. Section 44 uses the expression "question of law" when conferring jurisdiction on this Court to hear an appeal. The same expression is used in s 45 which permits, in certain circumscribed circumstances, the referral by the Tribunal to this Court of a "question of law". It may be that the expressions should bear the same meaning; if so, there may be difficulties in contemplating the Tribunal referring the adequacy of its own reasons to the Court. However, the answer to that is either that "question of law" in s 45 does not so extend or, alternatively, that it does and that the Tribunal could refer the adequacy of its own reasons to this Court.
Case: Commissioner for Railways for the State of Queensland v Peters (1991) 24 NSWLR 407
Outcome: cited
second matter to which I should refer is the Tribunal's reference at [127] to having "had regard to the authorities relied on by both parties, including Re Snook and Civil Aviation Safety Authority [2003] AATA 285 , Re Brazier and Civil Aviation Safety Authority [2004] AATA 31 and Re Richards Aviation Services v Civil Aviation Safety Authority (AAT, 26 November 1996)." It has been held, in the context of the adequacy of judicial reasons, that setting out two sets of competing submissions and indicating a preference for one over the other is not a sufficient discharge of the judicial obligation to give reasons: Commissioner for Railways for the State of Queensland v Peters (1991) 24 NSWLR 407 at 415-417 per Kirby P; Fyntray Constructions Pty Ltd v Macind Drainage &amp; Hydraulic Services Pty Ltd [2002] NSWCA 238 at [66] per Heydon JA, [68] per Hodgson JA, [78] per Ipp AJA.
Case: Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163
Outcome: cited
course, if Dornan is correct then, additionally, the Tribunal made an error of law. However, the significance of that for present purposes hinges upon whether that conclusion would lead to a different result. Clearly, such an approach would require the Tribunal to produce its reasons again. The difference would be that, if the error of law were jurisdictional the orders of the Tribunal might be set aside, it might have to re-exercise its powers afresh and it might have to do more than just produce reasons. I think it is unlikely that the error of law constituted by inadequate reasons could be jurisdictional. It is true, no doubt, that generally, an error of law will, in the hands of a non-judicial tribunal, be jurisdictional: Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ. However, it is to be noted that the errors of law there identified as having that effect were said to be those causing an inferior tribunal to identify the wrong issue. It may be doubted whether an error of law constituted by inadequate reasons could ever have that effect for reasons explained in Yusuf .
Case: Ergon Energy Corp Ltd v Commissioner of Taxation [2006] FCAFC 125 ; (2006) 153 FCR 551
Outcome: cited
number of decisions of this Court have established the ambit and purpose of the expression "question of law". For present purposes three are pertinent. First, O 53 r 3(2) of the Federal Court Rules discloses an intention that a question of law raised on appeal from the Tribunal should be stated with precision as a pure question of law: see Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at 325 [18] per Branson and Stone JJ. Secondly, a question which is inelegantly drafted may nonetheless be a question of law if its purport is tolerably clear having regard to the context in which it appears: see Ergon Energy Corp Ltd v Commissioner of Taxation [2006] FCAFC 125 ; (2006) 153 FCR 551 at 565 [51] per Sundberg and Kenny JJ. Thirdly, if a question properly analysed is not a question of law within the meaning of s 44 , no amount of formulary such as "erred in law" or "was open as a matter of law" can make it into a question of law: Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 527 per Ryan J.
Case: Fyntray Constructions Pty Ltd v Macind Drainage &amp; Hydraulic Services Pty Ltd [2002] NSWCA 238
Outcome: cited
second matter to which I should refer is the Tribunal's reference at [127] to having "had regard to the authorities relied on by both parties, including Re Snook and Civil Aviation Safety Authority [2003] AATA 285 , Re Brazier and Civil Aviation Safety Authority [2004] AATA 31 and Re Richards Aviation Services v Civil Aviation Safety Authority (AAT, 26 November 1996)." It has been held, in the context of the adequacy of judicial reasons, that setting out two sets of competing submissions and indicating a preference for one over the other is not a sufficient discharge of the judicial obligation to give reasons: Commissioner for Railways for the State of Queensland v Peters (1991) 24 NSWLR 407 at 415-417 per Kirby P; Fyntray Constructions Pty Ltd v Macind Drainage &amp; Hydraulic Services Pty Ltd [2002] NSWCA 238 at [66] per Heydon JA, [68] per Hodgson JA, [78] per Ipp AJA.
Case: Gilkinson v Repatriation Commission (2008) 104 ALD 406
Outcome: referred to
Authority's arguments as to the inadequacy of the Tribunal's reasons were based on these provisions. So far as the argument was based on s 43(2B) it must be rejected. The Full Court of this Court has held that that provision requires the Tribunal to do no more that to state the findings which it has actually made. It does not require the Tribunal to make the findings which it ought to have made: Appellant V324 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 259 at [8] per Hill and Allsop JJ; see also Repatriation Commission v Cotton (2006) 93 ALD 118 at 128 [42] per Rares J; Gilkinson v Repatriation Commission (2008) 104 ALD 406 at 410 [14] per Rares J. That conclusion is inevitable in light of the High Court's decision in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 331-332 [10] per Gleeson CJ, 349 [77] per McHugh, Gummow and Hayne JJ where it was held that s 430 of the Migration Act 1958 (Cth) which is not materially different to s 43(2B) operated in that manner.
Case: Hughes and Vale Proprietary Limited v State of New South Wales (No 2) [1955] HCA 28 ; (1955) 93 CLR 127
Outcome: referred to
first is the Tribunal's conclusion that Mr Fawcett was an honest man who would suffer financial hardship if Central's certificate of approval were cancelled. One cannot tell from the Tribunal's reasons where, or even if, these findings were taken into account. It is difficult to see that they had anything to do with the Tribunal's conclusions that Mr Fawcett and Central had failed, within the meaning of reg 269(1)(c), in the duty imposed on them with respect to a matter affecting the safe operation of the Cirrus aircraft. Whatever else might be said about the failure by Mr Fawcett to notice that the steel cap was missing from the engine port, it is difficult to incorporate notions of honesty or financial hardship into that particular field of discourse. On the other hand, it is difficult to see how financial hardship to Mr Fawcett had any relevance to the issue of whether he, or Central, were fit and proper persons: cf. Hughes and Vale Proprietary Limited v State of New South Wales (No 2) [1955] HCA 28 ; (1955) 93 CLR 127 at 156-157 per Dixon CJ, McTiernan and Webb JJ. It is possible that his honesty could be seen as going to fitness and propriety but it is difficult to understand, without more, how honesty might be an answer to a lack of fitness said to be constituted by incompetence. Of course, it may be that those factors were taken into account in deciding how to exercise the discretionary power to vary, suspend or cancel which arose consequent upon the Tribunal's conclusions about reg 269(1)(c). There is nothing to indicate, however, that this is what occurred. Indeed, there is no explanation of how the Tribunal came to the conclusion that it was appropriate to vary the conditions other than that those variations were "appropriate to satisfy the paramount consideration of aviation safety" (at [128]).
Case: Minister for Immigration and Ethnic Affairs v Taveli [1990] FCA 169 ; (1990) 23 FCR 162
Outcome: cited
speaking, a statement by a decision-maker as to its reasons for decision would ordinarily be hearsay and inadmissible. However, it is generally accepted that so long as the reasons are reasonably contemporaneous with an administrative decision they are admissible as part of the res gestae: Minister for Immigration and Ethnic Affairs v Taveli [1990] FCA 169 ; (1990) 23 FCR 162 at 168 per Davies J, 187 per Hill J. Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1069 at [62] - [63] per Hely J; Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1263 ; (2003) 133 FCR 190 at 205-206 [50] - [52] per French J. The last two mentioned decisions use the language of the res gestae rule, however, it may be that they should be understood as being illustrations of s 72 of the Evidence Act 1995 (Cth) which appears to be its statutory embodiment.
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
were two other matters raised by the Tribunal which potentially bear upon this issue. I mention these matters because it is necessary to discern, if it is possible, how the Tribunal connected its findings about Mr Fawcett's failings to its conclusions about fitness and propriety. This is particularly so where the High Court has emphasised the need to avoid over-zealous parsing of the reasons of administrative decision-makers: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Case: Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1263 ; (2003) 133 FCR 190
Outcome: cited
speaking, a statement by a decision-maker as to its reasons for decision would ordinarily be hearsay and inadmissible. However, it is generally accepted that so long as the reasons are reasonably contemporaneous with an administrative decision they are admissible as part of the res gestae: Minister for Immigration and Ethnic Affairs v Taveli [1990] FCA 169 ; (1990) 23 FCR 162 at 168 per Davies J, 187 per Hill J. Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1069 at [62] - [63] per Hely J; Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1263 ; (2003) 133 FCR 190 at 205-206 [50] - [52] per French J. The last two mentioned decisions use the language of the res gestae rule, however, it may be that they should be understood as being illustrations of s 72 of the Evidence Act 1995 (Cth) which appears to be its statutory embodiment.
Case: R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389
Outcome: cited
even if Dornan required the conclusion that the decision of the Tribunal were afflicted by jurisdictional error, in the exercise of my discretion I would not set aside the Tribuna's decision. The existence of that discretion is confirmed by s 44(4) which provides that this Court "may" make such order as it thinks appropriate. In the context of a jurisdictional error, it is appropriate that that discretion be exercised in a way which is analogous to the refusal of prerogative relief on discretionary grounds. In that regard, the existence of an adequate alternative remedy is a proper basis for refusing relief: R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389 at 400 per Latham CJ, Rich, Dixon, McTiernan and Webb JJ. Here adequate alternative relief is available if the decision is left in place because s 43AA(3)(b) allows the Tribunal to correct its decision to ensure consistency with its reasons. That, of course, will still require an order that the Tribunal produce reasons which are adequate. It is not entirely clear to me how Dornan can explain that necessity but it is not necessary to determine that issue any other result would be surreal.
Case: Repatriation Commission v Cotton (2006) 93 ALD 118
Outcome: considered
Authority's arguments as to the inadequacy of the Tribunal's reasons were based on these provisions. So far as the argument was based on s 43(2B) it must be rejected. The Full Court of this Court has held that that provision requires the Tribunal to do no more that to state the findings which it has actually made. It does not require the Tribunal to make the findings which it ought to have made: Appellant V324 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 259 at [8] per Hill and Allsop JJ; see also Repatriation Commission v Cotton (2006) 93 ALD 118 at 128 [42] per Rares J; Gilkinson v Repatriation Commission (2008) 104 ALD 406 at 410 [14] per Rares J. That conclusion is inevitable in light of the High Court's decision in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 331-332 [10] per Gleeson CJ, 349 [77] per McHugh, Gummow and Hayne JJ where it was held that s 430 of the Migration Act 1958 (Cth) which is not materially different to s 43(2B) operated in that manner.
Case: Repatriation Commission v O'Brien [1985] HCA 10 ; (1985) 155 CLR 422
Outcome: considered
issues which arise from s 43(2) are more subtle. There is no doubt it requires the Tribunal to provide reasons which are adequate. There is also little question but that the question of adequacy, in the present circumstances, directs attention at least to the efficacy of the appeal process contemplated by s 44. The reasons must be at least sufficient in quality to permit that appeal process to be efficacious. However, the appeal process under s 44 is subject to the constraint that there be present a "question of law". Debate exists as to whether a failure to provide reasons is an error of law. There is an obiter dictum of Brennan J in Repatriation Commission v O'Brien [1985] HCA 10 ; (1985) 155 CLR 422 at 445-446 which suggests that a failure by the Tribunal to provide adequate reasons does not result in the invalidity of its decision and that the proper remedy is a mandatory order that reasons be provided. That view has not prevailed in this Court where it has instead been held that a failure to provide adequate reasons is an error of law: Dornan v Riordan (1990) 24 FCR 564 at 573 per Sweeney, Davies and Burchett JJ. The contrary view is set forth in Comcare v Lees (1997) 151 ALR 647 at 658-659 by Finkelstein J. The existence of the debate about the correctness of Dornan has been noted on a number of occasions by Full Courts of this Court, but none have thought it necessary to resolve it.
Case: Stead v State Government Insurance Commission [1986] HCA 54 ; (1996) 161 CLR 141
Outcome: applied
Authority argued that it did not have an opportunity to dissuade the Tribunal from imposing a condition about the "acceptability" to it of the LAME and the person carrying out the auditing role. The Authority's submissions in this Court proceeded on the basis that it was denied the opportunity to put to the Tribunal "the correct construction of [reg 30]". This I take to be a denial of the opportunity to put the submission I have just rejected. Even if one assumes that the Authority was prevented from arguing against the word "acceptable" and that it was denied procedural fairness as a result, that denial was not material: cf Stead v State Government Insurance Commission [1986] HCA 54 ; (1996) 161 CLR 141 at 145 per Mason, Wilson, Brennan, Deane and Dawson JJ. Question (d) was as follows: (d) whether the Tribunal provided the applicant with an opportunity (or adequate opportunity) to address the Tribunal on the conditions that it intended to impose on the respondent's CoA and whether those conditions would conform to the requirements of the CA Act and CAR 30; I would answer the question: "No. The Tribunal did not afford the applicant an opportunity to submit that its proposed conditions did not comply with reg 30. However, this was not material." Disposition
Case: Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1069
Outcome: cited
speaking, a statement by a decision-maker as to its reasons for decision would ordinarily be hearsay and inadmissible. However, it is generally accepted that so long as the reasons are reasonably contemporaneous with an administrative decision they are admissible as part of the res gestae: Minister for Immigration and Ethnic Affairs v Taveli [1990] FCA 169 ; (1990) 23 FCR 162 at 168 per Davies J, 187 per Hill J. Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1069 at [62] - [63] per Hely J; Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1263 ; (2003) 133 FCR 190 at 205-206 [50] - [52] per French J. The last two mentioned decisions use the language of the res gestae rule, however, it may be that they should be understood as being illustrations of s 72 of the Evidence Act 1995 (Cth) which appears to be its statutory embodiment.
Case: Barton v Deputy Federal Commissioner of Taxation [1974] HCA 43 ; (1974) 131 CLR 370
Outcome: cited
Paragraph 23.1 pleads that in the circumstances of the particulars identified at 22.2.1 to 22.2.13 (and Particular 3) a reasonable inference arises that within the field of existing and future creditors, a claim by the liquidators of Freedom Homes (appointed on 29 July 1996 by the creditors in the light of a report from the administrators of Freedom Homes that a claim could be made against Waters for an amount up to $2,647,255.00) is a claim by a creditor, a contingent or an anticipated creditor of Waters for that substantial sum. Similarly, the particulars of para 22 provide the content of the contention that the BSA was either a creditor or a contingent or anticipated creditor. It is true that the particulars of 30 March 2007 of para 22 use the term 'future creditors' to define, in part, the field of creditors Waters is said to have sought to defraud as 'then present creditors and all future creditors' and para 23.1 uses the term 'contingent creditors or anticipated creditors'. It seems to me the distinction is not a real one in the context of the pleading. As I said at [29] of Duus v Dalvella , there must be a relation between the steps taken as part of the contended scheme and an intention to defraud identified creditors. Those creditors however might be existing creditors with provable debts or future creditors or any present or future creditors ( Barton v Deputy Federal Commissioner of Taxation [1974] HCA 43 ; (1974) 131 CLR 370 at 374; PT Garuda Indonesia Ltd v Grellman (1992) 35 FCR 515 at 525-526; DM Cannane &amp; Anor v J Cannane Pty Ltd [1998] HCA 26 ; (1998) 192 CLR 557 at 566 and 593; Ebner v Official Trustee in Bankruptcy [1999] FCA 110 ; (1999) 91 FCR 353 at 370-371). Future creditors include anticipated creditors (such as the liquidators of Freedom Homes or the BSA) or contingent creditors.
Case: PT Garuda Indonesia Ltd v Grellman (1992) 35 FCR 515
Outcome: cited
Paragraph 23.1 pleads that in the circumstances of the particulars identified at 22.2.1 to 22.2.13 (and Particular 3) a reasonable inference arises that within the field of existing and future creditors, a claim by the liquidators of Freedom Homes (appointed on 29 July 1996 by the creditors in the light of a report from the administrators of Freedom Homes that a claim could be made against Waters for an amount up to $2,647,255.00) is a claim by a creditor, a contingent or an anticipated creditor of Waters for that substantial sum. Similarly, the particulars of para 22 provide the content of the contention that the BSA was either a creditor or a contingent or anticipated creditor. It is true that the particulars of 30 March 2007 of para 22 use the term 'future creditors' to define, in part, the field of creditors Waters is said to have sought to defraud as 'then present creditors and all future creditors' and para 23.1 uses the term 'contingent creditors or anticipated creditors'. It seems to me the distinction is not a real one in the context of the pleading. As I said at [29] of Duus v Dalvella , there must be a relation between the steps taken as part of the contended scheme and an intention to defraud identified creditors. Those creditors however might be existing creditors with provable debts or future creditors or any present or future creditors ( Barton v Deputy Federal Commissioner of Taxation [1974] HCA 43 ; (1974) 131 CLR 370 at 374; PT Garuda Indonesia Ltd v Grellman (1992) 35 FCR 515 at 525-526; DM Cannane &amp; Anor v J Cannane Pty Ltd [1998] HCA 26 ; (1998) 192 CLR 557 at 566 and 593; Ebner v Official Trustee in Bankruptcy [1999] FCA 110 ; (1999) 91 FCR 353 at 370-371). Future creditors include anticipated creditors (such as the liquidators of Freedom Homes or the BSA) or contingent creditors.