mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Securities and Investments Commission v Narain [2008] FCAFC 120 ; (2008) 169 FCR 211
Outcome: cited
It is trite that such expressions as "relating to", "in relation to" and "in respect of" are very wide and that their meaning will be determined by context: cf Hatfield v Health Insurance Commission (1987) 15 FCR 487 at 491; HP Mercantile Pty Ltd v Commissioner of Taxation [2005] FCAFC 126 ; (2005) 143 FCR 553 at [35] ; Australian Securities and Investments Commission v Narain [2008] FCAFC 120 ; (2008) 169 FCR 211 at [68] , [69]. The relationship which the expressions invoke is not a merely accidental or remote relationship (see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at [87] ) and must be a relevant relationship. The sufficiency of a particular relationship, association or connection is a matter for judgment, and depends on, inter alia, the subject matter, the legislative history and the facts in the particular case.
Case: Brisbane City Council v The Valuer-General for the State of Queensland [1978] HCA 40 ; (1978) 140 CLR 41
Outcome: distinguished
In support of proposition (a) (that a decision made on the basis of an erroneous methodology, principle of valuation or economic analysis is infected by error of law), Telstra refers to the following cases, which I need not discuss at this stage: Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426 ; Brisbane City Council v The Valuer-General for the State of Queensland [1978] HCA 40 ; (1978) 140 CLR 41 ; Maurici v Chief Commissioner of State Revenue [2003] HCA 8 ; (2003) 212 CLR 111 ; Repatriation Commission v Harrison (1997) 78 FCR 442 ; NSW Coal Compensation Board v Nardell Colliery P/L [2004] NSWCA 35.
Case: Caloundra City Council v Netstar Pty Ltd [2008] 1 Qd R 258
Outcome: cited
The 2007 LSS Pricing Principles did not expressly revoke the 2002 LSS Pricing Principles. It is well established, however, that the making of a later statutory instrument that is inconsistent with an earlier one revokes the earlier one to the extent of the inconsistency: see, for example Ward v Repatriation Commission (1997) 46 ALD 454 at 461 and the authorities there referred to, as well as Caloundra City Council v Netstar Pty Ltd [2008] 1 Qd R 258 at [8]-[14].
Case: Esber v Commonwealth [1992] HCA 20 ; (1992) 174 CLR 430
Outcome: cited
ACCC submits that when exercising its power to backdate the Adam LSS FD, s 152DNA(7) allowed it to have regard to matters it considered relevant and those matters included, in the circumstances, the 2007 LSS Pricing Principles. Finally, ACCC submits that it is not the case that s 152AQA(6) gives anyone an accrued right to have an access arbitration determined in accordance with pricing principles that were current at the time of notification of the access dispute or at any other time. ACCC refers to Esber v Commonwealth [1992] HCA 20 ; (1992) 174 CLR 430 at 440. Consideration Ground 2(a) 467 The way in which Telstra's Ground 2(a) was expressed in the amended application for an order of review in the Adam proceeding does not sit comfortably with the way in which Telstra's submissions were put. In the amended application, Ground 2(a) depended on the invalidity in whole or in part of the 2007 LSS Pricing Principles: see [400] [401] above. The invalidity was said to arise from the fact of the continuing and operative 2002 LSS Pricing Principles or from inconsistency between them and the 2007 LSS Pricing Principles. 468 Telstra's submission, however, is that ACCC erred by having regard to both the 2002 and 2007 LSS Pricing Principles.
Case: Goodwin v Phillips [1908] HCA 55 ; (1908) 7 CLR 1
Outcome: cited
ACCC refers to the ordinary principles of statutory construction that a later legislative instrument will repeal an earlier one by implication if the provisions of both cannot stand together, either because the two are inconsistent or because effect cannot be given to both. ACCC cites Mitchell v Scales [1907] HCA 66 ; (1907) 5 CLR 405 at 417 and Goodwin v Phillips [1908] HCA 55 ; (1908) 7 CLR 1. 482 In my view the determination of the 2007 LSS Pricing Principles by necessary implication revoked determination of the 2002 LSS Pricing Principles in toto and not merely to the extent of the inconsistency. This view is supported by the following considerations: the 2007 LSS Pricing Principles evince an intention to deal comprehensively with the principles relating to the price of access to the LSS, i.e. to cover the subject matter that had been the subject matter of the 2002 LSS Pricing Principles, namely, the "principles relating to the price of access to a declared service [the LSS]" (cf s 152AQA(1) of the Act, and see on the implied repeal of legislation Mitchell v Scales [1907] HCA 66 ; (1907) 5 CLR 405 at 417; Goodwin v Phillips (1908) 7 CLR 1 at 7, 10); the 2002 and 2007 LSS Pricing Principles were made in exercise of the same statutory power; the LSS Declaration Review considered the 2002 LSS Pricing Principles and subsequent events, and discussed at length and comprehensively in the light of them the question of "appropriate pricing principles" to be determined; the 2007 LSS Pricing Principles re-stated the first of the 2002 LSS Pricing Principles rather than leaving it to remain stated in the 2002 LSS Pricing Principles.
Case: Hatfield v Health Insurance Commission (1987) 15 FCR 487
Outcome: cited
It is trite that such expressions as "relating to", "in relation to" and "in respect of" are very wide and that their meaning will be determined by context: cf Hatfield v Health Insurance Commission (1987) 15 FCR 487 at 491; HP Mercantile Pty Ltd v Commissioner of Taxation [2005] FCAFC 126 ; (2005) 143 FCR 553 at [35] ; Australian Securities and Investments Commission v Narain [2008] FCAFC 120 ; (2008) 169 FCR 211 at [68] , [69]. The relationship which the expressions invoke is not a merely accidental or remote relationship (see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at [87] ) and must be a relevant relationship. The sufficiency of a particular relationship, association or connection is a matter for judgment, and depends on, inter alia, the subject matter, the legislative history and the facts in the particular case.
Case: HP Mercantile Pty Ltd v Commissioner of Taxation [2005] FCAFC 126 ; (2005) 143 FCR 553
Outcome: cited
It is trite that such expressions as "relating to", "in relation to" and "in respect of" are very wide and that their meaning will be determined by context: cf Hatfield v Health Insurance Commission (1987) 15 FCR 487 at 491; HP Mercantile Pty Ltd v Commissioner of Taxation [2005] FCAFC 126 ; (2005) 143 FCR 553 at [35] ; Australian Securities and Investments Commission v Narain [2008] FCAFC 120 ; (2008) 169 FCR 211 at [68] , [69]. The relationship which the expressions invoke is not a merely accidental or remote relationship (see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at [87] ) and must be a relevant relationship. The sufficiency of a particular relationship, association or connection is a matter for judgment, and depends on, inter alia, the subject matter, the legislative history and the facts in the particular case.
Case: Maurici v Chief Commissioner of State Revenue [2003] HCA 8 ; (2003) 212 CLR 111
Outcome: distinguished
In support of proposition (a) (that a decision made on the basis of an erroneous methodology, principle of valuation or economic analysis is infected by error of law), Telstra refers to the following cases, which I need not discuss at this stage: Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426 ; Brisbane City Council v The Valuer-General for the State of Queensland [1978] HCA 40 ; (1978) 140 CLR 41 ; Maurici v Chief Commissioner of State Revenue [2003] HCA 8 ; (2003) 212 CLR 111 ; Repatriation Commission v Harrison (1997) 78 FCR 442 ; NSW Coal Compensation Board v Nardell Colliery P/L [2004] NSWCA 35.
Case: Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426
Outcome: distinguished
In support of proposition (a) (that a decision made on the basis of an erroneous methodology, principle of valuation or economic analysis is infected by error of law), Telstra refers to the following cases, which I need not discuss at this stage: Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426 ; Brisbane City Council v The Valuer-General for the State of Queensland [1978] HCA 40 ; (1978) 140 CLR 41 ; Maurici v Chief Commissioner of State Revenue [2003] HCA 8 ; (2003) 212 CLR 111 ; Repatriation Commission v Harrison (1997) 78 FCR 442 ; NSW Coal Compensation Board v Nardell Colliery P/L [2004] NSWCA 35. 243 Optus submits that while an error of principle in arriving at a value may amount to an error of law, the cases in which that has been held to be so have concerned statutory valuation exercises, and in any event the approach should be treated with caution: Optus cites Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5 ; (2008) 233 CLR 259 ( Walker Corporation ) at 269-272. Optus submits that in any event Telstra has failed to identify the "principle" which it says ACCC ignored or misapplied. Optus distinguishes the particular substantive principles considered in Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426 and the related authorities cited by Telstra (see [219] above). In Walker Corporation the High Court (at 270) cautioned against importing into one case general "principles" derived from other cases that arose in different statutory contexts. Optus submits that Telstra has not identified in Pt XIC of the Act or in the common law a source of any "principles" that control the arbitral powers conferred on ACCC by Div 8 of that Part.
Case: Minister for Immigration and Citizenship v Le [2007] FCA 1318 ; (2007) 164 FCR 151
Outcome: cited
Telstra contends that s 152DB(1)(b) had the effect, in the circumstances of the present case, of requiring ACCC to inquire into and investigate a particular matter. Telstra submits that this statutory duty may be no less than the duty developed at common law in connection with Wednesbury unreasonableness, and refers to Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170 per Wilcox J; Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273 ; Minister for Immigration and Citizenship v Le [2007] FCA 1318 ; (2007) 164 FCR 151 at [60] - [79] ; Visa International v Reserve Bank of Australia [2003] FCA 977 ; (2003) 131 FCR 300 at [623] - [627] . That common law rule is that a failure by a decision maker to obtain "centrally relevant" information on a critical issue which the decision maker knows or ought reasonably to know is readily available, may be so unreasonable that no reasonable decision maker would have proceeded to make the decision without making an inquiry with a view to obtaining the information, in default of which the decision will be an invalid exercise of power.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 ; [2004] HCA 32
Outcome: cited
Telstra submits that the language of s 152DB(1)(b) imposes an obligation on ACCC to investigate, and is not merely facultative (cf Minister for Immigration and Multicultural Affairs v SGLB (2004) 207 ALR 12 ; [2004] HCA 32 at [43] ). In my view, while s 152DB(1)(b) does not expressly impose an obligation to inquire and investigate, it assumes the existence of a "need to carefully and quickly inquire into and investigate the dispute and all matters affecting the merits, and fair settlement, of the dispute". That need is a matter that ACCC is required to take into account when it attempts to discharge the express obligation to act speedily. 394 I therefore accept that s 152DB(1)(b) implicitly requires ACCC, if it is not otherwise so required , "to carefully and quickly inquire into and investigate the dispute and all matters affecting the merits, and fair settlement, of the dispute". 395 Whatever the precise scope of that obligation, I do not think that ACCC was obliged to make any further inquiry in the present case because I am not persuaded that there was anything in Mr Hicks's statement that was "centrally relevant" information on a critical issue that ACCC was required to address. "Proper consideration" of the dispute and careful inquiry into and investigation of the dispute, even without reference to the calls for speed and quickness, did not demand further inquiry and investigation. 396 Even if I did consider that Mr Hicks's statement contained something of the kind described, I doubt that any duty of ACCC to inquire into and investigate it would have been imposed by s 152DB(1)(b), as distinct from by the general law. This is because of the inescapable conflict between "carefully" and "quickly". The general law may have imposed an obligation to inquire and investigate "carefully" but it would not, in the absence of special circumstances in a particular case, impose an obligation to investigate and inquire "quickly". 397 I respectfully suggest that exhortatory provisions of the present kind would be better placed and identified by the drafter as a statement of objectives rather than as substantive legislative provisions. Conclusion in respect of the Failure to Inquire Ground
Case: Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273
Outcome: cited
Telstra contends that s 152DB(1)(b) had the effect, in the circumstances of the present case, of requiring ACCC to inquire into and investigate a particular matter. Telstra submits that this statutory duty may be no less than the duty developed at common law in connection with Wednesbury unreasonableness, and refers to Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170 per Wilcox J; Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273 ; Minister for Immigration and Citizenship v Le [2007] FCA 1318 ; (2007) 164 FCR 151 at [60] - [79] ; Visa International v Reserve Bank of Australia [2003] FCA 977 ; (2003) 131 FCR 300 at [623] - [627] . That common law rule is that a failure by a decision maker to obtain "centrally relevant" information on a critical issue which the decision maker knows or ought reasonably to know is readily available, may be so unreasonable that no reasonable decision maker would have proceeded to make the decision without making an inquiry with a view to obtaining the information, in default of which the decision will be an invalid exercise of power.
Case: Mitchell v Scales [1907] HCA 66 ; (1907) 5 CLR 405
Outcome: cited
ACCC refers to the ordinary principles of statutory construction that a later legislative instrument will repeal an earlier one by implication if the provisions of both cannot stand together, either because the two are inconsistent or because effect cannot be given to both. ACCC cites Mitchell v Scales [1907] HCA 66 ; (1907) 5 CLR 405 at 417 and Goodwin v Phillips [1908] HCA 55 ; (1908) 7 CLR 1. 482 In my view the determination of the 2007 LSS Pricing Principles by necessary implication revoked determination of the 2002 LSS Pricing Principles in toto and not merely to the extent of the inconsistency. This view is supported by the following considerations: the 2007 LSS Pricing Principles evince an intention to deal comprehensively with the principles relating to the price of access to the LSS, i.e. to cover the subject matter that had been the subject matter of the 2002 LSS Pricing Principles, namely, the "principles relating to the price of access to a declared service [the LSS]" (cf s 152AQA(1) of the Act, and see on the implied repeal of legislation Mitchell v Scales [1907] HCA 66 ; (1907) 5 CLR 405 at 417; Goodwin v Phillips (1908) 7 CLR 1 at 7, 10); the 2002 and 2007 LSS Pricing Principles were made in exercise of the same statutory power; the LSS Declaration Review considered the 2002 LSS Pricing Principles and subsequent events, and discussed at length and comprehensively in the light of them the question of "appropriate pricing principles" to be determined; the 2007 LSS Pricing Principles re-stated the first of the 2002 LSS Pricing Principles rather than leaving it to remain stated in the 2002 LSS Pricing Principles.
Case: New South Wales Coal Compensation Board v Nardell Colliery Pty Ltd [2004] NSWCA 35
Outcome: distinguished
In support of proposition (a) (that a decision made on the basis of an erroneous methodology, principle of valuation or economic analysis is infected by error of law), Telstra refers to the following cases, which I need not discuss at this stage: Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426 ; Brisbane City Council v The Valuer-General for the State of Queensland [1978] HCA 40 ; (1978) 140 CLR 41 ; Maurici v Chief Commissioner of State Revenue [2003] HCA 8 ; (2003) 212 CLR 111 ; Repatriation Commission v Harrison (1997) 78 FCR 442 ; NSW Coal Compensation Board v Nardell Colliery P/L [2004] NSWCA 35.
Case: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Outcome: cited
Telstra contends that s 152DB(1)(b) had the effect, in the circumstances of the present case, of requiring ACCC to inquire into and investigate a particular matter. Telstra submits that this statutory duty may be no less than the duty developed at common law in connection with Wednesbury unreasonableness, and refers to Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170 per Wilcox J; Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273 ; Minister for Immigration and Citizenship v Le [2007] FCA 1318 ; (2007) 164 FCR 151 at [60] - [79] ; Visa International v Reserve Bank of Australia [2003] FCA 977 ; (2003) 131 FCR 300 at [623] - [627] . That common law rule is that a failure by a decision maker to obtain "centrally relevant" information on a critical issue which the decision maker knows or ought reasonably to know is readily available, may be so unreasonable that no reasonable decision maker would have proceeded to make the decision without making an inquiry with a view to obtaining the information, in default of which the decision will be an invalid exercise of power.
Case: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355
Outcome: cited
It is trite that such expressions as "relating to", "in relation to" and "in respect of" are very wide and that their meaning will be determined by context: cf Hatfield v Health Insurance Commission (1987) 15 FCR 487 at 491; HP Mercantile Pty Ltd v Commissioner of Taxation [2005] FCAFC 126 ; (2005) 143 FCR 553 at [35] ; Australian Securities and Investments Commission v Narain [2008] FCAFC 120 ; (2008) 169 FCR 211 at [68] , [69]. The relationship which the expressions invoke is not a merely accidental or remote relationship (see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at [87] ) and must be a relevant relationship. The sufficiency of a particular relationship, association or connection is a matter for judgment, and depends on, inter alia, the subject matter, the legislative history and the facts in the particular case.
Case: Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59 ; [2003] HCA 30
Outcome: followed
The non-Optus access seekers distinguish the valuation of land cases relied on by Telstra as turning on the terms of particular statutes. They note that Telstra purports to concede (as it must) that illogicality or unreasonableness do not necessarily constitute reviewable error unless there is a legal principle or statutory provision that attracts that consequence: they cite Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20 / 2002 (2003) 198 ALR 59 ; [2003] HCA 30 ( S20 ) at 61 per Gleeson CJ. Whether relying on Wednesbury unreasonableness or "illogicality, unreasonableness and perversity", as in S20 , one must identify a particular statutory provision or other legal principle that has been infringed. The non-Optus access seekers submit that Wednesbury unreasonableness is directed at outcomes, whereas S20 illogicality is directed at processes of reasoning: see S20 [2003] HCA 30 ; 198 ALR 59 at 76 per McHugh, Gummow JJ, 88 per Kirby J. 258 Observations made in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 ( Eshetu ) and S20 are, in my view, relevant to both grounds. 260 In S20 , after referring to Eshetu , Gleeson CJ stated (at [5]) that if it is suggested that there is a legal consequence of illogical, unreasonable or irrational reasoning: [I]t may be necessary to be more precise as to the nature and quality of the error attributed to the decision-maker, and to identify the legal principle or statutory provision that attracts the suggested consequence.
Case: Repatriation Commission v Harrison (1997) 78 FCR 442
Outcome: distinguished
In support of proposition (a) (that a decision made on the basis of an erroneous methodology, principle of valuation or economic analysis is infected by error of law), Telstra refers to the following cases, which I need not discuss at this stage: Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426 ; Brisbane City Council v The Valuer-General for the State of Queensland [1978] HCA 40 ; (1978) 140 CLR 41 ; Maurici v Chief Commissioner of State Revenue [2003] HCA 8 ; (2003) 212 CLR 111 ; Repatriation Commission v Harrison (1997) 78 FCR 442 ; NSW Coal Compensation Board v Nardell Colliery P/L [2004] NSWCA 35.
Case: Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2) (2008) 251 ALR 372 ; [2008] FCA 1640
Outcome: referred to
I have previously heard and determined three proceedings in which Telstra challenged FDs made by ACCC in relation to access disputes under Div 8: see Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1436 ; (2008) 171 FCR 174 (Earlier Reasons) and Telstra Corporation Ltd v Australian Competition and Consumer Commission and Others (No 2) (2008) 251 ALR 372; [2008] FCA 1640. 121 I considered the issue of severance of a backdating provision of an FD in Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2) (2008) 251 ALR 372 ; [2008] FCA 1640 at [4] ff, and concluded (at [48]) that the provisions of the FDs relating to the backdated monthly access charges in those proceedings could be severed, with the result that those FDs remained effective in so far as they resolved all other aspects of the access disputes. The issue of the backdated monthly access charges was remitted to ACCC. 122 If I am wrong in concluding that ACCC did not fail to take into account the ULLS Model Terms, I would conclude that the charges in relation to the year represented in the column headed 2005-06 in Schedule 1 to the Optus ULLS FD (see [91] above) are severable, and adopt what I said in Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2) above, mutatis mutandis , in relation to the severance issue. Conclusion 123 For the above reasons the ULLS Model Terms ground is not made out. C CALL DIVERSION Introduction and Annexure 124 This ground is relied on in three ULLS proceedings. It is Ground 4 in each of the Optus and Chime ULLS proceedings and Ground 1 in the Primus ULLS (Connections) proceeding. It is the only ground relied on in that proceeding.