mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Dennis Willcox Pty Ltd v Commissioner of Taxation (1998) 79 ALR 267
Outcome: cited
On this basis, the response of the respondent to the letters of Ms Nicholson-Brown's solicitors was appropriate and adequate. The respondent replied to the complaints of Ms Nicholson-Brown by reference to the policy decision, and did not bring into consideration the specific conduct of Ms Nicholson-Brown as this was not a matter for consideration. It cannot be said, in these circumstances, that the response was inadequate, because on my analysis the matters raised that were not adequately responded to from Ms Nicholson-Brown's point of view, could not have affected the outcome of the decision; see generally Dennis Willcox Pty Ltd v Commissioner of Taxation (1988) 79 ALR 267 at 276-277. There was no material which was relevantly taken into account which was not made available to each applicant, as was the case in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88. In view of the opportunity provided to and availed by each applicant to respond to the respondent after the suspension decision, the decision-making process, including the respondent's response to Ms Nicholson-Brown's solicitors letter, viewed in its entirety and in the circumstances of the implementation of a policy decision, did accord natural justice and procedural fairness.
Case: Edenmead Pty Ltd v Commonwealth (1984) 4 FCR 348
Outcome: cited
My own view is that s 21R confers a power to appoint, not a power to make, grant or issue any instrument. Section 21R does not talk in terms of the relevant act (the appointment) being made "by" or "pursuant to" any form of writing, but confers a power to make a decision to appoint, which incidentally to that decision, is to be in writing: see discussion in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 at 172; affirmed by the Full Court in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307; Barton v Croner Trading Pty Ltd (1984) 3 FCR 95 at 110; and Edenmead Pty Ltd v Commonwealth (1984) 4 FCR 348 at 352-353.
Case: Hot Holdings Pty Ltd v Creasy [2002] HCA 51 ; (2002) 210 CLR 438
Outcome: cited
Matters of policy and implementation of policy (including change in qualifications for appointment), and the views of the Victorian community or the respondent's perception about those views, are ones which the respondent, upon which a discretionary power has been conferred, may take into account. In Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at 565 per Hayne J (with whom Gleeson CJ and Gummow J agreed at 538-539) discussed the nature of the types of matters a minister with a discretionary power might take into account: Conferring power on a Minister may well indicate that a particularly wide range of factors and sources of information may be taken into account, given the types of influence to which Ministers are legitimately subject. See also Murphyores Incorporated Pty Ltd v Commonwealth [1976] HCA 20 ; (1976) 136 CLR 1 at 13-14; Hot Holdings Pty Limited v Creasy [2002] HCA 51 ; (2002) 210 CLR 438; South Australia v O'Shea [1987] HCA 39 ; (1987) 163 CLR 378.
Case: Jarratt v Commissioner of Police (NSW) [2005] HCA 50 ; (2005) 224 CLR 44
Outcome: cited
I am prepared to assume for the purposes of this case that natural justice or procedural fairness needed to be accorded to each applicant. The real question to determine is the practical content of natural justice or procedural fairness in this case: see, e.g. Jarratt v Commissioner of Police (NSW) [2005] HCA 50 ; (2005) 224 CLR 44 at 51 per Gleeson CJ.
Case: Laurence v Chief of Navy [2004] FCA 1535 ; (2004) 139 FCR 555
Outcome: applied
The second matter is whether the Act confers a power to make, grant or issue such an instrument or merely confers a power on the Minister to make a decision which is to be evidenced in writing: see Laurence v Chief of Navy [2004] FCA 1535 ; (2004) 139 FCR 555. In that case, at 558, Wilcox J drew the following distinction in relation to the power in question: I see a conceptual distinction between a power to issue an instrument, which itself has an operative legal effect, and a power to make a statutory decision which is immediately operative but, in the interests of good administration, is thereafter recorded in writing. 28 However, even if I am wrong about this matter and the focus of s 21R is upon the document being the operative act of appointment, in my view, s 33(3) does not operate to constrain the type of power referred to in s 33(4) of the Acts Interpretation Act . In Laurence 139 FCR at 558, Wilcox J briefly discussed the distinction between the type of power referred to in s 33(3) and the type of power referred to in s 33(1) of the Acts Interpretation Act . He concluded that the two subsections referred to different types of power, and therefore operated exclusively of each other. This distinction is similarly applicable as between s 33(3) and 33 (4), the former relating to the general making, granting or issuing of an instrument, the latter relating to the making of an appointment. 29 Section 33(3) is an enabling provision, which may or may not need to be relied upon in any given circumstance. However, the other enabling provision is s 33(4). I cannot see any reason to conclude that s 33(3) operates to constrain the effect of s 33(4) in interpreting s 21R. In my view, therefore, s 33(4) authorised the respondent to suspend or remove each applicant in the circumstances of this case.
Case: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507
Outcome: cited
Matters of policy and implementation of policy (including change in qualifications for appointment), and the views of the Victorian community or the respondent's perception about those views, are ones which the respondent, upon which a discretionary power has been conferred, may take into account. In Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at 565 per Hayne J (with whom Gleeson CJ and Gummow J agreed at 538-539) discussed the nature of the types of matters a minister with a discretionary power might take into account: Conferring power on a Minister may well indicate that a particularly wide range of factors and sources of information may be taken into account, given the types of influence to which Ministers are legitimately subject. See also Murphyores Incorporated Pty Ltd v Commonwealth [1976] HCA 20 ; (1976) 136 CLR 1 at 13-14; Hot Holdings Pty Limited v Creasy [2002] HCA 51 ; (2002) 210 CLR 438; South Australia v O'Shea [1987] HCA 39 ; (1987) 163 CLR 378.
Case: Murphyores Incorporated Pty Ltd v Commonwealth [1976] HCA 20 ; (1976) 136 CLR 1
Outcome: cited
Matters of policy and implementation of policy (including change in qualifications for appointment), and the views of the Victorian community or the respondent's perception about those views, are ones which the respondent, upon which a discretionary power has been conferred, may take into account. In Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at 565 per Hayne J (with whom Gleeson CJ and Gummow J agreed at 538-539) discussed the nature of the types of matters a minister with a discretionary power might take into account: Conferring power on a Minister may well indicate that a particularly wide range of factors and sources of information may be taken into account, given the types of influence to which Ministers are legitimately subject. See also Murphyores Incorporated Pty Ltd v Commonwealth [1976] HCA 20 ; (1976) 136 CLR 1 at 13-14; Hot Holdings Pty Limited v Creasy [2002] HCA 51 ; (2002) 210 CLR 438; South Australia v O'Shea [1987] HCA 39 ; (1987) 163 CLR 378.
Case: Nguyen v Minister for Health and Ageing [2002] FCA 1241
Outcome: considered
The applicants relied upon the decisions in Nguyen v Minister for Health and Ageing [2002] FCA 1241 and Registrar for Liquor Licences v Iliadis (1988) 19 FCR 311 in support of the proposition that an implied power to revoke or suspend an appointment should not be construed as capable of being exercised with less constraints than the express power to appoint. These cases do not assist in the interpretation of the power to suspend or remove as conferred by s 21R as affected by s 33(4) of the Acts Interpretation Act , and do not stand for the broad proposition contended for by the applicants.
Case: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355
Outcome: cited
I should indicate that even if I came to the conclusion that there was a failure to adhere to a requirement of consultation with a local Aboriginal community prior to suspension or removal, I would not consider that such failure would vitiate the decision to remove or suspend. I readily accept that the Act has given express and considerable prominence to the role of the local Aboriginal communities, and that the Act envisages that consultation with such communities be undertaken in defined circumstances. However, I must look at the power here being exercised, which is not one of appointment, but of suspension and removal. Such powers may need to be exercised in a variety of circumstances, without there necessarily being any relevance in seeking the views of local Aboriginal communities, such as for instance if a particular inspector was considered no longer to be a fit and proper person. I do not accept that the input of the local Aboriginal community is of the same significance in circumstances of suspension or removal, or that consultation would be regarded as an essential or mandatory requirement to effect a suspension or removal. If necessary to decide, I would take the view that if there was a requirement of consultation with a local Aboriginal community prior to suspension or removal, breach of that requirement would not lead to the invalidity of such a suspension or removal: see generally Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 388-391; and Bond v WorkCover Corporation (SA) (2005) 93 SASR 315 at 331-336.
Case: R v Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27 ; (1965) 113 CLR 177
Outcome: cited
There are many instances where important and significant decisions need to be made, and full-time public servants or servants of the Crown are regarded as capable of exercising independent judgements in making such decisions. Without statutory permission, it is not to be assumed that a public servant or servant of the Crown in whom a statutory power has been reposed will follow orders given by a superior. In fact, if a public servant or servant of the Crown did not exercise for himself or herself a discretion given to him or her to exercise, then the decision made would be invalid: see, for e.g. R v Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27 ; (1965) 113 CLR 177 at 201-202. There is nothing in the nature of the powers to be exercised, the context of their exercise, or the character of the office of inspector which leads to the conclusion that the new criteria could not be applied to the appointment of an inspector. In this case I do not see that the appointment of a public servant, who otherwise satisfies the criteria in s 21R, is an appointment that would be contrary to the scheme of the Act as a whole, or Pt IIA dealing with Victorian Aboriginal cultural heritage. 41 I observe that, to the extent it is relevant, at least nine of the inspectors must have been public servants who satisfied the new criteria before the suspension decision, having been appointed under the Act and having been presumably regarded as being able to fulfil the function of inspector. I make this observation in view of the fact that the suspension of nine inspectors was lifted because they already satisfied the new criteria to be applied by the respondent. 42 Therefore, in my view, putting aside any question of change of legislation, the new criteria could be applied under the Act in the appointment, suspension and removal of inspectors by the respondent.
Case: Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167
Outcome: cited
My own view is that s 21R confers a power to appoint, not a power to make, grant or issue any instrument. Section 21R does not talk in terms of the relevant act (the appointment) being made "by" or "pursuant to" any form of writing, but confers a power to make a decision to appoint, which incidentally to that decision, is to be in writing: see discussion in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 at 172; affirmed by the Full Court in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307; Barton v Croner Trading Pty Ltd (1984) 3 FCR 95 at 110; and Edenmead Pty Ltd v Commonwealth (1984) 4 FCR 348 at 352-353.
Case: Registrar for Liquor Licences v Iliadis (1988) 19 FCR 311
Outcome: considered
The applicants relied upon the decisions in Nguyen v Minister for Health and Ageing [2002] FCA 1241 and Registrar for Liquor Licences v Iliadis (1988) 19 FCR 311 in support of the proposition that an implied power to revoke or suspend an appointment should not be construed as capable of being exercised with less constraints than the express power to appoint. These cases do not assist in the interpretation of the power to suspend or remove as conferred by s 21R as affected by s 33(4) of the Acts Interpretation Act , and do not stand for the broad proposition contended for by the applicants.
Case: South Australia v O'Shea [1987] HCA 39 ; (1987) 163 CLR 378
Outcome: cited
Matters of policy and implementation of policy (including change in qualifications for appointment), and the views of the Victorian community or the respondent's perception about those views, are ones which the respondent, upon which a discretionary power has been conferred, may take into account. In Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at 565 per Hayne J (with whom Gleeson CJ and Gummow J agreed at 538-539) discussed the nature of the types of matters a minister with a discretionary power might take into account: Conferring power on a Minister may well indicate that a particularly wide range of factors and sources of information may be taken into account, given the types of influence to which Ministers are legitimately subject. See also Murphyores Incorporated Pty Ltd v Commonwealth [1976] HCA 20 ; (1976) 136 CLR 1 at 13-14; Hot Holdings Pty Limited v Creasy [2002] HCA 51 ; (2002) 210 CLR 438; South Australia v O'Shea [1987] HCA 39 ; (1987) 163 CLR 378.
Case: X v Australian Crime Commission [2004] FCA 1475 ; (2004) 139 FCR 413
Outcome: followed
There are two matters requiring consideration before it can be held that s 33(3) applies to s 21R. The first matter is whether an appointment made under s 21R of the Act is an "instrument" within the meaning of s 33(3). In X v Australian Crime Commission [2004] FCA 1475 ; (2004) 139 FCR 413 at 421, Finn J made the following observation in considering the term "instrument" for the purposes of s 33(3): There are two streams of Federal Court authority which have taken inconsistent views on this question. One stream would limit the class of instruments to which the term applies to instruments of a legislative character. The other would extend it to executive or administrative instruments. This conflict has recently been reviewed at length by Emmett J in Heslehurst v Government of New Zealand [2002] FCA 429 ; (2002) 117 FCR 104 at [12] ff (for the purposes of s 33(3)) and by the Victorian Court of Appeal in R v Ng (for the purposes of s 46). Both decisions rejected the limitation of these provisions to legislative instruments. Ng , I would note, has recently been applied by Ryan J in Glaxsmithkline Australia Pty Ltd v Anderson [2003] FCA 617 ; (2003) 130 FCR 222 at [28] . In my respectful view, the conclusions of Emmett J and of the Court of Appeal are compelling and ought be followed. I am prepared to accept in favour of the applicant that the conclusions of Emmett J and of the Court of Appeal ought to be followed by me for the purposes of these proceedings.
Case: Australian Postal Commission v Hayes (1989) 87 ALR 283
Outcome: cited
It may be accepted as a general statement of principle that if directions are given by a court or tribunal that have the effect of fettering cross-examination so that a witness's evidence on relevant issues cannot be properly tested, there is a denial of procedural fairness. But it must be emphasised that this proposition is subject to the discretion of the decision maker to control cross-examination so as to ensure relevance and to guard against repetition and prolixity; see R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13 at 34-35; Australian Postal Commission v Hayes (1989) 87 ALR 283 at 289 per Wilcox J.
Case: Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Limited [2003] FCAFC 244 ; (2003) 133 FCR 290
Outcome: cited
Whilst not opposed to the filing of the supplementary notice, CRS points out that many of the seventeen questions stated in the original and supplementary notice do not state questions of law; see TNT Skypak International (Aust) Pty Limited v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178; Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at [11]; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Limited [2003] FCAFC 244 ; (2003) 133 FCR 290 at [42] .
Case: Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321
Outcome: cited
Whilst not opposed to the filing of the supplementary notice, CRS points out that many of the seventeen questions stated in the original and supplementary notice do not state questions of law; see TNT Skypak International (Aust) Pty Limited v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178; Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at [11]; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Limited [2003] FCAFC 244 ; (2003) 133 FCR 290 at [42] .
Case: Lawrance v President, Administrative Appeals Tribunal [2005] FCA 79
Outcome: referred to
The assumption is without foundation. I refused interlocutory relief on 10 February 2005; see [2005] FCA 79. Leave to appeal from my judgment was refused by Hely J on 3 May 2005; see [2005] FCA 541.
Case: Lawrance v Administrative Appeals Tribunal [2005] FCA 541
Outcome: referred to
The assumption is without foundation. I refused interlocutory relief on 10 February 2005; see [2005] FCA 79. Leave to appeal from my judgment was refused by Hely J on 3 May 2005; see [2005] FCA 541.
Case: Lawrance v President, Administrative Appeals Tribunal [2006] FCA 342
Outcome: referred to
Most of the background facts, as well as the decision of Senior Member Kelly, have been set out in my judgment in matter NSD 55 of 2005, handed down contemporaneously with this judgment; see Lawrance v President, Administrative Appeal Tribunal [2006] FCA 342. 5 It is necessary to add only briefly to what I have already said about the background and the decision under appeal. 6 In her request for documents under the FOI Act dated 23 February 2004, the applicant explained that whilst she had "never been aware or conscious of having had CRS involvement in any aspect of my employment or my life", she came to believe "with hindsight" that there had been some sort of involvement.
Case: Minh v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 304
Outcome: cited
In Minh v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 304 at 314, Weinberg J observed that the duty to act fairly may be breached if a party is not given a reasonable opportunity to make relevant submissions, to give evidence and to call witnesses. But his Honour went on to say:- "At the same time, however, the opportunity to make relevant submissions, to give evidence, and to call witnesses in support which must be afforded will always be qualified by a requirement that the material and arguments sought to be presented must be sufficiently relevant and significant to warrant being received." 29 The power of the AAT to control the proceeding so as to ensure compliance with these principles is found in s 33(1)(a) of the AAT Act . That subsection provides that the procedure of the AAT is, subject to the AAT Act and the Regulations and any other enactment, within the discretion of the AAT. 30 There were only two real issues in the proceeding before Senior Member Kelly. The first was whether there were documents in the possession of CRS which were the subject of the applicant's request. The second was whether CRS had taken all reasonable steps to search for such documents. The learned Senior Member was plainly entitled to control the hearing and to limit examination or cross-examination so as to ensure some semblance of relevance to the real issues.
Case: R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13
Outcome: cited
It may be accepted as a general statement of principle that if directions are given by a court or tribunal that have the effect of fettering cross-examination so that a witness's evidence on relevant issues cannot be properly tested, there is a denial of procedural fairness. But it must be emphasised that this proposition is subject to the discretion of the decision maker to control cross-examination so as to ensure relevance and to guard against repetition and prolixity; see R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13 at 34-35; Australian Postal Commission v Hayes (1989) 87 ALR 283 at 289 per Wilcox J.
Case: TNT Skypak International (Aust) Pty Limited v Federal Commissioner of Taxation (1988) 82 ALR 175
Outcome: cited
Whilst not opposed to the filing of the supplementary notice, CRS points out that many of the seventeen questions stated in the original and supplementary notice do not state questions of law; see TNT Skypak International (Aust) Pty Limited v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178; Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at [11]; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Limited [2003] FCAFC 244 ; (2003) 133 FCR 290 at [42] .
Case: Purchas, in the matter of Estore Pty Limited (in liq) [2006] FCA 1222
Outcome: followed
material facts in Purchas, in the matter of Estore Pty Limited (in liq) [2006] FCA 1222 and Purchas, in the matter of Worldwide Workers Pty Limited (in liq) [2006] FCA 1223 are indistinguishable in substance from this case. Directions will be given and an order for costs will be made for the same reasons as those appearing in the aforementioned cases.
Case: Purchas, in the matter of Worldwide Workers Pty Limited (in liq) [2006] FCA 1223
Outcome: followed
material facts in Purchas, in the matter of Estore Pty Limited (in liq) [2006] FCA 1222 and Purchas, in the matter of Worldwide Workers Pty Limited (in liq) [2006] FCA 1223 are indistinguishable in substance from this case. Directions will be given and an order for costs will be made for the same reasons as those appearing in the aforementioned cases.
Case: Deputy Commissioner of Taxation v ACN 080 122 587 Pty Ltd [2005] NSWSC 1247
Outcome: cited
both propositions are of some novelty in circumstances such as the present, counsel is correct in submitting that there is some support to be derived from the decisions of Young CJ in Eq in Deputy Commissioner of Taxation v ACN 080 122 587 Pty Ltd [2005] NSWSC 1247 and Austin J in Re Currabubula Holdings Pty Ltd (in liq); Ex parte Lord (2004) 48 ACSR 734; (2004) 22 ACLC 858, at least so far as standing is concerned.