mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Coal and Shale Employees' Federation v The Commonwealth [1953] HCA 25 ; (1953) 94 CLR 621
Outcome: cited
The Tribunal member approached the review of the conference registrar's taxation on the basis that the procedure under s 69A of the AAT Act for a review was a substantively different exercise from all other reviews conducted by the Tribunal under that Act. The Tribunal purported to follow the decision of Kitto J in Australian Coal and Shale Employees' Federation v The Commonwealth [1953] HCA 25 ; (1953) 94 CLR 621 at 627. That approach involved the Tribunal considering the conference registrar's decision as to which costs to allow on taxation to be discretionary and that the task of the Tribunal was not the usual one to make the correct or preferable decision, but was to approach what the conference registrar had done with a strong presumption in favour of the correctness of the decision from which the appeal was brought. 12 Last the Tribunal found that there was no basis to increase the allowable costs which are based on O 62 r 12(1) of the Federal Court Rules and the second schedule to those rules by adding a disbursement or further amount in respect of the Goods and Services Tax ('GST') which Ms Keen was liable to pay to her solicitor for the provision of legal services the subject of the taxation. 13 Ms Keen argued that there were three questions of law raised on the appeal, namely: (a) whether the second Tribunal erred by failing to conduct a review under s 69A of the AAT Act on the basis of arriving at the correct and preferable decision; (b) that the second Tribunal erred in finding that the first Tribunal's decision in the 2002 matter was made without jurisdiction and awarding nil costs in respect of it; (c) that the second Tribunal erred in finding that Telstra was not liable to pay a sum in respect of GST in the amount of costs payable to Ms Keen under the first Tribunal's order for costs.
Case: Collins v Military Rehabilitation and Compensation Commission [2005] FCA 1862 ; (2005) 147 FCR 570
Outcome: applied
A more fundamental question, however, also rises. Telstra, deliberately, has eschewed taking proceedings under s 39B of the Judiciary Act 1903 (Cth) or under the Administrative Decisions (Judicial Review) Act 1977 seeking to challenge the costs order in respect of the 2002 proceedings. I raised this during the hearing with counsel for Telstra. That may well be because the disputed costs the subject of the certificate of taxation, as affected by the second Tribunal's decision, were somewhere around the amount of the filing fee in this court. Be that as it may, the question is whether the decision of the first Tribunal could be ignored by the second Tribunal. As Jacobson J held in Collins v Military Rehabilitation and Compensation Commission [2005] FCA 1862 ; (2005) 147 FCR 570 at 579 [32] - [36] the power of the Tribunal to make a costs order under s 67(8) can only be exercised once.
Case: In re Florence Land and Public Works Company; Ex parte Moor (1878) 10 Ch D 530
Outcome: cited
In the circumstances of this matter the maxim of interpretation chartarum benigne faciende est ut res magis valeat quam pereat ought be applied here. That maxim can be of assistance where an instrument, be it legislative, administrative or a document inter partes, is open to two interpretations, one of which would make the instrument effectual in law, and the other would make it ineffectual. The rationale behind the principle rests on the presumed intent of the person or body promulgating the instrument to create a valid instrument. Where what is done is the exercise of a power, the presumption is that the body intends to act within, not outside, its powers. ( Airservices Australia v Canadian Airlines International Ltd [1999] HCA 62 ; (2000) 202 CLR 133 at 216 [228] - [230] per McHugh J; Attorney-General (NSW) v Stocks and Holdings (Constructors) Pty Ltd [1970] HCA 58 ; (1970) 124 CLR 262 at 283 per Windeyer J; Widgee Shire Council v Bonney [1907] HCA 11 ; (1907) 4 CLR 977 at 983 per Griffith CJ; In re Florence Land and Public Works Company; Ex parte Moor (1878) 10 Ch D 530 at 544 per James LJ applied by McTiernan J in The Queen v Portus; Ex parte City of Perth [1973] HCA 64 ; (1973) 129 CLR 312 at 317).
Case: Merringtons Pty Ltd v Luxottica Retail of Australia Pty Ltd (unreported, Supreme Court of Victoria, 16 June 2006)
Outcome: discussed
Wood M in Merringtons Pty Ltd v Luxottica Retail Australia Pty Ltd (unreported, Supreme Court of Victoria, 16 June 2006) held that the absence of an equivalent rule in Victoria was not significant because a disbursement had to represent an out-of-pocket expense. The Master said that r 837A merely embodied a principle that a party ought not to obtain more on a party/party taxation than they are ultimately required to pay (see [39]). 39 Whatever may be the position in Victoria, the provisions of O 62 r 12(1) are quite clear. In their natural and ordinary meaning, they provide that the only amounts allowable are those fees set out in the second schedule. 40 When a bill of costs for taxation is prepared, the party entitled to costs is required to set out the price of the legal service which is being claimed on taxation. Under A New Tax System (Goods and Services Tax) Act 1999 (Cth) ('the GST Act') a solicitor must render a tax invoice to his or her client. By s 29-70(1) of the GST Act a tax invoice for a taxable supply must be issued by the supplier (here solicitor), set out the ABN of the supplier and set out the price for the supply.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597
Outcome: applied
In Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597, Gaudron and Gummow JJ 616 [53], McHugh J at 618 [63] and Callinan J at 647 [153] held that an administrative decision involving jurisdictional error has no legal foundation and is properly to be regarded in law as no decision at all (see also Plaintiff S157/2002 v The Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at 506 [76] ). Here, the Tribunal had no power to make an order that Telstra pay Ms Keen's costs of the 2002 proceedings.
Case: Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11 ; (2006) 225 ALR 643
Outcome: cited
I was referred to the explanatory memorandum for the Law and Justice Legislation Amendment Bill (No 3) 1994 which became the Law and Justice Legislation Amendment Act (No 1) 1995 (No 195 of 1995). Item 30 of the second schedule of that Act inserted s 69A into the AAT Act. Item 48 of the second schedule of that Act inserted s 67(14) into the SRC Act and item 47 inserted a reference to a 'district registrar' into s 67(13) of the SRC Act. In the explanatory memorandum, par 113 said: 'New subsection 69A(3) will set out the Tribunal's powers on a review in similar terms to subsection 43(1)'. That confirms what I understood to be the ordinary and natural meaning of the legislation. However in reaching, my construction, I have relied on the words of the Acts as having paramount significance ( Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11 ; (2006) 225 ALR 643 at 649 [22] per Gleeson CJ, Gummow, Hayne and Heydon JJ). 19 The second Tribunal made an error of law in approaching the review under s 69A(3) on the basis that there was a strong presumption in favour of the correctness of the decision from which an appeal was brought and thus did not perform the function which s 69A(3) in fact conferred on the Tribunal for it to perform, namely to review the decision so as to give what it considered to be the correct and preferable decision on the material before it. It follows that this ground of appeal succeeds. 20 Relevantly, the SRC Act defines a proceeding under Part VI (in which there are to be found ss 60-67) as having the meaning in s 4(12). That meaning is specified as being: '(12) A reference in this Act to the institution of a proceeding under Part VI in respect of a reviewable decision is a reference to the making of an application to the [Tribunal] for a review of that decision.' 21 Thus, as noted above, s 64(1)(a), which is found in Part VI, entitles a claimant such as Ms Keen to apply to the Tribunal for review of a reviewable decision. In s 67, which deals with costs before the Tribunal, the general rule is set out in s 67(1). That provides that subject to the section, costs incurred by a party to proceedings instituted under Part VI in respect of that reviewable decision should be borne by the party concerned. 22 Critically, s 67(8) provides that where in any proceedings instituted by the claimant, the Tribunal makes a decision varying a reviewable decision in a manner favourable to the claimant or setting a decision aside and making a decision in substitution for it that is more favourable to the claimant than that the subject of the review, the Tribunal may, subject to the section, order the costs of those proceedings incurred by the claimant or any part of those costs to be borne by the responsible authority (here Telstra). And, s 67(13) provides that where the Tribunal orders the responsible authority to pay costs incurred by a claimant, it may in the absence of agreement between the parties as to the amount of the costs, tax or settle that amount itself or order that they be taxed by a registrar of the Tribunal.
Case: Plaintiff S157/2001 v The Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476
Outcome: cited
In Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597, Gaudron and Gummow JJ 616 [53], McHugh J at 618 [63] and Callinan J at 647 [153] held that an administrative decision involving jurisdictional error has no legal foundation and is properly to be regarded in law as no decision at all (see also Plaintiff S157/2002 v The Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at 506 [76] ). Here, the Tribunal had no power to make an order that Telstra pay Ms Keen's costs of the 2002 proceedings.
Case: Seyffer v Adamson (2001) 10 BPR 19,349
Outcome: referred to
In this matter the amount at issue was insubstantial. I was informed that a mediation of this matter had failed. That is regrettable. I do not know what, if any, substantive effect the error which I have found to have been made in the construction of s 69A of the AAT Act will have on a reconsideration of the matter which must now occur. However, litigation of this kind is most unfortunate. It is, of course, the function of the court to hear and determine matters within its jurisdiction, be they large or small. As Bryson J said in Seyffer v Adamson (2001) 10 BPR 19,349 at [1]: 'The Courts of Justice, like the Ritz Hotel, are open to all ...' 50 There must be orders for prerogative relief to enable the review under s 69A to proceed on correct basis. I will fix an amount for the costs of these proceedings after hearing the parties. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 4 July 2006 Counsel for the Applicant: Mr P Jeffriess Solicitor for the Applicant: Stacks/Forster Counsel for the Respondent: Mr B Kelly with written submissions by Mr N Polin Solicitor for the Respondent: Henry Davis York Date of Hearing: 27 June 2006 Date of Final Submissions: 29 June 2006 Date of Judgment: 4 July 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/834.html
Case: The Queen v Portus; Ex parte City of Perth [1973] HCA 64 ; (1973) 129 CLR 312
Outcome: cited
In the circumstances of this matter the maxim of interpretation chartarum benigne faciende est ut res magis valeat quam pereat ought be applied here. That maxim can be of assistance where an instrument, be it legislative, administrative or a document inter partes, is open to two interpretations, one of which would make the instrument effectual in law, and the other would make it ineffectual. The rationale behind the principle rests on the presumed intent of the person or body promulgating the instrument to create a valid instrument. Where what is done is the exercise of a power, the presumption is that the body intends to act within, not outside, its powers. ( Airservices Australia v Canadian Airlines International Ltd [1999] HCA 62 ; (2000) 202 CLR 133 at 216 [228] - [230] per McHugh J; Attorney-General (NSW) v Stocks and Holdings (Constructors) Pty Ltd [1970] HCA 58 ; (1970) 124 CLR 262 at 283 per Windeyer J; Widgee Shire Council v Bonney [1907] HCA 11 ; (1907) 4 CLR 977 at 983 per Griffith CJ; In re Florence Land and Public Works Company; Ex parte Moor (1878) 10 Ch D 530 at 544 per James LJ applied by McTiernan J in The Queen v Portus; Ex parte City of Perth [1973] HCA 64 ; (1973) 129 CLR 312 at 317).
Case: Thornton v Apollo Nominees Pty Limited (2005) 59 ATR 244
Outcome: discussed
There is no provision in the Federal Court Rules like r 837A of the Supreme Court Rules 2000 (Tas) which was considered by Evans J in Thornton v Apollo Nominees Pty Limited (2005) 59 ATR 244. That rule permits the Supreme Court of Tasmania to allow in a bill of costs for taxation an amount referable to the GST paid or to be paid by the party entitled to the costs order.
Case: Widgee Shire Council v Bonney [1907] HCA 11 ; (1907) 4 CLR 977
Outcome: cited
In the circumstances of this matter the maxim of interpretation chartarum benigne faciende est ut res magis valeat quam pereat ought be applied here. That maxim can be of assistance where an instrument, be it legislative, administrative or a document inter partes, is open to two interpretations, one of which would make the instrument effectual in law, and the other would make it ineffectual. The rationale behind the principle rests on the presumed intent of the person or body promulgating the instrument to create a valid instrument. Where what is done is the exercise of a power, the presumption is that the body intends to act within, not outside, its powers. ( Airservices Australia v Canadian Airlines International Ltd [1999] HCA 62 ; (2000) 202 CLR 133 at 216 [228] - [230] per McHugh J; Attorney-General (NSW) v Stocks and Holdings (Constructors) Pty Ltd [1970] HCA 58 ; (1970) 124 CLR 262 at 283 per Windeyer J; Widgee Shire Council v Bonney [1907] HCA 11 ; (1907) 4 CLR 977 at 983 per Griffith CJ; In re Florence Land and Public Works Company; Ex parte Moor (1878) 10 Ch D 530 at 544 per James LJ applied by McTiernan J in The Queen v Portus; Ex parte City of Perth [1973] HCA 64 ; (1973) 129 CLR 312 at 317).
Case: Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18 ; (1996) 189 CLR 1
Outcome: cited
It is apparent that the scheme of powers of the Tribunal on a review of a decision of a registrar under s 69A is identical with the ordinary functions on a review of a decision of the Tribunal under s 43(1) of the AAT Act. Section 69A of the AAT Act creates no presumptions that, in conducting a review under that section, the Tribunal is to do anything other than the well accepted function of reviewing the decision so as to give what it considers to be the correct and preferable decision: Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18 ; (1996) 189 CLR 1 at 18. 17 I am of opinion that the language of s 69A is clear and carries with it the intention that the review is to be the ordinary kind of review such as that conducted by the Tribunal under s 43(1) of the AAT Act.
Case: Bienke v Minister for Primary Industries and Energy (1994) 125 ALR 151
Outcome: applied
test for validity of a legislative instrument is "whether there is a 'real connection' between the delegated legislation and the purpose for which the Parliament conferred the authority to make the law under challenge": Gummow J in Bienke v Minister for Primary Industries and Energy (1994) 125 ALR 151 at 163. The applicant contends that the "Relative Price Factor" derived for a fishing permit package for the northern inshore and Area E areas of the Fishery in item 5 in the table in s 32 of the Management Plan was derived by a method that was irrational, unreasonable and capricious, and was against the weight of evidence and submissions to the Authority, with the consequence that item 5 should be declared invalid. For the reasons which follow, the applicants' challenge to s 32 of the Management Plan fails, and the declaration of invalidity they seek will be refused. The Fishery And to the observation of Gummow J in Bienke v Minister for Primary Industries and Energy (1994) 125 ALR 151 , at 166: ... Great caution must be shown in judicial review ... of determinations resting upon factual matters where (i) the determinations in question were made after prolonged public debate and (ii) being legislative in character, the determinations were subject to disallowance by either House of Parliament and (iii) the disputed matters of fact turn upon expert knowledge and opinion, there is dispute between the experts, and there was no cross examination upon that conflict. In Bienke , Gummow J was concerned with a challenge by the owners of prawn trawlers to a management plan for the Northern Prawn Fishery promulgated in 1989. The applicants argued, amongst other things, that a number of determinations by the relevant Minister relating to the plan and changes to it were ultra vires and unreasonable. It was also said that the plan was invalid, on the basis that it deprived the applicants of the ability to fish, which was, in effect, the indirect acquisition of property without providing for just terms as required by the Constitution . A "just terms" compensation claim was pleaded in the present case, but abandoned by the applicants.
Case: Director of Animal and Plant Quarantine v Australian Port Ltd and Others [2005] FCAFC 206
Outcome: applied
Director of Animal and Plant Quarantine v Australian Pork Ltd and Others [2005] FCAFC 206 ; (2005) 146 FCR 368 , the Full Court of the Federal Court was concerned with the review of an administrative decision to grant a Permit to import pig meat, pursuant to the ADJR Act. It was contended that the recommendation of the Import Risk Analysis Report was infected by Wednesbury unreasonableness. The nature of the decision making function in that case was described by Heerey and Lander JJ at 382, [61]: The legislation does not suggest that quarantine decisions are to be made on an assumption that every scientific fact is known about every conceivable disease or pest that might be introduced into Australia, or that such decision are to be delayed until all such facts are discovered and accepted. On the contrary, quarantine decisions have to be made in the existing state of knowledge. Imponderables have to be weighed and value judgements made. No specific criteria are laid down, other than the condition to be established must limit the level of quarantine risk to one which is "acceptably low" which necessarily assumes there will be some risk. At [63], Heerey and Lander JJ said: ... If in some steps, or sub-steps, of the process in relation to PMWS the Panel used estimate, or analogy, or indeed speculation, the Panel might be guilty of unscientific procedures. However APL had to show that the ultimate decision was not just unreasonable, but so unreasonable that no other similarly qualified decision-maker would have made it. That test necessarily allows for some degree of unreasonableness. Even if error in reasoning is disclosed, a conclusion of Wednesbury unreasonableness requires a major step further. (Emphasis added). In the case of a legislative instrument, such as the present, the matter has to go even further than Wednesbury unreasonableness. The observations of their Honours at 371, [4] have a resonance to the present proceedings: ... That process involved fact finding and the making of value judgments and risk assessments in a complex scientific setting. The good faith and scientific competence of those engaged in the task is not in question. While there is room for debate as to some aspects of the IRA Report, the Panel did not carry out its task irrationally or unreasonably. The Court is not empowered to adjudicate on the factual correctness or otherwise of the IRA Report.
Case: Minister for Primary Industries &amp; Energy v Austral Fisheries Pty Ltd [1993] FCA 45 ; (1993) 40 FCR 381
Outcome: cited
CJ referred, at [133] to the observations of Lockhart J in Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd [1993] FCA 45 ; (1993) 40 FCR 381 at 384: Delegated legislation may be declared to be invalid on the ground of unreasonableness if it leads to manifest arbitrariness, injustice or partiality; but the underlying rationale is that legislation of this offending kind cannot be within the scope of what Parliament intended in authorising the subordinate legislative authority to enact law.
Case: Minister for Primary Industry and Energy v Davey (1993) 47 FCR 151
Outcome: cited
J noted, at 155, that the common law right or liberty to fish in the sea and in tidal navigable rivers is a public not a proprietary right, and as such, is amendable to abrogation or regulation by legislation, citing Minister for Primary Industry and Energy v Davey (1993) 47 FCR 151 at 160, 168-9. In the context of the present case it is helpful to recall that par 7 of the Northern Fisheries Plan then under challenge set out the objectives and measures for obtaining them. Subparagraphs 7.1 and 7.2 stated: 7.1 For the purposes of subsection 7B(2) of the Act, the objectives of this plan are: (a) to conserve the stocks of prawns in the area of the fishery; (b) to reduce the fishing pressure on the stocks of prawns in the area of the fishery; and (c) to promote the economic efficiency of the fishery. 7.2 The measures for attaining the objectives specified in paragraph 7.1 shall include: (a) the determination of the fishing capacity of the fishery; (b) the determination of the number of units of fishing capacity for the fishery available to a unit holder for allocation and assignment, which shall be renewable and transferable; and (c) the facilitation of the withdrawal of units and boats from the fishery. [Emphasis supplied.] Gummow J, at 161, said that certain determinations by the Minister were said to be invalid "(a), because they were made ultra vires, and (b), because the determinations were unreasonable and irrational in the Wednesbury sense, or "disproportionate". At 163, Gummow J said: ... when the issue concerns not the exercise of discretion by the validity of delegated legislation, the question is ... whether there is a "real connection" between the delegated legislation and the purpose for which the Parliament conferred the authority to make the law under challenge.