Case: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 ; (2000) 203 CLR 194
Outcome: applied
I am of opinion that all of the grounds in the notice of appeal other than the ground involving s 39B of the Judiciary Act 1903 (Cth), are without substance and should be dismissed for the reasons given by the primary judge. The appellant told me that he was unable to articulate any arguments in support of his claim because he did not understand the law and was not a lawyer. I explained to him that it was not the function of the Court to make a case for him, rather it was the function of the Court to adjudicate impartially between him and the Minister. And a court such as this, in cases where there has been no further evidence admitted on the appeal and no change in the law, can exercise its appellate powers only if satisfied that there was error on the part of the primary judge ( Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 ; (2000) 203 CLR 194 at 203 [14] per Gleeson CJ, Gaudron and Hayne JJ). Apart from the ground I consider below, neither the notice of appeal nor the appellant's submissions identify any error by the trial judge or any other basis for me to exercise the Court's appellate powers. 23 The issue for decision is whether the Tribunal was entitled to proceed to the conclusion it did without giving the appellant notice in writing under s 424A of the Act in respect of the material in the departmental file. That section provides: ' (1) Subject to subsection (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies - by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person. (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or (c) that is non-disclosable information.' 24 The Tribunal stated in its reasons that it had the file before it and had considered its contents. In his letter in support of the application for review made to the Tribunal, the appellant, dealing with the reasons he left China, said 'as I explained before' and 'I gave full explanations in my previous statement'. These statements incorporate by reference what the appellant had said to the delegate as contained in the departmental file for the purposes of s 424A(3)(b); that is, the information which he had explained before in his previous statement was given to the Tribunal by the references in his letter accompanying his application for review 'for the purpose of the application'.