mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Cann's Pty Limited v The Commonwealth [1946] HCA 5 ; (1946) 71 CLR 210
Outcome: considered
Optus argued that par 10 of the final determination had to be construed in accordance with the principle explained by Dixon J in King Gee Clothing Company Pty Limited v The Commonwealth [1945] HCA 23 ; (1945) 71 CLR 184 at 195 and Cann's Pty Limited v The Commonwealth [1946] HCA 5 ; (1946) 71 CLR 210 at 227-228. Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ in Westfield Management Limited v Perpetual Trustee Company Limited [2007] HCA Trans 367 applied that principle to hold that where it was asserted that one of its terms was uncertain, an instrument or decision made under a statute was not construed as if it were a contract: cp Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd [1968] HCA 8 ; (1968) 118 CLR 429 at 436-437.
Case: Collector of Customs v Agfa Gevaert Ltd [1996] HCA 36 ; (1996) 186 CLR 389
Outcome: followed
In my opinion, some of the contentious material was admissible to prove the meaning of technical terms used in the final determination, Code 569 and Guideline 587 (discussed below at Ch 7) in the context of the telecommunications industry: Collector of Customs v Agfa Gevaert Ltd [1996] HCA 36 ; (1996) 186 CLR 389 at 398-399 per Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ. Evidence as to the meaning of technical terms used in an administrative decision is admissible so that the Court is placed in the context of understanding the natural and ordinary meaning of those words as they would be understood by persons familiar with their use: see also Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707 ; (2005) 148 FCR 446 at 566 [458] . Such evidence is capable of establishing that the decision-maker erred in its understanding of the technical matters with which its decision dealt. In Australian Retailers Association 148 FCR at 566 [458], Weinberg J held that such evidence is admissible where an administrative decision is challenged on the ground that the decision-maker lacked jurisdiction to make it because that was dependent on an actual state of facts that did not exist, or the decision-maker based the decision on a finding of a particular fact that did not exist. He said: "If additional evidence is available, in cases reliant upon such grounds, there is no reason in principle why such evidence should not also be admissible where the ground is couched in terms of unreasonableness."
Case: East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission [2007] HCA 44 ; (2007) 233 CLR 229
Outcome: followed
Where a decision-maker must consider matters prescribed by law, generally, he or she cannot jettison or ignore some of those factors or give them cursory consideration only in order to put them to one side: East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission [2007] HCA 44 ; (2007) 233 CLR 229 at 244 [52] per Gleeson CJ, Heydon and Crennan JJ. As Gummow and Hayne JJ, in concurring observed ( East Australian Pipeline 233 CLR at 256 [102]): "It was not enough for the ACCC to say in its final determination that it had considered those matters in the sense of having looked at but discarded them."
Case: Eastern Trust Co v McKenzie, Mann &amp; Co [1915] AC 750
Outcome: cited
This reflects a fundamental precept of constitutional law. When legislative power is used to create rights or impose liabilities and obligations, one consequence is that the freedom of those affected by the legislation is constrained or expanded by what the law provides. Where the law requires the executive branch of government, such as the Commission, to do something to give effect to the intention of the Parliament, the executive must obey the law, just like every other member of the community, be it a corporation or individual. This is because it is the duty of the executive branch of government to obey the law as laid down by the Parliament and the Courts, even if the executive does not agree with those decisions: The Commonwealth v New South Wales [1923] HCA 23 ; (1923) 32 CLR 200 at 214 per Isaacs, Rich and Starke JJ applying Eastern Trust Co v McKenzie, Mann &amp; Co [1915] AC 750 at 759; see also Tran v Minister for Immigration [2006] FCA 1229 ; (2006) 154 FCR 536 at 540 [9] per myself.
Case: Elliott v Minister for Immigration [2007] FCAFC 22 ; (2007) 156 FCR 559
Outcome: cited
I am of opinion that while the Commission had taken the provisions of Code 569 and Guideline 587 into account (Reasons [202]), it did not treat Code 569 as providing model terms and conditions covering the ULLS for the purposes of s 152AQB(9). This was because it did not consider that the October 2003 determination included, relevantly, the whole of cl 11 of Code 569 as model terms and conditions. That was a misconstruction or misunderstanding of the purposes of Code 569 and its October 2003 determination in the sense that the Commission did not have regard the whole of to cl 11 as being a determination under s 152AQB(9) but rather had regard to it as a provision of lesser importance. This resulted in the Commission failing to exercise its powers in accordance with s 152AQB(9): cf: Minister for Immigration v Gray [1994] FCA 1052 ; (1994) 50 FCR 189 at 208B-D per French and Drummond JJ; Elliott v Minister for Immigration [2007] FCAFC 22 ; (2007) 156 FCR 559 at 572 [40] - [42] per Ryan, Tamberlin and Middleton JJ. The weight which the Commission accorded Code 569, and in particular cl 11, may have been different and more significant had it had regard to the Code in accordance with s 152AQB(9).
Case: Enfield City Corporation v Development Assessment Commission [2000] HCA 5 ; (2000) 199 CLR 135
Outcome: cited
There is, however, no error of law in a decision simply because the decision-maker made a wrong finding of fact: Enfield City Corporation v Development Assessment Commission [2000] HCA 5 ; (2000) 199 CLR 135 at 154 [44] per Gleeson CJ, Gummow, Kirby and Hayne JJ. In that case, the Court held that evidence was admissible in judicial review proceedings to assist in the determination of a jurisdictional fact, namely, whether a development fell within a statutory description "special industry": see Enfield 199 CLR at 147 [24], 155-156 [50].
Case: Foster v Minister for Customs [2000] HCA 38 ; (2000) 200 CLR 442
Outcome: cited
Because s 152CR(1) required it to take into account each of the seven specified factors, the Commission had to give each of them appropriate consideration in arriving at its final determination. The number and variety of factors which a statute requires a decision-maker to take into account or to have regard to in arriving at a decision necessarily affects the weight any one of those factors must be given in the deliberative process. In Sean Investments [1979] HCA 32 ; 180 CLR 322 , the costs were fundamental - or foundational - because they were the only matter which the statute prescribed. The subject matter, scope and purpose of the statutory power provide a context in which to assess the duties it imposes on the decision-maker in any particular situation: cf: Foster v Minister for Customs [2000] HCA 38 ; (2000) 200 CLR 442 at 452 [22] - [23] per Gleeson CJ and McHugh J, Gaudron and Hayne JJ agreeing with their Honours at 454 [32]. 112 Therefore, depending on the facts of a particular arbitration, one or more of the matters in s 152CR(1) may become of greater or lesser weight in the decision-making process. However, as a matter of law, none of the factors, including s 152CR(1)(d), is entitled to a fixed weighting in that process regardless of the subject matter of any arbitration and all other relevant factors: Peko-Wallsend 162 CLR at 41 per Mason J; Foster 200 CLR at 452 [22]-[24] per Gleeson CJ and McHugh J; cf: Telstra [2008] FCA 1436 at [118] per Lindgren J.
Case: George v Rockett [1990] HCA 26 ; (1990) 170 CLR 104
Outcome: cited
"All reasonable steps" are not "some" step or steps which the Commission thinks are reasonable: cf: George v Rockett [1990] HCA 26 ; (1990) 170 CLR 104 at 112. The ULLS service was a core service described in the Act. The Act provided specifically for the regulation of access to that service. It imposed liabilities on Telstra, among others, to ensure that access was given in accordance with the model terms and conditions (if they were applicable) that the Parliament required be promulgated by the Commission acting with an appropriate degree of urgency and attention to the terms of the Act. The explanatory memorandum was not the law and its stated intention was not reflected in the statutory language. This is particularly important since the Act provides for heavy penalties on those who contravene its requirements.
Case: Herald-Sun TV Pty Ltd v Australian Broadcasting Tribunal [1985] HCA 32 ; (1985) 156 CLR 1
Outcome: cited
Telstra argued that par 10 fails to specify terms and conditions with reasonable precision or in such a way that both Telstra and the Court can determine whether a particular request by Optus must be dealt with in a certain, identified way: cf: Herald-Sun TV Pty Ltd v Australian Broadcasting Tribunal [1985] HCA 32 ; (1985) 156 CLR 1 at 4 per Gibbs CJ, Mason, Wilson, Deane and Dawson JJ. Telstra contended that par 10 was "... so vaguely expressed that either its meaning or its application is a matter of real uncertainty ..." and so was not "... reasonably certain", using the words of Kitto J in Television Corporation Ltd v The Commonwealth [1963] HCA 30 ; (1963) 109 CLR 59 at 70. Kitto J said there that the latter concept included both certainty of expression and certainty in operation.
Case: Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457 ; (1987) 14 ALD 291
Outcome: cited
A decision-maker must give proper, genuine and realistic consideration to the merits of the case: Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457 ; (1987) 14 ALD 291 at 292 per Gummow J; Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 601 [62] where Spigelman CJ collected the authorities; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 367 [138] per Kirby J; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at 92-93 [212] per Madgwick J, 96 [229] per Conti J; SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 at [39] , [60] where I applied this principle. In Tickner v Chapman (1995) 57 FCR 451 at 462C-D, Black CJ said that where a decision-maker was required to consider material, the process of consideration "... involves an active intellectual process" directed at the nominated subject-matter: see too per Burchett J at 476F-477E, per Kiefel J at 495F-G and Tobacco Institute of Australia v National Health &amp; Medical Research Council (1996) 71 FCR 265 at 277G per Finn J; Australian Retailers Association 148 FCR at 577 [526] per Weinberg J.
Case: King Gee Clothing Company Pty Limited v The Commonwealth [1945] HCA 23 ; (1945) 71 CLR 184
Outcome: considered
Optus argued that par 10 of the final determination had to be construed in accordance with the principle explained by Dixon J in King Gee Clothing Company Pty Limited v The Commonwealth [1945] HCA 23 ; (1945) 71 CLR 184 at 195 and Cann's Pty Limited v The Commonwealth [1946] HCA 5 ; (1946) 71 CLR 210 at 227-228. Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ in Westfield Management Limited v Perpetual Trustee Company Limited [2007] HCA Trans 367 applied that principle to hold that where it was asserted that one of its terms was uncertain, an instrument or decision made under a statute was not construed as if it were a contract: cp Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd [1968] HCA 8 ; (1968) 118 CLR 429 at 436-437. 161 Dixon J said that uncertainty as a test of validity arises from the nature of the power: King Gee 71 CLR at 195-196. He distinguished between ambiguities and uncertainties bound to arise from forms of expression and intricacies of subject matter on the one hand, which could be resolved by construing and interpreting the instrument (here final determination). Dixon J pointed out that, on the other hand, when what is described in the instrument, however clearly, involves a matter which is not an ascertainable fact or figure but a matter of estimate, assessment, discretionary allocation or apportionment resulting in the attribution of an amount or figure as a matter of judgment, then no certain objective standard is prescribed and the power has not been exercised in accordance with the statute: King Gee 71 CLR at 197; see also Racecourse Co-operative Sugar Association Ltd v Attorney-General (Qld) [1979] HCA 50 ; (1979) 142 CLR 460 at 480-481 per Gibbs J with whom Stephen, Mason and Wilson JJ agreed.
Case: Klein v Domus Pty Ltd [1963] HCA 54 ; (1963) 109 CLR 467
Outcome: referred to
In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59 at 76 [73] McHugh and Gummow JJ said that one species of what is known as Wednesbury unreasonableness ( Wednesbury [1948] 1 KB at 230) was identified by Dixon CJ in Klein v Domus Pty Ltd [1963] HCA 54 ; (1963) 109 CLR 467 at 473. There, Dixon CJ said that if it appeared that the dominating or actuating reason for a decision was outside the scope of the purpose of the enactment, that vitiated the supposed exercise of a discretion. Dixon CJ said that the Court looks to the scope and purpose of a provision and what its real object is to determine whether a decision-maker has exercised a discretion in accordance with the purpose of the enactment. However, the Court must approach the exercise from the perspective that the real object of the legislature is to leave the scope for judicial or other officer who is investigating the facts and considering the purpose of the enactment to give effect to his or her view of the justice of the case: see too S20/2002 198 ALR at 75-76 [67]-[70]; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212 at 221 [30] per Gleeson CJ, Gummow and Heydon JJ. A decision which is so unreasonable that it might almost be described as being done in bad faith or so absurd that no sensible person could dream that it lay within the powers of the decision-maker is affected by jurisdictional error: Palme 216 CLR at 221 [30].
Case: Langton v Independent Commission against Corruption (2000) 49 NSWLR 164
Outcome: cited
Optus argued that the proper construction of par 10(a) required an assumption that the requirements of cl 11.4 of Code 569 were satisfied once the conditions set out in par 10(a) were met. In other words Optus argued that the final determination required Telstra to treat the provision of the information specified in par 10(a) by itself, as an ULLS transfer request with the necessary consequence that Telstra would then process it as if it were valid under cl 11.5 of Code 569. It contended that the final determination should be construed in a practical manner which required "... Telstra to modify its existing procedures to exclude the kind of validation processes that are specific to transfers between access seekers". It referred to the practical approach in construction of instruments enunciated by Lord Reid in Gill v Donald Humberstone &amp; Co Ltd [1963] 1 WLR 929 at 933-934 and applied by Stone J in Australian Tea Tree Oil Research Institute v Industry Research and Development Board [2002] FCA 1127 ; (2002) 124 FCR 316 at 328-329 [37] - [38] ; see too per Stein and Giles JJA in Langton v Independent Commission against Corruption (2000) 49 NSWLR 164 at 167-168 [12]-[13]. Lord Reid had said that instruments which were addressed to practical people skilled in a particular trade or industry ought be construed in light of practical considerations rather than by a meticulous comparison of the language of their various provisions of the kind appropriate for the construction of a statute.
Case: Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: followed
I am of opinion that when s 152CR(1)(d) required the Commission, in making a final determination, to take into account Telstra's direct costs of providing access to the ULLS in the manner the Commission proposed, it was required to take that matter into account, together with the other matters referred to in the section, and to give weight to them as a fundamental element in making its decision: The Queen v Toohey; Ex parte Meneling Station Pty Limited [1982] HCA 69 ; (1982) 158 CLR 327 at 333 per Gibbs CJ applying what Mason J had said in Sean Investments 180 CLR at 329 to a section requiring a decision-maker to take a variety of matters into account. Mason J said that the requirement to have regard to a matter meant that it would become a central element for the decision-maker in his considerations: Meneling Station 158 CLR at 338. And, as he later explained in his classic judgment in Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 41, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the Court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising a statutory power. Mason J said that the Court could set aside an administrative decision which had failed to give adequate weight to a relevant factor of great importance, or had given excessive weight to a relevant factor of no great importance, but the preferred ground on which that power was to be exercised was that the decision was "manifestly unreasonable". A person entrusted with a discretion must call his own attention to the matters which he is bound to consider: Peko-Wallsend 162 CLR at 39 per Mason J applying Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 at 228 per Lord Greene MR.
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
There is a danger, of course, in proceedings for judicial review that the reasons of a decision-maker can be over-zealously scrutinised. The reasons are meant to inform. They are the reasons of persons who are familiar with the subject matter, and who need not be lawyers. They are intended to provide an explanation of the reasoning processes of the decision-maker himself or herself. The Court must not turn a review of the administrative decision-making into a review of the merits of the decision: 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: Minister for Immigration v Gray [1994] FCA 1052 ; (1994) 50 FCR 189
Outcome: cited
I am of opinion that while the Commission had taken the provisions of Code 569 and Guideline 587 into account (Reasons [202]), it did not treat Code 569 as providing model terms and conditions covering the ULLS for the purposes of s 152AQB(9). This was because it did not consider that the October 2003 determination included, relevantly, the whole of cl 11 of Code 569 as model terms and conditions. That was a misconstruction or misunderstanding of the purposes of Code 569 and its October 2003 determination in the sense that the Commission did not have regard the whole of to cl 11 as being a determination under s 152AQB(9) but rather had regard to it as a provision of lesser importance. This resulted in the Commission failing to exercise its powers in accordance with s 152AQB(9): cf: Minister for Immigration v Gray [1994] FCA 1052 ; (1994) 50 FCR 189 at 208B-D per French and Drummond JJ; Elliott v Minister for Immigration [2007] FCAFC 22 ; (2007) 156 FCR 559 at 572 [40] - [42] per Ryan, Tamberlin and Middleton JJ. The weight which the Commission accorded Code 569, and in particular cl 11, may have been different and more significant had it had regard to the Code in accordance with s 152AQB(9).
Case: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51
Outcome: cited
A decision-maker must give proper, genuine and realistic consideration to the merits of the case: Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457 ; (1987) 14 ALD 291 at 292 per Gummow J; Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 601 [62] where Spigelman CJ collected the authorities; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 367 [138] per Kirby J; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at 92-93 [212] per Madgwick J, 96 [229] per Conti J; SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 at [39] , [60] where I applied this principle. In Tickner v Chapman (1995) 57 FCR 451 at 462C-D, Black CJ said that where a decision-maker was required to consider material, the process of consideration "... involves an active intellectual process" directed at the nominated subject-matter: see too per Burchett J at 476F-477E, per Kiefel J at 495F-G and Tobacco Institute of Australia v National Health &amp; Medical Research Council (1996) 71 FCR 265 at 277G per Finn J; Australian Retailers Association 148 FCR at 577 [526] per Weinberg J.