mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: followed
Section 269TEA(5) of the Act is in similar terms to s 430(1)(c) and (d) of the Migration Act 1958 (Cth). Thus, the CEO is only required to set out in the report to the Minister the findings which he did make; he is not required to set out findings additional to those which he actually made. What is required is the material findings of fact which the CEO actually made and upon which he based his recommendation; see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at [67] - [68] . 166 The CEO is required by s 269TEA(5)(b) of the Act to provide particulars of the evidence relied on in support of the findings. But it is not necessary for him to refer to every piece of evidence put before him; the Court will infer that matters not mentioned were not considered to be material; see Yusuf at [69]; see also Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46]. 169 However, Schaefer's approach to construction is contrary to that which is laid down by the High Court in Yusuf . The Report contains the findings the CEO did make on these facts. He is not required to go further. He is required only to make recommendations and set out his material findings on which the recommendations were based. He is not required to provide the Minister with competing interpretations of the evidence so as to allow the Minister to make the ultimate decision. 170 That is not the scheme of Part XVB. What is required is the CEO's recommendation and findings. The Minister is not bound to accept the recommendation. He or she is required to reach the state of satisfaction as to whether dumping caused material injury as provided in s 269TG. 171 The effect of this ground, as argued by Schaefer, is that the finding of causation cannot be supported because the CEO did not disclose material facts known to him as to the reasons why the tenders were successful. Alternatively, it was submitted that, in light of the primary materials, the CEO's findings as to the importance of price were stated in a misleading way.
Case: Minister for Small Business, Construction and Customs v La Doria di Diodata Ferraiolli SPA (1994) 33 ALD 35
Outcome: cited
This test was applied by the Full Court in Fraser and by other Full Courts in Enichem Anic Srl v Anti-Dumping Authority (1992) 39 FCR 458 at 470 and Minister for Small Business, Construction and Customs v La Doria di Diodata Ferraiolli SPA (1994) 33 ALD 35 at 48. It has also been applied by single judges; see Mullins Wheels Pty Ltd v Minister for Customs and Consumer Affairs (1999) 166 ALR 449 at [18], [21]; N.V. Beaulieu Real v Minister for Justice and Customs ("N.V. Beaulieu Real") [2002] FCA 467 at [50] ; affirmed on appeal [2002] FCAFC 339.
Case: Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273
Outcome: cited
Indeed, as the Full Court said in Luu v Renevier at 50, the underlying rationale for the duty to investigate is the ground of unreasonableness; see also Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273 at 290.
Case: Mullins Wheels Pty Ltd v Minister for Customs and Consumer Affairs (1999) 166 ALR 449
Outcome: cited
This test was applied by the Full Court in Fraser and by other Full Courts in Enichem Anic Srl v Anti-Dumping Authority (1992) 39 FCR 458 at 470 and Minister for Small Business, Construction and Customs v La Doria di Diodata Ferraiolli SPA (1994) 33 ALD 35 at 48. It has also been applied by single judges; see Mullins Wheels Pty Ltd v Minister for Customs and Consumer Affairs (1999) 166 ALR 449 at [18], [21]; N.V. Beaulieu Real v Minister for Justice and Customs ("N.V. Beaulieu Real") [2002] FCA 467 at [50] ; affirmed on appeal [2002] FCAFC 339. 149 Moreover, the authorities referred to in the previous paragraphs establish that the determination is one of fact and degree; see eg Mullins at [20], Swan at 145.
Case: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
Outcome: cited
An alternative way in which the case was apparently put was that the finding of causation was so much against the weight of evidence as to be arbitrary, perverse or capricious; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [130]-[135]. 215 There are two separate strands to the argument. The first is that the information provided by some of the councils, eg Canterbury, pointed to price and non-price factors without differentiating between the relative importance of those factors. Thus, it was said to be irrational, perverse or unreasonable to make a finding of causation without knowing more about those factors. 216 The second strand is that for a number of the councils, most notably Eurobodalla and Coffs Coast, there was material in the site visit reports which clearly stated the contractor's view that price was not determinative. I will deal with this strand of the argument first.
Case: N.V. Beaulieu Real v Minister for Justice and Customs [2002] FCA 467
Outcome: cited
This test was applied by the Full Court in Fraser and by other Full Courts in Enichem Anic Srl v Anti-Dumping Authority (1992) 39 FCR 458 at 470 and Minister for Small Business, Construction and Customs v La Doria di Diodata Ferraiolli SPA (1994) 33 ALD 35 at 48. It has also been applied by single judges; see Mullins Wheels Pty Ltd v Minister for Customs and Consumer Affairs (1999) 166 ALR 449 at [18], [21]; N.V. Beaulieu Real v Minister for Justice and Customs ("N.V. Beaulieu Real") [2002] FCA 467 at [50] ; affirmed on appeal [2002] FCAFC 339.
Case: N.V. Beaulieu Real v Minister for Justice and Customs [2002] FCAFC 339
Outcome: cited
This test was applied by the Full Court in Fraser and by other Full Courts in Enichem Anic Srl v Anti-Dumping Authority (1992) 39 FCR 458 at 470 and Minister for Small Business, Construction and Customs v La Doria di Diodata Ferraiolli SPA (1994) 33 ALD 35 at 48. It has also been applied by single judges; see Mullins Wheels Pty Ltd v Minister for Customs and Consumer Affairs (1999) 166 ALR 449 at [18], [21]; N.V. Beaulieu Real v Minister for Justice and Customs ("N.V. Beaulieu Real") [2002] FCA 467 at [50] ; affirmed on appeal [2002] FCAFC 339.
Case: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Outcome: followed
The issues may be summarised as follows: (1) Whether, upon the proper construction and application of s 269TDAA of the Act, the SEF was required to contain a statement of all material facts known to Customs at the time of preparation. (2) Whether the CEO made an error of law, or asked himself the wrong question, by failing to consider whether the Minister ought to be satisfied of a causal link between the price of the goods and material injury to an Australian industry; see s 269 TEA(1)(d), s 269TG(1). (3) Whether the Trade Measures Report contravened s 269TEA(5) by failing to include a statement of the CEO's reasons for his recommendation that set out the material findings of fact and particulars of the evidence relied on to support the findings. (4) Whether Schaefer was deprived of the statutory opportunity to respond to the SEF by reason of the non-disclosure of material facts known to the CEO. These facts are said to be the statements by the purchasers of the MGBs of factors, other than price, which influenced their decisions. (5) Whether the CEO failed to conduct an investigation in accordance with Div 2 of Part XVB, by failing to make any further enquiry of the purchasers as to whether price was the causative factor. Schaefer relies upon the principle stated by Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 to enliven a duty to make further enquiries in the present case. (6) Whether the SEF or the Trade Measures Report was perverse or affected by Wednesbury unreasonableness in light of the factual material contained in the site visit reports. (7) In addition to (6), whether the SEF or the Trade Measures Report was affected by bias. (8) Whether the power of the Minister to make a declaration pursuant to s 269TG was vitiated by an error in the SEF placed on the public record, or an error in the Trade Measures Report provided to the Minister, or otherwise involved a denial of procedural fairness. (9) Whether, in any event, relief ought to be declined on discretionary grounds. This issue arises because Schaefer has sought merits review of the Minister's decision from the Trade Measures Review Officer in accordance with Div 9 of Part XVB. 207 The authorities confine the duty to investigate to rare and exceptional circumstances. It is limited to cases where it is obvious that material is readily available that is centrally relevant to the decision; see Prasad at 169-170; Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 558-559, 561; Luu v Renevier (1989) 91 ALR 39 at 50; Azzi v Minister for Immigration and Multicultural Affairs [2002] FCA 24 ; (2002) 120 FCR 48 at [102] - [112] . 208 Given that the CEO did investigate the central question, the duty which Schaefer seeks to impose, namely a duty to ask further questions, does not fit neatly within the formulation expressed in Prasad and the other cases.
Case: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389
Outcome: cited
The Court has a discretion to refuse relief under s 39B of the Judiciary Act if a more convenient and satisfactory remedy exists; see R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389 at 400. See also Wyeth Australia Pty Ltd v Minister for Health and Aged Care (2000) 61 ALD 372 at [47].
Case: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212
Outcome: cited
To the extent that Dr Flick's submissions rested upon the proposition that the CEO is required to expose his or her reasoning in advance of the provision of the report to the Minister under s 269TEA, this would be contrary to well-established authority; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592. See also Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212.
Case: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425
Outcome: followed
The test for reasonable apprehension of bias in curial proceedings is whether a "fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question" that is to be decided; see Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at [27] . See also Antoun v The Queen [2006] HCA 2 ; (2006) 224 ALR 51 at [51] ; Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at [6] . 258 For administrative proceedings, the test is expressed by reference to a hypothetical fair-minded lay person, properly informed of the nature of the proceeding, the matters that are in issue and the conduct which is said to give rise to the claimed apprehension of bias; se Ex parte H at [28]. 259 The substance of Schaefer's claim of bias was that the five councils gave central information to Customs "which slipped off the table" and did not find its way into the SEF or Trade Measures Report. 260 Dr Flick pointed in particular to the statements made by the contractor for Coffs that whilst price was an issue, quality was the determining factor and there was a breakdown in the relationship with the relevant Australian supplier.
Case: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Outcome: followed
In order to make out a finding of actual bias, an applicant must demonstrate that the decision-maker was guilty of pre-judgment. He or she must be committed to a conclusion, and not open to a contrary view, whatever arguments or evidence may be presented; see Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 ; (2001) 205 CLR 507 at [71] - [72] ; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [36] . 256 An applicant bears a heavy onus; it will rarely be discharged by pointing solely to the reasons of the decision-maker or adverse fact finding; see SCAA at [36]-[38]. 268 As von Doussa J said in SCAA at [38], even where it is possible to show that findings are contrary to evidence, or unreasonable, or that the reasoning process is hopelessly flawed, that, without more, is unlikely to demonstrate pre-judgment amounting to bias. Here, the most that can be said is that the findings of fact are highly contestable. 269 I dealt, under Issue 6, with the question of compliance with the EN840 standard in the Coffs contract. Customs considered and dealt with Schaefer's submission. It seems to me that the way in which it addressed that question shows that its decision was not affected by actual or apprehended bias. 270 There was nothing in the other matters recorded in Schaefer's written submissions which could make good the claim of bias. They are all complaints about fact finding.
Case: Swan Portland Cement Limited Ltd v Minister for Small Business and Customs (1991) 28 FCR 135
Outcome: followed
The test for causation of material injury was said by Lockhart J in Swan Portland Cement Ltd v Minister for Small Business and Customs (1991) 28 FCR 135 at 144 to be "essentially a practical exercise". His Honour said that its purpose is to achieve the objective of determining whether, viewed as a whole, the relevant Australian industry is suffering material injury from the dumping. 149 Moreover, the authorities referred to in the previous paragraphs establish that the determination is one of fact and degree; see eg Mullins at [20], Swan at 145. 162 These findings seem to me to reflect the practical exercise in decision making contemplated by the test stated by Lockhart J in Swan which I referred to at [147] above. Whilst different minds may have come to different views on the preliminary findings as to the relevance of non-price factors, the determination is, as I have said, one of fact for the decision-maker. In making this determination, the CEO proceeded on the basis that factors other than price were given different prominence by different councils but that tenders were to be evaluated within a narrow price band. That was a question of fact for the CEO. 163 The balance of Chapter 10 consists largely of a consideration of Schaefer's submissions, in particular customer preferences. I have set out the findings of the Report at [100] above. That passage and the conclusions which I have set out at [102] again show the necessary application of the test of causation. 164 In my opinion, this ground of review fails.
Case: Wyeth Australia Pty Ltd v Minister for Health and Aged Care (2000) 61 ALD 372
Outcome: cited
The Court has a discretion to refuse relief under s 39B of the Judiciary Act if a more convenient and satisfactory remedy exists; see R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389 at 400. See also Wyeth Australia Pty Ltd v Minister for Health and Aged Care (2000) 61 ALD 372 at [47].
Case: Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540
Outcome: distinguished
Where there is no clear evidence of offer and acceptance one must look to the conduct of the parties to determine if they have agreed to incur reciprocal promissory obligations; Toyota Motor Corporation at 178 per Tadgell J. Unlike the circumstances that confronted the Court in Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540, the present issue cannot be resolved primarily as a matter of construction of the relevant documents.
Case: Birtchnell v The Equity Trustees, Executors and Agency Company Limited [1929] HCA 24 ; (1929) 42 CLR 384
Outcome: applied
The fiduciary obligations of partners may vary with the terms of the partnership agreement but will include at least the duty to act in partnership matters in the utmost good faith and loyalty in the interests of the partnership; see generally Birtchnell v The Equity Trustees, Executors and Agency Company Limited [1929] HCA 24 ; (1929) 42 CLR 384 at 407-409 per Dixon J. It is not necessary for me to expand on this issue further as it seems to me that the relief sought is more appropriately to be found under the regimes set up by the Trade Practices Act and the Fair Trading Act . 74 Mr Lewarne claims that, at the three meetings described above (the Mosman, Rosebery and Alexandria meetings) and in the two documents that allegedly outlined the basis of his agreement with Momentum and Mr Scotts, Mr Scotts made various representations that were misleading or deceptive, or likely to mislead or deceive. Mr Lewarne makes his case against both Momentum Productions (under the Trade Practices Act ) and Mr Scotts himself (under the Fair Trading Act ), although of course to the extent that the representations were allegedly made by Momentum, Mr Lewarne's case is that Mr Scotts made the representations in his capacity as director of Momentum. Those representations are: 1. Mr Scotts and/or Momentum was the owner of the building adjoining the Hotel; 2. Mr Scotts and/or Momentum would, as one of the initial plans for the business after the assignment date, demolish part of the wall between the hotel and the adjoining building and extend the area of use under the liquor licence into the adjoining building; 3. Mr Scotts and/or Momentum had obtained approval from the South Sydney Council to install and operate poker machines in the adjoining building; 4. Mr Scotts and/or Momentum would, as one of the initial plans for the business after the assignment date, construct a new poker machine area and install and operate poker machines in the adjoining building; 5. Mr Scotts and/or Momentum would continue to operate the ten existing poker machines at the hotel and would, as one of the initial plans for the business after the assignment date, procure and operate 5 additional poker machines at the hotel; 6. Momentum would enter into a lease of the hotel premises for a term of 22 years; 7. Mr Lewarne could expect to receive in excess of $75,000 per year in profit share; 8. The sum of $300, 000 paid by Mr Lewarne would be applied toward the purchase of, or as working capital to, the business; 9. The first representation continued to remain accurate and that there was no doubt or dispute concerning the ownership of the adjoining building or about the ability of the second respondent to secure legal and beneficial title. 75 Mr Lewarne claims that the ninth representation was a representation by silence in that Momentum and/or Mr Scotts failed to disclose that the first representation was inaccurate or that there were any issues concerning the ownership of the adjoining building.
Case: Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61 ; (2001) 53 NSWLR 153
Outcome: cited
McHugh JA's approach has been approved in many cases; Pobjie Agencies Pty Ltd v Vinidex Tubemakers Pty Ltd [2000] NSWCA 105, (2000) Aust Contract R 90-112; John R Keith Ltd v Multiplex Constructions (NSW) Pty Ltd [2002] NSWSC 43 , [2002] ACL Rep 110 NSW 14; GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Limited [2003] FCA 50 ; (2003) 128 FCR 1 at 63 and Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61 ; (2001) 53 NSWLR 153. As his Honour remarked, however, it is not a licence to dispense with the well-established hallmarks of a contract. Ultimately, it is always necessary for the essential elements of a contract to be established, even if not with textbook precision.
Case: Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60 ; (2004) 218 CLR 592
Outcome: applied
Whether a representation was made, and if it was made, whether it constituted contravening conduct is to be assessed objectively looking at the conduct as a whole: Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60 ; (2004) 218 CLR 592 at 604. In a case such as this, where the relevant conduct was directed towards a particular person (namely, Mr Lewarne), the preferred approach is to analyse the conduct from this perspective, rather than from the perspective of a class of persons within which the complainant may fall. In Butcher at 604, the High Court held that this required an analysis of: 'the character of the particular conduct of the particular agent in relation to the particular purchasers, bearing in mind what matters of fact each knew about the other as a result of the nature of their dealings and the conversations between them, or which each may be taken to have known.'
Case: Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31
Outcome: applied
The potential for silence to be misleading is now well established. It is to be assessed "as a circumstance like any other"; Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 at 32 per Black CJ. The issue is whether the relevant circumstances give rise to a reasonable expectation that some fact or other would be disclosed; Kimberley NZI Finance Ltd v Torero Pty Limited (1989) ATPR (Digest) 46-054 at 53,195.
Case: Duke Group Ltd (in liq.) v Pilmer (1999) 73 SASR 64
Outcome: discussed
The importance of agency and, particularly, of a mutuality of rights and obligations in the partnership relationship was emphasised in Duke Group Ltd (in liq.) v Pilmer (1999) 73 SASR 64. Although the decision of the South Australian Supreme Court was reversed by the High Court in Pilmer v Duke Group Ltd [2001] HCA 31 ; (2001) 207 CLR 165 this aspect of the decision was unaffected. The relationship between Mr Lewarne and Mr Scotts was accepted by them as involving a mutuality of rights and obligations that was consistent with them being in partnership as that relationship is defined in the Partnership Act .
Case: Edwards v Skyways Ltd [1964] 1 WLR 349
Outcome: applied
I have no doubt that, viewed objectively, the conduct of Mr Lewarne and Mr Scotts suggests that they intended their arrangements to have legal consequences and that a contract was made at the latest when Mr Lewarne paid his $300,000 to Mr Scotts; Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8 ; (2002) 209 CLR 95 at 105-6. It is clear from Mr Dempsey's evidence that they intended to enter into an agreement that had been formally drawn by a solicitor. It may be that they envisaged that this could be done before they needed to commit to a binding arrangement and were prepared to consider the solicitor's advice as to how their relationship should be structured. It is equally clear in my view that this intention was overtaken by events. Mr Scotts' need for funds to meet the imminent settlement of the business purchase from Wellfox intervened. Although not legally sophisticated, both Mr Lewarne and Mr Scotts are experienced businessmen. The commercial nature of their activities, their conduct in advancing and receiving money and their active co-operation in the running of a business (discussed in more detail below) all point to them intending to enter into a binding contract; Edwards v Skyways Ltd [1964] 1 WLR 349 at 355; Toyota Motor Corporation Australia Ltd v Ken Morgan Motors Pty Ltd [1994] 2 VR 106 at 177.