mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Mirror Newspapers Limited v Harrison [1982] HCA 50 ; (1982) 149 CLR 293
Outcome: applied
In the law of defamation, as Mason J pointed out in Mirror Newspapers Limited v Harrison [1982] HCA 50 ; (1982) 149 CLR 293 at 301, a distinction needs to be drawn between the reader's understanding of what a publisher is saying and judgments or conclusions which the reader may reach as a result of his or her own beliefs and prejudices. It is, his Honour said: '... one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published material is to be determined by the first, not by the second, proposition. Its importance for present purposes is that it focuses attention on what is conveyed by the published material in the mind of the ordinary reasonable reader.' 78 Here, the ordinary reasonable person in the position of the Tribunal would understand an initial claim, in the ordinary course of things, drawing on its knowledge and experience of human affairs, to be a complete statement of all material circumstances which the applicant had at that time to justify to the Minister the grant of a protection visa. And because of that, what is sought to be relied on as an 'omission' is properly capable of being characterised as information in the initial claim, being a representation of the, in effect, completeness and fullness of the material put forward. 79 Of course there may be cases, because of what is said or not said, where a different conclusion will be appropriate. For these reasons, I am of opinion that the reasoning of Allsop J in the authorities above is the appropriate way to analyse the Tribunal's use of the initial claim of the appellant in this matter. The earlier account given by the appellant was information which the Tribunal had before it, defective or not. The Tribunal regarded, as part of the reason for its rejection of the appellant's case, the totality of the appellant's explanation of his sur place application.
Case: Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451
Outcome: cited
In the law of contract, the Court looks not at the subjective intentions of the parties to the contract as to what either intended to be conveyed by the words chosen but adopts the position that the construction of a contract is an objective process ascertained by what a reasonable person in the position of the parties, that is to say with knowledge of the objective matrix of facts with reference to which the parties contracted, would be taken to have intended by the actual words used ( Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 at 462 [22] ; Toll FGCT Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at 186-187 [60] ).
Case: RAIA Insurance Brokers Ltd v FAI General Insurance Co Ltd (1993) 41 FCR 164
Outcome: discussed
So, in RAIA Insurance Brokers Ltd v FAI General Insurance Co Ltd (1993) 41 FCR 164 at 166, 172 a Full Court of this Court held that where an expert insurance broker published its opinion on a rival insurer's policy wording there was '... implicit in the expression of opinion a statement of fact, namely [the broker] knew of facts which justified the opinion' (41 FCR at 172 per Beaumont and Spender JJ). The Full Court there had followed a line of English authority starting with Smith v Land and House Property Corporation (1884) 28 Ch D 7 at 15 where Bowen LJ had said: 'It is material to observe that it is often fallaciously assumed that a statement of opinion cannot involve the statement of a fact. In a case where the facts are equally well known to both parties, what one of them says to the other is frequently nothing but an expression of opinion. The statement of such opinion is in a sense a statement of a fact, about the condition of the man's own mind, but only of an irrelevant fact, for it is of no consequence what the opinion is. But if the facts are not equally known to both sides, then a statement of opinion by the one who knows the facts best involves very often a statement of a material fact, for he impliedly states that he knows facts which justify his opinion .' (emphasis added)
Case: Re Macks; Ex parte Saint [2000] HCA 62 ; (2000) 204 CLR 158
Outcome: followed
For these reasons, I am of opinion that the appeal must be allowed. The Tribunal did not exercise its jurisdiction in accordance with the Act. The appellant is entitled to orders quashing the decision and remitting the matter to the Tribunal (see Re Macks; Ex parte Saint [2000] HCA 62 ; (2000) 204 CLR 158 at p 287; Attorney-General (Q) v Australian Industrial Relations Commission [2002] HCA 42 ; (2002) 213 CLR 485 at 503[43]). I certify that the preceding eighty seven (87) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 21 April 2006 Applicant: In person Solicitor for the Respondents: Clayton Utz Date of Hearing: 14 February 2006 Date final written submissions were received: 14 March 2006 Date of Judgment: 21 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/435.html
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407
Outcome: applied
In contrast, in other areas of law, regard is had to the subjective effect on a person of representations or conduct. In Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45 at 83-89 [98] - [110] the High Court discussed circumstances in respect of claims of misleading and deceptive conduct in contravention of s 52 of the Trade Practices Act 1974 (Cth) and the tort of passing off which were relevant to establishing either cause of action. The Court contrasted situations in which such claims were made, on the one hand, to identified individuals, with those on the other hand, to the public at large or to a section thereof (202 CLR at 84-85 [100]-[101]). In the former case a nexus may be easier to find because of the availability of evidence of the context in which the representation or conduct occurred. Where the case involves the public generally or a section of it, the court, inter alia, has regard to the effect of the conduct on reasonable members of the class (202 CLR at 85 [103], 86-87 [105]). That introduces an objective standard by reference to which conduct can be assessed. 80 Section 430 of the Act requires the Tribunal, in making a decision on a review, to set out 'the reasons for the decision' (see esp s. 430(1)(b)). As McHugh, Gummow and Hayne JJ said in Minister for Immigration v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 346 [69] that provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. McHugh J said in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at 422-423 [65] : '... the obligation to set out "the reasons for the decision" (s 430(1)(b)) will often require the tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the tribunal must set that out as one of its reasons. But that said, it is not necessary for the tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal.'
Case: Rex v Kylsant (Lord) [1932] 1 KB 442
Outcome: referred to
In Webb v Block [1928] HCA 47 ; (1928) 41 CLR 331 at 367 Isaacs J used that passage to emphasise that omission of material matter can change the sense in which what is communicated is understood by the ordinary reasonable publishee, adding that such an omission could make what was published 'lie like truth' as in Lord Blackburn's famous speech in Smith v Chadwick (1884) 9 App Cas 187 at 201. And in a passage applied by the English Court of Criminal Appeal in Rex v Kylsant (Lord) [1932] 1 KB 442 at 447-448, Lord Halsbury said in Aaron's Reefs Limited v Twiss [1896] AC 273 at 281: 'It remains only to consider the final question, namely, whether or not there was evidence for the jury which would justify them in finding that this was a fraudulent prospectus that these statements were fraudulent and false. Now, in dealing with that question, again I say I protest against being called on only to look at some specific allegation in it; I think one is entitled to look at the whole document and see what it means taken together . Now, if you look at the whole document taken together, knowing what we now know and what the jury had before them, I suppose nobody can doubt that this was a fraudulent conspiracy .... It is said there is no specific allegation of fact which is proved to be false. Again I protest, as I have said, against that being the true test. I should say, taking the whole thing together, was there false representation? I do not care by what means it is conveyed by what trick or device or ambiguous language: all those are expedients by which fraudulent people seem to think they can escape from the real substance of the transaction. If by a number of statements you intentionally give a false impression and induce a person to act upon it, it is not the less false although if one takes each statement by itself there may be a difficulty in shewing that any specific statement is untrue.' (emphasis added)
Case: Smith v Land and House Property Corporation (1884) 28 Ch D 7
Outcome: applied
So, in RAIA Insurance Brokers Ltd v FAI General Insurance Co Ltd (1993) 41 FCR 164 at 166, 172 a Full Court of this Court held that where an expert insurance broker published its opinion on a rival insurer's policy wording there was '... implicit in the expression of opinion a statement of fact, namely [the broker] knew of facts which justified the opinion' (41 FCR at 172 per Beaumont and Spender JJ). The Full Court there had followed a line of English authority starting with Smith v Land and House Property Corporation (1884) 28 Ch D 7 at 15 where Bowen LJ had said: 'It is material to observe that it is often fallaciously assumed that a statement of opinion cannot involve the statement of a fact. In a case where the facts are equally well known to both parties, what one of them says to the other is frequently nothing but an expression of opinion. The statement of such opinion is in a sense a statement of a fact, about the condition of the man's own mind, but only of an irrelevant fact, for it is of no consequence what the opinion is. But if the facts are not equally known to both sides, then a statement of opinion by the one who knows the facts best involves very often a statement of a material fact, for he impliedly states that he knows facts which justify his opinion .' (emphasis added)
Case: SZBUS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1233
Outcome: discussed
In SZBUS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1233 at [18] , [20] Allsop J held that a conclusion by the Tribunal of fabrication of claims, based in part on information outside the exception in s 424A(3)(b) provided by an applicant for review with his initial claim for a visa, was important and formed part of the reason for the decision. He explained why this vitiated the decision saying ([2006] FCA 1233 [20]): 'However, a question arises whether primary relief should be granted. In particular, whether in the light of the previous unwillingness of the appellant to attend the Tribunal hearing in the face of a letter making plain that unless he came, in all likelihood, he would not be granted a visa, any different result would have obtained had a somewhat different letter been sent, identifying with a little more specificity (reflecting the findings in the above mentioned paragraph) why the appellant would not be granted a visa unless he gave further assistance.' 64 I agree with that analysis. Here, the Tribunal came to a conclusion that the appellant had fabricated and elaborated claims. That was based on all the information which he had provided. It included what had been given to the delegate at an earlier stage and was not limited solely to that given for the purpose of the application for review. Contrary to the obligation under s 424A(1) the appellant was not given an opportunity to comment on information in, or the adequacy or completeness of, what he had put forward on the earlier occasion or its impact on the present application.
Case: SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034
Outcome: distinguished
In SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 Gyles J held that there was a clear republication of original claims made in a declaration by the applicant for review as part of his application for review. That declaration critically examined the reasons given by the delegate for refusing his application in the course of which the there applicant for review referred several times to the claims that he had originally made. Gyles J held that there was a republication of the original claims made to the delegate in the application for review. The precise terms in which the republication was said to have taken place are not set out in his Honour's judgment. Each case will obviously depend on its own facts. In one sense applicants for review could be treated, on every occasion to be asking the Tribunal, because it is reviewing the original refusal, to review all that they had previously put to the delegate. But I am of opinion that that is not the proper construction of the general position having regard, to the terms of s 424A as construed by the High Court.
Case: SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200
Outcome: discussed
One of the problems created by s 424A is the dilemma, in a practical sense, which a decision maker faces in categorizing whether what is before him or her, or that to which he or she wishes to refer, constitutes 'information' which attracts an obligation to notify under that section. In SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200 at [21] , Allsop J pointed out that notwithstanding what Finn and Stone JJ had said in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 476-477 [24]: '... it is important to recognise that there is a distinction, sometimes fine, but nevertheless important, between information which may be knowledge acquired by the Tribunal and the subjective appraisal or thought processes of the Tribunal.' 66 His Honour noted ([2005] FCA 1200 at [27]) that Finn and Stone JJ had held that 'identified gaps, defects or lack of detail or specificity in evidence or conclusions arrived at by weighing up the evidence by reference to those gaps' were not information and that a failure to mention something to the Tribunal was also not information, relying on WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 ; (2002) 124 FCR 276 at 282-283 [26] - [29] . 68 Subsequently in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [224] Allsop J, with whose reasoning on this Weinberg J agreed ([2006] FCAFC 2 [155], [158]-[164]) adhered to and adopted what he had earlier said in SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200 concerning the reasoning of Finn and Stone JJ in VAF v Minister (2004) 206 ALR 471 at 477 [24 (iii)]. He said that: '... it is necessary to exercise care in applying what was said in VAF by Finn J and Stone J at [24(iii)] that the word information does not: Extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps etc.'
Case: Toll FGCT Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165
Outcome: cited
In the law of contract, the Court looks not at the subjective intentions of the parties to the contract as to what either intended to be conveyed by the words chosen but adopts the position that the construction of a contract is an objective process ascertained by what a reasonable person in the position of the parties, that is to say with knowledge of the objective matrix of facts with reference to which the parties contracted, would be taken to have intended by the actual words used ( Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 at 462 [22] ; Toll FGCT Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at 186-187 [60] ).
Case: Trustees Executors and Agency Co Ltd v Peters [1960] HCA 16 ; (1960) 102 CLR 537
Outcome: cited
When parties to a contract intend to incorporate material by reference, likewise, the Court makes an objective assessment of what was intended to be brought into the contract (e.g. China Ocean Shipping Co Ltd v PS Chellaram &amp; Co Ltd (1990) 28 NSWLR 354 at p 363B-E per Gleeson CJ, 395F per Samuels JA agreeing; Trustees Executors and Agency Co Ltd v Peters [1960] HCA 16 ; (1960) 102 CLR 537 at p 548 per Kitto J). And, when the question of a whether a term ought be implied into a contract is considered, the Courts have used the expression, in the past, whether an 'officious bystander' would have assented to the proposition that the parties intended, without expressly so stating, that the term form part of their contract: cp BP Refinery (Westernport) Pty Ltd v Shire of Hastings [1977] HCA 40 ; (1977) 180 CLR 266 at 282-284.
Case: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
Outcome: discussed
One of the problems created by s 424A is the dilemma, in a practical sense, which a decision maker faces in categorizing whether what is before him or her, or that to which he or she wishes to refer, constitutes 'information' which attracts an obligation to notify under that section. In SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200 at [21] , Allsop J pointed out that notwithstanding what Finn and Stone JJ had said in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 476-477 [24]: '... it is important to recognise that there is a distinction, sometimes fine, but nevertheless important, between information which may be knowledge acquired by the Tribunal and the subjective appraisal or thought processes of the Tribunal.' 68 Subsequently in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [224] Allsop J, with whose reasoning on this Weinberg J agreed ([2006] FCAFC 2 [155], [158]-[164]) adhered to and adopted what he had earlier said in SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200 concerning the reasoning of Finn and Stone JJ in VAF v Minister (2004) 206 ALR 471 at 477 [24 (iii)]. He said that: '... it is necessary to exercise care in applying what was said in VAF by Finn J and Stone J at [24(iii)] that the word information does not: Extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps etc.'
Case: WAGP of 2002v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 ; (2002) 124 FCR 276
Outcome: cited
His Honour noted ([2005] FCA 1200 at [27]) that Finn and Stone JJ had held that 'identified gaps, defects or lack of detail or specificity in evidence or conclusions arrived at by weighing up the evidence by reference to those gaps' were not information and that a failure to mention something to the Tribunal was also not information, relying on WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 ; (2002) 124 FCR 276 at 282-283 [26] - [29] .
Case: Webb v Bloch [1928] HCA 47 ; (1929) 41 CLR 331
Outcome: applied
In the law of torts, the law has created the 'reasonable person'. In the law of defamation, from which the notion of republication may have been sourced, the question as to whether a subsequent publication was intended by the original publisher or was a natural and probable result of providing the information in the first place is assessed objectively ( John Fairfax &amp; Sons Ltd v Cojuangco [1988] HCA 54 ; (1988) 165 CLR 346 at 350: Webb v Bloch [1928] HCA 47 ; (1928) 41 CLR 331 at 363-366 and see as to the objective nature of the act of publication E Hulton &amp; Co v Jones [1910] AC 20). 76 In Webb v Block [1928] HCA 47 ; (1928) 41 CLR 331 at 367 Isaacs J used that passage to emphasise that omission of material matter can change the sense in which what is communicated is understood by the ordinary reasonable publishee, adding that such an omission could make what was published 'lie like truth' as in Lord Blackburn's famous speech in Smith v Chadwick (1884) 9 App Cas 187 at 201. And in a passage applied by the English Court of Criminal Appeal in Rex v Kylsant (Lord) [1932] 1 KB 442 at 447-448, Lord Halsbury said in Aaron's Reefs Limited v Twiss [1896] AC 273 at 281: 'It remains only to consider the final question, namely, whether or not there was evidence for the jury which would justify them in finding that this was a fraudulent prospectus that these statements were fraudulent and false. Now, in dealing with that question, again I say I protest against being called on only to look at some specific allegation in it; I think one is entitled to look at the whole document and see what it means taken together . Now, if you look at the whole document taken together, knowing what we now know and what the jury had before them, I suppose nobody can doubt that this was a fraudulent conspiracy .... It is said there is no specific allegation of fact which is proved to be false. Again I protest, as I have said, against that being the true test. I should say, taking the whole thing together, was there false representation? I do not care by what means it is conveyed by what trick or device or ambiguous language: all those are expedients by which fraudulent people seem to think they can escape from the real substance of the transaction. If by a number of statements you intentionally give a false impression and induce a person to act upon it, it is not the less false although if one takes each statement by itself there may be a difficulty in shewing that any specific statement is untrue.' (emphasis added)