mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: National Companies and Securities Commission v Bankers Trust Australian Ltd (1989) 24 FCR 217
Outcome: referred to
National Companies and Securities Commission v Bankers Trust Australian Ltd (1989) 24 FCR 217 (' Bankers Trust ') a person who appeared before the National Companies and Securities Commission during the course of an investigation was required not to discuss the evidence given with any person other than his legal counsel. A similar direction was given to his legal counsel. Those directions were challenged on the basis (inter alia) that there was no power to make them. The Full Court of this Court held that there was power to make a non-disclosure direction, but a majority held that the particular order was beyond power because it went beyond the period in respect of which the Commission's implied power to prohibit disclosure could reasonably operate. Only the general question of power is relevant here. There were express statutory provisions to the effect that the Commission could direct that the hearing take place in private and give directions as to the persons who may be present at a private hearing. Lockhart J noted those provisions and said that the power to maintain the privacy of the evidence was a necessary element in the private hearing itself. His Honour said (at 221): 'It may appear odd that a like power was not vested in terms in the Commission when hearings commence as private hearings. In my opinion the answer is not that there is a lacuna in the legislation, but that the power of the Commission to conduct a hearing in private pursuant to s 36 and the express power conferred by s 36(5) to determine who should be present carries with it as an integral element of such a hearing the power to give directions preventing or restricting the publication of evidence given before it or of matters contained in documents lodged with it; otherwise the power to hold hearings in private would be of little value. The essence of a private hearing before the Commission is that what takes place is in private and, therefore, by definition and of necessity not open or accessible to the public.' In this case the requirement that an examination be held in private arises by implication rather than by reason of an express provision. I do not think that that is a ground upon which to distinguish what the Full Court said in Bankers Trust and I agree with what Jenkinson J said in Constantine (at 148): 'Whether the legislative requirement of examination in private be expressly given or laboriously found, the necessary implications must in my opinion be the same.'
Case: Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19 ; (1999) 198 CLR 435
Outcome: referred to
reaching that conclusion I acknowledge the force of the respondent's reasoning. In terms of avoiding prejudice to the investigation there is much to be said for a direction which would prevent Ms Boots from assisting the applicant in preparing for the examination. However, I do not think that because a direction preventing a solicitor acting or appearing for an examinee at an examination is justified by reference to the need to avoid prejudice to the investigation that that in turn means that any direction that might avoid prejudice to the investigation is within power. The question is what can be implied from the statutory provisions. In the case of inferior courts or tribunals the test for implying a power is a reasonably demanding one and a court will look carefully at the statutory provisions to discern if the particular power is legally ancillary to some other power which the inferior court or tribunal possesses, or is reasonably required for the purposes of some other such power or powers: Grassby v The Queen [1989] HCA 45 ; (1989) 168 CLR 1 per Dawson J at 16-17; Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19 ; (1999) 198 CLR 435; Medical Board of SA v N, JRP (2006) 93 SASR 546. There is no reason to think that a similar test does not apply in the case of an ABC Commissioner conducting an investigation under the Act. The power to direct that a solicitor not act for a party is a significant power and, whilst it may not be correct to say that a party has a right to be represented by a solicitor of his or her own choice, the Courts have looked carefully at the circumstances before making an order that a solicitor not act for a party: Rakusen v Ellis, Munday &amp; Clarke [1912] 1 Ch 831. Courts have made such orders either in the exercise of their inherent jurisdiction (Mr K Mason QC, 'The Inherent Jurisdiction of the Court' (1983) Australian Law Journal 449) or, put another way, their special jurisdiction over solicitors who are officers of the court ( Rakusen v Ellis, Munday &amp; Clarke (supra) per Cozens-Hardy MR at 835) or by reference to a substantive doctrine of law such as the need to protect confidential information. Clearly, the ABC Commissioner does not have such powers and I do not think that there are sufficiently strong indications in the statutory provisions to conclude that there is an implied statutory power to make a direction which goes beyond preventing a solicitor from acting or appearing for an examinee at an examination.
Case: Re Whiting [1994] 1 Qd R 561
Outcome: referred to
decisions in A, B and D and Bell were referred to with approval by the Queensland Court of Appeal in Re Whiting [1994] 1 Qd R 561. A firm of solicitors was acting for a police officer who was the subject of a complaint under the Criminal Justice Act 1989 (Qld) and for three police officers who were witnesses in the proceeding. The Chairman of the Criminal Justice Commission ruled that the same legal representative would not be authorised by the Commission to represent both the potential witnesses and the officer against whom the complaint was made. An application to the Supreme Court challenging the order was dismissed.
Case: Rakusen v Ellis, Munday &amp; Clarke [1912] 1 Ch 831
Outcome: referred to
reaching that conclusion I acknowledge the force of the respondent's reasoning. In terms of avoiding prejudice to the investigation there is much to be said for a direction which would prevent Ms Boots from assisting the applicant in preparing for the examination. However, I do not think that because a direction preventing a solicitor acting or appearing for an examinee at an examination is justified by reference to the need to avoid prejudice to the investigation that that in turn means that any direction that might avoid prejudice to the investigation is within power. The question is what can be implied from the statutory provisions. In the case of inferior courts or tribunals the test for implying a power is a reasonably demanding one and a court will look carefully at the statutory provisions to discern if the particular power is legally ancillary to some other power which the inferior court or tribunal possesses, or is reasonably required for the purposes of some other such power or powers: Grassby v The Queen [1989] HCA 45 ; (1989) 168 CLR 1 per Dawson J at 16-17; Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19 ; (1999) 198 CLR 435; Medical Board of SA v N, JRP (2006) 93 SASR 546. There is no reason to think that a similar test does not apply in the case of an ABC Commissioner conducting an investigation under the Act. The power to direct that a solicitor not act for a party is a significant power and, whilst it may not be correct to say that a party has a right to be represented by a solicitor of his or her own choice, the Courts have looked carefully at the circumstances before making an order that a solicitor not act for a party: Rakusen v Ellis, Munday &amp; Clarke [1912] 1 Ch 831. Courts have made such orders either in the exercise of their inherent jurisdiction (Mr K Mason QC, 'The Inherent Jurisdiction of the Court' (1983) Australian Law Journal 449) or, put another way, their special jurisdiction over solicitors who are officers of the court ( Rakusen v Ellis, Munday &amp; Clarke (supra) per Cozens-Hardy MR at 835) or by reference to a substantive doctrine of law such as the need to protect confidential information. Clearly, the ABC Commissioner does not have such powers and I do not think that there are sufficiently strong indications in the statutory provisions to conclude that there is an implied statutory power to make a direction which goes beyond preventing a solicitor from acting or appearing for an examinee at an examination.
Case: Stockbridge v Ogilvie (1993) 43 FCR 244
Outcome: referred to
Stockbridge v Ogilvie (1993) 43 FCR 244, French J followed Bell and in the course of his reasons said (at 254): 'Where one lawyer seeks to represent a number of examinees in the same investigation, it may be thought that there is a risk that without consciously intending any impropriety that lawyer might divulge to one examinee what has passed in the examination of another. The extension of a restriction to all members of a given firm may be controversial: see Wood v National Companies &amp; Securities Commission (1990) 2 WAR 176. However there are matters of judgment and assessment involved. It is of course, not the role of the ASC to supervise the lawyer-client relationships of those who appear before it in s 19 examinations. It is only where a conflict of interest has some actual or potential impact on the investigative process that a direction based on such a concern would be within power.' In Gangemi v Australian Securities and Investment Commission [2003] FCA 494 ; (2003) 129 FCR 284, French J considered whether the Australian Securities and Investment Commission ('the Commission') had the power to give a non-disclosure direction and to direct that solicitors who had acted for other persons the Commission might wish to examine be excluded from the applicants' examinations. He followed Bell and his own decision in Stockbridge v Ogilvie (supra) and held that the Commission had both these powers.
Case: VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350
Outcome: cited
The "no evidence" ground will not be made out if there is some basis in the evidence for the challenged factual finding. This is so even if the evidence is slight: see VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 at [18] - [19] per Gray, Moore and Weinberg JJ and WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139 at [11] - [12] per Wilcox, Marshall and Jacobson JJ. Generally speaking, as the Full Court in WAJS noted (at [12] citing Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 70 ALR 147 at 150 per Wilcox J) the "no evidence" ground has been treated as a distinct ground of invalidity in "cases in which the power to make the relevant decision depended upon the prior establishment of a particular fact, it being held in those cases that there was no evidence of that fact".
Case: WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139
Outcome: cited
The "no evidence" ground will not be made out if there is some basis in the evidence for the challenged factual finding. This is so even if the evidence is slight: see VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 at [18] - [19] per Gray, Moore and Weinberg JJ and WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139 at [11] - [12] per Wilcox, Marshall and Jacobson JJ. Generally speaking, as the Full Court in WAJS noted (at [12] citing Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 70 ALR 147 at 150 per Wilcox J) the "no evidence" ground has been treated as a distinct ground of invalidity in "cases in which the power to make the relevant decision depended upon the prior establishment of a particular fact, it being held in those cases that there was no evidence of that fact".
Case: Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 70 ALR 147
Outcome: cited
The "no evidence" ground will not be made out if there is some basis in the evidence for the challenged factual finding. This is so even if the evidence is slight: see VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 at [18] - [19] per Gray, Moore and Weinberg JJ and WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139 at [11] - [12] per Wilcox, Marshall and Jacobson JJ. Generally speaking, as the Full Court in WAJS noted (at [12] citing Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 70 ALR 147 at 150 per Wilcox J) the "no evidence" ground has been treated as a distinct ground of invalidity in "cases in which the power to make the relevant decision depended upon the prior establishment of a particular fact, it being held in those cases that there was no evidence of that fact".
Case: Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2004] FMCA 915
Outcome: cited
Ms Eastman on behalf of the applicant submitted , inter alia , that: a. the majority of the applicant's constituents are people with disabilities who are resident in the Maryborough and Hervey Bay areas of Queensland, and who have the requisite interest associated with the actions of the respondent in the provision of goods and services within the Hervey Bay area b. the applicant is an aggrieved person within the meaning of s 46P(2) HREOC Act c. HREOC's acceptance of the complaint would indicate that HREOC had accepted that the applicant was a person who could make a complaint for the purpose of s 46P(2) HREOC Act, and the respondent did not challenge that decision by way of judicial review under the ADJR Act d. once a decision was made by the President of HREOC to terminate the applicant's complaint pursuant to s 46PH(1) HREOC Act the applicant became an "affected person" as defined in s 3 HREOC Act. There is no requirement for the purpose of making an application to the Court that the applicant re-establish that it is an aggrieved person after the complaint was accepted by the Commission and investigated by the President. The applicant cites two decisions of the Federal Magistrates Court, Stokes v Royal Flying Doctor Service [2003] FMCA 164 and Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2004] FMCA 915 , in support of this proposition. "Person aggrieved" - relevant principles
Case: Allan v Development Allowance Authority (1998) 80 FCR 583
Outcome: cited
Defining private rights for this purpose is a distinct challenge (note Heydon JD "Injunctions and Declarations" in Stein LA (ed) Locus Standi (Law Book Company, 1979) at 38-39). Traditionally they have included proprietary and financial interests (Davies J in Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 at 259, Nicholson J in Allan v Development Allowance Authority (1998) 80 FCR 583 at 598). The distinction between rights which are "private rights" enabling commencement of proceedings by way, for example, of declaratory and injunctive relief, and "public rights" the enforcement of which lay at the feet of the Attorney-General, has however blurred over time to permit individuals to bring proceedings where the individual suffers special damage peculiar to himself or herself from the interference with the public right: Boyce [1903] 1 Ch at 114. Although this principle has received recognition in Australian law note for example comments of Gavan Duffy CJ, Starke and Evatt JJ in Anderson v Commonwealth of Australia [1932] HCA 2 ; (1932) 47 CLR 50 at 52; Mason J in Robinson v Western Australian Museum (1977) 138 CLR 238 at 327; Australian Conservation Foundation 146 CLR per Gibbs J at 526-527, Stephen J at 537-538 and Mason J at 547; Onus v Alcoa of Australia Ltd [1981] HCA 50 ; (1981) 149 CLR 27 per Gibbs CJ at 35-36, Davis [1986] HCA 66 ; (1986) 68 ALR 18; Shop Distributive and Allied Employees Association v Minister for Industrial Affairs of the State of South Australia [1995] HCA 11 ; (1995) 183 CLR 552 at 558; Allan v Development Allowance Authority 80 FCR per Wilcox J at 586-87, Nicholson J at 598 giving effect to the principle raises difficulties in itself. (A useful summary of cases, and difficulties of application of relevant principles, as existed at the time can be found in Heydon in Stein (1979) at 38-40, 45-54.)
Case: Allan v Transurban City Link Ltd [2001] HCA 58 ; (2001) 208 CLR 167
Outcome: cited
Whether a statute confers upon individuals personal rights and standing to enforce those rights are matters to be determined on the construction of the statute, by reference to the subject, scope and purpose of that statute: Allan v Transurban City Link Ltd [2001] HCA 58 ; (2001) 208 CLR 167 at 174; cf McInerney J in Grand Central Car Park [1969] VR at 74, Kaye and Marks JJ in Thorne v Doug Wade Consultants Pty Ltd [1985] VR 433 at 486 and Atkin LJ in Phillips v Britannia Hygienic Laundry Co Ltd [1923] 2 KB 832 at 841. This case 33 Both the applicant and the Commissioner have submitted that in this case the issue of standing is to be determined on the proper construction of the HREOC Act and the DD Act , and not by reference to principles of general law. In my view this is correct. Findings supporting this submission were made by the Full Court in Stephenson v Human Rights and Equal Opportunity Commission 68 FCR at 296 in relation to provisions of the HREOC Act and the Sex Discrimination Act 1985 (Cth) Further, I note observations of the High Court in Allan v Transurban City Link Ltd 208 CLR at 174 that: A particular statute may establish a regime which specifically provides for its own measure of judicial review on the application of persons meeting criteria specified in that statute.
Case: Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250
Outcome: cited
Defining private rights for this purpose is a distinct challenge (note Heydon JD "Injunctions and Declarations" in Stein LA (ed) Locus Standi (Law Book Company, 1979) at 38-39). Traditionally they have included proprietary and financial interests (Davies J in Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 at 259, Nicholson J in Allan v Development Allowance Authority (1998) 80 FCR 583 at 598). The distinction between rights which are "private rights" enabling commencement of proceedings by way, for example, of declaratory and injunctive relief, and "public rights" the enforcement of which lay at the feet of the Attorney-General, has however blurred over time to permit individuals to bring proceedings where the individual suffers special damage peculiar to himself or herself from the interference with the public right: Boyce [1903] 1 Ch at 114. Although this principle has received recognition in Australian law note for example comments of Gavan Duffy CJ, Starke and Evatt JJ in Anderson v Commonwealth of Australia [1932] HCA 2 ; (1932) 47 CLR 50 at 52; Mason J in Robinson v Western Australian Museum (1977) 138 CLR 238 at 327; Australian Conservation Foundation 146 CLR per Gibbs J at 526-527, Stephen J at 537-538 and Mason J at 547; Onus v Alcoa of Australia Ltd [1981] HCA 50 ; (1981) 149 CLR 27 per Gibbs CJ at 35-36, Davis [1986] HCA 66 ; (1986) 68 ALR 18; Shop Distributive and Allied Employees Association v Minister for Industrial Affairs of the State of South Australia [1995] HCA 11 ; (1995) 183 CLR 552 at 558; Allan v Development Allowance Authority 80 FCR per Wilcox J at 586-87, Nicholson J at 598 giving effect to the principle raises difficulties in itself. (A useful summary of cases, and difficulties of application of relevant principles, as existed at the time can be found in Heydon in Stein (1979) at 38-40, 45-54.)
Case: Anderson v Commonwealth of Australia [1932] HCA 2 ; (1932) 47 CLR 50
Outcome: cited
Defining private rights for this purpose is a distinct challenge (note Heydon JD "Injunctions and Declarations" in Stein LA (ed) Locus Standi (Law Book Company, 1979) at 38-39). Traditionally they have included proprietary and financial interests (Davies J in Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 at 259, Nicholson J in Allan v Development Allowance Authority (1998) 80 FCR 583 at 598). The distinction between rights which are "private rights" enabling commencement of proceedings by way, for example, of declaratory and injunctive relief, and "public rights" the enforcement of which lay at the feet of the Attorney-General, has however blurred over time to permit individuals to bring proceedings where the individual suffers special damage peculiar to himself or herself from the interference with the public right: Boyce [1903] 1 Ch at 114. Although this principle has received recognition in Australian law note for example comments of Gavan Duffy CJ, Starke and Evatt JJ in Anderson v Commonwealth of Australia [1932] HCA 2 ; (1932) 47 CLR 50 at 52; Mason J in Robinson v Western Australian Museum (1977) 138 CLR 238 at 327; Australian Conservation Foundation 146 CLR per Gibbs J at 526-527, Stephen J at 537-538 and Mason J at 547; Onus v Alcoa of Australia Ltd [1981] HCA 50 ; (1981) 149 CLR 27 per Gibbs CJ at 35-36, Davis [1986] HCA 66 ; (1986) 68 ALR 18; Shop Distributive and Allied Employees Association v Minister for Industrial Affairs of the State of South Australia [1995] HCA 11 ; (1995) 183 CLR 552 at 558; Allan v Development Allowance Authority 80 FCR per Wilcox J at 586-87, Nicholson J at 598 giving effect to the principle raises difficulties in itself. (A useful summary of cases, and difficulties of application of relevant principles, as existed at the time can be found in Heydon in Stein (1979) at 38-40, 45-54.)
Case: Attorney-General (Gambia) v N'Jie [1961] AC 617
Outcome: cited
Third, in order for a person to be "aggrieved" the test is objective, not subjective. A person does not qualify merely because he or she feels aggrieved by the conduct. He or she, in the judgment of the Court, must, in truth, be aggrieved by that conduct ( Cameron v Human Rights and Equal Opportunity Commission 46 FCR at 515) and not merely have an intellectual or emotional concern in the subject matter of the proceedings ( Australian Conservation Foundation 146 CLR at 547-548). The words do not include "a mere busybody who is interfering in things which do not concern him: but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests": Attorney-General (Gambia) v N'Jie [1961] AC 617 at 634, Gibbs CJ in Koowarta v Bjelke-Petersen [1982] HCA 27 ; (1982) 153 CLR 168 at 185. It is not sufficient that a person voices a particular concern and regards the actions of another as injurious to the object of that concern (Stephen J in Australian Conservation Foundation 146 CLR at 539, Gibbs CJ in Onus v Alcoa of Australia 149 CLR at 37). 44 Fifth, traditionally the term "person aggrieved" should not be interpreted narrowly: N'Jie [1961] AC at 634 , Koowarta 153 CLR at 185, Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421 at 437; Ogle v Strickland (1987) 13 FCR 306 (especially Fisher J at 307-308 and Lockhart J at 314-315). Further, as Gibbs CJ said in Onus v Alcoa of Australia Ltd 149 CLR at 36 in relation to whether a person has a "special interest" sufficient to sustain litigation, The rule is obviously a flexible one since, as was pointed out in [ Australian Conservation Foundation ], the question what is a sufficient interest will vary according to the nature of the subject matter of the litigation.