Case: Puhlhofer v Hillingdon London Borough Council [1986] UKHL 1 ; [1986] AC 484
Outcome: considered
Further, Smith FM said, at [44]: The applicant's counsel in his written and oral submissions made unfocused complaints about the Tribunal's decision which were clearly outside the ambit of his amended application. These were, in my opinion, almost entirely attacks on the merits of the factual assessments reached by the Tribunal. However, the Tribunal was required to address impressionistic criteria which were particularly difficult to apply to the present case. In this situation a court of judicial review must bear in mind its duty "to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely" ( Puhlhofer v Hillingdon London Borough Council [1986] UKHL 1 ; [1986] AC 484 at 518, quoted in Minister for Immigration &amp; Multicultural Affairs v Eschetu [1999] HCA 21 ; (1999) 197 CLR 611 at [41] ). Counsel's arguments did not cause me to arrive at such a judgment in this case. 36 The draft Notice of Appeal contains a ground: 3. The Federal Magistrate erred by accepting MRT's "impressionistic criteria", which revealed a misconception of the law and therefore consciously or unconsciously acted perversely. 37 Whether the factual integers in Regulation 1.15A can fairly and properly be described as "impressionist criteria" is open to argument. It is arguable that the proposition, stated by the Federal Magistrate that a court of judicial review can only interfere in the facts of this case if it was obvious that the Tribunal or the delegate consciously or unconsciously was acting perversely , relying on the observation of Lord Brightman in Puhlhofer v Hillingdon London Borough Council [1986] UKHL 1 ; [1986] AC 484 at 518, is an overstatement of what Lord Brightman said. 38 The full quote indicates that the nature of the duty of a Court to respect the fact-making function to the person to whom Parliament has entrusted the decision making power of which his Lordship was speaking, is to be understood in the context of the variable circumstances of fact finding described by the opening words: Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable ... 39 In this case, the first respondent says that "the proposed notice of appeal has no merit nor is there any jurisdictional error apparent in the Tribunal's reasons for decision or legal error apparent in the reasons for judgment of the Federal Magistrate." 40 The first respondent acknowledges that the delay in filing the Notice of Appeal was occasioned by the applicant's counsel's absence from Australia and that the delay is short, and no prejudice has been occasioned by that delay. 41 The respondent submits: The sole basis for the respondent's opposition to the application is that, in the respondent's submission, the proposed appeal does not have sufficient prospects to justify the Court's discretion being exercised in the applicant's favour.