mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12
Outcome: cited
Where a statute requires the decision-maker to discharge particular duties, "irrationality of the kind described by Deane J in ( Bond ) may involve non-compliance with the duty" ( S20/2002 per Gleeson CJ at [9]). In the context of the particular statutory framework relating to protection visas under the Act and the role and duty of the Tribunal, Gummow and Hayne JJ with whom Gleeson CJ agreed, in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 observed at [38] that although the question of whether protection obligations relevantly arose included a consideration of factual matters, the critical question is whether the determination [by the Tribunal] was irrational, illogical and not based on findings or inferences of fact supported by logical grounds ... inadequacy of the material before the decision-maker concerning the attainment of that satisfaction is insufficient in itself to establish jurisdiction error. [my emphasis]
Case: Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1 ; (1999) 84 FCR 411
Outcome: cited
In Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1 ; (1999) 84 FCR 411 , Black CJ, von Doussa and Carr JJ at [25] also observed that want of logic in drawing an inference will not of itself constitute an error of law although want of logic "may sound a warning note to put one on inquiry whether there was indeed any basis for the inference drawn". See also NAMM of 2002 v MIMIA [2003] FCAFC 32 per French, Lindgren and Finkelstein JJ; MIMIA v W306/01A [2003] FCAFC 208 per French, Hill and Marshall JJ; NACB v MIMIA [2003] FCAFC 235 per Tamberlin, Emmett and Weinberg JJ; W404/01A of 2002 v MIMIA [2003] FCAFC 255 per French, Lee and Carr JJ; NATC v MIMIA [2004] FCAFC 52 per Heerey, Sundberg and Crennan JJ; VWST v MIMIA [2004] FCAFC 286 per Kiefel, Marshall and Downes JJ, applying these principles.
Case: Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 ; (2001) 65 ALD 141
Outcome: cited
As to inferences, Sundberg, Emmett and Finkelstein JJ in Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 ; 65 ALD 141 said this: [34] The question whether there is any evidence of a particular fact is a question of law. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law. That is because, before the inference is drawn, there is a preliminary question as to whether the evidence reasonably admits a difference conclusion. Accordingly, in the context of judicial review, the making of findings and the drawing of inferences in the absence of evidence is an error of law. On the other hand, there is no error of law simply in making a wrong finding of fact. Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, that would not amount to an error of law. A party does not establish an error of law by showing that the decision-maker inferred the existence of a particular fact by a faulty process, for example, by engaging in an illogical course of reasoning. Thus, at common law, want of logic is not synonymous with error of law. So long as the particular inference is reasonably open, even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.
Case: A1 v National Crime Authority (1996) 67 FCR 464
Outcome: discussed
an analogous context, Merkel J, in A1 v National Crime Authority (1996) 67 FCR 464 , referred to the purpose behind the requirement in s 28(2) of the National Crime Authority Act 1984 (Cth) that a notice of reference accompany a summons. Merkel J said (at 480): "In order to ascertain how that requirement may work in practice it is useful to consider the requirement in s 28(2) that the notice of reference accompany a summons to attend a s 25 hearing. The purpose of the requirement is to enable a witness summoned to ascertain the existence, source and extent of the authority and power of the NCA to require his or her (a) attendance at the hearing; (b) answers under compulsion at the hearing to questions considered by the NCA to be relevant to the special investigation. A failure to attend or to answer a question without "reasonable excuse" may result in severe penalties being imposed. An objection, if upheld, that the matter being enquired into by a line of questioning is not capable of being considered to be relevant would constitute a reasonable excuse: see for example Ganin v NSW Crime Commission (1993) 32 NSWLR 423 at 436 per Kirby P. In my view the notice of reference must enable the NCA and the witness to ascertain, albeit in a general way, the limits of the authority of the NCA to conduct the investigation and also to determine, or at least form a view as to, whether the matters being inquired into at the hearing are relevant or capable of being considered to be relevant to the investigation." The respondent's answer to this submission is that, for the purposes of s 28(2) of the ACC Act, the specification of the class or classes of persons to participate in the investigation is not an essential part of the determination. Section 28(2) refers to the determination that, relevantly, "the investigation into matters relating to federally relevant criminal activity is a special investigation". I think the respondent's submission is correct. The essential matters are the determination that the investigation is a special investigation and the matters set out in s 7C(4) (see [30] above). Those matters were in the determination which accompanied the summons and they were unaffected by the 2003 variation. The applicant was given notice of those matters and there is no evidence that he was misled by that part of the 2003 authorisation or determination which addressed the class or classes of persons who were to participate in the special investigation. I reject the first ground of challenge to the summons.
Case: Attorney General of New South Wales v World Best Holdings Ltd [2005] NSWCA 261 ; (2005) 63 NSWLR 557
Outcome: discussed
the applicant emphasised the fact that it was open to the Parliament to validate the examination and that its failure to expressly do so was significant. Reference was made to Attorney General of New South Wales v World Best Holdings Ltd [2005] NSWCA 261 ; (2005) 63 NSWLR 557 , a case in which not only the constitution of the Tribunal was validated, but also its acts or omissions. That was, submits the applicant, to be contrasted with the fact that, in this case, the Parliament had only validated the summons. The effect of the construction of the amendments in 2007 advanced by the applicant would be that all existing summons are validated, but no examinations which had been held are validated. The practical effect of the amendments in 2007 would, on this argument, be very narrow. As to summonses previously issued, only those where the examination had not yet been held would, in a practical sense, be affected. The validation provision in the 2007 Amendment Act must be construed according to its terms. Even if it is appropriate to apply the approach to construction referred to by the High Court in Coco to a case where the examination has taken place and the question is whether the Parliament has "validated" not only the summons but also the examination, I think Parliament has expressed its intention in clear words in this case. Not only is the summons valid, but it "is taken always to have been as valid" as if the invalidating event had not occurred. To my mind, these words remove any suggestion that the examination which followed the issue of the summons remained unlawful. The other point to be made about the applicant's submissions is that he seeks to put more weight on the decision in Attorney-General for New South Wales v World Best Holdings Ltd [2005] NSWCA 261 ; (2005) 63 NSWLR 557 than it can reasonably bear. In my opinion, that case is no more than an example of how Parliament chose to validate acts in the particular circumstances of the case.
Case: Australian Crime Commission v Magistrates' Court of Victoria [2007] VSC 297 ; (2007) 173 A Crim R 572
Outcome: discussed
for the applicant relied on the decision of Smith J in Australian Crime Commission v Magistrates' Court of Victoria [2007] VSC 297 ; (2007) 173 A Crim R 572 in support of the proposition that a failure to record in writing the reasons for the issue of the summons before the issue of the summons rendered the summons and any examination conducted pursuant to it invalid. In that case, the proposition advanced by the applicant in this case was conceded by the Australian Crime Commission, although Smith J said that the concession was one which was properly made (at 578 [9]). The validity of the proposition depends on whether the temporal aspect of the first sentence in subs (1A) of s 28 also applies to the second sentence.
Case: Barnes v Boulton [2004] FCA 1219 ; (2004) 139 FCR 356
Outcome: referred to
seems to me that there are arguments on both sides. In support of the applicant's submission, it can be said that the examiner must reach a state of satisfaction before issuing the summons and there is no reason to think that he or she could or should not record in writing his or her reasons at the same time. In support of the respondent's submission, it can be said that there is no obligation on the examiner to give reasons to the person summoned and that, as the record in writing referred to in s 28(1A) performs the function identified by Finn J in Barnes v Boulton [2004] FCA 1219 ; (2004) 139 FCR 356 at 363-364 [28] - [29] , there is no reason to require the record to be made before the summons is issued. (See also my discussion in AA v Board of the Australian Crime Commission [2009] FCA 642 at [26] - [30] ).
Case: Burchell v Thompson [1920] 2 KB 80
Outcome: discussed
statutory context will determine whether a requirement that a copy of a document be served or provided means an actual or facsimile copy or a copy which contains the contents of the document in question. In Burchell v Thompson [1920] 2 KB 80 , Lush J said (at 87): "It is quite possible in a case of this kind to find whether or not a copy of the original document is a true copy. The criterion, as laid down by the authorities, is to consider whether or not the copy differs from the original to such an extent that it would mislead any person of ordinary intelligence as to the effect of the original." Sankey J said (at 90): "Counsel for the respondent has endeavoured to show that some persons might be misled by the omission in the copy now in question, but he has failed to convince me that that would be at all likely. Kay J continued: 'Then is there any untruth in this copy&#8212;untruth, I mean, upon an intelligent understanding of the Bills of Sale Act? In my opinion there is not. A true copy of a thing means a copy which is true in all essential particulars; the mere fact that a copy contains a blank which is immaterial, and cannot mislead anyone as to the effect of the instrument, does not make the copy an untrue copy within the meaning of the Act.'" [ Sharp v McHenry [1887] 38 Ch D 427 at 448 per Kay J]
Case: Button v Evans (1984) 3 NSWLR 191
Outcome: discussed
Button v Evans (1984) 3 NSWLR 191 , Carruthers J said (at 198-199): "I am mindful of the fact that in Hanfstaengl v American Tobacco Co [1895] 1 QB 347 at 355, Rigby LJ said of the word 'produced' that it is 'a word that has not got an exact legal meaning, but requires an interpretation to be put upon it in the statute in which it occurs'. A later case, Ex parte Wickens [1898] 1 QB 543 , suggests that 'to produce' a thing to a person means to show it to him personally, but does not involve the idea that the possession of it has to be parted with. Thus the Court of Appeal held that for the holder of a bill of sale to ask the grantor to send him the last receipt for rent, is not to ask the grantor to 'produce' it to him within the Bills of Sales Act 1882 (Imp): s 7(4). A similar view was taken by Hardie J in Collier Garland Properties Pty Ltd v O'Hair [1963] SR (NSW) 500 ; 80 WN 768; [1964] NSWR 775 , when dealing with the phrase "the production of all books and documents in custody of ... &#8212; that officer or agent" in the Companies Act 1961, s 171(3). The Court of Criminal Appeal gave consideration to the construction of s 234(e) of the Act in R v Amenores [1980] 2 NSWLR 34 , a case to which, I regret to say, neither party referred me during the course of argument. The critical significance of that case is that in the leading judgment, Street CJ said (at 37): '... What is contemplated by s 234(e) is, in my view, no more than the ordinary grammatical meaning of "produce".' Glass JA and Cross J concurred in the judgment of the Chief Justice. What then is the ordinary grammatical meaning of the transitive verb, to produce? The Oxford Dictionary defines it thus: 'To bring forward, bring forth or out; to bring into view, to present to view or notice; to offer for inspection or consideration, exhibit. Often used of bringing forward witnesses, as well as evidence, or vouchers, in a court of law.' It is to be noted that the verb "produce" is used in juxtaposition to the verb 'deliver' in s 234(e). To deliver a document to a Customs officer necessarily involves a transfer of possession, but it does not necessarily involve a transfer by hand. A document may be delivered by a person to a Customs officer through the post or by courier, to use two common examples. To 'produce' a document to a Customs officer on the other hand involves, to my mind, the concept of a person presenting a document to a Customs officer, whilst they are in each others' presence. The presentation may or may not involve as an additional element transfer of the possession of the document to the Customs officer." The statutory context in Button v Evans was s 234(e) of the Customs Act 1901 (Cth), which was to the effect that no person shall make in any declaration or document produced to any officer any statement which is untrue in any particular or produce or deliver to any officer any declaration or document containing any such statement.
Case: CC Pty Ltd v Australian Crime Commission (No 2) [2007] FCA 16 ; (2007) 66 ATR 39
Outcome: discussed
applicant referred to CC Pty Ltd v Australian Crime Commission (No 2) [2007] FCA 16 ; (2007) 66 ATR 39 in which Mansfield J, in referring to the 2003 authorisation and determination, said (at 46 [36]): "The determination, as it stood at the time of the passing of the resolution set out at [5] above, was not an ideal document. It did not record the date and time at which it was made and it had the distinct appearance of a draft." Section 28(2) is an important section in the ACC Act. A person facing an examination is given only limited information about the proposed examination and the questions he or she is likely to be asked at an examination. The principal provision in this regard is s 28(3), but even that provision is subject to the two qualifications referred to in the subsection. To understand the information which will be provided to a proposed examinee by virtue of the obligation in s 28(2), it is necessary to refer to s 7C(3) and (4) of the ACC Act. Those subsections are in the following terms: " 7C Functions of the Board ... Special investigation (3) The Board may determine, in writing, that an investigation into matters relating to federally relevant criminal activity is a special investigation. Before doing so, it must consider whether ordinary police methods of investigation into the matters are likely to be effective. Note 1: See also subsection 7G(4) for the voting rule that applies in relation to such a determination. Note 2: See also Division 2 for the examination powers available if there is a special investigation. Further details (4) A determination under subsection (2) or (3) must: (a) describe the general nature of the circumstances or allegations constituting the federally relevant criminal activity; and (b) state that the serious and organised crime is, or the serious and organised crimes are or include, an offence or offences against a law of the Commonwealth, a law of a Territory or a law of a State but need not specify the particular offence or offences; and (c) set out the purpose of the operation or investigation."
Case: Coco v The Queen (1994) 179 CLR 427
Outcome: discussed
point at issue is whether the amendments in 2007 validated not only the summons, but also the examination conducted following its issue. The applicant submits that it did not, and he relies on two particular points in support of his submission. First, he points to the common law right to silence which he submits is abrogated by provisions such as s 28 of the ACC Act. The amendments in 2007 should be strictly construed so as not to interfere with common law rights. The applicant referred to Coco v The Queen (1994) 179 CLR 427 (" Coco ") and, in particular, the observations of Mason CJ, Brennan, Gaudron and McHugh JJ at 437: "The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights." The validation provision in the 2007 Amendment Act must be construed according to its terms. Even if it is appropriate to apply the approach to construction referred to by the High Court in Coco to a case where the examination has taken place and the question is whether the Parliament has "validated" not only the summons but also the examination, I think Parliament has expressed its intention in clear words in this case. Not only is the summons valid, but it "is taken always to have been as valid" as if the invalidating event had not occurred. To my mind, these words remove any suggestion that the examination which followed the issue of the summons remained unlawful. The other point to be made about the applicant's submissions is that he seeks to put more weight on the decision in Attorney-General for New South Wales v World Best Holdings Ltd [2005] NSWCA 261 ; (2005) 63 NSWLR 557 than it can reasonably bear. In my opinion, that case is no more than an example of how Parliament chose to validate acts in the particular circumstances of the case.
Case: Commissioner of The Australian Federal Police v Oke [2007] FCAFC 94 ; (2007) 159 FCR 441
Outcome: discussed
appeal ( [2007] FCAFC 94 ; (2007) 159 FCR 441) , Branson and Lindgren JJ said (at 446 [25]): "As mentioned above, the Commissioner ultimately conceded on appeal that the document made available to Mr Oke in purported compliance with s 3H(1) of the Crimes Act was not a copy of the warrant. It is thus unnecessary for this Court to give consideration to the extent to which a document may fail accurately to reproduce every aspect of a warrant before it loses the character of a copy of that warrant within the meaning of s 3H(1). We doubt, however, that s 3H(1) calls for a facsimile of the warrant to be made available to the occupier of the premises. Whether a document is a copy of a warrant within the meaning of s 3H(1) is a question of fact to be determined in the light of the purpose of the Crimes Act following a comparison of the two documents and an assessment of the significance of any unauthorised differences between them." It is no doubt important that the determination which accompanies the summons be accurate, but there is no reason which I can discern from the statutory provisions why the copy needs to be an actual or facsimile copy of the document which was before the Board. The process involved in the making of an authorisation and determination is such that it is likely to involve the preparation of a fresh document after the relevant Board meeting. It seems to me that, as long as the contents of the document are accurate, the statutory obligation in s 28(2) is met. As I have said, there is nothing in this case to suggest that the contents of the 2003 authorisation and determination were not accurate. The second limb to the submission that there was a failure to comply with s 28(2) is that the determination for the purposes of s 28(2) is not only the 2003 authorisation and determination, but also any amendment or variation thereto and, in this case, that includes the 2003 variation. It is common ground between the parties that the 2003 variation did not accompany the summons.
Case: Evans v Button (1988) 13 NSWLR 57
Outcome: discussed
Evans v Button (1988) 13 NSWLR 57 , the Court of Appeal (Mahoney JA with whom Priestley and McHugh JJA agreed) said (at 63-64): "The learned trial judge considered cases in which the meaning of 'produce' in particular contexts had been examined. He concluded, in my opinion correctly, that the word is one 'that has not got an exact legal meaning, but requires an interpretation to be put upon it in the statute in which it occurs'. Hanfstaengl v American Tobacco Co [1895] 1 QB 347 at 355: and he saw the decision of the Court of Criminal Appeal in R v Amenores [1980] 2 NSWLR 34 as indicating that, in the present section, the word is used in its 'ordinary grammatical meaning' (at 37). In s 234(e) the legislature has used the phrase 'produced delivered or furnished to'. I do not think that the juxtaposition of these three terms should be seen as indicating an intention that each of them has a meaning separate and distinct from the other in the sense that they do not overlap. It may be, as his Honour was inclined to think, that 'produced' ordinarily means that the one person is presenting a document to the other whilst they are in each others presence. If this be so, then the purpose of 'delivered or furnished to' was, inter alia, to indicate that what was in contemplation in s 234(e) was not so limited and that the legislature was looking to a wide class of communication of the document to the relevant officer." I agree with counsel for the respondent that the identity of the person serving the notice to produce is immaterial. It does not have to be the person specified in the notice. It seems to me that the physical presence of the person to whom documents or things are to be produced is probably necessary. Parliament chose not to prescribe a procedure requiring production simply to the Commission or any staff member of the Commission. On the other hand, Mr Hellings was present at the time of production and the applicant had previously met him. I do not think the person to whom the documents and things are to be produced need take actual physical possession of the documents or things. Documents or things may be placed on a table, or, if produced in large quantities, be in cartons which are immediately taken away by staff members of the Commission. In my opinion, the production which took place on 19 February 2004 was in accordance with the notice to produce and s 29(1) of the ACC Act. I reject the third ground of challenge to the notice to produce.