mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: R v Hunt; ex parte Sean Investments Pty Ltd [1979] HCA 32 ; (1979) 180 CLR 322
Outcome: distinguished
In support of this "fundamental weight" submission, Telstra relies on R v Hunt; ex parte Sean Investments Pty Ltd [1979] HCA 32 ; (1979) 180 CLR 322 ( Sean Investments ) which concerned s 40AA(7) of the National Health Act 1953 (Cth). That Act provided for the approval of premises as nursing homes, and made approval subject to a condition that the fees charged in respect of nursing home care of a "qualified nursing home patient" would not exceed fees payable in accordance with a scale determined by the Permanent Head of the relevant Department. Section 40AA(7) directed the Permanent Head to "have regard to costs necessarily incurred in providing nursing home care in the nursing home". 114 Mason J held that those words required the Permanent Head to take those costs into account and "to give weight to them as a fundamental element in making his determination" (at 329). His Honour gave two reasons for this conclusion. First, they were the only matter explicitly mentioned as a matter required to be taken into account, and second, the scheme of the provisions was that once premises were approved as a nursing home, the proprietor was bound by the conditions of approval not to exceed the scale of fees fixed. His Honour observed that in many cases it was to be expected that the scale of fees would be fixed by reference to the costs necessarily incurred plus a profit factor, and that in the nature of things the costs necessarily incurred were a fundamental matter for consideration. 115 Sean Investments is distinguishable. It is readily understandable that the fees to be fixed must cover the costs necessarily incurred in providing nursing home care in the particular nursing home. Approval of the particular nursing home would be frustrated if the level of fees permitted to be charged did not cover those costs. In the present case, there are a range of factors that ACCC is required to take into account.
Case: R v The Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13
Outcome: referred to
ACCC made submissions only in relation to issues of law of general importance relating to its power and procedures under the Act, and other exceptional matters. ACCC referred to the principles established in R v The Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13 ( Hardiman ) at 35-36 as the reason for its limited participation. ACCC's submissions related to aspects of Section A (Telstra's Cost Model), Section B (Invalidity of Final Determination) and Section F (Disconnection Charges, Backdating and the "No Charge Period"). (ACCC also addressed submissions to Telstra's Ground 11, but, as noted previously, that ground is no longer relevant). 103 Request concedes that the Final Determination is amenable to review under the ADJR Act. No party addressed submissions independently to s 39B(1) of the Judiciary Act 1903 (Cth) (Judiciary Act). In its written closing submissions, Request for the first time submitted that it was "unlikely" that the Court had jurisdiction under s 39B(1) of the Judiciary Act on the ground that ACCC, as distinct from its Commissioners, was not an "officer of the Commonwealth". Nothing turns on the point. In addition to its jurisdiction under the ADJR Act, the Court has relevant jurisdiction under s 39B(1A)(c) of the Judiciary Act and s 163A of the Act. 104 Within Div 8, the "Arbitration of access disputes" is the subject matter of Subdiv C (ss 152CO-152CU) and the "Procedure in arbitrations" is the subject matter of Subdiv D (ss 152CV-152DMA). 180 Request responds by referring to the limited role permitted to a decision-maker such as ACCC in defending its decisions: see Hardiman at 35-36. The role of ACCC is one of arbitrating an access dispute between a carrier or carriage service provider and an access seeker. 181 In my opinion, the counsel given to administrative tribunals by the High Court in Hardiman applied to ACCC in that role. As noted at [102] above, ACCC has led no evidence, and has made submissions only on particular issues that it has perceived to be of general importance in relation to its powers and procedures. ACCC informed Request and Telstra prior to the hearing that it would act in accordance with Hardiman . It was open to Telstra or Request to subpoena ACCC officers to attend to give evidence or to produce documents. The absence of more direct evidence of the course of ACCC's deliberations is not to count against either of them more than it is against the other.
Case: R v Toohey; ex parte Meneling Station Pty Ltd [1982] HCA 69 ; (1983) 158 CLR 327
Outcome: cited
Telstra also referred to other authorities such as R v Toohey; ex parte Meneling Station Pty Ltd [1982] HCA 69 ; (1983) 158 CLR 327 ; Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 and Epic Energy .
Case: Re Michael; Ex parte Epic Energy (WA) Nominees Pty Ltd (2002) 25 WAR 511
Outcome: cited
On the hearing there was a suggestion that there may be a difference between a legislative requirement to "take into account" something and a legislative requirement to "have regard" to something, one being more demanding than the other. I do not agree (see Re Michael; Ex parte Epic Energy (WA) Nominees Pty Ltd (2002) 25 WAR 511 ; (2002) 24 ATPR 41-886 ( Epic Energy ) at [55]). I am not persuaded by the fact that within Pt XIC itself the legislature has sometimes used one expression and sometimes the other (compare, for example, s 152AB(2) at [17] above and s 152CR at [40] below). I will use the expressions interchangeably. 20 It will be noted that subs (3) of s 152AB makes the list in subs (2) an exhaustive list of the matters to which regard may be had for the purpose of determining whether a particular thing promotes the LTIE. 21 Subsections (4) and (6) of s 152AB identify certain matters to which regard must be had in connection with the subs (2)(c) and (e) considerations respectively, but subss (5) and (7) respectively make it clear that subss (4) and (6) do not limit the matters to which regard may be had. 119 Telstra also referred to other authorities such as R v Toohey; ex parte Meneling Station Pty Ltd [1982] HCA 69 ; (1983) 158 CLR 327 ; Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 and Epic Energy .
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57
Outcome: cited
Jurisdictional error occurs where a decision-maker fails to exercise the jurisdiction it has by making or refusing to make an order or decision by reason of "a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction" ( Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 177). In Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420, Jordan CJ said that there was a failure to exercise jurisdiction where the decision-maker "misunderstand[s] the nature of the jurisdiction which [he or she] is to exercise, and ... appl[ies] a 'wrong and inadmissible test' ... or ... 'misconceive[s his or her] duty,' ... or '[fails] to apply [himself or herself] to the question which the law prescribes' ... or '... misunderstand[s] the nature of the opinion which [he or she] is to form'". This description of constructive jurisdictional error was approved by Guadron J in Re Minister for Immigration and Multicultural Affairs; ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 at [80] .
Case: Re Refugee Tribunal; ex parte Aala [2000] FCA 57 ; (2000) 204 CLR 82
Outcome: cited
In the context of a failure to accord procedural fairness, Telstra refers to Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 , where the Court stated (at 147): ... if the Full Court is properly to be understood as saying no more than that a new trial would probably make no difference to the result, their Honours failed to apply the correct criterion. All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result. [my emphasis] The "possibility of a different result" was also referred to in the context of alleged failure to accord procedural fairness by Gaudron and Gummow JJ in Re Refugee Tribunal; ex parte Aala [2000] FCA 57 ; (2000) 204 CLR 82 ( ex parte Aala ) at 116-117, and by myself (Jenkinson J agreeing) in Girretti v Deputy Commissioner of Taxation (1996) 70 FCR 151 at 166. 409 If I had found that Telstra was denied procedural fairness, or that ACCC had made an error of law, Telstra would still need to show that there was at least a possibility that a different result might have been reached: Bond at 353; ex parte Aala at [80].
Case: Segal v Waverley Council (2005) 64 NSWLR 177
Outcome: cited
Telstra submits that it cannot be assumed that ACCC "would have" decided in relation to Telstra's cost model in the same way in the Request/Telstra and Adam/Telstra arbitrations. Each arbitration must be decided on its own merits and there is no principle of stare decisis in administrative decision making. Telstra cites statements by Tobias JA in Segal v Waverley Council (2005) 64 NSWLR 177 at [96] and by Deane J in Nevistic v Minister for Immigration &amp; Ethnic Affairs (1981) 34 ALR 639 at 646-647, generally to the effect that an administrative decision-maker must decide each case on its facts and merits, and must not blindly follow a fixed policy. It seems to be inherent in the submission that it should be accepted that ACCC may properly determine different charges for the supply of the (identical) LSS by Telstra to different access seekers, such as Request and Adam.
Case: Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502
Outcome: cited
A party liable to be directly affected by a decision (such as Telstra) is, however, entitled to have its mind directed to the critical issue or factor on which the administrative decision is likely to turn ( Kioa v West at 587; Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 517; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 481-482; Somaghi v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 389 ; (1991) 31 FCR 100 ( Somaghi ) at 108). This does not mean that the party is entitled to have its mind directed to the provisional views of the decision-maker so that it may have a further opportunity of criticising the decision-maker's mental processes before a final decision is reached ( Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074 ; (1994) 49 FCR 576 at 590-592). Similarly, a decision-maker is not required to alert parties to "evaluative conclusions" on the material before the decision-maker ( Somaghi at 108). What the rules of procedural fairness require depends on the statutory framework and the facts and circumstances of the particular case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 at [26] . Consideration of Telstra's Ground 9(a)
Case: Somaghi v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 389 ; (1991) 31 FCR 100
Outcome: cited
A party liable to be directly affected by a decision (such as Telstra) is, however, entitled to have its mind directed to the critical issue or factor on which the administrative decision is likely to turn ( Kioa v West at 587; Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 517; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 481-482; Somaghi v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 389 ; (1991) 31 FCR 100 ( Somaghi ) at 108). This does not mean that the party is entitled to have its mind directed to the provisional views of the decision-maker so that it may have a further opportunity of criticising the decision-maker's mental processes before a final decision is reached ( Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074 ; (1994) 49 FCR 576 at 590-592). Similarly, a decision-maker is not required to alert parties to "evaluative conclusions" on the material before the decision-maker ( Somaghi at 108). What the rules of procedural fairness require depends on the statutory framework and the facts and circumstances of the particular case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 at [26] . Consideration of Telstra's Ground 9(a)
Case: Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141
Outcome: referred to
In the context of a failure to accord procedural fairness, Telstra refers to Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 , where the Court stated (at 147): ... if the Full Court is properly to be understood as saying no more than that a new trial would probably make no difference to the result, their Honours failed to apply the correct criterion. All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result. [my emphasis] The "possibility of a different result" was also referred to in the context of alleged failure to accord procedural fairness by Gaudron and Gummow JJ in Re Refugee Tribunal; ex parte Aala [2000] FCA 57 ; (2000) 204 CLR 82 ( ex parte Aala ) at 116-117, and by myself (Jenkinson J agreeing) in Girretti v Deputy Commissioner of Taxation (1996) 70 FCR 151 at 166.
Case: Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 6 May 1997, Lindgren J)
Outcome: cited
I regard s 152DB(1) as a general exhortatory provision: it exhorts ACCC to strive to achieve broad objectives. Some of those broad objectives, at least if regarded in isolation, are antithetical to one another. The notions of "speed", "proper consideration of the dispute", "careful inquiry and investigation", "quick inquiry and investigation", "inquiry into and investigation of ... all matters affecting the merits" (my emphasis) and "fairness" pull in different directions: cf the discussion of ss 420 and 476 of the Migration Act 1958 (Cth) in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 6 May 1997, Lindgren J) at 39-41, and see Minister for Immigration v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at [49] per Gleeson CJ and McHugh J.
Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152
Outcome: cited
A party liable to be directly affected by a decision (such as Telstra) is, however, entitled to have its mind directed to the critical issue or factor on which the administrative decision is likely to turn ( Kioa v West at 587; Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 517; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 481-482; Somaghi v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 389 ; (1991) 31 FCR 100 ( Somaghi ) at 108). This does not mean that the party is entitled to have its mind directed to the provisional views of the decision-maker so that it may have a further opportunity of criticising the decision-maker's mental processes before a final decision is reached ( Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074 ; (1994) 49 FCR 576 at 590-592). Similarly, a decision-maker is not required to alert parties to "evaluative conclusions" on the material before the decision-maker ( Somaghi at 108). What the rules of procedural fairness require depends on the statutory framework and the facts and circumstances of the particular case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 at [26] . Consideration of Telstra's Ground 9(a)
Case: Tickner v Chapman (1995) 57 FCR 451
Outcome: discussed
Telstra submits that in order for ACCC to take Telstra's cost model into account, it had to engage in an "active intellectual process" in relation to it. In support, Telstra refers to Tickner v Chapman (1995) 57 FCR 451 at 462, 464 per Black CJ and Tobacco Institute of Australia v National Health and Medical Research Council (1996) 71 FCR 265 at 277-279 per Finn J. 185 As Black CJ observed in Tickner v Chapman (at 462-463), "[t]he degree of effort that the consideration of a particular representation may involve will of course vary according to its length, its content and its degree of relevance". 186 The question arises whether, in the light of my factual conclusions above, ACCC's consideration of Telstra's cost model was sufficient to amount to an "active intellectual process". More specifically, did an "active intellectual process" require ACCC to manipulate or sensitivity test Telstra's cost model? 187 Telstra points to statements made by ACCC in the context of ACCC's consideration of similar cost models in regulatory matters, which Telstra says demonstrate the importance that ACCC places on sensitivity testing in order to gauge the value of cost models. In my view, evidence of this kind shows only that in the circumstances of those matters and those models ACCC considered that sensitivity testing assumed some importance.
Case: Tobacco Institute of Australia v National Health and Medical Research Council (1996) 71 FCR 265
Outcome: cited
Telstra submits that in order for ACCC to take Telstra's cost model into account, it had to engage in an "active intellectual process" in relation to it. In support, Telstra refers to Tickner v Chapman (1995) 57 FCR 451 at 462, 464 per Black CJ and Tobacco Institute of Australia v National Health and Medical Research Council (1996) 71 FCR 265 at 277-279 per Finn J.
Case: Urban Transit Authority of NSW v Nweiser (1992) 28 NSWLR 471
Outcome: cited
The ultimate question for the Court is whether it is in the interests of justice that the further evidence be admitted (see, for example, Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24] ; Daniel v State of Western Australia [2004] FCA 849 ; (2004) 138 FCR 254 ( Daniel ) at 269; Urban Transit Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478-479 (per Clarke JA, Mahoney &amp; Meagher JJA agreeing); Dumitrov v SC Johnson and Son Superannuation Pty Ltd (No 2) [2007] NSWSC 42 at [7] ).
Case: MZXEF v Minister for Immigration and Multicultural Affairs [2006] FCA 507
Outcome: referred to
I dismissed the appeal in this proceeding on 8 May 2006: see MZXEF v Minister for Immigration and Multicultural Affairs [2006] FCA 507. Due to illness, the first appellant (who is the mother of the second and third appellants) was unable to appear when judgment was delivered. Since she had not been heard on the question of costs and it appeared that she might wish to be so heard, I directed my associate to send a letter to the appellants informing them that, if they wished to make any submissions on costs, they should file written submissions. 2 On 15 May 2006, the first appellant filed submissions stating that: "I wish to bring the following facts for your kind consideration regarding the costs. 1. I am a single mother with two young daughters and currently depending financially on my sisters and mother. 2. I have no working rights and enclose a copy of my E class bridging visa. Under the circumstances I humbly request you to consider my case and waive the costs." 3 On 18 May 2006, the first respondent filed brief submissions contending that an inability to meet a costs order is not a reason for a departure from the usual rule that costs follow the event.
Case: Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229
Outcome: applied
The Court has an unfettered discretion regarding costs orders, although it "must be exercised judicially and not against the successful party except for some reason connected with the case": see Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229 (" Ruddock v Vadarlis (No 2) ") at 234 per Black CJ and French JJ. Ordinarily, if a successful party is denied an order for costs in whole or part, it is because the party's conduct of the proceeding in some respect or respects makes it just or reasonable to do so: see, e.g., Ruddock v Vadarlis (No 2) at 236 and Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 at 544 per Mason CJ.
Case: Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534
Outcome: referred to
The Court has an unfettered discretion regarding costs orders, although it "must be exercised judicially and not against the successful party except for some reason connected with the case": see Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229 (" Ruddock v Vadarlis (No 2) ") at 234 per Black CJ and French JJ. Ordinarily, if a successful party is denied an order for costs in whole or part, it is because the party's conduct of the proceeding in some respect or respects makes it just or reasonable to do so: see, e.g., Ruddock v Vadarlis (No 2) at 236 and Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 at 544 per Mason CJ.
Case: Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72
Outcome: referred to
A successful litigant is, therefore ordinarily entitled to an award of costs: see, e.g., Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 at 86 per Gaudron and Gummow JJ; at 97 per McHugh J (dissenting in result) and 120-1 per Kirby J. The inability of the unsuccessful party to meet costs is generally not a sufficient reason to deprive the successful party of a costs award. In Selliah v Minister for Immigration and Multicultural and Indigenous Affairs [1998] FCA 469 , Nicholson J said: "[I]t is contended for the applicant that as he has been in detention since arriving in Australia he has no assets in this country, an order against him would be futile. No evidentiary foundation exists for a finding of futility. Even if the proper inference to be drawn from the applicant's detention is that such an order would be futile, I do not consider that would amount to special circumstances warranting the making of a different order. Here the applicant chose to comprehensively argue his case and expose himself to the risk of costs. Having failed, any futility of collection is not a reason for an order to the contrary." The same principles apply here. The appellants have not shown a proper basis to justify the Court in making other than the usual costs order.