Case: Bruce v Cole (1998) 45 NSWLR 163
Outcome: cited
principles relevant to this aspect of the proceedings can be simply stated: (a) The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is an abuse of discretion entitling a party with sufficient standing to seek judicial review of the decision. (b) This ground of review can only be made out if the decision-maker fails to take into account a consideration that they are bound to take into account in making the decision. (c) The factors a decision-maker is bound to take into account in making a decision are determined by construction of the statute conferring the power. Where the matters to be taken into account are not expressly stated in the statute, they must be determined by implication from the subject matter, scope and purpose of the Act: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 39-40 per Mason J. (d) A decision-maker may not have had proper regard to a relevant consideration if they merely make a formalistic reference to the consideration: see Azriel v NSW Land &amp; Housing Corporation [2006] NSWCA 372 at [49] per Basten JA (with whom Santow and Ipp JJA agreed at [1] and [3]). (e) A decision-maker is required to give proper, genuine and realistic consideration to a relevant consideration: see Deloitte Touche Tohmatsu v Australian Securities Commission (1996) 136 ALR 453 at 468 (per Lindgren J); Bruce v Cole (1998) 45 NSWLR 163 at 185-6 per Spigelman CJ and the authorities cited therein. (f) The mere failure to refer expressly to a matter will not necessarily give rise to the inference that it was not taken into account: see Australian Conservation Foundation v Forestry Commission (1988) 19 FCR 127 at 132 (per Burchett J). However, it is open to the Court to infer that a matter was not taken into account where no reference is made to it: see, eg, Sullivan v Department of Transport (1978) 20 ALR 323 at 349 (per Deane J). (g) In Deloitte Touche Tohmatsu 136 ALR 453 , Lindgren J said (at 468): It is for an applicant to make out its case of "failure to take into account", but the circumstances may be such that the applicant will be aided in this task by an absence of evidence from the decision-maker on a particular matter, such as an absence of evidence giving rise to an inference of a failure to make further inquiries when a genuine taking into account would have called for them. In any event, for the reasons I have already given, whilst the burden of some of the Notices, having regard to the original time limit, was objectively harsh and oppressive, the decision to issue such Notices was not so unreasonable (or illogical or irrational) that it could not have been made in the circumstances. Even if I looked to the question of 'proportionally', it seems to me that having regard to the very nature, breadth and extent of the investigation, the consequences of the burden were not such as to demonstrate unreasonableness so as to impugn the decision: see discussion in Bruce 45 NSWLR 163, at 184-5 per Spigelman CJ. I would reach this conclusion even on the basis of the evidence sought to be tendered by the applicants on the burden issue, although its relevance may be questionable&#8212;see above [13]. A final point was raised by the ACCC that if the applicants succeeded only in relation to their arguments on burden, I should not grant the relief sought as the initial time frame for the Notices in contention has been extended by a variation to the Notices. That such variations have occurred is not in contention. The only attack of the applicants is on the decision to issue the Notices and the Notices in their original form. No complaint is now made as to the extended time frame, there being no attack on the decisions varying the Notices.