mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Mills v Meeking [1990] HCA 6 ; (1990) 169 CLR 214
Outcome: referred to
All parties sought to support their construction arguments by reference to what was once known as the "mischief rule" but which is now generally referred to as the "purposive approach". This approach involves identifying the "mischief" which a particular legislative provision was designed to remedy and then adopting a construction of the remedial provision which would achieve the desired outcome. This rule or approach was only of use where an ambiguity or inconsistency was identified in the statutory language: see Mills v Meeking [1990] HCA 6 ; (1990) 169 CLR 214 at 235 (per Dawson J). This position has been modified by statute. Section 15AA of the Acts Interpretation Act 1901 (Cth) requires that, in interpreting Commonwealth Acts, Courts must prefer "a construction that would promote the purpose or object underlying the Act" to one which would not do so. The purposive approach is thus to be adopted even in the absence of discerned ambiguity. The current approach to the construction of Commonwealth statutes was summarised in the oft quoted passage from the joint judgment of Brennan CJ, Dawson, Toohey and Gummow JJ in CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2 ; (1997) 187 CLR 384 at 408. Their Honours there said that: "... the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means ... one may discern the statute was intended to remedy ... Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd [(1986) 6 NSWLR 363 at 388], if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent ..." The "legitimate means" to which their Honours referred include consideration of the materials identified in s 15AB(2) of the Acts Interpretation Act 1901 (Cth) including Parliamentary debates.
Case: CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2 ; (1997) 187 CLR 384
Outcome: referred to
All parties sought to support their construction arguments by reference to what was once known as the "mischief rule" but which is now generally referred to as the "purposive approach". This approach involves identifying the "mischief" which a particular legislative provision was designed to remedy and then adopting a construction of the remedial provision which would achieve the desired outcome. This rule or approach was only of use where an ambiguity or inconsistency was identified in the statutory language: see Mills v Meeking [1990] HCA 6 ; (1990) 169 CLR 214 at 235 (per Dawson J). This position has been modified by statute. Section 15AA of the Acts Interpretation Act 1901 (Cth) requires that, in interpreting Commonwealth Acts, Courts must prefer "a construction that would promote the purpose or object underlying the Act" to one which would not do so. The purposive approach is thus to be adopted even in the absence of discerned ambiguity. The current approach to the construction of Commonwealth statutes was summarised in the oft quoted passage from the joint judgment of Brennan CJ, Dawson, Toohey and Gummow JJ in CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2 ; (1997) 187 CLR 384 at 408. Their Honours there said that: "... the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means ... one may discern the statute was intended to remedy ... Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd [(1986) 6 NSWLR 363 at 388], if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent ..." The "legitimate means" to which their Honours referred include consideration of the materials identified in s 15AB(2) of the Acts Interpretation Act 1901 (Cth) including Parliamentary debates.
Case: Avel Pty Ltd v Attorney-General (NSW) (1987) 11 NSWLR 126
Outcome: referred to
In the absence of any clear identification of the legislative purpose intended to be served by the words appearing in parenthesis in s 360(1)(iii), the case would seem to be one in which it is necessary to focus on, and give effect to, the literal words chosen by the legislature. The observations of Kirby P in Avel Pty Ltd v Attorney-General (NSW) (1987) 11 NSWLR 126 at 127 are apposite: "This conclusion suggests that the only safe approach to the construction of the web of applicable legislation is an attention to the literal words of the legislation. A "purposive" approach founders in the shallows of a multitude of obscure, uncertain and even apparently conflicting purposes." The adoption of what Kirby P regarded as the "safe approach" is warranted where a Court, called on to construe legislation, is unable to discern with any clarity the legislature's purpose in enacting a provision. A Court should not speculate about the legislature's intention. As Griffith CJ said in Richardson v Austin [1911] HCA 28 ; (1911) 12 CLR 463 at 470: "... as to the argument from the assumed intention of the legislature, there is nothing more dangerous and fallacious in interpreting a Statute than first of all to assume that the legislature had a particular intention, and then, having made up one's mind what that intention was, to conclude that that intention must necessarily be expressed in a Statute, and then proceed to find it." Here, the language of the paragraph is clear. A party to a petition who wishes to obtain access to relevant documents in the possession of the electoral authorities may apply to the Court of Disputed Returns for leave to inspect and take extracts from those documents. The Court may, in its discretion, grant that leave in respect of all or any relevant documents other than ballot-papers. The maxim expressum facit cessare tacitum , to which Gavan Duffy CJ and Dixon J gave effect in the Anthony Hordern case, applies. The power to grant access to documents is provided, subject to the relevant limitation, by s 360(1)(iii). Reliance on other, more general provisions in the Act or subordinate legislation which might otherwise support a discovery order is excluded by the more specific grant of power and the restrictions imposed on its exercise.
Case: Richardson v Austin [1911] HCA 28 ; (1911) 12 CLR 463
Outcome: referred to
In the absence of any clear identification of the legislative purpose intended to be served by the words appearing in parenthesis in s 360(1)(iii), the case would seem to be one in which it is necessary to focus on, and give effect to, the literal words chosen by the legislature. The observations of Kirby P in Avel Pty Ltd v Attorney-General (NSW) (1987) 11 NSWLR 126 at 127 are apposite: "This conclusion suggests that the only safe approach to the construction of the web of applicable legislation is an attention to the literal words of the legislation. A "purposive" approach founders in the shallows of a multitude of obscure, uncertain and even apparently conflicting purposes." The adoption of what Kirby P regarded as the "safe approach" is warranted where a Court, called on to construe legislation, is unable to discern with any clarity the legislature's purpose in enacting a provision. A Court should not speculate about the legislature's intention. As Griffith CJ said in Richardson v Austin [1911] HCA 28 ; (1911) 12 CLR 463 at 470: "... as to the argument from the assumed intention of the legislature, there is nothing more dangerous and fallacious in interpreting a Statute than first of all to assume that the legislature had a particular intention, and then, having made up one's mind what that intention was, to conclude that that intention must necessarily be expressed in a Statute, and then proceed to find it." Here, the language of the paragraph is clear. A party to a petition who wishes to obtain access to relevant documents in the possession of the electoral authorities may apply to the Court of Disputed Returns for leave to inspect and take extracts from those documents. The Court may, in its discretion, grant that leave in respect of all or any relevant documents other than ballot-papers. The maxim expressum facit cessare tacitum , to which Gavan Duffy CJ and Dixon J gave effect in the Anthony Hordern case, applies. The power to grant access to documents is provided, subject to the relevant limitation, by s 360(1)(iii). Reliance on other, more general provisions in the Act or subordinate legislation which might otherwise support a discovery order is excluded by the more specific grant of power and the restrictions imposed on its exercise.
Case: Scott v Scott [1913] 1 AC 417
Outcome: referred to
The next argument raised by the petitioner focuses attention on the requirement in s 360(1) that the Court sit "as an open Court" and on the "open justice principle" which is a fundamental pillar of the rule of law. Attention was directed to the well known statements of Lord Atkinson in Scott v Scott [1913] AC 417 at 463 and Kirby P in John Fairfax Group v Local Court (NSW) (1991) 26 NSWLR 131 at 143. It was contended that it would be inconsistent with the "open Court" requirement and the "open justice" principle were the Court to rule on the formality of disputed ballot-papers without the parties being able to see those ballot-papers, or to make submissions in relation to them. This, it is said, would be the consequence of a refusal to make the orders sought. In this context the petitioner drew attention to the judgment of Isaacs J, sitting as a Court of Disputed Returns, in Kean v Kerby [1920] HCA 35 ; (1920) 27 CLR 449 and pointed to passages of his Honour's judgment which, it was submitted, suggested that counsel had had access to ballot-papers in order to assist the Court.
Case: John Fairfax Group v Local Court (NSW) (1911) 26 NSWLR 131
Outcome: referred to
The next argument raised by the petitioner focuses attention on the requirement in s 360(1) that the Court sit "as an open Court" and on the "open justice principle" which is a fundamental pillar of the rule of law. Attention was directed to the well known statements of Lord Atkinson in Scott v Scott [1913] AC 417 at 463 and Kirby P in John Fairfax Group v Local Court (NSW) (1991) 26 NSWLR 131 at 143. It was contended that it would be inconsistent with the "open Court" requirement and the "open justice" principle were the Court to rule on the formality of disputed ballot-papers without the parties being able to see those ballot-papers, or to make submissions in relation to them. This, it is said, would be the consequence of a refusal to make the orders sought. In this context the petitioner drew attention to the judgment of Isaacs J, sitting as a Court of Disputed Returns, in Kean v Kerby [1920] HCA 35 ; (1920) 27 CLR 449 and pointed to passages of his Honour's judgment which, it was submitted, suggested that counsel had had access to ballot-papers in order to assist the Court.
Case: Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550
Outcome: referred to
The petitioner made the further submissions that the Court was bound to accord the parties natural justice, that a failure to make the order sought would cause the petitioner to be denied natural justice and that the restriction on leave being granted to inspect ballot-papers, contained in s 360(1)(iii), did not, expressly or by necessary implication, modify the requirements of procedural fairness: see Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 584. 40 There can be no doubt that a Court of Disputed Returns must accord procedural fairness to parties appearing before it: cf Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 584; Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596 at 598. The petitioner's submissions assume that procedural fairness would, in the present case, require that the petitioner and his legal advisors should have access to the ballot-papers and that this will not happen unless the order sought is made. What procedural fairness requires in a particular case will depend on a range of considerations including the nature of the inquiry, the governing rules and the significance of the interest affected: see Russell v Duke of Norfolk [1949] 1 All ER 109 at 118 and, generally, Dyer, "Determining the Content of Procedural Fairness" (1993) 19 Monash Law Review 165. This aspect of the petitioner's case was not developed in any detail. Were that to happen at a later stage of the Court's inquiry careful attention would need to be directed to the language of s 360(1)(iii) and to the nature of the Court's statutory function. As presently advised I am not persuaded that procedural fairness would necessarily be denied at the hearing of the petition were the petitioner and his legal advisors not able to examine individual ballot-papers. I am, nonetheless, prepared, for present purposes, to assume that provision of access to some or all of the ballot-papers might be necessary in order to satisfy procedural fairness requirements. For reasons already given, however, it should not be assumed that such access will be denied in the event that the petitioner's application is refused. Other means of facilitating access may be available even if s 360(1)(iii) bears the construction which I have accorded it. It is, therefore, not inevitable that a failure to accede to the petitioner's application will lead to a denial of natural justice. In any event, as I have held, the clear words of s 360(1)(iii) are sufficient to displace common law procedural requirements.
Case: Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596
Outcome: referred to
There can be no doubt that a Court of Disputed Returns must accord procedural fairness to parties appearing before it: cf Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 584; Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596 at 598. The petitioner's submissions assume that procedural fairness would, in the present case, require that the petitioner and his legal advisors should have access to the ballot-papers and that this will not happen unless the order sought is made. What procedural fairness requires in a particular case will depend on a range of considerations including the nature of the inquiry, the governing rules and the significance of the interest affected: see Russell v Duke of Norfolk [1949] 1 All ER 109 at 118 and, generally, Dyer, "Determining the Content of Procedural Fairness" (1993) 19 Monash Law Review 165. This aspect of the petitioner's case was not developed in any detail. Were that to happen at a later stage of the Court's inquiry careful attention would need to be directed to the language of s 360(1)(iii) and to the nature of the Court's statutory function. As presently advised I am not persuaded that procedural fairness would necessarily be denied at the hearing of the petition were the petitioner and his legal advisors not able to examine individual ballot-papers. I am, nonetheless, prepared, for present purposes, to assume that provision of access to some or all of the ballot-papers might be necessary in order to satisfy procedural fairness requirements. For reasons already given, however, it should not be assumed that such access will be denied in the event that the petitioner's application is refused. Other means of facilitating access may be available even if s 360(1)(iii) bears the construction which I have accorded it. It is, therefore, not inevitable that a failure to accede to the petitioner's application will lead to a denial of natural justice. In any event, as I have held, the clear words of s 360(1)(iii) are sufficient to displace common law procedural requirements.
Case: Russell v Duke of Norfolk [1949] 1 All E R 109
Outcome: referred to
There can be no doubt that a Court of Disputed Returns must accord procedural fairness to parties appearing before it: cf Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 584; Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596 at 598. The petitioner's submissions assume that procedural fairness would, in the present case, require that the petitioner and his legal advisors should have access to the ballot-papers and that this will not happen unless the order sought is made. What procedural fairness requires in a particular case will depend on a range of considerations including the nature of the inquiry, the governing rules and the significance of the interest affected: see Russell v Duke of Norfolk [1949] 1 All ER 109 at 118 and, generally, Dyer, "Determining the Content of Procedural Fairness" (1993) 19 Monash Law Review 165. This aspect of the petitioner's case was not developed in any detail. Were that to happen at a later stage of the Court's inquiry careful attention would need to be directed to the language of s 360(1)(iii) and to the nature of the Court's statutory function. As presently advised I am not persuaded that procedural fairness would necessarily be denied at the hearing of the petition were the petitioner and his legal advisors not able to examine individual ballot-papers. I am, nonetheless, prepared, for present purposes, to assume that provision of access to some or all of the ballot-papers might be necessary in order to satisfy procedural fairness requirements. For reasons already given, however, it should not be assumed that such access will be denied in the event that the petitioner's application is refused. Other means of facilitating access may be available even if s 360(1)(iii) bears the construction which I have accorded it. It is, therefore, not inevitable that a failure to accede to the petitioner's application will lead to a denial of natural justice. In any event, as I have held, the clear words of s 360(1)(iii) are sufficient to displace common law procedural requirements.
Case: SZMFX v Minister for Immigration and Anor [2008] FMCA 1150
Outcome: affirmed
This appeal is from a judgment of the Federal Magistrates Court, published as SZMFX v Minister for Immigration and Anor [2008] FMCA 1150. The judgment was given on 13 August 2008. The learned federal magistrate dismissed an application by which the appellant sought to set aside a decision of the Refugee Review Tribunal ("the Tribunal"), dated 28 March 2008 and handed down or sent on 17 April 2008. The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Citizenship ("the Minister"), to refuse to grant the appellant a protection visa. 2 The appellant is a citizen of Armenia. He arrived in Australia on 6 September 2006. On 24 August 2007, he applied to the Department of Immigration and Citizenship for a protection visa. On 5 November 2007, the Minister's delegate notified the appellant of the decision to refuse a protection visa. 3 By s 36 of the Migration Act 1958 (Cth) ("the Migration Act "), there is a class of visas to be known as protection visas. A criterion for a protection visa is that the applicant for it be a non-citizen in Australia to whom the Minister is satisfied that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The terms "Refugees Convention" and "Refugees Protocol" are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967 . It is convenient to call these two instruments taken together, the "Convention". For present purposes, it is sufficient to note that, pursuant to the Convention, Australia has protection obligations to any person who: owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country
Case: Bankstown Grammar School Ltd v Park [2000] FCA 1205
Outcome: cited
The approach that the Court has taken in similar circumstances is the subject of a consistent line of authority: see Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 ; Re Howell; Ex parte Commissioner of Taxation (1996) 70 FCR 261 ; Komesaroff v Law Institute of Victoria [1997] FCA 965 ; Re Langridge; Ex parte Bennett , Carroll &amp; Gibbons [1998] FCA 879 ; Matthews v Collett [2000] FCA 224 ; Bankstown Grammar School Ltd v Park [2000] FCA 1205 ; Griffiths v Boral Resources (Qld) Pty Ltd (2006) FCR 554. In the present case, there is clear evidence that Ms Menassa intended to apply on 11 April 2006 for an order under s 52(5) of the Bankruptcy Act but forgot to do so and a clear statement by Driver FM in his Honour's reasons for judgment that he would have made such an order if he had appreciated that the creditor's petition was to lapse on 25 April 2006.
Case: Darwin Broadcasters Pty Ltd v Australian Broadcasting Tribunal (1990) 21 FCR 524
Outcome: cited
Ordinarily, the law takes no account of parts of a day, and the expression "commencing on" must mean commencing on either the first or the last moment of the day in question. In my opinion, the expression "commencing on" in s 52(4)(a) of the Bankruptcy Act means "commencing at the first moment on", and the period of 12 months commencing on the date of presentation of the petition in the present case, 26 April 2005, expired on 25 April 2006 at midnight between 25 and 26 April 2006: see Ex parte Toohey's Ltd; Re Butler (1934) 34 SR (NSW) 277 at 285; Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421 at 453 per Mason J, with whom McTiernan J agreed; Darwin Broadcasters Pty Ltd v Australian Broadcasting Tribunal (1990) 21 FCR 524 at 526-527. Expressions referring to a certain period "from" or "before" or of the kind "within [a certain period] of" are different. In those cases, the starting day is excluded in the computation: see, for example, Re Butler; Ex parte Toohey's Ltd (1934) 34 SR (NSW) 277 ; Re Gray; Ex parte Deputy Commissioner of Taxation [1993] FCA 277 ; (1993) 115 ALR 638 ; and see s 36(1) of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act ).