Case: WACB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 50 ; (2004) 210 ALR 190 ; (2004) 79 ALJR 9
Outcome: followed
propositions were expressly taken up and applied by Gleeson CJ and McHugh, Gummow and Heydon JJ in a joint judgment in WACB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 50 ; (2004) 210 ALR 190 at [32] and [33] (p 198); [2004] HCA 50 ; (2004) 79 ALJR 94 (p 100) where their Honours said: The restriction in s 478 is of a different character to that of typical statutes of limitation which operate to impose a limit of time upon an existing right of action. They operate to bar the prosecution of actions otherwise not subject to such a time limit. In that sense, statutes of limitation are preventative. However, s 478 does not "bar an existing cause of action"; rather, "[i]t imposes a condition which is of the essence of a new right". [ Australian Iron &amp; Steel Ltd v Hoogland [1962] HCA 13 ; (1962) 108 CLR 471 at 488; Rudolphy v Lightfoot [1999] HCA 61 ; (1999) 197 CLR 500 at 507 8 [10] [11]; [1999] HCA 61 ; 167 ALR 105 at 107.] Thus, s 478(1)(b) and (2) restrict what otherwise would be the conferral upon the Federal Court of jurisdiction by the parliament under ss 76(ii) and 77 (i) of the Constitution . The new jurisdiction so conferred is remedial in nature, although the remedy is confined by the time restriction upon the institution of the proceeding. The provision of information to the unsuccessful visa applicant by the RRT is a necessary step to equip the applicant with the wherewithal to institute such a proceeding in the Federal Court. Paragraph (a) of s 478(1) stipulates that an application to the Federal Court be made in the manner specified by the Rules. At the relevant time, those Rules [O 54B r 2(1)] required that an application be in accordance with form 56. This required the applicant to describe how he or she was aggrieved by the decision, the grounds for the application, and the orders sought. That information may be acquired for use in this way by an examination of the reasons of the RRT indicated in the written statement. At [9] and at [37] in WACB (210 ALR at 193 and 199; 79 ALJR at 96 and 101), the majority emphasised that the Minister bore the burden of establishing lack of competency. In order to make such findings of fact as may be required for the purpose of determining whether the applicant's application is competent or not, and for determining the applicant's latest application for leave to amend her originating process, I have found it necessary to read and to consider all of the documents in the Court file (including the transcript of directions hearings and including those documents which evidence communications between Registry staff, on the one hand, and the applicant and persons assisting her, on the other hand). I will make clear in the next section of these Reasons what regard (if any) I have paid to this material. The Procedural History of the Present Proceedings The Tribunal's decision is dated 20 December 2007 and was handed down on that day. As I have already said, there is no first-hand evidence before me as to whether and, if so, when and in what manner that decision was actually notified to the applicant. In particular, there is no evidence from a witness or in the materials before me that the applicant attended before the Tribunal on 20 December 2007 or that she was handed a physical or hard copy of the Tribunal's decision or reasons on that day or, indeed, at any other time. The evidence before me is silent as to these matters. There are documents in the Court file which provide a basis for drawing certain inferences as to the course of events which have led to the present application before me. However, in my judgment, that material does not provide any reliable foundation for drawing an inference that the applicant was ever handed by anyone by way of physical delivery a copy of the Tribunal's decision or of its reasons. I will now set out my reasons for this conclusion. In WACB [2004] HCA 50 ; 210 ALR 190 ; 79 ALJR 94 , the High Court held that similar words in s 478 of the Act (in the form in which it stood before 2001), when applied to a decision of the Refugee Review Tribunal made pursuant to the Act, required the physical delivery to the applicant personally of the written statement (ie a hard copy thereof) which the Refugee Review Tribunal was required to prepare and to give to the parties pursuant to s 430(1) of the Act.