mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Securities and Investments Commission v Rich [2006] NSWSC 826 ; (2006) 235 ALR 587 ; (2006) 58 ACSR 414
Outcome: cited
order to have the affidavit of Mr Watts sworn on 14 April 2009 (including the annexures to that affidavit) admitted into evidence, Mr Watts would need to show either that the evidentiary material set out in that affidavit comprised facts and matters which had arisen after the hearing or which were not known to him or could not have been ascertained by him by the exercise of reasonable diligence at the time the hearing took place on 10 December 2008 and that it is in the interests of justice that the material be admitted into evidence (see The Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132 at [4] [8]; Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24] ; and Australian Securities and Investments Commission v Rich [2006] NSWSC 826 ; (2006) 235 ALR 587 ; (2006) 58 ACSR 414 at [18] ). One of the important considerations to be weighed in the interests of justice in the present case is the public interest in the finality of litigation.
Case: Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22
Outcome: cited
order to have the affidavit of Mr Watts sworn on 14 April 2009 (including the annexures to that affidavit) admitted into evidence, Mr Watts would need to show either that the evidentiary material set out in that affidavit comprised facts and matters which had arisen after the hearing or which were not known to him or could not have been ascertained by him by the exercise of reasonable diligence at the time the hearing took place on 10 December 2008 and that it is in the interests of justice that the material be admitted into evidence (see The Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132 at [4] [8]; Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24] ; and Australian Securities and Investments Commission v Rich [2006] NSWSC 826 ; (2006) 235 ALR 587 ; (2006) 58 ACSR 414 at [18] ). One of the important considerations to be weighed in the interests of justice in the present case is the public interest in the finality of litigation.
Case: The Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132
Outcome: cited
order to have the affidavit of Mr Watts sworn on 14 April 2009 (including the annexures to that affidavit) admitted into evidence, Mr Watts would need to show either that the evidentiary material set out in that affidavit comprised facts and matters which had arisen after the hearing or which were not known to him or could not have been ascertained by him by the exercise of reasonable diligence at the time the hearing took place on 10 December 2008 and that it is in the interests of justice that the material be admitted into evidence (see The Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132 at [4] [8]; Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24] ; and Australian Securities and Investments Commission v Rich [2006] NSWSC 826 ; (2006) 235 ALR 587 ; (2006) 58 ACSR 414 at [18] ). One of the important considerations to be weighed in the interests of justice in the present case is the public interest in the finality of litigation.
Case: Braams Group Pty Limited v Miric [2002] NSWCA 417 ; (2002) 44 ACSR 124
Outcome: applied
It seems to me that this is a case which falls squarely within the principles stated by the New South Wales Court of Appeal in Braams Group Pty Limited v Miric [2002] NSWCA 417 ; (2002) 44 ACSR 124. It is sufficient to refer to what was said by Stein JA at [41]-[42], [51] and [61]. 20 For those reasons, the application will be dismissed. 21 I should point out that the originating process sought the injunctive relief as an interlocutory order, however, without objection by counsel for the Deputy Commissioner, Mr Johnson proceeded to seek the relief as final relief. However, as I have said, Nationwide has not made out a claim of abuse of process and I propose to dismiss the application. I order that the plaintiff pay the costs of the application. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 3 June 2008 Counsel for the Plaintiff: J T Johnson Solicitors for the Plaintiff: Sally Nash &amp; Co Counsel for the Defendant: M L Brabazon Solicitors for the Defendant: Australian Taxation Office Legal Services Branch Date of Hearing: 16 May 2008 Date of Judgment: 16 May 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/824.html
Case: David Grant &amp; Co Pty Limited (Receiver Appointed) v Westpac Banking Corporation (1995) 184 CLR 265
Outcome: referred to
Mr Johnson accepts that in light of the decision of the High Court in David Grant &amp; Co Pty Limited (Receiver Appointed) v Westpac Banking Corporation (1995) 184 CLR 265 , it is necessary for him to establish to my satisfaction that the pursuit of a winding up application in the present circumstances would amount to an abuse of process within the principles stated in Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509.
Case: Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509
Outcome: referred to
Mr Johnson accepts that in light of the decision of the High Court in David Grant &amp; Co Pty Limited (Receiver Appointed) v Westpac Banking Corporation (1995) 184 CLR 265 , it is necessary for him to establish to my satisfaction that the pursuit of a winding up application in the present circumstances would amount to an abuse of process within the principles stated in Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509.
Case: Opitz v Repatriation Commission (1991) 29 FCR 50
Outcome: cited
The Tribunal had no obligation to detail to Mr Cook the shortcomings of his material. It was reasonable for the Tribunal to give him the opportunity of explaining and advancing his application at a phone directions hearing. In this respect, the case differs from Opitz v Repatriation Commission (1991) 29 FCR 50 where at 58 to 59, it was held that the applicant was denied an opportunity of putting further evidence to the Tribunal due to the unusual circumstance of his evidence by phone being interrupted by the advent of an earthquake.
Case: Pradhan v Holmes [2001] FCA 1560 ; (2001) 125 FCR 280
Outcome: referred to
The scheme of the legislative provisions is comprehensively set out in the decision of Finn J in Pradhan v Holmes [2001] FCA 1560 ; (2001) 125 FCR 280 at [5] - [61] . These paragraphs provide a sufficient description of the scheme for present purposes, and it is not necessary to repeat the details of the process here. In his discussion of the scheme, his Honour noted at [6] that it involves four tiers or steps: 'The first three relate to determining whether (inter alia) a medical practitioner has engaged in "inappropriate practice" in connection with the rendering or initiating of services for which a medicare benefit was available. The fourth tier or step involves the imposition of a sanction on a practitioner who has been found to have engaged in "inappropriate practice."' 9 'Inappropriate practice' is defined in s 82. In the case of a general practitioner, the test is whether the conduct of the general practitioner in connection with the rendering of services would be unacceptable to the general body of general practitioners: s 82(1)(a). 10 The first step involves the Commission's decision to make an investigative referral to the Director in relation to the conduct of an individual as to whether that person engaged in inappropriate practice in connection with the rendering or initiating of services: s 86(1). This stage contemplates that there has previously been a complaint or inquiry by the Commission into the conduct of the practitioner. The investigation must be sufficient to enable the Commission to form a view that the practitioner may have engaged in inappropriate practice. 20 In Pradhan v Holmes, Finn J usefully encapsulates at [49]-[61] by reference to the above provisions the detailed staged process provided to afford procedural fairness under the statute at each of the four levels of consideration. It is against these comprehensive statutory provisions that the application and submissions as to procedural fairness in the present case ought to be considered. 21 Dr Phan was the subject of Investigative Referral No. 190 made by the Commission on 29 June 2000. The Investigative Referral related to all services rendered or initiated in the period 1 January 1999 to 31 December 1999 (the relevant referral period in this case). During this period, Dr Phan rendered a total of 18, 165 services, including 17, 970 level B surgery consultations. 22 Adjudicative Referral No. 190 was made by the Director to the Committee on 29 March 2001, and the hearing took place before the Committee on 16-17 May, 2-3 August and 4 October 2001. 23 On 4 March 2004, emails were sent by the Committee Secretary, Ms Vanessa Goodspeed, to Professor Nicholls, seeking guidance in relation to the sampling methodology adopted by the Committee. This advice was provided by Professor Nicholls on 5 March 2004. 24 On 26 June 2004, the Committee made its draft report, with Dr Phan furnishing submissions to the Committee in relation to that report on 20 July 2004. The Committee considered these and made its final report on 28 October 2004.
Case: Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550
Outcome: referred to
It is common ground that failure to give procedural fairness can result in jurisdictional error in some cases. The Applicant refers to the principles set out in Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 584-5 where it is said: 'The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. ... The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case? ... In this respect the expression "procedural fairness" more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations.' 37 In written submissions, the Applicant refers to the following principles: 'a. A person should have matters adverse to that person or that person's application put to that person for comment or evidence before an adverse decision is made (Kioa v West) [1985] HCA 81 ; (1985) 159 CLR 550). b. A decision-maker should not make a decision having had regard to undisclosed material being adverse information that was credible, relevant and significant to the decision to be made without first putting that material to the relevant person ( Kioa, ibid, at 629.3 per Brennan J; Re Refugee Review Tribunal, Ex party Aala [2000] HCA 57 ; (2000) 204 CLR 82; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57; and Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 76 ALJR 966). c. A decision-maker should bring to a person's attention the critical issue or factor on which the decision is likely to turn so that the person may have an opportunity to deal with it (eg: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 at [81] ). d. A decision-maker should not mislead a party as to the importance of a factor to the decision-maker (either actively or impliedly) ( Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57; Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 76 ALJR 966).'
Case: Re Refugee Review Tribunal, Ex party Aala [2000] HCA 57 ; (2000) 204 CLR 82
Outcome: referred to
In written submissions, the Applicant refers to the following principles: 'a. A person should have matters adverse to that person or that person's application put to that person for comment or evidence before an adverse decision is made (Kioa v West) [1985] HCA 81 ; (1985) 159 CLR 550). b. A decision-maker should not make a decision having had regard to undisclosed material being adverse information that was credible, relevant and significant to the decision to be made without first putting that material to the relevant person ( Kioa, ibid, at 629.3 per Brennan J; Re Refugee Review Tribunal, Ex party Aala [2000] HCA 57 ; (2000) 204 CLR 82; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57; and Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 76 ALJR 966). c. A decision-maker should bring to a person's attention the critical issue or factor on which the decision is likely to turn so that the person may have an opportunity to deal with it (eg: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 at [81] ). d. A decision-maker should not mislead a party as to the importance of a factor to the decision-maker (either actively or impliedly) ( Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57; Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 76 ALJR 966).'
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57
Outcome: referred to
In written submissions, the Applicant refers to the following principles: 'a. A person should have matters adverse to that person or that person's application put to that person for comment or evidence before an adverse decision is made (Kioa v West) [1985] HCA 81 ; (1985) 159 CLR 550). b. A decision-maker should not make a decision having had regard to undisclosed material being adverse information that was credible, relevant and significant to the decision to be made without first putting that material to the relevant person ( Kioa, ibid, at 629.3 per Brennan J; Re Refugee Review Tribunal, Ex party Aala [2000] HCA 57 ; (2000) 204 CLR 82; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57; and Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 76 ALJR 966). c. A decision-maker should bring to a person's attention the critical issue or factor on which the decision is likely to turn so that the person may have an opportunity to deal with it (eg: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 at [81] ). d. A decision-maker should not mislead a party as to the importance of a factor to the decision-maker (either actively or impliedly) ( Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57; Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 76 ALJR 966).'
Case: Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 76 ALJR 966
Outcome: referred to
In written submissions, the Applicant refers to the following principles: 'a. A person should have matters adverse to that person or that person's application put to that person for comment or evidence before an adverse decision is made (Kioa v West) [1985] HCA 81 ; (1985) 159 CLR 550). b. A decision-maker should not make a decision having had regard to undisclosed material being adverse information that was credible, relevant and significant to the decision to be made without first putting that material to the relevant person ( Kioa, ibid, at 629.3 per Brennan J; Re Refugee Review Tribunal, Ex party Aala [2000] HCA 57 ; (2000) 204 CLR 82; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57; and Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 76 ALJR 966). c. A decision-maker should bring to a person's attention the critical issue or factor on which the decision is likely to turn so that the person may have an opportunity to deal with it (eg: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 at [81] ). d. A decision-maker should not mislead a party as to the importance of a factor to the decision-maker (either actively or impliedly) ( Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57; Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 76 ALJR 966).'
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1
Outcome: referred to
In written submissions, the Applicant refers to the following principles: 'a. A person should have matters adverse to that person or that person's application put to that person for comment or evidence before an adverse decision is made (Kioa v West) [1985] HCA 81 ; (1985) 159 CLR 550). b. A decision-maker should not make a decision having had regard to undisclosed material being adverse information that was credible, relevant and significant to the decision to be made without first putting that material to the relevant person ( Kioa, ibid, at 629.3 per Brennan J; Re Refugee Review Tribunal, Ex party Aala [2000] HCA 57 ; (2000) 204 CLR 82; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57; and Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 76 ALJR 966). c. A decision-maker should bring to a person's attention the critical issue or factor on which the decision is likely to turn so that the person may have an opportunity to deal with it (eg: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 at [81] ). d. A decision-maker should not mislead a party as to the importance of a factor to the decision-maker (either actively or impliedly) ( Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57; Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 76 ALJR 966).'
Case: Cornall v A.B. [1995] 1 VR 372
Outcome: followed
The importance of looking at the decision-making process in its entirety was referred to in the decision of Cornall v A.B. [1995] 1 VR 372 which concerned the application of a scheme of review in relation to an alleged breach of professional standards by a solicitor. In that case, the statutory scheme provided for a staged process of investigation and referral before the making of a final determination. The Full Court of the Victorian Supreme Court observed, at 396, that it is not a requirement in every case that an investigative body must afford a person under investigation an opportunity to be heard before the body can recommend a further step which could result in a determination of a judicial or quasi-judicial nature. At 397, the Court noted that consideration of the relevant principle may properly begin with a statement of S.A. de Smith in his Judicial Review of Administrative Action (4 th ed.) p. 199 , which reads: "Where an act or proposal is only the first step in a sequence of measures which may culminate in a decision detrimental to a person's interests, the courts will generally decline to accede to that person's submission that he is entitled to be heard in opposition to this final act, particularly if he is entitled to be heard at a later stage." 41 Their Honours decided that the common law principles of natural justice could be modified or displaced where a legislative intent could be discerned from a statutory scheme. In the case of Cornall , the requirements of natural justice were considered to have been satisfied by the statutory scheme leading to the ultimate determination, having regard to the entire process from the complaint to the final determination. The requirements of procedural fairness were therefore considered to have been exclusively prescribed by the detailed statutory scheme, and there was no room for the implication of procedural fairness in addition to those provided by the Legal Profession Practice Act 1958 (Vic) . Their Honours also referred to the decision of Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596, where Mason CJ, Deane and McHugh JJ said at 598: "It can be taken as settled, that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment."
Case: Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596
Outcome: cited
Their Honours decided that the common law principles of natural justice could be modified or displaced where a legislative intent could be discerned from a statutory scheme. In the case of Cornall , the requirements of natural justice were considered to have been satisfied by the statutory scheme leading to the ultimate determination, having regard to the entire process from the complaint to the final determination. The requirements of procedural fairness were therefore considered to have been exclusively prescribed by the detailed statutory scheme, and there was no room for the implication of procedural fairness in addition to those provided by the Legal Profession Practice Act 1958 (Vic) . Their Honours also referred to the decision of Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596, where Mason CJ, Deane and McHugh JJ said at 598: "It can be taken as settled, that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment."
Case: Commissioner of Police v Tanos [1958] HCA 6 ; (1958) 98 CLR 383
Outcome: cited
The question is whether the statutory provisions are effective to exclude any supplementary duty of fairness under the common law. In order to exclude the rules of natural justice, the legislative intent must be clearly evident and cannot be discerned from indirect references, uncertain inferences or equivocal considerations: Commissioner of Police v Tanos [1958] HCA 6 ; (1958) 98 CLR 383 at 396.