mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCA 49 ; (2009) 108 ALD 329
Outcome: referred to
Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCA 49 ; (2009) 108 ALD 329 at 337 Perram J, without expressing a concluded view, said that there was "much to be said" for the views of Finkelstein J in Lees . His Honour suggested two additional considerations which supported Finkelstein J's reasons for doubting the correctness of the decision in Dornan . These additional considerations were: "First, the reasons which attend an administrative decision are conceptually distinct from that decision and it is the decision, and not the reasons which accompany it, which is the subject of judicial review or, as here, appeal under s 44. The reasons have no legal consequences in themselves. Rather, they provide material from which arguments about the correctness of the decision may be crafted. Their legal relevance is, therefore, derivative from the decision to which they are appurtenant. ... ... Second, once the derivative nature is understood it must follow that the legal requirements attending the production of reasons need have no necessary connexion with the legal requirements attending the decision. A decision accompanied by perfectly adequate reasons may be riddled with legal errors just as a decision which is accompanied by inadequate reasons may be legal impeccable. The fallacy in the view that the provision of inadequate reasons is an error of law in the decision springs from the conflation of rules concerned with the making of the decision itself with rules concerned with the provision of reasons, a conflation which is, in my opinion, wholly without warrant. This is not to say that questions of law do not arise from the operation of rules about the provision of reasons. It is only to say that such questions arise dehors the decision and cannot be errors in the decision itself": at 337-8. There is no reference, in the Full Court's reasons, to either of the High Court's decisions in Yusuf and Palme . Given that it was common ground that, in giving inadequate reasons, the Tribunal had committed a jurisdictional error of law, I assume that the Court's attention was not drawn to these decisions although I note that, in the primary judge's reasons, His Honour observed, referring to Yusuf , that "it is unlikely that the error of law constituted by inadequate reasons could be jurisdictional": see Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCA 49 ; (2009) 108 ALD 329 at 345. Whilst it may be accepted that the failure, on the part of a decision maker, to comply with a statutory obligation to provide reasons might constitute an error of law it does not follow that such an error is jurisdictional in nature such as to justify the setting aside of the impugned decision. That position does not change simply because the decision-maker is no longer available to provide further and better reasons. That circumstance does not, in my respectful opinion, render it inevitable that the decision under review should be set aside.
Case: Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137
Outcome: applied
already noted there is authority to support an affirmative answer to this question. It is to be found in the Victorian Supreme Court's decision in the State Electricity Commission case. Authority is also to be found in decisions of this Court. In Dornan v Riordan (1990) 24 FCR 564 , a Full Court held that a failure to give adequate reasons constitutes an error of law justifying the setting aside of an administrative decision. See also Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 ; Preston v Secretary, Department of Family and Community Services (2004) 39 AAR 177 at 184; Hill v Repatriation Commission [2004] FCA 832 ; (2004) 207 ALR 470 at 474; and, most recently, Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137. These were cases in which the tribunal concerned had produced cryptic and uninformative reasons such that the reviewing court could not discern why it was that the tribunal had reached the impugned decision. In particular it was not possible to determine whether the correct legal principles had been applied. In Dornan , the Full Court drew on authorities such as Pettitt v Dunkley [1971] 1 NSWLR 376 in which appellate courts had found that trial judges erred in law if they failed to provide reasons or sufficient reasons thereby depriving the appeal court of the capacity to determine whether a verdict had been reached in accordance with law. In Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137 , the Full Court was concerned with an appeal, under s 44 of the AAT Act, from a decision of the Tribunal to set aside a decision of the Authority to cancel a certificate of approval. Both parties to the appeal accepted that the Tribunal had failed to satisfy the obligation, imposed on it, by s 43(2) of the AAT Act, to provide adequate reasons for its decision. It was common ground that such a failure constituted a "question of law" for the purposes of s 44(1) of the AAT Act. The Full Court said (at [42] - [43]) that: "In circumstances such as the present, where it is common ground that there is a statutory entitlement to reasons and where such reasons have not been provided and cannot now be provided by the Tribunal member who made the decision, it is inevitable that the decision itself must be set aside. The primary judge correctly concluded that there had been non-compliance with s 43(2) and ordered that reasons now be provided by the original decision-maker. Compliance with that order is no longer possible. Because of the accepted failure to comply with s 43(2), the Tribunal decision must be set aside and the matter remitted for a new hearing in the Tribunal".
Case: Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522
Outcome: cited
161 of the Act, like s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"), allows an appeal to this Court only on a question of law. The existence of a question of law is not merely a qualifying condition to ground an appeal under s 44, but is also the subject matter of the appeal itself: see TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 at 178 per Gummow J. The Court has repeatedly emphasised the need for pure questions of law to be identified and for them to appear in the notice of appeal in order for the Court to be able to entertain an appeal: see, for example, Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524; Birdseye at 324-325; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at 300-302; Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at 526-527; Commissioner of Taxation v Dixon [2006] FCA 1250 ; (2006) 155 FCR 101 at 104-106; Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 169 FCR 241 at 253-7. In Birdseye , Branson and Stone JJ held (at 325) that: "... O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the tribunal should be stated with precision as a pure question of law . It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal" (emphasis added).
Case: Commissioner of Taxation v Dixon [2006] FCA 1250 ; (2006) 155 FCR 101
Outcome: cited
161 of the Act, like s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"), allows an appeal to this Court only on a question of law. The existence of a question of law is not merely a qualifying condition to ground an appeal under s 44, but is also the subject matter of the appeal itself: see TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 at 178 per Gummow J. The Court has repeatedly emphasised the need for pure questions of law to be identified and for them to appear in the notice of appeal in order for the Court to be able to entertain an appeal: see, for example, Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524; Birdseye at 324-325; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at 300-302; Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at 526-527; Commissioner of Taxation v Dixon [2006] FCA 1250 ; (2006) 155 FCR 101 at 104-106; Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 169 FCR 241 at 253-7. In Birdseye , Branson and Stone JJ held (at 325) that: "... O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the tribunal should be stated with precision as a pure question of law . It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal" (emphasis added).
Case: Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia [1981] HCA 26 ; (1981) 147 CLR 297
Outcome: referred to
submitted that the construction of s 27 of the Management Plan must be undertaken by reference to the language used, read in the legislative context, including the objects which the Act was intended to achieve: see Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia [1981] HCA 26 ; (1981) 147 CLR 297 at 304-5 and s 15AA of the Acts Interpretation Act 1901 (Cth). The starting point must be the ordinary and grammatical meaning of the words of s 27 construed in the context in which they appear, including the Act and the Management Plan as a whole: see K. &amp; S. Lake City Freighters Proprietary Limited v Gordon &amp; Gotch Limited [1985] HCA 48 ; (1985) 157 CLR 309 at 315 (per Mason J); Mills v Meeking [1990] HCA 6 ; (1990) 169 CLR 214 at 235 and 242-243.
Case: Director-General of Social Services v Chaney [1980] FCA 87 ; (1980) 47 FLR 80
Outcome: cited
it is important to identify precisely what act is being impugned: Palme at 225. In Palme there was an attack by Constitutional writ on the exercise of the power to cancel a visa. In this case, there is an appeal from the Panel's decision to set aside AFMA's decision and substitute one more favourable to Mr Kennedy because it was not sufficiently favourable to his interests. The word "decision" in this context means the final and operative decision of the Panel as provided for in s 150(3) of the Act: Director-General of Social Services v Chaney [1980] FCA 87 ; (1980) 47 FLR 80. Section 161 fixes on the decision as the subject matter of the appeal, not on the reasons.
Case: Finance Facilities Pty Limited v The Commissioner of Taxation of the Commonwealth of Australia [1971] HCA 12 ; (1971) 127 CLR 106
Outcome: referred to
Kennedy contended that s 27 makes remedial provision for an eligible person who has been disadvantaged by having suffered a serious misfortune. For an eligible person so disadvantaged, s 27 provides a benevolent scheme: a person who suffered serious misfortune should be no worse off than he or she might have been had the relevant period been worked. Accordingly, once an eligible person comes within the purview of ss 27(1)(a) and (b) of the Management Plan, he or she is entitled as of right to AFMA's making the calculations prescribed by ss 27(1)(c) and (d): see Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 at 222-223; The Metropolitan Coal Company of Sydney Limited v The Australian Coal and Shale Employees' Federation [1917] HCA 64 ; (1917) 24 CLR 85 at 96-100; Re United Firefighters Union (1969) 129 CAR 43 at 52-55; Finance Facilities Pty Limited v The Commissioner of Taxation of the Commonwealth of Australia [1971] HCA 12 ; (1971) 127 CLR 106 at 134-5; Stuart v Kirland-Veenstra [2009] HCA 15 ; (2009) 254 ALR 432 at 468. It was submitted that the word "may" in s 27(1)(c) of the Management Plan confers a power on AFMA which is to be exercised upon its satisfaction of the matters described in ss 27(1)(a) and (b): see Leach v The Queen [2007] HCA 3 ; (2007) 230 CLR 1 at 17-18 .
Case: Hill v Repatriation Commission [2004] FCA 832 ; (2004) 207 ALR 470
Outcome: cited
already noted there is authority to support an affirmative answer to this question. It is to be found in the Victorian Supreme Court's decision in the State Electricity Commission case. Authority is also to be found in decisions of this Court. In Dornan v Riordan (1990) 24 FCR 564 , a Full Court held that a failure to give adequate reasons constitutes an error of law justifying the setting aside of an administrative decision. See also Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 ; Preston v Secretary, Department of Family and Community Services (2004) 39 AAR 177 at 184; Hill v Repatriation Commission [2004] FCA 832 ; (2004) 207 ALR 470 at 474; and, most recently, Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137. These were cases in which the tribunal concerned had produced cryptic and uninformative reasons such that the reviewing court could not discern why it was that the tribunal had reached the impugned decision. In particular it was not possible to determine whether the correct legal principles had been applied. In Dornan , the Full Court drew on authorities such as Pettitt v Dunkley [1971] 1 NSWLR 376 in which appellate courts had found that trial judges erred in law if they failed to provide reasons or sufficient reasons thereby depriving the appeal court of the capacity to determine whether a verdict had been reached in accordance with law. The Full Court referred to Dornan and noted that, in Lees , Finkelstein J had acknowledged that he was bound to follow Dornan . It referred to Preston and Hill as authority for the proposition that a "failure to state reasons for a decision at least in those circumstances where a statement of reasons is a requirement of the exercise of the decision-making process constitutes an error of law": at [49].
Case: Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 169 FCR 241
Outcome: cited
161 of the Act, like s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"), allows an appeal to this Court only on a question of law. The existence of a question of law is not merely a qualifying condition to ground an appeal under s 44, but is also the subject matter of the appeal itself: see TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 at 178 per Gummow J. The Court has repeatedly emphasised the need for pure questions of law to be identified and for them to appear in the notice of appeal in order for the Court to be able to entertain an appeal: see, for example, Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524; Birdseye at 324-325; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at 300-302; Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at 526-527; Commissioner of Taxation v Dixon [2006] FCA 1250 ; (2006) 155 FCR 101 at 104-106; Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 169 FCR 241 at 253-7. In Birdseye , Branson and Stone JJ held (at 325) that: "... O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the tribunal should be stated with precision as a pure question of law . It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal" (emphasis added).
Case: Julius v Lord Bishop of Oxford (1880) 5 App Cas 214
Outcome: considered
Kennedy contended that s 27 makes remedial provision for an eligible person who has been disadvantaged by having suffered a serious misfortune. For an eligible person so disadvantaged, s 27 provides a benevolent scheme: a person who suffered serious misfortune should be no worse off than he or she might have been had the relevant period been worked. Accordingly, once an eligible person comes within the purview of ss 27(1)(a) and (b) of the Management Plan, he or she is entitled as of right to AFMA's making the calculations prescribed by ss 27(1)(c) and (d): see Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 at 222-223; The Metropolitan Coal Company of Sydney Limited v The Australian Coal and Shale Employees' Federation [1917] HCA 64 ; (1917) 24 CLR 85 at 96-100; Re United Firefighters Union (1969) 129 CAR 43 at 52-55; Finance Facilities Pty Limited v The Commissioner of Taxation of the Commonwealth of Australia [1971] HCA 12 ; (1971) 127 CLR 106 at 134-5; Stuart v Kirland-Veenstra [2009] HCA 15 ; (2009) 254 ALR 432 at 468. It was submitted that the word "may" in s 27(1)(c) of the Management Plan confers a power on AFMA which is to be exercised upon its satisfaction of the matters described in ss 27(1)(a) and (b): see Leach v The Queen [2007] HCA 3 ; (2007) 230 CLR 1 at 17-18 .
Case: K. &amp; S. Lake City Freighters Proprietary Limited v Gordon &amp; Gotch Limited [1985] HCA 48 ; (1985) 157 CLR 309
Outcome: referred to
submitted that the construction of s 27 of the Management Plan must be undertaken by reference to the language used, read in the legislative context, including the objects which the Act was intended to achieve: see Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia [1981] HCA 26 ; (1981) 147 CLR 297 at 304-5 and s 15AA of the Acts Interpretation Act 1901 (Cth). The starting point must be the ordinary and grammatical meaning of the words of s 27 construed in the context in which they appear, including the Act and the Management Plan as a whole: see K. &amp; S. Lake City Freighters Proprietary Limited v Gordon &amp; Gotch Limited [1985] HCA 48 ; (1985) 157 CLR 309 at 315 (per Mason J); Mills v Meeking [1990] HCA 6 ; (1990) 169 CLR 214 at 235 and 242-243.
Case: Leach v The Queen [2007] HCA 3 ; (2007) 230 CLR 1
Outcome: cited
Kennedy contended that s 27 makes remedial provision for an eligible person who has been disadvantaged by having suffered a serious misfortune. For an eligible person so disadvantaged, s 27 provides a benevolent scheme: a person who suffered serious misfortune should be no worse off than he or she might have been had the relevant period been worked. Accordingly, once an eligible person comes within the purview of ss 27(1)(a) and (b) of the Management Plan, he or she is entitled as of right to AFMA's making the calculations prescribed by ss 27(1)(c) and (d): see Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 at 222-223; The Metropolitan Coal Company of Sydney Limited v The Australian Coal and Shale Employees' Federation [1917] HCA 64 ; (1917) 24 CLR 85 at 96-100; Re United Firefighters Union (1969) 129 CAR 43 at 52-55; Finance Facilities Pty Limited v The Commissioner of Taxation of the Commonwealth of Australia [1971] HCA 12 ; (1971) 127 CLR 106 at 134-5; Stuart v Kirland-Veenstra [2009] HCA 15 ; (2009) 254 ALR 432 at 468. It was submitted that the word "may" in s 27(1)(c) of the Management Plan confers a power on AFMA which is to be exercised upon its satisfaction of the matters described in ss 27(1)(a) and (b): see Leach v The Queen [2007] HCA 3 ; (2007) 230 CLR 1 at 17-18 .
Case: Metropolitan Coal Company of Sydney Limited, The v The Australian Coal and Shale Employees' Federation [1917] HCA 64 ; (1917) 24 CLR 85
Outcome: cited
Kennedy contended that s 27 makes remedial provision for an eligible person who has been disadvantaged by having suffered a serious misfortune. For an eligible person so disadvantaged, s 27 provides a benevolent scheme: a person who suffered serious misfortune should be no worse off than he or she might have been had the relevant period been worked. Accordingly, once an eligible person comes within the purview of ss 27(1)(a) and (b) of the Management Plan, he or she is entitled as of right to AFMA's making the calculations prescribed by ss 27(1)(c) and (d): see Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 at 222-223; The Metropolitan Coal Company of Sydney Limited v The Australian Coal and Shale Employees' Federation [1917] HCA 64 ; (1917) 24 CLR 85 at 96-100; Re United Firefighters Union (1969) 129 CAR 43 at 52-55; Finance Facilities Pty Limited v The Commissioner of Taxation of the Commonwealth of Australia [1971] HCA 12 ; (1971) 127 CLR 106 at 134-5; Stuart v Kirland-Veenstra [2009] HCA 15 ; (2009) 254 ALR 432 at 468. It was submitted that the word "may" in s 27(1)(c) of the Management Plan confers a power on AFMA which is to be exercised upon its satisfaction of the matters described in ss 27(1)(a) and (b): see Leach v The Queen [2007] HCA 3 ; (2007) 230 CLR 1 at 17-18 .
Case: Mills v Meeking [1990] HCA 6 ; (1990) 169 CLR 214
Outcome: referred to
submitted that the construction of s 27 of the Management Plan must be undertaken by reference to the language used, read in the legislative context, including the objects which the Act was intended to achieve: see Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia [1981] HCA 26 ; (1981) 147 CLR 297 at 304-5 and s 15AA of the Acts Interpretation Act 1901 (Cth). The starting point must be the ordinary and grammatical meaning of the words of s 27 construed in the context in which they appear, including the Act and the Management Plan as a whole: see K. &amp; S. Lake City Freighters Proprietary Limited v Gordon &amp; Gotch Limited [1985] HCA 48 ; (1985) 157 CLR 309 at 315 (per Mason J); Mills v Meeking [1990] HCA 6 ; (1990) 169 CLR 214 at 235 and 242-243.
Case: Mountview Court Properties Ltd v Devlin (1970) 21 P &amp; CR 689
Outcome: referred to
approach did not enjoy universal acceptance. In Comcare v Lees (1997) 151 ALR 647 at 656-9, Finkelstein J reviewed the authorities which commenced with Dornan and concluded that, were he not bound by these decisions, he would not follow them. He drew attention to conflicting decisions, including that of Brennan J in Repatriation Commission v O'Brien [1985] HCA 10 ; (1985) 155 CLR 422 at 445-6 and the English Divisional Court in Mountview Court Properties Ltd v Devlin (1970) 21 P &amp; CR 689. He considered it to be inappropriate to draw on cases in which appellate courts found reasons to be inadequate because, in such cases, no remedies such as a statutory order in the nature of mandamus were available to require the relevant trial judges to rectify the deficiencies in their reasons. His Honour also noted that, in the appellate context, the appellable error was founded on common law doctrine rather than on the construction of a statutory obligation to provide reasons. One might add that there is no compelling reason for treating a decision as errant solely because no reasons or no adequate reasons have been advanced to support it, unless one was attracted to Lord Denning's notion that, if a decision-maker fails to give reasons for a decision, a reviewing court could infer that he did not have any good reasons: see Padfield v Minister of Agriculture, Fisheries and Food [1968] UKHL 1 ; [1968] AC 997 at 1007.