mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: M17/2004 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 85 ALD 597
Outcome: cited
In applying s 424A , it is necessary to focus on matters that, viewed prospectively, would be the reason or a part of the reason for the Tribunal's decision, or viewed retrospectively in the light of the Tribunal's actual decision, can be seen to be the reason, or a part of the reason, for the Tribunal's decision. At the outset of the Tribunal hearing and prior to the appellant's evidence to the Tribunal, I doubt that the Keskin information could be characterised as information that the Tribunal then considered, or might consider, would be the reason or a part of the reason for affirming the delegate's decision. By itself, the Keskin information was not adverse to the appellant. Numerous cases suggest that s 424A is concerned with information that is adverse to the interests of the visa applicant: see SAAP per McHugh J at 175 [50]; VAF per Finn and Stone JJ at 476-477 [24]; WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 per French J at 637 [57]; and M17/2004 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 85 ALD 597 per Ryan J at 615-616 [79] [83]. The Keskin information was simply factual information that might assist in testing the extent of the appellant's knowledge of the activities of the HRA in Turkey and the veracity of her claims. The same picture is presented when the matter is viewed retrospectively in the light of the Tribunal's reasons. The Tribunal attached some significance to the fact that in her evidence to the Tribunal the appellant displayed a lack of knowledge of the Keskin information, amongst other matters. In my opinion, the Keskin information cannot be characterised as the reason, or as a part of the reason, for the Tribunal's affirmation of the decision under review.
Case: Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1
Outcome: cited
The immediate obstacle confronting this ground of appeal is that the Tribunal is the finder of fact. Mere errors in fact-finding will not constitute an error of law, let alone a jurisdictional error: see Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 per Brennan J at 35-36; and Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59 (" Appellant S106/2002 ") per Gleeson CJ at 61 62 [5] [9] and per Kirby J at 85 86 [116] [120]. Even if a factual finding is illogical or unsupported by evidence, it would only be capable of constituting a jurisdictional error if it constituted a critical step in the Tribunal's ultimate conclusion or demonstrated that there had been only a purported, rather than a real, exercise of power: see Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 per Mason CJ at 355-357; SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 per Mansfield, Selway and Bennett JJ at 407-408 [19] [20]; and NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 (" NACB ") at [29]. In NACB , the Full Court (Tamberlin, Emmett and Weinberg JJ) affirmed a line of authorities to the effect that illogical reasoning does not of itself constitute an error of law or jurisdictional error, or necessarily indicate that there had only been a purported exercise of power. In W404/01A of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 255 at [35] , Lee and Carr JJ, with whom French J agreed, said that even though the Tribunal's reasoning could be regarded as illogical, this did not in itself show a ground of review although it may on occasion manifest other reviewable error. In VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 at [18] , the Full Court (Kiefel, Marshall and Dowsett JJ) reviewed the authorities and concluded that want of logic in the reasons of the Tribunal is not an available ground of review.
Case: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321
Outcome: cited
The immediate obstacle confronting this ground of appeal is that the Tribunal is the finder of fact. Mere errors in fact-finding will not constitute an error of law, let alone a jurisdictional error: see Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 per Brennan J at 35-36; and Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59 (" Appellant S106/2002 ") per Gleeson CJ at 61 62 [5] [9] and per Kirby J at 85 86 [116] [120]. Even if a factual finding is illogical or unsupported by evidence, it would only be capable of constituting a jurisdictional error if it constituted a critical step in the Tribunal's ultimate conclusion or demonstrated that there had been only a purported, rather than a real, exercise of power: see Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 per Mason CJ at 355-357; SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 per Mansfield, Selway and Bennett JJ at 407-408 [19] [20]; and NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 (" NACB ") at [29]. In NACB , the Full Court (Tamberlin, Emmett and Weinberg JJ) affirmed a line of authorities to the effect that illogical reasoning does not of itself constitute an error of law or jurisdictional error, or necessarily indicate that there had only been a purported exercise of power. In W404/01A of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 255 at [35] , Lee and Carr JJ, with whom French J agreed, said that even though the Tribunal's reasoning could be regarded as illogical, this did not in itself show a ground of review although it may on occasion manifest other reviewable error. In VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 at [18] , the Full Court (Kiefel, Marshall and Dowsett JJ) reviewed the authorities and concluded that want of logic in the reasons of the Tribunal is not an available ground of review.
Case: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402
Outcome: cited
The immediate obstacle confronting this ground of appeal is that the Tribunal is the finder of fact. Mere errors in fact-finding will not constitute an error of law, let alone a jurisdictional error: see Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 per Brennan J at 35-36; and Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59 (" Appellant S106/2002 ") per Gleeson CJ at 61 62 [5] [9] and per Kirby J at 85 86 [116] [120]. Even if a factual finding is illogical or unsupported by evidence, it would only be capable of constituting a jurisdictional error if it constituted a critical step in the Tribunal's ultimate conclusion or demonstrated that there had been only a purported, rather than a real, exercise of power: see Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 per Mason CJ at 355-357; SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 per Mansfield, Selway and Bennett JJ at 407-408 [19] [20]; and NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 (" NACB ") at [29]. In NACB , the Full Court (Tamberlin, Emmett and Weinberg JJ) affirmed a line of authorities to the effect that illogical reasoning does not of itself constitute an error of law or jurisdictional error, or necessarily indicate that there had only been a purported exercise of power. In W404/01A of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 255 at [35] , Lee and Carr JJ, with whom French J agreed, said that even though the Tribunal's reasoning could be regarded as illogical, this did not in itself show a ground of review although it may on occasion manifest other reviewable error. In VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 at [18] , the Full Court (Kiefel, Marshall and Dowsett JJ) reviewed the authorities and concluded that want of logic in the reasons of the Tribunal is not an available ground of review.
Case: NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235
Outcome: cited
The immediate obstacle confronting this ground of appeal is that the Tribunal is the finder of fact. Mere errors in fact-finding will not constitute an error of law, let alone a jurisdictional error: see Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 per Brennan J at 35-36; and Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59 (" Appellant S106/2002 ") per Gleeson CJ at 61 62 [5] [9] and per Kirby J at 85 86 [116] [120]. Even if a factual finding is illogical or unsupported by evidence, it would only be capable of constituting a jurisdictional error if it constituted a critical step in the Tribunal's ultimate conclusion or demonstrated that there had been only a purported, rather than a real, exercise of power: see Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 per Mason CJ at 355-357; SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 per Mansfield, Selway and Bennett JJ at 407-408 [19] [20]; and NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 (" NACB ") at [29]. In NACB , the Full Court (Tamberlin, Emmett and Weinberg JJ) affirmed a line of authorities to the effect that illogical reasoning does not of itself constitute an error of law or jurisdictional error, or necessarily indicate that there had only been a purported exercise of power. In W404/01A of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 255 at [35] , Lee and Carr JJ, with whom French J agreed, said that even though the Tribunal's reasoning could be regarded as illogical, this did not in itself show a ground of review although it may on occasion manifest other reviewable error. In VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 at [18] , the Full Court (Kiefel, Marshall and Dowsett JJ) reviewed the authorities and concluded that want of logic in the reasons of the Tribunal is not an available ground of review.
Case: W404/01A of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 255
Outcome: cited
The immediate obstacle confronting this ground of appeal is that the Tribunal is the finder of fact. Mere errors in fact-finding will not constitute an error of law, let alone a jurisdictional error: see Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 per Brennan J at 35-36; and Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59 (" Appellant S106/2002 ") per Gleeson CJ at 61 62 [5] [9] and per Kirby J at 85 86 [116] [120]. Even if a factual finding is illogical or unsupported by evidence, it would only be capable of constituting a jurisdictional error if it constituted a critical step in the Tribunal's ultimate conclusion or demonstrated that there had been only a purported, rather than a real, exercise of power: see Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 per Mason CJ at 355-357; SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 per Mansfield, Selway and Bennett JJ at 407-408 [19] [20]; and NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 (" NACB ") at [29]. In NACB , the Full Court (Tamberlin, Emmett and Weinberg JJ) affirmed a line of authorities to the effect that illogical reasoning does not of itself constitute an error of law or jurisdictional error, or necessarily indicate that there had only been a purported exercise of power. In W404/01A of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 255 at [35] , Lee and Carr JJ, with whom French J agreed, said that even though the Tribunal's reasoning could be regarded as illogical, this did not in itself show a ground of review although it may on occasion manifest other reviewable error. In VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 at [18] , the Full Court (Kiefel, Marshall and Dowsett JJ) reviewed the authorities and concluded that want of logic in the reasons of the Tribunal is not an available ground of review.
Case: VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286
Outcome: cited
The immediate obstacle confronting this ground of appeal is that the Tribunal is the finder of fact. Mere errors in fact-finding will not constitute an error of law, let alone a jurisdictional error: see Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 per Brennan J at 35-36; and Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59 (" Appellant S106/2002 ") per Gleeson CJ at 61 62 [5] [9] and per Kirby J at 85 86 [116] [120]. Even if a factual finding is illogical or unsupported by evidence, it would only be capable of constituting a jurisdictional error if it constituted a critical step in the Tribunal's ultimate conclusion or demonstrated that there had been only a purported, rather than a real, exercise of power: see Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 per Mason CJ at 355-357; SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 per Mansfield, Selway and Bennett JJ at 407-408 [19] [20]; and NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 (" NACB ") at [29]. In NACB , the Full Court (Tamberlin, Emmett and Weinberg JJ) affirmed a line of authorities to the effect that illogical reasoning does not of itself constitute an error of law or jurisdictional error, or necessarily indicate that there had only been a purported exercise of power. In W404/01A of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 255 at [35] , Lee and Carr JJ, with whom French J agreed, said that even though the Tribunal's reasoning could be regarded as illogical, this did not in itself show a ground of review although it may on occasion manifest other reviewable error. In VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 at [18] , the Full Court (Kiefel, Marshall and Dowsett JJ) reviewed the authorities and concluded that want of logic in the reasons of the Tribunal is not an available ground of review.
Case: NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52
Outcome: cited
Hartnett FM concluded that none of the impugned findings was illogical, or indicated that the Tribunal had failed to properly exercise its jurisdiction. As Gleeson CJ pointed out in Appellant S106/2002 , the description of reasoning as illogical or irrational may merely be an emphatic way of expressing disagreement with it. It is not enough that another Tribunal might not have made the impugned findings, or attached the same weight to them. As the Full Court (Heerey, Sundberg and Crennan JJ) said in NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52 at [27] , opinions can vary about what is inherently improbable or unacceptable as evidence of the fact, or what evidence makes sense, that is whether evidence is probative in relation to a particular fact. In the absence of perversity or manifest error, sufficient in each case to give rise to jurisdictional error, the Court cannot intervene.
Case: Australian Competition and Consumer Commission v Visy Industries Holdings Pty Ltd (No 2) (2007) 239 ALR 762
Outcome: followed
In Australian Competition and Consumer Commission v Visy Industries Holdings Pty Ltd (No 2) (2007) 239 ALR 762 ( Visy No 2 ), Heerey J was asked to consider claims of litigation privilege made with respect to 216 ACCC documents, including the Hodgson Interview transcript now at issue: Visy No 2 at [6]. His Honour found that litigation was reasonably anticipated as at 15 December 2004 - that is, prior to the Hodgson interview on 17 December 2004: Visy No 2 at [78]-[93]. Heerey J also found that the documents and communications in question were generated for the dominant purpose of amassing and assessing evidence to be used in contemplated civil penalty proceedings for price fixing against Visy: Visy No 2 at [97]-[101]. The Full Court of this Court upheld the judgment on appeal: Visy Industries Holdings Pty Ltd v ACCC (2007) 161 FCR 122. 4 A preliminary question involves the relevance, if any, of the findings of fact made by Heerey J in Visy No 2 to these proceedings, given that his Honour had before him among the 216 challenged documents the same Hodgson Interview transcript now sought here. It is trite that, as a matter of common and statutory law, findings of fact in one judgment are inadmissible in a subsequent proceeding as against a non-party to the prior proceeding except, where relevant, to ascertain the parties to those proceedings and the issues raised in that litigation as disclosed in the reasons: National Mutual Life Association of Australasia Limited v Grosvenor Hill (Qld) [2001] FCA 237 ; (2001) 183 ALR 700 at [48] ; Evidence Act 1995 (Cth) s 91(1). However, the ACCC does not contend that I can or should simply rely on the facts found by Heerey J in deciding whether to uphold the ACCC's claim of litigation privilege. Rather, the primary submission of the ACCC is that the principle of stare decisis should lead me to reach the same result when the settled elements of litigation privilege are applied to the facts relating to the Hodgson Interview transcript which I must independently find based on the evidence before me.
Case: Cadbury Schweppes Pty Ltd v Amcor Ltd (2008) 246 ALR 137
Outcome: applied
The ACCC opposes Cadbury being granted leave to uplift the transcript on the basis that the Hodgson Interview transcript is subject to a claim of legal professional privilege - specifically, litigation privilege - held by the ACCC. I previously considered at some length, in these proceedings, the legal principles and elements supporting a legal professional privilege claim: Cadbury Schweppes Pty Ltd v Amcor Ltd (2008) 246 ALR 137 ( Cadbury I ). In Cadbury I , I noted that it is settled that for a claim of litigation privilege to be upheld, the document or communication in question must have been made (1) in anticipation of (or during) litigation; and (2) for the dominant purpose of obtaining legal advice or evidence for the litigation: Cadbury I at [10]. I observed that there might be a third element of confidentiality, particularly with respect to communications with a third-party witness, but that that aspect of litigation privilege is still unsettled: Cadbury I at [10]. Due to a concession on the part of Cadbury, I did not need to consider the confidentiality question further in that decision.
Case: National Mutual Life Association of Australasia Limited v Grosvenor Hill (Qld) [2001] FCA 237 ; (2001) 183 ALR 700
Outcome: cited
A preliminary question involves the relevance, if any, of the findings of fact made by Heerey J in Visy No 2 to these proceedings, given that his Honour had before him among the 216 challenged documents the same Hodgson Interview transcript now sought here. It is trite that, as a matter of common and statutory law, findings of fact in one judgment are inadmissible in a subsequent proceeding as against a non-party to the prior proceeding except, where relevant, to ascertain the parties to those proceedings and the issues raised in that litigation as disclosed in the reasons: National Mutual Life Association of Australasia Limited v Grosvenor Hill (Qld) [2001] FCA 237 ; (2001) 183 ALR 700 at [48] ; Evidence Act 1995 (Cth) s 91(1). However, the ACCC does not contend that I can or should simply rely on the facts found by Heerey J in deciding whether to uphold the ACCC's claim of litigation privilege. Rather, the primary submission of the ACCC is that the principle of stare decisis should lead me to reach the same result when the settled elements of litigation privilege are applied to the facts relating to the Hodgson Interview transcript which I must independently find based on the evidence before me.
Case: Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 ; (2004) 136 FCR 357
Outcome: applied
In other words there was, as often happens in communications between two parties, a disconnect between the dominant purposes of each party for engaging in the communication. The question is whose purpose is relevant. In Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 ; (2004) 136 FCR 357 , it was made clear (at [35]) that the relevant purpose is that of the person who procured the creation of the communication or document. In this case, the creation of both the communication (the Hodgson Interview) and the document (transcript) containing that communication was procured by the ACCC; that the ACCC had to offer and discuss immunity for Hodgson in order to get them was incidental to fulfilment of that dominant purpose. The correspondence and memoranda relied on by Cadbury, while illuminating the concerns of the interviewee Hodgson and the ACCC discussions of the means by which to meet those concerns and obtain the information sought, do not support a finding that the ACCC's dominant purpose was other than to investigate and prosecute suspected cartel conduct. 14 In my view, a review of all the documents identified by Cadbury confirms that the investigative purpose acknowledged by Cadbury (albeit incompletely) was in fact the dominant one. That is to say, as Cadbury accepted in its written submissions, the ACCC sought an interview of Hodgson to further its investigation; but that statement of purpose is not complete without answering the questions "investigation of what" and "to what end." 15 A letter from the ACCC to Hodgson's lawyers dated 13 December 2004 and attached to an affidavit of a solicitor for Cadbury answers the first question. It indicates that the ACCC at that time was investigating "alleged cartel conduct engaged in by Amcor Limited and other corporations in relation to the supply of corrugated fibreboard containers." A letter from the ACCC to Hodgson's lawyer dated 16 December 2004 and attached to an affidavit of a solicitor for the ACCC answers the second question. (Cadbury did not argue that Hodgson never received the 16 December letter, but objected to it on the basis that there was no evidence that it was sent on 16 December rather than provided to Hodgson at the interview on 17 December. However, I do not consider that anything turns on whether Hodgson received it on 16 December or instead 17 December.) The 16 December letter indicates that the ACCC sought information from Hodgson for the purpose of "the investigation and any ensuing Court proceedings," including execution of affidavits and giving of evidence in Court proceedings. In other words, the letter shows that the dominant purpose of the interview was for the ACCC to obtain and assess evidence for Court proceedings then in contemplation.
Case: Re Tyler; ex parte Foley [1994] HCA 25 ; (1994) 181 CLR 18
Outcome: cited
Cadbury's primary contention is its second - that stare decisis does not apply because the evidence now before the Court that was not before Heerey J should give rise to different findings of fact and compel a different result. The contents of the stare decisis principle are not in dispute: e.g. Re Tyler; ex parte Foley [1994] HCA 25 ; (1994) 181 CLR 18 , 37-38 (per McHugh J) and Bristol-Myers Squibb Company v FH Faulding &amp; Co Limited [2000] FCA 316 ; (2000) 97 FCR 524 at [148] , [158]-[160]. In fact, as we are all taught at law school, the more closely the facts of a subsequent case are aligned to those of an earlier case, the more compelling is the case for the application of stare decisis.