mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Currabubula Holdings Pty Ltd (in liq); Ex parte Lord (2004) 48 ACSR 734; (2004) 22 ACLC 858
Outcome: cited
both propositions are of some novelty in circumstances such as the present, counsel is correct in submitting that there is some support to be derived from the decisions of Young CJ in Eq in Deputy Commissioner of Taxation v ACN 080 122 587 Pty Ltd [2005] NSWSC 1247 and Austin J in Re Currabubula Holdings Pty Ltd (in liq); Ex parte Lord (2004) 48 ACSR 734; (2004) 22 ACLC 858, at least so far as standing is concerned.
Case: Australian Postal Corporation v Forgie and Another [2003] FCAFC 223 ; (2003) 130 FCR 279
Outcome: referred to
94(1) of the EMDG Act provides that the provisions of subsection (2) thereof apply if the requirements specified in ss 94(1)(a) and 94(1)(b) are satisfied. The fulfilment of the requirements in s 94(1)(b)(ii) is conditional upon the satisfaction of the CEO of Austrade, and such satisfaction is to be determined by the application of the Guidelines. Once a determination has been made that the requirements are met, s 94(2) then directs Austrade to treat the particulars of the previous owner as being those of the applicant. Such determination requires a judgment to be made by the CEO of Austrade. As was observed in Australian Postal Corporation v Forgie and Another [2003] FCAFC 223 ; (2003) 130 FCR 279 at [40] of a decision making process: ' [t] his intellectual process involves matters of judgment and degree' . That is, a decision is required. In the application of both s 94(1)(b)(i) and (ii) a value judgment must be made by the decision-maker. Under s 94(1)(b)(i) a decision is required to be made in respect of the question whether the new owner is carrying on the old business or a part thereof. It follows that there has been a decision made by Austrade in respect of which an appeal may lie to this Court pursuant to s 44 of the AAT Act. Accordingly, the Court rejects the submission that the requirements of s 94(1) constitute jurisdictional facts, and that s 94(1)(b)(i) is capable of determination by objective facts.
Case: Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515
Outcome: referred to
Comcare v Etheridge and Others [2006] FCAFC 27 ; (2006) 149 FCR 522 at 527 the Full Court considered the nature of an appeal under s 44(1) of the AAT Act and determined that an appeal 'on a question of law' is narrower than an appeal 'that merely involves a question of law' . The Court at 527 referred to the observations in Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 38 AAR 55 which expressed approval of the observation of Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 527 where his Honour said: If the question, properly analysed, is not a question of law no amount of formulary like "erred in law" or "was open as a matter of law" can make it into a question of law.
Case: Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 38 AAR 55
Outcome: referred to
Comcare v Etheridge and Others [2006] FCAFC 27 ; (2006) 149 FCR 522 at 527 the Full Court considered the nature of an appeal under s 44(1) of the AAT Act and determined that an appeal 'on a question of law' is narrower than an appeal 'that merely involves a question of law' . The Court at 527 referred to the observations in Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 38 AAR 55 which expressed approval of the observation of Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 527 where his Honour said: If the question, properly analysed, is not a question of law no amount of formulary like "erred in law" or "was open as a matter of law" can make it into a question of law.
Case: Collins v Administrative Appeals Tribunal and Another [2007] FCAFC 111 ; (2007) 163 FCR 35
Outcome: referred to
Court concludes that, since no factual questions are involved in such determination, the question as submitted is one solely of law 'directing the Court's attention to the manner in which the Tribunal failed to discharge its obligations according to law...' : see Collins v Administrative Appeals Tribunal and Another [2007] FCAFC 111 ; (2007) 163 FCR 35 at [55] .
Case: Comcare v Etheridge and Others [2006] FCAFC 27 ; (2006) 149 FCR 522
Outcome: referred to
Comcare v Etheridge and Others [2006] FCAFC 27 ; (2006) 149 FCR 522 at 527 the Full Court considered the nature of an appeal under s 44(1) of the AAT Act and determined that an appeal 'on a question of law' is narrower than an appeal 'that merely involves a question of law' . The Court at 527 referred to the observations in Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 38 AAR 55 which expressed approval of the observation of Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 527 where his Honour said: If the question, properly analysed, is not a question of law no amount of formulary like "erred in law" or "was open as a matter of law" can make it into a question of law.
Case: Corporation of the City of Enfield v Development Assessment Commission and Another [2000] HCA 5 ; (1999) 199 CLR 135
Outcome: referred to
Corporation of the City of Enfield v Development Assessment Commission and Another [2000] HCA 5 ; (1999) 199 CLR 135 at [28] the High Court of Australia observed: The term "jurisdictional fact" (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion.
Case: Gedeon v Commissioner of New South Wales Crime Commission [2008] HCA 43 ; (2008) 82 ALJR 1465
Outcome: referred to
Gedeon v Commissioner of New South Wales Crime Commission [2008] HCA 43 ; (2008) 82 ALJR 1465 at [43] the High Court said: The expression "jurisdictional fact" was used somewhat loosely in the course of submissions. Generally the expression is used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker.
Case: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223
Outcome: cited
The applicant contends that the Act does not apply to her and therefore the divestiture order is invalid because s 4(6)(a) is not a valid law of the Federal Parliament. In the alternative the applicant contends that if it is a valid law, nevertheless, the power in s 21A(4) was not engaged in this case because the requirements of s 25(1D) were not met and therefore the divestiture order is invalid. The applicant further contends that even if these two contentions fail, the divestiture order made by the respondent is invalid because, before it was made, the applicant was not accorded procedural fairness. In the further alternative, the applicant contends that the order is invalid because the respondent was not in fact satisfied that the acquisition is contrary to the national interest within s 21A(4). In her application and statement of claim the applicant also contended that the divestiture order is invalid because the respondent applied a policy and did not genuinely consider the merits of the matter before him or because his decision was unreasonable in the Wednesbury sense ( Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223). At the hearing of the application, those two submissions were abandoned. 25 In relation to the applicant's first contention, the contention may be dealt with by reference to the facts stated to this point. In relation to the applicant's other contentions, I will need to set out the facts in more detail when considering the contentions. 26 Notices under s 78B of the Judiciary Act 1903 (Cth), were given but none of the Attorneys-General sought to intervene. The Solicitor-General for the Commonwealth appeared for the respondent.
Case: Burton v Mayor etc of London Borough of Camden [2000] UKHL 8 ; [2000] 2 AC 399
Outcome: cited
In those circumstances, it is not strictly necessary for me to consider the respondent's alternative submission that in 2004 there was an acquisition within s 21A(4) when the applicant's former husband transferred his interest in the property to the applicant, who then became the sole registered proprietor of the property. The submissions on this issue went no further than the question of whether or not there had been an 'acquisition' within s 21A(4) in 2004. The applicant submits that by reference to general concepts of real property law there was no acquisition in 2004 because the applicant, who was a joint tenant of the property, was already (ie, prior to becoming the sole registered proprietor) seised of the whole of the estate or interest: Bradbrook MacCallum and Moore, Australian Real Property Law (3 rd ed, 2002) 340 [10.02]. It has been said that a joint tenant cannot assign his or her interest but, rather, one of two joint tenants may enter into a transaction by way of release of the estate: Burton v Mayor etc of London Borough of Camden [2000] UKHL 8 ; [2000] 2 AC 399. In response to this submission of the applicant, the respondent referred to s 12A of the Act . That section relevantly provides: '(3) For the purposes of this Act , a person acquires an interest in Australian urban land even if: (a) the person acquires the interest jointly with another person or persons; (b) the person has previously acquired an interest in Australian urban land; or (c) the interest is an increase in the amount of an existing interest of the person in Australian urban land.' 74 I think there was an increase in the applicant's interest within the terms of s 12A(3)(c) when she became the sole registered proprietor of the property and therefore an 'acquisition' within the Act . 75 However, there are a number of further matters which arise once this conclusion is reached and these further matters were not the subject of detailed submissions. They are as follows: 1. The respondent was aware of the proposed acquisition in 2004 and, in fact, agreed to it taking place, although he did so on the applicant agreeing to sell the property and without the formal approval procedures prescribed by the Act being followed. 2. A question may arise as to whether the power to make an order requiring the applicant to dispose of the whole of the property is engaged, having regard to the particular interest acquired by the applicant in 2004. 3. The minute containing the recommendations adopted by the respondent makes it clear that it was the acquisition in 1995 which formed the basis of the order made by the respondent under s 21A(4). A question may arise as to whether, in those circumstances, the respondent's decision can only be considered by reference to that acquisition.
Case: Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64 ; (1992) 176 CLR 1
Outcome: cited
A narrower view of the aliens power has been taken on occasion (see Gaudron J in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64 ; (1992) 176 CLR 1 at 57) but I am satisfied that the views expressed by Brennan J in Cunliffe v Commonwealth (supra) are the principles binding on me. The applicant argued the matter by reference to those principles.
Case: Conwest Global Communications Corporation v Treasurer of the Commonwealth of Australia (1997) 147 ALR 509
Outcome: cited
I am not prepared to infer that the respondent was not in fact satisfied that the acquisition is contrary to the national interest. In the notice of the order dated 23 February 2005 ([7] above) the respondent states that he is satisfied that the acquisition 'is contrary to the national interest'. The minute refers to the provisions of s 21A(4) and to that part of the subsection which refers to the national interest. It is clear that it was a matter which was brought to the respondent's attention. It is true that in terms of the minute the particular matters relevant to the national interest are not clearly identified. Furthermore, the respondent did not give reasons for his decision and he did not give evidence. However, care needs to be exercised in this area because of the broad nature of the concept of the national interest. A court will be slow to interfere with a Minister's decision as to what is in the national interest on the ground that a matter not taken into account was relevant to the national interest or a matter taken into account was irrelevant to the national interest: Leisure Entertainment Pty Ltd v Willis (1996) 64 FCR 205 at 220; Conwest Global Communications Corporation v Treasurer of the Commonwealth of Australia (1997) 147 ALR 509 at 525. A court will also be slow to interfere with a Minister's decision as to what is in the national interest under the guise of an argument that it should be inferred from the material before the decision-maker that he or she was not in fact satisfied that the acquisition was contrary to the national interest.
Case: Cunliffe v The Commonwealth [1994] HCA 44 ; (1994) 182 CLR 272
Outcome: considered
In Cunliffe v The Commonwealth [1994] HCA 44 ; (1994) 182 CLR 272 (at 315-316) Brennan J (as he then was) made the following observations as to the aliens power (at 315-316) (footnotes omitted): 'The power to make laws with respect to aliens, unlike the majority of the powers conferred by s 51 of the Constitution , is not a power to make laws with respect to a function of government, a field of activity or a class of relationships: it is a power to make laws with respect to a class of persons. If, in its operation, a law affects a class of persons with respect to whom there is a power to make laws, the law may have the character of a law with respect to persons of that class. But it is neither necessary nor sufficient that the law should change, regulate or abolish the rights, duties, powers and privileges of the relevant class treated merely as members of the general public or of a substantially wider class than the class of persons who constitute the subject matter of the power. For example, a law which requires notification of symptoms of a disease after entry to Australia by aliens and citizens indifferently is not a law with respect to aliens though it may be a law with respect to quarantine. But if and to the extent that the law discriminates between the public at large and the relevant class of persons (whether textually or in its operation), there is an indicium that the law is a law with respect to persons of that class. That indicium may suffice to give the law the character of a law with respect to persons of that class and, if the discrimination is in a matter peculiarly significant to that class, the law will bear that character. In this respect, the aliens power is similar to the corporations power considered in Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd . In that case, s 45D(1)(b)(i) of the Trade Practices Act 1974 (Cth), which protected the businesses of trading corporations was held to be supported by s 51(xx) of the Constitution as a law with respect to trading corporations.' 51 A narrower view of the aliens power has been taken on occasion (see Gaudron J in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64 ; (1992) 176 CLR 1 at 57) but I am satisfied that the views expressed by Brennan J in Cunliffe v Commonwealth (supra) are the principles binding on me. The applicant argued the matter by reference to those principles.
Case: F Hoffman-La Roche and Co AG v Secretary for Trade and Industry [1975] AC 295
Outcome: cited
The principles governing the applicant's third submission are relatively clear, although they can give rise to difficulties in terms of application. Ordinarily, a decision-maker is not required to invite comment from an applicant as to the decision-maker's provisional views or mental processes ( F Hoffman-La Roche and Co AG v Secretary for Trade and Industry [1975] AC 295 per Lord Diplock at 369). However, a decision-maker may be under an obligation to invite comment from an applicant on an adverse conclusion based on known material if that conclusion is not an obvious and natural conclusion from that material. In Alphaone , the Full Court of this Court (Northrop, Miles and French JJ) put the matter in the following way (at 591-592): 'Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.'
Case: Leisure Entertainment Pty Ltd v Willis (1996) 64 FCR 205
Outcome: cited
I am not prepared to infer that the respondent was not in fact satisfied that the acquisition is contrary to the national interest. In the notice of the order dated 23 February 2005 ([7] above) the respondent states that he is satisfied that the acquisition 'is contrary to the national interest'. The minute refers to the provisions of s 21A(4) and to that part of the subsection which refers to the national interest. It is clear that it was a matter which was brought to the respondent's attention. It is true that in terms of the minute the particular matters relevant to the national interest are not clearly identified. Furthermore, the respondent did not give reasons for his decision and he did not give evidence. However, care needs to be exercised in this area because of the broad nature of the concept of the national interest. A court will be slow to interfere with a Minister's decision as to what is in the national interest on the ground that a matter not taken into account was relevant to the national interest or a matter taken into account was irrelevant to the national interest: Leisure Entertainment Pty Ltd v Willis (1996) 64 FCR 205 at 220; Conwest Global Communications Corporation v Treasurer of the Commonwealth of Australia (1997) 147 ALR 509 at 525. A court will also be slow to interfere with a Minister's decision as to what is in the national interest under the guise of an argument that it should be inferred from the material before the decision-maker that he or she was not in fact satisfied that the acquisition was contrary to the national interest.
Case: Minister for Immigration and Multicultural and Indigenous Affairs, Re, ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212
Outcome: considered
The principle was referred to in passing by Gleeson CJ, Gummow and Heydon JJ in Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212 at 219 [21] - [22] (footnotes omitted): 'Further, it does not readily appear how the principles of procedural fairness could be engaged in the manner contended for by the prosecutor. It may be accepted, as the prosecutor submitted, that his entitlement extended to the rebuttal of, and comment by way of submission upon, adverse material received by the decision-maker from other sources. That stops short of supporting a complaint of the nature essentially involved here of the "pitch" or "balance" in the statement of relevant considerations in the Submission. Further, as indicated above, there is no substance in any complaint of unfair or prejudicial "lack of balance". Reference was made by the prosecutor to the decision of the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd . Nothing there said supports any different conclusion to that just expressed. The Full Court's statement of principle was as follow: "Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question."'
Case: Mutual Pools and Staff Pty Ltd v The Commonwealth [1994] HCA 9 ; (1993) 179 CLR 155
Outcome: considered
Certain laws have been held to fall outside s 51(xxxi) and within another supporting head of power. Examples include laws which impose a fine or penalty or laws effecting or authorising seizure of the property of enemy aliens or the condemnation of prize. The test for determining if a law falls outside the scope of s 51(xxxi) has been variously stated. In Mutual Pools and Staff Pty Ltd v The Commonwealth [1994] HCA 9 ; (1994) 179 CLR 155 Brennan J said (at 179-180): 'Although s 51(xxxi) abstracts from other heads of power the power of acquisition which that paragraph itself confers, it does not thereby abstract the power to prescribe the means appropriate and adapted to the achievement of an objective falling within another head of power where the acquisition of property without just terms is a necessary or characteristic feature of the means prescribed. In each of the cases in which laws for the acquisition of property without the provision of just terms have been held valid, such an acquisition has been a necessary or characteristic feature of the means selected to achieve an objective within power, the means selected being appropriate and adapted to that end. Therefore a law which selects and enacts means of achieving a legitimate objective is not necessarily invalid because the means involve an acquisition of property without just terms. What is critical to validity is whether the means selected, involving an acquisition of property without just terms, are appropriate and adapted to the achievement of the objective. The absence of just terms is relevant to that question, but not conclusive. Where the absence of just terms enhances the appropriateness of the means selected to the achievement of the legitimate objective, the law which prescribes those means is likely to fall outside s 51(xxxi) and within another supporting head of power. If it were otherwise, the guarantee of just terms would impair by implication the Parliament's capacity to enact laws effective to fulfil the purposes for which its several legislative powers are conferred. It would be erroneous so to construe grants of legislative power as to fetter their exercise by implying that s 51(xxxi) precluded the enactment of laws under other heads of power where the laws involved an acquisition of property without just terms, even though laws of that kind are appropriate and adapted to the execution of those powers in the public interest.'