mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: City of Brunswick v Stuart [1941] HCA 7 ; (1941) 65 CLR 88
Outcome: cited
the contention that cl 869.214 was invalid because it was uncertain, Smith FM said: The applicants' submissions referred to a statement by Starke J in Brunswick Corp v Stewart [1941] HCA 7 ; (1941) 65 CLR 88 at 97, cited by Weinberg J in Vanstone v Clark at [143]. This suggests that delegated legislation could be held invalid because it is " uncertain, that is, does not contain adequate information as to the duties of those who are to obey it ... or is unreasonable, that is, in this connection, so oppressive or capricious that no reasonable mind can justify it". The applicants argued that there was uncertainty or unreasonableness in the test of 'not generally acceptable in Australia', because it lacked a meaningful identification of the standards of 'acceptability' for business activities which were to be applied by a decision-maker. As a consequence, it was conceivable that decision-makers might apply their own idiosyncratic standards, and might penalise behaviour which was trivial or not deserving of the withholding of a visa. 26. However, I do not accept these arguments. ... In my judgment, the Federal Magistrate was correct to reject the contention that cl 892.214 was invalid because it did not contain adequate information as to the duties of those who are to obey it: cf City of Brunswick v Stuart [1941] HCA 7 ; (1941) 65 CLR 88 and Evans v New South Wales [2008] FCAFC 130 ; (2008) 168 FCR 576 , at 579 and 597.
Case: Ireland v Wilson (1936) All ER 358
Outcome: discussed
J also referred to Ireland v Wilson (1936) All ER 358 , where a by-law which provided "Every driver of a motor hackney carriage shall when working or plying for hire ... conduct himself in a proper civil and decorous manner at all times" was held to be valid. His Honour noted, at [53]: ... there are many examples of criminal laws which depend upon judgment: dangerous driving and manslaughter by negligent conduct come easily to mind. Refshauge J concluded that reg 2.1 was not invalid, as being uncertain.
Case: King Gee Clothing Company Pty Ltd v Commonwealth [1945] HCA 23 ; (1945) 71 CLR 184
Outcome: referred to
J, as he then was, in King Gee Clothing Company Pty Ltd v Commonwealth [1945] HCA 23 ; (1945) 71 CLR 184 ( King Gee ) said, at 195: I am unaware of any principle of law or of interpretation which places upon a power of subordinate legislation conferred upon the Governor-General by the Parliament a limitation or condition making either reasonableness or certainty indispensable to its valid exercise. Dixon J did acknowledge in King Gee that a regulation could be invalid if it provided a standard according to a fact that was not ascertainable. The High Court held in King Gee that the regulation, properly construed, was incapable of determining a price for outwear clothing which was what the empowering Act required the regulation to do. As a consequence, it was held that the regulation was invalid.
Case: Merrell v Roberts (1909) 26 WN (NSW) 73
Outcome: discussed
J referred to Merrell v Roberts (1909) 26 WN (NSW) 73 , which held that a regulation which prohibited driving "at such rate of speed ... or in a manner as to ... frighten or injure any ... animal" was held not to be uncertain. Refshauge J said: The court held that it was not difficult for a court to consider whether under the circumstances of the case the vehicle was being driven at such a speed.
Case: R v Goreng-Goreng [2008] ACTSC 74 ; (2008) 220 FLR 21
Outcome: referred to
for the appellants referred also to the judgment of Refshauge J in R v Goreng-Goreng [2008] ACTSC 74 ; (2008) 220 FLR 21. That case was concerned with the validity of a regulation, reg 2.1(3) of the Public Service Regulations 1999 (Cth). Regulation 2.1(3) prohibited the disclosure of information which Australian public service employees had obtained or generated in connection with their employment, where it was: ... reasonably foreseeable that the disclosure could be prejudicial to the effective working of government, including the formulation or implementation of policies or programs. His Honour held that the description of what information should not be permitted to be disclosed, by reference to the "effective working of government", did not invalidate the regulation on the ground of uncertainty.
Case: Australian Competition and Consumer Commission v Advanced Medical Institute Pty Ltd [2005] FCA 366
Outcome: referred to
I do not consider that the documents identified in categories 7 and 8 are "necessary" within the terms of O 15 r 15 or Practice Note 14. Nor are they "directly relevant" to the proceeding: Australian Competition and Consumer Commission v Advanced Medical Institute Pty Ltd [2005] FCA 366 at [21] [23] per Lindgren J. The issues in this proceeding are different from those in the Cadbury proceeding. Such overlap as does exist is not sufficient to warrant the orders. To the extent that the documents are sought on the issue of damages, I do not consider they are relevant or necessary. As was submitted by the respondents, any relevant documents are already covered by existing orders so that what is really sought is nothing more than the right to "fish" for further material.
Case: Jarra Creek Central Packaging Shed Pty Ltd v Amcor Ltd [2007] FCA 1559
Outcome: referred to
background to the claim for the first six categories is to be found in two judgments of Tamberlin J, Jarra Creek Central Packaging Shed Pty Ltd v Amcor Ltd [2007] FCA 1559 ; Jarra Creek Central Packaging Shed Pty Ltd v Amcor Limited [2009] FCA 60. Tamberlin J was the docket judge for the matter before he reached the age of Constitutional retirement on 31 March 2009.
Case: Jarra Creek Central Packaging Shed Pty Ltd v Amcor Limited [2009] FCA 60
Outcome: referred to
background to the claim for the first six categories is to be found in two judgments of Tamberlin J, Jarra Creek Central Packaging Shed Pty Ltd v Amcor Ltd [2007] FCA 1559 ; Jarra Creek Central Packaging Shed Pty Ltd v Amcor Limited [2009] FCA 60. Tamberlin J was the docket judge for the matter before he reached the age of Constitutional retirement on 31 March 2009.
Case: Trade Practices Commission v CC (New South Wales) Pty Limited (No 4) (1995) 58 FCR 426
Outcome: referred to
essence of Professor Rubinfeld's further evidence is that the material provided to date does not have sufficient coverage or detail to enable him to conduct a reliable analysis. There was some criticism by counsel for the Amcor and Visy respondents of the nature of Professor Rubinfeld's evidence. However, I am satisfied that it does demonstrate that the discovery of data for a wider period than that ordered by Tamberlin J is "necessary in the interests of a fair trial": Trade Practices Commission v CC (New South Wales) Pty Limited (No 4) (1995) 58 FCR 426 at 436 per Lindgren J. The "clean period" data which is sought places some emphasis on the post-cartel period. This is because of the inadequacy of the pre-cartel data discovered to date. Although Professor Rubinfeld accepts that it is preferable to analyse data for the period prior to the formation of the cartel, he says that in the absence of such data, post-cartel material takes on an even greater importance. Although some post-cartel material, namely from November 2004 to May 2006 has already been produced, Professor Rubinfeld says that this is "highly unlikely" to be sufficient. I accept this evidence and the reasons given for it, including the difficulties associated with the lingering effects of cartel behaviour.
Case: Moradian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1590 ; (2004) 142 FCR 170
Outcome: referred to
The Magistrate referred to s 422B(1) of the Act. He noted the decision of Gray J in Moradian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1590 ; (2004) 142 FCR 170, but he said that he was not confident that the approach taken by Gray J 'is the preferred view any more' and referred to the decision in Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908
Outcome: referred to
The Magistrate referred to s 422B(1) of the Act. He noted the decision of Gray J in Moradian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1590 ; (2004) 142 FCR 170, but he said that he was not confident that the approach taken by Gray J 'is the preferred view any more' and referred to the decision in Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908.
Case: R v Leyland Justices; Ex parte Hawthorn [1979] QB 283
Outcome: referred to
I start with the submission which takes as its basis the allegation that the agent's conduct was fraudulent. In examining the authorities it seems to me that it is not always clear what is encompassed by the word 'fraud' in this context. It would include the making a false statement knowing it was false or engaging in conduct which deceives another, knowing that it would, or was likely to, have that effect. It could include other circumstances and some of the authorities suggest that circumstances may be sufficiently analogous to fraud to lead to the granting of relief. I refer by way of example to Lord Bridges' explanation in Al-Mehdawi (at 895-896) of the basis of the Court of Appeal's decision in R v Leyland Justices; Ex parte Hawthorn [1979] QB 283.
Case: Hot Holdings Pty Ltd v Creasy [2002] HCA 51 ; (2002) 210 CLR 438
Outcome: referred to
There are many cases in which the courts have considered whether, in the absence of fault on the part of the decision-maker, there can be a breach of the rules of procedural fairness. A number are discussed in the reasons for judgment of French J in SZFD E (see also Aronson, Dyer and Groves, Judicial Review of Administration Action (3 rd ed, 2004) pages 460-463). They can perhaps be placed in various categories depending on one or more of: the powers the Court was exercising; the status of the person at fault (ie, party's agent, other party to the proceeding or a third party); the nature of the conduct of the party at fault (ie, fraudulent or negligent); and the effect of the procedural departure. It seems fairly clear on the authorities that there can be a breach of the rules of procedural fairness in the absence of fault on the part of the decision-maker: Hot Holdings Pty Ltd v Creasy [2002] HCA 51 ; (2002) 210 CLR 438 per Gleeson CJ at 448 [22]. Equally, it seems clear on the authorities that there is no breach of the rules of procedural fairness if the fault leading to the procedural departure was that of the agent of the applicant for relief. That was the view of the House of Lords in Al-Mehdawi (supra) and of French J (at [101]-[103]) and Allsop J (at [138]) in SZFDE . The appellant's alternative submission fails on this ground.
Case: Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223 
Outcome: referred to
Roche submitted that the October 2006, February 2007 and June 2007 decisions were so unreasonable that no reasonable person could have exercised the power in the way the Committee did ( Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223). It also submitted that the decisions lacked a "legally defensible foundation" in their factual material and in logic ( Luu v Renevier (1989) 91 ALR 39); were capricious and irrational ( Tickner v Bropho (1993) 40 FCR 183 at 197-199) or were so at variance with the material before the Committee as to be unreasonable ( Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515). 116 The Committee accepted that its decisions are open to review under s 39B of the Judiciary Act on the ground of unreasonableness notwithstanding that the Court does not have jurisdiction to review those decisions under the ADJR Act . 117 Roche placed particular weight on the following statement in the record of reason concerning the Committee's February 2007 decision: Orlistat is currently only indicated for use in a relatively small group of patients with serious and significant weight problems (those with a Body Mass Index (BMI) greater than 27 with other serious diseases, or those with a BMI greater than 30), not for the general population who might wish to manage more minor weight issues. 127 For the reasons given above for rejecting the complaint of Wednesbury unreasonableness, I reject both of these contentions. 128 Roche submitted that each of the February and June 2007 decisions involved the exercise of a personal power at the behest of another person or the exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case. It placed reliance on the extract from the transcript of the February 2007 meeting of the Committee set out in [51] above. The significance of the statements made by Committee members as recorded in that extract from the transcript of the meeting is explained by documents produced by two Committee members in response to subpoenas served on them. 129 Shortly before the February 2007 meeting of the Committee, Mr James Galloway, the jurisdictional member of the Committee who represented Tasmania, advised Mr Roscoe Taylor, the Tasmanian Director of Public Health, that the Schedule 3 and Appendix H listing of orlistat was to be reconsidered at the Committee's February 2007 meeting and asked: "Do you wish to direct me on voting on this matter?" Mr Taylor responded: "Unless you have any arguments to the contrary, I would like Tasmania to strongly support rescheduling Orlistat to S4" .
Case: Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550
Outcome: referred to
The extent to which the rules of natural justice apply to decisions of the Committee under s 52D(2) is controlled by the relevant provisions of the Act and Regulations ( Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 per Mason J at 577, Wilson J at 594, Brennan J at 609 and Deane J at 633). 138 As outlined above (see [19]-[20]) the Regulations require advance public notice to be given of a meeting of the Committee at which a decision is to be made concerning the scheduling of a substance. They do not require advance notice to be given of a decision to foreshadow consideration of the scheduling of a substance. The Regulations establish a regime for the receipt and consultation of public submissions both before and following a scheduling decision. A sponsor who seeks a scheduling decision concerning a substance will, it may be assumed, make a submission in support of the scheduling decision sought by it. Certainly Roche did in respect of the scheduling of orlistat. A scheduling decision does not come into effect until after the Committee has had the opportunity to consider the further submissions, if any, made in response to its decision by those who made submissions concerning the scheduling decision. A record of the Committee's reasons for the decision are to be publicly accessible. 139 In my view the statutory provisions which govern the exercise of the Committee's power under s 52D(2) of the Act do not disclose an intention that the exercise of that power is conditioned on sponsors of substances being given rights to be heard additional to the rights to make the submissions for which the Regulations provide.
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: referred to
The record of reasons of the Committee are "not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed" ( Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ at 272). In particular, in the circumstances of this case, the different contexts in which the Committee evaluated the prevalence of obesity and other significant weight problems are important. 120 In February 2006 the Committee agreed to include orlistat in Appendix H on the grounds of potential public health benefit. It was then concerned to identify the total number of adults in Australia for whom orlistat might be indicated. By contrast, in February 2007 the Committee was concerned to review the current scheduling and Appendix H listing of orlistat in the context of criticism of its earlier decision. That criticism was based in large part upon the advertising of Xenical during the television program Australian Idol . The reference in the Committee's record of reasons of February 2007 to the "relatively small group of patients with serious and significant weight problems" is, in my view, to be understood as a reference to the relatively small proportion of the viewers of Australian Idol who were likely to have serious and significant weight problems. That is, it is to be understood as a reflection on the audience to which the Committee understood the advertisements to be directed. The Committee, it may be assumed, would have adopted a different approach had Roche directed the advertisement to an audience comprised mainly or significantly of overweight adults by, for example, placing the advertisements in a magazine directed to adults with weights problems. 121 For the above reasons, I do not accept that the reference in the Committee's record of reasons of February 2007 to a "relatively small group of patients with serious and significant weight problems" is suggestive of unreasonableness affecting the decision of the Committee.
Case: Minister for Industry and Commerce v Tooheys Ltd (1982) 42 ALR 260
Outcome: referred to
As the Full Court observed in RG Capital Radio Ltd v Australian Broadcasting Authority [2001] FCA 855 ; (2001) 113 FCR 185 ("R G Capital" ) at 194 at [40], there is no simple rule for determining whether a decision is of an administrative or legislative character. At 194 at [44] the Court cited the following passage from the judgment of the Full Court in Minister for Industry and Commerce v Tooheys Ltd (1982) 42 ALR 260 at 265: The distinction is essentially between the creation or formulation of new rules of law having general application and the application of those general rules to particular cases: Commonwealth v Grunseit [(1943) [1943] HCA 44 ; 67 CLR 58] ; Hamblin v Duffy No 2 [34 ALR 333] and de Smith's Judicial Review of Administrative Action 4th ed, p 71. In Commonwealth v Grunseit , Latham CJ expressed ... the distinction in these terms: 'The general distinction between legislation and the execution of legislation is that legislation determines the content of a law as a rule of conduct or a declaration as to power, right or duty, whereas executive authority applies the law in particular cases'.
Case: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 153 ALR 490
Outcome: referred to
Additionally, it seems to me that the legitimacy of the Committee's apparent practice of not recording the number of votes cast for and against resolutions moved at its meetings is open to serious doubt. However, it was not contended in this case that the Act or Regulations disclose an intention that deficiencies in a record of proceeding of the Committee affect the validity of any conduct or decision of the Committee to which the record relates (see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 153 ALR 490). 68 The parties agreed that the best evidence available concerning the reasons for the June 2007 decision of the Committee to confirm the decision to remove orlistat from Appendix H is found in the draft minutes of that meeting. No ratified minutes of the meeting had come into existence at the time of hearing. The draft minutes record that the reasons of the Committee include: &#8226; that direct-to-consumer advertising had the potential to lead to inappropriate extent and patterns of use of orlistat outside its registered indications; &#8226; that direct-to-consumer advertising may adversely affect the ability of pharmacists to provide advice about other appropriate weight management strategies; &#8226; that there were concerns about the ability of direct-to-consumer advertising to accurately present information about the potential toxicity, safety, risks and benefits of orlistat and the specific indications for use; &#8226; that while acknowledging the need to address the problems of obesity in the Australian community, pharmacotherapy was not the first line of treatment for weight management and direct-to-consumer advertising had the potential to over-emphasise its role over those of lifestyle change; &#8226; that the safeguards that allowed inclusion in Schedule 3, such as education programmes for pharmacists and consumer information, did not remove the potential for direct-to-consumer advertising to adversely affect appropriate provision of orlistat; &#8226; that the changes to the wording of the Therapeutic Goods Advertising Code (TGAC) aimed at strengthening the requirements of advertising weight loss products had not sufficiently prevented messages promoting inappropriate use of orlistat and the Committee did not feel that the current TGAC was able to prevent advertising from over-emphasising the role of pharmacotherapy. &#8226; on balance, the NDPSC believed that direct-to-consumer advertising worsened the risk-benefit balance of access to orlistat and the committee felt it necessary to protect public health by preventing direct to consumer advertising. 69 The draft minutes summarise the Committee's June 2007 decision in the following way: In summary, after considering all post-meeting submissions, the [Committee] decided to confirm its February 2007 decision to revoke the Appendix H listing as, under section 52E of the Act and according to the NCCTG Guidelines, it is not appropriate for orlistat to be advertised direct-to-consumers.