Exam Preparation - Case Notes

Question 1

Public Service Board v Osmond

Answer 1

No common law right to reasons in Australia

Question 2

Combet v Commonwealth (2005)

Answer 2

HCA overlooked standing - Kirby J addressed it in his dissent,warning that if one had standing then no one might challenge unlawful government action.

Question 3

Work Choices Case

Answer 3

The HCA’s majority decision in the WorkChoices case expanded the Commonwealth’s ability to use the Constitution’s ‘corporations power’ to control not just workplace relations but also government and economic life by sanctioning the legislation’s regulation-making clauses that gave the Minister the power to ban a bunch of workplace rights and conditions without passing legislation.

These regulations allowed the Minister even to amend the Act itself.

Question 4

Golden-Browne v Hunt

Answer 4

Govt needed to publish/register the legislation for it to be enforceable. Voidable not void.

s 15K: legislative instrument not enforceable unless registered (not Ab initio, but from the time the failure is realised)

Question 5

ACF Case

Answer 5

‘an intellectual or emotional concern’ is not a ‘special interest’.

Mason J equated ‘special interest’ to property, business or economic interests, or even social or political interests.

This case essentially ruled out open standing at CL

Question 6

Plaintiff S157/2002

Answer 6

Ouster clauses are constitutionally valid, but s 75 constitutionally protects the HCA’s jurisdiction, therefore the ouster clause is ineffective (but still valid).

Denial of PF is JE

Question 7

Shanahan v Scott (1957)

Answer 7

Administrative power will be confined to the “field of operation” of the empowering legislation, the scope of the legislation cannot be extended and its purposes cannot be widened to “vary the plan that the legislature has adopted to attain its ends.” (at 250)

‘necessary and convenient’ must be within the scope of operation of the Act.

Question 8

Paull v Munday

Answer 8

“Gibbs J pointed out that a subsection of section 94 gave the Governor power to regulate and control, but not prohibit, the burning of rubbish at particular tips.” [Head p 178]

Question 9

Thompson v Randwick Municipal Council

Answer 9

“It is not necessary that this ulterior purpose should be the sole purpose… in our opinion it is still an abuse of the Council’s power if such a purpose is a substantial purpose…” (at 106)

HCA held that the improper purpose invalidated the entire acquisition even if part of the purpose was proper.

Question 10

Peko-Wallsend

Answer 10

The Minister acted unlawfully by failing to consider the company’s written objections, even if the Minister was unaware of them. The company’s interests were a relevant consideration that the Minister had failed to take into account.

The legislation did not expressly require that the Minister consider the interest of anyone other than the Aboriginal Claimants, however, s 11 required the Minister to be “satisfied” that the grant should be made.

Question 11

Minister for Immigration and Citizenship v Li

Answer 11

Unreasonable decisions → “decision which lacks an evident and intelligible justification” and “arbitrary or capricious”.

Relaxed Wednesbury standard, but made stringent again in SZVFW.

Question 12

Gwandalan

Answer 12

Citing Mason J in Peko-Wallsend, the court said “there may be found in the subject-matter, scope and purpose of the statute some implied limitation” to the Minister’s powers(at [141]).

Question 13

King Gee Clothing Co Pty Ltd

Answer 13

The regulations set a formula that was too discretionary and did not set objective standards. It did not satisfy the Regulations requirement to “fix and declare” or “specify” maximum prices.

Question 14

Vanstone v Clark

Answer 14

Minister had power to specify conduct that was considered “misbehaviour” under the ATSIC Act, and regulations said misbehaviour is defined by reference to a conviction for which there was a penalty of imprisonment. Regulations were held to be invalid because it did not specify what exactly misbehaviour was with sufficient specificity (among other reasons, like the need for ‘misbehaviour’ to relate to fitness for office - general concept of misbehaviour)

Question 15

Parramatta City Council v Pestle

Answer 15

Struck down as unreasonable because it was discriminatory towards older people.

Discrimination = unreasonableness (extended ultra vires)

Question 16

Hindi v Minister for Immigration

Answer 16

‘Federal Court adopted this commonly used formula: the administrator must give “proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy.”’ [Head p 216]

(inflexible application of policy - extended ultra vires)

Question 17

Kioa v West

Answer 17

Emphasises the flexibility of the doctrine of procedural fairness. Mason J’s reasoning was overturned by WZARH.

Previous deportation decisions had ruled that deportation did not require a hearing (e.g. Salemi; Ratu)

Question 18

WZARH

Answer 18

at [30]: “Recourse to the notion of legitimate expectation is both unnecessary and unhelpful.”

Question 19

Applicant VEAL of 2002

Answer 19

Court held that procedural fairness did not require the RRT to give the applicant a copy of the letter or provide the informant’s name, it only required the RRT to tell the applicant “what was the substance of the allegations made in the letter” and as him to “respond to those allegations”.

Question 20

South Australia v O’Shea

Answer 20

The HCA distinguished the decision by the Parole Board, where the Act expressly entitled O’Shea to procedural fairness, and the political decision made by the Governor in Council, which was political and did not require procedural fairness.

Question 21

Isbester v Knox City Council

Answer 21

Apprehended bias: “Ms Hughes’ role in this matter did not involve her at quite the same personal level as the manager in Stollery… Nevertheless, her interest was that of a prosecutor, accuser or other moving party. An interest of that kind points to the possibility of deviation from the true course of decision-making. A ‘personal interest’ in this context is not the kind of interest by which a person will receive some material or other benefit.”

The dog survived.

Question 22

Stollery v Greyhound Racing Control Board

Answer 22

The Court ruled that his mere presence in the room while the board deliberated on the matter was sufficient to produce a reasonable apprehension of bias even if Smith took no part in the actual decision and his presence did not affect the outcome.

Question 23

Re Macquarie University; Ex parte Ong

Answer 23

The Vice Chancellor wrote to Council Members recommending that Ong be removed.

Stollery principle applied: even though the Vice Chancellor was not in the room, the letter was enough to taint the process.

Question 24

Li Shi Ping

Answer 24

In cases where an applicant’s credibility is in question and highly important to the decision, the initial decision-maker might have to hear the applicant in person.

In relation to legal representation (at 570) → where complex issues are involved or where the person affected by the decision is not capable of presenting his or her case, it may be a denial of procedural fairness to deny legal representation

Question 25

NAIS

Answer 25

A delay of more than 5 years in an RRT was sufficient to deny procedural fairness.

Delay (on its own) does not necessarily deny procedural fairness. The test is that there is a ‘real and substantial risk’ that the RRT’s capacity to assess the applicant was impaired.

Question 26

Cains v Jenkins

Answer 26

The Full Federal Court held that there is no absolute right to legal representation even if livelihood is at stake.

Question 27

Ebner v Official Trustee

Answer 27

HCA discarded the principle that judges who have a pecuniary interest in a case must be automatically disqualified, even if the interest is small.

Bias rule
Threw out deemed bias as a category

Question 28

Jia Legeng

Answer 28

apprehended bias: Test is the ‘reasonable apprehension of bias’ → ‘reasonable person’ test

Question 29

Laws v Australian Broadcasting Tribunal

Answer 29

apprehended bias test in Jia Legeng fleshd out as: ``reasonable and fair minded observer, with some knowledge of actual circumstances and normal considerations applying to legal actions”.

Question 30

Gamaethige v Minister for Immigration

Answer 30

Actual bias: subjective standard, the decision maker must not be capable of persuasion by any evidence.

Question 31

Formosa

Answer 31

Statements over the counter by the centrelink official did not entitle Ms Formosa to her pension payments. She was not entitled to the aged pension because she did noy apply in writing, despite not being told of this requirement by a departmental officer.

(illustrates the need to protect individuals via estoppel, but in Australia estoppel is not readily provided to individual because of the public interest in administrator not fettering their powers)

Question 32

Kurtovic

Answer 32

Rejected the idea that estoppel could give rise to a requirement of substantive fairness (a decision in favour of the applicant), but left the door open for some very specific circumstances:

If an applicant has been informed that a decision has actually been made in his/her favour, the decision maker cannot renege on that decision.

BUT if the decision maker has just indicated that a favourable decision was likely or even certain, then that undertaking can be reversed

Almost completely shut the door to estoppel in Australia, specifically rejecting the English precedents on estoppel.

Question 33

Attorney General (NSW) v Quin

Answer 33

Decision makers can renege on a promise that involves a broad discretion.

Question 34

Brickworks v Warringah

Answer 34

Decision makers cannot revoke a decision that has already been made or indicated.

Question 35

Craig v South Australia

Answer 35

JE

If tribunal (or other decision maker) identifies wrong issue, asks itself wrong question, ignores relevant material, or relies on irrelevant material or, at least in some circumstances, makes erroneous finding or reaches mistaken conclusion then that is a jurisdictional error (whereas other errors are not)

Question 36

SAAP

Answer 36

3:2 majority found that a breach of procedure in the Migration Act was jurisdictional error (JE).

However! See Applicant NABD of 2002 for a contrary finding

Question 37

Applicant NABD of 2002

Answer 37

3:2 majority held that it was not a jurisdictional error for the Refugee Review Tribunal wrongly defined persecution and said that only proselytising (publically preaching) Christians risked persecution.

Question 38

Wei v Minister for Immigration and Border Protection

Answer 38

The legal error has got to be material or of some significance before it will be regarded as JE.

Use of certiorari and prohibition together as remedies.

Question 39

Kirk v Industrial Relations Commission

Answer 39

Extended the Plaintiff S157/2002 principle to the State Supreme Court → State Legislation cannot deny the State Supreme Court power to review decisions with JE and grant relief for jurisdictional error.

Question 40

Collector of Customs v Agfa Gevaert Ltd

Answer 40

5 HCA judges unanimously adopted five propositions about what an error of law was (as opposed to an error of fact):

Whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law.
The ordinary meaning of a word or its non-legal technical meaning is a question of fact.
The meaning of a technical legal term is a question of law.
The effect or construction of a term whose meaning or interpretation is (judicially) established is a question of law.
Whether facts fall within the provision of a statute is generally a question of law (Hope v Bathurst is cited as authority for this proposition).

[quoted from Head p 302]

Question 41

Nathanson

Answer 41

Failure to afford procedural fairness will generally be material.

Question 42

SDCV v D-G of Security

Answer 42

no minimum requirement for PF, strong dissents

Question 43

Edward Moses Obeid Snr v David Andrew Ipp

Answer 43

Underscores the difficulty of proving misfeasance in public office as a tort to try and get damages.

Question 44

Plaintiff M61

Answer 44

mandamus not applicable (because there was no compellable duty for the official involved), so the court granted declarations to compel the Minister through his department to reconsider their cases according to law.

Question 45

Plaintiff M64/2015

Answer 45

Inflexible application of policy: per Gageler J at [67] “ The expression of the policy was not so rigid as to exclude consideration of the merits of the particular case…”

Question 46

R v Toohey (Aboriginal Land Commissioner); Ex parte Northern Land Council

Answer 46

Improper purpose

Gibbs CJ held that the plaintiff was entitled to challenge the validity of the Planning Regulations on the ground that they were made for a purpose that was not a planning purpose, therefore the Commissioner in not deciding on the validity of the Planning Regulations before deciding between them had not acted according to law and the case should be awarded the writ of mandamus.

Question 47

Ainsworth v Criminal Justice Commission

Answer 47

There must be a decision made with legal effect to attract the writ of certiorari, otherwise seek a declaration to the same effect.

Because the report had no legal effect, it could not attract a grant of certiorari; however a declaration was available. If the report was a precondition to a course of action, then it would have a legal effect and be able to attract certiorari.

Question 48

Hot Holdings v Creasy

Answer 48

McHugh J, relying on Jia Legeng, at [70]: “[I]t will ordinarily be very difficult to impute bias or the reasonable apprehension of biases to the decision of a Minister who has considered all the applications on their merits, but made it clear that preference would be given to applicants who complied with government policy. “

Question 49

Barratt v Howard

Answer 49

PF, Hearing rule

the hearing the applicant was entitled to consisted of making written submissions to the Defence Minister, who was entitled to dismiss Barratt without providing reasons other than his loss of confidence in Barratt.

Question 50

Chen v Minister for Immigration

Answer 50

French J said at 410: “In my opinion, courts should be reluctant to impose in the name of procedural fairness detailed rules of practice, particularly in the area of high volume decision-making involving significant use of public resources.”

Question 51

Commissioner of Police v Tanos

Answer 51

Legislative intent to exclude PF must be very clear