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Reviews of judgments

Every Issue

Cite as: (2003) 77(4) LIJ, p.66

High Court Judgments

Cite as: (2003) 77(4) LIJ, p.66

By Thomas Hurley


Administrative law – natural justice – whether breach without consequence entitles relief.

  • Re MIMA; ex parte Lam [2003] HCA 6 (12 February 2003).

The prosecutor commenced a proceeding in the original jurisdiction of the High Court under s75(v) of the Constitution seeking to quash a decision to cancel his permanent visa on character grounds under s501(2) of the Migration Act 1958 (Cth). The prosecutor was a father. An officer of the respondent asked for details of the children’s carers, indicating the respondent wished to contact them. The prosecutor provided the details but the carers were never contacted. The application to quash the consequent decision for breach of natural justice was refused. The members of the High Court concluded that the failure to contact the carers did not defeat any expectation of the prosecutor or cause him to be denied procedural fairness, and the interests of the children were elsewhere addressed in detail: Gleeson CJ [35], [36]; McHugh, Gummow [105]; Hayne [122]; Callinan [149] JJ. The Court considered whether the concept of “legitimate expectation” may constitute an impermissible fetter on statutory power and English authority as to the distinction between legitimate expectation and unreasonableness. [72] The Court considered and qualified the operation of its earlier decision in MIEA v Teoh (1995) 183 CLR 273. Application dismissed.


High Court – removal of proceeding – whether claim for adult child maintenance arises under the Constitution – whether High Court justice who had practised in one state biased in relation to applications in that state.

  • Bienstein v Bienstein [2003] HCA 7 (13 February 2003).

A Full Court of the High Court (McHugh, Kirby, Callinan JJ) concluded a High Court justice was not biased in relation to matters arising in the state in which the justice had practised. [33] The Court concluded questions of entitlement to adult maintenance did not raise a question under the Constitution within s40(1) of the Judiciary Act.


Land tax – valuation.

  • Maurici v Chief Commissioner of State Revenue (NSW) [2003] HCA 8 (13 February 2003).

A Full Court (McHugh, Gummow, Kirby, Hayne, Callinan JJ) considered whether in fixing the unimproved value of an improved parcel of land under the Land Tax Management Act 1956 (NSW) in accordance with s6A of the Valuation of Land Act 1916 (NSW), it is correct to consider exclusively sales of unimproved parcels of land in the same locality as the relevant land or whether the value may be discovered by calculating the value after notionally removing the improvements. The High Court concluded the procedure adopted was unfair because it considered a very small number of sales of unimproved land in the eastern suburbs of Sydney where such land and sales were scarce. [17] Appeal allowed.


THOMAS HURLEY is a member of the Victorian Bar. The numbers in square brackets refer to the paragraph numbers in the judgment. The full version of these judgments can be found on the AustLII website http://www.austlii.edu.au/databases.html.

Federal Court Judgments

Cite as: (2003) 77(4) LIJ, p.68

By Thomas Hurley


Administrative law – review of policy.

  • Humane Society International Inc v Minister for the Environment & Heritage [2003] FCA 64 (12 February 2003).

Kiefel J concluded that a purported exemption in respect of the grey-headed flying-fox from protection under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) was unlawful. Consideration of when an exemption by a commonwealth minister to holders of state permits from requiring to apply under commonwealth legislation constitutes a decision of an administrative character reviewable under the AD(JR) Act. Consideration of when a public duty remained unperformed under s39B of the Judiciary Act, validity of policy and appropriateness of declaratory relief.


Constitutional law – jurisdiction of courts – claim raising acts of state.

  • Petrotimor Companhia de Petroleos SARL v C of A [2003] FCAFC 3 (3 February 2003).

A Full Court concluded that claims by the appellant for a declaration that it was entitled to payment for loss caused by an agreement between Australia and Portugal concerning exploration for oil in the Timor Sea was not justiciable. Consideration of when a court has jurisdiction to entertain a claim requiring consideration of validity of acts of foreign states.


Corporations – retrospective notice of registrable charge.

  • Re ACE Funding Ltd [2003] FCA 59 (6 February 2003).

Conti J considered whether it was appropriate to give an extension of time to retrospectively lodge notice of a registrable charge within the Corporations Act 2001 (Cth) ss263(1), 264(1).


Costs – costs against non-party.

  • Kebaro Pty Ltd v Saunders [2003] FCAFC 5 (10 February 2003).

A Full Court considered when the Court may make an order for costs against a non-party who stood to benefit from successful litigation conducted by persons of straw.


Federal Court – appeal from Federal Magistrates Court.

  • SGDB v MIMIA [2003] FCA 74 (14 February 2003).

Mansfield J considered whether the Full Court of the Federal Court, constituted by a single judge to determine appeals from the Federal Magistrates Court, should remit a matter to the magistrate on finding the magistrate had incorrectly approached the question of jurisdictional error. Matter remitted.


Federal Court – jurisdiction – claim solely for damages for fraud.

  • Wride v IP Australia [2003] FCA 86 (3 February 2003).

von Doussa J considered the Federal Court had no jurisdiction to determine a claim against the entity responsible for the Patent Office claiming damages for fraud where no claim was brought under a law of the federal Parliament giving jurisdiction to the Federal Court.


Immigration – release from detention pending appeal.

  • Untan v MIMIA [2003] FCAFC 8 (19 February 2003).

A Full Court discharged an earlier order it had made effecting the release of the appellant from detention pending hearing of the appeal after the appellant made a threat against the life of the Minister.


Income tax – arrangements.

  • C of T v Mochkin [2003] FCAFC 15 (21 February 2003).

A Full Court considered when arrangements made to cause a share broking business conducted by a person to be carried on by a company contravened Part IVA of the ITAA notwithstanding that the scheme had objective benefits.


Industrial law – unfair dismissal – reinstatement.

  • Ramsey Butchering Services Pty Ltd v Blackadder [2003] FCAFC 20 (21 February 2003).

A Full Court considered whether an employee ordered to be reinstated was required to be given merely a contract or actual work. The appeal arose in proceedings alleging breach of the reinstatement orders of the AIRC.


Migration – cancellation of student visa.

  • Singh v MIMIA [2003] FCA 52 (7 February 2003).

Heerey J considered a visa of a student cancelled for failing to comply with satisfactory academic performance conditions had been cancelled lawfully.


Migration – natural justice.

  • Tran v MIMIA [2003] FCA 44 (7 February 2003).

Finkelstein J set aside a decision of the MRT as being in breach of natural justice where the MRT rejected evidence of witnesses who were present in the hearing room without giving a warning that the witnesses should leave the room.


Migration – refugees – failure of RRT to reject evidence in rejecting application.

  • MIMA v W64/01A [2003] FCAFC 12 (19 February 2003).

A Full Court allowed an appeal by the Minister against a conclusion of a trial judge that the RRT had erred in rejecting a claim for refugee status without making adverse findings on the credibility of the respondent.


Migration – refugees – real chance of persecution.

  • Shumilov v MIMA [2002] FCAFC 1 (5 February 2003).

A Full Court concluded the RRT had not erred in rejecting a claim for refugee status where material before it suggested that the Uzbekistani police might subject the entire relevant population to attention. The Full Court concluded there was no basis to infer from this that the appellants faced a real chance of persecution.


Migration – visas – cancellation on character grounds – reasons – whether Full Court may order delivery of reasons.

  • Ayan v MIMIA [2003] FCAFC 7 (14 February 2003).

A Full Court concluded that a briefing paper signed by the Minister for Immigration in cancelling a visa on character grounds under s501(2) of the Migration Act was not a statement of reasons. The Full Court decided that notwithstanding the point had not been taken below, it would order the Minister to give the appellant a statement of reasons referred to in s501G(1)(e) of the Migration Act for the decision to cancel the visa.


Native title – practice – non-legally qualified representative.

  • Rubibi v WA [2003] FCA 63 (10 February 2003).

Merkel J granted conditional leave under s85 of the Native Title Act 1993 (Cth) to a non-lawyer to represent a group.


Practice – security for costs – whether applicant ordinarily resided in Australia.

  • Logue v Hanson Technologies Ltd [2003] FCA 81 (17 February 2003).

Weinberg J considered when a person who had tenuous links with Australia could be said to be “ordinarily resident outside Australia” for FCR O.28 r3.


Social security – overpayment – whether attributable solely to error of the Commonwealth.

  • Secretary, DFCS v Sekhon [2003] FCA 76 (14 February 2003).

Wilcox J considered whether monies paid to a person during a preclusion period were paid solely due to an administrative error made by the Commonwealth within the Social Security Act 1991 (Cth) Part 3.14.


Statutes – Great Barrier Reef.

  • Ashton v C of A [2003] FCA 92 (21 February 2003).

Kiefel J concluded a regulation made under the Great Barrier Reef Marine Park Act 1975 (Cth), which prohibited trawling in the Mission Beach area, was valid.


Superannuation – extent of review.

  • Military Superannuation & Benefits Board of Trustees No 1 v Drake [2003] FCA 78 (18 February 2003).

Merkel J considered whether the Superannuation Complaints Tribunal had jurisdiction to make a decision in substitution for that of the trustees if the decision was not authorised by the rules of the trust fund.


Superannuation – functions of Superannuation Complaints Tribunal.

  • Cameron v Board of Trustees of the State Public Sector Superannuation Scheme [2003] FCA 63 (14 February 2003).

Spender J considered the nature and function of the Superannuation Complaints Tribunal and how it was to determine the disability of the applicant and give adequate reasons.


Trade practices – consumer protection – representative proceedings.

  • Courtney v Medtel Pty Ltd [2003] FCA 36 (5 February 2003).

Sackville J determined applicants in a class of persons who received pacemakers were entitled to damages where the pacemakers were made of a solder which rendered them of unmerchantable quality.


Trade practices – penalty – relevance of size of corporation.

  • Schneider Electric (Australia) Pty Ltd v ACCC [2003] FCAFC 2 (14 February 2003).

A Full Court considered the extent to which the size of a corporation, and its capacity to pay, may be taken into account in assessing penalties under the TP Act and the relevance of the resources of the parent company.


THOMAS HURLEY is a member of the Victorian Bar. The numbers in square brackets refer to the paragraph numbers in the judgment. The full version of these judgments can be found on the AustLII website http://www.austlii.edu.au/databases.html.

Supreme Court Judgments

Cite as: (2003) 77(4) LIJ, p.70

By Greg Reinhardt

Amendment after expiry of statutory limitation period.

Two recent decisions of the Court of Appeal illustrate the approach to be taken to the amendment of a pleading where the effect of amendment is to raise a claim which has become statute-barred.

  • Agtrack (NT) Pty Ltd v Hatfield [2003] VSCA 6 (unreported, 28 February 2003, No 4153/1999, Ormiston and Chernov JJA and O’Bryan AJA).

The respondent’s claim arose out of an air accident in the Northern Territory.

The argument put to the Court of Appeal in this case was succinctly stated by Ormiston JA (at [1]):

“[The appellant] asks the Court to hold that, because the respondent in her statement of claim failed to assert that the appellant was liable to her pursuant to Part IV of the Civil Aviation (Carriers’ Liability) Act 1959 (the Act) in respect of her husband’s death resulting from the crash of an aeroplane in the Northern Territory in 1997, no amendment could be made beyond the limitation period fixed by that Act, so as to amend her statement of claim to allege that liability, although the facts to be relied on remained essentially unchanged.” (endnotes omitted)

The respondent’s solicitors had overlooked the appellant’s liability under the Act which requires no proof of negligence or breach of contract or other duty.

After the two year limitation period prescribed by the Act had expired, the appellant’s solicitors wrote to the respondent’s solicitors advising them that the action was misconceived in that the liability created by the Act overrode any other civil liability by virtue of s35 of the Act.

Normally, an application to amend where the proposed amendment does not take the defendant by surprise in the sense that it is fully aware of the circumstances surrounding the claim should be allowed. In this case, however, the appellant raised several arguments against amendment succinctly summarised by Ormiston JA:

“[T]he apparently simple process of amendment has been bedevilled by the most abstruse arguments as to the nature and effect of amendments, their potential relation back to the issue of process, the form and effect of limitation provisions in statutes, the effect of Order 36.01(6) of the Victorian (or, possibly, the Northern Territory) Supreme Court (General Civil Procedure) Rules 1996 and the effect of s34 of the Limitation of Actions Act 1958 (Vic) (or, more likely, of s48A of the Limitation Act 1981 of the Northern Territory) on limitation periods prescribed by Commonwealth statutes such as s34 of the Act, on the extent to which those rules and sections are ‘picked up’ by s79 of the Judiciary Act 1903 (Cth) and whether, by reason of s109 of the Constitution of the Commonwealth (or the equivalent rule applying to territory legislation), those rules and those sections are invalid or ineffective to the extent that they qualify the alleged right or immunity of the appellant under s34 of the Act.” [2]

The matters the subject of appeal were similar to those before the Court of Appeal in PSL Industries Ltd & Anor v Simplot Australia Pty Ltd [2003] VSCA 7 (discussed below), although in that case there was more than a mere failure to identify and plead a cause of action.

The respondent, by notice of contention in the appeal, alleged that there had been sufficient facts to prove a cause of action under the Act. If that argument was successful, then there would be no need to deal with any of the arguments the subject of the appeal; the plaintiff/respondent would have commenced proceedings in respect of the claim under the Act within time.

Ormiston JA said of this argument:

“If all that was necessary was the allegation of the material facts to support the respondent’s cause of action under Part IV of the Act, then there would be much to be said for the conclusion that those facts had been sufficiently alleged, however imperfectly. It does, however, overlook the failure to refer to the statutory basis of liability in circumstances where the failure occurred through ignorance, not mere oversight... It has been said by appellate courts on many occasions that, in the first place, they will not allow a plaintiff to succeed on a case different from that argued below, if the new cause of action could well have led to different evidence being given or the existing evidence tested in different ways, for that would be so unfair to the other party as to preclude the appellate court from dealing with it on a new basis. On the other hand, ‘where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point’: see Water Board v Moustakas and the cases cited in Williams Civil Procedure Victoria. In the latter class of case, the High Court has seen no unfairness in certain circumstances in abolishing existing causes of action or in identifying new causes of action, the proper characterisation of the parties’ rights and duties being seen to be the essential question. Whether these considerations are relevant where there has been an error by a party’s advisers may be another matter.” [21] (endnotes omitted)

The decision of the New South Wales Court of Appeal in Air Link Pty Ltd v Paterson [2002] NSWCA 85 was almost analogous on the facts and in that case a similar argument had been rejected. The original statement of claim did not set out all the necessary allegations to support a claim under the Act.

Should the respondent’s amendment be allowed?
The rule in Weldon v Neal (1887) 19 QBD 394 has been abrogated both in Victoria and, more importantly, in the Northern Territory, where the accident took place [since the decision of the High Court in John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503, Northern Territory law would apply in relation to any limitation defence]. The rule, a rule of practice, required a court on an application to amend to refuse the application if the claim sought to be made by the plaintiff was a new claim statute-barred at the date of the application. Prior to its abrogation, however, the rule had been applied to any claim which might have become statute-barred. (emphasis added)

A corollary to the rule is that any amendment made to a statement of claim relates back to the date of the filing of the proceeding. [This is to be compared with the addition of a party which operates prospectively from the date of actual joinder].

The abrogation of the rule in Weldon v Neal should be regarded as procedural. In the words of Ormiston JA:

“My prima facie conclusion therefore is that O.36.01(6) [the rule abrogating the rule in Weldon v Neal in Victoria and see also s34 of the Limitation of Actions Act 1958 (Vic)] was intended only to have a procedural effect designed to ensure the proper and fair consideration of applications to amend pleadings where, if the amending claim had been brought independently and out of time, that claim would have been automatically rejected as statute-barred pursuant to existing authority. The Court now in the exercise of its discretion may look at the totality of the circumstances to resolve whether it is in fact fair to permit that claim to be introduced by way of amendment. It would never have been proper for the rules to have attempted more, but the concern was that the ‘rule in Weldon v Neal’ had been given so rigid an interpretation, especially in this State in Cutrona [Cutrona v Harnischfeger of Australia Pty Ltd [1977] VR 306], that it might be perceived that, if amendment were effected solely by changes to rules of court, then a defendant’s immunity or other rights pursuant to a limitations statute would be invalidly defeated by the abrogation of that ‘rule’, at least in certain circumstances. I would not, however, interpret a rule of court, such as the new Order 36, as permitting an amendment which clearly and directly took away rights given under a limitations act, with one, not unimportant, exception. For better or for worse, instead of merely ratifying and sanctioning the rules of court so that they might, as rules of practice have statutory force, Parliament went further in relation to the Victorian Limitation of Actions Act and, so it would seem, did that of the Northern Territory by its Limitation Act. To that extent the new rule should be treated as having a greater ambit, consistent with those Acts, namely that, in relation to limitation periods laid down by each Act and probably, though it is unnecessary for the present appeal to so decide, those otherwise laid down by the relevant legislature, a wider power has been given. That wider power does require the consideration of potential prejudice, although the new provisions appear to concentrate on the conduct of the trial rather than any inherent unfairness in allowing stale claims to be litigated, but again it is not necessary to resolve that for the purpose of this appeal.” [50]

But did s34 of the Civil Aviation (Carriers) Liability Act operate to the exclusion of any relevant legislation or rules in Victoria (or the Northern Territory) by virtue of s109 of the Commonwealth Constitution?
It was argued for the appellant that the Act operated as a code and “covered the field” so that by virtue of s109 of the Constitution the s34 limitation period should prevail. Moreover, in seeking relief under the Act, the plaintiff/respondent was necessarily invoking federal jurisdiction. Section 79 of the Judiciary Act 1903 (Cth) provides:

“The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.”

It was argued, based on s79, that the provisions abrogating Weldon v Neal were irreconcilable with s34 of the Act.

Ormiston JA concluded in relation to this:

“The question must therefore be answered both at the Constitutional level, by applying s109, and, at the practical level, in this litigation now that s79 is known to apply to the dispute and the present action. But whether the issue is one of inconsistency or one of irreconcilability, the answer is the same. The answer must be asked whether the Act is intended to control all rights and duties relating to the limitation period for the bringing of actions under Part IV or whether it is intended to cover a narrower field. In my opinion, s34 (with which must be read all other related sections) is intended to lay down only the relevant limitation period, leaving questions of its application to particular parties, extension, power to amend proceedings, the manner in which actions are commenced and the like to the law which must be applied by the court in which the action is brought. [62] (emphasis added)

However, s34 of the Act was expressed in terms of extinguishment of claims. Could O.36 and s34 of the Limitation of Actions Act 1958 (Vic) or its Northern Territory equivalent revive a claim which had become extinguished?

It was not necessary to resolve this issue. All that the respondent proposed to do by amendment was to add to an existing claim; it was not proposed to add a new claim:

“The present case, however, is not a case where a completely new claim, said to have been extinguished by the Act, is sought to be added by way of amendment where no like claim previously was asserted. As I have previously sought to explain, all that the amendments in the present case sought to achieve was to add to an existing claim, which was already on foot, certain (effectively) jurisdictional allegations, together with an allegation that the proceeding was brought pursuant to Part IV of the Act. That is the sort of amendment which arguably could have been made before the ‘rule in Weldon v Neal’ was rigidly confined so as to exclude the possibility of such a claim being effected by way of amendment. As pointed out in cases such as Proctor [Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 165], the change in court rules, both in England and Australia, without regard to any statutory endorsement of them, was designed to restore flexibility to the process of amendment, so as to allow the substantive claim to be litigated. For practical purposes, all the relevant facts were asserted in the original statement of claim and the only facts omitted were in substance jurisdictional facts or facts which one would have to prove only to show that the respondent had the right to bring the action.” [77]

The purpose behind the abrogation of the rule in Weldon v Neal was to give the court the power to ignore statutory limitations where the defendant would sustain no prejudice. [82]

Ormiston JA concluded:

“In conclusion, therefore, whatever may have been said while the ‘rule in Weldon v Neal’ was being applied in all its strictness in this State, especially after the Full Court decision in Cutrona, the amendments to O.36, which must be characterised as purely procedural, properly may be called in aid to amend an action which has already been brought. Technically the correct cause of action was not identified but I would hold that the identification and characterisation of the correct cause of action should be treated as a matter of mere form, capable of ready amendment, so enabling the plaintiff to prosecute a claim which must be known by the defendant to be the only claim capable of being pursued under Part IV of the Act from the outset of proceedings. That would accept what appears to be the approach of many courts in the United States to this limited kind of amendment.” [80]

The amendment had been properly allowed.

  • PSL Industries Ltd & Anor v Simplot Australia Pty Ltd [2003] VSCA 7 (unreported, 28 February 2003, No 6031/1997, Ormiston and Chernov JJA and O’Bryan AJA).

The respondent/plaintiff had obtained leave to amend its statement of claim to allege pre-contractual breaches of the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1985 (Vic) in circumstances where the cause of action arising out of the breaches had accrued outside the three year limitation period prescribed by s82(2) of the Trade Practices Act and s37(2) of the Fair Trading Act.

Could r36.01(6) and s34 of the Limitation of Actions Act 1958 (Vic), designed to abrogate the rule in Weldon v Neal, operate in relation to limitation provisions not contained in the Limitation of Actions Act itself? For the reasons found in the judgment of Ormiston JA in Agtrack (above at [82]), r36.01(6) and s34 were of general application. The views of Batt J in Keller v Bayside City Council [1996] 1 VR 356, 375-376, to the contrary, should not be accepted.

Was there a relevant clash between state and commonwealth laws?
The Victorian provisions were not relevantly inconsistent or irreconcilable with s82(2) of the Trade Practices Act. Section 82(2) simply bars the relevant remedy and does not extinguish the right (cf. s34 of the Civil Aviation (Carriers’ Liability) Act the subject of the decision in Agtrack (above). Chernov JA referred to several cases which supported this view.

It followed that the amendment had been properly allowed.


PROFESSOR GREG REINHARDT is executive director of the Australian Institute of Judicial Administration and a member of the Faculty of Law at Monash University. The numbers in square brackets in the text refer to the paragraph numbers in the judgment. The full version of these judgments can be found on the AustLII website http://www.austlii.edu.au/databases.html.

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