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Reviews of judgments

Every Issue

Cite as: (2003) 77(8) LIJ, p.66

High Court Judgments

Cite as: (2003) 77(8) LIJ, p.66

By Thomas Hurley


Administrative law – application under s75(v) Constitution to challenge tax assessment – equitable fraud.

  • Glennan v C of T [2003] HCA 31 (17 June 2003).

A Full Court of the High Court (Gummow, Hayne, Callinan JJ) concluded there was no “constitutional right” in a taxpayer to challenge a tax assessment by means of an application for prerogative writ under s75(v) of the Constitution. The Court observed the existence of other avenues of appeal in respect of tax assessments found in Part IVC of the Taxation Administration Act 1953 (Cth) provided a discretionary reason for dismissing such an application and not allowing a collateral attack on earlier decisions. The Court concluded the Commissioner had not failed to disclose an earlier tax ruling in circumstances amounting to “equitable fraud” and this in personal remedy did not apply in the AAT [24]. Appeal from judgment of Chief Justice dismissed. The Court reached a like conclusion in an application for a constitutional writ: [2003] HCA 32.


Administrative law – decision under enactment – failure of nominated company to give consent to export of wheat required by statutory scheme.

  • NEAT Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35 (19 June 2003).

Section 57(3) of the Wheat Marketing Act 1989 (Cth) provided that the consent of the Australian Wheat Board to the export of wheat could only be given after the export had been approved by a company (ABWI) wholly owned by the Wheat Board. The appellant grain trader was refused consent for bulk export of wheat and sought review in the Federal Court under the AD(JR) Act, contending that the refusal of the nominated company was a decision of an administrative character made under an enactment and contrary to law. This proceeding failed before the primary judge and on appeal to the Full Court of the Federal Court. A further appeal to the High Court failed: Gleeson CJ; McHugh, Hayne, Callinan JJ jointly; contra Kirby J. The majority concluded there was no decision under an enactment [29]; [64]. In dissent, Kirby J concluded that in essence a statutory power was being exercised albeit on an “outsourced” basis. Appeal dismissed.


Administrative law – jurisdictional error – whether tribunal decision irrational or erroneous – bias.

  • Re MIMA; ex parte Applicant S20/2002 [2003] HCA 30 (17 June 2003).

An applicant for a protection visa challenged a decision of the RRT under Part 8 of the Migration Act and in proceedings in the original jurisdiction of the High Court under s75(v) of the Constitution. The applicant contended that the decision of the RRT to disregard his evidence and to find it uncorroborated by medical evidence was unreasonable or constituted bias. The majority of the High Court concluded that irrationality or unreasonableness in decision making did not constitute jurisdictional error unless the decision maker had failed to address the correct question, erred in the application of the relevant law or considered relevant considerations only: Gleeson CJ at [8]; McHugh and Gummow JJ at [36], [54]-[58]; Kirby J [139]; Callinan J [173]. The majority concluded the applicant was not entitled to relief. McHugh, Gummow JJ noted the applicant had not sought to rely on “gross error, manifest illogicality and unreasoned perversity” [35]. Consideration of the distinction between errors of fact and law and review of decisions based on a state of “satisfaction”. Appeal and application dismissed.


Bankruptcy – voidable settlements – settlement for value in good faith for valuable consideration – rollover of superannuation entitlements.

  • Cook v Benson [2003] HCA 36 (19 June 2003).

The High Court concluded that three payments to an arm’s length superannuation fund by a person who thereafter became bankrupt were settlements “for valuable consideration” within s120(1)(a) of the Bankruptcy Act 1966 (Cth) as in force at September 1990. Appeal against order of Full Court of the Federal Court dismissed by majority: Gleeson CJ, Gummow, Hayne, Heydon JJ; contra Kirby J who concluded that in a commercial sense the superannuation funds were not “purchasers” and the person should not have been able to place the funds outside of the reach of his creditors [76]. Appeal dismissed.


Commonwealth Parliament – court of disputed returns – validity of 2001 Senate elections in NSW.

  • Re Australian Electoral Commission; Ex parte Kelly [2003] HCA 37 (25 June 2003).

Gummow J concluded the writ for the Senate elections in NSW had been issued in time and that other challenges to the elections failed.


Negligence – contributory negligence – person injured while passenger in defective vehicle with intoxicated and inexperienced driver – apportionment.

  • Joslyn v Berryman; Wentworth Shire Council v Berryman [2003] HCA 34 (18 June 2003).

B was driving a vehicle he owned with J as a passenger after consuming much alcohol. On B falling asleep J insisted she drive. Shortly afterwards the vehicle overturned and B was severely injured. He sued J and the relevant council. The primary judge found J negligent as to 90 per cent and the council as to 10 per cent for failing to erect warning signs. He reduced damages by 25 per cent for contributory negligence. The NSW Court of Appeal concluded B was not guilty of contributory negligence. The High Court allowed appeals by J and the council. The High Court concluded the Court of Appeal had erred in failing to have regard to the statutory provisions concerning contributory negligence found in s74(2) of the Motor Accidents Act 1988 (NSW) [76]. The majority ordered the matter be remitted to the Court of Appeal to consider contributory negligence; Hayne J supported the findings of the primary judge [156]. 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(8) LIJ, p.68

By Thomas Hurley


Evidence – privilege against self-incrimination – whether court should order individual respondents to file witness statements where individuals liable to penalty.

  • ACCC v FFE Building Services Ltd [2003] FCAFC 132 (16 June 2003).

A Full Court concluded the primary judge did not err in declining to order individual respondents to provide witness statements in circumstances where they were exposed to penalties under ss76 and 77 of the Trade Practices Act 1974 (Cth). Decision of Sidebottom v FCT (2003) 52 ATR 184 not followed [26] on the basis that the “choice” of such persons to give evidence was illusory.


Income tax – anti-avoidance.

  • Electricity Supply Industry Superannuation (Qld) Ltd v Deputy C of T [2003] FCAFC 138 (25 June 2003).

A Full Court concluded s177EA(3) of the ITAA applied to a superannuation trust which operated to “stream” franked dividends to taxpayers so it could take advantage of franking credit benefits.


Income tax – deductions – theft of cash from drug dealer.

  • C of T v La Rosa [2003] FCAFC 125 (5 June 2003).

A Full Court considered when an illegal enterprise was so contrary to public policy that those conducting it were not entitled to reduce taxable income by reference to illicit “deductions”. The Full Court agreed with the primary judge that a drug dealer assessed to tax on his illegal activities was allowed to claim as a deduction the value of cash stolen from him while conducting that business.


Migration – detention – whether removal “reasonably practicable”.

  • M38/2002 v MIMIA [2003] FCAFC 131 (13 June 2003).

A Full Court considered how the question of whether it was “reasonably practicable” within s198(6) of the Migration Act to remove a person from Australia was to be determined [65]-[68], [80] and whether the High Court had a greater jurisdiction to issue injunctions under s75(v) of the Constitution than the Federal Court had to determine “jurisdictional error” under s39B of the Judiciary Act [92]-[94].


Migration – jurisdictional error – failure to inform applicant that MRT would rely on prior inconsistent statements.

  • MIMIA v Awan [2003] FCAFC 140 (26 June 2003).

A Full Court concluded the MRT had failed to comply with s359A of the Migration Act by not informing the applicant that it proposed to rely on earlier statements the applicant had given as constituting prior inconsistent statements going to credit. The Full Court concluded this failure was a jurisdictional error. Appeal against decision of primary judge dismissed.


Migration – jurisdictional error – natural justice – denial of offered chance to comment.

  • NAAG of 2002 v MIMA [2003] FCAFC 135 (20 June 2003).

A Full Court quashed a decision of the RRT, where the applicant was told that if the RRT had any concerns about the claim she made that she had been raped she would be given an opportunity to respond in writing, when the rape was ignored without the opportunity to comment being extended.


Migration – jurisdictional error – reconciliation.

  • SDAV v MIMIA [2003] FCAFC 129 (13 June 2003).

A Full Court concluded that the process of reconciling the various provisions in the Migration Act referred to in Re MIMA; ex parte S134/2002 (2003) 195 ALR 1 at [79], [81] involved a process to determine whether a decision involved jurisdictional error and did not distinguish between errors that were, and were not, jurisdictional errors [33]. The Full Court observed jurisdictional error was identified in accordance with Craig v SA (1995) 184 CLR 163 at [35]. Appeals allowed.


Migration – jurisdictional error – tribunal unaware applicant unfit to represent himself.

  • MIMIA v SCAR [2003] FCAFC 126 (6 June 2003).

The appellant was distressed, under medication and psychologically unfit to represent himself when the RRT, unaware of this, dismissed his claim, based in part on the appellant’s vagueness. The primary judge concluded, prior to Plaintiff S157/2002 v C of A (2003) 195 ALR 24, that the hearing had not been a bona fide attempt to exercise power because it was unfair. The Minister’s appeal to the Full Court failed. The Full Court concluded that compliance with the requirement in s425 of the Migration Act that the RRT extend an invitation to appear and give evidence was a precondition to the valid exercise of jurisdiction [38], and in the circumstances, unknown to the RRT, the invitation given had not been meaningful [41] and jurisdictional error was established on this basis.


Migration – refugees – jurisdictional error.

  • SBBG v MIMIA [2003] FCAFC 121 (6 June 2003).

A Full Court concluded it was arguable that limitations on a group in a society affecting employment, education and religion may exceed inconvenience and become persecution [29], a general obligation imposed on a community (such as wearing the chador) may operate discriminately and constitute persecution [30], and constant repetition by a tribunal of factual errors may constitute jurisdictional error [31].


Veterans’ entitlements – generalised anxiety disorder – reasons of AAT.

  • Fogarty v Repatriation Commission [2003] FCAFC 136 (20 June 2003).

A Full Court concluded the AAT had erred in concluding the generalised anxiety disorder suffered by a veteran was not war-caused because of uncertainty in whether the AAT had concluded the veteran suffered from the disorder, an apparent failure to consider a medical report and an apparent failure to consider a relevant statement of principles.


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.

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