Administrative Law

“If an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.” Craig v South Australia (1995) 184 CLR 163 at 179

The rule of procedural fairness known as the hearing rule is based on the maxim audi alteram partem, which requires that a decision-maker give to a person whose interests may be adversely affected by a decision an opportunity to present his or her case. Leading case: Kioa v Minster for Immigration and Ethnic Affairs (1985) 62 ALR 321 at 347 and 380

The test for an appearance of bias (i.e. apparent bias) is whether a fair minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question the decision maker is required to decide: Ebner v Official Trustee in Bankcruptcy (2000) 176 ALR 644 at [6]-[7]

The test for apparent bias in the case of a decision where the decision-maker is a Council was enunciated by Basten JA in McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504 at [80] as follows: “The real question is what, with the appropriate level of appreciation of the institution, the fair-minded observer would expect of a councillor dealing with a development application. The institutional setting being quite different from that of a court, the fair-minded observer will expect little more than an absence of personal interest in the decision and a willingness to give genuine and appropriate consideration to the application, the matters required by law to be taken into account and any recommendation of council officers.” See also enunciation of the test (per Spiegelman CJ) at [9]

When an inferior court makes an order or does an act that is subject to a right of appeal, an aggrieved party may have a choice between invoking a right of appeal or seeking judicial review: Saldanha v Fujitsu Australia Ltd [2010] WASC 105 at [16] ff

Application for review order under s 36 of the Magistrates Court Act 2004 (WA) – — Grounds for review — Whether arguable that decisions striking out minor case claim as an abuse of process and dismissing application to amend claim susceptible to review: Saldanha v Fujitsu Australia Ltd (No 2) [2011] WASC 360

Test whether a review order should issue is with an application for an order nisi i.e. plaintiff must establish, at least, an arguable case that she was denied natural justice: Re Potter; Ex Parte Coppin [2013] WASC 462

Procedural fairness – bias – fair hearing – duty to unrepresented litigant – Model Litigant Guidelines – held: conduct of proceeding before Tribunal established very strong likelihood that fair-minded lay observer might reasonably apprehend Senior Member did not bring impartial and unprejudiced mind to resolution of questions in dispute: Comaz Pty Ltd v Commissioner of State Revenue [2015] VSC 294

Judicial review – applicant held mining tenements under Mining Act 1978(WA) – applicant also party to agreement with State relating to development projects to be carried out on tenements – applicant sought to quash decision of warden to grant two miscellaneous licences under the Act to second respondent – applicant contended grant of licences was invalid – directly connected with mining – exclusive occupation – effect of agreement on application by third party for licence over area subject to agreement – held: Court not satisfied applicant established alleged errors – application dismissed: Mineralogy Pty Ltd v The Honourable Warden K Tavener [2014] WASC 420

Australian Sports Anti-Doping Authority Act 2006(Cth) – ASADA and AFL jointly investigated Essendon – ASADA had no statutory power to compel provision of information – AFL used its contractual powers to do so – ASADA issued notices of possible doping violations to 34 players – Essendon and its coach sued to have notices set aside – alleged ASADA had no statutory power for joint investigation with AFL – alleged ASADA had unlawfully communicated confidential information to AFL – alleged joint investigation was for improper purpose of enabling AFL to use its contractual power where ASADA had no statutory power – held: ASADA has statutory power to do all things convenient to be done in connection with its functions – includes calling on AFL to assist or cooperate – no unlawful disclosure of information – information communicated to the AFL directly, not via ASADA – statutory power must be exercised for the purpose for which it was conferred – ASADA’s purpose is to investigate doping – ASADA acted for this purpose – use of AFL’s contractual power to compel provision of information did not frustrate ASADA’s statutory purpose – ASADA could not, and did not, compel provision of any information – no abrogation of privilege against self-incrimination – ASADA complied with the rule of law – application dismissed: Essendon Football Club v CEO of the Australian Sports Anti-Doping Authority [2014] FCA 1019

Appellant transferred amount from own bank account to respondent’s bank account – appellant brought action for debt against respondent seeking repayment of sum and interest – magistrate dismissed claim – appellant sought judgment for appellant or that magistrate’s decision be quashed – held: without evidence that appellant agreed to accept loan and respondent agreed to accept obligation to repay loan, magistrate could not be satisfied there was a loan – Court satisfied magistrate failed to entertain appellant’s alternative restitutionary claim and therefore denied appellant procedural fairness constituting error of law – however appellant failed to establish payment made upon a mistake of fact giving rise to obligation on respondent to make restitution – appellant failed to identify any mistake which caused him to make payment – restitution claim failed – even if Court had accepted appellant’s bases for restitution, respondent had made out defence of change of position in part – appeal dismissed: Bernstone v Almack-Kelly [2014] VSC 358

Company sought declaration that decision of NSW Civil and Administrative Tribunal refusing to vacate hearing to allow it to obtain expert report was denial of procedural fairness – held: s35(a)Consumer, Trader and Tenancy Tribunal Act 2001(NSW) provided Tribunal must ensure each party in proceedings given reasonable opportunity to call or give evidence and otherwise present party’s case – refusal of adjournment was made without proper consideration of s35(a) – by failing to account fundamental consideration Tribunal did not accord procedural fairness to plaintiff – declaration made: AEA Constructions Pty Ltd v New South Wales Civil and Administrative Tribunal [2014] NSWSC 911

The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires: Save Beeliar Wetlands (Inc) v Jacob [2015] WASC 482 from [128] ff