Category Archives: Appeals

Neal v R | High Court of Australia | 24 September 1982

ON 24 SEPTEMBER 1982, the High Court of Australia delivered Neal v R [1982] HCA 55; (1982) 149 CLR 305 (24 September 1982).

http://www.austlii.edu.au/au/cases/cth/HCA/1982/55.html

The ethnic or other background of an offender may be a material fact to be taken into account in sentencing.

Reference under s443A of the Criminal Code by the Attorney-General for the Northern Territory of Australia of the convictions of Alice Lynne Chamberlain and Michael Leigh Chamberlain

ON 15 SEPTEMBER 1988, Michael and Lindy Chamberlain were acquitted by the Northern Territory Court of Criminal Appeal, who quashed their earlier convictions.

Click to access 3.pdf

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Taylor v Taylor [1979] HCA 38 | 22 August 1979

ON 22 AUGUST 1979, the High Court of Australia delivered Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1 (22 August 1979).

http://www.austlii.edu.au/au/cases/cth/HCA/1979/38.html

A husband failed to appear in family law proceedings in the Supreme Court of NSW due to a misunderstanding on the part of his legal representative. In his absence, the court made orders dissolving the marriage and transferring the matrimonial home to the wife. Once the husband became aware of the orders, he made an application to the newly established Family Court seeking variation of the Supreme Court orders to the effect that the matrimonial home be sold and the net proceeds be divided between he and his wife. On the day of the application, the wife’s legal representatives mistakenly attended the Family Law Division of the Supreme Court rather than the Family Court. In the absence of the wife, orders were made by Hogan J of the Family Court in accordance with the relief sought by the husband. The wife then appealed to the Full Court of the Family Court, who allowed the appeal ruling that Hogan J did not possess the statutory power to amend the Supreme Court’s orders.

The High Court allowed an appeal, ordering that the previous orders be set aside and that there be a re-hearing of the matter.

The High Court held that a court has an inherent jurisdiction to set aside orders where it is in the interests of justice to do so.

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Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297

Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297

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House v R [1936] HCA 40 | 17 August 1936

ON 17 AUGUST 1936, the High Court of Australia delivered House v R [1936] HCA 40; (1936) 55 CLR 499 (17 August 1936).

http://www.austlii.edu.au/au/cases/cth/HCA/1936/40.html

The exercise of a judge’s discretion may be reviewed on appeal if the judge:

  • Acts on a wrong principle.
  • Allows him or herself to be guided by extraneous or irrelevant matters.
  • Mistakes the facts.
  • Fails to take into account a material consideration.

If there is no identifiable error, but if upon the facts the exercise of discretion is “unreasonable or plainly unjust”, an appeal court may infer that the judge has failed to properly exercise his or her discretion on the grounds that a substantial wrong has occurred.

Peter Dixon, Evatt and McTiernan JJ:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

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Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49 | 9 August 2001

ON 9 AUGUST 2001, the High Court of Australia delivered Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; 207 CLR 72; 181 ALR 307; 75 ALJR 1342 (9 August 2001).

http://www.austlii.edu.au/au/cases/cth/HCA/1998/68.html

A provision conferring jurisdiction on a court is to be liberally construed (at [11]).

Statutory interpretation should begin with consideration of the text of the legislation. Judicial exposition should not be favoured over analysis of the legislation itself (at [9], [46]-[51]).

A judge has an obligation to state his or her reasons (at [32]-[33]).

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R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd | High Court of Australia | 9 August 1949

ON 9 AUGUST 1949, the High Court of Australia delivered R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389 (9 August 1949).

http://www.austlii.edu.au/au/cases/cth/HCA/1949/33.html

A court has a discretion to withhold the granting of a writ of mandamus:

“For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court’s discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.” (at 400).

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R v Watson; Ex parte Armstrong [1976] HCA 39 | 3 August 1976

ON 3 AUGUST 1976, the High Court of Australia delivered R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 (3 August 1976).

http://www.austlii.edu.au/au/cases/cth/HCA/1976/39.html

The decision sets out the test under Australian law for apprehended bias.

A judge must not hear a case if “the parties or the public might reasonably suspect that he was not unprejudiced and impartial”: per Barwick CJ, Gibbs, Stephen and Mason JJ at 263.

Public confidence in the administration of justice is of fundamental importance: “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision”: at 263.

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Administrative Appeals Tribunal

The Administrative Appeals Tribunal (AAT) http://www.aat.gov.au/ hears appeals of administrative decisions of Australian Government ministers, departments, agencies and tribunals. A decision may only be reviewed if a specific piece of legislation grants the AAT the power to review the decision.

The AAT began on 1 July 1976 under the Administrative Appeals Tribunal Act 1975 (Cth).

The AAT is authorized to review decisions in over 400 pieces of legislation covering areas such as social security, family assistance, veterans affairs, workers compensation, child support, bankruptcy, civil aviation, citizenship, immigration, corporations, financial services, customs, industry assistance, freedom of information, mutual recognition of occupations, security assessments and passports.

The AAT has five divisions: General Administrative, National Disability Insurance Scheme, Security Appeals, Taxation Appeals and Veterans’ Appeals Divisions

Appeals involve a merits review.  The AAT reconsiders the facts, law and policy relating to the administrative decision on appeal and then makes it’s own decision by affirming, setting aside or varying the decision or remitting the matter back to the administrative decision maker. The tribunal is not bound by the laws of evidence and can inform itself in any manner that it considers appropriate. However, it is required to preform its functions in accordance with the law and is bound by the principles of natural justice and procedural fairness.

AAT decisions may be appealed in the Federal Court of Australia.

The AAT has registries all across Australia. The Sydney Registry is located at level 7, 55 Market Street, Sydney NSW 2000.

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Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 | 31 July 1986

ON 31 JULY 1986, the High Court of Australia delivered Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 (31 July 1986).

http://www.austlii.edu.au/au/cases/cth/HCA/1986/40.html

An administrative decision maker’s failure to take into account relevant considerations is an abuse of discretion creating a jurisdictional error that may be remedied by judicial review. The consideration must be relevant and one that the decision maker was bound to take into account.

Determining whether or not a decision maker was bound to take into account a consideration is to be through construction of the statute that confers the decision maker’s power. Implications may arise from the subject matter, scope and purpose of the statute.

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