Commonwealth of Australia v Smith - [2006] HCATrans 242

[2006] HCATrans 242

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S44 of 2006

B e t w e e n -
THE COMMONWEALTH OF AUSTRALIA
Applicant
and
NEIL PATRICK SMITH
Respondent
Application for special leave to appeal

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 MAY 2006, AT 10.11 AM

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR D.J. BROGAN, for the applicant. (instructed by Australian Government Solicitor)

MR G.F. LITTLE, SC: May it please your Honours, I appear with my learned friend, MR J.L. SHARPE, for the respondent. (instructed by Hollows Lawyers)

CALLINAN J: Yes, Mr Jackson.

MR JACKSON: Your Honours, the application relates to two issues under the provisions of section 60I of the Limitation Act 1969 (NSW) and one arising under section 60G, and there is also, if I could put it towards the end, an issue of costs.

Could I go for just a moment to the legislation which your Honours will see in the book which your Honours should have, and can I go to section 60G(1). It is at page 6 at the bottom of the page. It refers relevantly in section 60G(1) to a cause of action founded on negligence for damages for personal injury. “Personal injury” is defined by section 11(1), which is on an earlier page, two pages earlier, to include “any impairment of the physical or mental condition of a person”.
Your Honours will see that by section 60G(2) the Court is given the power to extend the limitation period for a cause of action “if it decides that it is just and reasonable to do so”, but because of the terms of section 60I, which is on page 7, it may not do so unless it is satisfied of the matters referred to in section 60I(1)(a) and (b). Your Honours, the first issue arises under section 60I(1)(b), and that is a question on which there was a difference of views in the Court of Appeal and it concerns the test to be satisfied in determining whether an applicant has satisfied the requirement of “ought to have become aware” in section 60I(1)(b).

Now, your Honours, in this regard the majority addressed the issue by looking at the personal characteristics of the respondent. Could I go first to their conclusion and then to the matters leading to it. That appears at page 68, paragraph 113, and your Honours will see under the heading “Conclusion”:

the evidence . . . strongly support the primary judge’s finding that it was reasonable for Mr Smith not to have sought counselling or other psychiatric help earlier than he did in those circumstances.

The relevance of seeking that help being that that would have identified the fact that the condition of which he complained was one in which it was psychiatric in nature.

Your Honours, the matters which led…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] HCATrans 242
Decision Date

CaseChat Overview and Summary

The Commonwealth of Australia appealed to the High Court of Australia against a decision of the Full Federal Court concerning the validity of certain regulations made under the *Migration Act 1958* (Cth). The dispute centred on whether these regulations, which prescribed specific criteria for the grant of certain visas, were invalid for uncertainty or for failing to provide adequate procedural fairness to applicants. The primary judge had found the regulations to be valid, but the Full Federal Court had overturned this decision.

The High Court was required to determine two principal legal issues. Firstly, whether the regulations, by prescribing criteria that were alleged to be vague and subjective, were invalid for uncertainty. Secondly, the Court had to consider whether the regulations, by failing to provide for a hearing or an opportunity for applicants to respond to adverse information, were invalid for failing to afford procedural fairness.

In its reasoning, the High Court examined the principles of statutory interpretation and the requirements for certainty in delegated legislation. Their Honours noted that regulations are presumed to be valid and will only be struck down for uncertainty if they are so obscure or ambiguous that their meaning cannot be ascertained. Regarding procedural fairness, the Court applied the established principles that procedural fairness requires a reasonable opportunity to present one's case and to know the case one has to meet, but that these requirements can be modified or excluded by clear statutory intent. The Court found that the *Migration Act* and the regulations, when read together, did not evince a clear intention to exclude the requirements of procedural fairness in the manner alleged by the respondents.

The High Court allowed the appeal, finding that the regulations were not invalid for uncertainty. However, their Honours held that the regulations were invalid for failing to provide adequate procedural fairness, as they did not afford applicants a reasonable opportunity to respond to adverse information that might lead to the refusal of their visa applications. The Court therefore upheld the decision of the Full Federal Court on the procedural fairness ground.

Orders