This decision has been amended. Please see the end of the decision for a list of the amendments.
Court of Appeal
New South Wales
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- Case
- [2013] NSWCA 187
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the ICAC had committed jurisdictional error in its findings, particularly in relation to the interpretation of "sitting day relief entitlements" and the scope of its duty to provide reasons. The court was required to determine if the ICAC had properly considered relevant factors and correctly construed the legislation governing the entitlements.
The Court of Appeal applied established principles of administrative law concerning jurisdictional error, drawing on High Court authority. The court emphasised that jurisdictional error occurs when a decision-maker fails to form the opinion required by the relevant legislation, for instance, by taking into account irrelevant considerations or misconstruing the legislation. The court also considered whether a decision lacked a basis in the evidence or was contrary to the overwhelming weight of material, which could also constitute jurisdictional error. In this instance, the court found that the ICAC's reasoning, based on Ms. D'Amore's evidence and the language of the forms she signed, was not illogical or irrational, and that she could not credibly claim not to have understood the "Member's declaration" she signed.
The Court of Appeal granted leave to appeal but ultimately dismissed the appeal, ordering that Ms. D'Amore pay the costs of the proceedings.
Orders
Orders of the court
(1) Grant leave to appeal;
(2) Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Latham CJ added, at 432: "It should be emphasized that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is to inquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide." (emphasis added)See also Minister for Immigration v Eshetu at [133] per Gummow J. A decision which has no basis in the evidence or which is contrary to the overwhelming weight of the material will also involve jurisdictional error: see Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748 at 776-777, cited in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [23] and [24] per Gummow ACJ and Kiefel J. In Minister for Immigration and Multicultural and Indigenous Affairs v SGLB, Gummow and Hayne JJ stated, at [37]-[38]:"The satisfaction of the Minister is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa, and is a 'jurisdictional fact' or criterion upon which the exercise of that authority is conditioned ...The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith." (emphasis added; citations omitted) This passage was quoted with approval in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 by Gummow ACJ and Kiefel J at [40] and Crennan and Bell JJ at [102]. Crennan and Bell JJ, at [103], noted that the portion emphasised in the passage had been foreshadowed in Minister for Immigration v Eshetu by Gummow J, at [147], in his reference to "findings or instances of facts which were not supported by some probative material or logical grounds". Gleeson CJ had adopted a similar approach in S20/2002, at [4], where his Honour had observed that a ground of challenge to the Tribunal's decision in that case was that it "was illogical, irrational, or was not based on findings or inferences of fact supported by logical grounds". Even a person who had no prior knowledge of the conditions of the entitlement, upon reading the claim form could have been in little doubt as to the requirement that the relief officer work at the electorate office because the electorate officer was in Parliament House. The applicant gave evidence that she did not read the forms prior to signing them. Although she signed in the box marked "Member's declaration" she gave evidence that she attached no significance at all to the words "Member's declaration" and did not ever read them. The Commission set out an extract from her evidence (Report, p 20-21) and concluded at 21:"In the Commission's view, Ms D'Amore's responses in the above exchange are unconvincing. In the commission's view, it is highly unlikely that Ms D'Amore would not have read the words 'Member's Declaration' when signing the forms."The reasoning, based on the evidence given and the language of the forms covered pp 20-23 of the Report.