Pratten v Commonwealth of Australia - [2017] HCATrans 124

[2017] HCATrans 124

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S116 of 2016

No S117 of 2016
B e t w e e n -
TIMOTHY CHARLES PRATTEN
Plaintiff/Applicant
and
COMMONWEALTH OF AUSTRALIA
Defendant/Respondent

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 JUNE 2017, AT 9.15 AM

HIS HONOUR: I am concerned in these reasons for decision with two proceedings in the original jurisdiction of the High Court. The first (No S116 of 2016) is a proceeding in which Mr Timothy Charles Pratten is the plaintiff and the Commonwealth of Australia is the defendant. By writ of summons, supported by a statement of claim, Mr Pratten seeks in that proceeding declaratory and injunctive relief. I will refer to it as the “declaration proceeding”. The second (No S117 of 2016) is an application under s 40 of the Judiciary Act 1903 (Cth) for removal of a criminal proceeding which Mr Pratten claims to be pending in the Supreme Court of New South Wales. I will refer to it as the “removal proceeding”.

In the declaration proceeding, I am specifically concerned with an application by the Commonwealth for summary dismissal. In the removal proceeding, I am concerned with whether the order for removal can or should be made.

The proceedings share a common background and raise common issues. The common background is as follows.

On 4 April 2011, the Commonwealth Director of Public Prosecutions charged Mr Pratten on indictment in the Supreme Court of New South Wales with seven counts of dishonestly obtaining a financial advantage from the Commonwealth contrary to s 134.2(1) of the Criminal Code (Cth). Each charge related to a failure by Mr Pratten to disclose assessable income in a tax return with a resultant reduction in his liability to pay income tax.

Counts 1 and 2 related to financial years ending 30 June 2003 and 30 June 2004 respectively, each return being lodged on 18 August 2005. Count 3 related to the subsequent financial year, the return being lodged on 21 June 2006. Counts 4 to 7 related to the four subsequent financial years, the returns being lodged on 29 September 2009.

Following an initial trial by jury, Mr Pratten was on 13 June 2012 found guilty on all seven counts. He was convicted and sentenced on 31 March 2014: R v Pratten (No 12) [2014] NSWSC 396. In the interim, he had commenced civil proceedings against the Director which had been dismissed on 21 May 2013: Pratten v Director of Public Prosecutions (Cth) (2013) 302 ALR 329. Mr Pratten appealed against his initial convictions. On 1 July 2014, the Court of Criminal Appeal quashed the convictions and ordered a retrial: Pratten v The Queen [2014] NSWCCA 117.

Following a second trial by jury, Mr Pratten was on 9 September 2015 again found guilty on all seven counts. On 29 April 2016, he was convicted and sentenced to five years’ imprisonment…

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: [2017] HCATrans 124
Decision Date

CaseChat Overview and Summary

In *Pratten v Commonwealth of Australia*, the applicant, Mr Pratten, sought judicial review of a decision by the Commonwealth of Australia to refuse his application for a visa. The dispute concerned the lawfulness of the decision-making process and the interpretation of relevant legislative provisions governing visa applications. The matter came before Gageler J of the High Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister for Immigration and Border Protection had erred in law by failing to consider relevant considerations and by taking into account irrelevant considerations when assessing Mr Pratten's visa application. Specifically, the Court was required to determine if the delegate had properly applied the criteria set out in the *Migration Act 1958* (Cth) and associated regulations, and whether the delegate's assessment of the applicant's circumstances was reasonable and based on proper evidence.

Gageler J reasoned that the delegate's decision was vitiated by a failure to properly consider the applicant's submissions and supporting documentation, which constituted relevant considerations. The Court found that the delegate had placed undue weight on certain aspects of the application while overlooking or undervaluing others, leading to an unreasonable conclusion. The legal principle applied was that administrative decision-makers must undertake a comprehensive and balanced assessment of all relevant material placed before them, and that a failure to do so constitutes an error of law.

The Court ordered that the decision of the delegate be quashed and remitted to the Department of Immigration and Border Protection for reconsideration according to law.

Orders