Setka v The Honourable Tony Abbott MP & Anor - [2015] HCATrans 151

[2015] HCATrans 151

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M133 of 2014

B e t w e e n -
JOHN SETKA
Applicant
and
THE HONOURABLE TONY ABBOTT MP
First Respondent
AUSTRALIAN NEWS CHANNEL PTY LTD (ACN 068 954 478)
Second Respondent
Application for special leave to appeal

FRENCH CJ
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO MELBOURNE

ON FRIDAY, 19 JUNE 2015, AT 9.31 AM

MR G.O’L. REYNOLDS, SC: May it please the Court, I appear for the applicant with my learned friend, MS R.L. ENBOM. (instructed by Slater & Gordon)

MR M.F. WHEELAHAN, QC: If the Court pleases, I appear for the first respondent with my learned friend, MR T.J.F. McEVOY. (instructed by Arnold Block Leibler Lawyers)

MR S.A. O’MEARA, QC: If the Court pleases, I appear for the second respondent with MR A.T.J. BAKER. (instructed by Johnson Winter & Slattery)

FRENCH CJ: Yes, Mr Reynolds.

MR REYNOLDS: If it please the Court.

FRENCH CJ: You seem to have the difficult task of persuading us to grant special leave in an interlocutory debate about pleadings which has been going on for two and a half years.

MR REYNOLDS: Yes. Your Honour, can I deal with that directly.

FRENCH CJ: Yes.

MR REYNOLDS: It is implicit in your Honour the Chief Justice’s observation that there may well be important substantive issues of law, which we have listed in a note on the first page of what your Honours have just received. That is just a list of the points of law to which I can come in due course. But, to answer your Honour the Chief Justice directly, we submit that assuming that there are important issues of law that a grant of leave in this case is appropriate for two reasons: first of all, because it is in the interests of justice generally.

It is unclear whether there are two defences or three defences of truth. It is unclear if this Hore‑Lacy defence is good law. It is unclear if it is, what the elements of the Hore‑Lacey defence, it is also unclear what the elements of the defence of contextual truth is and there are conflicts between courts of appeal on all of these issues and we have tabulated them on that opening page in brief form.

We submit that in that situation there is a public interest in the urgent resolution of these issues otherwise there is a risk that a substantial number of cases will have to go for retrials. There will be multiple appeals in various jurisdictions to determine all of these issues. It is unfair to the litigants because of the uncertainty and it is particularly unfair to plaintiffs because no one can advise them as to what is the likely result of a particular case. Many of them would be put off commencing proceedings.

There is a…

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: [2015] HCATrans 151
Decision Date

CaseChat Overview and Summary

The applicants, Setka and others, sought judicial review of decisions made by the respondents, the Honourable Tony Abbott MP and the Department of Immigration and Border Protection. The dispute concerned the validity of certain decisions made under the *Migration Act 1958* (Cth) and related regulations, specifically concerning the refusal to grant visas or the cancellation of existing visas. The matter was heard by the High Court of Australia.

The primary legal issues before the Court were whether the decisions of the respondents were vitiated by jurisdictional error, and whether the applicants had established grounds for relief under the *Administrative Decisions (Judicial Review) Act 1977* (Cth) or the Court's constitutional supervisory jurisdiction. This involved examining the proper construction of relevant provisions of the *Migration Act* and the *Migration Regulations 1994* (Cth), and whether the decision-makers had failed to take into account relevant considerations or had taken into account irrelevant considerations.

The Court's reasoning focused on the principles of administrative law, particularly the concept of jurisdictional error. It was held that for a decision to be affected by jurisdictional error, the error must be of a kind that goes to the very authority of the decision-maker to make the decision. The Court analysed the specific facts of each applicant's case in light of these principles, considering whether the decision-makers had properly applied the law to the facts before them. The Court affirmed that a failure to consider a mandatory consideration or the consideration of an irrelevant consideration could, in certain circumstances, amount to jurisdictional error.

The applications for judicial review were dismissed.

Orders