SZFDE & Ors v Minister for Immigration & Citizenship & Anor

[2007] HCATrans 248

[2007] HCATrans 248

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S118 of 2007

B e t w e e n -

SZFDE

First Appellant

SZFDF

Second Appellant

SZFDG

Third Appellant

SZFDH

Fourth Appellant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 24 MAY 2007, AT 10.06 AM

Copyright in the High Court of Australia

__________________

MR G.C. LINDSAY, SC:   If it please the Court, I appear with, MR L.J. KARP, for the appellants.  (instructed by Legal Aid Commission of NSW)

MR R.T. BEECH‑JONES, SC:   If the Court pleases, I appear with my learned friend, MR G.T. JOHNSON, for the first respondent.  (instructed by DLA Phillips Fox Lawyers)

GLEESON CJ:   Yes, Mr Beech‑Jones.

MR BEECH‑JONES:   Your Honour, I seek leave to substitute the title, the Minister for Immigration and Citizenship, for the first respondent.

GLEESON CJ:   Thank you, we will do that.  Yes, Mr Lindsay.

MR LINDSAY:   Thank you, your Honour.  The central question for determination in this appeal, in our submission, is the nature of the connection between, on the one hand, an administrative decision of the Refugee Review Tribunal, said to have been affected by fraud, and on the other hand, the fraud, if the decision is to be held by a court to have been vitiated on the ground of fraud.

The appellants submit that whatever formula might be employed to describe that connection, the fact is that the decision‑making process of the Tribunal in this case was manifestly and directly affected by the fraud of their nominal adviser, Mr Hussain, and that the fact that his fraud was directed towards them and affected the Tribunal through them does not carry the consequence that the Tribunal’s decision must be said not to have been vitiated by the fraud.

We are indebted to your Honours for drawing our attention to the case of McDonald v McDonald (1965) 113 CLR 529. What we would invite your Honours to draw from that is two things. First of all, if a judgment is tainted by fraud it will, without more, be set aside, and secondly ‑ ‑ ‑

GUMMOW J:   Has it ever been thoroughly explored as to what is meant by “tainted by fraud” in that common law setting of judgments impeached?

MR LINDSAY:   In the context of a fresh evidence application or an application ‑ ‑ ‑

GUMMOW J:   There are plenty of cases on perjured evidence, I think.

MR LINDSAY:   I understand that there would be a range of authority on that but I have not come prepared to address that in that particular context, but at the end of the day it will be our submission that the expression “tainted by fraud” is informed by considerations of what is necessary to uphold the administration of justice and the integrity of the process.

HAYNE J:   Does that not bring us to an examination of some of the premises including first the applicability of these principles, impeaching judgments made in litigation between parties to the separate field of discourse of administrative decision making where the relevant remedies and principles are directed to the lawfulness of the decision‑making process rather than the merits of the decision arrived at?

MR LINDSAY:   It does, your Honour, and the fresh evidence cases or the fraud cases, the retrial cases are at best an analogy because we accept that the field of discourse is conceptually separate.

GUMMOW J:   And may be narrower, that is the question.

MR LINDSAY:   It may be.  We would submit that in terms of its general formulation one could not do much better than what was formulated as a general principle by Justice French in the appeal book at page 318.

KIRBY J:   I think his Honour’s quotation of the House of Lords decision – the 1990 decision – indicated that he was alive to the difference between private and public law.

MR LINDSAY:   Yes, I believe he was.  The judgment of Justice Graham is one that perhaps draws more support from the private law concepts, but what we would submit is a convenient statement of the relevant general principle appears at page 318 between points 30 and 40, that is to say, the last sentence in paragraph 121 and the first sentence in paragraph 122.

GUMMOW J:   The trouble is there is no reference in Al‑Mehdawi, is there, to these fundamental ideas?

MR LINDSAY:   No, not really.  What that case does, really, is recognise the existence of the principle.

GUMMOW J:   Yes, quite.

MR LINDSAY:   At the end of the day, it may be that one is looking at the sort of assessment that one sees in areas of causation and the like.  At the end of the day, there is an evaluation of judgment that needs to be made.  It cannot be articulated by a single verbal formula, but at the end of the day one needs to exercise judgment as to whether or not the particular decision concerned was relevantly affected by the fraud.

GLEESON CJ:   From one possible point of view, the sort of conclusion for which you contend in one respect may be easier to accept in a public law context than a private law context, because in the case of ordinary civil litigation the question is who is going to bear the consequences of a decision or of a conclusion that the judgment must be set aside?  If, for example, fraud on a plaintiff is practised by a representative of the plaintiff, an outcome that dictates the defendant bears the consequence of that may be unattractive.
MR LINDSAY:    Yes, certainly, and we would certainly embrace the idea that one of the important considerations in dealing with public law, questions involving administrative law, is really the integrity of the process, and that is something which the public has a particular interest, beyond the interest of particular parties.

KIRBY J:   I must admit that a thought went through my mind on the basis the Chief Justice just mentioned as to why the Minister challenged the decision of the federal magistrate.  It may be that it was because there is some important or interesting point of law involved, but what interest can the Minister have in the affirmation of a decision affected by these facts if the facts are not contested, and why would the Minister want to uphold that and stop these people from having an opportunity of having the case determined with them having their say?

MR LINDSAY:    That would be a question that I would be happy to ask, but happily it is not one that I am called upon, I think, to answer, but we certainly ‑ ‑ ‑

KIRBY J:   At the special leave hearing it was indicated by those who were there that their hands were not ringing with anxiety about the position of the respondent, but one does ask a question as to why we are here, given the decision of the federal magistrate.  However, we are here, so we have to decide it.

MR LINDSAY:   It would be our submission that the Tribunal’s decision was manifestly and directly affected by Mr Hussain’s fraud, essentially because that is what the Tribunal told us, in two respects.  The reasons of the Tribunal are relevant.  First of all, the decision was predicated upon an assumption that the appellants had within the meaning of section 425(2)(b), consented to the Tribunal deciding their application for review on the papers and, secondly, the Tribunal itself recorded that its decision had been adversely affected by an absence of evidence from the appellants.  The references are in our submissions and, unless required, I will not take your Honours to them.

It is also patent, in our submission, that the signature of the first appellant on the response document was procured by fraudulent representations of Mr Hussain.  That was found expressly by the federal magistrate who found expressly that the appellants had been dissuaded from attending the Tribunal’s hearing by the fraudulent behaviour of Mr Hussain.  In our submission, that finding was open to him on the evidence, and particularly the way the case unfolded in terms of cross‑examination and the like.

So we would submit the net effect of the fraudulent intervention of Mr Hussain was that the appellants were denied a fair hearing.  In our submission, the Tribunal itself, and we would submit the public, no less than the appellants, was a victim of Mr Hussain’s fraud.  There are a number of ways of putting that in the context of the concept of an invitation and the concept of consent within the meaning of section 425(2), but at the end of the day all of those things come back focusing on the fraud and, in our submission, what we have described as the fraud principle is sufficient.

KIRBY J:   Your leaping-off point is the fraud principle but we now have the notice of contention and your submissions that the federal magistrate did not find that Mr Hussain acted fraudulently.  I am not now entirely clear as to where we stand on the factual premises on which we are asked to act.

MR LINDSAY:   At the risk of deviating, which is always best resisted ‑ ‑ ‑

KIRBY J:   But you have to get your facts right before you start looking at the principle.

MR LINDSAY:   That is right, and we have said in our submissions what we would submit are the precise facts and the findings of fact on the evidence.  The Minister appears to have shifted ground to some extent, in our submission, conceding the existence of the fraud principle and seeking to elevate this into some form of facts dispute, but the particular finding which I quoted is quite clear.  The appellants were dissuaded from attending the hearing by the fraudulent behaviour of Mr Hussain and, whether or not ‑ ‑ ‑

KIRBY J:   Is that said in plain terms by the federal magistrate?

MR LINDSAY:   It is in the appeal book at page 253 in paragraph 50 at the bottom of the page.  He says that precisely.  In discussing the fraud he refers back to paragraph 47 on the same page and all of this in the context that he had accepted the evidence of both the wife and the husband as to what they were told and how they had proceeded.  The objective evidence is overwhelming, and I do not think on any view it is challenged, that this man represented himself to be a solicitor, practising as such.  There was a business card that he provided which refers to him as a solicitor.  It does not appear to be contested, nor could it be, that his practising certificate had been cancelled so that he had no entitlement to practise as a solicitor or to hold himself out as a solicitor, and it is plain on the evidence of the husband and wife that Mr Hussain spent about an hour and a half, I would say, putting pressure on the appellants not to attend and ‑ ‑ ‑

GUMMOW J:   What is the fraud as distinct from the incompetence in that?

MR LINDSAY:   The fraud?

GUMMOW J:   Yes.

MR LINDSAY:   The fraud, we have advanced two elements of fraud, they interact.  What one might call the bottom line is that he represented himself to be entitled to practise as a solicitor and procured their agreement to a particular course on that basis and, we would submit, that on any view must be fraudulent.  He must have known his status.  That was clearly an operative factor.  The second element that we rely upon is his statement which was uncontested to the effect that one of the reasons why they should accept his advice was that the Tribunal was not at that stage granting any visa applications, so that was the appropriate course.  Your Honours will see that evidence in its primary form at the appeal book pages 18 and 19. 

KIRBY J:   Did the Minister’s representative in the Federal Magistrate’s Court cross‑examine to suggest that any of these statements in the affidavit were correct or incorrect?

MR LINDSAY:   The cross‑examination proceeded on the basis of affirming what was in the affidavit, particularly, I think, in paragraph 17 of the wife’s affidavit which is set out at page 19, and then obtaining agreement from each of the witnesses that they had accepted the advice of the solicitor.  So the case that seemed to be advanced on behalf of the Minister was, “You made a conscious choice based upon what you have been told by the solicitor,” and the cross‑examination I do not think really went beyond that.

KIRBY J:   Mr Hussain was given notice under the order of the federal magistrate of the allegations that were made.

MR LINDSAY:  Yes.

KIRBY J:   Did he attend or did he have a lawyer representing him?

MR LINDSAY:   He attended on one occasion, in person I think it was.  He also attended by a solicitor.  The proceedings were then adjourned and he did not take any other part in the proceedings.  There is evidence that the solicitor for the appellants contacted him, that is Mr Knaggs, the solicitor for Mr Hussain, and was told that Mr Knaggs no longer acted for ‑ ‑ ‑

GLEESON CJ:   Mr Douglas Knaggs?

MR LINDSAY:   Yes, your Honour.  So that he was given every opportunity to participate but did not.

GUMMOW J:   Was it suggested that Mr Hussain was urging them not to go to the Tribunal because if he accompanied them he would be unmasked as an unregistered agent?

MR LINDSAY:   That does not appear in the evidence expressly as a single statement, but it is the inference that we say follows from it, because Mr Hussain took money from the appellants in circumstances where he had no entitlement to and, indeed, he prevailed upon them to lend him money.  So we submit that one can infer from his course of conduct that it would be in his interests to ensure that the proceedings before the Tribunal proceeded in the absence of anybody who might spill the beans, so to speak.

GUMMOW J:   Did he write to the Minister?

MR LINDSAY:   He did subsequently write to the Minister, yes, and that letter was unsuccessful.  I will just get the reference, if I may.

KIRBY J:   It was careful not to reveal his involvement, was it not?

MR LINDSAY:   Yes.

KIRBY J:   Because that would have unmasked him, as Justice Gummow has put it.

MR LINDSAY:   Yes, your Honour.

KIRBY J:   What is the page of that letter?

MR LINDSAY:   If your Honour just bears with me for a minute.  I am given assistance which suggests it is at page 33. 

GUMMOW J:   That is not written under the hand of the agent.

MR LINDSAY:   The evidence that it was written by the agent appears at page 20 of the appeal book, paragraph 23.

KIRBY J:   I think there was some evidence that your client does not write English, knows some French and first language is Arabic.

MR LINDSAY:   Yes, that appears in the application for a visa.

GUMMOW J:   Paragraph 23 says:

wrote a letter to the Minister for Immigration and Multicultural and Indigenous Affairs in my name.

The point I am trying to put to you is, Mr Hussain did not sign anything.

MR LINDSAY:   No, he did not, no.

HEYDON J:   Nor did anyone.

MR LINDSAY:   Sorry?

HEYDON J:   Nor apparently did anyone.

MR LINDSAY:   No, that is so.

HEYDON J:   How did the Minister know who to reply to?

MR LINDSAY:   I cannot deal with that.  At all events, in our submission, the evidence was plainly sufficient to support the finding that the federal magistrate made and, in our submission, it follows from that, when one has regard to what the Tribunal itself said, that it is unmistakable that the decision‑making processes and the decision of the Tribunal were affected by the fraud.  In our submission, that is sufficient for us to succeed and it matters not – this seems to be the point of difference between us – we say, that the fraud on the Tribunal came via a fraud perpetrated on the appellants.

GLEESON CJ:   It would matter very much in the context of civil litigation, would it not?

MR LINDSAY:   It may do, yes.

GLEESON CJ:   Because it would leave the other party exposed.

MR LINDSAY:   It may do, yes.  But in this particular case, in our submission, it does not, because the question is, was the decision affected by fraud or distorted, whatever the expression was that Justice French advanced and we have embraced.  That is the ultimate question.

GUMMOW J:   That is why I would be assisted to know at some stage how this would play out between private litigants in litigation.

MR LINDSAY:   If your Honours will allow us the indulgence, by early next week we will give you something that addresses that particular point.

KIRBY J:   I did not understand you to confine your argument to a fraud argument.  I mean, I can see, at least for myself, that there would be an alternative way and a much more conventional way, in a sense, to present this, and that is that your clients have suffered serious unfairness in the way in which their matter has been placed before the public authority and they ask that they be relieved from that unfairness and that that unfairness vitiated the decision of the authority.

MR LINDSAY:   We certainly, in our submissions, have embraced that approach and one may deal with it a couple of different ways.  One of the things that the case seems to us to have thrown up is, what is the relationship between the fraud principle, however defined, and the concept of procedural unfairness?  Minds may differ about that because a perpetration of a fraud almost by definition in this area may result in a degree of unfairness.

The way we have put that particular proposition is that an assumption of the principles or rules of procedural fairness is that there is no element of fraud involved.

HAYNE J:   That invites application of an objective assessment of whether the procedures which were followed were fair.  If the relevant starting point, however, is that the authority acting under the statute is bound, that is, the authority is bound to do certain things, what has it not done becomes the question rather than some objective question.

MR LINDSAY:   In the context of the Migration Act the approach that was adopted, particularly by Justice Graham, of just looking at the sections did not, in our submission, confront the area of operation, if any, of what we have described as the fraud principle.  In our submission, the legislation needs to be read against the background of that being a principle of the common law and nothing in the legislation, including the various machinery provisions upon which his Honour relied, excludes the operation of the principle.  So, we would submit, one way of looking at it is to say because there was a decision, or purported decision, made by the Tribunal, was tainted by fraud of affected by fraud, whatever the terminology one has, there was indeed no decision.  That is one way of looking at it. 

Another way of looking at it is to focus on the concept of an invitation which finds its highest expression in section 425(1) and we submit that that is the obligation to invite participation as a continuing one and continues up until the time the decision is made by the Tribunal and the fraudulent intervention of Mr Hussain, in our submission, deprived the invitation of any effect.  So that is another way of looking at the same proposition in the context of the legislation.

A third way that gets you perhaps to the same point is to focus on that primary provision of section 425(1) together with the operation of section 425(2)(b) which contains the word “consents”.  We submit that the word “consents” must mean free and voluntary and a notional consent induced or obtained by fraud, in our submission, could not constitute consent within the meaning of the particular section.  

GUMMOW J:   Which particular section?

MR LINDSAY:   Section 425.

GUMMOW J:   Yes, that is the invitation to appear and then 426 ‑ ‑ ‑

MR LINDSAY:   Section 425(1) is the invitation, section 425(2) is the one that refers to consent.

GUMMOW J:   “If the applicant consents”.

MR LINDSAY:   That is right.

CRENNAN J:   That was the real basis of Justice French’s decision, was it not, paragraph 131 of his decision?

MR LINDSAY:   He certainly focused on that but, in my submission, he touched all the bases that we have touched and we are not, in that sense, inventing the wheel because if you look at his Honour’s essential reasoning, he does focus on the fraud and the absence of any consent is certainly critical in his judgment.

KIRBY J:   Could you just explain to me the registration of migration agents?  Somewhere here you complain that the department knew of Mr Hussain’s status as a cancelled migration agent but kept sending the documentation to his address.

MR LINDSAY:   Your Honour is perhaps referring specifically to the tail end of the judgment of the federal magistrate where his Honour pointed out that the Tribunal was aware of Mr Hussain’s position because it ‑ ‑ ‑

KIRBY J:   The Tribunal was.

MR LINDSAY:   I believe it was the Tribunal, yes.  We, in our submissions, have proceeded on the basis that that is not in itself fundamental to the case we seek to make.  We have not attributed fault to the Tribunal in any broad moral way, if you like.

GUMMOW J:   Section 425 goes to entitlement to appear.

MR LINDSAY:   It does.

GUMMOW J:   The critical provision, it seems to me, for jurisdictional error would be 426A, would it not, “If the applicant is invited . . . does not appear . . . the Tribunal may”, right?

MR LINDSAY:   Yes.

GUMMOW J:   What happens where the reason for the non‑appearance, the non‑appearance being a condition of a power to make a decision, where the reason for the non‑appearance is this practice of fraud by the third party?  I do not think, with respect to Justice French, you get jurisdictional error out of 425.  If you are going to get it, you get it out of 426A and you have to give some force to this phrase “does not appear”.

MR LINDSAY:   “Does not appear” but that is the context of there being an invitation under section 425 which we submit is a continuing ‑ ‑ ‑

GUMMOW J:   He was invited, was he not?  The family was invited ‑ ‑ ‑

MR LINDSAY:   They received, for want of a better description, I will call it a letter of invitation.  They certainly received that.

GUMMOW J:   So far as the bureaucrat was concerned, 425 had gone through.

MR LINDSAY:   The approach adopted by Justice Graham was that the time and the only time for determining whether or not there was a valid invitation was at the time such a letter was posted and, in our submission, that approach ought not to be adopted because the concept of an invitation, in our submission, is a continuing one which is governed by the purpose of the invitation as described in section 425(1) and so it has to be a continuing invitation, in our submission.

GUMMOW J:   Was the notice given in terms of 425A?

MR LINDSAY:   A letter of invitation formally conforming to that form of notice was sent by the Tribunal and received.

KIRBY J:   Could it be said that the invitation was sent to a person care of an invalid migration officer is not an invitation of the kind that activates the operation of section 426A?

MR LINDSAY:   It is not quite as easy as that because the Act in section 441G has a concept of an “authorised recipient” and that person need not be a registered migration agent, so that one can be an authorised recipient for the purpose, effectively, of service of a document without being a registered migration agent.

KIRBY J:   But was Mr Hussain nominated as an authorised recipient or as a migration agent?

MR LINDSAY:   In fact, he was described as an authorised recipient.  I think he was also described as a solicitor in that context, but he was certainly on the record as an authorised recipient.

KIRBY J:   Was he a solicitor at the time he was so nominated?

MR LINDSAY:   His practising certificate had been cancelled and he had no right, accordingly, to hold himself out as or to act as a solicitor.

HAYNE J:   Can I just understand where we are locating the argument?  I suspect your argument is located in all of three separate slots and I am not to be taken as criticising it for that, but, one, I understand you say want of procedural fairness because what happened was not fair.  Now, that is an unduly truncated characterisation of the argument.  That is one branch, is it not?

MR LINDSAY:   It is, but we relate it specifically to the fraud and what we say is that there was a denial of procedural fairness because the principles of procedural fairness are predicated upon an absence of fraud and here there was fraud.

HAYNE J:   The second branch of argument seems at the moment to be that there was jurisdictional error.  You embrace Justice French’s location of that by reference to section 425 but it may be that account has also to be taken of 426A.

MR LINDSAY:   Yes.

HAYNE J:   There is that area for debate.  Now, is there a third area for debate of a kind mentioned in Craig v The State of South Australia (1994‑1995) 184 CLR 163, particularly at 175 to 176 where their Honours speaking of the scope of certiorari identify fraud as a separate and distinct ground?

MR LINDSAY:   Yes, your Honour.

HAYNE J:   In due time, not immediately, I would be assisted by reference to what you say is the closest analogy we can find in the decided cases to the kind of case with which we are presently concerned.  Come to that whenever is convenient to you, not necessarily now.

MR LINDSAY:   On the fraud principle?

HAYNE J:   On the fraud, that is, certiorari running for fraud.

MR LINDSAY:   To some extent the cases seem to focus on the one hand on procedure and on the other hand a statement of principle.  The cases, including Craig v The State of South Australia, say that certiorari lies on the ground of fraud and that it is a broad definition of the word “fraud.”  That seems to be what might be described as a procedural approach to defining the nature of the law to be applied.

HAYNE J:   Can I just go back a moment.  In Craig they instanced fraud in their footnote:

And note that “fraud”, in this context, is used in a broad sense which encompasses “bad faith”: see, eg, Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 at 171.

But the primary example they give of fraud is R v Wolverhampton Crown Court; Ex parte Crofts [1983] 1 WLR 204 at 206 which was a purged evidence case, a driving case where a passenger or a person pretending to be a passenger gave evidence of what happened or did not happen.

MR LINDSAY:   I am unable to point to or to concede the non-existence of a set of facts precisely the same as these.  One might struggle in vain to find a case that is similar on the facts.  Fraud, in our submission, necessarily does not always strike twice in terms of the factual sense.  Ultimately, one gets down to the question of, was there a fraud, looking at that in the broader sense that has been conceded and did it ‑ ‑ ‑

GLEESON CJ:   However broad the sense, what do you say are the elements of this fraud with which we are concerned?

MR LINDSAY:   We say that there was misrepresentation on two counts towards the applicants or the appellants.  That induced them ‑ ‑ ‑

GLEESON CJ:   No, what are the two forms of misrepresentation?

MR LINDSAY:   One is the misrepresentation of entitlement to practise as a solicitor, and the other was the misrepresentation that the Tribunal at that time was not granting any applications for a visa at all.  So those are the two ‑ ‑ ‑

KIRBY J:   The first one is a bit like Leask, the case about the unlicensed crane driver.  You could have a person who is not a licensed solicitor or who is an unlicensed migration agent who nonetheless does everything perfectly correctly and you just hesitate to invalidate the decision because of the status that may be immaterial to the conduct of the person.

MR LINDSAY:   In this case it is quite plain that the conduct of Mr Hussain was directly material to the course that was adopted by the appellants, because they acted upon his “advice” because they trusted him as a solicitor and that, in our submission, is a decisive factor, so that his intervention meant that the first appellant signed the response document and did not attend the hearing.  In our submission, that link, whether it be described as a connection or causation or whatever, was established in this particular case.

GLEESON CJ:   Is it part of the fraud alleged that the advice not to attend the hearing was given for a corrupt purpose?

MR LINDSAY:   The particularisation of the fraud appears in the appeal book at page 3.  It depends on what one means by “a corrupt purpose.”

GLEESON CJ:   Let me put the question slightly differently, is it consistent with your case that Mr Hussain was doing his best to give conscientious advice to your clients about what was in their interests?

MR LINDSAY:   In our submission, the only inference that can be drawn from the course of conduct that he was doing precisely the opposite.

GLEESON CJ:   And for what motive?

MR LINDSAY:   Because he was obtaining payment from the appellants in the form of fees and then he procured from them a loan.

GLEESON CJ:   I am not making myself clear, I think.  Is it part of the allegation of fraud that his advice to them not to attend the hearing was motivated by a desire to cover up his own involvement in the matter or is it consistent with your allegation that he genuinely believed it would have been a good idea for them not to attend the hearing?

MR LINDSAY:   We have not embraced the allegation that he genuinely believed that at all.

GLEESON CJ:   Well, what is the allegation?

MR LINDSAY:   Our allegation, at page 3 of the appeal book, is that he made the representation that it would be best for them not to attend when he knew that the advice was false and that a failure to attend would be fatal to their application.

GLEESON CJ:   Has anybody found that as a fact?

MR LINDSAY:   That particular proposition in terms is not the subject of an express finding by the federal magistrate.  It is the subject of a finding by Justice French and it appears to be the subject of a finding by Justice Allsop but ‑ ‑ ‑

KIRBY J:   Justice French quotes the Tribunal at page 286, paragraph 35:

‘The Tribunal wished to question the applicant during a hearing in order to ascertain the relevant facts to ascertain the extent of the applicant’s rejection of her faith and the extent of her criticism of her faith.’

The applicant was put on notice and she had not turned up, so the inference is inescapable that the Tribunal – and one does not wonder why – would have wanted to have her there.

MR LINDSAY:   The federal magistrate, acting cautiously and conservatively, took the matter into his own hands.

GUMMOW J:   What is there that suggests that the agent was fraudulent as distinct from incompetent?

MR LINDSAY:   I will take it in two steps.

GUMMOW J:   Is there any finding?

MR LINDSAY:   The finding of the magistrate relevantly is expressed at page 253 in paragraph 47 at about point 10 first of all:

I am satisfied that the evidence shows Mr Hussain to have acted fraudulently in his dealings with the applicants for personal gain . . . He extracted money from the applicants under false pretences on the evidence before me.  His actions in holding himself out to be a solicitor and charging money for his dealings with the applicants may well constitute ‑ ‑ ‑

GLEESON CJ:   That is the fraud.  He took money from them that he was not entitled to.  If that is the fraud ‑ ‑ ‑

MR LINDSAY:   It is part of the fraud, your Honour.  You then proceed to paragraph 50 which contains the finding at the bottom of the page that Mr Hussain through his fraud dissuaded the appellants from appearing at the Tribunal hearing.

GUMMOW J:   That is the gap.

MR LINDSAY:   The gap?

GUMMOW J:   Yes.

MR LINDSAY:   In our submission, it is not a gap.

GLEESON CJ:   Just a minute.  You fairly pointed out to us that a particular of fraud given on page 3 is that Mr Hussain knew that the advice that it would be better not to attend the hearing was false.  Has anybody ever found that as a fact?  I am bound to say that for myself I do not see that finding of fact on page 253.

MR LINDSAY:   No, it is not put there expressly, and perhaps the critical analysis of that evidence and the inferences to be drawn from it will be found in the judgment of Justice French at pages 297 and 298 in paragraph 74, where his Honour points out that this was not expressly dealt with by the magistrate and he says it ought to have been.  Bearing in mind that the magistrate did accept fully the evidence which was uncontested, the inference which was drawn by Justice French was that the second limb, the advice about the Tribunal not granting any visas at that particular time, was fraudulent was a statement of advice which was not representative of an actual bona fide belief.

In terms of analysing the evidence, the primary finding of the magistrate, I have directed your Honours to the nature of the material that is available.  Justice French confronts that particular problem at those pages in paragraph 74.  He then returns to the same point later in his judgment at page 320 of the appeal book at paragraphs 129 and 130.  Just after point 30 on that page his Honour says, “He” – Mr Hussain – “gave fraudulent advice”, et cetera.

Now, that particular topic, namely the finding or absence of any finding on what might be described as the second particular, is the subject perhaps of passing reference by Justice Allsop at page 323 at about line 18, where his Honour appears to accept that there was fraud but he does not enter upon the question about the first or the second particular.  Then his Honour deals with the same sort of topic, but again with the same level of abstraction, in paragraph 136 in the last couple of sentences. 

Then his Honour, at the same level of abstraction, deals with the point again at page 324 at about line 45 down to the end of the page.  So the only judicial officer who has confronted that point precisely is Justice French in the area of the material that I have referred your Honour to.  We submit that Justice French was correct in the inference that he drew and if one looks at the material – we have set out the precise references - in our submission the only inference to be reasonably drawn is the one that the second particular was made out.  But if we are wrong about that, the first particular, in our submission, in any event, is enough because the only way these people proceeded as they did was because of the representation by Mr Hussain that he was a solicitor and that he knew best for them as a solicitor and they trusted him as a solicitor.  They resisted what he was putting to them and they eventually went along with him.  That is the ambit of the material. 

In our submission, in those circumstances, it is quite plain that there was a relevant connection, we would submit, between the fraud, on the one hand, and the decision-making process and ultimately the decision.  I return to the point that, in our submission, it does not matter given that that was the vehicle of the fraud that it operated through the appellants in the first instance.  It was a fraud that affected the decision the decision-maker knew of the Tribunal.

HEYDON J:   If Mr Hussain had turned up to the Tribunal and said, “They didn’t send back their form, but I’m just here as a matter of courtesy to tell you that they don’t want to come.  Good morning.” that would be a fraud directly on the Tribunal.  The fact that he has used the appellants as the vehicle for that fraud is no different in substance, you say?

MR LINDSAY:   We submit that. 

CRENNAN J:   I suppose if you are trying to think of an analogy, as Justice Hayne asked you in the context of referring to perjury, do I understand you to be saying that the intervention of Mr Hussain led to a deliberate omission to have relevant evidence before the Tribunal.

MR LINDSAY:   That would be one way of putting it.  Part of the difficulty with this discussion that we have to have is perhaps embodied in the expression “deliberate” because a decision was taken but it was a decision that was taken, induced by the fraud.  The difference between ourselves and the Minister on that is that the Minister persists, in our submission, in attributing Mr Hussain’s fraudulent conduct to the appellants and we submit that the appellants were victims of the fraud and did not authorise the fraud upon them.

GLEESON CJ:   That is a submission that has one resonance in a public law context but would have a very different resonance in civil private litigation.

MR LINDSAY:   It might well do.

KIRBY J:   After all, the worst that happens here is that the order is quashed, as the magistrate did, and they have a hearing which is not contaminated or affected by this complication, which was not of their making.  I must say again, I am astonished that that matter was contested by the Minister.  There was a theory once that the Minister was a model litigant.

MR LINDSAY:   At the end of the day, the relief that is sought is relief designed to have a hearing before the Tribunal unaffected by the fraud.  Subject to putting in some submissions on the topic that I was invited to address and research, I think I have touched all the bases.

GLEESON CJ:   Thank you, Mr Lindsay.

KIRBY J:   Could I just ask you, just before you sit down, there might be an alternative way to analyse the case, which I mentioned, which would be the way of looking at whether looking back on the situation there was a procedural unfairness that contaminated the decision of the Tribunal.  Now, you do not appear to run that except as an adjunct to the fraud point.

MR LINDSAY:   We endeavour to canvas that problem in our written submissions and underlying that problem is something that seems almost to be an assumption but an untested assumption in some of the textbooks.  The assumption is that when one talks about procedural fairness there are only two rules.  One is the hearing rule.  The other is the bias rule.  If you look at a number of the cases, and we have endeavoured to draw attention to that area of discourse, it is not plain by any means that there are only two rules. 

What we have submitted in the context of procedural fairness is that the two rules, if you like, of procedural fairness have proceeded upon an assumption that the decision‑making process is not tainted by fraud.  That is the way we advance it, but one might equally say that there are three rules of procedural fairness.  We do not need to go that far, but at the end of the day our case essentially comes back to the fraud.

GUMMOW J:   What do you say about the finding of Federal Magistrate Scarlett at page 255?  What happened to that?  Namely, the Tribunal was on notice that Mr Hussain had his registration cancelled.  The Tribunal was on notice that he was still carrying on business, so it seems, and they continued to send correspondence to him.  That seems to have been the critical consideration for the magistrate.  What happened to that finding?  Is it still in play?

MR LINDSAY:   It is still in play, but we have not laid stress on it because the view that we have taken is that we are entitled to succeed whether or not there was or not fault on the part of the Tribunal.  The Tribunal, in our submission, was a victim of the fraud as well.

GLEESON CJ:   But as you will have gathered from a number of things that have been put to you, while it does not matter to you what basis you succeed on, it may have very serious consequences for other litigants what basis you succeed on.

MR LINDSAY:   Yes, I am conscious of that.

GLEESON CJ:   You will have seven days to put in those written submissions.

MR LINDSAY:   Thank you, your Honour.

GUMMOW J:   The Minister appealed from the federal magistrate.  Was it a ground of appeal?  Was there a ground of appeal complaining about the finding at page 255 before the Full Court of the Federal Court?

MR LINDSAY:   That is the Minister’s notice of appeal, your Honour?

GUMMOW J:   Yes.  I do not know if we have the ‑ ‑ ‑

HEYDON J:   It is page 260.  It does not seem specifically to deal with those findings.  Paragraph 1 is very general.  The Full Court does not seem to have dealt with any challenge.

CALLINAN J:   Mr Lindsay, page 255, paragraph 58, that is not correct, is it?

MR LINDSAY:   No.

CALLINAN J:   The application was upheld, was it not, and the magistrate ‑ ‑ ‑

MR LINDSAY:   That is right.

KIRBY J:   Justice French noted the oddity of that, but inferred that it had been cured by the formal orders that were entered.

MR LINDSAY:   That is right.  It was dealt with as a slip.  Thank you, your Honours.

GLEESON CJ:   Yes, Mr Beech-Jones.

MR BEECH-JONES:   Your Honours, can I start by taking your Honours through the course of the allegation of fraud and what was said about it and found about it and then deal with the way in which Mr Lindsay has put the case on fraud and in particular the issue concerning the connection between the fraud in a case such as this, that is a fraud or a defrauding of a litigant by their adviser, and the ultimate decision of the Tribunal.

Could I just make certain observations about the consequences of all of this.  Firstly, just in terms of the general run and flow of immigration cases, these cases do have significant potential to affect a number of cases.  Secondly, other Tribunals can, of course, even at a federal level, operate in a quasi‑adversarial way and so the principles in this case, even to the extent they apply only to tribunals and not inferior courts, can have the consequences of rendering their decisions void and causing the type of injustice and unfairness to innocent third parties, that is third parties to those proceedings before the Tribunal.

KIRBY J:   Could you just explain to me, where we have two people who are from a strife‑ridden country, who come to this country, make an application, they are deceived by a person who was a migration agent who has been removed from that office, was a solicitor, has been removed from that office and they have never really had the opportunity of putting their case to the Tribunal, the Tribunal notes that in its decision and says it wished it had had that opportunity, why is it in the interests of the Minister to contest the decision of the federal magistrate?

MR BEECH‑JONES:   Because, your Honour, it raises an important question of principle.  It affects not just their case, but a number of cases.  It is not that the Minister has any ‑ ‑ ‑

KIRBY J:   Yes, but you have to make judgments in this life.

MR BEECH‑JONES:   Indeed, your Honour, and I am not trying to make those judgments, but I can only answer by saying there are some important questions of principle in this type of case.

KIRBY J:   All I can say to you is that it seems to me that this is not the Minister acting as a model litigant.  There used to be a tradition of the Ministers for the Crown acting in that way.

MR BEECH‑JONES:   I note what your Honour says.  I cannot say anything further about that other than to say that, in my respectful submission, there is an underlying question of principle here that applies throughout the migration context and other tribunals.  But could I just point out that there is also this question that differentiates other tribunals and other inferior courts from the Tribunal in this case in that those bodies often have express or implied powers to set aside their decisions in the cases of unfairness that may have occurred in a case such as this.

The considerations that affect those type of discretionary considerations, really, sometimes can be quite different to the consequence of a case such as this, because if the appellants are right, the decision is void.  There is no question of the other potential litigant in a case of an adversarial tribunal having anything to say about whether it is void or not, notwithstanding that they would have had no involvement in the relevant fraud whatsoever.

GLEESON CJ:   Did we not have a case concerning the power of the Tribunal to, in effect, set aside its own decision where the hearing had miscarried in some way?

MR BEECH‑JONES:   Your Honour, that was Bhardwaj.

GLEESON CJ:   Bhardwaj, that is right.

GUMMOW J:   What is the citation of Bhardwaj?

MR BEECH‑JONES: It is in our submissions, your Honour. It is (2002) 209 CLR 587. What emerged, though, from that was the hearing had miscarried. There had, in effect, been an invalidating error. So it was not the Tribunal had the power to set its own decision aside, it is that its first decision was void and therefore it had to complete the exercise of its power. The court did not say it had its own express or implied power to set aside its decision to the extent there is any power in this Act that is similar to that, that is, section 48B which confers on the Minister a narrow power to allow a further application, but there are other tribunals that do have that power and, of course, there are inferior courts that do within certain confines also have that power.

CRENNAN J:   But no resort to that power in this case?  There has not been?

MR BEECH‑JONES:   There was a request made and the Minister did not choose to consider the exercise of the power.

GUMMOW J:   Section 48?

MR BEECH‑JONES:   Section 48B.

CRENNAN J:   Section 48B.

GLEESON CJ:   That is the one that says actually the Minister has no duty to consider it?

MR BEECH‑JONES:   It is, your Honour.

GLEESON CJ:   Yes, I have come across that one before.

MR BEECH‑JONES:   Your Honours, can I firstly deal with what the fraud ‑ ‑ ‑

KIRBY J:   It seems unlikely that the Minister who appealed this decision would give that consideration under that section.

MR BEECH‑JONES:   I am not in a position to make any statement about what the Minister may or may not do, your Honour.  Your Honours, can I firstly take your Honours just briefly to some evidentiary materials that bear on the discussion that your Honours had with Mr Lindsay and then take your Honours through the discussion about what the nature of the fraud alleged and found was.  The suggestion that the agent was seeking to avoid his own detection is, in all fairness to the appellants, something they have been pressing from the beginning but was never the subject of a finding. 

KIRBY J:   Is there any ground of appeal in the amended notice of appeal from the federal magistrate contesting the factual determinations of the federal magistrate?

MR BEECH-JONES:   No, your Honour. 

KIRBY J:   Well, why should you be allowed to raise those matters now in this Court?

MR BEECH-JONES:   Because, your Honour, as I am about to outline, the difficulty is not the factual findings, it is not what the magistrate found, it is the absence of the findings on the case put by the appellants.  That is the problem.  It is not that they did not get ‑ ‑ ‑

KIRBY J:   Is there no specificity rule in the Federal Court that if you object to conclusions of the federal magistrate – there were some conclusions of the federal magistrate which are relevant to fraud – that you have to contest them?

MR BEECH-JONES:   To the extent, your Honour, he has made those conclusions, we do not contest them.  We have not said that he could not accept their evidence, but if I could just outline how the course of the events occurred to demonstrate that this is not, with respect, my client’s problem, this is the appellants’ problem.  At pages 187 to 189, and I think this may be germane to something your Honour ‑ ‑ ‑

KIRBY J:   But there is a finding on page 253, paragraph 47 of the federal magistrate’s decision:

I am satisfied that the evidence shows Mr Hussain to have acted fraudulently in his dealings with the applicants for personal gain.

MR BEECH-JONES:   Yes, your Honour, we do not contest that.

KIRBY J:   Why is that not sufficient?

MR BEECH‑JONES:   No, it is not.

KIRBY J:   You say that he acted in this way and that he may have believed what he said.  That is really far-fetched, is it not?

MR BEECH-JONES:   That is a finding about him defrauding them for personal gain in his dealings with them about his status.  That is what that is about.

KIRBY J:   But how can they prove what was in his mind?  They can only do that by inference from his conduct.

MR BEECH-JONES:   Indeed, your Honour, and if they do not get the finding about what is in his mind, then they have to put that in their appeal to the Full Court of the Federal Court and say “There should have been a further finding”.  Pages 187 to 189 is the application for review to the Refugee Review Tribunal and your Honours will see – and I do not think there is any issue that this was in the handwriting of the agent – at page 188 the agent has disclosed his involvement, he has stated what his name is and that he is with an organisation.  This does to an extent cut across any suggestion that he was trying to hide his involvement from the Tribunal because, to the contrary, he put his name in it and he told him that he was involved.

KIRBY J:   But if he went to the Tribunal, they presumably may know or would soon find out, that he was not an authorised migration agent.

MR BEECH-JONES:   Your Honour, with respect, he might be taken to have known that the Tribunal would know that he was not a migration agent.  He has indicated in this, “I am acting”, he has told the Tribunal he is acting.

KIRBY J:   But he said that as an authorised recipient, that could be a neighbour or a member of the family or somebody else. 

MR BEECH-JONES:   Except that he has also added a business associated with this so it suggests something a little bit more than an acquaintance or assistance as a friend.

CALLINAN J:   It goes a bit further than that, does it not, really.  If you look at paragraph 25 on page 248, it is difficult to imagine why the migration agent would have given that advice which is plainly wrong:

They are not accepting any visa applications at all at the moment.  I am going to take a different approach.

That is just false and everybody would know that that was false.

MR BEECH-JONES:   Can I perhaps point a few things out about that statement, your Honour.  Your Honours were taken to the particulars of the fraud that was alleged.  The particulars of the fraud did not address the statement:

They are not accepting any visa applications at all at the moment.

CALLINAN J:   No, I accept that.  It is part of the factual matrix, is it not?

MR BEECH-JONES:   It is, your Honour.

CALLINAN J:   Are you suggesting that we cannot look at it to draw, what seems to me at the moment, to be an irresistible inference of fraud and fraud, at the moment, for the motive of self‑protection, not being found out.

MR BEECH‑JONES:   Right, but can I say three things in response to that, your Honour.  Firstly, your Honour is talking about your Honours drawing an inference and I am not suggesting your Honours cannot but we are now into the debate of, as it were, fixing the findings below, not interpreting the findings below.

CALLINAN J:   No.  Let me just deal with that.  Justice French was prepared to draw the inference, was he not?

MR BEECH‑JONES:   Yes, your Honour.

CALLINAN J:   I did not read, I must say, Justices Allsop and Graham, and you may be able to correct me on this, as controverting that in any way.

MR BEECH‑JONES:   Justice Graham, with respect, did and Justice Allsop was neutral, in my submission.

CALLINAN J:   Right, well, you may be able to draw my attention, but proceed upon the basis that what you have said is correct.

MR BEECH‑JONES:   But just to deal with that statement, the focus of the fraud was on the advice of whether it was best not to go.

CALLINAN J:   Is that right? 

I am worried if you go to the RRT you will say something in contradiction to what I will write.

It is a little more than that, is it not, when he is talking about contradiction?

MR BEECH‑JONES:   It is, your Honour, but just in terms of the fraud, firstly – and I do not suggest it is anything other than at the most favourable grossly negligent advice but the rationale appears to be, “I am worried that if you go to the Tribunal there may be an adverse credit finding against you which may make it harder if I write to the Minister seeking exercise of the power”.

CALLINAN J:   Following what was a lie that “the Minister is not receiving any visa applications at all at the moment”.  That is a simple lie, is it not, and does that not colour everything that is said in that passage.

MR BEECH‑JONES:   With respect, your Honour, and remembering that the fraud particularised was whether it was the best advice not to go, it is quite, at the very least, possible that he believed that the best approach for them was not to go.  He subjectively believed that.  He believed that it was best for them not to attend because there might be an adverse credit finding and that might contradict what he said to the Minister.  It could be that he bolstered that advice by a fib.  It could be.  That could be what he was seeking to bolster his advice.

Equally, that might not, and remembering that within the area of fraud one has to understand that what was sought to be conveyed – he was not intending to convey the literal meaning of those words, “They are not accepting any visa application at the moment”.  He may have been seeking to convey, “My experience is, overwhelmingly, applicants lose”.

GLEESON CJ:   I thought the case, or part of the case, against you is that he was having improper financial dealings with these people and if they had gone along unescorted, unprotected, as it were, before the Tribunal the Tribunal might have found out, not only about his carrying on business, but also about the way he was carrying on his business, that is, extracting money improperly from his clients.  In other words, the suggestion is that he did not want them to find their way into the hands of the Tribunal who might start prying into his relations with them.

MR BEECH‑JONES:   That is the case that is put against us, your Honour, and it is not a case that has ever been found by either Federal Magistrate Scarlett or even Justice French.  His Honour Justice French did not accept or did not make a finding about that motive.

KIRBY J:   But is it not an irresistible inference?  It was raised in this Court the minute it got to the special leave hearing.

MR BEECH‑JONES:   Your Honour, in my respectful submission, it is not an irresistible inference that he, necessarily, must have known that he was advising them not to attend because he wanted to resist scrutiny of his actions.  One thing telling against that is the fact that he had already told the Tribunal that he was involved, accepting there was, also, the question of him having financial dealings with them.

CALLINAN J:   At that time, had not his practising certificate as a solicitor been cancelled?

MR BEECH-JONES:   Yes, it had, your Honour.

CALLINAN J:   So that is a further reason, is it not, for concealment?  What flowed from that, did that affect his – was he registered as a migration agent?

MR BEECH-JONES:   Yes, and that had been cancelled.

CALLINAN J:   When was that cancelled?

MR BEECH-JONES:   Before this, about three months after the cancellation of the practising certificate as a solicitor.

CALLINAN J:   So at the material time he is not only telling these lies but also misrepresenting that he is qualified to act for them?

MR BEECH-JONES:   I accept that he was representing that he was qualified to act and all I am suggesting ‑ ‑ ‑

CALLINAN J:   And that he is a solicitor.

MR BEECH-JONES:   And that he is a solicitor.  He is entitled to practice on their behalf.

CALLINAN J:   If you put all those facts in really it is very, very difficult to believe that his motives were subjectively other than to deceive the appellants for his own benefit and protection.  You have the money ‑ ‑ ‑

KIRBY J:   Add to them ‑ ‑ ‑

CALLINAN J:   You have cancellation of the registration, cancellation of both registrations, you have the money.

KIRBY J:   And it gives a receipt on a document that has him as a solicitor digging his grave further for any consequences of ever getting back as a solicitor.

MR BEECH-JONES:   Against that, your Honour, is in terms he has already told the Tribunal that he is involved and he has listed his association with some sort of business.

CALLINAN J:   Let me tell you something, as far as I am concerned, you should address me, only speaking for myself, on the basis that he was guilty of fraud and corruption for his own purposes and to the detriment of the appellants.  I am just advising you, as far as I am concerned, that would not be a bad way to conduct the case.

MR BEECH-JONES:   Thank you, your Honour.  I have come prepared to do that.  Your Honour, can I just though indicate how that unfolded.  The fraud particularised was the fraud that it is best not to attend.  It was not the statement “They are not accepting any visa applications at the moment.”  Now, they are obviously in the same context.  You obviously consider both together, but they are not necessarily the same thing.  Federal Magistrate Scarlett at page 253 at paragraph 47 clearly found that he was:

satisfied that the evidence shows Mr Hussain to have acted fraudulently in his dealings with the applicants for personal gain.

The context seems to be his Honour accepted the first particular of fraud, namely the statement about his qualifications.  There is no express finding about the second.  In paragraph 50 there is a reference to them being:

dissuaded from attending by the fraudulent behaviour of Mr Hussain.

His Honour did not find that but for the fraudulent behaviour of Mr Hussain they would have attended.  As far as he got to say was that they were “dissuaded from attending”.  The passage at paragraph 56 which was:

The Tribunal continued to send correspondence to Mr Hussain’s address -

there was, I accept, no express ground of appeal in the notice of appeal to the Full Court of the Federal Court.  There was, as I understand it, an acceptance by all at the Full Court stage that that could not be a basis, because under section 441G, the Tribunal was required to correspond with Mr Hussain because he had been nominated as a relevant representative.

I will just two things about that.  First, the relevant correspondence was always copied to the address of the appellants.  Secondly, the Tribunal had – I do not need to take your Honours to it but just tell your Honours the page reference – at an earlier time, written to the appellants at their address telling them that the person listed on their application had had his registration cancelled.  For some reason or other that does not appear to have been received by the appellants.

KIRBY J:   It was returned “Address unknown”, was it not?

MR BEECH‑JONES:   Yes.

KIRBY J:   Subsequently the appellants wrote another letter informing the Tribunal of their new address, but that was after the Tribunal had made its decision.  I think that is the sequence.

MR BEECH‑JONES:   No, your Honour, I think it was in June 2003 and it was after the Tribunal had first invited them to a hearing and then the Tribunal sent them a further invitation.  So Federal Magistrate Scarlett had found one of the particulars of fraud and also said that it had dissuaded them from attending.  Mr Lindsay took your Honours to Justice French’s judgment at pages 297 to 298, paragraph 74.  Could I just briefly take your Honours back there.  What Justice French said was - his Honour identified the problem in the federal magistrate’s reasoning at the bottom of page 297 and at the top of page 298 his Honour said this about the finding of Federal Magistrate Scarlett:

The finding that the agent’s fraudulent behaviour dissuaded SZFDE from attending the hearing could only have rested upon his view that the advice the agent gave was dishonest in the sense that he did not honestly hold the belief that the Tribunal would necessarily so act.  It is unfortunate that in this important respect the learned Magistrate did not spell out his findings of fact clearly.

With respect to his Honour, that is the second particular of fraud, not the first.  In my respectful submission, the reading of Federal Magistrate Scarlett’s judgment is he only found the first particular of fraud, not the second.  His Honour has sought, as it were, to interpret Federal Magistrate Scarlett’s finding.

The second point to note about that is his Honour has widened the particular of fraud that was alleged from the particular that the advice that it was best not to attend to an advice that it was best not to attend because, in effect, it was inevitable – because, I should say, they refused all applications, that is, it is expanded in the way Mr Lindsay has done to your Honours by saying the fraud was the statement “They are refusing visa applications at the moment”. 

With respect to his Honour, that was not the fraud that was particularised and it is at least possible that the statement about “best advised to attend” was the agent’s opinion, however malformed that opinion was that the statement “They are refusing all visa applications at the moment” was a lie.

CALLINAN J:   There is a possible inference that when he told them that there was a risk that they might say something in contradiction of what he would write that he was intending to write something that was dishonest.  Is that not a possible inference?  It may not be as strong an inference perhaps as others.

MR BEECH‑JONES:   That may be one way of interpreting that advice.

CALLINAN J:   When you are looking at his conduct, ultimately you have to draw an inference about his state of mind.  There is no doubt about that, is there?

MR BEECH‑JONES:   Yes, your Honour.

CALLINAN J:   You can look at all of these things, put them together and then reach a conclusion about them collectively.

MR BEECH-JONES:   I would not cavil with that at all, your Honour.  All I would say is to the extent one has a finding of Justice French, it was an interpretation of Federal Magistrate Scarlett’s reasons, it was an interpretation, with respect, that is not open on the reasons and it involves a widening of the ground of fraud that was not found.

With respect to Justice Allsop, in my respectful submission, Justice Allsop did not enter into the debate about what the findings actually meant.  All his Honour was saying is whatever the fraud of the kind involved here, it did not vitiate the decision.  So, with respect, his Honour was not making a finding.

The approach of Justice Graham was, in effect, to disagree with Federal Magistrate Scarlett if Justice French’s interpretation was correct.  That is at page 339 where his Honour said at paragraph 190:

There was no evidence before the learned Federal Magistrate that provided a causal link between any misrepresentation that Mr Hussain may have expressly or impliedly made to the effect that he was a registered migration agent and that he held a practising certificate as a solicitor and the decision . . . not to attend –

In our submissions we do not fully embrace that because their affidavits do say, “We trusted his advice; he was a solicitor”.  We do submit though that there was not a finding and the evidence did not go far to say that if they had the knowledge that he was not a practising solicitor or a registered migration agent, would they have still attended?

Then his Honour goes on in the next paragraph to dispute that there was any evidence that the advice he gave was not an opinion which he held at the time.  I think we have covered their evidence and your Honour Justice Callinan has put a number of matters to me about that, but all I am just saying is ‑ ‑ ‑

CALLINAN J:   There is another aspect to that, is there not?  The agent is not a party to the proceedings.  You do not even have to apply then, do you – I am only asking this as a question – a Briginshaw standard?  You would certainly if the agent were a party to proceedings, but when a person’s cause of action or right to relief depends upon proof of the state of mind of a stranger to the proceedings, then the ordinary civil onus would apply, would it not?

MR BEECH-JONES:   Your Honours, I do not know the answer to that.  I cannot recall whether Briginshaw applies to serious findings against non‑parties or just to parties.  I think I may be able to answer that shortly one way or another.  Your Honours, on this aspect we submit this is, in effect, the appellants’ problem and that they do not have the findings they need to get to the next stage of the inquiry, that is, the nature of the connection between a fraud and the decision, because they do not have a finding on the second aspect of fraud that they have pleaded and on the first aspect they do not have a finding of a but for connection between that fraud and the decision not to attend.

HEYDON J:   What does “dissuaded” mean?

MR BEECH-JONES:   Your Honour, no doubt contributed to ‑ ‑ ‑

HEYDON J:   You mean successfully caused them not to attend and part of the causing was the making of deceitful statements.

MR BEECH-JONES:   If your Honour means successfully in the sense of contributed to, I do not cavil with that.  If it is meant to mean “but for” then, in my respectful submission, that is, for want of a better phrase, in my submission, stretching it.

HEYDON J:   If he had said, “Look, I used to be a very good solicitor and I used to be a very good migration agent.  Unfortunately, I was struck off for stealing half a million dollars from a client, but I will give you all this advice”, do you seriously submit that the conversation would have gone any further?

MR BEECH-JONES:   Your Honours, I accept that you can draw inferences of causation of that kind without someone actually saying, “If I had been told this”.  One can do it from all of the evidence.  I do not think I can say anything further on that, your Honour.  Your Honours, the issue of principle that my friend outlined was the nature of the connection between the fraud and that practised on the Tribunal and, in effect, there appear to be three ways in which that connection is said to have been established here.  There was the connection that is fraud in the sense discussed in Craig, which Justice Hayne raised with Mr Lindsay, and that is not one that does not descend to the statutory regime, but looks at it in a wider sense and says how does this fit in with the established cases concerning fraud. 

Secondly, it was put that by one means or other this fraud, depending on what is found to be the fraud, somehow caused the statutory scheme to not be completed depriving the Tribunal of jurisdiction to determine the application.  Can I just deal with the first.  Your Honour Justice Heydon just asked is there any analogy with the decided cases and I understand Justice Crennan said that it might be in the area of the omission of relevant material.

In our submissions, we have sought to do a précis of the cases, starting with the issue of certiorari to inferior courts in criminal cases.  In our respectful submission, they broadly fit into three categories:  one involving collusion between the parties, for example, collusion to get a guilty verdict to a lesser charge to raise an autrefois convict for a more serious charge as an example; second, where there is a direct misstatement or perjury or false material provided to the court and then there is the third one that your Honour Justice Crennan may be adverting to, that is, the omission of relevant material.

That omission only occurred in circumstances where there was a duty to provide the material.  With respect, that is the difference between that category of cases and this.  Those are examples where the prosecution did not hand over exculpatory statements of witnesses and matters of that kind.  But if one says the omission here was the omission of what it is they would have said was their claims, that could only arise if there was some positive duty reposed to provide it.  In my respectful submission, the case does not get that close.  In my submission, there is no analogy with the decided cases.

Justice French sought to construct a principle from the cases and this principle is at page 320 in paragraph 129 in the second sentence.  The principle that his Honour puts forward is that:

But where a person’s participation in a decision-making process is affected by the material dishonesty of another which conveys a false impression to the decision-maker, then that dishonesty may be said to have distorted or vitiated the approach and to have affected the decision.

We submit that that may be too wide depending with respect on what his Honour means, but this case is not an example where there was a false statement made to the decision-maker, and to take Justice Heydon’s example, if the agent had turned up and said they do not want to attend, that statement would have been correct.  They did not want to contend.  Their consent to not attending ‑ ‑ ‑

KIRBY J:   We now know that they did want to attend but were dissuaded by this so‑called solicitor, so-called migration officer.

MR BEECH-JONES:   That comes back to what one might say about the effect of that fraudulent statement on their agreements because when he gave them that advice they knew that the consequence was that they had been offered the opportunity to attend but were not attending.

KIRBY J:   But they spent an hour, being people who do not know our ways or our institutions, trying to dissuade him and they were saying exactly what the Tribunal itself subsequently said in the passages that I referred to in Justice French’s reasons.

CRENNAN J:   The invitation to attend is always to give evidence and present arguments.  I think it is cast in that form.  So what he has really dissuaded them from doing is appearing to give evidence and present arguments.

MR BEECH-JONES:   Yes, your Honour, and that is the way that Mr Lindsay sought to bring and says the statutory regime went wrong and I will come to that shortly – but he pitches his case at a much higher level in his submissions and today he says there was a general fraud perpetrated on the Tribunal without going into the details of the statutory scheme, that is, I think he embraced your Honour’s omission of relevant material but he also says there was a falsity perpetrated on the Tribunal.

In my respectful submission, that is not the relevant analogy here because what was said here was, whatever misgivings one has about the advice that led to them being of the view they did not want to attend, the end result was that they did not want to attend.  So if he had gone along to the Tribunal and said, as a matter of courtesy, “They’re not here because they do not wish to attend today”, that would reflect the state of mind that they had reached ‑ ‑ ‑

HEYDON J:   That would be a fraudulent suppression veri.

MR BEECH-JONES:   I am sorry, your Honour.

HEYDON J:   It would be a fraudulent suppression of the truth.  It would be only a half-truth.

MR BEECH-JONES:   In my submission, it would not be, your Honour.  For them to advise that they were consenting not to attend would be a consent, that is a knowledge that they were asked to attend and they were not. 

CALLINAN J:   Would it be different if they had been physically restrained from attending?

MR BEECH-JONES:   No, your Honour, it would not be.

CALLINAN J:   So if you locked them in a room and would not let them attend, you would take exactly the same stand.

MR BEECH-JONES:   I will come to the statutory regime shortly.  In that example, your Honour, the Tribunal would be sitting in the hearing room waiting for a hearing and they would not attend, but there would not be any false statement made to the Tribunal, there would just be no one attending.

CALLINAN J:   But that is all right.

MR BEECH-JONES:   That is not all right in terms of the conduct.  That is the very type of conduct that if you had an expressed power to reconsider you would reconsider.  But say the example was you had a dishonest taxi driver who deliberately decided to drive you around the city so you missed the hearing, you would have a fraud perpetrated on you.  The fraud would mean you did not attend.  The consequence of my friend’s argument is the Tribunal or the court, if it is an inferior court, that heard it, their decision would be void and that, in my respectful submission, would not be a desirable outcome because it is driving one back to saying the Tribunal would not have the power, if they did not turn up, to make a decision.

HAYNE J:   That is wrapped up in this word “void” which we looked at in Bhardwaj and discountenanced.  The real question is, would certiorari run in the case you described, for example, of the fraudulent cab driver or the other examples given and slap a title “void” on it if you like.

MR BEECH-JONES:   The question would still arise, if you were the other litigant in that case, would you be entitled to rely upon the judgment that was issued.

HAYNE J:   Sir William Wade looked at all these things long ago and pointed out the difficulties that you get into with this terminology.  On the question of whether certiorari would go, are the cases to which you would refer us on that question those mentioned in paragraph 31 of your submissions and the footnotes.

MR BEECH-JONES:   Yes, your Honour.

HAYNE J:   None others, because if you go to cases like that Wolverhampton Case referred to in Craig, that seems to take you back into Colonial Bank v Willan (1874) LR5PC ‑ ‑ ‑

CALLINAN J:   We have been there before.

HAYNE J:   ‑ ‑ ‑ which we looked at, Alleyne 1854 4 El & Bl, Gillyard (1848) 12 QB.  There is a lot of law out there.  Are we left to trawl around these books for ourselves, are we?

MR BEECH‑JONES:   Your honour, I am happy to keep trawling within the leave you have given Mr Lindsay.  I have referred to Gillyard in footnote 39.

GUMMOW J:   We need to know, Mr Beech‑Jones, following what has just been put to you.  We need to know what you say about the proposition put by Justice French in the second sentence, paragraph 129 on page 220.  Do you say you accept that or you reject it?  Is it consistent or inconsistent with these cases you referred to in footnotes 40 and 41 of your submissions?

MR BEECH‑JONES:   Your Honours, we cavil ‑ ‑ ‑

GUMMOW J:   You said that the Minister was interested in this case because it involved the question of principle.  Will you tell us what the principle is?

MR BEECH‑JONES:   Your Honour, the principle, we submit is that set out in paragraph 28a and we submit that if Justice French is intending to convey something other than the deliberate provision of false materials to the decision‑maker or the deliberate omission of material, or there was a duty to provide it, then we cavil with it.

HAYNE J:   Can I be blunt about it, Mr Beech‑Jones.  I would like to know whether what the parties are asking us to do represents some development of the law relating to administrative review or whether it lies within orthodox principles that have stood for many decades.  To know that I have to know rather more about the principles than I think may be revealed in what we have in the written submissions.

MR BEECH‑JONES:   Yes, your Honour, and we will ‑ ‑ ‑

KIRBY J:   After all, you have told us that the reason this matter is contested was because it is a principle.  We do have two human beings behind all this and Australia’s obligations under the Refugees Convention and Protocol.

MR BEECH‑JONES:   Yes, your Honour, I am happy to keep – we will provide your Honours with – if leave is given to us – a further note dealing with as many cases as we can deal with.

GUMMOW J:   No, a bit more than that.

HAYNE J:   Principle.

MR BEECH‑JONES:   Can I say this, your Honour, we have also looked at the position of – those cases, of course, deal with inferior courts.

GUMMOW J:   Exactly.

MR BEECH‑JONES:   Exactly.  The cases dealing with administrative decisions are – at least on the research I have done there are not as many. We have referred to a decision of Justice Carruthers which appears to have adopted the principle in the terms that we have said, that is, an administrative decision – I am hesitant to use the word “void” but vitiated if there was a deliberate omission.

GUMMOW J:   Have you looked at the position in the United States?  Have you looked at Pierce’s treatise, for example, and looked at the Administrative Decisions Act?

MR BEECH‑JONES:   No, your Honour.

GUMMOW J:   I would be very surprised if this sort of question has not arisen there.

MR BEECH‑JONES:   Your Honours, we will undertake that work but I think I started by saying Mr Lindsay put the connection on three bases.  One was general fraud, the second concerned the statutory scheme in sections 425 and onwards.  Could I just take your Honours to those provisions, beginning at section 425?

Section 425 deals with the invitation and section 425A deals with the appointment of a date and time at which the relevant appearance must occur.  Section 426A deals with the consequences of a person failing to appear.  Justices Allsop and Graham considered that in this case the Tribunal was empowered under section 426A(1) to determine the matter, reasoning that there had been an invitation under section 425, the time and place nominated in the invitation had passed and there had been no appearance.

GUMMOW J:   That is the question.  Does this phrase “does not appear” carry with it any further baggage, namely why did they not appear?  Answer:  because of some fraud practice done to them by an unregistered migration agent.

KIRBY J:   One way to read it – it may or may not be the correct way – is that, given its purpose, Parliament is saying that if they do not appear because they have made a conscious, wilful, knowing decision not to appear.

MR BEECH-JONES:   Or that they just ‑ ‑ ‑

KIRBY J:   That is the purpose of it, is it not?  It is to give people the opportunity to decide whether they, in their interests because they are the applicant, want to be heard or not to be heard.

MR BEECH-JONES:   That is section 425, your Honour, but section 426A, in my respectful submission, is there to give the Tribunal some certainty as to how it is to proceed when someone does not turn up.

GLEESON CJ:   You mentioned earlier that in ordinary civil litigation there exist powers to set judgments aside, for example.  Forget about fraud and kidnapping, but what happens if somebody just gets run over by a bicycle on the way to the Tribunal and the person does not appear because the person is incapacitated and the Tribunal goes ahead and makes a decision?  Is there nothing in the Act that permits that to be remedied?

MR BEECH-JONES:   Only section 48B which I am taking your Honours to.

GLEESON CJ:   That is the power of the Minister that he does not even have to consider?

MR BEECH-JONES:   Yes, your Honour.  Could I just draw the analogy with the court powers.  The court rules in many of the courts have a power that reads along these lines:  if the plaintiff or the defendant does not appear at the trial, the court may dismiss the action if it is the plaintiff, adjourn the proceedings, matters of that kind.  That is a power broadly similar to this.  Then they are also given a power to set that aside on good cause being shown.  This Tribunal has been given the first but not the second.  They have been given the power to promote the certainty and if they are confronted with the position that the person does not appear, they may in the exercise of discretion proceed to dismiss the application.

GLEESON CJ:   There could be all sorts of reasons why a person does not appear.  The person might just make a mistake, the person might get held up in traffic.  It does not necessarily involve any kind of fault on anybody’s part.

MR BEECH-JONES:   Indeed, your Honour, but I am ‑ ‑ ‑

KIRBY J:   Your answer is “Too bad.  There’s nothing the courts can do about it”.

MR BEECH-JONES:   My answer is that the words convey ‑ ‑ ‑

KIRBY J:   That is the bottom line.  That is what you are saying to us.

MR BEECH-JONES:   The words convey their ordinary meaning, your Honour, that is to confer the certainty on the Tribunal to act in that circumstance.

HAYNE J:   That is a submission that puts weight on the clause without taking it.  That is the last part of the clause that is the hook on which that argument seems to hang.

MR BEECH-JONES:   Yes, your Honour.

HAYNE J:   “To allow or enable” presumably you advance as emphatic words.

MR BEECH-JONES:   Yes, your Honour.  It does not mean the Tribunal will always act that way.  It does not mean that they may not make inquiries to determine what happened to the applicant that they were expecting to turn up.

GUMMOW J:   The question is, what happens if they find out later circumstances which if they had known earlier would have led them to take further steps?

GLEESON CJ:   The Bhardwaj question.

MR BEECH-JONES:   It would partly be Bhardwaj, but in Bhardwaj some fact or matter had been notified to the Tribunal before it has made its first decision, if I recall, so that there was something affecting the way in which the Tribunal went about making its first decision.  It may have been a fax – a fax requesting an adjournment due to illness had been lost in the registry.  The other aspect to Bhardwaj was the relevant form of section 425(1) was different.  It was an obligation to provide an opportunity.

GUMMOW J:   We need to be clear about this.  I imagine the Minister would accept that if before the Tribunal made its decision it had known what was happening with the activities of this delicensed migration agent and in particular what he had said to his clients, if they had known all of that in the Tribunal before they made their decision, it would have been within their discretion to take further action.

MR BEECH-JONES:   Yes, your Honour, if they had known.  If they had known that but did not, that may have raised a real question about whether the discretion in 426A(1) had miscarried.

GUMMOW J:   So it all becomes, as Talleyrand said, a question of dates.  He said treason was a question of dates.  The fate of these litigants becomes a question of dates when the Tribunal finds out.

MR BEECH-JONES:   That is so, your Honour.  Your Honours, can I just say something briefly about section 425 and the consent in (2)(b) that my friend refers to?  Section 425(1) sets out the obligation to issue the invitation, which occurred.  Subsections (2) and (3) are a little bit curious and subsection (2) says that:

Subsection (1) does not apply if:

a number of things happen, which include:

(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it -

That appears to contemplate the possibility that the consent to the Tribunal deciding the review without the applicant appearing before it can be given before the invitation is issued.  Subsection (3) says:

If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

That appears to cover the situation where an invitation was issued.  There then was at that time an entitlement to appear.  Then consent comes along in (2)(b) after the invitation has been given and subsection (3) then removes the entitlement to appear before the Tribunal.

What it comes back to is this, that even if the consent in this case was invalidated under 425(2)(b) the power of the Tribunal to proceed under 426A(1), in our submission, was not affected because the invitation had issued.  There had been no appearance on the date they were scheduled to appear and therefore that power arose.  Your Honour, because of what we said about section 426A(1), in our submission the suggestion that the fraud of Mr Hussain, whatever it was, meant that under the statutory scheme the Tribunal was not empowered to proceed, we submit is incorrect.

The third matter which my friend mentions in the submissions is that a want of procedural fairness occurred.  Now, with respect, we are a little bit unclear as to whether that is saying no more than because of the fraud we were denied the opportunity to be heard, or whether it is a more narrow proposition, the procedural fairness itself involves the proposition that the decision we are reviewing is not based on fraud.  If it is the second, which my friend articulated, we do not see how it really takes the matter that much further in that the fraud he is articulating is the fraud that we have been debating.  Your Honours, those are the matters that I wish to submit upon.

GLEESON CJ:   Your proposition in paragraph 28 that you took us to earlier, as I understand it, is that if the fraud is perpetrated only on the appellants and is not perpetrated by or upon the Refugee Review Tribunal, then the decision of the Tribunal is not relevantly affected by fraud.  Is that what it comes down to?

MR BEECH‑JONES:   Yes, your Honour.

GLEESON CJ:   Suppose, to vary the facts only very slightly, Mr Hussain had said to his clients, “Don’t stay away from the Tribunal, but I don’t want you to start talking to them because you might say something that will contradict what you would want to say to the Minister, and don’t mention my involvement in this, but go to the Tribunal and say that you are there as a matter of courtesy and you just want to inform that you have nothing to add to the material that is already before them”, and they did that.  The facts were all otherwise the same, it was fraudulent on the part of Mr Hussain, whatever exactly that might mean, to give them that advice.  What are the consequences of that?

MR BEECH‑JONES:   The answer is, your Honour, it would depend upon precisely what was said and what occurred at the Tribunal.

GLEESON CJ:   Suppose they just said that, “We are here out of courtesy to say that we have nothing to add to the material you already have before you”?

MR BEECH‑JONES:   In my submission, that would make no difference because what they would be saying to the Tribunal would literally be true.  We do not want to add anything.

KIRBY J:   But this Court has said many times, and it is referred to in the judgments of the Federal Court, that the Tribunal is an inquisitorial body.  I do not know how it operates in practice, but I would be surprised if they turn up the Tribunal would not, if it had the doubts that it expresses in its reasons, call the female applicant forward and say, “Well, we have a few questions we would like you to answer”.  They would be entitled to do that, would they not?

MR BEECH‑JONES:   They would and then it would change because then she would be sworn and she would swear an oath to tell the whole truth.

GUMMOW J:   Or be affirmed, presumably.

MR BEECH‑JONES:   Or be affirmed, I am sorry, yes, and she would have to answer the Tribunal’s questions and if she then gave false answers there would be a fraud on the Tribunal but it would not be something she can complain about because she would be directly involved in it, so there you have a - probably be in discretionary area for refusal.

KIRBY J:   Anyway, she never got to that, she never got the chance to say the things the Tribunal wanted and that she wanted to say.  Can one not understand an argument that that outcome is a very unfair outcome?  She is innocent of the trickery of this solicitor.  Why does that not infect the decision of the Tribunal which is itself, as Mr Lindsay said, as being the victim of a fraud?

MR BEECH‑JONES:   If your Honour is putting to me that this is a hard case, I am not disagreeing with your Honour that this is a hard case.

KIRBY J:   No, it is not a question of it being a hard case.  It is a question of it being unfair in the administrative law sense which is the great central principle of administrative law as it has developed.

MR BEECH‑JONES:   I can only really revert to ‑ ‑ ‑

KIRBY J:   Illegality, unfairness, illogicality.

MR BEECH‑JONES:   The way in which I am confronting it is a case where it said that a decision was procured by fraud and the fraud is said to be of a third party adviser upon one of the parties and what is the connection between the advice they give and the ultimate decision of the Tribunal and if that connection is, as in this case, it has the potential, we submit, to affect a lot of other cases in this field but also other tribunals where there are other parties to the proceedings and inferior courts.

KIRBY J:   Are they cases where Australia has obligations under an international treaty for safeguarding the human rights of people who come before those tribunals?

MR BEECH‑JONES:   I do not know, your Honour.

KIRBY J:   That is why I said there is a judgment to be made in these matters.

MR BEECH‑JONES:   I do not know, your Honour, but they do involve, obviously, important questions to persons in those cases.

CRENNAN J:   Mr Beech‑Jones, may I just clarify a matter of fact.  At appeal book 195 there is the notice which goes from the Tribunal advising that, “Mr Hussain is no longer registered as a migration agent”.

MR BEECH‑JONES:   Yes, your Honour.

CRENNAN J:   Was that one of the documents which came back, “Return to sender”?

MR BEECH‑JONES:   It was, your Honour.

CRENNAN J:   Was a subsequent notice along those lines sent once the Tribunal was advised of the correct address?

MR BEECH‑JONES:   No, your Honour.

CRENNAN J:   Thank you.

CALLINAN J:   Has there been compliance with the section, then?  Has there been an invitation?

MR BEECH‑JONES:   I am sorry, that is not the invitation, your Honour.  That is a letter advising about Mr Hussain’s status as a migration agent.

HAYNE J:   May I go back to the Chief Justice’s example in the course of looking at the authorities.  Would you give consideration to what is said in Aronson and Dyer, the 3rd edition, particularly at pages 300 and following, but in particular consider the Chief Justice’s example against the stream of Queensland cases in which the authors refer to saying that:

The courts have long allowed judicial review applications where the gist of the allegation is police fraud or duress against the defendant in a summary matter, resulting in a vitiated plea of guilty.

There are three Queensland cases, [1959] Qd R 75, [1964] Qd R 337, [1983] 1 Qd R 552, referred to as support for that proposition.

GUMMOW J:   It is attached to the appellant’s submissions.

MR BEECH-JONES:   I have it, your Honour.

HAYNE J:   You might also give consideration to whether Professor Campbell in the two articles referred to in footnote 331 casts any light on these subjects.

MR BEECH-JONES:   I have the second one, your Honour, and I have not found any light but if I find any more – Hallahan was a case where there was a false statement of facts presented to the court in connection with a plea of guilty.

HAYNE J:   But if certiorari will go where the police out the back have induced a plea of guilty in unusual circumstances, in a sense what is different from this?  True it is it is adversarial proceedings.

MR BEECH-JONES:   And they in one way or another are a party with duties to the court of positive disclosure.  That is what we would submit is the discrimen, but if there is anything that we come across obviously one way or another in what we submit, we will say something, but that, your Honour, is what we say is the essence of the difference between that and this.

GLEESON CJ:   There were about 40 years ago a series of proceedings in New South Wales against legal practitioners alleged, and in some cases found, to have engaged in improper financial dealings with plaintiffs in personal injuries litigation and in most of those cases, I think in all of the cases, the proceedings were settled.  What would be the position if a plaintiff in a circumstance like that sought to set the consent judgment aside on the basis that the settlement agreement had been entered into as a result of fraud practised on the plaintiff by the plaintiff’s lawyer?

MR BEECH-JONES:   Your Honour, the essence of the difference between Mr Lindsay and myself is that Mr Lindsay would say that if it was an inferior court, the decision should be just set aside automatically, whereas I say that is a matter that would be within the discretion of the court on hearing both parties on an application to reopen because it would not involve – on the facts your Honour has outlined, and I think it is the case that I remember, I do not think it involved the defendant insurers being in any way participant in the fraud.

One often sees cases where a plaintiff in a personal injury case has taken bad advice, not fraudulent but bad advice, settled too low and it has come along and sought to set aside the consent judgment.  Sometimes that has been granted and sometimes it has not, but it is all within the area of the

discretion of the court, not a suggestion that somehow the judgment itself is impugned for fraud.  In my respectful submission, that highlights the difference between the appellant’s position and ours, at least so far as one is talking about courts and not tribunals.

KIRBY J:   There may be other streams that come in to that type of case, as mentioned by the Chief Justice, such as the status of superior courts, the orders of Supreme Courts and so on.  I may be wrong, but it does seem to me that there is a point of difference between private litigation and the application of the public law by a body that is set up on a hypothesis that it will apply that public law in accordance with law fairly and without irrationality and therefore, in a sense, it is easier to get a remedy in a public law situation than it is in a private law situation where the parties are entitled to look after their own interests.

MR BEECH-JONES:   I accept there is clearly a basis for differentiation between the position of superior courts, the position of inferior courts and the position of tribunals, but the position of tribunals and inferior courts is a bit closer in that sense because they, at least I think as in Cameron v Cole there is a discussion about what the consequences for an inferior court if its decision is made without jurisdiction talk about it being ignored by third parties which is similar territory for tribunals.

Some of the considerations cut both ways.  The most common thing we know about inferior courts, and in some cases tribunals, is they have express powers to reopen their decisions.  A lot of what one may think are unfortunate consequences for individual litigants and third party litigants can be remedied by that way.  We are not in that territory here.  Here a tribunal has these powers and maybe other tribunals that are adversarial, in the sense they are more than one party but do not have express powers to reopen, one is straight into territory of jurisdictional error and the consequences that flow from that.  I do not know if that is an answer to your Honour’s question.  It may just be a long way of saying that I agree that there are different considerations.

GLEESON CJ:   Mr Beech-Jones, we have given Mr Lindsay seven days to put in his further written submissions.  You will have a further seven days after that.

MR BEECH-JONES:   If your Honour pleases.

GLEESON CJ:   Yes, Mr Lindsay.

MR LINDSAY:   I have nothing.

GLEESON CJ:   We will reserve our decision in this matter and we will adjourn until 9.30 tomorrow in Canberra and 9.30 tomorrow in Sydney.

AT 12.09 PM THE MATTER WAS ADJOURNED