Category: Procedure

Getting a witness to repeat a story multiple times will almost always produce an ‘inconsistency’

This proposition is obvious, and the resultant ‘inconsistency’ does not demonstrate that the witness is lying. The popular example used by Irving Younger of Max Steuer’s cross-examination in the Triangle Shirt Waist Factory fire case is a case in point: the witness there may well have fabricated her evidence, but it is self-evidently not always the case that an ‘inconsistency’ is an indicator that thw whole story is made up.

Nevertheless, particularly in immigration, decision-makers all too often seize on tiny ‘inconsitencies’ which only arise because the applicant has been forced to repeat his or her narrative multiple times over many years.

In W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 379; 67 ALD 757 at [15] the Full Court observed:

As anyone with even a passing familiarity with litigation will know, to have to give a decision-maker three or more separate versions of the basis for a claim is an invidious position to find oneself in, even in the case of an honest witness. All the more so when the accounts have been provided by a person who speaks no English and who has required the assistance of an interpreter. It is inevitable that each version will be slightly different, and may even be very different once the impact of the interpreter is taken into account.

Injunctions or court orders made without authority compared to administrative decisions affected by jurisdictional error

In DPP v Ty [2009] VSCA 226; 24 VR 705, the Victorian Court of Appeal unanimously restated the position that a Court order must be obeyed even if that order is invalid.  The Court said at [27]:

an injunction must be obeyed ‘to the letter’ unless and until it is dissolved or set aside on appeal.[21]  Breach of an injunction will be a contempt of court notwithstanding that the injunctive order is later quashed on appeal.  The status of court orders – at least those of superior courts – is quite different in this respect from that of administrative decisions.[22]  Even a court order which lacks constitutional (and therefore legislative) authority only ceases to have valid operation from the date of quashing.[23]

The proposition that an administrative decision affected by jurisdictional error is ‘no decision at all’ is famously articulated by Gaudron and Gummow JJ in Minister for Immigration v Bhardwaj (2002) 209 CLR 597:

There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside.  A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all[33].  Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged.  A fortiori in a case in which the decision in question exceeds constitutional power or infringes a constitutional prohibition.

The proposition that Court orders stand unless and until set aside has implications for contempt.  For example, it would seem that neither the Commonwealth or Minister for Immigration can argue that they are entitled to move a person from one place of detention to another (for example, from Perth Immigration Detention Centre to Christmas Island) on the basis that a decision to make such a move is a privative clause decision under the Migration Act.  If an injunction exists to prohibit the move, that injunction must be obeyed even though the Minister thinks that the Court has no power to make such an injunction.  The injunction must first be set aside.  It follows that disobeyance of the injunction may be a contempt of Court.

Inspection of a court file by non-party

The principles governing when inspection of a court file by a non-party will be permitted are discussed in Deputy Commissioner of Taxation v Hawkins (Inspection Application by Matrix Group and Anor) [2016] FCA 164.

Pagone J discussed the authorities and considered that amongst other things, any material read in open court, such as an affidavit, ought to be accessible by non-parties by reason that the proceedings are conducted in open court.

Further, the ‘general principle that the public should have access to what is used or deployed in court proceedings does not depend upon the motives of a person seeking to obtain access’: [12].

Arbitration in Magistrates Court for <$10,000 claims

Another good article on Andrew Downie’s blog, this one about arbitrations for small claims in the Magistrates Court.

Sections 102-106A of the Magistrates Court Act 1989 (Vic) deal with arbitrations of small claims, which are, loosely speaking, compulsory although both parties agreeing that a claim be dealt with in the normal way enlivens a discretion for the claim to be so dealt with.

Standard endorsement in the Federal Court for orders which warn of contempt consequences

See GPN-ENF.

IF YOU:
(A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR
(B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU TO ABSTAIN FROM DOING,
YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED

When the High Court will reconsider a previous decision

In Attorney-General (NSW) v Perpetual Trustee Co (Ltd) (1952) 85 CLR 237, 243-244, it was held that there is “no very definite rule” as to when the High Court will reconsider a previous decision.  However, four factors were identified as relevant by Mason CJ, Wilson Dawson, Toohey and Gaudron JJ in John v Federal Commissioner of Taxation (1989) 166 CLR 417, 438-439.

See the various judgments in Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53.