Discretion to refuse relief on grounds of ‘futility’

The well-understood principles are discussed in Lee v Minister for Immigration and Citizenship [2007] FCAFC 62, [48]-[53]:

48 In my opinion, before a Court will exercise its discretion to refuse relief on the ground of futility, it must be quite clear that a rehearing or reconsideration is or will be futile.

49 I turn now to consider whether futility was made out in this case. A question arises as to the point in time at which the question of futility is to be assessed. As far as administrative decisions are concerned, there is little authority on the point. There is reference to a “backward-looking test” which requires futility to be assessed at the time the decision-maker made its decision. There is reference to a “forward-looking test” which requires futility to be assessed at a time in the future when the reconsideration or rehearing takes place. In many cases, it will not matter which test is applied because the same result will follow.

50 We were referred to a decision of this Court which has considered which test is appropriate, albeit in the context of a decision made by a Court in breach of the rules of procedural fairness. In Giretti v Commissioner of Taxation (1996) 70 FCR 151 Lindgren J (with whom Jenkinson J agreed) decided the case on the basis that there had been no failure to accord procedural fairness. As an alternative ground upon which the appeal should be dismissed, Lindgren J said that assuming a failure to accord procedural fairness, nevertheless, the appellant had not been deprived of even a possibility of a favourable result. Lindgren J favoured a backward-looking test. He said (at 165):

“No doubt in most cases, the application of the two tests will yield the same result. Perhaps the better view is that there is scope for the operation of both tests as alternatives in the sense that it is a ground for denying relief either that there was or that there is no possibility of a different result (cf the section heading in Woolf and Jowell, De Smith’s Judicial Review of Administrative Action (5th ed, 1995), p 498, ‘Where the defect of natural justice has made no difference to the result; where to require fairness or natural justice would be futile; where no prejudice has been caused to the applicant’ and discussion following). At least, it seems correct in principle that a backward-looking test should have scope to exclude relief. It is difficult to accept readily that a person who has been denied the benefit of procedural fairness should be entitled to be placed in a better position than if he or she had not been.”

51 Merkel J favoured a forward-looking test and, in my respectful opinion, his reasons for doing so are highly persuasive, as are the points made by Bingham LJ in R v Chief Constable of Thames Valley Police; Ex parte Cotton [1990] IRLR 344 at 352 (see also T Bingham “Should Public Law Remedies be Discretionary?” (1991) Public Law 64 at 72-73). In my opinion, it is appropriate to apply a forward-looking test at least in the particular statutory context under consideration in this case. Through no fault of their own, the appellants have been deprived of procedural fairness (as prescribed by the Act) and the requirement that the first appellant be nominated by an approved standard business sponsor is a requirement which must be satisfied at the time of decision.

52 I acknowledge that if a backward-looking test is applied it is appropriate to make a finding of futility and to refuse relief. At the time the Tribunal member made his decision on the appellants’ application for review, namely, 7 January 2004, there was no approved standard business sponsor. Konel’s sponsorship application had been refused by the same Tribunal member about two months before that date. Konel had not challenged that decision and, as at 7 January 2004, there was no suggestion that another applicant for approval as a standard business sponsor had or would come forward.

53 However, as I have said, I think it is appropriate to apply a forward-looking test and doing so results in the conclusion that, whilst a rehearing may prove futile, the Court cannot be certain that that will be the case. I put to one side for the moment the appellants’ challenge to the Tribunal’s decision in relation to Konel’s sponsorship application which, in any event, for reasons I will give, must be rejected. The Court cannot be certain that a rehearing will be futile because (and I understood the first respondent to concede this) nomination by an approved standard business sponsor is a requirement to be satisfied at the date of decision and it is a possibility that this criterion will be met on a rehearing of the appellants’ application for review. It may well be that it will not be met but, in my opinion, unless it is clear that it will not be met, relief should not be refused on the ground of futility. In other words, I do not think that relief should be refused unless it is clear that a rehearing will be futile and I do not think that it is clear in this case.

(emphasis added)

Reading down secrecy duties of public servants

In Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 71 ALR 73, the respondent argued that the secrecy provision in the Income Tax Assessment Act 1936, section 16 (as it then existed) which required a public servant to keep certain matters secret unless disclosure was part of the public servant’s usual ‘duty’ (a word appearing in the then section 16), meant that the requirement to provide reasons for administrative decisions under the Administrative Decisions (Judicial Review) Act 1977, s 13(2) did not apply.

This was rejected. Gummow J noted that the ‘duty’ of a public servant included a duty to comply with other laws, such as the obligation to provide reasons under the Administrative Decisions (Judicial Review) Act. At 84-85 his Honour said:

The [duty] indeed required … observance and compliance with obligations arising at common law and in equity, save as excluded or supplanted by statute: see Hogg Liability of the Crown pp 147–160. These general law obligations would include those of care and skill (Carpenter’s Investment Trading Co Ltd v Commonwealth (1952) 69 WN(NSW) 175 at 178), fidelity (Reading v Attorney-General [1951] AC 507) and confidentiality (Commonwealth v John Fairfax and Sons Ltd (1980) 147 CLR 39 at 50–1 ; 32 ALR 485). Also included, in my view, in the exception is what is appropriate to discharge or satisfy requirements or duties imposed pursuant to procedures existing under statutes other than the Tax Act.

Costs in pro bono matters

In Wentworth v Rogers [2002] NSWSC 709 the Supreme Court of NSW discussed the meaning of ‘pro bono’ and whether a conditional costs agreement can be understood as ‘pro bono’, or otherwise offending the indemnity principle.

At [70]-[77] Barrett J discussed the various understandings of the term ‘pro bono’ and specifically noted that pro bono does not exclude conditional costs.

In Wentworth v Rogers [2006] NSWCA 145 the NSW Court of Appeal discussed whether a conditional costs agreement (still ‘pro bono’) offended the indemnity principle.  The Court had to consider whether costs could be awarded when the winning party had a costs agreement under which costs were contingent on a successful outcome.

Santow JA discussed the issues at [37]-[66] and concluded that such an agreement would not.  Basten JA expressed the opposite view, while Hislop J did not express any view.

In Mainieri v Cirillo [2014] VSCA 227, [43]-[53] the Victorian Court of Appeal unanimously preferred Santow JA’s analysis and dismissed the (ground of) appeal against an order that costs be paid to the winning party who had a pro bono conditional costs agreement.


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.

Costs Court

See http://www.the-civil-lawyer.net/2013/03/new-costs-regime-for-victoria-supreme.html for a good explanation of the ‘standard’ and ‘indemnity’ bases on which costs may be awarded.

If there is an award of party/party costs, it is more than likely that it will be on the ‘standard’ basis (ie all costs reasonably incurred), rather than the old ‘costs incurred on a necessary and proper’ basis.

No leading questions in cross-examination of favourable witness

See s 42(3) of the Uniform Evidence Acts, which requires a court to disallow leading ‘if the court is satisfied that the facts concerned would be better ascertained if leading questions were not used’.

This provision does not appear to be used often enough in Victoria, although it is more frequently used in New South Wales.

Disclosure of third party’s private information under FOI not unreasonable if not disclosure ‘to the world at large’

In FL and Department of Human Services [2015] AICmr 30 the Information Commissioner rejected an argument from the agency that disclosure of information sought should be taken as disclosure ‘to the world at large’ and therefore ‘unreasonable’.

The Commissioner followed decisions from the Victorian Court of Appeal, the Appeal Panel of the NSW Administrative Decisions Tribunal and the Queensland Information Commissioner.

In Victoria Police v Marke [2008] VSCA 218 the Court of Appeal set aside a VCAT decision which wrongly assumed that disclosure of the information sought would be disclosure to the world at large.  The evidence before VCAT was that the applicant was a professional police officer who understood sensitive and confidential information, and explicitly, that he would not release the information to the world at large.

The Court of Appeal criticised VCAT’s assumption as ‘a fiction … an absolutely worst case scenario’ (Weinberg J); that the applicant’s use of the information may be relevant to the balancing exercise in deciding whether disclosure would be ‘unreasonable’ (Pagone AJA); and that to assume so would almost always work against disclosure, which is contrary to the object of the FOI Act of giving ‘the greatest possible public access to Government information’ (Maxwell P).

Marke was followed in Department of Education and Training v GJ (GD) [2009] NSWADTAP 33 in which it was concluded that the decision maker was wrong to ‘exclude from its consideration matters pressed by the applicant personal to the applicant such as the purpose of the application and promises of limited use’ (emphasis added).


Waiver of privilege over communications between solicitor and expert

In Traderight (NSW) Pty Ltd v Bank of Queensland Limited (No 14) [2013] NSWSC 211, Ball J observed that solicitors have a ‘duty’ to ensure that expert reports are in admissible form. This contrasts with the (unduly) conservative view that privilege in every piece of communication is necessarily waived by the service of the expert report.

See also New Cap Reinsurance Corporation Ltd (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258.


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