Pre-Exam Tutorial
Overview:
 General Advice:
 Approaching study: Summaries
 Approaching exam: time allocation, which
question first, etc.
 2013 Exam: Problem Question
Problem Q Summary Structure
 1. Jurisdiction
 2. Judiciability
 3. Standing
 4. GOR
 5. Remedies
 6. Statutory Exclusion
2013 Exam:
 i – Jurisdiction (20%)
 ii – Standing (10%)
 iii –PF / Project Blue Sky invalidity (20%)
 iv – GOR (30%)
 v – GOR (20%)
i: Jurisdiction
High
Court
Federal
Matter
Federal
Court
S75(iii)
2. Is the Cth a
party?
S75(v)
ADJR
1. Cth Act?
State Matter
Supreme Court
Common Law –
ss75(iii) and (v)
(Kirk’s case)
State clones of
ADJR
3. Are you
seeking a
particular
remedy?
4. Is there an
exclusion
clause?
i: Jurisdiction
ADJR rules:
Application
 ‘Aggrieved’ s5 ADJR
 Standing – discuss in Q2
 Decision s3(1) ADJR
 Decision to cancel ISP is final, operative,
determinative (Bond)
 Administrative
Character s3(1) ADJR
 Under an enactment
s3(1) ADJR
 Factors to consider:
 Nature of decision: relates to many
of individual?
 Who supervises decision? Merits
Review = usually administrative
(Blewitt, Leg Instruments Act)
 Tang:
 Expressly authorised and required
under an Act
 Affects legal rights & obligations
(Tang)
 BUT: Private body NEAT – compare TIO
with AWBI
ii: Standing
Standing Common Law,
5 ADJR ‘aggrieved person’
Application
 CDF = not personally affected
 1) decision interferes with private rights;  Special interest?
or
 CDA is a non-profit group
 2) ‘special interest’ in subject matter
formed by wealthy
 More than a mere ‘intellectual or
Australian musicians and
emotional concern’;
movie makers. ... Has
 More than interest of public at large
participated in govt
 However: standing recognized for orgs
consultations into the
similar to ACF. Ct Considered:
future of these industries
and has been involved
 Prior involvement in particular matter;
extensively in funding
 Group recognized/funded by govt;
research into the impact of
 Group represents significant strand of
illegal downloads on
public opinion; &
Australia’s film and music
industries. ... Not in receipt
 Expertise of org (Tas Conservation Trust)
of any government funding.
 Bateman’s Bay: group had standing because
 Starting point: ACF :
personally detrimented
 Standing liberalising?
iii: Breach of Procedural Fairness: Invalidity?
Would the breach of PF
make the decision invalid?
 Clear breach of PF
Application
 Project Blue Sky Analysis
 Question = will decision to
cancel internet be invalid?
– Project Blue Sky:
 Language
 Subject Matter
 Language of ss951 and 952
 Subject matter: Public effect
of decision? Practical effect?
 Consequences?
 Consequences
 SZIZO – Right address,
wrong person – Unfairness?
 Miah – nature of the decision
(final?), urgency of decision,
formalities required, subject
matter
 SZIZO – means/end
 Is Cory aware that he can
challenge notice?
 Miah – weigh up factors
How to Approach the GOR Section
 Have a list of GOR
 Have a list of cases with ‘fact’ catch phrases
 Think through before writing
 Pick the STRONGEST GOR (likely 1 or 2)
 For weaker arguments, mention BRIEFLY if time
 Quickly mention remedies –
 under ADJR here, so mention that remedies are at the Court’s
discretion, do not need to prove jurisdictional error (s16)
Example of GOR list
 Procedural grounds of review (JE)
 Rule Against Bias (Actual / Apparent)
 Procedural Fairness
(Scope/Content/Unfairness)
 Reasoning process grounds (JE)
 Duty to inquire
 Giving Reasons
 ‘Consideration’ Grounds:
 consideration of irrelevant matters
 failure to consider relevant
matters
 Unauthorised Purpose
 Inflexible application of a rule or
policy
 Dictation Ground of review - ‘Rule
against dictation’
 Rule against unauthorised delegation
 Decisional grounds
 Jurisdictional Error
 Error of Law
 Errors of Fact

Jurisdictional Fact

Decision conditioned on fact
‘State of Mind’
No evidence
‘Wednesbury’ Unreasonableness









Rule Against Bias
Vakauta v Kelly: derogatory or insulting words
Hot-Holdings: mining licence, personal contacts w/
interested parties
Ebner: Pecuniary or proprietary interest
Laws v ABA: necessity, whole DM would be disqualified if
bias
Jia Legeng : Minister expresses public opinion about
deporting accused, wrote to AAT expressing disapproval
with initial decision
Baker v Canada: bias subordinate influenced decision
....
iv: Grounds of Review
GOR
Application
 Procedural Fairness – should she get an
oral hearing?
 Should she get an oral hearing? Scope,
content
 ‘Fetter’ – is the policy regarding policy
hearings inflexible
 Policy of no oral hearing – not
considering particular case at hand
 State of Mind – Jurisdictional Fact
 Irrational to consider dog’s name as password
not ‘reasonable effort’  but ‘open to them’?
 Misunderstanding of statute in expecting
copywriters not to issue notice if licence held?
 Duty to inquire (SZIAI ) - ‘failure to
make an obvious inquiry about a critical
fact, the existence of which is easily
ascertained’ may amount to JE
 Limited, narrowly applied:



Obvious
Centrally relevant
Readily ascertainable
 That Anna had a licence: can they rely on
copywriters to check?
v: Grounds of Review
GOR
Application
 Failure to consider relevant
 Effect on Children
information
 Letter from principal
 Legitimate Expectation
 ONLY affects content of PF
 Inflexible policy
rule
 Is the policy listed on the
website inflexible?
 No evidence
 Courts wary of applying to
‘insufficient evidence’
 No evidence to suggest she
Will breach again?
Final Notes
Cases you should know WELL:
 NEAT
 Project Blue Sky
 Kioa
 Facts of GOR cases