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Pre-Exam Tutorial. Overview: General Advice: Approaching study: Summaries Approaching exam: time allocation, which question first, etc. 2013 Exam: Problem.

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Presentation on theme: "Pre-Exam Tutorial. Overview: General Advice: Approaching study: Summaries Approaching exam: time allocation, which question first, etc. 2013 Exam: Problem."— Presentation transcript:

1 Pre-Exam Tutorial

2 Overview: General Advice: Approaching study: Summaries Approaching exam: time allocation, which question first, etc. 2013 Exam: Problem Question

3 Problem Q Summary Structure 1. Jurisdiction 2. Judiciability 3. Standing 4. GOR 5. Remedies 6. Statutory Exclusion

4 2013 Exam: i – Jurisdiction (20%) ii – Standing (10%) iii –PF / Project Blue Sky invalidity (20%) iv – GOR (30%) v – GOR (20%)

5 Federal Matter High Court S75(iii)S75(v) Federal Court ADJR 2. Is the Cth a party? 3. Are you seeking a particular remedy? 4. Is there an exclusion clause? State MatterSupreme Court Common Law – ss75(iii) and (v) (Kirk’s case) State clones of ADJR 1. Cth Act? i: Jurisdiction

6 ADJR rules:Application ‘Aggrieved’ s5 ADJR Decision s3(1) ADJR Administrative Character s3(1) ADJR Under an enactment s3(1) ADJR Standing – discuss in Q2 Decision to cancel ISP is final, operative, determinative (Bond) 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

7 ii: Standing Standing Common Law, 5 ADJR ‘aggrieved person ’ Application Starting point: ACF : 1) decision interferes with private rights; or 2) ‘special interest’ in subject matter More than a mere ‘intellectual or emotional concern’; More than interest of public at large However: standing recognized for orgs similar to ACF. Ct Considered: Prior involvement in particular matter; Group recognized/funded by govt; Group represents significant strand of public opinion; & Expertise of org (Tas Conservation Trust) Bateman’s Bay: group had standing because personally detrimented Standing liberalising? CDF = not personally affected Special interest? CDA is a non-profit group formed by wealthy Australian musicians and movie makers.... Has participated in govt consultations into the future of these industries and has been involved extensively in funding research into the impact of illegal downloads on Australia’s film and music industries.... Not in receipt of any government funding.

8 iii: Breach of Procedural Fairness: Invalidity? Would the breach of PF make the decision invalid? Application Clear breach of PF Question = will decision to cancel internet be invalid? – Project Blue Sky: Language Subject Matter Consequences SZIZO – Right address, wrong person – Unfairness? Miah – nature of the decision (final?), urgency of decision, formalities required, subject matter Project Blue Sky Analysis Language of ss951 and 952 Subject matter: Public effect of decision? Practical effect? Consequences? SZIZO – means/end Is Cory aware that he can challenge notice? Miah – weigh up factors

9 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)

10 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

11 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....

12 iv: Grounds of Review GOR Application Procedural Fairness – should she get an oral hearing? ‘Fetter’ – is the policy regarding policy hearings inflexible State of Mind – Jurisdictional Fact 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 Should she get an oral hearing? Scope, content Policy of no oral hearing – not considering particular case at hand 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? That Anna had a licence: can they rely on copywriters to check?

13 v: Grounds of Review GOR Application Failure to consider relevant information Legitimate Expectation Inflexible policy No evidence Courts wary of applying to ‘insufficient evidence’ Effect on Children Letter from principal ONLY affects content of PF rule Is the policy listed on the website inflexible? No evidence to suggest she Will breach again?

14 Final Notes Cases you should know WELL: NEAT Project Blue Sky Kioa Facts of GOR cases


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