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[2019] TASFC 3
General information, not legal advice.
Supreme Court of Tasmania (Full Court)
2019-06-04
Blow CJ, Estcourt J, Martin AJ
Original judgment source is linked above.
Director of Housing
Parsons [2019] TASFC 3
APPEALED FROM: Parsons v Director of Housing [2018] TASSC 62
Logan v Director of Housing [2004] TASSC 153, 13 Tas R 324, distinguished.
"[29] In Wilkie v The Commonwealth [2017] HCA 40, the Court said at [98] that in respect of a provision which required that 'the Finance Minister be satisfied that there is an urgent need for expenditure ...', the casting of that pre-condition by reference to the Finance Minister's 'satisfaction' invokes an 'established drafting technique' which has been 'used to make the holding of a particular state of mind by the repository a pre-condition to the performance of a duty or to the exercise of a power': Plaintiff M96A/2016 v Commonwealth [2017] HCA 16, 91 ALJR 579 at 588 [39]; Re Minister for Immigration and Multi-cultural Affairs; ex-parte applicant S20/2002 [2003] HCA 30 and Bankstown Municipal Council v Fripp [1919] HCA 41; (1919) 26 CLR 385.
[31] The evaluation inherent in an enquiry of this nature has been recognised as involving an exercise of judicial discretion: Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at [518] to [519].
"[38] The situation falls squarely within the concept of a constructive failure as described by Kirby J in Coal and Allied v AIRC [2000] HCA 47, 203 CLR 194, where his Honour said this at [82]:
[39] This resulted in the court failing to give the appellant a hearing of his substantive case of the sort to which he was entitled: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26, 197 ALR 389 at [32]. The consequence of the misapprehension of the nature of the exercise, construed as having no discretionary character, was a failure to entertain submissions directed to the elements of s 45(3) (b). The court did not consider submissions which were inconsistent with its view of the power it was exercising. There was a constructive failure to exercise jurisdiction: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263, 144 FCR 1 at [55]; Dranichnikov (above) at [24] and [95].
[40] That failure is a denial of natural justice; Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11, 209 CLR 597; Dranichnikov (above).
(1919) 26 CLR 385
(1986) 161 CLR 513