Goudge v CSS Board

Failure to take into account relevant considerations 32 Counsel for Mr Goudge, Mr A Keogh, submitted that the decision of the Board was an improper exercise of the power conferred by s7(2) of the Act in that relevant considerations were not taken into account. The considerations were said to be: · the ongoing and permanent nature of Mr Goudge's incapacity; · the issue of rehabilitation; · hardship; · evidence provided by Mr Goudge in his affidavit before the Board. 33 Counsel for the Board, Mr P Hanks QC, submitted that the ground of failing to take into account relevant considerations could only be established if the Board was bound to take those considerations into account, as determined by a proper construction of the statute conferring the discretion. 34 Mr Hanks also submitted that Mr Keogh essentially contended that particular pieces of evidence were not taken into account by the Board. Mr Hanks contended that there is distinction between failing to address a relevant consideration and failing to deal with particular parcels of evidence. 35 A decision will be reviewable under the ADJR Act on the ground of failing to take into account relevant considerations only if the decision-maker was bound to take those considerations into account; see Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39 per Mason J. Mr Keogh did not demonstrate why the matters said by him to be relevant to the decision, and not taken into account, were bound to be taken into account. 36 Further, in Hastings at 631 the Full Court said, in respect of s7(2) of the Act, that: "…as the relevant matters are unspecified in the legislation, it is for the [Board] to determine what matters are to be taken into account and the weight to be given to them… ." 37 What is complained of is essentially a failure to deal with particular items of evidence, rather than failure to address a relevant consideration. The difference between the two concepts is referred to by Allsop J (with whom Heerey J agreed), in Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396, [2001] FCA 1196. 38 At [79] in Paul (FCR 423) Allsop J said: "Whatever may be the outer boundaries or relevant and irrelevant considerations at the point of jurisdiction .. they do not, in my view, encompass a failure expressly to mention or grapple with part of the competing body of evidence before the tribunal, relevant to a finding made…" 39 In any event, as submitted by Mr Hanks, each item of evidence in respect of which Mr Keogh identified as not being taken into account by the Board was in fact taken into account. 40 At [8] of the its decision the Board said that it "took into account the recommendation of the committee, the evidence and reasoning referred to in its recommendation" (emphasis supplied). The evidence referred to in the recommendation of the Second Committee at [14] includes: · the 8 and 31 August 1994 reports of Dr DeSousa;

(1975) 25 FLR 90

(1986) 70 ALR 625

(1986) 162 CLR 24

(2001) 113 FCR 396