Appeal v. Review [ true appeal, qualified appeal,
unqualified appeal "Although the High Court's appellate jurisdiction is
expressed with reference to 'appeals', they are not unqualified appeals. An
unqualified appeal would call for a fresh hearing on the facts as well as the
law. A review, on the other hand, involves no fresh hearing and is limited to
errors of law, whether substantive or procedural. Appeals to the High Court are
qualified appeals, in the sense that the Court will not, as a general rule,
disturb findings of fact based on an assessment of the credibility of Although
an appellate court is in as good a position as the trial judge to decide on the
proper inference to be drawn from facts which are undisputed or are established
by the trial judge's findings of fact, the Court will give weight and respect
to the conclusion of the trial judge. Nor will the Court set aside an exercise
of discretion otherwise than for disconformity with the principles regulating
the exercise of a discretion."] [please read high court special leave page].
Primary Judgment: the fundamental of a judgment is to find all material facts about a case applying the rules of evidence. Error of law page outlines the legal principles how irrelevant facts may effect a judgment, how court may misdirect itself during initial legal inferences or other points of law. An appellate court may consider from the content of an appeal that the primary decision was wrong somehow may pursue the court to find out where was the mistake and how to pronounce it for future precedent in respect to past precedent. Fundamental of the consideration to weigh the reason for judgment in the suggested legal principles and eliminate possible errors that a judge may incur. In general terms we will see rule books of each court will tell you there is public interest, injustice, miscarriage occurred by a judgment that parties never expect. Legal inference from the fact can narrow down the degree of proof or standard of evidence mostly a very difficult task and judges found to be in error by apprehended bias sometimes. General nature of the court is to consider evidence in the case when it has merit in reality other than writing million paragraphs about legal principles and rules of evidence. Judges use the words overreaching, untenable, not credible, grave concerns many more in their judgements when they can not apply balance of probability from their conscience to keep track in the reason that everything was considered. So a reason for judgment will show reasons for the decisions that aligns with legal principles can be identified as relevant for the readers. When a decision is plainly wrong high court use their words restore the justice. Because after maintaining perfect fairness in the procedure of the court a judgment can be just plainly wrong or cannot be happening.
Actual fraud: The page about actual fraud described the history of the court from the beginning vastly evident court procedures came from judge made laws and legal principles. I have included United States case laws in that page where British precedents and equity were followed. A number of legal terms gradually flourished over time.
Legal Term: the legal term page is not completely developed but introduced on this site because every discipline has it's own language to shape the English words in practice with meanings.
PROVISIONS:
1. ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 - SECT 44 Appeals
to Federal Court of Australia from decisions of the Tribunal. MIGRATION ACT 1958 - SECT 476A Limited jurisdiction of the
Federal Court.
3. FEDERAL CIRCUIT COURT OF AUSTRALIA ACT 1999 - SECT
10AGeneral and Fair Work Divisions of the Federal Circuit Court of Australia.
FEDERAL CIRCUIT COURT OF AUSTRALIA ACT 1999 - SECT 18
Jurisdiction in associated matters. FEDERAL CIRCUIT COURT OF AUSTRALIA ACT 1999 - SECT
10Original jurisdiction--general. FEDERAL CIRCUIT COURT RULES 2001 - RULE 43.07 Preparation of
appeal papers.
4. SUPREME COURT ACT 1970 - SECT 101 Appeal in proceedings
before the Court
5. FEDERAL COURT OF AUSTRALIA ACT 1976 - SECT 30AB
5. FEDERAL COURT OF AUSTRALIA ACT 1976 - SECT 30AB
(1) An appeal under section 30AA cannot be brought from a judgment referred to
in subsection 30AA(1)
or (2) unless:
(a) the
Court or a Judge gives leave to appeal; or
(b) the appeal involves a question of law alone.
(2) An appeal under section 30AA cannot be brought from a judgment or decision of a Judge referred to in subsection 30AA(4) unless that Judge gives leave to appeal.
ERROR OF LAW:
This page is mainly aimed to gather some case laws in regards to matters
as below:
- To lodge an appeal to any court in point of identifying error of law, error of fact or a mix question. [Example decision from AAT check this Article. QUESTION OF LAW IN APPEAL: Read this article about question of law. DA COSTA v. THE QUEEN [1968] HCA 51. Read this aritcle. ]
- Understanding the legal procedure of the court in conjunction with court rules to carry on with a legal proceeding.
- Understanding legal rights of an applicant or appellant in any court.
- LEGAL PRINCIPLE: It is necessary to propose authorities or case laws those not only set or establish a legal principle in the circumstances of the case, but also apply those legal principles in the case to affirm success of the party based on those principle. Unsuccessful case does not actually apply the legal principle in favour of clement. Please be advised that some of the following precedents are considered as Ratio Decidendi in respect to a successful case and some of them are Obiter dictum in respect to persuasion arises from unsuccessful cases. I recommend that users should put reported and unreported cases on Austlii to find list of related cases to research about appropriate or most relevant case law for their individual circumstances.
- Reviewing the decision of the Registrar of a court. [jurisdiction, standing or merit,]
- Some journals may assist further in addition to journals [Sources] provided at the end of this page-(a) Post conviction , (b) Precedent report in Australia, Binding Authority [high court's power to depart], (c) High Court Bulletin, (d) Administrative law update, (d) Review and appeal in District Court. (e) Non statutory executive power, (f) Federal Court Appearance.
CASE LAW
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RELEVANCY
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1. American Administrative Law: An Overview (1996) Bernard Schwartz; At [page 21] “Substantive evidence Rule” .
2. (The Australian Gas Light Co) v Valuer General, (1940) 40 S.R. (N.S.W.) 126, at [from page 136 onward of state reports NSW Vol 40-Jordan C.J.] “Probative evidence”
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Primary fact = Substantive and probative evidence, material evidence before the court. Facts unsupported by any evidence or no evidence test.
Ultimate fact = Perspectives of law (statutory enactment) + legal principles = Drawing inferences, drawing conclusions.
Full facts not found = Error of fact. Misconstrue / Misuse / Misdirect statute = Error of law. Statutory Discretion = Error of Law Procedural Fairness = natural justice + rule of evidence.
Natural Justice (common-law / statutory) = opportunities to present case, as far as reasonably practicable = hearing limb of procedural fairness + bias or apprehended bias.
3. Inferences from primary facts are "sometimes conclusions of fact and sometimes conclusions of law." This latter approach has an attractive quality of flexibility and is the approach most supported by the [weight of authority] |
Brighton v Will, [2020] NSWSC 435
1.(Farmer) v. Cotton's Trustees, [1915] A.C. 922; Cowell Electric Supply Company Ltd v Collector of Customs (1995) 54 FCR 1.
2. (Capper Pass Ltd) v. Lawton, [I977] 1 Q.B. 852, at [8];[9]
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Misdirection in point of law: misconstruing a statutory Phrase, Statute:
1. All material facts must be fully found/ assessment must be clear without complaints?
2. Misconstruing a statute failing to take main consideration of the case into account.
(Infection theory of advocacy, not novel in point of argument with ambiguity dishonesty, miscarriage of justice, limits of the principle)
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1. Sidhu v Van Dyke [2014] HCA 19; (2014) 308 ALR 232
2. (Wentworth) v Rogers (No 5) (1986) 6 NSWLR 534
3. (Rajski) v Scitec Corporation Pty Ltd, Butterworths unreported judgments, 16 June 1986, NSWCA.
4. (Caladine) v The Commissioner, New South Wales Health Care Complaints Commission [2007] NSWCA 362 At [54],[55], [38]
5. (Tomasevic) v Travaglini & Anor [2007] VSC 337 at [4][139]-[141]
6. (Johnson) v Johnson [2000] HCA 48; (2000) 201 CLR 488
7. (National Australia Bank Ltd) v Rusu (1999) 47 NSWLR 309;
8. (Craig) v South Australia [1995] HCA 58; (1995) 184 CLR 163 at[8][3]
9. Neil v Nott [1994] HCA 23; procedural fairness to LIP.
10. WINN v STEWART BROS CONSTRUCTIONS PTY LTD [2012] SASC 150.
11. Thorne v Toowoomba Regional Council & Tytherleigh [2017] QCATA 128.
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Litigant in person: (extra care/duty of care), (procedural fairness):
1. There will be always some positive examples.
2. At least where it appears that there is a viable cause of action which, with appropriate amendment and a little assistance from the court, could result in a pleading being placed in proper form. (Natural justice)
3. Avoid procedural or substantive injustice. Issues of skills of LIP.
4. Judge has duty to advice and assists the litigant in person. (principles regarding error in exercising discretion)
5. Assistance to ensure fair trial.
6. legal advice may be given without full knowledge of the fact.
7. It can be appropriate for the court to intervene and to attribute an objection to the unrepresented party where potentially inadmissible evidence is sought to be tendered.
8. trial "should be adjourned, postponed or stayed until legal representation (was) available", At [orders]
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1. A v C-S (No1) [1955] VicLawRp 12
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Exercise of Discretion:
1. Whether on erroneous ground, too limited a ground.
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1. (Australian Broadcasting Tribunal) v -Bond (1990) 170 CLR 321 at decision [46] [56]
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Inference:
1. Drawn an inference which was not open in the primary facts.
2. Jurisdictional fact. No evidence test. The finding complained of must be identified accurately.
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2. (Solihull Corporation) v. Gas Council, [1961] 1 W.L.R. 619; MOY RIDING SCHOOL LIMITED & MARGARET AND DESMOND CORR v. THE COMMISSIONER OF VALUATION; per Mr Justice Coghlin at [29]; referred to case lawSolihull Corporation v. Gas Council, [1961] 1 WLR. 619; and stated “The issue of occupation may be and often is a pure question of fact, but in this case it is a question of mixed law and fact or a question of legal inference from the facts. The Lands Tribunal, as it seems to me, has failed to give weight to the prima facie legal inference to be derived from the fact of the owner being in possession.”
2.(Edwards) v. Bairstow, [I956] A.C. 14,
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Misdirection in point of law:
1. Failing to give sufficient weight to a prima facie legal inference.
2. By acting upon a view of the primary facts (evidence) which cannot reasonably be justified-(Weight of authority, minimum requirements to support a fact). Minimum requirements of factual support has not been made out, true and only reasonable conclusion’ contradicted in judgment. [Ex: not equitable.]
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1. (Associated Provincial Picture Houses Ltd) v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 at [4][5];
2. (Secretary of State for Education and Science) v Tameside Metropolitan Borough Council [1976] UKHL 6; [1977] AC 1014
3. (Hope) v Bathurst City Council (1980) 144 CLR 1, 10. At decision [4][17]
4. POLICE V ROGERS [2017] SASC 193.
5. (Minister for Aboriginal Affairs) v Peko-Wallsend Ltd [1986] HCA 40 at [15]
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Unreasonableness = (a) taking irrelevant, (b) excluding relevant, (c) no reasonable person will arrive to the decision.
1. Extraneous matter, Bad faith, dishonesty, a single head of unreasonableness, statutory discretion.
2. Responsibilities powers and obligations of the court, Intelligible justification, Rationality and the "rules of reason", Dishonest shame, Random preference (arbitrarily). lack an evident and intelligible justification.
3. Essential characteristics. Is it significant enough? equitable?
4. Unjust or unreasonable.
5. Scope and purpose of the Act. Weight of evidence related to actual case, decision ultra vires. [manifestly unreasonable].
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2.(Ward) v. Williams, (1955) 92 C.L.R. 496, at decision [7];
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Evidence: Exclusion of relevant evidence (material) or admission of irrelevant evidence (facts). (unreasonableness)
1. Error of law, a jurisdictional error, or a denial of natural justice. Burden of proof unfairly shifted.
2. Wrongful rejection of evidence if misconstrues the scope of its discretion.
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2.(Cf. Vine) v. Smith, [1980] 1 N.S.W.L.R. 261
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Misdirection in point of law:
1. Failing to give effect to a prescribed onus of proof.
2. Imposing on an applicant an impermissible onus of proof
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1. (Kioa) v West [1985] 159 CLR 550 At [31] per Mason J.
2. (Burwood MC) v Hervey (1995) 86 LGERA 389
3. (Bay Marine Pty Ltd) v Clayton Country Properties Pty Ltd (1986) 8 NSWLR 104 (CA).
4. (Studdder) v King (unreported, SC NSW, McLelland CJ in Eq, 4 June 1993))
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Rights & Interest: (Procedural fairness)
1. Natural justice, Rights, interests and legitimate expectations, contrary statutory intention, effects to an individual.
2. Court cannot require legal representation. Should explain problems if there was any.
3. Advice may be given about the wisdom of securing legal representation.
4. What is important is that the court should be careful that there is not a failure to claim rights or an [extinguishment of a possible claim]. Extinguish= To wipe out, make non-existent.
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1. GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Limited [2013] FCAFC 150 at [12], [36] ;
2. (Johnson) v Johnson [2000] HCA 48; (2000) 201 CLR 488. At [10]
3. (Antoun) v The Queen [2006] HCA 2; (2006) 80 ALJR 497 at [14][15][16][17][27]
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Bias: Partiality
1. Silence during argument or tentative opinion.
2. Departure from principle.
3. Success in real trial, defendant’s contribution to establish fair finding of facts. Apprehension of bias, Standards of fairness and detachment required of a trial judge.
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1.Hoveringham Gravels Ltd v. Secretary of State for the Environment, [I975] Q.B. 754.
2.(Edwards) v. Bairstow, [I956] A.C. 14 per Lord Radcliffe
3.(Australian Gas Light Co,) v. The Valuer-General, (1940) Vol 40 S.R. N.S.W.12 6 [page 136-137] per Jordan CJ.
4.R v (Hickman) [1945] HCA 53; (1945) 70 CLR 598.
5. (Brutus) v. Cozens, [I972] A.C. 854, per Lord Reid. Cited with approval by Samuels J.A.;“The proper construction of a statute is a question of law” , The true rule is: (1) it is invariably the legal meaning of an enactment that is to be applied; (2) the legal meaning usually, but not invariably, coincides with the ordinary meaning; (3) in jury cases it is for the court to direct the jury on whether this is so or not; (4) where the enactment has its ordinary meaning it is for the court to decide whether or not this needs spelling out to the jury, subject to previous rulings on the enactment in question.
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Inferences requiring the skills of a lawyer:
1. A question of law is also involved in determining an issue of causation of injury for the purposes of compensation.
2. A term which has acquired a precise definition in law.. Perversity and misconception of law. Positively wrong in law. Weight of evidence, cannot be reasonably justified, inconsistency, no special regards.
3. Where a statutory phrase involves a technical legal term (frivolous, vexatious in s13.10 FCCR).
4. Where an attempt has been made to use the vocabulary of those people in the field being regulated, it follows that the meaning to be given to the words will depend upon their special usage. Placing a wrong construction upon a statute by personal opinion[s] or illustration[s] is not permissible.
5. Examples of phrases which it has been said should bear [as invariably coincides with legal meaning] their ordinary and natural meaning include. as used like “cause of action”, expert report. (common law test). AISC licensing rules), Sham arrangement Legal advice,
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1. (Cowell Electric Supply Company Limited) v Collector of Customs [1995] FCA 1031; (1995) 127 at [5][10]
2. (Vetter) v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439; at [24][27]
3. (Monaghan HP), “Marbury and the Admistrative state” (1983) 83 (1) Columbia Law Review 1 at [26][27]
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Categories of meaningless reference:
1. Real determination of decision lies elsewhere in evidences.
2. No conclusion/relation open in the actual case to properly test the meaning of the statute.
3. Scope of the authority does not have reasonable basis in point of law.
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1. (Spurling) v Development Underwriting (Vic) Pty Ltd [1973] VicRp 1; [1973] VR 1 (28 January 1972) at [32] and onward.
2. (Commissioner of Taxation) v. Miller, (1943) 73 C.L.R. 93, at [101] per Rich J.;
3. (Brutus) v. Cozens, [I972] A.C. 854;
4. (Edwards) v. Bairstow [I9561 A.C. 14
5. (Jackson) v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612 (11 June 1987) at [11]
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Questions of degree: loosely defined
1. On no reasonable view. Natural justice. Debate.
2. All facts must be found before drawing inference about the case.
3. Use of ordinary meaning of the statute, all legal consideration may suffer from due degree of importance or precision to actual purpose of a legal proceeding.
4. Minimum requirements of factual support has not been made out, true and only reasonable conclusion’ contradicted in judgement.
5. Potential injustice and miscarriage of justice.
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Sources of above case law:
Litigant in person
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1.https://www.judcom.nsw.gov.au/publications/benchbks/civil/unrepresented_litigants.html.
Catchwords: Wentworth v Rogers, Rajski
v Scitec Corporation Pty Ltd. National Australia Bank Ltd v Rusu.
2.THE HON T F BATHURST CHIEF JUSTICE OF NEW SOUTH WALES ‘DUTIES OF BAR AND BENCH:
SOME REFLECTIONS ON CASE MANAGEMENT AND JUDICIAL BIAS’ NSW BAR ASSOCIATION
CPD CONFERENCE SATURDAY 29 MARCH 2014. Catchwords:
Caladine v The Commissioner, Johnson v Johnson.
By
R W White. Catchwords:
Sidhu v Van Dyke, Wentworth v
Rogers, Johnson v Johnson, Burwood MC v
Hervey, Bay
Marine Pty Ltd v Clayton Country Properties Pty Ltd, Studdder v King.
4.
Some ethical questions when opposing parties are unrepresented or upon ceasing to act as a solicitor. Monash Guest Lecture in Ethics 9 March 2011. Catchwords: Tomasevic v
Travaglini.
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Error of law
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1.
Advocacy and Special Leave Applications in the High Court of Australia, The Victorian Bar - Continuing Legal Education, 22 November
2004
What is question of
law by Stephen Gageler. [2014 43 australian tax review 68 page-68-74]. Catchwords: Categories of
meaningless references, qualification to qualification, Monaghan HP, Zone of discretion.
3.
ERROR OF LAW OR ERROR OF FACT? GEOFFREY A FLICK. Western
Australia law review page 193-223. Catchwords:
Primary fact, Ultimate fact, Misdirection from point of law, Inference,
Degree, Bias. Unreasonableness.
4.
The distinction between questions of fact and questions of
law in section 44 appeals to the Federal Court. [http://www.fedcourt.gov.au/digital-law-library/seminars/tax-bar-association/jennifer-batrouney] Catchwords: Unreasonableness, No
evidence test, Dishonest sham, Secretary of State for Education and Science v Tameside Metropolitan
Borough Council.
5.
Re-Examining the Bricks and Mortar: Case Law, the Doctrine
of Precedent and Contemporary Legal Education- Simon Young' (1996) (importance in a world of rapid
technological change) (page 138, 141) (Employment
law context)
6.
The problematic Proviso: The vice of Weiss by Phillip
Priest QC. [https://www.vicbar.com.au/GetFile.ashx?file=VicBarNewsFiles/The%20Problematic%20Proviso.pdf ] Catchwords: Having regards to
evidence, Substantial miscarriage of justice, unsafe and unsatisfactory, Justice
has miscarried in such cases, acquittal, serious departure from essential
requirement of the law, no proper trial has taken place, proper trial,
misdirection, conviction inevitable, departure from appropriate
rule of evidence or procedure, unreasonable, or cannot be supported
having regard to the evidence, Error-procedural or substantial leaded to a
denial of fair trial, harmless error of law, if evidence properly admitted
[comprehensive assessment] at trial,
7.
http://www.lawtimesnews.com/201005242250/commentary/social-justice-lets-address-miscarriages-of-justice-in-civil-court. Catchwords: false or
overzealous expert testimony, standard of proof, wrongful dismissal of civil
action, Judges must become better gatekeepers.
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Exercise of
Jurisdiction
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Difference by
Stephen Gageler. Catchwords:
Traditionally understood duty and jurisdiction of the court, abdication of
duty, Good faith, reasonableness, Target of the law, transgress legislated
limits, properly look for guidance, degree of discretion, proper construction
of statute, inviolable limitation,
A jurisdictional fact is paradigmatically is (1) a fact , and (2) to be found
by a court, zone of discretion. (Marbury) v. Madison, 5 U.S. 137 (1803); (Chevron USA) v. Natural Resources Defense Council, Inc; (Skidmore) v. Swift & Co., 323
U.S. 134 (1944).
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Integrity, Disqualification Bias,
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[Unreasonableness
or Rationality] Catchwords:
Actual or imputed bias. Making decision under legislation effecting others,
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