• Any

Application dismissed with costs.

Representation:

R T Beech-Jones for the first respondent (instructed by Sparke Helmore)

No appearance for the second and third respondents

D C Rangiah for the applicant (instructed by Dominic David Stamfords)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth LawReports.

CATCHWORDS

Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen

Constitutional law - Constitutional relief - Jurisdictional error - Whether the Migration Review Tribunal made a jurisdictional error.

Practice and procedure - Constitutional relief -Migration Regulations 1994 (Cth) - Whether the applicant was entitled to have his application determined on the basis that the "special need relative" criterionwas still available.

Practice and procedure - Constitutional relief - Remitter to the Federal Court - When remitter to the Federal Court is appropriate.

Practice and procedure - Constitutional relief - Whether writ of prohibition properly sought against the Minister.

Practice and procedure - Constitutional relief - Whether writ of mandamus properly sought against the Principal Member of the MigrationReview Tribunal.

1. McHUGH J. This is an application for an injunction and for orders nisi for writs of prohibition, mandamus and certiorari. The applicantseeks these remedies in order to overturn a decision of the Migration Review Tribunal dated 21 June 2000. The application must bedismissed.

   Background and procedural history

2. The applicant, an Israeli national, met a woman, Monique Hill, in Japan in February 1997. A relationship developed between themuntil Ms Hill became pregnant to the applicant in April 1997. Ms Hill then returned to Australia, and the applicant later returnedto Israel. A boy, known as Ariel, was born on 26 December 1997.

3. The applicant came to Australia on 2 April 1998. He and Ms Hill resumed their relationship, but apparently it did not prosper. Whenthe applicant arrived in Australia, he held a visa which entitled him to stay in Australia until 2 October 1998. In September 1998,he applied for a "Family (Residence) (Class AO) visa", which the Migration Review Tribunal described as a "subclass 806 'specialneed relative' visa".

4. In January 1999, the Minister's delegate refused to grant the applicant a visa. In April 1999, a review officer affirmed the delegate'sdecision. According to the Migration Review Tribunal:

   "The ... applicant lodged an application for review with the Immigration Review Tribunal on 14 May 1999. This became an applicationfor review to the Migration Review Tribunal on 1 June 1999 by way of a transitional provision in theMigration Legislation Amendment Act (No 1)1998 [Act No 113 of 1998[1]]. The decision is reviewable by the [Migration Review] Tribunal".

5. In May 2000, the Migration Review Tribunal ("the Tribunal") heard the application. In June 2000, the Tribunal affirmed the decisionunder review.

   The legislation

6. When the applicant applied for a "Family (Residence) (Class AO) visa", subclass 806 of theMigration Regulations 1994 (Cth) relevantly provided:

   "806.21 Criteria to be satisfied at time of application

   ...

   806.213 The applicant is ... aspecial need relative of another person who:

   (a)is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and

   (b)is usually resident in Australia; and

   (c)has nominated the applicant for the grant of the visa.

   806.

7. Criteria to be satisfied at time of decision

   806.221The applicant continues to satisfy the criteria in clause 806.213." (emphasis added)

   At that time, reg 1.03 of theMigration Regulations provided:

   "'special need relative', in relation to an Australian citizen usually resident in Australia, an Australian permanent resident usually resident in Australiaor an eligible New Zealand citizen, means a relative who is willing and able to providesubstantial and continuing assistance to the citizen or resident if:

   (a)the citizen or resident has a permanent orlong-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizenor resident personally, or a member of his or her family unit; and

   (b)the assistance cannot reasonably be obtained from:

   (i)any other relative of the citizen or resident, being a relative who is an Australian citizen, an Australian permanent residentor an eligible New Zealand citizen; or

   (ii)welfare, hospital, nursing or community services in Australia." (emphasis added)

   The Tribunal's decision

8. The Tribunal held that the applicant had been "nominated" by Ariel as required by cl 806.213. It then considered whether "Arielhad a long term need for assistance because of a disability, prolonged illness or other serious circumstance affecting him personallyor a member of his family unit at the time of application and of decision".

9. The Tribunal found that there was no evidence that Ariel had a disability or a prolonged illness. It also found that Ariel was notaffected by "any serious circumstances of the order of death, disability or prolonged illness". The Tribunal noted that the applicanthad "initially relied on the fact that he was the father of Ariel as sufficient grounds to meet the definition of a special needrelative". However, the Tribunal rejected this argument. It appliedHuang v Minister for Immigration and Ethnic Affairs[2], where Hill J (with whom Jenkinson J agreed) said[3]:

   "In my opinion, the present definition of`special need relative'relevant to subclass 104 visas,should not be construed so as to include every case involving a child of tender years unable to care for himself or herself. The words 'other serious circumstances' affecting the citizen or resident personally, or a member of his or her family unit, referto circumstances similar to death, disability or prolonged illness and not to the mere fact that the citizen or resident is of tenderyears. It is hardly conceivable that the expression 'serious circumstances' should reflect merely the tender age of a person. Inso holding, I express no view as to whetherChen's case[[4]] was correctly decided on the regulations and in the context then prevailing." (emphasis added)

10. Accordingly, the Tribunal did not consider whether assistance could be reasonably obtained from a source other than the applicant.

    Proceedings in this Court

11. The applicant filed a draft order nisi on 20 July 2000. The draft order nisi sought orders against:

    .the first respondent, the "Minister for Immigration and Multicultural Affairs" ("the Minister");

    .the second respondent, "Julie Bail, Member of the Migration Review Tribunal"; and

    .the third respondent, "Sue Tongue, Principal Member of the Migration Review Tribunal".

    The orders sought

12. The draft order nisi asked the Minister to "show cause why a Writ of Prohibition and/or an injunction should not issue to the [Minister]prohibiting [him] from giving effect to or relying upon the decision of the Second Respondent dated 21 June 2000 affirming a decisionof a delegate of the [Minister]".

13. The draft order nisi asked the second respondent to "show cause why a Writ of Mandamus and/or an injunction should not issue commandingthe Second Respondent to hear and determine the [applicant's] application for the visa according to law". In the alternative, itasked the third respondent to "show cause why a Writ of Mandamus and/or an injunction should not issue compelling the Third Respondentto appoint a member of the Migration Review Tribunal other than the Second Respondent to hear and determine the [applicant's] applicationfor the visa according to law".

14. The draft order nisi also asked the second respondent to "show cause why a Writ of Certiorari should not issue removing the SecondRespondent's decision into the High Court of Australia to be quashed".

    The grounds relied upon

15. In its original form, the draft order nisi relied on the following grounds:

    "1.The Second Respondent erred in law in failing to find that the [applicant's] 2 ½ year old child was, by reason of the child'sage, a person who had a long term need for assistance because of 'disability' within the meaning of that expression inregulation 1.03Migration Regulations 1994 and that the [applicant] was therefore a 'special need relative' within the meaning of that expression inregulation 1.03.

    2.The Second Respondent erred in law in finding that the [applicant's] child was not, by reason of the child's age, a person whohad a long term need for assistance because of 'other serious circumstances' within that [sic] meaning of that expression inregulation 1.03 and that the [applicant] was therefore not a 'special need relative' within the meaning of that expression inregulation 1.03.

    3.The Tribunal erred in law in failing to consider whether the alleged psychological problems and dependence on drugs and alcoholof the mother of the [applicant's] child were or were capable of amounting to 'other serious circumstances affecting ... a member of[the citizen's or resident's]family unit' within the meaning of that expression inregulation 1.03Migration Regulations."

    Written submissions

16. Prior to the matter coming before me on 18 October 2000, the parties filed written submissions. The thrust of the applicant's writtensubmissions was thatHuang was wrongly decided or distinguishable and that the Tribunal had committed a jurisdictional error by following that decision. Themain contention of the Minister was that the matter should be remitted to the Federal Court of Australia under the power conferredbys 44 of theJudiciary Act 1903 (Cth). The Minister contended that the applicant's "only purpose in commencing proceedings in the original jurisdiction of thisCourt is to overcome the obstacle that appears to be presented byHuang". According to the Minister, "such an approach represents an attempt to circumvents 35A of theJudiciary Act".

17. In his written reply, the applicant conceded that he had "initiated proceedings in the High Court in order to avoid the applicationofsection 35A of theJudiciary Act". This was done because otherwise:

    "[The applicant] may find that ultimately he cannot obtain a decision of a Court based solely upon the merits or otherwise of hisargument. It would be difficult to succeed in the Federal Court in view of the decision ... in [Huang]. It would be difficult to demonstrate a question of public importance in an application for special leave to the High Court, sincethe subclass of special need relative visas no longer exists."

    Regulations and jurisdictional error

18. The applicant also submitted that:

    "The provisions relating to special need relative visas were repealed by theMigration Amendment Regulations SR 259 of 1999; regulation 4 and schedule 2 (commencing 31 October 1999). Under regulation 5(5) of SR 259 of 1999 if an applicationfor a Family (Residence) (Class AO) visa was made before 1 November 1999, but not finally determined, theMigration Regulations in force at that date continue to apply."

    That is, the applicant submitted that, notwithstanding the repeal of the "special need relative" criterion,by virtue of reg 5(5) of SR 259 of 1999, the matter should be determined as though the "special need relative" criterion was still in force. Regulation 5(5) of SR 259 of1999 provides:

    "If an application for a visa of one of the following classes was made before 1 November 1999, but was not finally determined ...before that date, theMigration Regulations 1994, as in force immediately before 1 November 1999, continue to apply in relation to the application:

    ...

    (c)Family (Residence) (Class AO)".

19. When the matter came before me, I informed counsel that I had doubts about the assumption on which the applicant's written submissionswere based. It appeared to me that SR 259 of 1999 did not repeal the "provisions relating to special need relative visas" becausethe "special need relative" criterion had been omitted from theMigration Regulations by SR 306 of 1998, which commenced on 1 December 1998. As a result, when SR 259 of 1999 repealed subclass 806 on 1 November 1999,that subclass did not contain the "special need relative" criterion. Moreover, reg 1.03 did not contain a definition of a "specialneed relative". That being so, if theMigration Regulationsas in force immediately before 1 November 1999 applied to the application, then arguably the applicant was not entitled to rely on the "special need relative" criterion.

20. I was also concerned that the matters relied on by the applicant did not appear to raise jurisdictional errors but (at best) mereerrors of law or fact.

21. In those circumstances, I ordered counsel to file supplementary written submissions concerning:

    "(1)whether the subclass of special need relative visas still applies to these proceedings having regard to the terms of SR 259of 1999, regulation 5(5) and the fact that the special need relative subclass of visa was removed by SR 306 of 1998, which commencedon 1 December 1998; [and]

    (2)whether the matters relied on by the applicant raise questions of jurisdictional error as opposed to mere error of law or fact."

    Amended order nisi

22. The applicant filed an amended draft order nisi, which contained a new ground 3 in place of that set out above:

    "The Second Respondent failed to take into account a relevant consideration, namely the inability of the child to care for himselfby reason of his age."

    The issues

23. This application raises three issues for decision:

    1.Is the applicant entitled to have his application determined on the basis that the "special need relative" criterion is available?

    2.Has the applicant shown an arguable case of jurisdictional error that would justify the grant of an order nisi?

    3.Should the matter be remitted to the Federal Court?

    The "special need relative" criterion is still available

24. In his supplementary written submissions, the applicant:

    "... conceded that the Applicant's previous submission that SR 259 of 1999 applied to special need relative visas was wrong. Theexpression 'Family (Residence) (Class AO)' visas in regulation 5(5) does not refer to special need relative visas."

25. Both the applicant and the Minister submitted that the applicant was entitled to have his matter determined on the basis that the"special need relative" criterion was still in force. In my view, this submission should be accepted for two reasons.

26. First, reg 5(5) of SR 259 of 1999 provides that, if an application has not been finally determined, the regulations "as in forceimmediately before 1 November 1999,continue to apply in relation to the application" (emphasis added). If the regulations "as in force immediately before 1 November 1999" didnot apply to the application before 1 November 1999, which is arguably the case in relation to the present application, then theword "continue" in reg 5(5) seems to suggest that reg 5(5) does not apply to the applicant's application.

27. Second, s 50 of theActs Interpretation Act 1901 (Cth) provides:

    "Where an Act confers power to make regulations, the repeal of any regulations which have been made under the Act shall not, unlessthe contrary intention appears in the Act or regulations effecting the repeal:

    (a)affect any right, privilege, obligation or liability acquired, accrued or incurred under any regulations so repealed; or

    (b)affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any regulations so repealed;or

    (c)affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty,forfeiture or punishment;

    and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeitureor punishment may be imposed, as if the repealing Act or regulations had not been passed or made."

28. InEsber v The Commonwealth[5], this Court considered ss 8(c) and (e) of theActs Interpretation Act, which are in similar terms to ss 50(a) and (c), but which deal with the repeal of an Act rather than a regulation. InEsber, the appellant had challenged in the Administrative Appeals Tribunal a decision by a delegate of the Commissioner for Employees'Compensation not to allow the appellant to convert weekly compensation payments into a lump sum. Mason CJ, Deane, Toohey and GaudronJJ noted that the first step in a consideration of s 8 (and therefore of s 50) is to identify the right which was acquired or accruedunder the repealed Act (here a repealed regulation)[6]. Their Honours held that[7]:

    "Once the appellant lodged an application to the [Administrative Appeals] Tribunal to review the delegate's decision, he had a rightto have the decision of the delegate reconsidered and determined by the [Administrative Appeals] Tribunal. It was not merely 'apower to take advantage of an enactment'[8]. Nor was it a mere matter of procedure[9]; it was a substantive right[10]. Section 8 of theActs Interpretation Act protects anything that may truly be described as a right, 'although that right might fairly be called inchoate or contingent'[11]. This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence ofa contrary intention, the right was protected by s 8 of theActs Interpretation Act and was not affected by the repeal of the 1971 Act."

    In this case, SR 306 of 1998 removed the "special need relative" criterion on 1 December 1998. This wasafter the applicant had made his application for a visa on 4 September 1998, but before the Minister's delegate refused to grant the visaon 19 January 1999.

29. In my view, the applicant had a relevant "right" by virtue ofs 65(1) of theMigration Act 1958 (Cth). That sub-section relevantly provides:

    "After considering a valid application for a visa, the Minister:

    (a)if satisfied that:

    ...

    (ii)the ... criteria for it prescribed by this Act or the regulations have been satisfied;

    ...

    is to grant the visa; or

    (b)if not so satisfied, is to refuse to grant the visa."

    InChen Shi Hai v Minister for Immigration and Multicultural Affairs, Gleeson CJ, Gaudron, Gummow and Hayne JJ said[12]:

    "[A]lthough the Minister's satisfaction (or, in the case of the Tribunal, its satisfaction) is still required,s 65(1) imposes an obligation to grant a visa, as distinct from conferring a power involving the exercise of a discretion. The satisfactionthat is required is a component of the condition precedent to the discharge of that obligation[13]."

    Assuming that the applicant made a "valid application for a visa" within the meaning ofs 65(1) on 4 September 1998, the Minister was therefore obliged to grant the applicant a visa if (inter alia) he was satisfied that "the... criteria for it prescribed by ... the regulations have been satisfied". Accordingly, the applicant had a right to be granteda visa if the Minister was satisfied of all of thes 65(1) factors, including the "special need relative" criterion. Unless the contrary intention appears in SR 306 of 1998, it follows that:

    .the removal of the "special need relative" criterion did not affect the right which I have just described;

    .the removal of the "special need relative" criterion did not affect any legal proceeding or remedy in respect of the right; and

    .the applicant was entitled to institute any legal proceeding or remedy in respect of the right as if SR 306 of 1998 had not beenmade.

30. In my view, the Minister was correct to concede that "no such contrary intent is manifest by either StatutoryRule 306 of 1998 or StatutoryRule 259 of 1999".

    There was no arguable case of jurisdictional error

31. The amended draft order nisi relied on three grounds:

    .the Tribunal erred by not finding that the applicant's son had a "disability" within the meaning of reg 1.03 because he was young;

    .the Tribunal erred by not finding that the applicant's son faced an "other serious circumstance" within the meaning of reg 1.03 becausehe was young;

    .the Tribunal failed to take into account a relevant consideration, namely that the applicant's son could not care for himself becausehe was young.

32. It is convenient to deal with the third ground first. The failure to take into account relevant considerations can constitute ajurisdictional error[14]. But the Tribunaldid consider the fact that the applicant's son was young. It held, however, that this fact, of itself, did not mean that the applicant'sson was a special need relative. While the applicant disagrees with this conclusion, the Tribunal did not fail to consider his son'sage.

33. The first and second grounds assert that the Tribunal erred by failing to find that the applicant's son's age was a "disability"or "other serious circumstance". These grounds involve a submission thatHuang, which the Tribunal followed, was wrongly decided or distinguishable.

34. While, perhaps, it did not do so in terms, it is clear from the Tribunal's reasons that it asked itself whether the applicant's son'sage constituted a "disability" or "other serious circumstance". It answered these questions in the negative because, followingHuang, it was of the view that age, of itself, did not constitute a "disability" or "other serious circumstance". Accordingly, the Tribunaldid not "identify a wrong issue [or] ask itself a wrong question"[15]. It is the answer, and not the question, to which the applicant objects.

35. The applicant submits that the Tribunal "misunderstood the nature of the opinion which [it] is to form"[16]. He submits that the Tribunal did not understand the true meaning of "disability" and "other serious circumstance" in the definitionof "special need relative" in reg 1.03. But, assuming that the Tribunal erred in determining the meaning of these expressions becauseit applied an erroneous precedent in determining the meaning of "disability" and "other serious circumstance", it does not followthat it committed a jurisdictional error. Adopting an incorrect interpretation is not always synonymous with jurisdictional error. Nor does it make a difference to the validity of that proposition that the relevant tribunal has applied an erroneous precedentrather than adopting its own erroneous interpretation.

36. The Tribunal understood the question that it had to answer. Even if it applied an erroneous precedent, it did not commit a jurisdictionalerror. The expressions "disability" and "other serious circumstances" were used in reg 1.03 in their ordinary, non-technical sense. The ordinary meaning or common understanding of a non-technical word is generally a question of fact[17]. Leaving aside questions of jurisdictional fact, an administrative tribunal will ordinarily not commit a jurisdictional error unlessit has made an error of law[18]. A factual error made in the course of making a determination or decision is unlikely to be a jurisdictional error unless the particularfact is a jurisdictional fact. Courts should be slow to find that an erroneous finding of fact or an error of reasoning in findinga fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it hadto decide that its error constituted a jurisdictional error.

37. If an administrative tribunal applies a wrong legal test or asks itself or decides a wrong legal question, it may be a short stepto concluding that it did not decide the question that it had to decide. But questions of fact are ordinarily for an administrativetribunal to determine and so are the reasoning processes employed to make such findings. Disagreement with a finding of fact orthe reasoning process used to find it is usually a slender ground for concluding that a tribunal misconceived its duty.

38. Even ifHuang was wrongly decided, which I doubt, the Tribunal did not commit a jurisdictional error. At worst, it made an error of fact because,by applyingHuang, it erroneously reasoned that Ariel did not have "need for assistance because of a disability, prolonged illness or other seriouscircumstance"[19]. I do not think that applying a case that wrongly decides a question of fact - the meaning of a non-technical word - can be equatedto applying a wrong legal test.Huang decided a question of fact, not a question of law. If the Tribunal had adopted the meanings given inHuang, but without reference to that case, it would not have made a jurisdictional error. It makes no difference that it usedHuang as its dictionary instead of interpreting the expressions itself.

39. It follows that the applicant has not demonstrated an arguable case of jurisdictional error. His application must be dismissed.

    Remitter to the Federal Court

40. In light of the conclusion which I have reached regarding jurisdictional error, it is unnecessary to consider whether, in all thecircumstances, the application should be remitted to the Federal Court. However, given the manner in which the applicant has conductedhis case, it is appropriate to note that, unless there is something special or urgent about an application, ordinarily this Courtwill remit it to the Federal Court (so long as it has jurisdiction to hear it). The fact that there is a decision of a Full Courtof the Federal Court which is contrary to the applicant's position, and which is likely to be followed by a judge of the FederalCourt sitting alone, willnot usually be a reasonnot to remit the matter to the Federal Court. It should be remembered that[20]:

    "One of the principal reasons for the setting up of the Federal Court in 1976 was the recognition that, with more and more mattersarising under laws of the Parliament, this Court could not act as a federal trial court and still have adequate time for researchand reflection in respect of the important matters falling within its constitutional and appellate jurisdiction."

    Relief sought

41. In this case, the applicant sought (inter alia) prohibition against the Minister and mandamus against the third respondent. As wasthe situation inRe Ruddock; Ex parte Reyes[21], there can be no suggestion that the Minister has done anything which could justify a writ of prohibition being issued against him.If writs of mandamus and certiorari were issued against the Tribunal then, in an appropriate case, the proper remedy would be toinjunct the Minister. Similarly, there is no suggestion that the third respondent has done anything which would justify a writ ofmandamus being issued against her. A writ of mandamus may issue if, at some future time, the third respondent failed to appointa person to carry out the duties of the Tribunal.

    Order

42. The application must be dismissed with costs.

[1] Item 41(1) of Sched 1 to Act No 113 of 1998 provides:

"For the purposes ofPart 5 of theMigration Act1958 as amended by this Act, if:

(a)before the commencement of this Schedule, an application had been properly made undersection 347 of that Act for review of a decision; and

(b)the applicant had not been given a statement relating to the review undersection 368 of that Act before that commencement;

the application is taken to be an application properly made, on the day of that commencement, undersection 347 of that Act as amended by this Act."[2]

(1996) 71 FCR 95.

[3] (1996) 71 FCR 95 at 99. See also at 101 per Lehane J.

[4]Chen v Minister for Immigration and Ethnic Affairs [No 2][1994] FCA 1177; (1994) 51 FCR 322.

[5][1992] HCA 20; (1992) 174 CLR 430.

[6][1992] HCA 20; (1992) 174 CLR 430 at 439.

[7][1992] HCA 20; (1992) 174 CLR 430 at 440-441.

[8]Mathieson v Burton[1971] HCA 4; (1971) 124 CLR 1 at 23 per Gibbs J; and seeRobertson v City of Nunawading[1973] VicRp 81; [1973] VR 819.

[9] SeeNewell v The King[1936] HCA 50; (1936) 55 CLR 707 at 711-712.

[10] See, by way of analogy,Australian Coal and Shale Employees Federation v Aberfield Coal Mining Co Ltd[1942] HCA 23; (1942) 66 CLR 161 at 175, 178, 185, 194;Colonial Sugar Refining Co v Irving[1905] AC 369 at 372-373.

[11]Free Lanka Insurance Co Ltd v Ranasinghe [1964] AC 541 at 552; see alsoContinental Liqueurs Pty Ltd v G F Heublein and Bro Inc[1960] HCA 37; (1960) 103 CLR 422 at 426-427;Director of Public Works v Ho Po Sang [1961] AC 901.

[12][2000] HCA 19; (2000) 74 ALJR 775 at 782[41];[2000] HCA 19; 170 ALR 553 at 563.

[13]Minister for Immigration and Multicultural Affairs v Eshetu(1999) 197 CLR 611.

[14]Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at 412 [36]; 168 ALR 407 at 417.

[15]Craig v South Australia[1995] HCA 58; (1995) 184 CLR 163 at 179.

[16]R v Connell; Ex parte The Hetton Bellbird Collieries Ltd[1944] HCA 42; (1944) 69 CLR 407 at 432 per Latham CJ.

[17]Hope v Bathurst City Council[1980] HCA 16; (1980) 144 CLR 1;Collector of Customs v Agfa-Gevaert Ltd[1996] HCA 36; (1996) 186 CLR 389.

[18] cfCraig v South Australia[1995] HCA 58; (1995) 184 CLR 163 at 179.

[19] cfR v The District Court; Ex parte White[1966] HCA 69; (1966) 116 CLR 644 at 654.

[20]Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at 407 [10]; 168 ALR 407 at 410.

[21] [2000] HCA 66.