Case Law Updates

Federal Court. Can it be said that, "ordinarily disclosure of the expert's report for the purpose of reliance on it in the litigation will result in an implied waiver of the privilege in respect of the brief or instructions or documents … at least if the appropriate inference to be drawn is that they were used in a way that could be said to influence the content of the report, because, in these circumstances, it would be unfair for the client to rely on the report without disclosure of the brief, instructions or documents"?

Federal Court. In Tanielu, the Federal Court had held as follows: "[T]o determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future". Is there a prescribed way of evaluating the risk to the Australian community?

Federal Court. Is it implicit in r 2.90(2) that this provision will only be satisfied if the information in question is false or misleading in a material particular? If not, is a threshold of materiality nevertheless implied in r 2.90(3)(a)? Were the matters in the previous iteration of r 1.13A(1)(d)-(h) exhaustive? If not, does the time limitation in the previous iteration of r 1.13A(3) also apply to the other types of adverse information not exemplified in r 1.13A(1)(d)-(h)? Are the matters in r 1.13A(1)(d)-(h) necessarily adverse to the person in question?

Federal Circuit Court. Can a document that itself is genuine meet the definition of a 'bogus document' by having been fraudulently obtained?

Federal Court (Full Court). Should different passages of written submissions be considered by the AAT it in the context of the entirety of those submissions? If the AAT considers that a factor in Direction 79 weighs strongly in favour of revoking a visa cancellation, can an error in assessing that factor be material in that, had the error not been made, the factor could weighed even more strongly in favour of revocation? Was the effect of non-revocation on the Appellant's mother relevant to cll 13(2)(c), 13.3, 14(1)(b) and 14.2(1)(b) of Direction 79?

Federal Court. In determining whether it was legally unreasonable for the Tribunal not to adjourn the review, was it relevant that: the Appellants were self-represented; there was no time sensitive aspect to the Tribunal’s review, as the visa and review applications had been on foot for a long time; the Tribunal advised the Appellants only a few weeks before the hearing that it would be considering a provision not considered by the delegate? Can a request for an adjournment be implicit, depending on the circumstances?

Federal Court (Full Court). Is the power to allow an appeal by consent under s 25(2B)(b) of the Federal Court of Australia Act 1976 (Cth) dependent upon the identification, to the satisfaction of the Court, of arguable appellable error in the decision below?

Federal Court (Full Court). The Minister found that the Appellant failed to recognise that he had "psychological sexual issues relating to children". Can it be said that the "term “psychology”, acontextualised, is ambiguous in that it can refer to the scientific study of the human mind or the mental (in contrast to physical) characteristics, properties or attitudes of a person or persons"? If so, was the adjective "psychological" used by the Minister in its unscientific sense?

Federal Court (Full Court). Should the question of whether the IAA made a jurisdictional error be answered by reference to the circumstances as they existed at the time of its decision? Was the conclusion that Afghanistan had ceased to exist and the Islamic Emirate of Afghanistan had come into existence one about which judicial notice could be taken? Was the existence of a 'receiving country' a jurisdictional fact?

Federal Court. Was it permissible for the Tribunal, pursuant to cl 9.4.1(2)(a) of Direction 90, to give less weight to how long the Applicant had resided in Australia, on the basis that the offending conduct commenced when he was a minor? Could "a passage of 12 years constitute “soon after” arrival in relation to commencement of offending conduct"?