Federal Court. Does the High Court's decision in SAAP remain authority for the proposition that "a failure by the Tribunal to comply with either ss 359A or 424A of the Act constitutes a jurisdictional error that results in the invalidity of the Tribunal’s decision", despite Hossain, SZMTA and MZAPC? Should the primary judge have refused the judicial review application on the basis that upholding that application would have no utility, as the error in question was immaterial?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Did the majority of the High Court in SAAP hold that any error to comply with s 424A would constitute a jurisdictional error?
Question 2: Did any of the majority justices in SAAP suggest that a breach of s 424A would only amount to a jurisdictional error if the breach was material?
Question 3: If the answer to Question 1 is 'yes', does that answer sit uncomfortably with the reasoning in Hossain, SZMTA and MZAPC concerning the implication of a threshold of materiality?
Question 4: Does a single judge of the FCA sitting in the appellate's jurisdiction from a decision of the Circuit Court sit as the Full Court of the FCA?
Question 5: Does SAAP remain authority for the proposition that "a failure by the Tribunal to comply with either ss 359A or 424A of the Act constitutes a jurisdictional error that results in the invalidity of the Tribunal’s decision"?
Question 6: According to the FCA, "Leave to argue a new ground of appeal not raised before the primary judge should only be granted if it is 'expedient in the interests of justice to do so'". Can the same be said concerning leave to raise a contention which was not raised before the primary judge?
Question 7: Can it be said that the Minister did not suffer any prejudice by the First Respondent raising an issue and filing an affidavit for the first time on appeal, as it was open to the Minister to cross-examine the deponent and file a notice to produce in the FCA on the assumption that he may be granted leave to adduce evidence on appeal?
Question 8: Will the FCA's discretion under s 27 of the Federal Court of Australia Act 1976 (Cth) to receive evidence on appeal generally be exercised favourably to the party seeking to adduce it if the FCA is satisfied of two matters: "first, that the evidence in question could not, with the exercise of reasonable diligence, have been adduced in the court below; and second, that if the evidence had been adduced, it might have led to a different result"?
Question 9: Is it incumbent upon a judge to consider whether it is or is not appropriate to exercise the discretion to grant or withhold the relief sought on the basis of futility, even if a respondent to judicial review proceedings does not put that in issue?
Question 10: If the answer to Question 9 is 'yes', should the primary judge have refused the judicial review application on the basis that to uphold that application would have no utility, as the error in question was immaterial?
Question 11: Is the discretion to refuse relief only enlivened if there was an independent reason for the Tribunal dismissing the review?
The FCA answered those questions as follows:
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