Minister for Aboriginal Affairs v Peko-Wallsend Ltd
162 CLR 2466 ALR 299
(Judgment by: Dawson J)
Between: Minister for Aboriginal Affairs
And: Peko-Wallsend Ltd
Judges:
Gibbs CJ
Mason J
Brennan J
Deane J
Dawson J
Judgment date: 31 July 1986
Canberra
Judgment by:
Dawson J
I agree with Mason J., for the reasons which he gives, that the appellants ought not to succeed in this appeal. The Minister was bound to take into account the submission containing information that Ranger 68 was located wholly within the area recommended for grant. He did not do so and for that reason failed to take a relevant consideration into account in the exercise of the power vested in him by the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).
I desire only to add a few words upon the way in which appellate courts will refuse to interfere with the exercise of a discretion by the court below except upon the basis of well-established principles.
In this case the discretion was that conferred by s 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) to grant or withhold relief and it was exercised on appeal by the Full Court of the Federal Court rather than by the primary judge, judgment at first instance having been given against the respondents upon the merits so that the question of the exercise of the discretion was not reached.
In considering whether there should be any interference with a discretionary judgment it is ordinarily the judgment of the judge at first instance which is in question, although that is not necessarily so as this case demonstrates. The principles to be applied have frequently been stated and are to be found in House v. The King (1936) 55 CLR 499 , at pp 504-505:
"It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
See also Australian Coal and Shale Employees' Federation v. The Commonwealth (1953) 94 CLR 621 , at p 627; De Winter v. De Winter (1979) 23 ALR 211 , at pp 216-217; Gronow v. Gronow (1979) 144 CLR 513 , at pp 519-520; Mallet v. Mallet (1984) 58 ALJR 248, at pp 252, 255, 260-261; 52 ALR 193 , at pp 200-201, 206-207, 216-217; Norbis v. Norbis (1986) 60 ALJR 335, at pp 336-337, 344; 65 ALR 12 , at pp 14-15, 27.
Where an exercise of discretion has taken place in an appellate court no different rule applies upon appeal to this Court: see King v. Ivanhoe Gold Corporation Ltd. (1908) 15 CLR 137 , at pp 143, 146; Leeder v. Ellis (1952) 86 CLR 64 , at pp 70-71. As a matter of law, the appellate jurisdiction of this Court would extend to the reversal of a discretionary judgment: Judiciary Act 1903 (Cth) s 37, cf. Kent Coal Concessions, Limited v. Duguid [1910] AC 452 , at p 453. But it is in accordance with well-recognized practice that it will only exercise its jurisdiction for such a purpose where there has been some identified error or manifest injustice in the exercise of the discretion. The real reason for the practice is that there can be no justification for the mere substitution of one discretion for another and that reason applies equally whether the exercise of the discretion is by a judge at first instance or an appellate court (see Storie v. Storie (1945) 80 CLR 597 , at p 600; Lovell v. Lovell (1950) 81 CLR 513 , at p 519). Of course, there may be an additional reason for the practice where the judgment is that of a primary judge in that he may have had the advantage of seeing and hearing witnesses and forming an estimate of their credibility: Lovell at p 534, per Kitto J. But the latter consideration can have no relevance in the present case where the observance of witnesses played no part in the exercise of the discretion. The practice nevertheless applies and this Court will not merely substitute the exercise of its discretion for that of the court below. I should add that, for my part, I have no reason to think that were this Court to do so, it would come to any different conclusion.
I would dismiss the appeal.