Appeal Proofing Decisions Senior Member Anne Britton

Have I…….. Correctly named and identified each party Made a decision within power Identified all relevant factual and legal issues in dispute Identified the correct statutory provision Addressed each element of the relevant statutory provisions

Applied the correct onus and standard of proof (if any) Made findings about any relevant and consequential matter in dispute Included a “because” clause answering any “why” question Addressed all significant and consequential arguments made by the losing party Made orders within power Given the parties an opportunity to make submissions if making a costs order Not relied on particular kinds of evidence Not made a stray, inconsistent statement

1. Correctly named and identified each party

2. Made a decision within power

3. Identified all relevant factual and legal issues in dispute

4. Identified the correct statutory provision Is it correct in terms of time? Are any regulations or rules relevant? If paraphrased have you “glossed up” the provision?

5. Addressed each element of the relevant provision I … it is a salutary discipline for every decision- maker to refer to the terms of the relevant statutory provisions and to identify each element of the statutory cause of action. Had the Tribunal in this case set out or paraphrased in its reasons for decision the terms of s 16 and s 19 [of the Safety, Rehabilitation and Compensation Act 1988 (Cth)] it is unlikely that it would have overlooked their critical elements. Australian Postal CorporationvBarry [2006] FCA 1751at [25] per Branson J

6. Applied the correct onus and standard of proof (if any)

7. Made findings about any relevant and consequential factual matter in dispute

8. Included a “because” clause Downes J: A “because” clause answering the question “why” must be included.

Why did I decide — The person is in need of a guardianship order: Guardianship Act 1987 The offending conduct was “because of” the claimant’s race That the correct and preferable decision is … One person’s account/expert’s opinion is preferred over another Mr Smith’s evidence was unreliable

Avoid: “Dr Bloggs said X. Dr Smith said Y. I prefer the opinion of Dr Bloggs” “Having regard to all relevant evidence and the submissions made by the parties the correct and preferable decisions is…”

[The Tribunal’s reasons for decision] …. fall on the wrong side of the line: they do not show an active intellectual engagement with the question how the factor or consideration of general deterrence was taken into account, and therefore whether it was taken into account at all, in the exercise of a discretion to cancel. Mr Lafu would be left to guess what role, if any, the issue of general deterrence had played. … Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140 at [49] …

9. Addressed all significant and consequential arguments made by losing party … … but not every irrelevant and hopeless point.

Many of the frequently repeated submissions were manifestly untenable, and many were manifestly misconceived or lacking in any substance. To address every one of the matters purported to be raised in the submissions of the appellant (written and oral) would be well nigh impossible. It is also unnecessary, because while we have considered all that the appellant put in his submissions there is no need to discuss arguments which are hopeless or inconsequential to the result in the proceedings. … we have confined these reasons to those issues with which we understand the appellant has principally concerned himself and which we see as of some significance or consequence. Bar-Mordecai v Rotman &Ors [2000] NSWCA 123 at [212]

10. Made orders within power? Are they within power? Are they clear and concise? Should the parties be given an opportunity to comment on the form of orders?

11. Given parties an opportunity to make submissions if a costs order is to be made

12. Relied on: Evidence that was not admitted? Knowledge that the parties have not an opportunity to comment on that is not common knowledge? A decision handed down after the hearing?

13. Made any stray inconsistent statements