mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Capital Territory v Alphaone Pty Ltd (1994) 49 FCR 576
Outcome: cited
In my view, there was no obligation on the part of Tribunal to inform Mr Green of its views regarding his credibility and the weight which it was prepared to give his evidence. The Tribunal's conclusion as to his credibility was part of its reasoning and thought processes in relation to the determination of the whole matter, and thus was not required to be put to Mr Green: see Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592. Although it was for the Tribunal to weigh Mr Green's evidence and in so doing form a view as to his credibility, the reasoning involved in this task did not need to be signalled. 39 Secondly, it is said that the Tribunal ought to have sought further evidence from persons who made statements but were not called to give oral evidence. The Tribunal observed in its reasons at [66] that: 'It was notable that none of the people most closely involved with the applicant his father, his son, his step-mother, his sister and his de facto gave evidence at the hearing. [His son] and [his de facto] apparently attended the hearing, however.' 40 There was no requirement, in my view, that the Tribunal seek further evidence from these persons. If Mr Green wished to adduce evidence from these persons, he had a full opportunity to do so. Given that Mr Green chose not to call them, it is not appropriate to expect the Tribunal to seek any further evidence on the basis that they may be able to provide some useful information.
Case: Kay v Comcare [2006] AATA 50
Outcome: cited
The applicant submits that the logical consequence of the application of Wiegand 72 ALD 795 had been demonstrated by the Tribunal's decision in another case ( Kay v Comcare [2006] AATA 50): While I am satisfied that various incidents occurred which Ms Kay perceived as harassment or discrimination, I accept the conclusion reached by Dr Duldig [that there was no evidence of workplace harassment]. However, it was also submitted that, even if there had been no actual harassment, it was sufficient that Ms Kay believed that this was occurring and that this perception was sufficient to establish the causal association under the Act . I also accept that submission: see Rodriguez and Telstra Corporation Ltd [2002] FCA 1400 and Wiegand v Comcare (2002) 72 ALD 795. 38 According to the applicant, while it is possible for a disease to arise whilst an employee is physically at the workplace and equally possible that an event in the workplace may by an unreasonable perception lead to the development of a disease, in such cases it cannot be said, without more, that the Commonwealth employment has contributed in a "material degree" to the disease, or an aggravation of the disease. 39 The applicant argues that the proper construction of the term "disease" in s 4 requires that the Commonwealth work of the claimant must make a material contribution to the ailment or the aggravation. That in turn requires that the work with the Commonwealth, rather than an unreasonable perception of the work, be the material contribution. The applicant submits that support for this construction can be found in the second reading speech of the Bill which introduced the Act . The relevant Minister then said: Under the existing Act an employee was required to establish only that his or her employment was a contributing factor in the contraction of a disease. ... It is intended that the test will require an employee to demonstrate that his or her employment was more than a mere contributing factor in the contraction of the disease. Accordingly, it will be necessary for an employee to show that there is a close connection between the disease and the employment in which he or she was engaged.
Case: Comcare v Canute [2005] FCAFC 262 ; (2005) 148 FCR 232
Outcome: applied
This matter was considered by a majority (French and Stone JJ) of the Full Court of this Court in Comcare v Canute [2005] FCAFC 262 ; (2005) 148 FCR 232 and by Finn J in Comcare v Sahu-Khan [2007] FCA 15 ; (2007) 156 FCR 536. I respectfully agree with what their Honours have said. 48 The legislative history is that in the antecedent 1971 Act (the Compensation (Commonwealth Government Employees) Act 1971 (Cth)) the definition of disease did not require a "material" contribution by the employment. In Treloar v Australian Telecommunications Commission (1990) 26 FCR 316, the Full Court had diminished the significance to be accorded to the term "material" in the 1988 (and current) Act, saying (at 323) that all it required was "that features of the employment did in fact and in truth contribute to the condition complained of" and that "[o]nce the link is established, however, it matters not that the contribution be large or small". In Canute [2005] FCAFC 262 ; 148 FCR 232 the majority considered that that approach failed to have regard to the legislative history and the Minister's statement in the second reading speech to the Bill which became the 1988 Act, that the new test, constituted by the qualification of the contribution that it be "material", "will require an employee to demonstrate that his or her employment was more than a mere contributing factor in the contraction of the disease " (emphasis added).
Case: Comcare v Sahu-Khan [2007] FCA 15 ; (2007) 156 FCR 536
Outcome: applied
This matter was considered by a majority (French and Stone JJ) of the Full Court of this Court in Comcare v Canute [2005] FCAFC 262 ; (2005) 148 FCR 232 and by Finn J in Comcare v Sahu-Khan [2007] FCA 15 ; (2007) 156 FCR 536. I respectfully agree with what their Honours have said. 49 In Sahu-Khan [2007] FCA 15 ; 156 FCR 536 at [15] - [16] , Finn J concluded: There are, in my view, obvious hazards in allowing finely nuanced differences in dictionary definitions to contrive the answer to this question, given as I have noted, that the word "material" in this context had its legislative meaning set in part by the qualification it imposed on the nature of the contribution required to be demonstrated before the provisions of the SRC Act were engaged. This said I consider that one of the meanings of the word "materially" in the Shorter Oxford English Dictionary probably captures the essence of what the legislature was conveying. That meaning is "4. In a material degree; substantially, considerably." An example given of this usage is that of contributing "materially to the funds required" for a purpose. This usage probably comes closer to what Davies J in Bendy described (at 325) as the "loose sense" of the definition of "material" in the Macquarie dictionary " namely, 'of substantial import or much consequence' [rather than the] legal sense of 'pertinent' or 'likely to influence '". Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition: (i) requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act; (ii) "in a material degree" requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee's employment did or did not contribute materially to the suffering of the ailment, etc, in question ("the threshold evaluation"); (iii) whether this will be so in a given case will be a matter of fact and degree. (Emphasis in original.) 50 Insofar as observations in Wiegand 72 ALD 795 may suggest that some less onerous view of "in a material degree" than that just discussed is appropriate, then such observations should, in my view, no longer be followed.
Case: Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Outcome: discussed
The legislative history is that in the antecedent 1971 Act (the Compensation (Commonwealth Government Employees) Act 1971 (Cth)) the definition of disease did not require a "material" contribution by the employment. In Treloar v Australian Telecommunications Commission (1990) 26 FCR 316, the Full Court had diminished the significance to be accorded to the term "material" in the 1988 (and current) Act, saying (at 323) that all it required was "that features of the employment did in fact and in truth contribute to the condition complained of" and that "[o]nce the link is established, however, it matters not that the contribution be large or small". In Canute [2005] FCAFC 262 ; 148 FCR 232 the majority considered that that approach failed to have regard to the legislative history and the Minister's statement in the second reading speech to the Bill which became the 1988 Act, that the new test, constituted by the qualification of the contribution that it be "material", "will require an employee to demonstrate that his or her employment was more than a mere contributing factor in the contraction of the disease " (emphasis added).
Case: Westgate v Australian Telecommunications Commission (1990) 17 FCR 235
Outcome: cited
However, the Tribunal is not shown to have applied any such unduly generous test: the Tribunal relied on Wiegand 72 ALD 795 only to reject the applicant's assertion that it needed to be shown that the workload required of Ms Caire was "excessive". In that regard, in my opinion, von Doussa J's approach in Wiegand 72 ALD 795 was correct, and there was no error of law arising from the Tribunal's reliance on it. An alleged contribution which is merely imagined by the employee, in circumstances where the employment was in truth, in the apt phrase of Davies J in Westgate v Australian Telecommunications Commission (1987) 17 FCR 235, an "inert" factor will plainly not suffice. But that was expressly acknowledged in Wiegand 72 ALD 795 at [24] and [25] and there was no suggestion to the contrary here. 52 Nothing the Tribunal said denies that some aspect of the employment must make an actual contribution to the ailment in question, which must be a contribution in a material degree. The Tribunal found as a matter of fact that Ms Caire had to fulfil from time to time "a heavy workload" notwithstanding ameliorative effects on behalf of the applicant. Whether such workload warranted the epithet "excessive" was, as the Tribunal observed, immaterial. Nor is this a case where any error through application of some wrong concept of "in a material degree" should be inferred. The Tribunal did not decide the matter on the basis that an actual but bare contribution would suffice. It is clear that the Tribunal found that there was an important contribution to the upper limb disease by the keyboard work actually undertaken by Ms Caire. The dispute before the Tribunal had been one about whether there was much of any such work undertaken by her. 53 It may be said at the outset that s 7(7) embodies such a draconian concept that it may be doubted whether its terms do not exceed what might be thought to be any rational underlying policy. Counsel for the applicant in submissions suggested that: Section 7(7) is intended to ensure that a claimant seeking the protection of beneficial legislation does so with honesty, truthfulness and openness. Such qualities are essential to ensure the proper administration of public funds, particularly in the context of legislation which is beneficial and not adversarial.
Case: Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-119
Outcome: referred to
Nor can it be said that the decision was so unreasonable that no reasonable decision-maker could properly have arrived at it: see Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-119. See also Minister for Immigration v Eshetu [1999] HCA 21 ; (1990) 197 CLR 611 at [130] - [138] .
Case: Kioa v West [1985] HCA 81 ; (1981) 159 CLR 550
Outcome: referred to
Mr Rivera relies upon the well-known statement of principle of Mason J in Kioa v West [1985] HCA 81 ; (1981) 159 CLR 550 at 587. His Honour there stated that if a decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by an applicant, there may be a case for saying that procedural fairness requires he be given an opportunity to respond. 24 However, the substance of Mr Rivera's complaint under this ground is that there were matters passing between the Department of Corrective Services ("the DCS") and the Commission of which Mr Rivera was not on notice. He submitted that it is to be inferred from the fax of 30 August 2007 that there must have been other communications between the DCS and the Commission, possibly oral communications of which Mr Rivera was not aware. 25 The short answer to this ground is that Mr Rivera was well on notice of the critical issue or factor on which the decision of 13 September 2007 turned. He was informed in the letter of 30 May 2007 that the President may decline to continue the inquiry if the President were to form the opinion that a more appropriate remedy was available in civil litigation seeking damages.
Case: Minister for Immigration v Eshetu [1999] HCA 21 ; (1990) 197 CLR 611
Outcome: referred to
Nor can it be said that the decision was so unreasonable that no reasonable decision-maker could properly have arrived at it: see Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-119. See also Minister for Immigration v Eshetu [1999] HCA 21 ; (1990) 197 CLR 611 at [130] - [138] .
Case: Sebel Furniture Limited v Acoustic &amp; Felts Pty Limited (No 2) [2009] FCA 291
Outcome: related
will be apparent from the judgment which I delivered a short time ago ( Sebel Furniture Limited v Acoustic &amp; Felts Pty Limited (No 2) [2009] FCA 291), my associate was notified yesterday afternoon that the applicant would seek leave to discontinue all of the claims previously made by it, with the exception of those set out in subparagraphs 3(a), 3(b) and 3(c) of the Amended Application filed on 23 December 2008. That intention had been communicated to the solicitors for the respondent somewhat earlier in a facsimile transmission dated 24 March 2009. After I announced my decision on the disqualification application, Counsel for the applicant sought leave to discontinue the proceedings in the particular respects set out in the Notice of Discontinuance dated today, signed by Mr Whitehead and handed up to me. There is no opposition from the solicitor for the respondent to the leave to discontinue sought by the applicant being granted by me and I grant that leave. The Notice of Discontinuance may be filed in Court.
Case: Sebel Furniture Limited v Acoustic &amp; Felts Pty Limited [2009] FCA 6
Outcome: related
will be remembered that, on 12 January 2009, when I delivered judgment on the applicant's interlocutory application ( Sebel Furniture Limited v Acoustic &amp; Felts Pty Limited [2009] FCA 6) , I made an order for costs in respect of that application, the terms of that particular order being: The applicant pay the respondent's costs of and incidental to the interlocutory hearing which took place before the Court on 23 December last. I have been informed that no further evidence has been filed by either party since the last directions hearing which was held on 5 February 2009. This is not a matter of criticism, as it seems that the parties have been attempting to resolve the matter. I think that costs to date will have been incurred in relation to three broad subject matters, namely: (1) Work done in relation to the interlocutory hearing; (2) Work done on the balance of the proceedings (including the disqualification application but excluding the interlocutory hearing and excluding the Cross-Claim); and (3) Work done in relation to the Cross-Claim.
Case: Austin v Deputy Secretary, Attorney-General's Department (1986) 12 FCR 22
Outcome: referred to
I would add that even if I had come to the contrary view on the denial of procedural fairness ground, with the consequence that the Tribunal's decision was infected with error of law, I would nevertheless have dismissed the appeal because I consider that the Tribunal's decision in respect of 3D's application was clearly correct on the material before it: see Austin v Deputy Secretary, Attorney-General's Department (1986) 12 FCR 22 at 26 27; McAuliffe v Secretary, Department of Social Security [1991] FCA 268 ; (1991) 23 ALD 284 at 295 296, affirmed at [1992] FCA 483 ; (1992) 28 ALD 609 at 618 619; State Rail Authority of New South Wales v Collector of Customs [1991] FCA 610 ; (1991) 33 FCR 211 at 217. Courts do not remit matters for reconsideration where it is futile to do so: Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560 562 per Sackville J; Tankey v Adams [2000] FCA 1089 ; (2000) 104 FCR 152 at 182.
Case: Birdseye v Australian Securities and Investment Commission [2003] FCAFC 232 ; (2003) 76 ALD 321
Outcome: cited
These grounds of appeal provide no foundation to sustain this appeal. For a start, they do not raise pure questions of law and that is what is required to found an appeal to this Court from a decision of the Tribunal pursuant to s 44 of the AAT Act: Birdseye v Australian Securities and Investment Commission [2003] FCAFC 232 ; (2003) 76 ALD 321 at [18] per Branson and Stone JJ. At best, they are mixed questions of fact and law; at worst, pure questions of fact. 13 Second, even if these grounds of appeal did raise pure questions of law, they are ill conceived. There are no errors of the kind alleged. During the course of argument, Senior Counsel for 3D conceded, contrary to 3D's written submissions at [20], that the identity of the payee of an outgoing could be relevant, if not determinative, to whether the outgoing was an allowable deduction to the payer. For example, in the facts of the present case, without knowing the identity of the payee, one would have no way of testing whether the outgoings were being made to the owner of the equipment; that would be relevant to a determination of the proper characterisation of the outgoings; in other words, what they were paid for. 14 Third, having regard to the way in which 3D advanced its case in the Tribunal, namely, that the outgoings were paid to Mr Borg for the hire/purchase of equipment from MSH, and in the complete absence of any evidence that such equipment was hired/purchased from any other person, the Tribunal's findings that neither MSH nor Mr Borg existed is determinative of the s 8-1 issue. As the Tribunal concluded, 3D failed to discharge the onus it carried. 15 The Tribunal was said to have erred in law in taking into account a number of allegations/assertions made by the Commissioner in his submissions, which are Annexure A to the Tribunal's reasons, as to the integrity of the Price Spreadsheets and related documentation where those assertions/allegations were not put to Mrs Lynette Montgomery ('Mrs Montgomery') or any other witness in cross-examination by the Commissioner. This, it is said, involved the Tribunal in failing to accord procedural fairness to Mrs Montgomery and the other witnesses for 3D.
Case: BTR Plc v Westinghouse Brake and Signal Co (Australia) Ltd (1992) 26 ALD 1 
Outcome: referred to
The Commissioner submitted that, while it is true that if the Tribunal finds facts for which there is no evidence, its decision will be subject to error, in the present circumstances, the error could not have affected the outcome. That is, where the Tribunal has made an error of law, but the error is immaterial, its decision will not be set aside for that reason: Kumagai Gumi Co Ltd v Commissioner of Taxation [1999] FCA 235 ; (1999) 90 FCR 274 at [53] . Reliance was placed on what was said by Lockhart and Hill JJ in BTR Plc v Westinghouse Brake and Signal Co (Australia) Ltd (1992) 26 ALD 1 at 7 that: '[I]t will not be enough for an applicant to demonstrate that the Tribunal mis-stated the law in the course of its reasons, if that mis-statement could not have affected its decision. The task of the court on an appeal under s 44(1) is essentially to undertake judicial review of the tribunal's decision. An immaterial error of law will not vitiate the decision of the tribunal ...'
Case: Jones v Dunkel (1959) 101 CLR 298
Outcome: referred to
The Tribunal found (at [154]) that Div 7A of the ITAA 36 should apply. In arriving at that conclusion, the Tribunal found as follows: (1) Mr Docherty was Mr Borg and the payments were made to him [144]; (2) Mr Docherty had made admissions to Ms Hird, the Commissioner's auditor, that it was he who had cashed the cheques [137], [144]; (3) Mr Docherty was the last person holding the cash [147]; (4) Mr Docherty and another brother, Charlie Docherty, were the shareholders during the relevant years [152]; (5) Mr Docherty treated 3D as his own entity. 3D did exactly as he directed and Mr Docherty did not need or seek the consent of Charlie Docherty. 3D was controlled by Mr Docherty who took its money for his own use and plainly considered that he could do what he pleased in relation to 3D [152], [153]; (6) On the evidence it cannot be accepted that Mr Docherty stole the money from 3D or that there was any relevant misfeasance [153]; (7) There was no evidence that Charlie Docherty played a part in running 3D [151]; (8) In any event, a Jones v Dunkel (1959) 101 CLR 298 inference should be drawn as to the failure to call the other shareholder, Charlie Docherty, that is, if he was a shareholder and if he did play a part in running 3D (although there was no evidence of this), he should have been called to give evidence [151].
Case: Kumagai Gumi Co Ltd v Commissioner of Taxation [1999] FCA 235 ; (1999) 90 FCR 274
Outcome: referred to
The Commissioner submitted that, while it is true that if the Tribunal finds facts for which there is no evidence, its decision will be subject to error, in the present circumstances, the error could not have affected the outcome. That is, where the Tribunal has made an error of law, but the error is immaterial, its decision will not be set aside for that reason: Kumagai Gumi Co Ltd v Commissioner of Taxation [1999] FCA 235 ; (1999) 90 FCR 274 at [53] . Reliance was placed on what was said by Lockhart and Hill JJ in BTR Plc v Westinghouse Brake and Signal Co (Australia) Ltd (1992) 26 ALD 1 at 7 that: '[I]t will not be enough for an applicant to demonstrate that the Tribunal mis-stated the law in the course of its reasons, if that mis-statement could not have affected its decision. The task of the court on an appeal under s 44(1) is essentially to undertake judicial review of the tribunal's decision. An immaterial error of law will not vitiate the decision of the tribunal ...'
Case: McAuliffe v Secretary, Department of Social Security [1991] FCA 268 ; (1991) 23 ALD 284
Outcome: referred to
I would add that even if I had come to the contrary view on the denial of procedural fairness ground, with the consequence that the Tribunal's decision was infected with error of law, I would nevertheless have dismissed the appeal because I consider that the Tribunal's decision in respect of 3D's application was clearly correct on the material before it: see Austin v Deputy Secretary, Attorney-General's Department (1986) 12 FCR 22 at 26 27; McAuliffe v Secretary, Department of Social Security [1991] FCA 268 ; (1991) 23 ALD 284 at 295 296, affirmed at [1992] FCA 483 ; (1992) 28 ALD 609 at 618 619; State Rail Authority of New South Wales v Collector of Customs [1991] FCA 610 ; (1991) 33 FCR 211 at 217. Courts do not remit matters for reconsideration where it is futile to do so: Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560 562 per Sackville J; Tankey v Adams [2000] FCA 1089 ; (2000) 104 FCR 152 at 182.