mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: cited
The grounds of appeal, as set out in the notice, are as follows: '4.1 The Tribunal erred in law in that, by failing to include in its reasons its findings on material questions of fact, a reference to the evidence or other material on which those findings were based, and the reasons for: 4.1.1 its decision that Mr Homewood would be destitute within six months (paragraph 55); 4.1.2 the basis on which the Tribunal reconciled that decision with the finding (paragraph 54) that Mr Homewood had available assets that would realise between $48,000 and $58,000 [sic] ; and 4.1.3 the Tribunal's decision that the appropriate part of the compensation payment received by Mr Homewood that should be treated as not having been made was the part that would lead to the preclusion period ending on 1 July 2006 instead of 18 October 2022 (paragraph 56) the Tribunal failed to provide reasons for its decision, in contravention of the requirements of s 43(2) and (2B) of the AAT Act.' 14 The Tribunal commenced its reasons by noting the agreement by the parties that the date of the accident, 3 February 1993, the amount of the compensation payment, $1,250,000, and the calculation of the preclusion period, 3 February 1993 to 18 October 2022, were not in dispute. It then said (at [4]): 'The issue in contention was whether special circumstances existed that would make it appropriate to treat the compensation payment either in whole or part as not having been made.' 15 The Tribunal reviewed Mr Homewood's evidence. It dealt with that evidence largely by setting out his responses to various documentary exhibits put to him. The exhibits were not always identified with clarity. 38 The present case is not about a failure on the part of the Tribunal to include in its reasons the findings on material questions of fact which it has made. Nor is it a complaint that the Tribunal has failed to refer to the evidence on which those findings were based. Many of the reported cases involve claims of that kind of failure see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 331-332 (Gleeson J), 338 (Gaudron J), 346 (McHugh, Gummow and Hayne JJ) cf 367 (Kirby J).
Case: Brackenreg v Comcare Australia (1995) 56 FCR 335
Outcome: cited
As Sheppard J said in Brackenreg v Comcare Australia (1995) 56 FCR 335 (at 349): 'Although the obligations to state the findings of fact and the evidence upon which those findings were based are related to the obligation to give reasons, they are independent and separate obligations.' That statement neatly identifies what might be called the tripartite nature of the obligation under s 43. It is an obligation: (i) to give reasons; (ii) to include in its reasons its findings on material questions of fact; (iii) to include in its reasons reference to the evidence or other material on which those findings are based. Brackenreg was a case in which the Tribunal was found not to have discharged its duty to refer to the evidence on which its findings of fact were made at 352. In Dixon v Repatriation Commission (1999) 29 AAR 235, Wilcox J said of s 43 that it required (at [14]) '... findings, on the substantial issues raised by the case, in terms sufficiently explicit to enable the parties to understand why the decision went the way it did... The question always is whether the decision maker has revealed his or her findings and conclusions.' See also Hawkins v Comcare [2001] FCA 726 ; (2001) 115 FCR 127 at 142 per von Doussa J.
Case: Dixon v Repatriation Commission (1999) 29 AAR 235
Outcome: cited
As Sheppard J said in Brackenreg v Comcare Australia (1995) 56 FCR 335 (at 349): 'Although the obligations to state the findings of fact and the evidence upon which those findings were based are related to the obligation to give reasons, they are independent and separate obligations.' That statement neatly identifies what might be called the tripartite nature of the obligation under s 43. It is an obligation: (i) to give reasons; (ii) to include in its reasons its findings on material questions of fact; (iii) to include in its reasons reference to the evidence or other material on which those findings are based. Brackenreg was a case in which the Tribunal was found not to have discharged its duty to refer to the evidence on which its findings of fact were made at 352. In Dixon v Repatriation Commission (1999) 29 AAR 235, Wilcox J said of s 43 that it required (at [14]) '... findings, on the substantial issues raised by the case, in terms sufficiently explicit to enable the parties to understand why the decision went the way it did... The question always is whether the decision maker has revealed his or her findings and conclusions.' See also Hawkins v Comcare [2001] FCA 726 ; (2001) 115 FCR 127 at 142 per von Doussa J.
Case: Hawkins v Comcare [2001] FCA 726 ; (2001) 115 FCR 127
Outcome: cited
As Sheppard J said in Brackenreg v Comcare Australia (1995) 56 FCR 335 (at 349): 'Although the obligations to state the findings of fact and the evidence upon which those findings were based are related to the obligation to give reasons, they are independent and separate obligations.' That statement neatly identifies what might be called the tripartite nature of the obligation under s 43. It is an obligation: (i) to give reasons; (ii) to include in its reasons its findings on material questions of fact; (iii) to include in its reasons reference to the evidence or other material on which those findings are based. Brackenreg was a case in which the Tribunal was found not to have discharged its duty to refer to the evidence on which its findings of fact were made at 352. In Dixon v Repatriation Commission (1999) 29 AAR 235, Wilcox J said of s 43 that it required (at [14]) '... findings, on the substantial issues raised by the case, in terms sufficiently explicit to enable the parties to understand why the decision went the way it did... The question always is whether the decision maker has revealed his or her findings and conclusions.' See also Hawkins v Comcare [2001] FCA 726 ; (2001) 115 FCR 127 at 142 per von Doussa J.
Case: Times Consultants Pty Ltd v Collector of Customs (Qld) (1987) 76 ALR 313
Outcome: cited
The Tribunal's obligation is to give its reasons for its decision in the sense explained earlier. In so doing it is not required to express itself with the precision that might be required of a court of law. As Morling and Wilcox JJ said in Times Consultants Pty Ltd v Collector of Customs (Qld) (1987) 76 ALR 313 (at 328): 'The tribunal is an administrative body and, whilst errors of law made by it are susceptible to correction by this court, its decisions should not be too closely scrutinised for the purpose of searching for errors of law in what may be imprecise language.' In my opinion, the Tribunal made a finding of fact that within six months Mr Homewood would be destitute (absent the disability support pension). It had regard to his asset position in coming to that conclusion. The complaint that it has not adequately disclosed its reasons for so concluding amounts to little more than a complaint about its findings of fact. 46 The Secretary accepted, by reference to [44] of the Tribunal's reasons, that the amount available for Mr Homewood's support could arguably be fixed at a lower range of between $20,000 and $30,000. That is not a reading of the Tribunal's reasons which is particularly generous to Mr Homewood. It is to be noted that the assets giving rise to those figures are comprised of 'coin collections and other collectibles', '20 boxes of items' 'DVDs ...; a motor vehicle worth less than $5,000'. 47 Having regard to the nature of the assets to which the Tribunal adverted in its reasons, its finding that Mr Homewood would be destitute within six months was open to it. That finding formed a base, in principle, for the exercise of the discretion under s 1184K(1) of the Act. The way in which it approached the exercise of that discretion was adequately explained by reference to its finding of fact. While it may be argued that a more elaborate and principled approach by reference to the rules governing the fixing of preclusion periods under the Act would have been preferable, that is not the basis upon which the Tribunal's decision is attacked in this case. It is attacked only on the basis that it has failed to give adequate reasons. In my opinion that challenge is not made out and the application should be dismissed. 48 For the preceding reasons the application is dismissed. The applicant will be required to pay the respondent's costs. I certify that the preceding forty eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 21 June 2006 Counsel for the Applicant: Mr PJ Hanks QC Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr GT Stubbs Solicitor for the Respondent: Dwyer Durack Date of Hearing: 9 June 2006 Date of Judgment: 21 June 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/779.html
Case: Biscayne Partners Pty Ltd v Valance Corp Pty Ltd [2003] NSWSC 874
Outcome: discussed
The reasons why a failure to complain may have relevance or may assist in resolution of an issue were stated by Einstein J in Biscayne Partners Pty Ltd v Valance Corp Pty Ltd [2003] NSWSC 874 at [150] . What underlies his Honour's explanation is that a failure to complain may point to a finding of absence of any real ground for complaint or reliance where a plaintiff would be expected to have spoken. But the principle assumes that the person had knowledge of the alleged misrepresentation at the relevant time. That is to say, how can a failure to complain about that which the party was unaware have any real probative value? 13 Whether the failure to complain goes to credit or to an issue in the proceeding will depend on the facts and circumstances of each case. In the present proceedings it may be that the proposed cross-examination goes in some way to the issue of reliance as shown in the authorities relied upon by the respondents. However, in light of the material which the respondents wish to explore as set out in the draft list of proposed topics of cross-examination, I am inclined to the view that the cross-examination will go in some significant respects to Mr Seward's credit. 14 To the extent that the proposed cross-examination will go to credit I am not satisfied that it would have substantial probative value. Moreover, I am not persuaded that a sufficient evidentiary basis has been established on the present motion to warrant reopening cross-examination. In particular, it appears from evidence adduced in the proceedings that in the period from 2001-2002 BWC was suffering increasing financial difficulties but it is not established on this motion that Mr Seward was at that time aware, as the applicants contend, that Quadrant had allowed Mr Blom to present projections to the applicants without revealing that Blom's earlier (and less optimistic) projections had failed. 15 Insofar as the respondents call in aid the "most walks of life" ordinary human nature test referred to by Einstein J in Biscayne , the material referred to in the respondents' affidavits on the motion seems to me to be insufficient to justify the exercise of my discretion. I do not consider that the topics listed in the draft list illustrate with a sufficient degree of confidence that the evidence would have sufficient evidentiary value to justify me in exercising my discretion in this matter.
Case: Brown v Petranker (1991) 22 NSWLR 717
Outcome: followed
The principles stated in Brown v Petranker (1991) 22 NSWLR 717 at 728-9 by Clarke JA (with whom Handley JA and Waddell AJA agreed) applied to an application by a party to recall a witness to give further evidence in chief. Nevertheless, in my opinion the overriding principle stated by Clarke JA seems to be the appropriate test. That is, the exercise of the court's discretion is dependent upon whether the interests of justice require leave to be granted or refused. Inquiry includes an examination of any prejudice to the other party; see also R v Gassy (No 3) (2005) 93 SASR 454 at [318]. 8 The principles stated by Jeffrey J in Henning v Lynch [1974] 2 NSWLR 254 at 259, to which Clarke JA referred with approval in Brown v Petranker, also dealt with reopening to tender additional evidence. In my view the test of "accident, mistake or want of foresight" to which Jeffrey J referred is only a guiding factor. The overriding consideration is the interests of justice.
Case: Cordelia Holdings Pty Ltd v Newkey Investments Pty Ltd [2004] FCAFC 48
Outcome: cited
The respondents rely upon a number of authorities for the proposition that a failure to complain prior to the commencement of proceedings may be a significant factor from which the court can draw an inference that the party did not rely on any such representation. Thus, it is submitted by the respondents that the proposed cross-examination goes to an issue in the cause rather than to credit; see Dukemaster Pty Ltd v Bluehive Pty Ltd [2002] FCAFC 377 at [58] ; see also Cordelia Holdings Pty Ltd v Newkey Investments Pty Ltd [2004] FCAFC 48 at [71] - [77] .
Case: Dukemaster Pty Ltd v Bluehive Pty Ltd [2002] FCAFC 377
Outcome: cited
The respondents rely upon a number of authorities for the proposition that a failure to complain prior to the commencement of proceedings may be a significant factor from which the court can draw an inference that the party did not rely on any such representation. Thus, it is submitted by the respondents that the proposed cross-examination goes to an issue in the cause rather than to credit; see Dukemaster Pty Ltd v Bluehive Pty Ltd [2002] FCAFC 377 at [58] ; see also Cordelia Holdings Pty Ltd v Newkey Investments Pty Ltd [2004] FCAFC 48 at [71] - [77] .
Case: Fox v Percy [2003] HCA 22 ; (2003) 214 CLR 118
Outcome: referred to
It is true, as the High Court said in Fox v Percy [2003] HCA 22 ; (2003) 214 CLR 118 at [31] , that a factual finding should, so far as possible, turn on the basis of "contemporary materials, objectively established facts and the apparent logic of events". Nevertheless, I do not see that a sufficient basis has been established to allow the issue of failure to complain to be explored in the manner proposed; nor do I consider that the observations of the High Court in MWJ v The Queen [2005] HCA 74 ; (2005) 222 ALR 436 at [39] - [40] on the application of the rule in Browne v Dunn assist in the resolution of this motion.
Case: Henning v Lynch [1974] 2 NSWLR 254
Outcome: discussed
The principles stated by Jeffrey J in Henning v Lynch [1974] 2 NSWLR 254 at 259, to which Clarke JA referred with approval in Brown v Petranker, also dealt with reopening to tender additional evidence. In my view the test of "accident, mistake or want of foresight" to which Jeffrey J referred is only a guiding factor. The overriding consideration is the interests of justice.
Case: Ishac v David Securities Pty Limited (No 5) (unreported, Young J, 24 March 1992)
Outcome: referred to
In Ishac v David Securities Pty Limited (No 5) (unreported, Young J, 24 March 1992) His Honour listed four common situations where it is appropriate to allow further cross-examination. Only the first is relevant to the present case. It is where there is a bona fide omission by cross-examining counsel to deal with the subject and the omission comes to the cross-examiner's attention shortly after the witness has left the witness box. I do not consider that his Honour was attempting to lay down an exhaustive list. Rather, he set out guiding factors for the exercise of the discretion in situations which may be thought commonly to arise.
Case: MWJ v The Queen [2005] HCA 74 ; (2005) 222 ALR 436
Outcome: considered
It is true, as the High Court said in Fox v Percy [2003] HCA 22 ; (2003) 214 CLR 118 at [31] , that a factual finding should, so far as possible, turn on the basis of "contemporary materials, objectively established facts and the apparent logic of events". Nevertheless, I do not see that a sufficient basis has been established to allow the issue of failure to complain to be explored in the manner proposed; nor do I consider that the observations of the High Court in MWJ v The Queen [2005] HCA 74 ; (2005) 222 ALR 436 at [39] - [40] on the application of the rule in Browne v Dunn assist in the resolution of this motion.
Case: R v Gassy (No 3) (2005) 93 SASR 454
Outcome: cited
The principles stated in Brown v Petranker (1991) 22 NSWLR 717 at 728-9 by Clarke JA (with whom Handley JA and Waddell AJA agreed) applied to an application by a party to recall a witness to give further evidence in chief. Nevertheless, in my opinion the overriding principle stated by Clarke JA seems to be the appropriate test. That is, the exercise of the court's discretion is dependent upon whether the interests of justice require leave to be granted or refused. Inquiry includes an examination of any prejudice to the other party; see also R v Gassy (No 3) (2005) 93 SASR 454 at [318].
Case: Searle v Keayes (1994) 126 ALR 728
Outcome: followed
As Tamberlin J said in Searle v Keayes (1994) 126 ALR 728, the trial judge has a discretion whether to permit the recall of witnesses. His Honour pointed out at 729 that "[o]ne important consideration is that litigation must be resolved and not be the subject of continuous reopening and prolongation".
Case: Hall v Minister for Immigration and Multicultural Affairs [2000] FCA 415 ; (2000) 97 FCR 387
Outcome: cited
Reference was made to the decision of Finkelstein J in Hall v Minister for Immigration and Multicultural Affairs [2000] FCA 415 ; (2000) 97 FCR 387 at 394, where his Honour observed (at [29]): ... the power to cancel a visa that is conferred by s 501(2) should, in my opinion, be construed to allow the cancellation of a permit to remain in Australia, which by force of the transitional provisions continues in force as a visa. That is, because permission to remain in Australia granted before the Migration Reform Act continues in force as a visa, it may be cancelled as a visa. Any other construction would result in the absurd position that a non-citizen who constitutes a danger or threat to the Australian community by reason of his or her past criminal conduct could not be removed from Australia. To similar effect were the observations of Kiefel J in Andary v Minister for Immigration &amp; Multicultural Affairs [2002] FCA 1380 at [7] where her Honour said that a transitional (permanent) visa 'was liable to cancellation'.
Case: Andary v Minister for Immigration &amp; Multicultural Affairs [2002] FCA 1380
Outcome: cited
Reference was made to the decision of Finkelstein J in Hall v Minister for Immigration and Multicultural Affairs [2000] FCA 415 ; (2000) 97 FCR 387 at 394, where his Honour observed (at [29]): ... the power to cancel a visa that is conferred by s 501(2) should, in my opinion, be construed to allow the cancellation of a permit to remain in Australia, which by force of the transitional provisions continues in force as a visa. That is, because permission to remain in Australia granted before the Migration Reform Act continues in force as a visa, it may be cancelled as a visa. Any other construction would result in the absurd position that a non-citizen who constitutes a danger or threat to the Australian community by reason of his or her past criminal conduct could not be removed from Australia. To similar effect were the observations of Kiefel J in Andary v Minister for Immigration &amp; Multicultural Affairs [2002] FCA 1380 at [7] where her Honour said that a transitional (permanent) visa 'was liable to cancellation'.
Case: Ascot Investments Pty Ltd v Harper [1981] HCA 1 ; (1981) 148 CLR 337
Outcome: referred to
In Ascot Investments Pty Ltd v Harper [1981] HCA 1 ; (1981) 148 CLR 337 Gibbs CJ said (at 354): 'The general words of ss. 80 and 114 must be understood in the context of the Act, which confers jurisdiction on the Family Court in matrimonial causes and associated matters, and in that context it would be unreasonable to impute to the Parliament an intention to give power to the Family Court to extinguish the rights, and enlarge the obligations, of third parties, in the absence of clear and unambiguous words. It can safely be assumed that the Parliament intended that the powers of the Family Court should be wide enough to prevent either of the parties to a marriage from evading his or her obligations to the other party, but it does not follow that the Parliament intended that the legitimate interests of third parties should be subordinated to the interests of a party to a marriage, or that the Family Court should be able to make orders that would operate to the detriment of third parties. There is nothing in the words of the sections that suggests that the Family Court is intended to have power to defeat or prejudice the rights, or nullify the powers, of third parties, or to require them to perform duties which they were not previously liable to perform. It is one thing to order a party to a marriage to do whatever is within his power to comply with an order of the court, even if what he does may have some effect on the position of third parties, but it is quite another to order third parties to do what they are not legally bound to do.'
Case: Deputy Commissioner of Taxation v Swain (1988) 20 FCR 507
Outcome: referred to
In The Queen v Ross-Jones; Ex parte Green [1984] HCA 82 ; (1984) 156 CLR 185, Wilson and Dawson JJ said (at 211) (footnotes omitted): 'We should add that even if those proceedings were a matrimonial cause, the Family Court would nevertheless lack the power to grant the relief sought. Apart from any constitutional limitation, it is now authoritatively established that as a matter of construction the general powers of the Family Court are to be understood in the context of the Family Law Act which confers jurisdiction upon the Court in matrimonial causes and associated matters. Those powers, which include the power to grant injunctive relief under s. 114 , are not to be construed so as to confer jurisdiction to defeat the rights, or enlarge the obligations, of persons who are not parties to the marriage involved in the relevant matrimonial cause: Ascot Investments Pty. Ltd. v. Harper .' The principle referred to in the above passages has been applied in a number of cases in this Court and, in particular, it was applied in a context involving the provisions of the Bankruptcy Act in Deputy Commissioner of Taxation v Swain (1988) 20 FCR 507. Davies, Lockhart and Burchett JJ said (at 514): 'A sequestration order reflects a right of a creditor, and creates rights as between a debtor and his creditors and trustee. The Family Court, in the pursuit of its duty (in an appropriate case) to adjust rights as between the parties to a marriage, has no power to deprive other parties of their rights. Its power to deal with the property of the parties over whom it has jurisdiction must start with the property that is theirs, not with property that the law (whether the Bankruptcy Act or some other law) has vested in another.'
Case: Re Boscolo; Ex parte Botany Council (1996) 62 FCR 397
Outcome: referred to
Thirdly, (in terms of the position before the Amending Act) s 35A of the Bankruptcy Act has been in the Act since 1988 and the above principles did not mean that this Court would never exercise its discretion to transfer proceedings under the Bankruptcy Act to the Family Court. The circumstances of the case might suggest that that course was appropriate even though, once transferred, the Family Court was bound to give full force and effect to the provisions of the Bankruptcy Act : Re Sabri; Ex parte Sabri v Brien (1995) 60 FCR 131. I also refer to Re Boscolo; Ex parte Botany Council (1996) 62 FCR 397 as an example of a case where this Court refused to transfer proceedings to the Family Court.