mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Tully and Comcare (unreported, Administrative Appeals Tribunal, 4 October 1996)
Outcome: referred to
In relation to its second submission, the applicant says that the Tribunal should have considered the cause as a question of exposure: see Favelle Mort Ltd v Murray [1976] HCA 13 ; (1976) 133 CLR 580 at 584, 601; Re Tully and Comcare (unreported, Administrative Appeals Tribunal, 4 October 1996). 23 However, diseases may be contracted by an employee during the period of his service in a temporal sense which are not contributed to by employment. To establish an entitlement to compensation under the SRC Act there must be a causal connection between the employment and the disease or injury sustained by the employee: see Re Tully and Comcare; Military Rehabilitation &amp; Compensation Commission v Wall; Roncevich ; Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323.
Case: Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Outcome: referred to
However, diseases may be contracted by an employee during the period of his service in a temporal sense which are not contributed to by employment. To establish an entitlement to compensation under the SRC Act there must be a causal connection between the employment and the disease or injury sustained by the employee: see Re Tully and Comcare; Military Rehabilitation &amp; Compensation Commission v Wall; Roncevich ; Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323.
Case: Rasomen Pty Ltd v Shell Co of Australia Ltd (1997) 75 FCR 216
Outcome: followed
In Rasomen Pty Ltd v Shell Co of Australia Ltd (1997) 75 FCR 216 at 223 (' Rasomen ') the Full Court held that s 79 of the Judiciary Act 1903 (Cth) enables the Federal Court to deal with a no-case submission. In Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1 at 6 Finkelstein J referred to both sources of power (Order 35 r 1 and s 79). The Federal Magistrates Court is a s 79 Court. 41 The same submission that was thus rejected in Protean was put to the Full Court of this Court in Rasomen . The submission is recorded at 75 FCR at 227. It was rejected in reliance on what had been said in Protean . At 228 the Full Court said: "the function to be performed by a trial judge sitting without a jury ... is no different from that which has to be performed by a judge who has heard all the evidence of the parties in the ordinary way and who has to give final judgment. In both situations, the judge must make findings of fact, after assessing the quality of the evidence." See also Amcor 169 ALR 344 at [76] per Sackville J and Tru Floor Service Pty Ltd v Jenkins (No 2) (2006) 232 ALR 532 at [36] to [40] per Sundberg J ( Trufloor ). Accordingly this ground of appeal has no substance.
Case: Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1
Outcome: followed
In Rasomen Pty Ltd v Shell Co of Australia Ltd (1997) 75 FCR 216 at 223 (' Rasomen ') the Full Court held that s 79 of the Judiciary Act 1903 (Cth) enables the Federal Court to deal with a no-case submission. In Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1 at 6 Finkelstein J referred to both sources of power (Order 35 r 1 and s 79). The Federal Magistrates Court is a s 79 Court.
Case: Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344
Outcome: cited
The appellant contends that the Federal Magistrates Court Rules "do not permit the bringing of a no-case application except insofar as may be permitted by Rule 13.09 (as it then was) ....". In Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 Sackville J was of the view that Order 35 r 1 of the Federal Court Rules authorises the Court to entertain and rule on a no-case submission. That rule gives the Court power at any stage of the proceedings, on the application of any party, to pronounce such judgment or make such orders as the nature of the case requires. Rule 16.01 of the Federal Magistrates Court Rules is to the same effect. 41 The same submission that was thus rejected in Protean was put to the Full Court of this Court in Rasomen . The submission is recorded at 75 FCR at 227. It was rejected in reliance on what had been said in Protean . At 228 the Full Court said: "the function to be performed by a trial judge sitting without a jury ... is no different from that which has to be performed by a judge who has heard all the evidence of the parties in the ordinary way and who has to give final judgment. In both situations, the judge must make findings of fact, after assessing the quality of the evidence." See also Amcor 169 ALR 344 at [76] per Sackville J and Tru Floor Service Pty Ltd v Jenkins (No 2) (2006) 232 ALR 532 at [36] to [40] per Sundberg J ( Trufloor ). Accordingly this ground of appeal has no substance. 46 Amcor was not a fraud case. The allegation was that Amcor had made an arrangement containing an exclusionary provision, in contravention of s 45(2)(a)(i) of the Trade Practices Act 1974 (Cth). Sackville J at 169 ALR at [68] considered that allegation analogous to one of fraud because it was a very serious allegation. 47 The other matters the Magistrate took into account were appropriate: the probable saving of time and expense ( Amcor , Trufloor ), and his obvious, though not expressly articulated view, that the no-case submission was strongly arguable ( Amcor , Puddy and Trufloor ). Further, this was not a case where it was necessary for the Magistrate to assess the credit of any of the witnesses ( Amcor ). This ground of appeal must be rejected.
Case: Tru Floor Service Pty Ltd v Jenkins (No 2) (2006) 232 ALR 532
Outcome: cited
The same submission that was thus rejected in Protean was put to the Full Court of this Court in Rasomen . The submission is recorded at 75 FCR at 227. It was rejected in reliance on what had been said in Protean . At 228 the Full Court said: "the function to be performed by a trial judge sitting without a jury ... is no different from that which has to be performed by a judge who has heard all the evidence of the parties in the ordinary way and who has to give final judgment. In both situations, the judge must make findings of fact, after assessing the quality of the evidence." See also Amcor 169 ALR 344 at [76] per Sackville J and Tru Floor Service Pty Ltd v Jenkins (No 2) (2006) 232 ALR 532 at [36] to [40] per Sundberg J ( Trufloor ). Accordingly this ground of appeal has no substance.
Case: Union Bank of Australia Ltd v Puddy [1949] VLR 242
Outcome: cited
Many of the cases in which no election has been required have involved allegations of fraud. In one of them, Union Bank of Australia Ltd v Puddy [1949] VLR 242 at 246 (' Puddy ), Fullagar J said: "where, as in the case before me, fraud is alleged, it may often be wrong to suggest that a party should submit himself to cross-examination before it is seen that there is really some evidence against him." See also Trufloor 232 ALR at [27] to [29]. 47 The other matters the Magistrate took into account were appropriate: the probable saving of time and expense ( Amcor , Trufloor ), and his obvious, though not expressly articulated view, that the no-case submission was strongly arguable ( Amcor , Puddy and Trufloor ). Further, this was not a case where it was necessary for the Magistrate to assess the credit of any of the witnesses ( Amcor ). This ground of appeal must be rejected.
Case: TNT Management Pty Ltd v Brooks (1979) 23 ALR 345
Outcome: cited
In TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267 at 269 the High Court approved of the following passage from an earlier case which said that in civil cases "you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture .... But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise." 62 The appellant relies on ten matters in support of the claimed inference. The first is the respondent's failure to offer evidence of a program of specialised assistance. This is an example of the appellant's refusal to acknowledge the nature of a no-case submission. What the respondent's evidence was is simply not relevant. 63 Then the appellant says that such evidence of assistance as was offered by the respondent was at best sporadic, piecemeal and ad hoc, reflecting the fact that he was treated like any other child at the Centre. This ignores the evidence of Professor Ochiltree and Mr Hoare, which the Magistrate understandably preferred to the appellant's assertions about the nature of the assistance. As the Magistrate said, the father's attendance at the Centre was such that he could not say anything useful about the service provided to his son.
Case: Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62
Outcome: distinguished
A related submission was that the appellant was denied natural justice because the Court permitted the respondent to proceed with its no-case submission where the respondent's grounds for such application were unclear. This was said to be the case because the respondent submitted that the evidence was "against" the allegations in pars 21 and 24 of the statement of claim, "while the relevant test required 'no evidence' for the case to be unarguable". Reliance was placed on the observations of Dixon J in Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91-92. His Honour was there concerned with an application in the inherent jurisdiction of the Court to stop the abuse of its process when it is employed for groundless claims. The case did not involve a no-case submission, and nothing was said by his Honour about that procedure. All that was said was that a case must be "very clear indeed" to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner. I can find no reference in the judgment to "no evidence", and it has no application to the present case. 78 Then it was said that the respondent submitted to the Magistrate both that there was no evidence to support the appellant's propositions about SNSS funding and that the evidence was against relevant allegations about the funding. This is said to have rendered unclear the way the no-case submission was put. The transcript discloses that the respondent's counsel initially submitted that there was no evidence to support the allegations in the central parts of the statement of claim. Later he said the evidence was clearly against the allegations in pars 15 and 18 (described at [9] and [12] respectively). Later still he said it was overwhelmingly against those in par 18. Putting his submission in this manner did not make its basis unclear. In this case the word "against" and the expression "overwhelmingly against" were not mere barristerial hyperbole. Nor were they only emphatic ways of submitting that there was no evidence to support those particular allegations. The terms of the SNSS Guidelines and Professor Ochiltree's evidence made this a case where in relation to those allegations there really was a difference between "no evidence" to support them and the evidence being "against" them.
Case: SZLPH v Minister for Immigration and Citizenship [2008] FMCA 342
Outcome: considered
This is an application for leave to appeal against orders made by Scarlett FM on 3 March 2008: SZLPH v Minister for Immigration and Citizenship [2008] FMCA 342. Pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) ("the FMC Rules "), his Honour dismissed an application for review of a decision of the Refugee Review Tribunal ("the RRT") delivered on 11 October 2007. 2 The requirement for leave arises under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act "). Under section 24(1)(d) , the Federal Court has jurisdiction to hear and determine appeals from judgments of the Federal Magistrates Court exercising original jurisdiction under a law of the Commonwealth, such as the Migration Act 1958 (Cth) ("the Act "). However, an appeal shall not be brought from such a judgment if it is interlocutory unless the Federal Court or a Judge gives leave to appeal: s 24(1A) of the Federal Court Act . 3 The applicant also seeks an order dispensing with compliance with O 52 r 5(2) of the Federal Court Rules 1979 (Cth) ("the Federal Court Rules").
Case: SZHUS v Minister for Immigration and Multicultural Affairs [2007] FCA 64
Outcome: cited
Rule 44.12(2) of the FMC Rules expressly provides that, to avoid doubt, a dismissal of an application for relief by the Federal Magistrates Court under r 44.12(1)(a) is interlocutory. The FMC Rules bind Federal Magistrates but cannot bind this Court. See SZHUS v Minister for Immigration and Multicultural Affairs [2007] FCA 64 at [2] although compare the reliance placed upon the provisions of the FMC Rules in SZHVP v Minister for Immigration and Multicultural Affairs [2006] FCA 1360 at [3] and NBLH v Minister for Immigration and Citizenship [2007] FCA 209 at [1] .
Case: SZHVP v Minister for Immigration and Multicultural Affairs [2006] FCA 1360
Outcome: cited
Rule 44.12(2) of the FMC Rules expressly provides that, to avoid doubt, a dismissal of an application for relief by the Federal Magistrates Court under r 44.12(1)(a) is interlocutory. The FMC Rules bind Federal Magistrates but cannot bind this Court. See SZHUS v Minister for Immigration and Multicultural Affairs [2007] FCA 64 at [2] although compare the reliance placed upon the provisions of the FMC Rules in SZHVP v Minister for Immigration and Multicultural Affairs [2006] FCA 1360 at [3] and NBLH v Minister for Immigration and Citizenship [2007] FCA 209 at [1] .
Case: NBLH v Minister for Immigration and Citizenship [2007] FCA 209
Outcome: cited
Rule 44.12(2) of the FMC Rules expressly provides that, to avoid doubt, a dismissal of an application for relief by the Federal Magistrates Court under r 44.12(1)(a) is interlocutory. The FMC Rules bind Federal Magistrates but cannot bind this Court. See SZHUS v Minister for Immigration and Multicultural Affairs [2007] FCA 64 at [2] although compare the reliance placed upon the provisions of the FMC Rules in SZHVP v Minister for Immigration and Multicultural Affairs [2006] FCA 1360 at [3] and NBLH v Minister for Immigration and Citizenship [2007] FCA 209 at [1] .
Case: Re Luck [2003] HCA 70 ; (2003) 203 ALR 1
Outcome: cited
However, the application of general principles concerning the nature of interlocutory judgments establishes that dismissal pursuant to r 44.12(2) is interlocutory in nature. See Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 and Rana v University of South Australia [2004] FCA 559 ; (2004) 136 FCR 344 , as cited in SZKCV v Minister for Immigration and Citizenship [2007] FCA 1201 per Jessup J at [3]. The test whether an order is interlocutory or final is whether the order made finally determines the legal rights of the parties in the principal proceeding before the Court: Bienstein v Bienstein [2003] HCA 7 ; (2003) 195 ALR 225. Regard must be had to the legal, as distinct from the practical, effect of the judgment: SZDGN v Minister for Immigration and Multicultural Affairs [2004] FCA 1543 at [3] per Lindgren J. It is clear, in my view, that Scarlett FM's decision to dismiss the application on the basis that it disclosed no arguable case for the relief sought must be regarded, as the authorities stand, as interlocutory.
Case: Rana v University of South Australia [2004] FCA 559 ; (2004) 136 FCR 344
Outcome: cited
However, the application of general principles concerning the nature of interlocutory judgments establishes that dismissal pursuant to r 44.12(2) is interlocutory in nature. See Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 and Rana v University of South Australia [2004] FCA 559 ; (2004) 136 FCR 344 , as cited in SZKCV v Minister for Immigration and Citizenship [2007] FCA 1201 per Jessup J at [3]. The test whether an order is interlocutory or final is whether the order made finally determines the legal rights of the parties in the principal proceeding before the Court: Bienstein v Bienstein [2003] HCA 7 ; (2003) 195 ALR 225. Regard must be had to the legal, as distinct from the practical, effect of the judgment: SZDGN v Minister for Immigration and Multicultural Affairs [2004] FCA 1543 at [3] per Lindgren J. It is clear, in my view, that Scarlett FM's decision to dismiss the application on the basis that it disclosed no arguable case for the relief sought must be regarded, as the authorities stand, as interlocutory.
Case: SZKCV v Minister for Immigration and Citizenship [2007] FCA 1201
Outcome: cited
However, the application of general principles concerning the nature of interlocutory judgments establishes that dismissal pursuant to r 44.12(2) is interlocutory in nature. See Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 and Rana v University of South Australia [2004] FCA 559 ; (2004) 136 FCR 344 , as cited in SZKCV v Minister for Immigration and Citizenship [2007] FCA 1201 per Jessup J at [3]. The test whether an order is interlocutory or final is whether the order made finally determines the legal rights of the parties in the principal proceeding before the Court: Bienstein v Bienstein [2003] HCA 7 ; (2003) 195 ALR 225. Regard must be had to the legal, as distinct from the practical, effect of the judgment: SZDGN v Minister for Immigration and Multicultural Affairs [2004] FCA 1543 at [3] per Lindgren J. It is clear, in my view, that Scarlett FM's decision to dismiss the application on the basis that it disclosed no arguable case for the relief sought must be regarded, as the authorities stand, as interlocutory.
Case: Bienstein v Bienstein [2003] HCA 7 ; (2003) 195 ALR 225 
Outcome: cited
However, the application of general principles concerning the nature of interlocutory judgments establishes that dismissal pursuant to r 44.12(2) is interlocutory in nature. See Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 and Rana v University of South Australia [2004] FCA 559 ; (2004) 136 FCR 344 , as cited in SZKCV v Minister for Immigration and Citizenship [2007] FCA 1201 per Jessup J at [3]. The test whether an order is interlocutory or final is whether the order made finally determines the legal rights of the parties in the principal proceeding before the Court: Bienstein v Bienstein [2003] HCA 7 ; (2003) 195 ALR 225. Regard must be had to the legal, as distinct from the practical, effect of the judgment: SZDGN v Minister for Immigration and Multicultural Affairs [2004] FCA 1543 at [3] per Lindgren J. It is clear, in my view, that Scarlett FM's decision to dismiss the application on the basis that it disclosed no arguable case for the relief sought must be regarded, as the authorities stand, as interlocutory.
Case: SZDGN v Minister for Immigration and Multicultural Affairs [2004] FCA 1543
Outcome: cited
However, the application of general principles concerning the nature of interlocutory judgments establishes that dismissal pursuant to r 44.12(2) is interlocutory in nature. See Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 and Rana v University of South Australia [2004] FCA 559 ; (2004) 136 FCR 344 , as cited in SZKCV v Minister for Immigration and Citizenship [2007] FCA 1201 per Jessup J at [3]. The test whether an order is interlocutory or final is whether the order made finally determines the legal rights of the parties in the principal proceeding before the Court: Bienstein v Bienstein [2003] HCA 7 ; (2003) 195 ALR 225. Regard must be had to the legal, as distinct from the practical, effect of the judgment: SZDGN v Minister for Immigration and Multicultural Affairs [2004] FCA 1543 at [3] per Lindgren J. It is clear, in my view, that Scarlett FM's decision to dismiss the application on the basis that it disclosed no arguable case for the relief sought must be regarded, as the authorities stand, as interlocutory.
Case: D&eacute;cor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397
Outcome: cited
In D&eacute;cor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 , the Full Court held that leave to appeal from an interlocutory judgment required the applicant to show that there was sufficient doubt as to the correctness of the judgment below to warrant reconsideration and, further, that if that judgment was assumed to be wrong, substantial injustice would be suffered by the applicant were leave to be refused. 15 Rule 44.12 of the FMC Rules deals with the conduct of a show cause hearing. That rule provides that at such a hearing the Federal Magistrates Court may, if it is not satisfied that the applicant has raised an arguable case for relief, summarily dismiss the application. 16 In the present application for leave, the Minister submitted that the applicant had failed to show any doubt as to the correctness of the judgment below and had also failed to show that he would suffer substantial injustice if leave to appeal were refused.
Case: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168
Outcome: cited
In any event, the Minister submitted, it would not be in the interests of justice for this new ground to be entertained now because it had no prospect of success: see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 at [26] - [27] ; O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at 319; and Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7. The Minister submitted that the proposed ground contained nothing more than an unparticularised assertion that the RRT had "totally ignored the requirements of s 36(2) read with s 422B". Such a complaint was meaningless given that neither of these provisions imposed any mandatory obligations upon the RRT.
Case: O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310
Outcome: cited
In any event, the Minister submitted, it would not be in the interests of justice for this new ground to be entertained now because it had no prospect of success: see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 at [26] - [27] ; O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at 319; and Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7. The Minister submitted that the proposed ground contained nothing more than an unparticularised assertion that the RRT had "totally ignored the requirements of s 36(2) read with s 422B". Such a complaint was meaningless given that neither of these provisions imposed any mandatory obligations upon the RRT.
Case: Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1
Outcome: cited
In any event, the Minister submitted, it would not be in the interests of justice for this new ground to be entertained now because it had no prospect of success: see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 at [26] - [27] ; O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at 319; and Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7. The Minister submitted that the proposed ground contained nothing more than an unparticularised assertion that the RRT had "totally ignored the requirements of s 36(2) read with s 422B". Such a complaint was meaningless given that neither of these provisions imposed any mandatory obligations upon the RRT.