mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: JAD International Pty Ltd v International Trucks Australia Limited (1994) 50 FCR 378
Outcome: referred to
authorities establish that the Court's power to award relief under s 87(1) is not constrained by common law or equitable principles: Murphy v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 216 CLR 388 (" Murphy v Overton Investments Pty Ltd ') at 407 [44]. The provisions of s 87 enable a Court to overcome some of the difficulties of the common law including those inherent in deciding whether to rescind or affirm a contract: Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd (1981) 36 ALR 23 (" Mister Figgins ") at 60 per Northrop J. Doctrines such as affirmation or the non-availability of restitutio in integrum which bar rescission in equity are no more than discretionary considerations in the exercise of the power in s 87(1): JAD International Pty Ltd v International Trucks Australia Limited (1994) 50 FCR 378 at 380. An order may be made under s 87(1) where, inter alia, a person is likely to suffer loss or damage and the order may be one that is appropriate to prevent or reduce that loss or damage. This gives the section a wide operation: Marks v GIO Australia Holdings Limited [1998] HCA 69 ; (1998) 196 CLR 494 at 505 per McHugh, Hayne and Callinan JJ; Murphy v Overton Investments Pty Limited at 407. Although quite a different case on the facts, the relief granted in Mister Figgins is illustrative of the broad power in s 87(1). Rescission was refused partly on the ground that the innocent party had affirmed the contracts, but nevertheless an order was made under s 87(1) varying the contracts.
Case: Marks v GIO Australia Holdings Limited [1998] HCA 69 ; (1998) 196 CLR 494
Outcome: referred to
authorities establish that the Court's power to award relief under s 87(1) is not constrained by common law or equitable principles: Murphy v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 216 CLR 388 (" Murphy v Overton Investments Pty Ltd ') at 407 [44]. The provisions of s 87 enable a Court to overcome some of the difficulties of the common law including those inherent in deciding whether to rescind or affirm a contract: Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd (1981) 36 ALR 23 (" Mister Figgins ") at 60 per Northrop J. Doctrines such as affirmation or the non-availability of restitutio in integrum which bar rescission in equity are no more than discretionary considerations in the exercise of the power in s 87(1): JAD International Pty Ltd v International Trucks Australia Limited (1994) 50 FCR 378 at 380. An order may be made under s 87(1) where, inter alia, a person is likely to suffer loss or damage and the order may be one that is appropriate to prevent or reduce that loss or damage. This gives the section a wide operation: Marks v GIO Australia Holdings Limited [1998] HCA 69 ; (1998) 196 CLR 494 at 505 per McHugh, Hayne and Callinan JJ; Murphy v Overton Investments Pty Limited at 407. Although quite a different case on the facts, the relief granted in Mister Figgins is illustrative of the broad power in s 87(1). Rescission was refused partly on the ground that the innocent party had affirmed the contracts, but nevertheless an order was made under s 87(1) varying the contracts.
Case: Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd (1981) 36 ALR 23
Outcome: referred to
authorities establish that the Court's power to award relief under s 87(1) is not constrained by common law or equitable principles: Murphy v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 216 CLR 388 (" Murphy v Overton Investments Pty Ltd ') at 407 [44]. The provisions of s 87 enable a Court to overcome some of the difficulties of the common law including those inherent in deciding whether to rescind or affirm a contract: Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd (1981) 36 ALR 23 (" Mister Figgins ") at 60 per Northrop J. Doctrines such as affirmation or the non-availability of restitutio in integrum which bar rescission in equity are no more than discretionary considerations in the exercise of the power in s 87(1): JAD International Pty Ltd v International Trucks Australia Limited (1994) 50 FCR 378 at 380. An order may be made under s 87(1) where, inter alia, a person is likely to suffer loss or damage and the order may be one that is appropriate to prevent or reduce that loss or damage. This gives the section a wide operation: Marks v GIO Australia Holdings Limited [1998] HCA 69 ; (1998) 196 CLR 494 at 505 per McHugh, Hayne and Callinan JJ; Murphy v Overton Investments Pty Limited at 407. Although quite a different case on the facts, the relief granted in Mister Figgins is illustrative of the broad power in s 87(1). Rescission was refused partly on the ground that the innocent party had affirmed the contracts, but nevertheless an order was made under s 87(1) varying the contracts.
Case: Murphy v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 216 CLR 388
Outcome: referred to
authorities establish that the Court's power to award relief under s 87(1) is not constrained by common law or equitable principles: Murphy v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 216 CLR 388 (" Murphy v Overton Investments Pty Ltd ') at 407 [44]. The provisions of s 87 enable a Court to overcome some of the difficulties of the common law including those inherent in deciding whether to rescind or affirm a contract: Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd (1981) 36 ALR 23 (" Mister Figgins ") at 60 per Northrop J. Doctrines such as affirmation or the non-availability of restitutio in integrum which bar rescission in equity are no more than discretionary considerations in the exercise of the power in s 87(1): JAD International Pty Ltd v International Trucks Australia Limited (1994) 50 FCR 378 at 380. An order may be made under s 87(1) where, inter alia, a person is likely to suffer loss or damage and the order may be one that is appropriate to prevent or reduce that loss or damage. This gives the section a wide operation: Marks v GIO Australia Holdings Limited [1998] HCA 69 ; (1998) 196 CLR 494 at 505 per McHugh, Hayne and Callinan JJ; Murphy v Overton Investments Pty Limited at 407. Although quite a different case on the facts, the relief granted in Mister Figgins is illustrative of the broad power in s 87(1). Rescission was refused partly on the ground that the innocent party had affirmed the contracts, but nevertheless an order was made under s 87(1) varying the contracts.
Case: Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45 ; (1940) 64 CLR 538
Outcome: cited
So far as the symptoms in her left elbow were concerned, the Tribunal was entitled, in the absence of expert evidence suggesting to the contrary, to draw the common-sense inference suggested by the fact that she experienced the same symptoms in each elbow; namely that their aetiology was the same ( Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45 ; (1940) 64 CLR 538 esp per Rich ACJ at 563). 36 For the above reason, the onset of symptoms in her right arm that were of the same character as the symptoms in her left arm was not an irrelevant consideration. The Tribunal was not under an obligation to disregard the symptoms experienced by Ms Butler in her right arm because no person expressed an expert opinion on the relevance of the symptoms in Ms Butler's right arm other than in respect of her carpal tunnel syndrome. 37 Ms Butler additionally contended that the Tribunal took into account irrelevant considerations when it had regard to 'inadmissible' evidence of Ms Carrall and Ms Small. While acknowledging that the Tribunal was not bound by the rules of evidence, Ms Butler argued that 'there must be occasions and are occasions that a tribunal could reject evidence that is clearly inadmissible and based on extreme hearsay' .
Case: Re Greg Sewell Forgings Pty Ltd (1995) 17 ACSR 602
Outcome: followed
Section 447A of the Act empowers the Court to make such order as it thinks appropriate about how Pt 5.3A is to operate in relation to a particular company. The section is broad enough to permit the making of an order that has some retrospective effect, and, in particular, the effect of overcoming the ending of an administration that has occurred by the operation of the Act; see Re Greg Sewell Forgings Pty Ltd (1995) 17 ACSR 602 ; Re Madden (1996) 20 ACSR 10.
Case: Re Madden (1996) 20 ACSR 10
Outcome: followed
Section 447A of the Act empowers the Court to make such order as it thinks appropriate about how Pt 5.3A is to operate in relation to a particular company. The section is broad enough to permit the making of an order that has some retrospective effect, and, in particular, the effect of overcoming the ending of an administration that has occurred by the operation of the Act; see Re Greg Sewell Forgings Pty Ltd (1995) 17 ACSR 602 ; Re Madden (1996) 20 ACSR 10.
Case: NBCM v Minister for Immigration &amp; Multicultural Affairs [2006] FCA 1150
Outcome: cited
In those circumstances, for the reasons given in VUAV v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1271 at [10] to [13] and NBCM v Minister for Immigration &amp; Multicultural Affairs [2006] FCA 1150 at [13] , the "Statement Claim" and the information therein fell within s 424A(3)(b) of the Act. I note that an application for special leave to appeal to the High Court in VUAV was refused on 12 April 2006 ( VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA Trans 183). Gummow J specifically said on that occasion that ' no error is apparent in Merkel J's decision upon the applicability of section 424A '. On that basis special leave was refused.
Case: VUAV v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1271
Outcome: cited
In those circumstances, for the reasons given in VUAV v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1271 at [10] to [13] and NBCM v Minister for Immigration &amp; Multicultural Affairs [2006] FCA 1150 at [13] , the "Statement Claim" and the information therein fell within s 424A(3)(b) of the Act. I note that an application for special leave to appeal to the High Court in VUAV was refused on 12 April 2006 ( VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA Trans 183). Gummow J specifically said on that occasion that ' no error is apparent in Merkel J's decision upon the applicability of section 424A '. On that basis special leave was refused.
Case: VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA Trans 183
Outcome: cited
In those circumstances, for the reasons given in VUAV v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1271 at [10] to [13] and NBCM v Minister for Immigration &amp; Multicultural Affairs [2006] FCA 1150 at [13] , the "Statement Claim" and the information therein fell within s 424A(3)(b) of the Act. I note that an application for special leave to appeal to the High Court in VUAV was refused on 12 April 2006 ( VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA Trans 183). Gummow J specifically said on that occasion that ' no error is apparent in Merkel J's decision upon the applicability of section 424A '. On that basis special leave was refused.
Case: Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564
Outcome: followed
Customs argued that the question of construction addressed by its proposed declaration was not determinative in the Tribunal but would be likely to be determinative if the matter were remitted. I do not agree. The characterisation of the goods would remain a question of fact on any remitter. The construction in the proposed declaration does not clarify whether the goods are or are not 'special insoles' or orthopaedic appliances outside Note 6 to Chapter 90, as I have held. Declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions: Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 582 per Mason CJ, Dawson, Toohey and Gaudron JJ. The proposed declaration does not answer any question in respect of the goods. It is framed in the abstract.
Case: Chandler &amp; Co v Collector of Customs [1907] HCA 81 ; (1907) 4 CLR 1719
Outcome: followed
As the Tribunal noted, a classifier of goods for the purpose of a customs tariff must look objectively at the goods in their condition as imported in order to identify objectively their classification for duty: Chinese Food and Wine Supplies v Collector of Customs (Vic) (1987) 72 ALR 591 at 599 per Lockhart J with whom Woodward and Ryan JJ agreed. The subjective intention of the manufacturer, exporter or importer is not relevant to this task. In Times Consultants Pty Ltd v Collector of Customs (Qld) (1987) 16 FCR 449 at 463, Morling and Wilcox JJ said that the classification of goods for tariff purposes was a practical, 'wharf-side' task. Morling and Wilcox JJ also said that the classifier had to consider the characteristics of the goods themselves as they would present to an informed observer. The heart of the exercise is to determine the essential character of the goods by reference to their state or condition at the time of importation ( Times Consultants 16 FCR at 462). Barton J said in Chandler &amp; Co v Collector of Customs [1907] HCA 81 ; (1907) 4 CLR 1719 at 1729: '... the dutiable classification of an imported article must be ascertained by an examination of the article itself, in the condition in which it is imported.' 38 As noted above, there were many references in the evidence about particular views of what an orthosis could be called. The Tribunal did not need to go through each of these explaining its conclusions about them. Its task, as the classifier, was to examine the goods in the condition in which they were imported and form its assessment of their essential character as an informed observer: Chandler 4 CLR at 1729 per Barton J; Times Consultants 16 FCR at 462 per Morling and Wilcox JJ.
Case: Chinese Food and Wine Supplies v Collector of Customs (Vic) (1987) 72 ALR 591
Outcome: followed
As the Tribunal noted, a classifier of goods for the purpose of a customs tariff must look objectively at the goods in their condition as imported in order to identify objectively their classification for duty: Chinese Food and Wine Supplies v Collector of Customs (Vic) (1987) 72 ALR 591 at 599 per Lockhart J with whom Woodward and Ryan JJ agreed. The subjective intention of the manufacturer, exporter or importer is not relevant to this task. In Times Consultants Pty Ltd v Collector of Customs (Qld) (1987) 16 FCR 449 at 463, Morling and Wilcox JJ said that the classification of goods for tariff purposes was a practical, 'wharf-side' task. Morling and Wilcox JJ also said that the classifier had to consider the characteristics of the goods themselves as they would present to an informed observer. The heart of the exercise is to determine the essential character of the goods by reference to their state or condition at the time of importation ( Times Consultants 16 FCR at 462). Barton J said in Chandler &amp; Co v Collector of Customs [1907] HCA 81 ; (1907) 4 CLR 1719 at 1729: '... the dutiable classification of an imported article must be ascertained by an examination of the article itself, in the condition in which it is imported.'
Case: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: followed
Brennan J said in Repatriation Commission v O'Brien [1985] HCA 10 ; (1985) 155 CLR 422 at 446 that a decision of the Tribunal , if it is made in accordance with the statutory provisions that govern the exercise of its power, is not invalidated by a mere failure to expose fully the reasons for making it. Although that was a dissenting judgment, the principle his Honour stated is of general application (see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 349 [75] per McHugh, Gummow and Hayne JJ). Of course, much will depend on the extent of the decision-maker's exposure of a reasoning process in determining whether or not the decision can stand. So, in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212 at 224 [39] , Gleeson CJ, Gummow and Heydon JJ referred to the authorities which enabled a court to infer that, where a decision-maker did not give any reason for his or her decision, he or she had no good reason for it. That is not this case. An obligation to give reasons, such as is found in s 43(2B) of the Administrative Appeals Tribunal Act , did not oblige the Tribunal to give a subset of reasons why it accepted or rejected individual pieces of evidence. It is sufficient if the Tribunal, as the decision-maker, sets out its findings 'on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision': Yusuf 206 CLR at 349 [68] per McHugh, Gummow and Hayne JJ; see too Repatriation Commission v Cotton (2006) 93 ALD 118 at 128 [42] where I cited the authorities and SZCOQ v Minister for Immigration and Multicultural Affairs [2007] FCAFC 9 at [14] per Moore J, [27]-[28] per Besanko J, and [53]-[61] per Buchanan J (dissenting).
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407; 74 ALJR 405
Outcome: cited
I am satisfied that the Tribunal addressed the correct question, understood the arguments and had regard to all relevant considerations and ignored irrelevant ones. This was a situation in which the Tribunal was not obliged to give more reasons than s 43(2B) of the Administrative Appeals Tribunal Act required. It set out its findings on material questions of fact and referred to the evidence and other material on which they were based, explaining logically why it came to the characterisation it did: cf: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at 422-423; [2000] HCA 1 ; 74 ALJR 405 at 416-417 [65] - [67] per McHugh J. As Davies and Beazley JJ said in Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 at 13F-G, it is fundamentally a question of fact whether goods have an essential character and what that character is (see too at 14G-15B; and per Hill J at 16A).
Case: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212
Outcome: cited
Brennan J said in Repatriation Commission v O'Brien [1985] HCA 10 ; (1985) 155 CLR 422 at 446 that a decision of the Tribunal , if it is made in accordance with the statutory provisions that govern the exercise of its power, is not invalidated by a mere failure to expose fully the reasons for making it. Although that was a dissenting judgment, the principle his Honour stated is of general application (see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 349 [75] per McHugh, Gummow and Hayne JJ). Of course, much will depend on the extent of the decision-maker's exposure of a reasoning process in determining whether or not the decision can stand. So, in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212 at 224 [39] , Gleeson CJ, Gummow and Heydon JJ referred to the authorities which enabled a court to infer that, where a decision-maker did not give any reason for his or her decision, he or she had no good reason for it. That is not this case. An obligation to give reasons, such as is found in s 43(2B) of the Administrative Appeals Tribunal Act , did not oblige the Tribunal to give a subset of reasons why it accepted or rejected individual pieces of evidence. It is sufficient if the Tribunal, as the decision-maker, sets out its findings 'on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision': Yusuf 206 CLR at 349 [68] per McHugh, Gummow and Hayne JJ; see too Repatriation Commission v Cotton (2006) 93 ALD 118 at 128 [42] where I cited the authorities and SZCOQ v Minister for Immigration and Multicultural Affairs [2007] FCAFC 9 at [14] per Moore J, [27]-[28] per Besanko J, and [53]-[61] per Buchanan J (dissenting). 61 Ordinarily, where an appeal is brought under s 44 of the Administrative Appeals Tribunal Act , it will not be appropriate also to entertain proceeding for relief under the Administrative Decisions (Judicial Review) Act or s 39B(1A) of the Judiciary Act : Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 484 per Davies J; but where, as here, there is a potential that the proper construction of the words in the Customs Tariff Act may not raise a question of law under s 44, judicial review proceedings to enable all issues to be resolved may be appropriate: see s 22 of the Federal Court of Australia Act 1976 (Cth) and cp: Rich v CGU Insurance Ltd [2005] HCA 16 ; (2005) 214 ALR 370 at 375 [20] per Gleeson CJ, McHugh and Gummow JJ. I have considered the matter on both bases.
Case: Repatriation Commission v O'Brien [1985] HCA 10 ; (1985) 155 CLR 422
Outcome: cited
Brennan J said in Repatriation Commission v O'Brien [1985] HCA 10 ; (1985) 155 CLR 422 at 446 that a decision of the Tribunal , if it is made in accordance with the statutory provisions that govern the exercise of its power, is not invalidated by a mere failure to expose fully the reasons for making it. Although that was a dissenting judgment, the principle his Honour stated is of general application (see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 349 [75] per McHugh, Gummow and Hayne JJ). Of course, much will depend on the extent of the decision-maker's exposure of a reasoning process in determining whether or not the decision can stand. So, in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212 at 224 [39] , Gleeson CJ, Gummow and Heydon JJ referred to the authorities which enabled a court to infer that, where a decision-maker did not give any reason for his or her decision, he or she had no good reason for it. That is not this case. An obligation to give reasons, such as is found in s 43(2B) of the Administrative Appeals Tribunal Act , did not oblige the Tribunal to give a subset of reasons why it accepted or rejected individual pieces of evidence. It is sufficient if the Tribunal, as the decision-maker, sets out its findings 'on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision': Yusuf 206 CLR at 349 [68] per McHugh, Gummow and Hayne JJ; see too Repatriation Commission v Cotton (2006) 93 ALD 118 at 128 [42] where I cited the authorities and SZCOQ v Minister for Immigration and Multicultural Affairs [2007] FCAFC 9 at [14] per Moore J, [27]-[28] per Besanko J, and [53]-[61] per Buchanan J (dissenting).
Case: Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6
Outcome: followed
I am satisfied that the Tribunal addressed the correct question, understood the arguments and had regard to all relevant considerations and ignored irrelevant ones. This was a situation in which the Tribunal was not obliged to give more reasons than s 43(2B) of the Administrative Appeals Tribunal Act required. It set out its findings on material questions of fact and referred to the evidence and other material on which they were based, explaining logically why it came to the characterisation it did: cf: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at 422-423; [2000] HCA 1 ; 74 ALJR 405 at 416-417 [65] - [67] per McHugh J. As Davies and Beazley JJ said in Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 at 13F-G, it is fundamentally a question of fact whether goods have an essential character and what that character is (see too at 14G-15B; and per Hill J at 16A).