mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Limited [1953] HCA 22 ; (1953) 88 CLR 100
Outcome: referred to
If a decision-maker does not give any reason for his or her decision, a court may be able to infer that the decision-maker had no good reason for it: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212 at 224 [39] per Gleeson CJ, Gummow and Heydon JJ. They pointed out that the decision in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Limited [1953] HCA 22 ; (1953) 88 CLR 100 at 120 had held that where a constitutional writ of prohibition was sought, the inadequacy of material on which the decision-maker acted might support the inference that the decision-maker had applied the wrong test or was not in reality satisfied of the requisite matters: Palme 216 CLR at 223 [39].
Case: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212
Outcome: cited
If a decision-maker does not give any reason for his or her decision, a court may be able to infer that the decision-maker had no good reason for it: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212 at 224 [39] per Gleeson CJ, Gummow and Heydon JJ. They pointed out that the decision in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Limited [1953] HCA 22 ; (1953) 88 CLR 100 at 120 had held that where a constitutional writ of prohibition was sought, the inadequacy of material on which the decision-maker acted might support the inference that the decision-maker had applied the wrong test or was not in reality satisfied of the requisite matters: Palme 216 CLR at 223 [39].
Case: Repatriation Commission v Tuite [1993] FCA 39 ; (1993) 39 FCR 540
Outcome: applied
The relevant question for the tribunal was whether there was a reasonable hypothesis that Mr Gilkinson's shift work during the period of his operational service prior to the diagnosis of obesity in June 1971 contributed causally to his being obese at this time. The fact that prior to his operational service Mr Gilkinson may have been well on the way to that physical state, did not mean that when he arrived there his obesity had not arisen out of or been attributable to his operational service at all. The tribunal made findings which dealt with only three of the four factors mentioned by Dr Volker. It gave no reasons why, despite her opinion and her references to literature supporting the theory, shift work could not have contributed to Mr Gilkerson's obesity which first occurred during his operational service: Repatriation Commission v Tuite [1993] FCA 39 ; (1993) 39 FCR 540 at 542 per Davies J. As Burchett and Einfeld JJ said in Tuite 39 FCR at 545: "It is true that not everything which occurs while a man is in camp is attributable to his war service. But here the circumstances and incidents of camp life were plainly capable of having a causal influence upon the respondent's decision to take up smoking, and upon his continuance in the habit until the inevitable onset of nicotinic addiction." (emphasis added) 20 Burchett and Einfeld JJ thus found that it was open to the tribunal in that case to conclude that a consequence of camp life is a consequence of war service. Likewise, here it was open to the tribunal to find that a consequence of Mr Gilkinson continuing with shift work during operational service was the onset of obesity. The hypothesis put forward by Dr Volker and the undisputed fact that Mr Gilkinson was undertaking shift work, had been raised before the tribunal. But, the tribunal did not expressly consider in its reasons the impact of shift work either alone or in combination with Mr Glkinson's eating to excess and not exercising sufficiently. All it did was to assert that "nothing that occurred during his operational service" prior to the assumed onset of sleep apnoea "in any way caused or contributed to his obesity over and above the existing fact that [he] was eating to excess and not exercising sufficiently". 21 Mr Gilkinson actually became obese during his operational service, notwithstanding that before that time he was well on the way to being obese. Dr Volker's hypothesis was that the shift work itself that Mr Gilkinson was undertaking during operational service, contributed to his being obese. This issue was like the veteran's having continued to smoke in Tuite 39 FCR at 545 amounting to a matter that the tribunal could conclude was a contributing factor to the veteran's addiction to nicotine. However, the tribunal did not consider or make any finding relating to whether Mr Gilkinson's obesity arose out of or was attributable to the shift work he engaged in on operational service.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12
Outcome: cited
The appellant further contends that the Tribunal failed to investigate his claims and was actuated by actual bias. Plainly enough, the Tribunal has power to seek information but has no duty to investigate the appellant's claims by conducting its own inquiries to test particular evidence put to the Tribunal or to seek out corroborative or contradictory evidence. It may elect to make inquiries. However, it has no obligation to either exercise the statutory power to make inquiry or to make findings that the particular matter under review does not warrant the exercise of any power to seek information ( Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 per Gummow and Hayne JJ at [43]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 per Black CJ, Sundberg and Bennett JJ at [20]). The power to seek information is entirely permissive. Moreover, the failure to exercise a power to obtain further information does not constitute either actual bias or an apprehension of bias. Bias must be clearly demonstrated. The written decision record does not suggest any basis for a contention of actual bias and nor is there any material which suggests to the reasonable observer any basis for apprehended bias ( Minister for Immigration and Multicultural and Indigenous Affairs v JIA [2001] HCA 17 ; (2001) 205 CLR 507 per Gleeson CJ and Gummow J at [69]; SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 per Tamberlin, Mansfield and Jacobson JJ at [16]).
Case: Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Outcome: cited
The appellant further contends that the Tribunal failed to investigate his claims and was actuated by actual bias. Plainly enough, the Tribunal has power to seek information but has no duty to investigate the appellant's claims by conducting its own inquiries to test particular evidence put to the Tribunal or to seek out corroborative or contradictory evidence. It may elect to make inquiries. However, it has no obligation to either exercise the statutory power to make inquiry or to make findings that the particular matter under review does not warrant the exercise of any power to seek information ( Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 per Gummow and Hayne JJ at [43]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 per Black CJ, Sundberg and Bennett JJ at [20]). The power to seek information is entirely permissive. Moreover, the failure to exercise a power to obtain further information does not constitute either actual bias or an apprehension of bias. Bias must be clearly demonstrated. The written decision record does not suggest any basis for a contention of actual bias and nor is there any material which suggests to the reasonable observer any basis for apprehended bias ( Minister for Immigration and Multicultural and Indigenous Affairs v JIA [2001] HCA 17 ; (2001) 205 CLR 507 per Gleeson CJ and Gummow J at [69]; SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 per Tamberlin, Mansfield and Jacobson JJ at [16]).
Case: Minister for Immigration and Multicultural and Indigenous Affairs v JIA [2001] HCA 17 ; (2001) 205 CLR 507
Outcome: cited
The appellant further contends that the Tribunal failed to investigate his claims and was actuated by actual bias. Plainly enough, the Tribunal has power to seek information but has no duty to investigate the appellant's claims by conducting its own inquiries to test particular evidence put to the Tribunal or to seek out corroborative or contradictory evidence. It may elect to make inquiries. However, it has no obligation to either exercise the statutory power to make inquiry or to make findings that the particular matter under review does not warrant the exercise of any power to seek information ( Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 per Gummow and Hayne JJ at [43]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 per Black CJ, Sundberg and Bennett JJ at [20]). The power to seek information is entirely permissive. Moreover, the failure to exercise a power to obtain further information does not constitute either actual bias or an apprehension of bias. Bias must be clearly demonstrated. The written decision record does not suggest any basis for a contention of actual bias and nor is there any material which suggests to the reasonable observer any basis for apprehended bias ( Minister for Immigration and Multicultural and Indigenous Affairs v JIA [2001] HCA 17 ; (2001) 205 CLR 507 per Gleeson CJ and Gummow J at [69]; SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 per Tamberlin, Mansfield and Jacobson JJ at [16]).
Case: SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358
Outcome: cited
The appellant further contends that the Tribunal failed to investigate his claims and was actuated by actual bias. Plainly enough, the Tribunal has power to seek information but has no duty to investigate the appellant's claims by conducting its own inquiries to test particular evidence put to the Tribunal or to seek out corroborative or contradictory evidence. It may elect to make inquiries. However, it has no obligation to either exercise the statutory power to make inquiry or to make findings that the particular matter under review does not warrant the exercise of any power to seek information ( Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 per Gummow and Hayne JJ at [43]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 per Black CJ, Sundberg and Bennett JJ at [20]). The power to seek information is entirely permissive. Moreover, the failure to exercise a power to obtain further information does not constitute either actual bias or an apprehension of bias. Bias must be clearly demonstrated. The written decision record does not suggest any basis for a contention of actual bias and nor is there any material which suggests to the reasonable observer any basis for apprehended bias ( Minister for Immigration and Multicultural and Indigenous Affairs v JIA [2001] HCA 17 ; (2001) 205 CLR 507 per Gleeson CJ and Gummow J at [69]; SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 per Tamberlin, Mansfield and Jacobson JJ at [16]).
Case: Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540
Outcome: followed
the lack of any direct written evidence of an agreement between Adnunat and ITW, Adnunat contends that one must be inferred from their conduct. A contract may in certain circumstances be inferred from conduct, even where no offer and acceptance can be identified: see Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 97326 ; Vroon BV v Foster's Brewing Group Ltd [1994] 2 VR 32 ( Vroon ); Industrial Rollformers [2001] NSWCA 111 ; (2001) Aust Contract R 90-129. However the existence or otherwise of an enforceable agreement depends ultimately on the manifest intention of the parties, objectively ascertained: see Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 548-50 (Gleeson CJ) and his Honour's reference to Gissing v Gissing [1970] UKHL 3 ; [1971] AC 886 ; see also Cheshire &amp; Fifoot's Law of Contract (9 th ed, LexisNexis, 2008) at [3.5] and [3.9]. Where mutual promises are sought to be inferred, the conduct relied upon must, on an objective assessment, evince a tacit agreement with sufficiently clear terms. It is not enough that the conduct is consistent with what are alleged to be the terms of a binding agreement. The evidence must positively indicate that both parties considered themselves bound by that agreement: Industrial Rollformers [2001] NSWCA 111 ; (2001) Aust Contract R 90-129 at [137] - [138] and [142]; Pacific Brands Sport &amp; Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 ( Pacific Brands ) at [47].
Case: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720
Outcome: applied
principles governing the operation of s 31A of the Act were canvassed in detail by Lindgren J in White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 ( White Industries ) and Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720 ( Boston ). In White Industries 160 FCR at [59], Lindgren J considered that a claim requires "real" as opposed to "fanciful" or "merely arguable" prospects in order for it to have reasonable prospects of success as required by s 31A. Justice Rares in Boston 236 ALR at [45] was of the view that, unless there are no real issues of fact such that "only one conclusion can be said to be reasonable" summary judgment (or dismissal) ought not be given pursuant to s 31A. The Full Court has recently considered the summary judgment standard in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372 (Finkelstein, Rares and Gordon JJ) ( Jefferson Ford ). Although different views were taken as to the precise operation of s 31A, the following principles appear to have been endorsed:
Case: Gissing v Gissing [1970] UKHL 3 ; [1971] AC 886
Outcome: cited
the lack of any direct written evidence of an agreement between Adnunat and ITW, Adnunat contends that one must be inferred from their conduct. A contract may in certain circumstances be inferred from conduct, even where no offer and acceptance can be identified: see Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 97326 ; Vroon BV v Foster's Brewing Group Ltd [1994] 2 VR 32 ( Vroon ); Industrial Rollformers [2001] NSWCA 111 ; (2001) Aust Contract R 90-129. However the existence or otherwise of an enforceable agreement depends ultimately on the manifest intention of the parties, objectively ascertained: see Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 548-50 (Gleeson CJ) and his Honour's reference to Gissing v Gissing [1970] UKHL 3 ; [1971] AC 886 ; see also Cheshire &amp; Fifoot's Law of Contract (9 th ed, LexisNexis, 2008) at [3.5] and [3.9]. Where mutual promises are sought to be inferred, the conduct relied upon must, on an objective assessment, evince a tacit agreement with sufficiently clear terms. It is not enough that the conduct is consistent with what are alleged to be the terms of a binding agreement. The evidence must positively indicate that both parties considered themselves bound by that agreement: Industrial Rollformers [2001] NSWCA 111 ; (2001) Aust Contract R 90-129 at [137] - [138] and [142]; Pacific Brands Sport &amp; Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 ( Pacific Brands ) at [47].
Case: Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920
Outcome: cited
is necessary to refer in some detail to the circumstances that have given rise to the current litigation and this application for summary judgment. I should emphasise that, in what follows, I make no findings of fact: see Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920 at [6] (Finkelstein J); Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1 at 282. Rather, what follows is a summary of the evidence adduced by Adnunat, given by way of an affidavit of Mr Marco Olivetti, its General Manager. Aside from a short affidavit exhibiting a business name extract of the second applicant, ITW adduced no other evidence. Earlier proceedings
Case: Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 97326
Outcome: cited
the lack of any direct written evidence of an agreement between Adnunat and ITW, Adnunat contends that one must be inferred from their conduct. A contract may in certain circumstances be inferred from conduct, even where no offer and acceptance can be identified: see Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 97326 ; Vroon BV v Foster's Brewing Group Ltd [1994] 2 VR 32 ( Vroon ); Industrial Rollformers [2001] NSWCA 111 ; (2001) Aust Contract R 90-129. However the existence or otherwise of an enforceable agreement depends ultimately on the manifest intention of the parties, objectively ascertained: see Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 548-50 (Gleeson CJ) and his Honour's reference to Gissing v Gissing [1970] UKHL 3 ; [1971] AC 886 ; see also Cheshire &amp; Fifoot's Law of Contract (9 th ed, LexisNexis, 2008) at [3.5] and [3.9]. Where mutual promises are sought to be inferred, the conduct relied upon must, on an objective assessment, evince a tacit agreement with sufficiently clear terms. It is not enough that the conduct is consistent with what are alleged to be the terms of a binding agreement. The evidence must positively indicate that both parties considered themselves bound by that agreement: Industrial Rollformers [2001] NSWCA 111 ; (2001) Aust Contract R 90-129 at [137] - [138] and [142]; Pacific Brands Sport &amp; Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 ( Pacific Brands ) at [47].
Case: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372
Outcome: applied
principles governing the operation of s 31A of the Act were canvassed in detail by Lindgren J in White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 ( White Industries ) and Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720 ( Boston ). In White Industries 160 FCR at [59], Lindgren J considered that a claim requires "real" as opposed to "fanciful" or "merely arguable" prospects in order for it to have reasonable prospects of success as required by s 31A. Justice Rares in Boston 236 ALR at [45] was of the view that, unless there are no real issues of fact such that "only one conclusion can be said to be reasonable" summary judgment (or dismissal) ought not be given pursuant to s 31A. The Full Court has recently considered the summary judgment standard in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372 (Finkelstein, Rares and Gordon JJ) ( Jefferson Ford ). Although different views were taken as to the precise operation of s 31A, the following principles appear to have been endorsed: Precisely how a claim is assessed will depend on the nature of the cause of action, as well as the identity of the parties, the pleaded facts and the evidence adduced: see Jefferson Ford 167 FCR at [126] (Gordon J). Although this application is for dismissal of ITW's cross-claim, the allegations to be assessed are not concerned with the claim of invalidity. They concern the alleged existence of a separate and distinct agreement. That agreement and its alleged terms arise in the first instance as part of Adnunat's primary claim: see pars 14 20, esp 17 19, of the applicants' statement of claim. As a consequence, granting the relief sought by Adnunat on this application would have the effect of determining, summarily and in its favour, an important aspect of Adnunat's own claim, which it would otherwise have to prove at trial. It is in that context that ITW advanced no substantive evidence in response to the matters deposed to by Mr Olivetti. The thrust of ITW's submissions appeared to be that Adnunat, bearing the ultimate onus of proving that a binding agreement exists, failed to demonstrate even a prima facie case that ITW has no reasonable prospects of successfully proving otherwise. Consideration
Case: Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1
Outcome: cited
is necessary to refer in some detail to the circumstances that have given rise to the current litigation and this application for summary judgment. I should emphasise that, in what follows, I make no findings of fact: see Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920 at [6] (Finkelstein J); Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1 at 282. Rather, what follows is a summary of the evidence adduced by Adnunat, given by way of an affidavit of Mr Marco Olivetti, its General Manager. Aside from a short affidavit exhibiting a business name extract of the second applicant, ITW adduced no other evidence. Earlier proceedings