mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Comcare v Sahu-Khan [2007] FCA 15 ; (2007) 156 FCR 536
Outcome: cited
Tribunal then returned to the concept of " material contribution ". At this point in its reasons, it referred to and discussed the judgment of Finn J in Comcare v Sahu-Khan [2007] FCA 15 ; (2007) 156 FCR 536. The Tribunal then concluded its Reasons with the following (at [60]): After considering all the evidence, in particular the possible factors that may have contributed to the onset or aggravation of the Applicant's psychiatric condition, we find that the circumstances of the Applicant's employment with Centrelink did not substantially contribute to his disease. Mr Nelson is not entitled to compensation pursuant to section 14 of the Act. It follows that he is not entitled to compensation in respect of medical expenses under section 16, nor is he entitled to compensation for incapacity under sections 19 , 20 , 21 or 21A of the Act. The only places that the concept of " aggravation of an ailment " were mentioned at all in the Tribunal's Reasons was at [5] (when s 4 of the Act was extracted) and at [60]. In the present case, in order to make good the contention concerning aggravation of an existing ailment which the applicant submits was advanced to the Tribunal, the applicant would need to demonstrate that, at the time he commenced his employment with Centrelink, he was suffering an ailment within the relevant definition and that that ailment was aggravated (ie made more severe) by his employment by Centrelink or that the aggravation was contributed to in a material degree by his employment by Centrelink. The notion of material contribution was explained by Finn J in Sahu-Khan [2007] FCA 15 ; 156 FCR 536. In that case, his Honour concluded that, in order to assess whether the aggravation of an ailment was contributed to in a material degree by the employee's employment, the Court was obliged to evaluate all relevant contributing factors in order to determine whether the employment made a contribution which was more than a mere contributing factor. His Honour described the exercise as a matter of fact and degree ( Sahu-Khan [2007] FCA 15 ; 156 FCR 536 at [16] (p 542 543)). The fundamental premise of the applicant's argument is that the Tribunal simply failed to address his case based upon alleged aggravation of an existing ailment (viz his underlying psychiatric condition). The Tribunal described the applicant's complaint at [1] of its Reasons as a complaint to the effect that his psychological condition was sustained because of his employment. That language tends to suggest that the Tribunal regarded the applicant's case as being confined to a case based upon the contention that he sustained an ailment as an employee of Centrelink, being an ailment that was contributed to in a material degree by Centrelink. The terms of the general formulation of the issue in [1] of the Tribunal's Reasons tend to suggest that the Tribunal did not regard aggravation of an existing ailment as being an alternative basis for the applicant's claims before it.
Case: Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267
Outcome: applied
applicant did argue before the Tribunal that his underlying condition had been aggravated by his employment in the sense contemplated by the definitions in s 4 of the Act. The argument was not developed much but this does not detract from the fact that the argument was put. The Tribunal was obliged to turn its mind to the argument and to deal with the question of aggravation. It was a significant part of the applicant's case before the Tribunal. The argument was seriously advanced by the applicant and was worthy of serious consideration. Whilst it is true that the Tribunal is not required to consider and address every submission made to it, serious submissions of the type to which I have just alluded must be addressed ( Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 at 276 277 per Jenkinson J). It is an error of law for the Tribunal not to consider such a submission and not to reveal its consideration of that submission in its Reasons for Decision (see Hartnett v Migration Agents Registration Authority [2004] FCA 50 at [50] ; and Australian Postal Corporation v Sellick [2008] FCA 236 ; (2008) 245 ALR 561 at [88] [89] (pp 579 480)). This statement of principle is consistent with the more general statements of principle directed to giving content to the concept of error of law made by the Full Court in Repatriation Commission v Hill [2002] FCAFC 192 ; (2002) 69 ALD 581 at [59] (pp 597 598).
Case: Hartnett v Migration Agents Registration Authority [2004] FCA 50
Outcome: applied
applicant did argue before the Tribunal that his underlying condition had been aggravated by his employment in the sense contemplated by the definitions in s 4 of the Act. The argument was not developed much but this does not detract from the fact that the argument was put. The Tribunal was obliged to turn its mind to the argument and to deal with the question of aggravation. It was a significant part of the applicant's case before the Tribunal. The argument was seriously advanced by the applicant and was worthy of serious consideration. Whilst it is true that the Tribunal is not required to consider and address every submission made to it, serious submissions of the type to which I have just alluded must be addressed ( Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 at 276 277 per Jenkinson J). It is an error of law for the Tribunal not to consider such a submission and not to reveal its consideration of that submission in its Reasons for Decision (see Hartnett v Migration Agents Registration Authority [2004] FCA 50 at [50] ; and Australian Postal Corporation v Sellick [2008] FCA 236 ; (2008) 245 ALR 561 at [88] [89] (pp 579 480)). This statement of principle is consistent with the more general statements of principle directed to giving content to the concept of error of law made by the Full Court in Repatriation Commission v Hill [2002] FCAFC 192 ; (2002) 69 ALD 581 at [59] (pp 597 598).
Case: Martin v Australian Postal Corporation [1999] FCA 655
Outcome: cited
was submitted on behalf of the applicant that an ailment will be aggravated within the meaning of those expressions in the definitions contained in s 4 of the Act if it becomes more severe or is hastened in some way. The terms aggravation and acceleration in the present context have been given their normal English meanings in judgments of this Court (see Casarotto v Australian Postal Commission [1989] FCA 116 ; (1989) 86 ALR 399 at 404 405 and Martin v Australian Postal Corporation [1999] FCA 655 at [22] [28]).
Case: Repatriation Commission v Hill [2002] FCAFC 192 ; (2002) 69 ALD 581
Outcome: cited
applicant did argue before the Tribunal that his underlying condition had been aggravated by his employment in the sense contemplated by the definitions in s 4 of the Act. The argument was not developed much but this does not detract from the fact that the argument was put. The Tribunal was obliged to turn its mind to the argument and to deal with the question of aggravation. It was a significant part of the applicant's case before the Tribunal. The argument was seriously advanced by the applicant and was worthy of serious consideration. Whilst it is true that the Tribunal is not required to consider and address every submission made to it, serious submissions of the type to which I have just alluded must be addressed ( Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 at 276 277 per Jenkinson J). It is an error of law for the Tribunal not to consider such a submission and not to reveal its consideration of that submission in its Reasons for Decision (see Hartnett v Migration Agents Registration Authority [2004] FCA 50 at [50] ; and Australian Postal Corporation v Sellick [2008] FCA 236 ; (2008) 245 ALR 561 at [88] [89] (pp 579 480)). This statement of principle is consistent with the more general statements of principle directed to giving content to the concept of error of law made by the Full Court in Repatriation Commission v Hill [2002] FCAFC 192 ; (2002) 69 ALD 581 at [59] (pp 597 598).
Case: SZCJH v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1660
Outcome: applied
For these reasons, the 'information' concerning the student visa application was not 'part of the reason' for affirming the delegate's decision and therefore did not engage the obligations in s 424A(1): SZCJH v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1660 at [23] . Alternatively, the existence of these independent bases for the decision means that a grant of relief would lack utility: cf. SZEEU v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCAFC 2 at [232] , [233].
Case: SZEEU v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCAFC 2
Outcome: considered
For these reasons, the 'information' concerning the student visa application was not 'part of the reason' for affirming the delegate's decision and therefore did not engage the obligations in s 424A(1): SZCJH v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1660 at [23] . Alternatively, the existence of these independent bases for the decision means that a grant of relief would lack utility: cf. SZEEU v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCAFC 2 at [232] , [233].
Case: Anthony Hordern &amp; Sons Ltd v Amalgamated Clothing &amp; Allied Trades Union of Australia [1932] HCA 9 ; (1932) 47 CLR 1
Outcome: cited
Against the legislative background outlined above, the issue is whether the 6 month time limit on exercising the compulsory acquisition power is a condition and restriction "which must be observed" ( Anthony Hordern &amp; Sons Ltd v Amalgamated Clothing &amp; Allied Trades Union of Australia [1932] HCA 9 ; (1932) 47 CLR 1 at 7) or a "condition, limitation or direction" which has the effect of "appointing a course to be followed" ( R v Wallis ; Ex parte Employers Association of Wool-Selling Brokers and H V McKay Massey Harris Pty Ltd [1949] HCA 30 ; (1949) 78 CLR 529 at 550), in each case, to the exclusion of the general power in s 1322(4)(d).
Case: Batoka Pty Ltd v Conocophillips WA-248 Pty Ltd [2006] WASCA 44
Outcome: referred to
Mitsui points to further extrinsic material which it submits is also relevant to understanding the policy considerations underpinning Part 6A.2 of the Act . I have set these out below. These were intended to emphasise that, in part, the policy considerations and legislative objective were to remove the potential of minority shareholders from demanding a price for their securities that is above fair value, a practice commonly described as 'greenmailing': Capricorn Diamonds Investments Pty Ltd v Catto [2002] VSC 105 ; (2002) 5 VR 61 at [28] cited with approval by Steytler P in Batoka Pty Ltd v Conocophillips WA-248 Pty Ltd [2006] WASCA 44 at [40] . 56 Hanwha submits that, having regard to the legislative background material and the legislative scheme itself, the intention may be discerned that the 90% holder exercise its compulsory acquisition power, or gift, within the relevant 6 month period or 'lose that right' to echo the words of the Parliamentary Joint Committee. I do not agree. The material to which I have referred does not give paramountcy to the interests of minority shareholders. The legislation is a balancing exercise involving a number of competing considerations. Indeed there is an important national economic perspective discernible particularly in the Explanatory Memorandum. Protection of minority shareholders is but one of a number of objects. For example, one primary object in the legislative scheme identified by Steytler P in Batoka [39] was that shares are acquired at fair value. 57 This intention, Hanwha says, is also manifest in the words "only if" and its location within s 664AA , and that to permit s 1322(4)(d) to override the time limit expressed in such emphatic terms in s 644AA is to deny meaning to the word "only". 58 Hanwha submits that in its context, the word "only" has the role of meaning "not otherwise", rather than that of merely providing a non imperative emphasis to the time limit. There is no basis, it contends, for not giving full force and effect to the meaning of the word "only" in circumstances where a fixed time period is prescribed in emphatic terms in relation to the exercise of a statutory power to expropriate shares.
Case: BP Australia Ltd v Brown (2003) 58 NSWLR 332
Outcome: discussed
Hanwha contends that s 1322(4)(d) is not a relevant source of power for the Court to extend time under s 664AA(b) of the Act . It points to the context of Part 6A.2 Division 1 of the Act , by which a minority shareholder is at risk of having his or her shares compulsorily acquired by a 90% holder. Hanwha submits that the time limit in s 664AA(b) has the effect that, at the end of the period of 6 months, such a person will know whether his or her shares remain at risk of being compulsorily acquired and, if they do, at what price. This, it says, is a perfectly reasonable requirement in a legislative scheme which seeks to balance conflicting commercial interests of this character. It follows, so Hanwha contends, that a 90% holder, who wishes to avail himself of the power to compulsorily acquire, must act within the time period of 6 months set out in s 664AA: cf BP Australia Ltd v Brown (2003) 58 NSWLR 332 per Spigelman CJ in at [115]. 52 In concluding that s 1322(4)(d) had to yield to the specific provisions of s 1317HD(2), Byrne J followed not only David Grant but also BP Australia Ltd , which was very similar to Newtronics, involving as it did an attempt to rely upon s 1322(4)(d) in order to extend the statutory time limit prescribed by s 588FF(3) of the Act for liquidators bringing an application to the Court for orders with respect to voidable transactions. 59 However, I do not consider the use of the word "only" to be determinative of the question. I respectfully agree with the observations of Spigelman CJ in BP Australia Ltd. There, the Chief Justice, with whose judgment the other members of the Court agreed, considered the significance of the word "only". He said at [88]: The word "only" in a time limitation statutory provision can characterise the provision as a "time so emphatically prescribed". ( Texel Pty Ltd v Commonwealth Bank of Australia [1994] 2 VR 298 at 300; per Hayne J, in a case under s 459G which was a precursor of David Grant v Westpac ) . However, the use of the word "only" is not of itself determinative. (See eg Emanuele ) . Its force is affected by the relevant statutory scheme considered as a whole, as the analysis in David Grant v Westpac shows. 74 Thirdly, in BP Australia Ltd, the Court regarded the recognition in the Harmer Report (General Insolvency Inquiry (ALRC 45)) of the considerable commercial uncertainty and inconvenience of "general delays associated with the winding up of insolvent companies" as the policy behind the abridgement of the period within which a transaction may be avoided, and which led to the introduction of the phase "may only be made" in s 588FF(3): at 343-344. In Gordon v Tolcher , the High Court cited the Harmer Report to the same effect in relation to "inordinate delays in commencing proceeding in respect of voidable transactions" (at [38]). No such consideration applies with respect to s 664AA. 78 Chapter 6 is not, in my opinion, a self contained and complete code for the resolution of disputes involving the statutory process: cf Emanuele at p 56 per Kirby J; BP Australia Ltd per Spigelman CJ at [79].
Case: Brisbane South Regional Health Authority v Taylor [1996] HCA 25 ; (1996) 186 CLR 541
Outcome: referred to
It is for the plaintiff to satisfy the Court that the justice of the case requires that the extension sought be granted: Newtronics at [40]; cf Brisbane South Regional Health Authority v Taylor [1996] HCA 25 ; (1996) 186 CLR 541 at 554.
Case: Capricorn Diamonds Investments Pty Ltd v Catto [2002] VSC 105 ; (2002) 5 VR 61 
Outcome: discussed
Mitsui points to further extrinsic material which it submits is also relevant to understanding the policy considerations underpinning Part 6A.2 of the Act . I have set these out below. These were intended to emphasise that, in part, the policy considerations and legislative objective were to remove the potential of minority shareholders from demanding a price for their securities that is above fair value, a practice commonly described as 'greenmailing': Capricorn Diamonds Investments Pty Ltd v Catto [2002] VSC 105 ; (2002) 5 VR 61 at [28] cited with approval by Steytler P in Batoka Pty Ltd v Conocophillips WA-248 Pty Ltd [2006] WASCA 44 at [40] . 79 It is of significance too, in arriving at this conclusion, that wide curative powers are found in s 1325D(1)(a) of the Act which enables the Court to declare, for example, a document not to be invalid merely because a person contravened a provision of Chapter 6, 6A, 6B or 6C. Pt 6A.2 in which s 664AA(b) sits is within Chapter 6A. This was a matter which was also considered to be significant by Mandie J when the offer period under s 650C(1) of the Act and the period for giving notices under s 650D(1)(c)(ii) of the Act were extended pursuant to s 1322(4)(d). In so concluding, David Grant was distinguished: Pinnacle VRB Ltd v Reliable Powerline [2001] VSC 262 at [17] - [20] . A similar approach was taken by Warren J in Capricorn at [260].
Case: Emanuele v Australian Securities Commission [1997] HCA 20 ; (1996) 188 CLR 114
Outcome: discussed
However, I do not consider the use of the word "only" to be determinative of the question. I respectfully agree with the observations of Spigelman CJ in BP Australia Ltd. There, the Chief Justice, with whose judgment the other members of the Court agreed, considered the significance of the word "only". He said at [88]: The word "only" in a time limitation statutory provision can characterise the provision as a "time so emphatically prescribed". ( Texel Pty Ltd v Commonwealth Bank of Australia [1994] 2 VR 298 at 300; per Hayne J, in a case under s 459G which was a precursor of David Grant v Westpac ) . However, the use of the word "only" is not of itself determinative. (See eg Emanuele ) . Its force is affected by the relevant statutory scheme considered as a whole, as the analysis in David Grant v Westpac shows. 60 In Emanuele v Australian Securities Commission [1997] HCA 20 ; (1996) 188 CLR 114 the High Court gave consideration to s 459P of the then Corporations Law which provided that an application by the Commission for a company to be wound up in insolvency "may only" be made with the leave of the Court. 63 David Grant and the other cases, involving as they did statutory provisions concerning applications to a Court, may be distinguished from cases such as the present, on the basis that conformity with the procedural time limit was a pre-condition to the jurisdiction of the Court from which relief was claimed: David Grant at 276-277; Emanuele at 152 per Kirby J; Newtronics at [25]. 65 In Emanuele, Kirby J said at 153: 'In the morass of modern legislation, it is easy enough, even for skilled and diligent legal practitioners (still more lay persons who must conform to the law) to slip in complying with statutory requirements. The Law is a case in point. Its complexity and detail is such that it has necessitated, within a short time of its enactment, the passage of the First Corporate Law Simplification Act 1995 (Cth). A number of further stages of simplification are promised. An undue rigidity in insisting upon strict compliance with all of the procedural requirements of the Law could become a mask for injustice and a shield for wrong-doing. Against that risk, courts generally retain the facility to cure slips and to repair oversights in proceedings before them, in appropriate cases where justice requires it.' 66 Whether s 664AA(b) is such a procedural requirement lies at the heart of the question. 78 Chapter 6 is not, in my opinion, a self contained and complete code for the resolution of disputes involving the statutory process: cf Emanuele at p 56 per Kirby J; BP Australia Ltd per Spigelman CJ at [79].
Case: Gordon v Tolcher (in his capacity as Liquidator of Senafield Pty Ltd (in Liq)) &amp; Anor [2006] HCA 62 ; (2006) 231 ALR 582
Outcome: referred to
In Gordon v Tolcher (in his capacity as Liquidator of Senafield Pty Ltd (in liq)) &amp; Anor [2006] HCA 62 ; (2006) 231 ALR 582 at [37] , the High Court saw the relevant distinction, in relation to the time period in s 588FF(3) of the Act , being whether the provision in the section as to time was of the essence of the provision or whether the provision in the section was to be "characterised merely as a time stipulation of a procedural nature". 74 Thirdly, in BP Australia Ltd, the Court regarded the recognition in the Harmer Report (General Insolvency Inquiry (ALRC 45)) of the considerable commercial uncertainty and inconvenience of "general delays associated with the winding up of insolvent companies" as the policy behind the abridgement of the period within which a transaction may be avoided, and which led to the introduction of the phase "may only be made" in s 588FF(3): at 343-344. In Gordon v Tolcher , the High Court cited the Harmer Report to the same effect in relation to "inordinate delays in commencing proceeding in respect of voidable transactions" (at [38]). No such consideration applies with respect to s 664AA. 75 In Gordon v Tolcher , the Court considered the 3 year period within which to bring applications under s 588FF(3) to be immutable by rule of Court, in part because s 588FF(3)(b) specifically provided a judicial power to extend time: at [41]. The existence of a wider regulatory power to modify Chapter 6 is not a reason for discerning an intention to exclude the applicability of the judicial power under s 1322(4)(d). In the context of a complex piece of legislation such as the Act , there is no reason to assume that a role allocated to the regulator should be the foundation for contracting the scope of an otherwise broadly expressed power given to the Court. 76 On the contrary, the whole point of the power under s 669 is to allow a considerable measure of flexibility in the operation of Chapter 6 and such a fundamental legislative intention entirely supports the continued applicability of s 1322(4)(d) under Chapter 6. 77 The decisions, to which I have referred, which have limited the applicability of s 1322(4)(d) in relation to other provisions of the Act concern provisions that have significantly different legislative purposes to relevant provisions of Chapter 6. They do not concern circumstances where the whole of the relevant Part is subject to amendment by ASIC and where the party seeking an extension of time is dependent upon the conduct of others in order to meet the statutory deadlines. They are therefore not decisive of the applicability of s 1322(4)(d) here.