mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Corporate Affairs Commission v United International Technologies Pty Ltd (1987) 6 ACLC 637
Outcome: cited
The final observation concerns the "jurisdictional pre-conditions" that are imposed by s 1323. Here I am not referring simply to the three conditions referred to in s 1323(1) that were commented upon in Corporate Affairs Commission v United International Technologies Pty Ltd (1987) 6 ACLC 637, 642. I have in mind what might also be described as a "jurisdictional pre-condition" namely the requirements in paras (d) (e) and (f) that a protective order can only be made in respect of "[indebtedness]... to the relevant person or [his] associate" (para (d)), "[any] money, financial or products or other property [held] on behalf of the relevant person or [his] associate" (para (e)) and "money of the relevant person [or his associate]" (para (f)). At a final hearing of an application under s 1323 it will be necessary for ASIC to prove on the civil standard that one of these conditions exist. When an interim order is sought this is not a requirement. All the court need do is decide whether it is "desirable" that an interim order be made. And it may be desirable even if ASIC is not able to tender proof that will establish the existence of any one of the conditions. By analogy with cases on interlocutory injunctions, if ASIC can show something like a possible or prima facie case that will usually be enough. 14 Returning to the case at hand, the interim orders were made for the following reasons: As I have said, it appears not to be in dispute that some of the money paid by investors has found its way into each defendant's account. I infer from this that each defendant was either involved in the fraud or holds money on behalf of a person who was involved. The inference is more readily drawn by the fact that neither defendant has gone into evidence to explain how he came by money from the Universal or Capital Marketing Services accounts in Hong Kong. In these circumstances the investors might have good claims against each defendant, or in respect of the funds in each defendant's possession, and are entitled to a protective order to preserve those funds until the matter is more fully investigated at the trial. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein. Associate: Dated: 11 April 2007 Counsel for the Plaintiff: M Sifris SC J Moore Solicitor for the Plaintiff: Australian Securities and Investments Commission Counsel for the First Defendant: J Delany SC A Hanak Solicitor for the First Defendant: Baker &amp; McKenzie Appearing for the Second Defendant: Praveen Kumar Jugraj (in person) Date of Hearing: 9 February 2007 Date of Judgment: 11 April 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/508.html
Case: Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 76 ALD 321
Outcome: considered
The Commission did not dispute that Mr Bryant had by his notice of appeal engaged the jurisdiction conferred on this Court by s 44 of the AAT Act. Though that statute terms the proceeding an "appeal", it is one in the Court's original jurisdiction. That jurisdiction is only engaged if there truly is a question of law, for that is what s 44 specifies the appeal is "on": TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 ; Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 76 ALD 321 ; Price Street Professional Centre Pty Ltd v Commissioner of Taxation (2007) 243 ALR 728. Having considered the questions specified in the notice, I am satisfied that the Commission was right to adopt this stance.
Case: Bramwell v Repatriation Commission (1998) 158 ALR 623
Outcome: considered
For its part, the Commission submitted, principally by reference to Telstra Corporation Limited v Hannaford [2006] FCAFC 87 ; (2006) 151 FCR 253 , that, questions of liability to pay compensation under s 24 of the SRC Act can involve "primary aspects" of liability such as whether there is an "injury" for the purposes of that Act. The Commission also emphasised that the Tribunal was not obliged, subject to procedural fairness considerations, to limit the conduct of its review to the case presented by the parties, citing Grant v Repatriation Commission [1999] FCA 1629 ; (1999) 57 ALD 1 and Bramwell v Repatriation Commission (1998) 158 ALR 623 in support of this proposition.
Case: Comcare v Amorebieta (1996) 66 FCR 83
Outcome: considered
In aid of this submission, Mr Bryant pointed to observations made by the Full Court in Lees v Comcare (1999) 56 ALD 84 , at [39] to the effect that the powers and discretions conferred on the Tribunal by s 43 of the AAT Act are conferred for the purpose of reviewing the decision under review and are not powers able to be exercised at large. Reference was also made to observation of the Full Court of the High court in Canute v Comcare [2006] HCA 47 ; (2006) 226 CLR 535 , at 542, [14], taken up by Greenwood J in Parker v Military Rehabilitation and Compensation Commission (2007) 96 ALD 624 , at [52], to the effect that the Approved Guide fell for application through the "prism" of the injury which the claimant had suffered resulting in permanent impairment. Reliance was also placed upon the proposition, flowing from the rejection of a submission to the contrary by Jenkinson J in Comcare v Amorebieta (1996) 66 FCR 83 , at 96, that s 24(5) of the SRC Act was not to be construed in a way which admitted of an assessment of the degree of permanent impairment proportionate to the causal contribution of the incident giving rise to the compensation claim. 44 If Mr Bryant's headaches were solely the result of an ailment other than the accepted injury, "muscle tension type headaches" condition, then no compensation under s 24 of the Act would be payable in respect of the accepted injury. That would be because, whatever degree of permanent impairment from which Mr Bryant suffered, that impairment would not have "resulted from" that accepted injury. The task for the Tribunal was to decide for itself the degree of permanent impairment which had "resulted from" the accepted injury: Comcare v Amorebieta (1996) 66 FCR 83 , at 96. 45 That is not though, as its reasons evidence, how the Tribunal conceived its task. The Tribunal, wrongly, conceived that its task was to assess the impairment that had "resulted from service life". This aspect of the jurisdictional challenge made by the Appellant has merit. 46 Further comment is also necessary in relation to the way in which the Tribunal dealt with this matter.
Case: Comcare v Fiedler [2001] FCA 1810 ; (2001) 115 FCR 328
Outcome: considered
In regard to the construction and application of Table 13.1 in the Approved Guide, Mr Bryant's submission was that the Tribunal's reliance on an earlier Tribunal decision, O'Rourke v Comcare [1997] AATA 304 , led it to apply an incorrect construction of the term "minor interference". Mr Byrant's submissions proceeded as follows. The global approach to "minor interference" in O'Rourke v Comcare , is contrary to the approach the Court has taken to interpreting the Guide in Whittaker v Comcare [1998] FCA 1099 ; (1998) 86 FCR 532 and Comcare v Fiedler [2001] FCA 1810 ; (2001) 115 FCR 328. These cases are, it was submitted, supportive of the proposition that, where there is ambiguity in a phrase, as there is with "minor interference", then the Tribunal should take the approach most favourable to the employee. If the global approach in O'Rourke v Comcare has the effect of limiting or reading down the meaning of "minor interference" then it ought not be followed. If an "activity of daily living" (ADL) is interrupted, temporarily suspended or ceased altogether because of a headache that amounted, it was submitted, to an interference and whether it is minor or significant depended on the frequency, duration and severity of attacks. Where headaches amount to more than a de minimus interference with ADL, it was submitted that this would then constitute a "minor interference". It was submitted that Mr Bryant's medical history, as provided to Dr Lethlean, which history was assumed to be uncontroversial, would fall within the meaning of "minor interference" so construed and hence amounted to a 10% impairment under Table 13.1 of the Approved Guide. 29 On behalf of the Commission, it was submitted that the comparison between the term "difficulty", as considered in Whittaker v Comcare and Comcare v Fiedler , and the term "interference" as used in Table 13.1 of the Approved Guide was not appropriate to support a de minumus argument. In support, the Commission pointed to the observation of the Full Court in Fiedler at [24] that, "There is no reason to think the Tribunal considered that any difficulty with digital dexterity, no matter how slight, was sufficient to come within par 1 of Table 9.4".
Case: Comcare v Tiscay (1992) 32 FCR 181
Outcome: considered
Like the other provisions of the Approved Guide, if competing constructions of Table 13.1 are open, that which favours the employee is the one to be preferred: Whittaker v Comcare [1998] FCA 1099 ; (1998) 86 FCR 532 at 544-545 (Full Court), citing with approval remarks earlier made by Olney J in Comcare v Tiscay (1992) 32 FCR 181 at 188.
Case: Federal Commissioner of Taxation v Swift and Ors (1989) 18 ALD 679
Outcome: considered
In support of these submissions, Mr Bryant pointed to observations by Mason J (as he then was) in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1985) 162 CLR 24 at 41 to the effect that a court may set aside an administrative decision that has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance, on the ground that the decision is manifestly unreasonable. It was also noted, by reference to Federal Commissioner of Taxation v Swift and Ors (1989) 18 ALD 679 and Riddle v Telstra Corporation Limited [2006] FCA 58 ; (2006) 149 FCR 348 , that these principles apply equally to a decision of the Tribunal.
Case: Grant v Repatriation Commission [1999] FCA 1629 ; (1999) 57 ALD 1
Outcome: considered
For its part, the Commission submitted, principally by reference to Telstra Corporation Limited v Hannaford [2006] FCAFC 87 ; (2006) 151 FCR 253 , that, questions of liability to pay compensation under s 24 of the SRC Act can involve "primary aspects" of liability such as whether there is an "injury" for the purposes of that Act. The Commission also emphasised that the Tribunal was not obliged, subject to procedural fairness considerations, to limit the conduct of its review to the case presented by the parties, citing Grant v Repatriation Commission [1999] FCA 1629 ; (1999) 57 ALD 1 and Bramwell v Repatriation Commission (1998) 158 ALR 623 in support of this proposition.
Case: Jordan v Australian Postal Corporation (2007) 99 ALD 303
Outcome: considered
The relevant compensable "injury", from which the Tribunal accepted Mr Bryant suffered was a particular type of headache condition, "muscle tension type headaches", not "headaches" generally. It may be that it is possible definitively to distinguish the symptoms of "muscle tension type headaches" from those occasioned by, for example, psychological factors or sleep apnoea. Equally, it may to some extent not be possible to draw such a distinction. To the extent that it is not, the Tribunal, like the Commission, was obliged to assess impairment by reference to the totality of impairment "resulting from" the accepted injury on the footing that it was not possible to isolate from that impairment anything which did not result either from another "injury" or from a condition which could never constitute an "injury". A like approach is taken where it is not possible to isolate the impairment flowing from an aggravation of an underlying condition from that flowing from the underlying condition itself: Jordan v Australian Postal Corporation (2007) 99 ALD 303 at 310, [30]. It is settled that in those circumstances a body such as the Commission or the Tribunal sitting in its place is obliged to make an assessment beneficially in favour of a claimant. 48 In his most recent report, that of 3 November 2006, Dr Lethlean opined, inter alia: &#8226; "My impression is that psychological factors are the principal ones interfering with the wide range of activities as now described [by Mr Bryant]. I would not modify my assessment without the opportunity of re-assessing Mr Bryant clinically and discussing his condition, symptoms and restrictions." &#8226; "Mr Bryant's Table 13'1 impairment might well be assessed at 10% WPI, or a higher impairment, but this should ... be made with clinical reassessment." &#8226; "On 31 October 2005 Mr Bryant reported that sleep apoena had been diagnosed. Sleep apnoea in itself can cause (or increase) headaches, concentration and tiredness difficulties. It's possible that this is relevant to his current and continuing difficulties. " (Emphasis added). 49 As to sleep apnoea, the following answer was elicited in cross-examination from Dr Lethlean: "So it would be fair to say that your considered opinion, even to this day, is that the diagnosed condition that you have diagnosed for Mr Bryant is a muscle tension headache for which the service is responsible, at least to the extent of being a 51% contributing factor? Yes."
Case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1985) 162 CLR 24
Outcome: considered
In support of these submissions, Mr Bryant pointed to observations by Mason J (as he then was) in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1985) 162 CLR 24 at 41 to the effect that a court may set aside an administrative decision that has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance, on the ground that the decision is manifestly unreasonable. It was also noted, by reference to Federal Commissioner of Taxation v Swift and Ors (1989) 18 ALD 679 and Riddle v Telstra Corporation Limited [2006] FCA 58 ; (2006) 149 FCR 348 , that these principles apply equally to a decision of the Tribunal.
Case: Minister for Immigration &amp; Multicultural Affairs v Betkhoshabeh [1999] FCA 980 ; (1999) 55 ALD 609
Outcome: considered
The Commission submitted, by reference to the Full Court decision in Minister for Immigration &amp; Multicultural Affairs v Betkhoshabeh [1999] FCA 980 ; (1999) 55 ALD 609 , that the decision of the Tribunal, at most, falls within the scope of a decision where the facts were such that an opposite conclusion would have been open to the decision maker, and as such does not evidence an error of law. The Commission also pointed to the evidence before the Tribunal, particularly that of Dr Lethlean, which questioned the extent of the impairment resulting from the injury and submitted that it was therefore open to the Tribunal to proceed as it did. The Commission sought further to support these submissions by referring to the high threshold for a determination of " Wednesbury unreasonableness", citing Lord Green MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230; and also the observation of Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 654, [137] , that it is very difficult to show unreasonableness where the facts are such that reasonable minds could reasonably differ.
Case: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611
Outcome: considered
The Commission submitted, by reference to the Full Court decision in Minister for Immigration &amp; Multicultural Affairs v Betkhoshabeh [1999] FCA 980 ; (1999) 55 ALD 609 , that the decision of the Tribunal, at most, falls within the scope of a decision where the facts were such that an opposite conclusion would have been open to the decision maker, and as such does not evidence an error of law. The Commission also pointed to the evidence before the Tribunal, particularly that of Dr Lethlean, which questioned the extent of the impairment resulting from the injury and submitted that it was therefore open to the Tribunal to proceed as it did. The Commission sought further to support these submissions by referring to the high threshold for a determination of " Wednesbury unreasonableness", citing Lord Green MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230; and also the observation of Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 654, [137] , that it is very difficult to show unreasonableness where the facts are such that reasonable minds could reasonably differ.
Case: Parker v Military Rehabilitation and Compensation Commission (2007) 96 ALD 624
Outcome: considered
In aid of this submission, Mr Bryant pointed to observations made by the Full Court in Lees v Comcare (1999) 56 ALD 84 , at [39] to the effect that the powers and discretions conferred on the Tribunal by s 43 of the AAT Act are conferred for the purpose of reviewing the decision under review and are not powers able to be exercised at large. Reference was also made to observation of the Full Court of the High court in Canute v Comcare [2006] HCA 47 ; (2006) 226 CLR 535 , at 542, [14], taken up by Greenwood J in Parker v Military Rehabilitation and Compensation Commission (2007) 96 ALD 624 , at [52], to the effect that the Approved Guide fell for application through the "prism" of the injury which the claimant had suffered resulting in permanent impairment. Reliance was also placed upon the proposition, flowing from the rejection of a submission to the contrary by Jenkinson J in Comcare v Amorebieta (1996) 66 FCR 83 , at 96, that s 24(5) of the SRC Act was not to be construed in a way which admitted of an assessment of the degree of permanent impairment proportionate to the causal contribution of the incident giving rise to the compensation claim.
Case: Price Street Professional Centre Pty Ltd v Commissioner of Taxation (2007) 243 ALR 728
Outcome: considered
The Commission did not dispute that Mr Bryant had by his notice of appeal engaged the jurisdiction conferred on this Court by s 44 of the AAT Act. Though that statute terms the proceeding an "appeal", it is one in the Court's original jurisdiction. That jurisdiction is only engaged if there truly is a question of law, for that is what s 44 specifies the appeal is "on": TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 ; Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 76 ALD 321 ; Price Street Professional Centre Pty Ltd v Commissioner of Taxation (2007) 243 ALR 728. Having considered the questions specified in the notice, I am satisfied that the Commission was right to adopt this stance.
Case: Secretary, Department of Social Security v Murphy [1998] FCA 809 ; (1998) 52 ALD 268
Outcome: considered
The submission for Mr Bryant that this constituted " Wednesbury unreasonableness" misconceives the nature of that type of error of law. As Gummow J explained in Minister for Immigration and Multi-cultural Affairs v Eshetu at 649, [124] this descriptor, derived from the decision of the English Court of Appeal in Associated Provincial Picture Houses Ltd v Wednesbury Corporation , refers to that body of administrative law which is concerned with the judicial review of the abuse of discretionary powers. When standing in the Commission's place so as to decide whether Mr Bryant had an entitlement to compensation under s 24 of the SRC Act the Tribunal was not exercising a discretionary power. Neither does s 24 of the SRC Act posit an eligibility test grounded in a state of administrative satisfaction to a state of affairs. The principles attending the judicial review of a decision made under this type of statutory provision were comprehensively discussed by Gummow J in Eshetu's case, but are of no present relevance. That is not to say that no error of law is revealed. If the Tribunal reaches a conclusion critical to its determination without any material to support that conclusion that is an appealable error of law: Secretary, Department of Social Security v Murphy [1998] FCA 809 ; (1998) 52 ALD 268 , at 271-272.
Case: TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175
Outcome: considered
The Commission did not dispute that Mr Bryant had by his notice of appeal engaged the jurisdiction conferred on this Court by s 44 of the AAT Act. Though that statute terms the proceeding an "appeal", it is one in the Court's original jurisdiction. That jurisdiction is only engaged if there truly is a question of law, for that is what s 44 specifies the appeal is "on": TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 ; Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 76 ALD 321 ; Price Street Professional Centre Pty Ltd v Commissioner of Taxation (2007) 243 ALR 728. Having considered the questions specified in the notice, I am satisfied that the Commission was right to adopt this stance.
Case: Whittaker v Comcare [1998] FCA 1099 ; (1998) 86 FCR 532
Outcome: considered
In regard to the construction and application of Table 13.1 in the Approved Guide, Mr Bryant's submission was that the Tribunal's reliance on an earlier Tribunal decision, O'Rourke v Comcare [1997] AATA 304 , led it to apply an incorrect construction of the term "minor interference". Mr Byrant's submissions proceeded as follows. The global approach to "minor interference" in O'Rourke v Comcare , is contrary to the approach the Court has taken to interpreting the Guide in Whittaker v Comcare [1998] FCA 1099 ; (1998) 86 FCR 532 and Comcare v Fiedler [2001] FCA 1810 ; (2001) 115 FCR 328. These cases are, it was submitted, supportive of the proposition that, where there is ambiguity in a phrase, as there is with "minor interference", then the Tribunal should take the approach most favourable to the employee. If the global approach in O'Rourke v Comcare has the effect of limiting or reading down the meaning of "minor interference" then it ought not be followed. If an "activity of daily living" (ADL) is interrupted, temporarily suspended or ceased altogether because of a headache that amounted, it was submitted, to an interference and whether it is minor or significant depended on the frequency, duration and severity of attacks. Where headaches amount to more than a de minimus interference with ADL, it was submitted that this would then constitute a "minor interference". It was submitted that Mr Bryant's medical history, as provided to Dr Lethlean, which history was assumed to be uncontroversial, would fall within the meaning of "minor interference" so construed and hence amounted to a 10% impairment under Table 13.1 of the Approved Guide. 29 On behalf of the Commission, it was submitted that the comparison between the term "difficulty", as considered in Whittaker v Comcare and Comcare v Fiedler , and the term "interference" as used in Table 13.1 of the Approved Guide was not appropriate to support a de minumus argument. In support, the Commission pointed to the observation of the Full Court in Fiedler at [24] that, "There is no reason to think the Tribunal considered that any difficulty with digital dexterity, no matter how slight, was sufficient to come within par 1 of Table 9.4". 53 Like the other provisions of the Approved Guide, if competing constructions of Table 13.1 are open, that which favours the employee is the one to be preferred: Whittaker v Comcare [1998] FCA 1099 ; (1998) 86 FCR 532 at 544-545 (Full Court), citing with approval remarks earlier made by Olney J in Comcare v Tiscay (1992) 32 FCR 181 at 188.