mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Vanstone v Clark [2005] FCAFC 189 ; (2005) 147 FCR 299
Outcome: cited
Section 46 of the Interpretation Act is applied as a rule of construction to permit the reading down of instruments. It is not a rule of law ( Vanstone v Clark [2005] FCAFC 189 ; (2005) 147 FCR 299 at [16] per Black CJ referring to Pidoto v Victoria [1943] HCA 37 ; (1943) 68 CLR 87 at 110 per Latham CJ). The Commission has not referred to anything in the Act or in any extrinsic legislative materials to support the proposition that s 46 extends beyond such a limited application. Section 46 of the Interpretation Act concerns the construction of instruments. Both ss 46(1)(c) and 46 (2) provide for a construction to be applied. To read and construe an instrument by the application of s 46(1)(c) is not to rewrite it or to ignore its content. Section 46 has no application to a decision made under an Act. It has no application to a denial of procedural fairness. 58 Before embarking on the process of reading down, there must be some part of the impugned provision that is capable of being within power. While s 46(2) of the Interpretation Act may apply to cut down the scope of an overly wide provision, there is no occasion for reading down if the provision is wholly beyond power. As with s 15A, s 46 does not turn an Act or instrument which is invalid as being wholly outside legislative power into an Act which is, in part, within power ( Strickland v Rocla Concrete Pipes Ltd [1971] HCA 40 ; (1971) 124 CLR 468 at 504 per Menzies J and cited by Black CJ in Vanstone at [17]).
Case: Victoria v The Commonwealth [1995] HCA 45 ; (1995) 187 CLR 416
Outcome: followed
Section 46 of the Interpretation Act , like s 15A, may apply where ' particular clauses, provisos and qualifications, separately expressed' are beyond power ( Harrington v Lowe [1996] HCA 8 ; (1996) 190 CLR 311 at 327). It does not apply to validate a provision which extends beyond power unless the operation of the remaining parts of the instrument remain unchanged. It does not apply where the instrument was intended to operate fully and completely according to its terms or not at all ( Victoria v The Commonwealth [1995] HCA 45 ; (1995) 187 CLR 416 at 502).
Case: Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1
Outcome: cited
In considering the Commission's appeal under s 44 of the AAT Act , it is of the first importance to restate some of the well-established principles in this field. First, this is not a reconsideration of the merits of the decision. As was said by Brennan J in Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35-36: "The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone." See also NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 ; (2005) 80 ALJR 367 at [14] - [16] (per Gummow J) and Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272 (per Brennan CJ, Toohey, McHugh and Gummow JJ).
Case: Bull v Repatriation Commission (2001) 188 ALR 756
Outcome: cited
As the language of s 120(3) makes clear, and as the High Court emphasised in Repatriation Commission v Owens (1996) 70 ALJR 904 at 904, the question whether a reasonable hypothesis is raised is to be determined on a consideration of the whole of the material before the decision-maker: see also Repatriation Commission v Bey (1997) 79 FCR 364 at 367. A reasonable hypothesis within s 120(3) of the VE Act is a hypothesis that is pointed to by the material before the decision-maker, and not merely left open (or not excluded) by that material. A hypothesis that is not pointed to, but is a matter of assertion or is merely left open by the material, is not a reasonable hypothesis: see East v Repatriation Commission (1987) 16 FCR 517 at 532-533. See also Repatriation Commission v Bey (1997) 79 FCR 364 at 366-367, 372-373 and Bull v Repatriation Commission (2001) 188 ALR 756 at [18] and [41].
Case: Byrnes v Repatriation Commission [1993] HCA 51 ; (1993) 177 CLR 564
Outcome: cited
The threshold question posed by s 120(3) is whether the whole of the material before the decision-maker raises a reasonable hypothesis connecting the veteran's diseases with the circumstances of his service. If the material does raise such a reasonable hypothesis, the decision-maker proceeds to the question posed by s 120(1) namely, is the decision-maker satisfied beyond reasonable doubt that the facts required to connect the veteran's diseases with his service were disproved or were displaced by other facts: Byrnes v Repatriation Commission [1993] HCA 51 ; (1993) 177 CLR 564 at 571.
Case: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Outcome: cited
Secondly, the Tribunal's reasons " are not to be construed minutely and finely with an eye keenly attuned to the perception of error" : Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. They are to be read fairly as a whole and not over zealously: Wu Shan Liang at 271-272. Moreover, the reasons are not required to refer expressly to every argument and all the evidence that might be relevant to its determination of factual issues: cf Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1995) 38 ALD 38 at 52-53. 15 Thirdly, whether facts fully found fall within the provision of an Act properly construed is a question of law: Pozzolanic at 287 and Ergon Energy Corporation Ltd v Commissioner of Taxation (Cth) [2006] FCAFC 125 ; (2006) 232 ALR 652 at 663 664 (per Sundberg and Kenny JJ) and authorities cited therein.
Case: Deledio v Repatriation Commission (1997) 47 ALD 261
Outcome: cited
Section 120A(3) of the VE Act relevantly provides that a hypothesis connecting an injury suffered by a person, or a disease contracted by a person, with the circumstances of any particular service rendered by the person is reasonable only if there is in force a Statement of Principles ("SoP") or a determination by the Commission that upholds the hypothesis. The second basis (a determination by the Commission) is not relevant to the circumstances of this case. That is, the hypothesis raised (that is, pointed to) by the material will only be reasonable if the hypothesis is consistent with, or fits the template of, a SoP: see Repatriation Commission v Deledio (1998) 83 FCR 82 at 96, endorsing the observations of Heerey J at first instance: Deledio v Repatriation Commission (1997) 47 ALD 261 at 275.
Case: East v Repatriation Commission (1987) 16 FCR 517
Outcome: cited
As the language of s 120(3) makes clear, and as the High Court emphasised in Repatriation Commission v Owens (1996) 70 ALJR 904 at 904, the question whether a reasonable hypothesis is raised is to be determined on a consideration of the whole of the material before the decision-maker: see also Repatriation Commission v Bey (1997) 79 FCR 364 at 367. A reasonable hypothesis within s 120(3) of the VE Act is a hypothesis that is pointed to by the material before the decision-maker, and not merely left open (or not excluded) by that material. A hypothesis that is not pointed to, but is a matter of assertion or is merely left open by the material, is not a reasonable hypothesis: see East v Repatriation Commission (1987) 16 FCR 517 at 532-533. See also Repatriation Commission v Bey (1997) 79 FCR 364 at 366-367, 372-373 and Bull v Repatriation Commission (2001) 188 ALR 756 at [18] and [41].
Case: Ergon Energy Corporation Ltd v Commissioner of Taxation [2006] FCAFC 125 ; (2006) 232 ALR 652
Outcome: cited
Thirdly, whether facts fully found fall within the provision of an Act properly construed is a question of law: Pozzolanic at 287 and Ergon Energy Corporation Ltd v Commissioner of Taxation (Cth) [2006] FCAFC 125 ; (2006) 232 ALR 652 at 663 664 (per Sundberg and Kenny JJ) and authorities cited therein.
Case: Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1995) 38 ALD 38
Outcome: distinguished
Secondly, the Tribunal's reasons " are not to be construed minutely and finely with an eye keenly attuned to the perception of error" : Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. They are to be read fairly as a whole and not over zealously: Wu Shan Liang at 271-272. Moreover, the reasons are not required to refer expressly to every argument and all the evidence that might be relevant to its determination of factual issues: cf Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1995) 38 ALD 38 at 52-53.
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
In considering the Commission's appeal under s 44 of the AAT Act , it is of the first importance to restate some of the well-established principles in this field. First, this is not a reconsideration of the merits of the decision. As was said by Brennan J in Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35-36: "The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone." See also NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 ; (2005) 80 ALJR 367 at [14] - [16] (per Gummow J) and Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272 (per Brennan CJ, Toohey, McHugh and Gummow JJ). 14 Secondly, the Tribunal's reasons " are not to be construed minutely and finely with an eye keenly attuned to the perception of error" : Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. They are to be read fairly as a whole and not over zealously: Wu Shan Liang at 271-272. Moreover, the reasons are not required to refer expressly to every argument and all the evidence that might be relevant to its determination of factual issues: cf Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1995) 38 ALD 38 at 52-53.
Case: NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 ; (2005) 80 ALJR 367
Outcome: cited
In considering the Commission's appeal under s 44 of the AAT Act , it is of the first importance to restate some of the well-established principles in this field. First, this is not a reconsideration of the merits of the decision. As was said by Brennan J in Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35-36: "The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone." See also NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 ; (2005) 80 ALJR 367 at [14] - [16] (per Gummow J) and Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272 (per Brennan CJ, Toohey, McHugh and Gummow JJ).
Case: Repatriation Commission v Bey (1997) 79 FCR 364
Outcome: cited
As the language of s 120(3) makes clear, and as the High Court emphasised in Repatriation Commission v Owens (1996) 70 ALJR 904 at 904, the question whether a reasonable hypothesis is raised is to be determined on a consideration of the whole of the material before the decision-maker: see also Repatriation Commission v Bey (1997) 79 FCR 364 at 367. A reasonable hypothesis within s 120(3) of the VE Act is a hypothesis that is pointed to by the material before the decision-maker, and not merely left open (or not excluded) by that material. A hypothesis that is not pointed to, but is a matter of assertion or is merely left open by the material, is not a reasonable hypothesis: see East v Repatriation Commission (1987) 16 FCR 517 at 532-533. See also Repatriation Commission v Bey (1997) 79 FCR 364 at 366-367, 372-373 and Bull v Repatriation Commission (2001) 188 ALR 756 at [18] and [41].
Case: Repatriation Commission v Butcher (2007) 94 ALD 364
Outcome: cited
Secondly, the observations of the Full Court in Repatriation Commission v Butcher [2007] FCAFC 36 at [19] in relation to s 44(7) of the AAT Act are apposite: "The Tribunal had fallen into legal error and, in our view, the appropriate course in this case was for the Tribunal to reconsider the evidence having regard to any further submissions or evidence which the parties wished to advance. In cases where a wrong principle has been applied by an administrative tribunal, it will generally follow that the matter should be referred back, except in cases where it would be futile to do so or where there could be no other outcome." 34 Each of those observations applies to the present case. The Tribunal had fallen into legal error. Not only did the Tribunal fail to make a finding about which of two disorders the veteran suffers but, in some paragraphs, appeared to approach the matter as if the veteran suffered from both: see, for example, [107], [109] and [111]. That is not possible. 35 Thirdly, the evidence before the Tribunal was not entirely satisfactory. Paragraph 5 of the Alcohol SoP sets out the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse with the circumstances of a person's service. In the present case, the factor relied upon was (para (b)) that the veteran " experience[ed] a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse" .
Case: Repatriation Commission v Cornelius [2002] FCA 750
Outcome: referred to
I accept the contentions of the Commission that in determining whether that factor existed, it was necessary for the Tribunal: (1) to distinguish between the two disorders; and (2) to have before it (and it appears that it did not) evidence from a medical practitioner determining for the purposes of the Alcohol SoP whether the disease is or was present at a particular time: Repatriation Commission v Milenz (2006) 93 ALD 107 at [34] citing Repatriation Commission v Cornelius [2002] FCA 750 at [26] . The latter requirement imposed a medical-scientific standard, not a lay standard, which in the present case required evidence from a medical practitioner identifying the date of the clinical onset of the disease the veteran had contracted within two years from October 1970 (being the date of a helicopter incident in Vietnam). Moreover, such a diagnosis would have to take into account the criteria prescribed by the Alcohol SoP for each relevant disorder alcohol dependence or alcohol abuse.
Case: Repatriation Commission v Milenz (2006) 93 ALD 107
Outcome: cited
I accept the contentions of the Commission that in determining whether that factor existed, it was necessary for the Tribunal: (1) to distinguish between the two disorders; and (2) to have before it (and it appears that it did not) evidence from a medical practitioner determining for the purposes of the Alcohol SoP whether the disease is or was present at a particular time: Repatriation Commission v Milenz (2006) 93 ALD 107 at [34] citing Repatriation Commission v Cornelius [2002] FCA 750 at [26] . The latter requirement imposed a medical-scientific standard, not a lay standard, which in the present case required evidence from a medical practitioner identifying the date of the clinical onset of the disease the veteran had contracted within two years from October 1970 (being the date of a helicopter incident in Vietnam). Moreover, such a diagnosis would have to take into account the criteria prescribed by the Alcohol SoP for each relevant disorder alcohol dependence or alcohol abuse.
Case: Repatriation Commission v Owens (1996) 70 ALJR 904
Outcome: cited
As the language of s 120(3) makes clear, and as the High Court emphasised in Repatriation Commission v Owens (1996) 70 ALJR 904 at 904, the question whether a reasonable hypothesis is raised is to be determined on a consideration of the whole of the material before the decision-maker: see also Repatriation Commission v Bey (1997) 79 FCR 364 at 367. A reasonable hypothesis within s 120(3) of the VE Act is a hypothesis that is pointed to by the material before the decision-maker, and not merely left open (or not excluded) by that material. A hypothesis that is not pointed to, but is a matter of assertion or is merely left open by the material, is not a reasonable hypothesis: see East v Repatriation Commission (1987) 16 FCR 517 at 532-533. See also Repatriation Commission v Bey (1997) 79 FCR 364 at 366-367, 372-373 and Bull v Repatriation Commission (2001) 188 ALR 756 at [18] and [41].
Case: ACCC v BMW (Australia) Ltd (No 2) [2003] FCA 864
Outcome: cited
Although as a general rule proceedings under a judgment should not be stayed pending an appeal ( Shaw v Holland (1900) 2 Ch 305), it is equally clear that the Court ought to see that the appeal, if successful, is not nugatory ( Wilson v Church (No 2) (1879) 12 Ch D 454). In considering whether to grant a stay, it is also important that the Court take account of the risk of prejudice resulting from a stay to the other party ( The Marconi's Wireless Telegraph Company Ltd v The Commonwealth (No 3) [1913] HCA 23 ; (1913) 16 CLR 384, ACCC v BMW (Australia) Ltd (No 2) [2003] FCA 864). In this case in the absence of a stay, an appeal from his Honour's judgment would be nugatory. Further, there is no evidence before me that a stay of his Honour's orders would prejudice the respondents. THE COURT ORDERS THAT: 1. Leave to appeal against the judgment of his Honour in Welsh v Digilin Pty Ltd [2007] FCA 2064 be granted pursuant to section 24(1A) Federal Court of Australia Act 1976 (Cth) and Order 52 rule 10 Federal Court Rules . 2. The judgment of his Honour in Welsh v Digilin Pty Ltd [2007] FCA 2064 be stayed pursuant to Order 52 rule 17 Federal Court Rules . 3. Costs be reserved. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 18 February 2008 Counsel for the Applicant: C Heyworth-Smith Solicitor for the Applicant: Efron &amp; Associates Counsel for the Respondent: M Steele Solicitor for the Respondent: ClarkeKann Date of Hearing: 7 February 2008 Date of Judgment: 18 February 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/78.html
Case: Davidson v Fesl [2005] FCAFC 183
Outcome: cited
Previous decisions of this Court indicate that issues that are relevant as to whether a decision is attended by sufficient doubt to warrant reconsideration include the following: - a decision may be of "sufficient doubt" where a contrary position is reasonably arguable (Tamberlin J in Johnston v Cameron [2002] FCAFC 251 at [65] ) or the view taken by the trial judge is debatable ( Davidson v Fesl [2005] FCAFC 183 at [22] ) - leave to appeal is not necessarily granted simply because the reviewing court does not agree with every aspect of the trial judge's reasons ( Energex Limited v Alstom Australia Limited [2005] FCAFC 215 at [65] ) and - leave is more readily granted where substantive issues, rather than points of practice, are at issue ( Rivera v United States of America [2004] FCAFC 154 at [13] , M111 of 2003 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 97 at [8] ).
Case: D&eacute;cor Corporation v Dart Industries Inc (1991) 33 FCR 397
Outcome: cited
In the case before me there is no dispute that the decision of his Honour is an interlocutory decision, and that leave to appeal is required pursuant to s 24(1A) Federal Court of Australia Act 1976 (Cth) and O 52 r 10 Federal Court Rules . The principles to be applied by the Court when considering whether leave to appeal should be granted in such circumstances are well settled, and can be summarised as: &#8226; whether the judgment was attended by sufficient doubt to warrant it being reconsidered, and &#8226; whether substantial injustice would result if leave were refused, supposing the decision to be wrong. ( D&eacute;cor Corporation v Dart Industries Inc (1991) 33 FCR 397, Telstra Corporation Ltd v AAPT Ltd (1997) 38 IPR 539) 15 In these proceedings there is no dispute that the orders of his Honour were interlocutory orders, do not finally dispose of the rights of the parties, and require leave of the Court within terms of s 24(1A) Federal Court of Australia Act 1976 (Cth) and O 52 r 10 Federal Court Rules for an appeal to lie. I do not read Southern Cross Exploration NL as suggesting that there is no possibility of injustice to one party arising within the meaning of the principles articulated in D&eacute;cor Corporation v Dart Industries Inc (1991) 33 FCR 397 and Telstra Corporation Ltd v AAPT Ltd (1997) 38 IPR 539, simply because the orders do not finally dispose of the rights of the parties in the action. However in any event, although the orders as made require the applicant to pay an amount of costs to the respondents by 29 February 2008, and it is only if the applicant fails to comply with that order that any further consequence will flow, the reality is that the orders of his Honour have a finalising effect on the substantive proceedings. If his Honour's decision is wrong, substantial injustice to the applicant will follow, because the applicant will have lost his right to a hearing.
Case: Energex Limited v Alstom Australia Limited [2005] FCAFC 215
Outcome: cited
Previous decisions of this Court indicate that issues that are relevant as to whether a decision is attended by sufficient doubt to warrant reconsideration include the following: - a decision may be of "sufficient doubt" where a contrary position is reasonably arguable (Tamberlin J in Johnston v Cameron [2002] FCAFC 251 at [65] ) or the view taken by the trial judge is debatable ( Davidson v Fesl [2005] FCAFC 183 at [22] ) - leave to appeal is not necessarily granted simply because the reviewing court does not agree with every aspect of the trial judge's reasons ( Energex Limited v Alstom Australia Limited [2005] FCAFC 215 at [65] ) and - leave is more readily granted where substantive issues, rather than points of practice, are at issue ( Rivera v United States of America [2004] FCAFC 154 at [13] , M111 of 2003 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 97 at [8] ).