mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298
Outcome: cited
In Jefferson Ford at [45], Rares J commented that, when the Court gives judgment for a party under s 31A(1) or s 31A(2) ' it is exercising a jurisdiction similar to the implied or inherent power of the Court to protect its own processes from proceedings which are an abuse of those processes '. His Honour expressed the view that, by enacting s 31A, Parliament broadened the categories of case in which the power summarily to determine proceedings could be exercised and (at [57]) that it was not intended to create final, rather than interlocutory, judgments. Rather, it was intended to ' lower the bar ' (per Rares J at [63]) or, to put it another way, to ' impose a different and less stringent test ' (per Gordon J at [124]) for obtaining summary judgment, below the level set by the test in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 ( White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 per Lindgren J). It was introduced ' to strengthen "... the power of the court to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases"' ( Jefferson Ford at [124] per Gordon J; Boston Commercial at [45] per Rares J; citing the Second Reading Speech to the Migration Litigation Reform Bill 2005 (Cth)).
Case: Bashar v Comcare (2002) 69 ALD 784
Outcome: cited
It is plain enough that sometimes proposed therapeutic treatment will be unreasonable because there is some alternative treatment available with potentially similar benefits at a lesser cost. There may be a balancing involved where the potential therapeutic benefits are less, but the cost is significantly less. The extent to which such treatment has been undertaken in the past and the degree of its success may also be relevant. There may be cases, as Comcare points out, where proposed treatment, although of therapeutic benefit, is unreasonable having regard to the extent of the anticipated benefit of the cost involved, even if no similar treatment had previously been undertaken. There may be cases, also as Comcare points out, where treatment like the proposed treatment which in the past has had some therapeutic benefit may no longer be reasonable because the extent of the therapeutic benefit no longer justifies the cost in the light of past experience: see e.g. Bashar v Comcare (2002) 69 ALD 784. There may be other illustrations of facts relevant to the determination of reasonableness of proposed medical treatment. 27 However, in my view, the remarks of the AAT complained of must be seen in the context of the particular case. The context of the case, as explained above in [12] is that Comcare claimed that the treatment was not reasonable in the circumstances for two specific reasons, namely the availability of alternative treatment with potentially similar therapeutic benefits and at a much lesser cost either at home, or otherwise in Alice Springs. That was the primary case which the AAT was called upon to address and it did so. In my view its comments in the passage of concern to Comcare must be read in that context. If they were to be read as supporting the general proposition set out at the concluding part of its reasons. I would agree that the AAT had fallen into error.
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
In my judgment, the AAT also did not fall into error in the manner asserted in the second ground of appeal. The AAT referred to the fact that Comcare had previously funded the retreat or a similar retreat. It did not suggest that, for that reason, any further retreats are necessarily to be regarded as reasonable. It would have been erroneous to have taken that step. It referred to those facts simply to record that, in the past, there had been therapeutic benefit experienced from such retreats. If there had not been, the case for the retreat being reasonable would have been much weaker. In my view, where proposed treatment is the same or similar to that previously performed, the extent to which the previous treatment had generated therapeutic benefit is relevant to determining the reasonableness of the proposed further treatment. I think that is all that the Tribunal did when it referred to Comcare having previously funded similar retreats, namely to take account of the fact of previous similar retreats and the extent to which in the past such retreats had produced therapeutic benefit: see generally Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272. 29 The observation that Comcare had not demonstrated an alternative medical treatment with equivalent therapeutic benefit but at a lower cost was one to be seen in the context of the case. In this case, the Tribunal rejected the first of Comcare's two propositions (set out at [12] above) because it was not satisfied that the alternative of "home retreat" would produce therapeutic benefits similar to those of the retreat. It did so in addressing Comcare's assertion that, in the circumstances and on the evidence, there was such alternative treatment available. The AAT was obliged to make a finding upon it. It rejected the contention because there was no cogent evidence to support it. The Tribunal did not err in concluding that, on the evidence, the alternative of a retreat conducted by the Northern Territory Buddhist Society in Alice Springs was not an available reasonable alternative treatment. It was true to its role as a substitute arbiter of the facts for the primary decision-maker upon the material before it.
Case: McDonald v Director-General of Social Security (1984) 1 FCR 354
Outcome: cited
As a matter of commonsense, if Comcare wished the AAT to find that the Northern Territory Buddhist Society would probably offer a retreat with similar benefits in Alice Springs, more evidence in support of that assertion was desirable. In a practical sense, in the particular circumstances, such evidence would have been adduced by Comcare. That is not to impose any onus of proof upon Comcare: cf McDonald v Director-General of Social Security (1984) 1 FCR 354; Comcare v Nichols [1999] FCA 209 at [18] . Mr Holt sought to have a proposed medical treatment paid by Comcare. He was entitled to payment if the treatment was reasonable in all the circumstances. He had the support of his general practitioner. In the normal course, that would be sufficient. Merely because Comcare referred to the Northern Territory Buddhist Society website, Mr Holt did not have to prove that the Society provided an alternative treatment option available to him of probable equivalent therapeutic benefit and at a lower cost. A moment's pause fortifies that conclusion. Were it otherwise, every time an injured person sought medical treatment, that person would otherwise have to positively adduce evidence that the treatment could not be provided at a cheaper price by some other medical practitioner, or that no other treatment of equivalent therapeutic value would be available at a lesser price through another medical practitioner. The AAT, in my view, correctly decided the reasonableness of the retreat on the evidence and in all the circumstances.
Case: Comcare v Nichols [1999] FCA 209
Outcome: cited
As a matter of commonsense, if Comcare wished the AAT to find that the Northern Territory Buddhist Society would probably offer a retreat with similar benefits in Alice Springs, more evidence in support of that assertion was desirable. In a practical sense, in the particular circumstances, such evidence would have been adduced by Comcare. That is not to impose any onus of proof upon Comcare: cf McDonald v Director-General of Social Security (1984) 1 FCR 354; Comcare v Nichols [1999] FCA 209 at [18] . Mr Holt sought to have a proposed medical treatment paid by Comcare. He was entitled to payment if the treatment was reasonable in all the circumstances. He had the support of his general practitioner. In the normal course, that would be sufficient. Merely because Comcare referred to the Northern Territory Buddhist Society website, Mr Holt did not have to prove that the Society provided an alternative treatment option available to him of probable equivalent therapeutic benefit and at a lower cost. A moment's pause fortifies that conclusion. Were it otherwise, every time an injured person sought medical treatment, that person would otherwise have to positively adduce evidence that the treatment could not be provided at a cheaper price by some other medical practitioner, or that no other treatment of equivalent therapeutic value would be available at a lesser price through another medical practitioner. The AAT, in my view, correctly decided the reasonableness of the retreat on the evidence and in all the circumstances.
Case: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1
Outcome: cited
The Tribunal is conducting a review of the Delegate's decision but that review is conducted on the basis of the claims advanced and materials before the Tribunal ( SZEIV v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCA 1798 at [34] ). While the Tribunal is obliged, in certain circumstances, to review claims not expressly advanced at the hearing ( NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at [58] and [68]), if a claim raised before the Delegate is abandoned before the Tribunal, it is entitled to take the view that the applicant does not make that claim or a case based on that claim ( SZEIV at [34]).
Case: SZEIV v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCA 1798
Outcome: cited
The Tribunal is conducting a review of the Delegate's decision but that review is conducted on the basis of the claims advanced and materials before the Tribunal ( SZEIV v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCA 1798 at [34] ). While the Tribunal is obliged, in certain circumstances, to review claims not expressly advanced at the hearing ( NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at [58] and [68]), if a claim raised before the Delegate is abandoned before the Tribunal, it is entitled to take the view that the applicant does not make that claim or a case based on that claim ( SZEIV at [34]).
Case: Australian Ophthalmic Supplies Pty Ltd v McAlary -Smith [2008] FCAFC 8 ; [2008] 165 FCR 560
Outcome: applied
overriding principle in assessing penalty is that the amount of the penalty should reflect the Court's view of the seriousness of the offending conduct in all the relevant circumstances: Madgwick J in Comcare v Commonwealth of Australia [2007] FCA 662 ; [2007] 163 FCR 207 at [120] . While penalties imposed pursuant to s 16(1) in other cases may provide some guidance, the Court in each case is required to focus on the circumstances before it and not be improperly distracted by the circumstances in other cases which are inevitably different from the circumstances before the Court. As Gray J said in Australian Ophthalmic Supplies Pty Ltd v McAlary -Smith [2008] FCAFC 8 ; [2008] 165 FCR 560 at [12] - [13] : [12] Much of the argument put by counsel for the appellant involved a detailed comparison between the facts of this case and the facts of two other cases in which lower penalties had been imposed in respect of award breaches. The two cases, both judgments of the same Federal Magistrate, are Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 and Flattery v The Italian Eatery T/as Zeffirelli's Pizza Restaurant [2007] FMCA 9. This was a fundamentally wrong approach. Penalties are not a matter of precedent . The choice of penalty must be dictated by the individual circumstances of a case, not by a line by line comparison with another case. See the passage from the judgment of Burchett and Kiefel JJ in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285 at 295, set out in the reasons for judgment of Buchanan J at [87]. [13] Penalty decisions in other cases can be of value in demonstrating that there is a range of penalties generally considered appropriate to a particular type of case. The individual circumstances of the case at hand must then be examined, in order to determine at what point in the appropriate range the penalty should be set. This does not involve a comparison with the facts of other cases. (emphasis added)
Case: Comcare v John Holland Pty Ltd [2009] FCA 1196
Outcome: related
the reasons provided in a previous judgment in respect of this matter Comcare v John Holland Pty Ltd [2009] FCA 1196 I allowed members of Mr McCallum's family to file impact evidence statements with the Court, which I have read. While, as I indicated in my interlocutory judgment, their statements were accepted on the basis that they would not be taken into account for the purposes of determining the appropriate penalty in this case, the Court extends its sympathy to the family of Mr McCallum, and acknowledges the extreme pain and anguish caused them by the loss of Mr McCallum. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 16 December 2009 Counsel for the Applicant: Mr A Herbert Solicitor for the Applicant: DibbsBarker Lawyers Counsel for the Respondent: Mr J Fernon SC with Ms W Thompson Solicitor for the Respondent: Australian Business Lawyers Date of Hearing: 27 October 2009 Date of Judgment: 17 December 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1515.html
Case: Comcare v John Holland Rail Pty Ltd [2009] FCA 771
Outcome: applied
the absence of mitigating circumstances, I consider that the appropriate penalty in this case would be $200,000. This is reflective of the fact that the objective seriousness of the respondent's conduct is at the higher end of the scale but does not exhibit characteristics of the worst kind of conduct. However I agree with, and adopt, observations of Barker J in Comcare v John Holland Rail Pty Ltd [2009] FCA 771 at [143] where his Honour observed: Where, for example, a respondent in a proceeding such as these early on acknowledges fault and willingness to accept a declaration of contravention, then the respondent will ordinarily be entitled to additional consideration in the assessment of the penalty. In some contexts this process is termed giving credit or "discount" on penalty. There is no statutory entitlements to such credit or a discount but it serves public policy in that it encourages a respondent to act responsibly, and may achieve a reduction in the public resources that would otherwise be required to prosecute the proceedings against the respondent. (at [143]) I consider that the penalty should be reduced by 10% in light of the early plea by the respondent, its contrition as demonstrated by its early admission of liability and the assistance provided to both the family of Mr McCallum, other employees, and Comcare in its investigations, and the extensive changes to the work system introduced since the incident which indicate a genuine attempt by the respondent to prevent the recurrence of a similar tragedy. Accordingly, in my view the appropriate penalty is $180,000. Family Impact Evidence
Case: Trade Practices Commission v CSR Ltd (1991) ATPR 41-076
Outcome: applied
respondent has made extensive submissions in relation to mitigation. As the respondent submits, and I also note, Madgwick J in Comcare v Commonwealth of Australia [2007] FCA 662 ; [2007] 163 FCR 207 listed no considerations favourable to a respondent in respect of assessment of penalty. However in determining a pecuniary penalty for breach of the Trade Practices Act 1974 (Cth), French J in Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,153 considered issues subjectively relevant to the conduct of the respondent, including:
Case: WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362
Outcome: cited
this case the respondent admits that the result of its conduct was the death of Mr McCallum. While there is no question here that Mr McCallum's death was actually foreseen by the respondent, in my view implementing a work method incorporating an appropriate radio protocol would not have been unreasonable, and to so find now is not, in my view, "substituting reasonable hindsight for reasonable foresight" ( WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381). The size of the plant involved, the vulnerability of workers in front of it, and the very real risk of serious injury or death in the absence of a fail-safe means of immediate emergency communication does suggest a systemic failure by the respondent rather than "a risk to which an employee was exposed because of a combination of inadvertence on the part of an employee and a momentary lapse of supervision" as contended by the respondent. Indeed, it is not conclusive that there was either inadvertence on the part of Mr McCallum or a momentary lapse in his supervision by Mr Grech and the incident still occurred. It is clear that, despite the efforts taken by the respondent to implement a safe working environment, the operation involving the transportation unit was flawed in its original conception. The dangers were obvious from the start, relatively simple to avoid, but unrecognised and unaddressed in a manner which raises the objective gravity of the offence in these proceedings towards the higher end of the scale. The respondent submits that the improvements made to its work systems and the immediate action it took following the incident indicate that specific deterrence is not a factor of significance in this matter. I disagree. While the initiatives of the respondent are to be applauded, a relevant consideration in respect of the quantum of a penalty is that it be a deterrence to the specific employer in question as well as the community at large (including other employers). The respondent in this case has admitted that the result of its conduct was the death of an employee. It is necessary that the penalty reflect that fact. Further, while the work systems in place at the time of the incident support a finding that the respondent had adopted an approach to safety which was proactive rather than reactive, it is clear from both the obviousness of the risk to which Mr McCallum was fatally exposed and the simple but effective measures put in place since the incident including the adoption of a radio protocol that there were serious deficiencies in the quality of the proactive work undertaken.
Case: Francis Day &amp; Hunter Ltd v Bron [1963] 1 Ch 587
Outcome: cited
The term "reproduction" is not otherwise defined. However, as Diplock LJ observed in Francis Day &amp; Hunter Ltd v Bron [1963] 1 Ch 587 at 623, it plainly involves two elements. First, there must be sufficient objective similarity between the infringing work and the copyright work, or a substantial part thereof, for the former to be properly described, not necessarily as identical with, but as a reproduction or adaptation of the latter. Second, the copyright work must be the source from which the infringing work is derived. 60 In SW Hart &amp; Co Pty Ltd v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466 , Gibbs CJ said (at 472): "The notion of reproduction, for the purposes of copyright law, involves two elements - resemblance to, and actual use of, the copyright work, or, to adopt the words which appear in the judgment of Willmer LJ in Francis Day &amp; Hunter Ltd v Bron [1963] Ch 587 at 614, "a sufficient degree of objective similarity between the two works" and "some causal connection between the plaintiffs' and the defendants' work". Lord Reid said in Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273 at 276 ...: 'Broadly, reproduction means copying, and does not include cases where an author or compiler produces a substantially similar result by independent work without copying. And, if he does copy, the question whether he has copied a substantial part depends much more on the quality than on the quantity of what he has taken'." 62 Copying can be conscious or subconscious: Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd (1999) 46 IPR 309 at [24]. In Francis Day &amp; Hunter Ltd v Bron, Willmer LJ explored the idea of "subconscious" copying. His Lordship said (at 612-614): "I confess that I have found the notion of subconscious copying one of some difficulty, for at first sight it would seem to amount to a contradiction in terms, the word 'copying' in its ordinary usage connoting what is essentially a conscious process ... The conclusion at which I arrive on this part of the case is that subconscious copying is a possibility which, if it occurs, may amount to an infringement of copyright. But in order to establish liability on this ground, it must be shown that the composer of the offending work was in fact familiar with the work alleged to have been copied."
Case: Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd (1999) 46 IPR 309
Outcome: cited
Copying can be conscious or subconscious: Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd (1999) 46 IPR 309 at [24]. In Francis Day &amp; Hunter Ltd v Bron, Willmer LJ explored the idea of "subconscious" copying. His Lordship said (at 612-614): "I confess that I have found the notion of subconscious copying one of some difficulty, for at first sight it would seem to amount to a contradiction in terms, the word 'copying' in its ordinary usage connoting what is essentially a conscious process ... The conclusion at which I arrive on this part of the case is that subconscious copying is a possibility which, if it occurs, may amount to an infringement of copyright. But in order to establish liability on this ground, it must be shown that the composer of the offending work was in fact familiar with the work alleged to have been copied."