mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Securities and Investment Commission v DB Management Pty Limited [2000] HCA 7 ; (2000) 199 CLR 321
Outcome: applied
In Australian Securities and Investment Commission v DB Management Pty Limited [2000] HCA 7 ; (2000) 199 CLR 321 at 338 [34] - [35] Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ said: '[34] In Project Blue Sky Inc v Australian Broadcasting Authority ((1998) [1998] HCA 28 ; 194 CLR 355 at 384, per McHugh, Gummow, Kirby and Hayne JJ), after pointing out that the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have, the majority said: "Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning." [35] It may be added that, if a party contends that a provision, by reason of such considerations, should not be given its literal meaning, then such a contention may lack force unless accompanied by some plausible formulation of an alternative legal meaning.'
Case: Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290
Outcome: applied
The need for precision in the statement of the questions of law in a notice of appeal under s 44(1) of the AAT Act is explained by Branson J in Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at 301 [46] - [47] , with whom Jacobson and Bennett JJ agreed on this point (at 133 FCR at 131 [105]-[108]). She observed that in that case '... the questions stated in the notice of appeal have been impermissibly drawn in a way calculated to cause this Court to review the decision of the Tribunal rather than to answer stated questions of law'. Earlier, in Birdseye v Australian Securities and Investments Commission (2003) 78 ALD 321, Branson and Stone JJ considered how a question of law ought be stated in a notice of appeal, in the context of O 53 r 3(2). They said that: '... in the specification of the grounds relied upon in support of the order sought ... one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on appeal.' ((2003) 76 ALD at 325 [18]) 40 Here, the question of law asks the Court to review what the Tribunal did and then to determine whether it erred in failing to apply one or more elements which it was required to apply in factor 5(b). That is not a question of law within the meaning of the authorities on an appeal under s 44(1) of the AAT Act. The Commission argued that because the Tribunal did not make a finding about the last clause of factor 5(b), the way in which the question of law was framed complied with s 44(1). In my opinion it does not. Before one reaches that step, one would need to know what, properly construed, factor 5(b) involved and a subsequent question of law would be whether it was properly applied to the facts as found by the Tribunal. 41 I am of opinion that the question as raised in the notice of appeal does not raise a question of law within the meaning of the authorities. In any event, if I am wrong in my conclusion as to the question of law, I am of opinion that the Tribunal made no error of law in applying factor 5(b).
Case: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2 ; (1997) 187 CLR 384
Outcome: cited
And, in Public Transport Commission (NSW) v J Murray-Moore (NSW) Pty Limited [1975] HCA 28 ; (1975) 132 CLR 336 at 350 Gibbs J said that where two meanings were open '...it is proper to adopt that meaning that will avoid consequences that appear irrational and unjust'. Inconvenience or improbability of result may assist the Court in preferring, to the literal meaning, an alternative construction which is reasonably open and more closely conforms to the legislative intent: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2 ; (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ. They noted that both the common law and s 15AB of the Acts Interpretation Act 1901 (Cth) enabled the Court to have regard to reports of law reform bodies to ascertain the mischief to which a provision was directed. There is no relevant explanatory material which might throw light on the obscurity of factor 5(b).
Case: Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522
Outcome: applied
In Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36 ; (1996) 186 CLR 389 at 397 Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ said that all was required for a reviewable question of law to be raised was for a phrase to be identified as being used in a sense different from that which it has in ordinary speech. There is no doubt that the proper construction of factor 5(b) is capable of being a question of law. But that is not the question which the Commission raised in its amended notice of appeal. Of course, nor is a broad enquiry as to the construction or operation of factor 5(b) a question of law within the meaning of s 44(1) of the AAT Act, because it would involve the Court offering an advisory opinion which is beyond the judicial power of the Commonwealth: see In Re Judiciary and Navigation Acts [1921] HCA 20 ; (1921) 29 CLR 257; Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at 528 [19] per Branson J, Spender and Nicholson JJ agreeing. 38 Because factor 5(b) does not use words according to their common understanding, the question whether facts fully found fall within its provisions, properly construed, is a question of law: Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 at 7 per Mason J. In Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at 530 [29] Branson J said that a question which invited the Court to examine the evidence and other material before the Tribunal was not a question of law within the meaning of s 44(1) of the AAT Act but rather it was, at best, a mixed question of fact and law. She said that looked at critically, such a question was open to be understood as an invitation to the Court to conduct a rehearing with respect to important aspects of controversy that came before the Tribunal for determination. This was not open to be accepted under s 44(1) of the AAT Act. And in HBF Health Funds Inc v Minister for Health and Ageing [2006] FCAFC 34 ; (2006) 149 FCR 291 at 293 [6] Spender, Branson and Siopis JJ said that it was not possible to extend the subject matter of the appeal under s 44(1) of the AAT Act beyond the specified questions of law by itemising, under the heading 'Grounds' in the notice of appeal, a series of alleged errors in the reasons for the decision of the Tribunal, some being errors of law, some being errors of fact, and some being errors of mixed law and fact.
Case: HBF Health Funds Inc v Minister for Health and Ageing [2006] FCAFC 34 ; (2006) 149 FCR 291
Outcome: followed
Because factor 5(b) does not use words according to their common understanding, the question whether facts fully found fall within its provisions, properly construed, is a question of law: Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 at 7 per Mason J. In Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at 530 [29] Branson J said that a question which invited the Court to examine the evidence and other material before the Tribunal was not a question of law within the meaning of s 44(1) of the AAT Act but rather it was, at best, a mixed question of fact and law. She said that looked at critically, such a question was open to be understood as an invitation to the Court to conduct a rehearing with respect to important aspects of controversy that came before the Tribunal for determination. This was not open to be accepted under s 44(1) of the AAT Act. And in HBF Health Funds Inc v Minister for Health and Ageing [2006] FCAFC 34 ; (2006) 149 FCR 291 at 293 [6] Spender, Branson and Siopis JJ said that it was not possible to extend the subject matter of the appeal under s 44(1) of the AAT Act beyond the specified questions of law by itemising, under the heading 'Grounds' in the notice of appeal, a series of alleged errors in the reasons for the decision of the Tribunal, some being errors of law, some being errors of fact, and some being errors of mixed law and fact.
Case: In Re Judiciary and Navigation Acts [1921] HCA 20 ; (1921) 29 CLR 257 
Outcome: cited
In Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36 ; (1996) 186 CLR 389 at 397 Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ said that all was required for a reviewable question of law to be raised was for a phrase to be identified as being used in a sense different from that which it has in ordinary speech. There is no doubt that the proper construction of factor 5(b) is capable of being a question of law. But that is not the question which the Commission raised in its amended notice of appeal. Of course, nor is a broad enquiry as to the construction or operation of factor 5(b) a question of law within the meaning of s 44(1) of the AAT Act, because it would involve the Court offering an advisory opinion which is beyond the judicial power of the Commonwealth: see In Re Judiciary and Navigation Acts [1921] HCA 20 ; (1921) 29 CLR 257; Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at 528 [19] per Branson J, Spender and Nicholson JJ agreeing.
Case: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355
Outcome: applied
In Australian Securities and Investment Commission v DB Management Pty Limited [2000] HCA 7 ; (2000) 199 CLR 321 at 338 [34] - [35] Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ said: '[34] In Project Blue Sky Inc v Australian Broadcasting Authority ((1998) [1998] HCA 28 ; 194 CLR 355 at 384, per McHugh, Gummow, Kirby and Hayne JJ), after pointing out that the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have, the majority said: "Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning." [35] It may be added that, if a party contends that a provision, by reason of such considerations, should not be given its literal meaning, then such a contention may lack force unless accompanied by some plausible formulation of an alternative legal meaning.' 15 Earlier, in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 381 [69] McHugh, Gummow, Kirby and Hayne JJ said that the primary object of statutory construction was to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute. They approved what Dixon CJ had said in Commissioner for Railways (NSW) v Agalianos [1955] HCA 27 ; (1955) 92 CLR 390 at 397, namely that: '... the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.'
Case: Public Transport Commission (NSW) v J Murray-Moore (NSW) Pty Limited [1975] HCA 28 ; (1975) 132 CLR 336
Outcome: applied
And, in Public Transport Commission (NSW) v J Murray-Moore (NSW) Pty Limited [1975] HCA 28 ; (1975) 132 CLR 336 at 350 Gibbs J said that where two meanings were open '...it is proper to adopt that meaning that will avoid consequences that appear irrational and unjust'. Inconvenience or improbability of result may assist the Court in preferring, to the literal meaning, an alternative construction which is reasonably open and more closely conforms to the legislative intent: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2 ; (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ. They noted that both the common law and s 15AB of the Acts Interpretation Act 1901 (Cth) enabled the Court to have regard to reports of law reform bodies to ascertain the mischief to which a provision was directed. There is no relevant explanatory material which might throw light on the obscurity of factor 5(b). 24 A strict literal reading of factor 5(b) suggests that even where a veteran is suffering from a form of addiction to alcohol but could, if he or she chose, reduce the intake (e.g. by being admitted to an institution at which alcohol dependency could be treated and at which no alcohol was permitted) but did not do so would not be capable of satisfying the conditions. Any possibility of a person consuming less than the average 300 grams of alcohol per week would negate a claim which had been medically established by the actual consumption of that quantity. In effect, a person who was caused by his or her service to the nation to embark on a drinking habit of consuming more than 300 grams of alcohol per week, and who became sick with hypertension, would not be able to receive a benefit because it was logically possible for him or her not to have drunk as much. Such a construction is, in the absence of express words, one which produces consequences which are irrational and unjust ( Public Transport Commission (NSW) v J Murray-Moore (NSW) Pty Limited [1975] HCA 28 ; (1975) 132 CLR 336 at 350 per Gibbs J.
Case: Re Campbell and Repatriation Commission [2006] AATA 455
Outcome: referred to
Mr Rice referred ([2005] AATA 474 at [24]) to an earlier decision of the Tribunal in Re Collier and Repatriation Commission [2004] AATA 111 at [12] which had said that factor 5(b) was confusing and 'just does not make sense'. And, in Re Campbell and Repatriation Commission [2006] AATA 455 at [71] a senior member said that the language was unclear and devoid of meaning. He disagreed with the decision in Re Schubinski and Repatriation Commission [2005] AATA 1273 at [100] , where a differently constituted Tribunal had said of the current factor 5(b) that the relevant words were capable of a sensible construction and that they: '... connote an element of an inability on the part of the person concerned to decrease his or her average consumption below the average stated. In other words, we hold subclause (b) to mean that an applicant must establish that for a continuous period of at least six months immediately before the clinical onset of hypertension the applicant was not only consuming an average of 300 grams per week of alcohol but was unable to consume less than that average during that period. In other words ... the relevant words in effect refer to a compulsion to drink, not merely to the fact of drinking.'
Case: Re Collier and Repatriation Commission [2004] AATA 111
Outcome: referred to
Mr Rice referred ([2005] AATA 474 at [24]) to an earlier decision of the Tribunal in Re Collier and Repatriation Commission [2004] AATA 111 at [12] which had said that factor 5(b) was confusing and 'just does not make sense'. And, in Re Campbell and Repatriation Commission [2006] AATA 455 at [71] a senior member said that the language was unclear and devoid of meaning. He disagreed with the decision in Re Schubinski and Repatriation Commission [2005] AATA 1273 at [100] , where a differently constituted Tribunal had said of the current factor 5(b) that the relevant words were capable of a sensible construction and that they: '... connote an element of an inability on the part of the person concerned to decrease his or her average consumption below the average stated. In other words, we hold subclause (b) to mean that an applicant must establish that for a continuous period of at least six months immediately before the clinical onset of hypertension the applicant was not only consuming an average of 300 grams per week of alcohol but was unable to consume less than that average during that period. In other words ... the relevant words in effect refer to a compulsion to drink, not merely to the fact of drinking.' 12 Before me the Commission asserted that it did not need to propound a final view as to the proper construction of factor 5(b) because, whatever it means, each part of it was not considered or applied by the Tribunal in the present decision. I was informed from the Bar table that the words of factor 5(b) had not been the subject of any clarification despite the difficulty of construction identified two years ago in Re Collier and Repatriation Commission [2004] AATA 111. 13 In light of the substantive impact which statements of principles have in the assessment of claims made by service and former service personnel, it is unfortunate that this provision, which has been rightly criticised as badly worded, has been left unamended. It is obviously a very difficult piece of wording to construe.
Case: Re Jensen and Repatriation Commission [2005] AATA 474
Outcome: referred to
A member of the Tribunal (Mr E Rice) said in Re Jensen and Repatriation Commission [2005] AATA 474 at [24] that it was impossible to make any sense of the final clause in an analogous form (which referred to 200 rather than 300 grams per week and did not include the criterion of a period of six months). He continued that the factor: '... seems to require a consumption of an average of at least 200 grams of alcohol per week at the time of the clinical onset of hypertension, and an inability to decrease that consumption to less than an average of 200 grams per week, also at the time of the clinical onset of hypertension.' 11 Mr Rice referred ([2005] AATA 474 at [24]) to an earlier decision of the Tribunal in Re Collier and Repatriation Commission [2004] AATA 111 at [12] which had said that factor 5(b) was confusing and 'just does not make sense'. And, in Re Campbell and Repatriation Commission [2006] AATA 455 at [71] a senior member said that the language was unclear and devoid of meaning. He disagreed with the decision in Re Schubinski and Repatriation Commission [2005] AATA 1273 at [100] , where a differently constituted Tribunal had said of the current factor 5(b) that the relevant words were capable of a sensible construction and that they: '... connote an element of an inability on the part of the person concerned to decrease his or her average consumption below the average stated. In other words, we hold subclause (b) to mean that an applicant must establish that for a continuous period of at least six months immediately before the clinical onset of hypertension the applicant was not only consuming an average of 300 grams per week of alcohol but was unable to consume less than that average during that period. In other words ... the relevant words in effect refer to a compulsion to drink, not merely to the fact of drinking.'
Case: Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Outcome: considered
In Repatriation Commission v Gosewinckel (1999) 59 ALD 690 at 704 [64] Weinberg J pointed out in a case under s 120A that where a statement of principles requires the presence of a number of distinct symptoms, unless each of those symptoms is present, the case will not fit within the requirements of legislation. However, the relevant operation of s 120B and its interaction with s 196B(3) is not distinguishable for present purposes (although the degree of satisfaction which the decision-maker must have is, of course, distinct) (cf: Roncevich v Repatriation Commission [2005] HCA 40 ; (2005) 222 CLR 115 at 120 [11] , 125-126 [23]-[28]. 33 In Repatriation Commission v Gosewinckel (1999) 59 ALD 690 at 704-705 [67] Weinberg J noted that the provisions in Pt XIA of the Act '... were introduced in order to take the determination of "purely medical ... issues" out of the hands of bodies such as the tribunal: Explanatory Memorandum to Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 at p 3'. The construction posited by the Commission in this case of factor 5(b) does not raise a 'purely medical issue'. Factor 5(b) works as a 'purely medical issue' if one reads it as setting out the objective fact that 300 or more grams of alcohol, and nothing less, on average per week are consumed for a continuous period for at least six months before the clinical onset of hypertension. That is an objective fact that can be ascertained. The concluding clause in the factor emphasizes that it will not be satisfied if less than 300 grams per week are used in the calculation. That construction makes sense of the provision where a Tribunal might be inclined to think that near enough to 300 grams per week as average amount over the continuous period was good enough.
Case: Repatriation Commission v Hill (2002) 69 ALD 581
Outcome: cited
The task of the Tribunal, therefore, was to determine to its reasonable satisfaction that factor 5(b) was made out. The effect of s 120B(3)(b) is that once the Tribunal is reasonably satisfied that factor 5(b) exists, it can uphold the contention that the disease is connected with the service. In Repatriation Commission v Hill (2002) 69 ALD 581 at 596 [55] Black CJ, Drummond and Kenny JJ said that an hypothesis connecting a disease with war service will only be reasonable if the material that raises it includes all of the essential elements prescribed by the relevant statement of principles. 31 Thus, in a case such as the present, the Commission argues that every element in factor 5(b) had to be found by the Commission separately. Here, s 120(4) requires the decision-maker to decide the matter according to its reasonable satisfaction. In doing so, it is important to note that s 120(6) provides that no party (whether applicant or Commission) has an onus of proving any matter that is or might be relevant to the determination of a claim or application. The Tribunal not only found in terms that all of the conditions in factor 5(b) in Mr Cotton's case were met to its satisfaction, but it also said that Mr Cotton's conduct while in the RAAF was 'the causal influence that led him to making a decision to start drinking (and indeed smoking) and to continue to do so'.
Case: Rhymney Iron Company v Gelligaer District Council [1917] 1 KB 589
Outcome: considered
In its natural and ordinary meaning in factor 5(b) the word 'cannot' means that it is not possible to decrease the quantity. In other contexts the word 'cannot' has a natural and ordinary meaning of excluding the possibility of something occurring. So, in 29 Equities Ltd v Bank Leumi (UK) Ltd [1986] 1 WLR 1490 at 1496G-H Dillon LJ said that it was a simple question of fact to be decided in the light of common sense whether at the date on which a vendor purported to rescind a contract of sale a licence 'cannot be obtained'. And, in The Newbattle (1885) 10 PD 33 the English Court of Appeal held that a statutory provision referring to a ship which 'cannot be arrested' connoted that it was impossible to arrest the ship. In Rhymney Iron Company v Gelligaer District Council [1917] 1 KB 589 at 594, Viscount Reading CJ had to construe a provision empowering a local authority to service a notice on an owner or occupier where the person responsible for a nuisance 'cannot be found'. He said that having regard to the public health purpose in the legislation, the authority had only to be unable to ascertain, in its then state of knowledge, who was responsible for the nuisance.