mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Kerney v Optimus Holdings Pty Ltd [1976] VR 399
Outcome: cited
Indeed, so much was recognised by Menhennett J in a later decision in Kerney v Optimus Holdings Pty Ltd [1976] VR 399 at 401. 55 For the reasons which follow, in my opinion, the respondent is entitled to further particulars in respect to the plea in paragraph 46.1 but not of the plea in paragraph 46.2. 56 Six imputations are said to arise out of the publications in paragraphs 20 and 22. One of these imputations consists of four parts. It is not clear whether the pleader means that that imputation consists of all four parts or those parts are alternatives. But that is not an issue at present. The point is that six separate imputations are said to arise out of the 17 separate publications in paragraph 18 (which are incorporated into paragraph 20) and the three separate publications in paragraph 22. The 17 separate publications in paragraph 20 total 52 pages. The three separate publications in paragraph 22 consist of three pages. The Court and the respondent, at present, have to trawl through 55 pages of material to identify the six discrete imputations pleaded in paragraph 46.1.
Case: Lawson v Perpetual Trustee Co Ltd (1959) 76 WN (NSW) 367
Outcome: cited
As to the first part of the request for particulars seeking further particularity of the contracts, this request should be refused for three reasons. First, because paragraph 33 identifies the contracts with sufficient particularity, being those contracts which the respondent referred to in his email to the solicitors for the applicants on 15 February 2006. The respondent must know to which contracts he was referring when he sent that email. This is one of those circumstances that the party's own knowledge means that the request for particulars should be refused: Lawson v Perpetual Trustee Co Ltd (1959) 76 WN (NSW) 367. Secondly, the contracts are in fact identified in paragraph 7 of the statement of claim. Thirdly, the contracts which are referred to in the email of 15 February 2006 apparently have not been discovered by the respondent. In that case, the respondent cannot seek further particularity of documents to which he referred in his email and which he has neglected to discover in this proceeding. His failure to discover the documents makes it impossible for the applicants to better identify them. 28 As to the request for particularity of the respondent's knowledge, that request must also be refused. Order 12 rule 3 provides: 3(1) A party pleading any condition of mind shall give particulars of the facts on which he relies. (2) In subrule (1) "condition of mind" includes any disorder or disability of mind, any malice and any fraudulent intention, but does not include knowledge. 29 The plea in paragraph 33 is confined to actual knowledge. There is no obligation on the applicants to give particulars of the actual knowledge of the respondent. That is because the respondent either did or did not have the knowledge. If as alleged he had that knowledge then, that must be proved by admissible evidence. Particulars are not required. 1.7 paragraphs 30, 30.1 and 30.2 (paragraph 36): the Applicants identify the actual written words and/or sentences on which they rely in respect of their stated allegation of solicitation, by the Respondent, of the Applicants customers and suppliers for documents embodying trading terms to which such customers and suppliers have contractually agreed to the prohibition of publication of said documents.
Case: Pinson v Lloyds and National Provincial Foreign Bank Limited [1941] 2 KB 72
Outcome: cited
A pleading must be as brief as the nature of the case allows and contain only a statement of the material facts on which the party relies: O 11 r 3 and O 11 r 2 of the Federal Court Rules (the Rules). It should not contain the evidence by which those material facts are to be proved: O 11 r 2. A party, however, must include in the pleading or in some other document the particulars of the party's claim or defence: O 12 r 1. The object of requiring a party to give particulars is to limit the generality of the pleadings so as to inform the party's opponent of the nature of the case which he or she has to meet and to prevent the opponent from being taken by surprise at the trial: Spedding v Fitzpatrick (1887) 38 Ch D 410. The provision of appropriate particulars should mean that unnecessary expense to the parties will be avoided. Particulars, like material facts, should not include the evidence which the party intends to prove his or her case. Nor should particulars be used as statements of material fact because particulars are not pleaded to by the opposing party: Pinson v Lloyds and National Provincial Foreign Bank Limited [1941] 2 KB 72.
Case: Scott v Fourth Estate Newspapers Ltd [1986] 1 NZLR 336
Outcome: referred to
In Scott v Fourth Estate Newspapers Ltd [1986] 1 NZLR 336, Williamson J said at 339-340: After considering the authorities referred to, my view is that it must be a rare case where a plaintiff can plead a whole article without particularising the passages in the article that he complains of. It may be appropriate to plead the whole article in order to claim that certain passages or libellous statements take their meaning from the article as a whole, but in order to focus the dispute it is important that the allegedly defamatory passages be sufficiently identified.
Case: Spedding v Fitzpatrick (1887) 38 Ch D 410
Outcome: cited
A pleading must be as brief as the nature of the case allows and contain only a statement of the material facts on which the party relies: O 11 r 3 and O 11 r 2 of the Federal Court Rules (the Rules). It should not contain the evidence by which those material facts are to be proved: O 11 r 2. A party, however, must include in the pleading or in some other document the particulars of the party's claim or defence: O 12 r 1. The object of requiring a party to give particulars is to limit the generality of the pleadings so as to inform the party's opponent of the nature of the case which he or she has to meet and to prevent the opponent from being taken by surprise at the trial: Spedding v Fitzpatrick (1887) 38 Ch D 410. The provision of appropriate particulars should mean that unnecessary expense to the parties will be avoided. Particulars, like material facts, should not include the evidence which the party intends to prove his or her case. Nor should particulars be used as statements of material fact because particulars are not pleaded to by the opposing party: Pinson v Lloyds and National Provincial Foreign Bank Limited [1941] 2 KB 72.
Case: Patterson and Repatriation Commission [2005] AATA 758
Outcome: discussed
The applicant Mr David Patterson claims that his condition of hypertension arose out of, or was attributable to, his eligible war service in Vietnam, within the meaning of s 9(1)(b) of the Veterans' Entitlement Act 1986 (Cth) (the Act). The rejection of his claim by the respondent Repatriation Commission and the Veterans' Review Board was affirmed by the Administrative Appeals Tribunal: Patterson and Repatriation Commission [2005] AATA 758. Mr Patterson now appeals to this Court. 2 The relevant Statement of Principles (SoP) concerning hypertension for the purposes of s 120A(3) of the Act, No 35 of 2003, provides by cl 4 that at least one of the factors in cl 5 "must be related to any relevant service rendered". The factors in cl 5 include: "(a) being obese at the time of the clinical onset of hypertension; or (b) consuming an average of at least 200 g per week of alcohol which cannot be decreased to less than an average of 200 g per week at the time of the clinical onset of hypertension; or (c) ingesting at least 12 g of salt supplements per day on average for a continuous period of at least six months immediately before the clinical onset of hypertension." 3 Mr Patterson served as a gunner in the Australian Army in Vietnam from 4 February until 30 October 1971. His clinical onset of hypertension occurred in 1978.
Case: Repatriation Commission v Deledio (1998) 83 FCR 82 at 97
Outcome: applied
The Tribunal then quoted the four-step process from the judgment of the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 as follows (emphasis added): "1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage . If no such hypothesis arises, the application must fail. 2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail. 3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be 'reasonable' and the claim will fail. 4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it . In so doing, no question of onus of proof or the application of any presumption will be involved." 30 The Tribunal found in respect of the first Deledio step that the material "point(ed) to a hypothesis connecting the hypertension to the circumstances of the particular service rendered by (Mr Patterson)". Although not explicitly stated at this stage, it would seem that the Tribunal had in mind the obesity hypothesis. 31 In relation to the second step the Tribunal noted there was no dispute that the SoP concerning hypertension was in force.
Case: Deledio v Repatriation Commission (1997) 47 ALD 261 at 275
Outcome: discussed
The third Deledio step does not require or permit fact finding, an exercise which is confined to the fourth step. Yet it is clear this is what the Tribunal did at [43] and [44]. The reference to Dr English's criticism of "lack of dietary intake data" suggests not only fact finding but the imposition of an onus of proof on Mr Patterson, something excluded by s 120(6). The Tribunal reached a conclusion as to what in fact Mr Patterson's alcohol consumption was rather than enquiring whether his hypothesis was consistent with the SoP. I said at first instance in Deledio v Repatriation Commission (1997) 47 ALD 261 at 275, in a passage approved by the Full Court at 83 FCR 96, "...the SoP has no function in relation to the proof or disproof (under s 120(1) of the particular facts of a veteran's case. The SoP's function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent so that the SoP can 'uphold' the hypothesis... ... The particular claim then has to fit the template laid down in the SoP. The Byrnes [ v Repatriation Commission [1993] HCA 51 ; (1993) 177 CLR 564] methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is: (i) contrary to proved or known scientific facts, (ii) obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or (iii) (since 1994) inconsistent with (not upheld by) an applicable SoP. If the hypothesis is reasonable the claim will succeed unless: (iv) one or more facts necessary to support it are disproved beyond reasonable doubt; or (v) the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt. At no stage is there an onus of proof on the claimant. If one of the disputed facts happens to be a component of an SoP then the Commission must disprove that fact beyond reasonable doubt, just like any other relevant fact." 39 The Tribunal failed to follow the process mandated by the Act. The Tribunal in the present case has made essentially the same error as the Tribunal in Deledio when it said (quoted in 47 ALD at 272): "If a particular fact is not found to exist, or is not found to be related to the veteran's service, on the balance of probabilities, then the SoP does not uphold the hypothesis and, according to s 120A(3) of the Act, the hypothesis cannot be reasonable." At 275 I said: "... the SoP system does not have the effect that some of the facts relevant to a claim, viz those facts which coincide with factors set out in an SoP, have to be proved by the claimant." 40 Much the same thing happened with the salt hypothesis. The Tribunal made a qualitative assessment of Mr Patterson's evidence and accepted criticism of it as "speculative", "unreliable" and "inaccurate". This is the discourse of fact finding.
Case: East v Repatriation Commission (1987) 16 FCR 517
Outcome: cited
If the Act, like most statutes conferring pensions and similar benefits, simply required Mr Patterson to establish that his hypertension was due to war service, then the Tribunal's approach would disclose no error of law. However, for the historical and political reasons which underlie repatriation legislation in Australia, as discussed in Deledio and East v Repatriation Commission (1987) 16 FCR 517, the Act mandates a unique decision-making process. The Tribunal failed to apply that process. 42 The Commission filed a notice of contention which in substance argued that the material before the Tribunal was incapable of raising the required reasonable hypothesis connecting Mr Patterson's hypertension with the circumstances of his war service. In an appeal limited to questions of law ( Administrative Appeals Tribunal Act 1975 (Cth ) s 44(1)) it would not be appropriate to conduct in effect a rehearing of the case before the Tribunal. Mr Patterson was entitled to have his claim considered on its merits by the Tribunal in accordance with the Act. 43 The appeal will be allowed. The determination of the Tribunal made on 9 August 2005 is set aside. Mr Patterson's claim is remitted for consideration by the Tribunal differently constituted. The Commission is to pay Mr Patterson's costs of the appeal, including reserved costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey . Associate: Dated: 12 May 2006 Counsel for the Applicant: Mr G Chancellor Solicitors for the Applicant: Williams Winter Counsel for the Respondent: Ms J Mac Donnell Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 26 April 2006 Date of Judgment: 12 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/538.html
Case: Aged Care Standards and Accreditation Agency Ltd v Kenna Investments Pty Ltd [2004] FCA 843 ; (2004) 138 FCR 428
Outcome: referred to
Authority submitted that there is a clear line of authority that in cancellation cases, such as the present, a review Tribunal is required to have regard to the circumstances at the time of the decision and not those that followed it: Freeman v Secretary, Department of Social Security (1988) 19 FCR 342; Hospital Benefit Fund of WA v Minister for Health, Housing and Community Services (1992) 39 FCR 225; Nong v Minister for Immigration and Multicultural Affairs [2000] FCA 1575 ; (2000) 106 FCR 257; Minister for Immigration and Multicultural Affairs v Sharma [1999] FCA 31 ; (1999) 90 FCR 513; and Aged Care Standards and Accreditation Agency Ltd v Kenna Investments Pty Ltd [2004] FCA 843 ; (2004) 138 FCR 428. The Authority observed that in Aged Care Standards and Accreditation Agency , Branson J considered that only limited assistance was gained from categorising decisions as cancellation decisions or entitlements decisions (at [26]). Her Honour considered that it was necessary to consider the nature of the decision involved. In that case, the Tribunal was to review a decision to vary the period of accreditation for an aged care provider (this decision did not fit readily into the cancellation entitlement dichotomy). Her Honour considered that, in the legislation before her, the fact that a decision could be made only after an audit report was obtained and only within 14 days of receipt of that report was important. However, her Honour also applied the reasoning of Davies J in Freeman in concluding that the decision was not part of an administrative continuum. Her Honour also observed at [30] [31]: [30] ... In my view, the Tribunal would be undertaking a quite different process from that which the Principles required the accreditation body to undertake were it to review a decision made under s 3.24 by reference to factual material remote in time from the review audit report. In particular, I consider that on review of a decision made under s 3.24 it is not open to the approved provider to seek to undermine the significance of the review audit report, and the recommendations included in it, by calling evidence of improvements in its practice and procedure implemented after the date of the decision and in response to the review audit report and recommendations. [31] I conclude that the Tribunal would not be addressing the same questions as the applicant was required to address if it were to determine whether, at the time of the Tribunal's decision, the decision of the applicant under s 3.24 of the Principles can be seen to be the correct or preferable decision. This is not to say that the Tribunal cannot receive evidence of facts that occurred after the date of the decision under review. However, to be relevant to the Tribunal's decision, that evidence must, in my view, bear on the merits of the decision as at the time that it was required to be made.'
Case: Drake v Minister for Immigration &amp; Ethnic Affairs (1979) 46 FLR 409 
Outcome: applied
first ground of appeal agitated in the Authority's written and oral submissions focused on the cancellation decision. It was common ground that in relation to the review of the decision to cancel the respondent's registration, the question for the Tribunal was whether that decision was the correct or preferable decision: Drake v Minister for Immigration &amp; Ethnic Affairs (1979) 46 FLR 409 at 419 per Bowen CJ and Deane J; that is, whether it was the correct or preferable decision to conclude that the respondent was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance. The primary issue raised by this ground was whether the Tribunal asked itself this question in relation to the correct point in time. The Authority submitted that the Tribunal did not consider whether, on 14 July 2003 the date of the Authority's decision the correct or preferable decision was to cancel the respondent's registration; rather, the question which the Tribunal asked itself was whether, on 2 September 2005 the date of the Tribunal's decision the respondent was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance.
Case: Hospital Benefit Fund of WA v Minister for Health, Housing and Community Affairs (1992) 39 FCR 225
Outcome: referred to
Authority submitted that there is a clear line of authority that in cancellation cases, such as the present, a review Tribunal is required to have regard to the circumstances at the time of the decision and not those that followed it: Freeman v Secretary, Department of Social Security (1988) 19 FCR 342; Hospital Benefit Fund of WA v Minister for Health, Housing and Community Services (1992) 39 FCR 225; Nong v Minister for Immigration and Multicultural Affairs [2000] FCA 1575 ; (2000) 106 FCR 257; Minister for Immigration and Multicultural Affairs v Sharma [1999] FCA 31 ; (1999) 90 FCR 513; and Aged Care Standards and Accreditation Agency Ltd v Kenna Investments Pty Ltd [2004] FCA 843 ; (2004) 138 FCR 428. The Authority noted that the Full Court in Hospital Benefit Fund of WA v Minister for Health, Housing and Community Affairs approved the analysis of Davies J in Freeman (at 234.5). In that case, the legislation tied the primary decision-maker to a small period of time after certain rule changes were notified. The Court found that the Tribunal faced the same question as the primary decision-maker, which required it to look at the time the original decision should have been made. The legislation in that case is different from that in the present. However, the Authority submitted, the core principle is that the Tribunal must answer the same question as was answered by the primary decision-maker. For the reasons given by Davies J in Freeman , in a cancellation case, that involves whether the decision to cancel on the actual date of the cancellation was the correct or preferable decision.
Case: Lu v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 340 ; (2004) 141 FCR 346
Outcome: applied
respondent submitted that, notwithstanding these findings, the Court should exercise its discretion to decline to grant the appeal because it would be futile to remit the matter for re-determination. The basis for this submission was that all of the matters taken into account by the Tribunal were open for it to consider, either because they pre-dated the decision under review or because they were after-acquired evidence. As such, any technical error in identifying the correct point in time would not have materially affected the Tribunal's decision: Lu v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 340 ; (2004) 141 FCR 346 at [62] [64] per Sackville J. I cannot agree with this submission. First, I do not accept that all the evidence relied upon by the Tribunal in addressing the question it answered (as at September 2005) would have been available if it had asked the correct question (as at July 2003). Some of the evidence was not relevant to 14 July 2003. Examples of that are to be found at [47(15)] supra. In any event, as the Authority submitted ([47(16)] supra), even if the evidence was all relevant, it may have been weighted differently if the correct question were asked. Second, as Sackville J observed in Lu (at [64]), the correct approach is that stated in Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 at 147 and adopted in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 the test is whether the applicant could have been deprived of the possibility of a successful outcome by the decision-maker's failure to observe the requirements of the statute: 'If so, the jurisdictional error could have had a bearing on the outcome and the applicant is not to be denied relief on the basis that the error was insignificant ... The question is not whether the decision-maker would probably have realised the same result even if the ... consideration had [not] been taken into account'.