mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Repatriation Commission v Deledio (1998) 63 FCR 82
Outcome: cited
Only if it were concluded that the veteran was suffering from the claimed condition of post-traumatic stress disorder would the reasonable hypothesis process of reasoning, derived from ss 120(1) and 120 (3) of the Veterans' Entitlements Act , as those provisions are affected by the statement of principles regime, and involving the four steps as elucidated in Repatriation Commission v Deledio (1998) 63 FCR 82 , arise for consideration. 10 The Tribunal had the benefit of evidence from two specialist psychiatrists, Dr Likely and Dr Mulholland. There was a consensus as between those two gentlemen that, in terms of accepted medical practice, a diagnosis as to whether or not a person was suffering from post-traumatic stress disorder ought to be made by reference to a publication known as DSM-IV. Each of those psychiatrists had had regard to the diagnostic criteria in that publication as well as an account of the applicant's service. In the result, Dr Likely had formed the view that the applicant was indeed suffering from post-traumatic stress disorder. He was the treating psychiatrist. Dr Mulholland had a different view. 11 The difference between those gentlemen was not one of the apt diagnostic criteria, but rather one of the application of those criteria to the facts as related and understood by them concerning the applicant's war service. That service, as related by the Tribunal in the Reasons at para 6, was as follows: The applicant was 19 years of age when he joined the RAN and celebrated his 21st birthday on route to Vietnam on HMAS Vampire. During that voyage, he and other young sailors were subjected to story-telling by various experienced sailors about what to expect when they arrived in Vung Tau Harbour. In those stories, the North Vietnamese were credited with controlling vessels (junks), modified to enable them to achieve high speeds and deliver torpedo strikes against Australian vessels. Additionally, they were credited with the capacity to manoeuvre close to Australian vessels and to drop divers armed with mines to damage them. Mr Drew and the others were also told that their time in Vung Tau coincided with the birthday of Ho Chi Minh and that the North Vietnamese were intending to capture Vung Tau Township as part of his birthday celebrations. On hearing these stories, Mr Drew was not greatly concerned but, as the Vampire approached Vietnamese waters, he became apprehensive and the information provided to him "started to get under his skin."
Case: Gerzina v Repatriation Commission [2004] FCAFC 96
Outcome: cited
In Gerzina v Repatriation Commission [2004] FCAFC 96 at 11, a Full Court (Black CJ, Heerey and Bennett JJ) made the following observation in respect of that publication: We agree with the submission of senior counsel for the respondent that the interpretation of the criteria (a)(ii) in DSM-IV in this case did not raise a question of law. There was before the tribunal evidence from appropriately qualified medical specialists, both of whom used DSM-IV as the appropriate framework for making a diagnosis. No other framework or criterion was suggested. It was in this setting that the tribunal had to reach a conclusion about the question of the appellant's diagnosis. This was a question of fact. 16 Neither party in this appeal suggested that DSM-IV had any greater role to play in the proceedings before the tribunal than in providing an accepted framework on the evidence by reference to which a finding of fact might be made. As it transpired, Dr Mulholland had, on the evidence that he had considered, formed the view that post-traumatic stress disorder was not a diagnosis open on the basis that criterion (a)(i) was not met. On the facts before it, the Tribunal reached a different view in relation to that particular criterion. The Tribunal found that, though there were differences or inconsistencies in the medical evidence, the criterion (a)(i) was met. The Tribunal went on to find that it was not satisfied in relation to Mr Drew's response at the time for the purposes of satisfying criterion (a)(ii). 17 The critical paragraph in the Tribunal's reasoning in that regard is paragraph 22, which is in the following terms: The tribunal in Budworth described this as an extremely high level of reaction to extremely traumatic stressors: at para 62. I agree with that description. Dr Likely referred to intense fear and Dr Mulholland referred to panic and fear and this enabled them to conclude that criterion (a)(ii) was met. Clearly, these descriptions of his feelings are what Dr Likely and Dr Mulholland were told by Mr Drew yet that was not the evidence of Mr Drew given on oath at the hearing. He gave that evidence in a calm manner and described himself at the relevant time on Vampire as being "agitated", "concerned about safety", "feeling afraid" and being "relieved" when the ship eventually weighed anchor. Even when he described his feelings on seeing the stricken USS Evans, he said this had no effect on him except to make him think about what might have befallen the Vampire. While Mr Drew's feelings of being afraid, of agitation and of concern are understandable, I am reasonably satisfied that they lack the intensity of response required in the diagnostic criterion (a)(ii) in DSM-IV and the statement of principles. On the evidence that he gave, I am satisfied that his reactions do not constitute a response which involved intense fear, helplessness, or horror.
Case: Willcocks v Comcare (2001) 66 ALD 119
Outcome: applied
There was also criticism made of the Tribunal's reasons in terms of the conclusion reached that the veteran was not suffering post-traumatic stress disorder because, on the facts, that the necessary diagnostic criterion, (a)(ii), was not met. In Willcocks v Comcare (2001) 66 ALD 119 at 120, para 6, Finn J very helpfully summarises the authorities germane to the Tribunal's obligation to give reasons for the findings of fact that it comes to make.
Case: AB v Adult Multicultural Education Services [2006] VCAT 1862
Outcome: applied
In order to determine whether the contact was sexual harassment within s 28A , regard must be had to all the circumstances. The test is an objective one that does not take into account the motivation of the perpetrator or the individual ( AB v Adult Multicultural Education Services [2006] VCAT 1862 at [19] ). 49 It is relevant that: &#8226; This was an isolated incident. &#8226; It took place in a corridor and was a movement in passing. &#8226; Relations between Mr Huang and Professor Winder both before and after the alleged incident were confined to educational matters. &#8226; No discomfort was apparent on Ms Huang's part in her dealings with Professor Winder after the alleged incident.
Case: SZGSI v Minister for Immigration and Citizenship (2007) 160 FC 506
Outcome: referred to
The Tribunal was, in my view, under no obligation to put the alleged contradictions to the appellant's wife for the purpose of enabling her to respond. The applicant relied on a decision of Marshall J in SZGSI v Minister for Immigration and Citizenship (2007) 160 FC 506. In that case Marshall J, with whom Moore and Finn JJ agreed on this point, held that s 424A can in certain circumstances require a notice to be sent to a family member where more than one family member is making an application for a protection visa. 30 That case dealt with contradictory evidence where one family member had said something that prejudiced another family member's application and that information was taken into account against the second family member. In that context it was held that a s 424A notice should be issued. That is not the present case. The present case, as has already been observed, was one in which the wife's evidence was simply not believed and was not given any weight by the Tribunal in coming to its decision. It was therefore not brought into account to the detriment of the appellant and was not a reason for affirming the decision under review.
Case: Kovan Engineering (Aust) Pty Ltd v Gold Peg International Pty Ltd [2006] FCAFC 117
Outcome: followed
In any event, as I say, some issues raised under those grounds were dealt with in the context in which they had been argued and beyond that they did not assume sufficient significance to require attention by the learned Magistrate in his reasons. His failure to mention them and deal with them did not constitute jurisdictional error. In that regard I refer to and rely on the decision of the Full Court of this Court in Kovan Engineering (Aust) Pty Ltd v Gold Peg International Pty Ltd [2006] FCAFC 117 and, in particular to the passages commencing at paragraph [45] of their Honours' reasons. Accordingly, the third ground is also rejected. 39 The appeal should be dismissed with costs. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate: Dated: 18 March 2008 Counsel for the Appellant: T A Fernandez Counsel for the Respondent: M Felman Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 6 March 2008 Date of Judgment: 6 March 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/245.html
Case: Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522
Outcome: applied
The next question is whether there was any error of law by the Tribunal in concluding that the effects, apparently able to be described as "epileptic" in their nature, of the glioma are also able to be comprehended within the delegate's acceptance of "epilepsy" as a war-caused disease, so that incapacity from the effects of the glioma should, even if the delegate made a factual mistake, be regarded as war-caused. Whatever the correctness of that conclusion, unfortunately for the applicant it does not appear to me to raise a question of law. Whether the Tribunal was factually correct about the distinction between and separateness of the incapacity caused by the glioma and incapacity caused by the accepted disease shortly described by the delegate as epilepsy only raises, in my opinion, a question of fact or, at worst, no more than a mixed question of law and fact, namely: what actually was/were the war-caused disease(s) from which the delegate determined the degree of incapacity of the veteran was over 70% (the first relevant requirement of s 24). Mixed questions of law and fact have been held by the Full Court not to raise a question of law: Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at [16] . 35 It was suggested by the applicant that "[t]he question of law in the present matter is whether the Tribunal had the power to effectively ignore the acceptance of epilepsy as a war-caused condition when considering whether the veteran was eligible to be paid pension at the Special Rate given by section 24 of the Act ." Leaving aside the issue as to whether the Tribunal did so "effectively ignore the acceptance of epilepsy", the formulation does not encourage a conclusion that it is a question of law unmixed with fact. Nor, in substance, is it.
Case: Flentjar v Repatriation Commission (1997) 48 ALD 1
Outcome: referred to
Section 24(1)(c) contains a requirement that incapacity from war-caused injury or war-caused disease, or both, "alone" prevents a veteran from continuing to undertake remunerative work that the veteran was undertaking. In Flentjar v Repatriation Commission (1997) 48 ALD 1 at 5 Branson J (Beaumont and Merkel JJ agreeing) expressed that requirement in the form of a question: ... is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work? 14 Flentjar 48 ALD 1 was followed in Repatriation Commission v Hendy (2002) 76 ALD 47. There, the Full Court held at [37] that: The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the veteran from working. The decision maker is required to take into account any factor that plays a part or contributes to a veteran's being prevented from continuing to engage in remunerative work. (Emphasis in original.) 30 The Board found it convenient to deal with the s 24 issues by answering a series of questions thought in Flentjar 48 ALD 1 to be appropriate. One question the Board considered was: "[i]s the veteran, by reason of war-caused injury or ... disease ... prevented from continuing to undertake [remunerative] work?" In the course of giving an affirmative answer to this question, the Board said: However the event which precipitated his leaving work was not his post traumatic stress disorder (as was contended by his wife in her evidence to the previous Board) but a 'seizure', in April 2002. The following day, on the basis of the history taken from the veteran and his wife, Dr Ell, consultant neurologist considered there had been a 'gelastic seizure'. In Dr Ell's report the doctor recorded that the veteran was not permitted to drive. (On the basis of this diagnosis the Repatriation Commission allowed the veteran's claim for epilepsy which was made on 29 April 2002.) 31 The Board therefore considered the next Flentjar question: was the war-caused injury/disease "the only factor or factors preventing the veteran from continuing to undertake that work?" (Emphasis in original.) The Board answered that question by saying: The Board came to the view that it was more likely than not that the veteran is prevented from continuing to work by both his post traumatic stress disorder and his brain tumour. It cannot therefore be said that it is his accepted disabilities alone that prevent him from being able to continue to work. 32 In the Tribunal's proceedings, the respondent filed a Statement of Facts and Contentions. This made it clear that the respondent was only asserting that the veteran had not satisfied the two "alone" tests posited by s 24.
Case: Repatriation Commission v Hendy (2002) 76 ALD 47
Outcome: referred to
Flentjar 48 ALD 1 was followed in Repatriation Commission v Hendy (2002) 76 ALD 47. There, the Full Court held at [37] that: The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the veteran from working. The decision maker is required to take into account any factor that plays a part or contributes to a veteran's being prevented from continuing to engage in remunerative work. (Emphasis in original.)
Case: Boland v Yates Property Corporation Pty Ltd [1999] HCA 64 ; (1999) 167 ALR 575
Outcome: applied
In Boland v Yates Property Corporation Pty Ltd [1999] HCA 64 ; (1999) 167 ALR 575 , 653-54 at [286] [287] Callinan J (although obiter) referred to this method: 286. This court itself has in any event clearly accepted what has been described as the hypothetical development method of valuation. The method was described by Starke J in Australian Provincial Assurance Association Ltd v Commissioner of Land Tax: In the present case the valuation has been made on what has been variously described as the hypothetical building or development basis. The parties agree that the building upon the land does not return the rental that might reasonably be expected from it. So the rental from that building is discarded, and it is assumed that the land is vacant. The erection of a new building on the land is envisaged, providing office accommodation, which is the best method of obtaining the advantages that the land possesses. Accordingly a building is planned to obtain the full benefit of those advantages. Its cost is estimated, the gross annual rentals or receipts from it are estimated, and from these rentals or receipts are deducted various annual outgoings and interest charges which are also estimated to obtain the net receipts. The capital value of the land is then ascertained by capitalising the net receipts at some given rate of interest, and in this case, I may add, the parties were content to work upon a 4.5% basis. The unimproved value of the land is then deduced by deducting from the capital value so obtained the cost of the erection of the building. Adopting this method of ascertaining the unimproved value of the assessed land, I find as a fact that its unimproved value on 30 June 1939, was the sum of [sterling]76,154. 287. The method is neither novel nor especially difficult, and, as with all methods, requires the making of value judgments.
Case: Closer Settlement Ltd v The Minister (1942) 17 LGR (NSW) 62
Outcome: applied
The methodology was also explained by Roper J (as he then was) in Closer Settlement Ltd v The Minister (1942) 17 LGR (NSW) 62 (at 65): In arriving at the value of land which is suitable for subdivision a familiar and appropriate method ... is to estimate from whatever comparable sales of land in subdivision are available the price which would be realized by the land when sold; then to estimate the costs involved in the subdivision and the length of time that the realization would take, making provision for the payment of rates and for interest on money outstanding; and an estimated net return on the subdivision is obtained. It is of course clear that a person purchasing land in globo for the purpose of subdividing it would not pay the sum of money which is the present equivalent of that estimated return. Many factors in the calculation are speculative: the land in subdivision may not realize the prices which are at present expected, and the subdivision may take longer to realize than is at present anticipated. To compensate for the risk involved in the venture the purchaser would certainly discount the estimated returns. See also Port Stephens Shire Council v Tellamist Pty Ltd (2004) NSWCA 353 at [225] - [229] . 24 However, whichever method is used, it would be necessary for a valuer to use, or at least take account of, market transactions for the purpose of obtaining basic information: (see Alan Hyam, The Law Affecting Valuation of Land in Australia (3 rd ed 2004) by at 126, and the above comments of Roper J (as he then was) in Closer Settlement 17 LGR (NSW) 62). This would include all relevant sales data available to a valuer which could impact on his valuation. 25 In my view, the appropriate way to proceed is to start with the question of whether the valuation complies with s 75-10(3) of the GST Act. To be a compliant valuation it must accord with the Determination. If a valuation complies with the Determination, then the valuation is valid and operative for the purposes of s 75-10(3). However, if the valuation fails to comply with the Determination, then the question will arise as to the consequences of such failure. 38 The Commissioner contended that it appeared to be Mr Nicodimou's view that the relevant valuation principles positively forbade him from considering any information that post-dated 1 July 2000 in order to ascertain the market value of the strata units as at 1 July 2000. I agree that, if Mr Nicodimou held this view, it would be a fundamentally incorrect view: see, eg, McCathie v Federal Commissioner of Taxation [1944] HCA 9 ; (1944) 69 CLR 1 , 16-17; Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426 , 436; and Closer Settlement 17 LGR (NSW) 62.
Case: Faheem Khalid Lodhi v R [2007] NSWCA 360
Outcome: cited
Mason J (as he then was, with Gibbs J (as he then was) agreeing) said (at 329): When sub-s (7) directs the Permanent Head to "have regard to" the costs, it requires him to take those costs into account and to give weight to them as a fundamental element in making his determination. The Commissioner also referred to The Queen v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69 ; (1982) 158 CLR 327 , 333 per Gibbs CJ and Faheem Khalid Lodhi v R [2007] NSWCA 360 , at [30] per Spigelman CJ.
Case: Gwynvill Properties Pty Ltd v Commissioner for Main Roads (1983) 50 LGRA 322
Outcome: applied
In Gwynvill Properties Pty Ltd v Commissioner for Main Roads (1983) 50 LGRA 322 Cripps J made the following observation (at 326): The hypothetical development method is normally suspect because it depends on a number of assumptions and a number of estimates, e.g. cost of building, estimated gross rentals obtainable, probable outgoings and, most significantly, the rate percentum of return which could be expected and the profit and risk factor expressed in percentage terms. It has been said that because many estimates and assumptions must be made, the hypothetical development method ought not be used where some use can be made of a comparable sale.
Case: Hunter Resources Ltd v Melville [1988] HCA 5 ; (1988) 164 CLR 234
Outcome: applied
In some cases, compliance with a statutory requirement allows for no middle course, and is obligatory: see Hunter Resources Ltd v Melville [1988] HCA 5 ; (1988) 164 CLR 234 , 249 per Dawson J. 28 In the case of a valuation under the Determination, it is clear that a valuation must be provided by a professional valuer. There could be no middle course here--if not provided by a professional valuation there would be no 'valuation'.
Case: Legal &amp; General Life of Australia Ltd v Hudson Pty Ltd (1985) 1 NSWLR 314
Outcome: cited
It was submitted by the taxpayer that a valuation under s 75- 10 (3) is (or is akin to) an expert determination that is only open to challenge on a narrow set of grounds. Reliance was placed upon comments of McHugh J, then a member of the New South Wales Court of Appeal, in Legal &amp; General Life of Australia Ltd v Hudson Pty Ltd (1985) 1 NSWLR 314, where his Honour said that (at 335-36): While mistake or error on the part of the valuer is not by itself sufficient to invalidate the decision or the certificate of valuation, nevertheless, the mistake may be of a kind which shows that the valuation is not in accordance with the contract. A mistake concerning the identity of the premises to be valued could seldom, if ever, comply with the terms of the agreement between the parties. But a valuation which is the result of the mistaken application of the principles of valuation may still be made in accordance with the terms of the agreement. In each case the critical question must always be: Was the valuation made in accordance with the terms of a contract? If it is, it is nothing to the point that the valuation may have proceeded on the basis of error or that it constitutes a gross over or under value. Nor is it relevant that the valuer has taken into consideration matters which he should not have taken into account or has failed to take into account matters which he should have taken into account. The question is not whether there is an error in the discretionary judgment of the valuer. It is whether the valuation complies with the terms of the contract. 15 It was then submitted that although this decision concerned a valuation made under a contract, by adopting a valuation made in accordance with requirements specified by the Commissioner, s 75- 10 (3) establishes a means for determining value that is comparable to a contractual provision. The section does not provide any mechanism for such a valuation to be challenged. It was therefore of similar effect to a contractual term requiring the parties to abide by a valuation obtained in accordance with the contract. It was submitted that the Court should therefore adopt the principles set out in Legal &amp; General Life of Australia Ltd 1 NSWLR 314 when determining what the Commissioner must establish in order to overturn Mr Nicodimou's valuation. 16 The taxpayer alternatively submitted that the valuation should be reviewed in accordance with the ordinary principles of administrative law. A relevant matter to take into account is only a matter that the valuer is 'bound' to take into account. The taxpayer submitted that the only relevant matters were specifically set out in what is described as Method 1 of the Determination.