mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Comcare v Thompson [2000] FCA 790 ; (2000) 175 ALR 163 at [45]
Outcome: cited
ASP emphasised the evidence before the Tribunal, to which it referred in its reasons, that, although seafarers could move between industries in their work, the blue water and offshore industries are quite distinct. ASP pointed to the different regime under which seafarers are employed in the offshore segment compared with the regime that operated in the blue water segment at the time of to the Seafarer's incapacity. The latter was regulated by the Award. Since at latest 2001, employment in the offshore segment has been regulated by enterprise agreements negotiated against the background of the different conditions that apply to employment in that segment as compared with employment in the blue water segment. Employment under such enterprise agreements involves a different factual matrix to employment under the Award (see Comcare v Thompson [2000] FCA 790 ; (2000) 175 ALR 163 at [45] ). 24 ASP contended that the Tribunal made no error of law in its approach to the task of identifying a class to which the Seafarer belonged at the time of his incapacity. The Tribunal sought to find a category of employees whose basis of remuneration was sufficiently similar to that of the Seafarer for a conclusion to be reached that the Seafarer belonged to that class of employees. That, ASP said, involved no error of law and the Tribunal's conclusion that there are no longer employees in that class is a finding of fact. 25 The essential question is whether the Tribunal adopted an erroneous approach to its task of identifying a class of employees to which the Seafarer belonged. It is a question of law as to what the phrase " class to which [the Seafarer] belonged " means when it is used in s 13(6). However, whether or not there is a continuing class, as the term is properly understood, to which the Seafarer belonged, is a question of fact which is within the province of the Tribunal alone. If the approach adopted by the Tribunal discloses a misapprehension of its task so as to indicate a misconception as to the meaning of " class of employees to which [the Seafarer] belonged " it made an error of law.
Case: Re Thompson and Comcare [2002] AATA 733 ; (2002) 69 ALD 762 at [28]
Outcome: cited
For example, there may be instances in which persons with such a common interest may be identified by the type of work that they perform, the qualifications that they hold, the category or level of position that they hold or any combination of these or other features. It is imperative, however, that regard is had to the features that identified those who had " a common interest " in remuneration at the date of the Seafarer's incapacity. Particular reference was made by ASP to a decision of the Tribunal relied upon by a Tribunal in this case: Re Thompson and Comcare [2002] AATA 733 ; (2002) 69 ALD 762 at [28] .
Case: Roncevich v Repatriation Commission (2005) 222 CLR 115
Outcome: cited
68(1), 69 and 70(1) of the Entitlements Act have the effect that the Commonwealth is liable to pay in accordance with the Entitlements Act a pension by way of compensation to the dependants of a member of the Forces who has served continuous full-time service after 6 December 1972 and before 7 April 1994 for a period of three continuous years, where the death of the member was defence-caused. Section 70(5)(a) of the Entitlements Act provides that the death of a member shall be taken to have been defence-caused if the death arose out of or was attributable to any defence service of the member. The use of the disjunction in the phrase manifests a legislative intention to give the term defence-caused a broad meaning and s 70(5)(a) does not import any notion of sole or dominant or direct or proximate attribution: Roncevich v Repatriation Commission (2005) 222 CLR 115 at [27] per McHugh, Gummow, Callinan and Heydon JJ.
Case: Repatriation Commission v Smith (1987) 15 FCR 327
Outcome: cited
120(4) of the Entitlements Act provides that in making any determination or decision in respect of a matter arising under the Entitlements Act or Regulations (other than a determination to which s 120(1) or (2) applies, and those subsections do not apply here), the statutory standard to be applied by the decision-maker is a standard of "reasonable satisfaction" which adopts the civil standard: Repatriation Commission v Smith (1987) 15 FCR 327 per Northrop, Beaumont and Spender JJ. Therefore, if the decision-maker is satisfied on the balance of probabilities that Mr Heathcote's death was attributable to any defence service on his part, the death is taken to be defence-caused. However, s 120B(1)(b) has the effect of applying s 120B to Mrs Heathcote's claim made under s 70(1) of the Entitlements Act. That being so, s 120B(3) thus applies and provides that in applying s 120(4) to determine a claim, the Commission is to be reasonably satisfied that the death of a person was defence-caused only if: (a) the material before the Commission raises a connection between the ... death of the person and some particular service rendered by the person; and (b) there is in force: (i) a Statement of Principles determined under subsection 196B(3) or (12); or (ii) a determination of the Commission under subsection 180A(3); that upholds the contention that the ... death of the person is, on the balance of probabilities, connected with that service. [emphasis added] Section 196A of the Entitlements Act establishes the Repatriation Medical Authority and s 196B provides that the main function of the Authority is to determine Statements of Principles for the purposes of the Entitlements Act and the Military Rehabilitation and Compensation Act 2004 (Cth). Section 196B(3) is in these terms: If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to: (a) ... (b) defence service ... rendered by members of the Forces; or ... the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out: (c) the factors that must exist; and (d) which of those factors must be related to service rendered by a person; before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service.
Case: Judge v Repatriation Commission [2002] AATA 420
Outcome: cited
Dr Levy was directing his mind to the controversy on the facts, based on the medical evidence, as to whether and if so when, M G U S was present in Mr Heathcote. At [23], Dr Levy referred to the careful analysis of Dr Grant and the expert assessments of Dr Choo. Dr Levy noted the "uncertainty" on this question and the evidence of Dr Davison as the treating cardiologist and the opinion of Dr Catalano. At [24], Dr Levy referred to other information that had assisted the Tribunal in understanding the "differentiation between MGUS and myeloma" consisting of an extract from Harrison's Principles of Internal Medicine (13 th Ed., 2) Part II , Section 1 , "Disorders of the Immune System, Plasma Cell Disorders of the Immune System, Plasma Cell Disorders", cited in Judge v Repatriation Commission [2002] AATA 420, and said: The evidence of Associate Professor Marion Woods was also of considerable assistance in understanding the complexities of the condition and the difficulty in determining the likely path of the disease in any particular case. At [25], Dr Levy noted that the view of Dr Woods was essentially supportive of the opinions of Dr Davison and Dr Catalano and at [26], Dr Levy found: While the evidence of Professor Woods cumulatively with that of Dr Davison and Dr Catalano is more persuasive than Dr [Choo's] conclusion, I accept Professor Woods' opinion as it is also supported by empirical evidence which is more likely to explain the comparatively earlier death of Mr Heathcote compared to others with this condition. That empirical evidence shows that progression to AL Amyloidosis is 8.4 times more likely where MGUS is present and the pattern of the debilitating illness of Mr Heathcote tends to indicate some abnormal factor was present to explain the acceleration of the disease and particularly in someone who died at 42 years of age whereas the expected median age is closer to 60 years of age. Accordingly, Dr Levy found in reliance upon the persuasive evidence of Dr Woods, Dr Davison and Dr Catalano, and particularly the evidence of Dr Woods, that Mr Heathcote was suffering from a monoclonal gammopathy of uncertain significance which had accelerated the progression of AL amyloidosis explaining the comparatively early death of Mr Heathcote at 42.
Case: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402
Outcome: cited
resolution of the final question involved a finding of fact or findings of facts from which inferences might be drawn as to the ultimate question in issue. If there is no evidence to support the finding or no proper basis for drawing any inference upon which the Tribunal has relied, an error of law arises. As to findings "unsupported by any evidence", see SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 per Mansfield, Selway and Bennett JJ. Want of logic or faulty logic on the part of the Tribunal is not synonymous with error of law. As to inferences that might be drawn, so long as the particular inference is reasonably open even if the inference appears to have been drawn as a result of illogical reasoning, there is no error of law: Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141. As to the "no evidence" ground see SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824 at [32].
Case: Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141
Outcome: cited
resolution of the final question involved a finding of fact or findings of facts from which inferences might be drawn as to the ultimate question in issue. If there is no evidence to support the finding or no proper basis for drawing any inference upon which the Tribunal has relied, an error of law arises. As to findings "unsupported by any evidence", see SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 per Mansfield, Selway and Bennett JJ. Want of logic or faulty logic on the part of the Tribunal is not synonymous with error of law. As to inferences that might be drawn, so long as the particular inference is reasonably open even if the inference appears to have been drawn as a result of illogical reasoning, there is no error of law: Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141. As to the "no evidence" ground see SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824 at [32].
Case: SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824
Outcome: cited
resolution of the final question involved a finding of fact or findings of facts from which inferences might be drawn as to the ultimate question in issue. If there is no evidence to support the finding or no proper basis for drawing any inference upon which the Tribunal has relied, an error of law arises. As to findings "unsupported by any evidence", see SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 per Mansfield, Selway and Bennett JJ. Want of logic or faulty logic on the part of the Tribunal is not synonymous with error of law. As to inferences that might be drawn, so long as the particular inference is reasonably open even if the inference appears to have been drawn as a result of illogical reasoning, there is no error of law: Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141. As to the "no evidence" ground see SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824 at [32].
Case: Collins v Repatriation Commission [2009] FCAFC 90; (2009) 177 FCR 280
Outcome: cited
Commission accepts that Mr Heathcote died from cardiomyopathy and therefore the Statement of Principles concerning cardiomyopathy applies. The Commission also accepts that factor (p) is made out as Mr Heathcote's myocardium had been infiltrated by amyloid material by reason of a specified disorder, namely, amyloidosis. Since factor (p) exists, it is open to the decision-maker to conclude, on the balance of probabilities, that Mr Heathcote's death from cardiomyopathy is connected with the circumstances of his defence service provided that the final question is answered in the affirmative. That question is whether Mr Heathcote's death from amyloid cardiomyopathy, being the specified disorder contemplated by the Statement of Principles, was, on the balance of probabilities, related to the defence service rendered by Mr Heathcote in the sense that it arose out of or was attributable to that service (s 196B(14); Collins v Repatriation Commission [2009] FCAFC 90; (2009) 177 FCR 280 at [46]; Hill v Repatriation Commission [2009] FCAFC 91; (2009) 177 FCR 434 at [24]). That might be so if Mr Heathcote's M G U S was attributable to his defence service and M G U S gave rise to the development of amyloidosis causing amyloid cardiomyopathy and death.
Case: Hill v Repatriation Commission [2009] FCAFC 91; (2009) 177 FCR 434
Outcome: cited
Commission accepts that Mr Heathcote died from cardiomyopathy and therefore the Statement of Principles concerning cardiomyopathy applies. The Commission also accepts that factor (p) is made out as Mr Heathcote's myocardium had been infiltrated by amyloid material by reason of a specified disorder, namely, amyloidosis. Since factor (p) exists, it is open to the decision-maker to conclude, on the balance of probabilities, that Mr Heathcote's death from cardiomyopathy is connected with the circumstances of his defence service provided that the final question is answered in the affirmative. That question is whether Mr Heathcote's death from amyloid cardiomyopathy, being the specified disorder contemplated by the Statement of Principles, was, on the balance of probabilities, related to the defence service rendered by Mr Heathcote in the sense that it arose out of or was attributable to that service (s 196B(14); Collins v Repatriation Commission [2009] FCAFC 90; (2009) 177 FCR 280 at [46]; Hill v Repatriation Commission [2009] FCAFC 91; (2009) 177 FCR 434 at [24]). That might be so if Mr Heathcote's M G U S was attributable to his defence service and M G U S gave rise to the development of amyloidosis causing amyloid cardiomyopathy and death.
Case: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 
Outcome: cited
Significantly, in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at [8] Gleeson CJ, McHugh, Gummow and Hayne JJ observed: 'The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits ....'
Case: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 
Outcome: cited
An appeal to this Court from a judgment of the Federal Magistrates Court is authorised by s 24 of the Federal Court of Australia Act 1976 (Cth). It is an appeal by way of rehearing on the evidence adduced before the Federal Magistrate ( Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507). In the circumstances it is appropriate for me to review that evidence which includes both the audio tapes of the Tribunal hearing and the transcript of that hearing. Having done so, I should set aside the judgment of the Federal Magistrates Court only if persuaded that his Honour's conclusion is wrong ( Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd (2005) 220 ALR 211 at [46]). However, it is not necessary for me to be satisfied that his Honour failed to apply the proper test. If, after giving appropriate weight to the view of the Federal Magistrate, I were persuaded that the conduct of the Tribunal member gave rise to a reasonable apprehension of bias, the appeal would succeed; I would have identified error in the judgment of the Federal Magistrates Court.
Case: Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd (2005) 220 ALR 211 
Outcome: cited
An appeal to this Court from a judgment of the Federal Magistrates Court is authorised by s 24 of the Federal Court of Australia Act 1976 (Cth). It is an appeal by way of rehearing on the evidence adduced before the Federal Magistrate ( Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507). In the circumstances it is appropriate for me to review that evidence which includes both the audio tapes of the Tribunal hearing and the transcript of that hearing. Having done so, I should set aside the judgment of the Federal Magistrates Court only if persuaded that his Honour's conclusion is wrong ( Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd (2005) 220 ALR 211 at [46]). However, it is not necessary for me to be satisfied that his Honour failed to apply the proper test. If, after giving appropriate weight to the view of the Federal Magistrate, I were persuaded that the conduct of the Tribunal member gave rise to a reasonable apprehension of bias, the appeal would succeed; I would have identified error in the judgment of the Federal Magistrates Court.
Case: Steadman-Byrne v Amjad [2007] EWCA Civ 625
Outcome: cited
Sedley LJ, with whom the other members of the Court of Appeal agreed, recently said in Steadman-Byrne v Amjad [2007] EWCA Civ 625 at [10] in the context of an allegation of appearance of bias in a judge: 'Bias in the present context has to mean the premature formation of a concluded view adverse to one party. We put it in this way because it is well recognised not only that a judge may and commonly will begin forming views about the evidence as it goes along, but that he or she may legitimately give assistance to the parties by telling them what is presently in the judge's mind. This may properly include ... letting the parties know before reaching the defence case that the judge did not think much of the claimant's evidence.' As Allsop J observed in NADH v MIMIA (see [9] above) a Tribunal member may have an even greater need than a judge to test and probe the evidence of a witness. 12 Consistently with what I told counsel during the hearing of this appeal, I have read the entire transcript of the Tribunal hearing but, generally speaking, I have only listened to those portions of the audio recording upon which the appellants placed reliance. As counsel for the appellants accepted, these portions provide the best illustrations of the appellants' case. 13 In doing so I have borne in mind the critical importance to most applicants for review of a decision to refuse to grant them a protection visa of any hearing by the Tribunal. I have also borne in mind the importance of Tribunal members dealing sensitively and patiently with applicants who come before them, particularly when they are giving evidence of distressing events of a personal nature. On the other hand I have also had regard to the need for a Tribunal member to test evidence and, as appropriate, probe for weaknesses in an applicant's case. Additionally it is necessary to acknowledge that Tribunal members are not only subject to ordinary human frailties, but are also under pressure to conduct hearings expeditiously.
Case: Bienstein v Bienstein [2003] HCA 7 ; (2003) 195 ALR 225
Outcome: followed
An order striking proceedings out or dismissing proceedings on the basis that the proceedings are frivolous or vexatious or an abuse of the process of the court or do not disclose a reasonable cause of action is an interlocutory order: Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 at 3-4 [6] - [10] per McHugh ACJ, Gummow and Heydon JJ. Accordingly, having regard to his Honour's decision and his invoking of power under O 20 r 5, the proceedings were interlocutory. 17 The power of the Court to make a rule, such as O 20 r 5, is incontestable in any event. The court has an implied or inherent power to protect its own processes from abuse and his Honour's order could be equally supported by use of those powers, as Re Luck [2003] HCA 70 ; 203 ALR 1 shows. Rules such as O 20 r 5 have been a part of the armoury of courts to protect themselves from vexatious and abusive claims for well over a century. There is no basis on which it could be suggested that O 20 r 5 is not a valid rule of the Court. 26 For these reasons, I am of opinion that Mr Croker has failed to make out any reason upon which an extension of time ought to be granted. I am satisfied that even if an extension of time were granted, leave to appeal would never have been granted because Cowdroy J's decision is not attended with sufficient doubt to want the grant of leave, being in my opinion, undoubtedly correct. Also, no injustice, let alone substantial injustice, would result from a refusal of a leave to appeal: Bienstein v Bienstein [2003] HCA 7 ; (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ. For these reasons the application for leave to appeal must be refused.
Case: Jess v Scott (1986) 12 FCR 187
Outcome: cited
In such a case the principles upon which the Court proceeds are well settled. An application for an extension of time in which to lodge an appeal is governed by considerations discussed in Jackamarra v Krakouer [1998] HCA 27 ; (1988) 195 CLR 516 ; Jess v Scott (1986) 12 FCR 187: see also SZAPG v Minister of Immigration and Citizenship [2007] FCA 372 at [7] - [8] per myself. In essence the court seeks an outline of the merits of the case sought to be brought out of time. If it appears to be a case that is strong on the merits and which ought to be heard in fairness to the parties and the court thinks it proper that it ought to be allowed to proceed, time is usually extended. However, if it appears to be a flimsy case, weak on the merits, the Court will not extend time. The Court does not go into detail on the merits but likes to know something about it. That was the approach taken by Lord Denning MR in R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091 which was approved in Jackamarra 195 CLR at 519-520 [3]-[4] by Brennan CJ and McHugh J and similarly at 540-541 [66] par 4 by Kirby J.
Case: R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087
Outcome: cited
In such a case the principles upon which the Court proceeds are well settled. An application for an extension of time in which to lodge an appeal is governed by considerations discussed in Jackamarra v Krakouer [1998] HCA 27 ; (1988) 195 CLR 516 ; Jess v Scott (1986) 12 FCR 187: see also SZAPG v Minister of Immigration and Citizenship [2007] FCA 372 at [7] - [8] per myself. In essence the court seeks an outline of the merits of the case sought to be brought out of time. If it appears to be a case that is strong on the merits and which ought to be heard in fairness to the parties and the court thinks it proper that it ought to be allowed to proceed, time is usually extended. However, if it appears to be a flimsy case, weak on the merits, the Court will not extend time. The Court does not go into detail on the merits but likes to know something about it. That was the approach taken by Lord Denning MR in R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091 which was approved in Jackamarra 195 CLR at 519-520 [3]-[4] by Brennan CJ and McHugh J and similarly at 540-541 [66] par 4 by Kirby J.