mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Howden v 'Truth' and 'Sportsman' Ltd [1937] HCA 74 ; (1937) 58 CLR 416 
Outcome: referred to
At common law, it is a complete defence to show that the words complained of are true in substance and effect: see Howden v 'Truth' and 'Sportsman' Ltd [1937] HCA 74 ; (1937) 58 CLR 416 at 424-425 per Evatt J. At the relevant time, this defence was available in South Australia, Victoria, Western Australia and the Northern Territory: see Balkin and Davis, at p 574. In other jurisdictions, it had also to be shown that the publication of the imputation was for the public benefit or, in New South Wales, that it related to a matter of public interest: see Balkin and Davis, at p 574. The cross-respondents invoked these defences. They also invoked "qualified privilege" as a defence. In Toogood v Spyring (1834) 1 C M &amp; R 181 at 193; [1834] EngR 363 ; 149 ER 1044 at 1049-1050, Parke B said that a person would be liable for a false and defamatory publication unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. ... If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits. A person whose good name is brought into question is granted qualified privilege in making a response provided the person to whom the response is made is "proper to receive it": see Mowlds v Fergusson [1940] HCA 38 ; (1946) 64 CLR 206 at 214 per Dixon J. As Dixon J said, at 214-215, however: Where the defamatory matter is published in self-defence or in defence or protection of an interest or by way of vindication against an imputation or attack, the conception of a corresponding duty or interest in the recipient must be very widely interpreted. The response must be proportionate to the original attack.
Case: Toogood v Spyring [1834] EngR 363 ; (1834) 1 C M &amp; R 181 ; 149 ER 1044
Outcome: cited
At common law, it is a complete defence to show that the words complained of are true in substance and effect: see Howden v 'Truth' and 'Sportsman' Ltd [1937] HCA 74 ; (1937) 58 CLR 416 at 424-425 per Evatt J. At the relevant time, this defence was available in South Australia, Victoria, Western Australia and the Northern Territory: see Balkin and Davis, at p 574. In other jurisdictions, it had also to be shown that the publication of the imputation was for the public benefit or, in New South Wales, that it related to a matter of public interest: see Balkin and Davis, at p 574. The cross-respondents invoked these defences. They also invoked "qualified privilege" as a defence. In Toogood v Spyring (1834) 1 C M &amp; R 181 at 193; [1834] EngR 363 ; 149 ER 1044 at 1049-1050, Parke B said that a person would be liable for a false and defamatory publication unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. ... If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits. A person whose good name is brought into question is granted qualified privilege in making a response provided the person to whom the response is made is "proper to receive it": see Mowlds v Fergusson [1940] HCA 38 ; (1946) 64 CLR 206 at 214 per Dixon J. As Dixon J said, at 214-215, however: Where the defamatory matter is published in self-defence or in defence or protection of an interest or by way of vindication against an imputation or attack, the conception of a corresponding duty or interest in the recipient must be very widely interpreted. The response must be proportionate to the original attack.
Case: Mowlds v Fergusson [1940] HCA 38 ; (1946) 64 CLR 206
Outcome: referred to
At common law, it is a complete defence to show that the words complained of are true in substance and effect: see Howden v 'Truth' and 'Sportsman' Ltd [1937] HCA 74 ; (1937) 58 CLR 416 at 424-425 per Evatt J. At the relevant time, this defence was available in South Australia, Victoria, Western Australia and the Northern Territory: see Balkin and Davis, at p 574. In other jurisdictions, it had also to be shown that the publication of the imputation was for the public benefit or, in New South Wales, that it related to a matter of public interest: see Balkin and Davis, at p 574. The cross-respondents invoked these defences. They also invoked "qualified privilege" as a defence. In Toogood v Spyring (1834) 1 C M &amp; R 181 at 193; [1834] EngR 363 ; 149 ER 1044 at 1049-1050, Parke B said that a person would be liable for a false and defamatory publication unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. ... If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits. A person whose good name is brought into question is granted qualified privilege in making a response provided the person to whom the response is made is "proper to receive it": see Mowlds v Fergusson [1940] HCA 38 ; (1946) 64 CLR 206 at 214 per Dixon J. As Dixon J said, at 214-215, however: Where the defamatory matter is published in self-defence or in defence or protection of an interest or by way of vindication against an imputation or attack, the conception of a corresponding duty or interest in the recipient must be very widely interpreted. The response must be proportionate to the original attack.
Case: TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation (1988) 19 ATR 1067
Outcome: cited
Section 46(1) of the ROC Act empowers a party to appeal to this Court, on a question of law, from a determination of the Tribunal. The appeal for which s 46(1) provides is a proceeding that comes before the Court for hearing and determination in the exercise of its original, rather than its appellate, jurisdiction: see Employers First v Tolhurst Capital Ltd [2005] FCA 616 ; (2005) 143 FCR 356 (' Employers First ') at 357-358 [1] per Branson J. The subject matter of an appeal brought pursuant to s 46(1) is the question or questions of law on which the appeal is brought: Employers First at 357-358 [1]; and see generally TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation (1988) 19 ATR 1067 at 1070 per Gummow J.
Case: Alcoa of Australia Retirement Plan Pty Ltd v Thompson [2002] FCA 256 ; (2002) 116 FCR 139
Outcome: cited
Each respondent lodged a complaint ('the Complaints') with the Tribunal pursuant to s 14(2) of the ROC Act, which allows a member of a regulated superannuation fund to complain to the Tribunal that a decision made by the trustee of that fund is unfair or unreasonable. The role of the Tribunal in each case was to decide whether the applicant's decision to reduce the deferred benefit accounts was fair and reasonable in the circumstances: see Alcoa of Australia Retirement Plan Pty Ltd v Thompson [2002] FCA 256 ; (2002) 116 FCR 139 at 149-150 [45] - [51] per RD Nicholson J; and Haematite Pty Ltd v Ristevski (2002) 189 ALR 685 at 690-692 [14]-[20] per Goldberg J. 'Unreasonable' and 'unfair' are words of broad content, and should not be unduly restricted by using synonyms and definitions: see National Mutual Life Association of Australia Ltd v Campbell [2000] FCA 852 ; (2000) 99 FCR 562 (' National Mutual Life Association ') at 571 [36] per Black CJ, Emmett and Hely JJ.
Case: Haematite Pty Ltd v Ristevski (2002) 189 ALR 685
Outcome: cited
Each respondent lodged a complaint ('the Complaints') with the Tribunal pursuant to s 14(2) of the ROC Act, which allows a member of a regulated superannuation fund to complain to the Tribunal that a decision made by the trustee of that fund is unfair or unreasonable. The role of the Tribunal in each case was to decide whether the applicant's decision to reduce the deferred benefit accounts was fair and reasonable in the circumstances: see Alcoa of Australia Retirement Plan Pty Ltd v Thompson [2002] FCA 256 ; (2002) 116 FCR 139 at 149-150 [45] - [51] per RD Nicholson J; and Haematite Pty Ltd v Ristevski (2002) 189 ALR 685 at 690-692 [14]-[20] per Goldberg J. 'Unreasonable' and 'unfair' are words of broad content, and should not be unduly restricted by using synonyms and definitions: see National Mutual Life Association of Australia Ltd v Campbell [2000] FCA 852 ; (2000) 99 FCR 562 (' National Mutual Life Association ') at 571 [36] per Black CJ, Emmett and Hely JJ.
Case: National Mutual Life Association of Australia Ltd v Campbell [2000] FCA 852 ; (2000) 99 FCR 562
Outcome: cited
Each respondent lodged a complaint ('the Complaints') with the Tribunal pursuant to s 14(2) of the ROC Act, which allows a member of a regulated superannuation fund to complain to the Tribunal that a decision made by the trustee of that fund is unfair or unreasonable. The role of the Tribunal in each case was to decide whether the applicant's decision to reduce the deferred benefit accounts was fair and reasonable in the circumstances: see Alcoa of Australia Retirement Plan Pty Ltd v Thompson [2002] FCA 256 ; (2002) 116 FCR 139 at 149-150 [45] - [51] per RD Nicholson J; and Haematite Pty Ltd v Ristevski (2002) 189 ALR 685 at 690-692 [14]-[20] per Goldberg J. 'Unreasonable' and 'unfair' are words of broad content, and should not be unduly restricted by using synonyms and definitions: see National Mutual Life Association of Australia Ltd v Campbell [2000] FCA 852 ; (2000) 99 FCR 562 (' National Mutual Life Association ') at 571 [36] per Black CJ, Emmett and Hely JJ. 32 Section 37(1) of the ROC Act gives the Tribunal, for the purpose of reviewing a decision of the trustee of a fund, all the powers, obligations and discretions that are conferred on the trustee. Under s 37(3), the Tribunal has the power to affirm, remit, vary or set aside the decision under review. However, its power to do so is not at large. First, pursuant to s 37(4), the Tribunal's power under s 37(3) may only be exercised for the purpose of placing the member as nearly as practicable in such a position that the unfairness or unreasonableness caused by the decision of the trustee of the fund no longer exists: see National Mutual Life Association at 566 [16]. Secondly, by virtue of s 37(5), the Tribunal must not do anything under s 37(3) that would be contrary to law or to the governing rules of the fund concerned. Thirdly, in accordance with s 37(6), the Tribunal must affirm the decision if it is satisfied that the decision, in its operation in relation the member bringing the complaint, was fair and reasonable in the circumstances. 33 The Tribunal made Determinations pursuant to s 37(3) of the ROC Act in relation to the Complaints that: (a) the Complaints related only to whether the applicant treated the respondents fairly and reasonably and were therefore within the Tribunal's jurisdiction; (b) the decision of the applicant was unfair and unreasonable in its operation in relation to the respondents in the circumstances; and (c) the decision under review would be set aside and the Tribunal would substitute its own decision for that of the applicant, namely that the applicant repay to the respondents' deferred benefit accounts all amounts of 'negative interest' deducted and interest calculated at the trustee's reasonable determination of the rate obtainable from investment in cash and bank bills from the date the deduction was made to the date of repayment.
Case: Briffa v Hay (1997) 75 FCR 428
Outcome: cited
The Tribunal conducts a form of administrative review. The intention of ss 37 and 41 of the ROC Act is to place the Tribunal in the shoes of the trustee when making a determination in respect of a complaint: see Briffa v Hay (1997) 75 FCR 428 at 442 per Merkel J; Collins v AMP Superannuation Ltd (1997) 75 FCR 565 (' AMP Superannuation ') at 574 per Merkel J; and Lykogiannis v Retail Employees Superannuation Pty Ltd [2000] FCA 327 ; (2000) 97 FCR 361 (' Retail Employees Superannuation ') at 372 [47]-[48] per Mansfield J. The focus of s 37(6) of the ROC Act is upon the consequences of the decision in its practical operation, rather than upon the process by which the decision under review came to be made: see Retail Employees Superannuation at 372 [48].
Case: Collins v AMP Superannuation Ltd (1997) 75 FCR 565
Outcome: cited
The Tribunal conducts a form of administrative review. The intention of ss 37 and 41 of the ROC Act is to place the Tribunal in the shoes of the trustee when making a determination in respect of a complaint: see Briffa v Hay (1997) 75 FCR 428 at 442 per Merkel J; Collins v AMP Superannuation Ltd (1997) 75 FCR 565 (' AMP Superannuation ') at 574 per Merkel J; and Lykogiannis v Retail Employees Superannuation Pty Ltd [2000] FCA 327 ; (2000) 97 FCR 361 (' Retail Employees Superannuation ') at 372 [47]-[48] per Mansfield J. The focus of s 37(6) of the ROC Act is upon the consequences of the decision in its practical operation, rather than upon the process by which the decision under review came to be made: see Retail Employees Superannuation at 372 [48]. 66 There are no special rules of construction of documents relating to pension or superannuation schemes but, as a general rule, the Court's approach to the construction of such documents will be practical and purposive, rather than detached and literal: see Mettoy at 537 per Warner J; Lock at 602 per Waddell CJ in Eq; AMP Superannuation at 580 per Merkel J; and Gas and Fuel Corporation (Vic) v Fitzmaurice (1991) 22 ATR 10 at 24 per Hedigan J.
Case: Lykogiannis v Retail Employees Superannuation Pty Ltd [2000] FCA 327 ; (2000) 97 FCR 361
Outcome: cited
The Tribunal conducts a form of administrative review. The intention of ss 37 and 41 of the ROC Act is to place the Tribunal in the shoes of the trustee when making a determination in respect of a complaint: see Briffa v Hay (1997) 75 FCR 428 at 442 per Merkel J; Collins v AMP Superannuation Ltd (1997) 75 FCR 565 (' AMP Superannuation ') at 574 per Merkel J; and Lykogiannis v Retail Employees Superannuation Pty Ltd [2000] FCA 327 ; (2000) 97 FCR 361 (' Retail Employees Superannuation ') at 372 [47]-[48] per Mansfield J. The focus of s 37(6) of the ROC Act is upon the consequences of the decision in its practical operation, rather than upon the process by which the decision under review came to be made: see Retail Employees Superannuation at 372 [48].
Case: Lock v Westpac Banking Corporation (1991) 25 NSWLR 593
Outcome: cited
In making the Determinations, the Tribunal considered that a construction beneficial to the respondents was appropriate and a purposive and practical construction should be given to the Deed, having regard to the whole of its provisions: see Lock v Westpac Banking Corporation (1991) 25 NSWLR 593 (' Lock') at 602 per Waddell CJ in Eq; and Mettoy Pension Trustees Ltd v Evans [1991] 2 All ER 513 (' Mettoy' ) at 537 per Warner J. 66 There are no special rules of construction of documents relating to pension or superannuation schemes but, as a general rule, the Court's approach to the construction of such documents will be practical and purposive, rather than detached and literal: see Mettoy at 537 per Warner J; Lock at 602 per Waddell CJ in Eq; AMP Superannuation at 580 per Merkel J; and Gas and Fuel Corporation (Vic) v Fitzmaurice (1991) 22 ATR 10 at 24 per Hedigan J.
Case: Mettoy Pension Trustees Ltd v Evans [1991] 2 All ER 513
Outcome: cited
In making the Determinations, the Tribunal considered that a construction beneficial to the respondents was appropriate and a purposive and practical construction should be given to the Deed, having regard to the whole of its provisions: see Lock v Westpac Banking Corporation (1991) 25 NSWLR 593 (' Lock') at 602 per Waddell CJ in Eq; and Mettoy Pension Trustees Ltd v Evans [1991] 2 All ER 513 (' Mettoy' ) at 537 per Warner J. 66 There are no special rules of construction of documents relating to pension or superannuation schemes but, as a general rule, the Court's approach to the construction of such documents will be practical and purposive, rather than detached and literal: see Mettoy at 537 per Warner J; Lock at 602 per Waddell CJ in Eq; AMP Superannuation at 580 per Merkel J; and Gas and Fuel Corporation (Vic) v Fitzmaurice (1991) 22 ATR 10 at 24 per Hedigan J.
Case: Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163
Outcome: cited
Section 14(1) is directed to the nature of the trustee's decision, whereas s 14(6) is concerned with the nature of the complaint: see Employers First at 372-373 [74]. For the Tribunal to have jurisdiction, the decision complained of before the Tribunal must be one made 'in relation to a particular member' and the complaint must not 'relate to the management of a fund as a whole'. The Tribunal determined that it had jurisdiction on the basis that 'the Complaints relate to whether the [applicant] has acted appropriately in relation to these [respondents'] accounts, not to members' accounts generally'. The applicant contends that, by mistakenly asserting the existence of its jurisdiction, the Tribunal erred in law: Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 177.
Case: Australian Conservation Foundation Inc v Commonwealth [1979] HCA 1 ; (1980) 146 CLR 493
Outcome: cited
In support of these arguments, the applicant drew an analogy with the legal rules relating to standing viz., a plaintiff seeking declaratory or injunctive relief to prevent the violation of a public right must have a special interest in the subject matter of the action over and above that enjoyed by the public generally: see Australian Conservation Foundation Inc v Commonwealth [1979] HCA 1 ; (1980) 146 CLR 493; and Onus v Alcoa of Australia Ltd [1981] HCA 50 ; (1981) 149 CLR 27.
Case: Onus v Alcoa of Australia Ltd [1981] HCA 50 ; (1981) 149 CLR 27
Outcome: cited
In support of these arguments, the applicant drew an analogy with the legal rules relating to standing viz., a plaintiff seeking declaratory or injunctive relief to prevent the violation of a public right must have a special interest in the subject matter of the action over and above that enjoyed by the public generally: see Australian Conservation Foundation Inc v Commonwealth [1979] HCA 1 ; (1980) 146 CLR 493; and Onus v Alcoa of Australia Ltd [1981] HCA 50 ; (1981) 149 CLR 27.
Case: O'Grady v Northern Queensland Co Ltd [1990] HCA 16 ; (1990) 169 CLR 356
Outcome: cited
Even if, contrary to my view, attention is focused solely on the trustee's determination to set a negative crediting rate for all deferred benefit members (and all LASPLAN members) in the relevant periods, this would not alter my conclusion that s 14(1) is satisfied. If a decision is made to set a negative investment return or negative interest rate for all deferred benefit members for a specified period, and to carry that decision into effect with different financial consequences for each such member, it does not follow that no decision has been made 'in relation' to a particular member. The words 'in relation to' are very broad, and require a sufficient relationship or connection between the decision and the rights, entitlements or position of a particular member. The nature of the relationship or connection that will suffice will depend on the scope and purposes of the ROC Act: see O'Grady v Northern Queensland Co Ltd [1990] HCA 16 ; (1990) 169 CLR 356 at 365, 367 and 374; and Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1 at 245-246 [577] per Kirby J. The scope and purpose of s 14 of the ROC Act is, relevantly, to afford members of superannuation funds a right to review decisions of a trustee that affect their particular interests as members, subject to the exclusions otherwise provided for in s 14. In the circumstances of these three cases and in the context of the ROC Act, it is enough to satisfy s 14(1) that the applicant's decision involved, or resulted in, the making of particular debits to the respondents' deferred benefit accounts.
Case: Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1
Outcome: cited
Even if, contrary to my view, attention is focused solely on the trustee's determination to set a negative crediting rate for all deferred benefit members (and all LASPLAN members) in the relevant periods, this would not alter my conclusion that s 14(1) is satisfied. If a decision is made to set a negative investment return or negative interest rate for all deferred benefit members for a specified period, and to carry that decision into effect with different financial consequences for each such member, it does not follow that no decision has been made 'in relation' to a particular member. The words 'in relation to' are very broad, and require a sufficient relationship or connection between the decision and the rights, entitlements or position of a particular member. The nature of the relationship or connection that will suffice will depend on the scope and purposes of the ROC Act: see O'Grady v Northern Queensland Co Ltd [1990] HCA 16 ; (1990) 169 CLR 356 at 365, 367 and 374; and Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1 at 245-246 [577] per Kirby J. The scope and purpose of s 14 of the ROC Act is, relevantly, to afford members of superannuation funds a right to review decisions of a trustee that affect their particular interests as members, subject to the exclusions otherwise provided for in s 14. In the circumstances of these three cases and in the context of the ROC Act, it is enough to satisfy s 14(1) that the applicant's decision involved, or resulted in, the making of particular debits to the respondents' deferred benefit accounts.
Case: Gas and Fuel Corporation (Vic) v Fitzmaurice (1991) 22 ATR 10
Outcome: cited
There are no special rules of construction of documents relating to pension or superannuation schemes but, as a general rule, the Court's approach to the construction of such documents will be practical and purposive, rather than detached and literal: see Mettoy at 537 per Warner J; Lock at 602 per Waddell CJ in Eq; AMP Superannuation at 580 per Merkel J; and Gas and Fuel Corporation (Vic) v Fitzmaurice (1991) 22 ATR 10 at 24 per Hedigan J.
Case: Project Blue Sky Inc v Australian Broadcasting Association [1998] HCA 28 ; (1998) 194 CLR 355
Outcome: cited
This approach is not very different from the modern approach to statutory construction. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute: Project Blue Sky Inc v Australian Broadcasting Association [1998] HCA 28 ; (1998) 194 CLR 355 at 381 [69] - [70] per McHugh, Gummow, Kirby and Hayne JJ.