mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Federal Commissioner of Taxation v Raptis (1989) 19 ALD 726
Outcome: followed
No " question of law ", it is considered, arises in circumstances of the present appeal where the Tribunal did not resolve an issue or did not make findings of fact in respect to other forms of " suitable employment " where no such contention was advanced before it. " Some difficulty ", it has been said, must arise " in finding as 'error of law'... the failure in the Tribunal to make a finding first urged in this court ": Federal Commissioner of Taxation v Raptis (1989) 19 ALD 726 at 728 per Gummow J. Appl'd: Chen v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 1901 at [88] [89], [2000] FCA 1901 ; 106 FCR 157 at 175 6 per Carr J.
Case: Ferriday v Repatriation Commission (1996) 69 FCR 521
Outcome: cited
In some circumstances this Court may proceed to resolve a submission which has not previously been raised before the Tribunal: Kuswardana v Minister for Immigration &amp; Ethnic Affairs (1981) 54 FLR 334. Bowen CJ there observed at 343: ... In my opinion a party is not necessarily precluded by the conduct of his case before the Tribunal from arguing on "appeal" matters conceded below. If he is successful then the decision of the Tribunal may be overturned -- found in some way to be wrong in law, even though that error may have been substantially contributed to by the conduct of the case by the party in question. In other words, the conduct of the party's case before the Tribunal goes to this court's discretion as to what course it will take given that there has been an error rather than to the question as to whether the Tribunal really made an error. The case before this court is not merely one of parties agreeing upon what facts should be decided by the trier of fact, nor a case of facts, peculiarly within the knowledge of the party, being conceded. Rather, there was a clear statutory precondition upon which the Tribunal had to be satisfied and enough material and evidence before it to raise the issue independently of the parties' submissions. In these circumstances it was an error of law not to consider and decide the issue of immigrant status. Whether or not that error should lead to the decision of the Tribunal being set aside and the matter remitted to it depends, in my view, upon principles similar to those expressed by Dixon J in Burston's case, supra and by the same judge in Orr v Holmes [1948] HCA 16 ; (1948) 76 CLR 632 at 640: "to fulfil an imperative demand of justice". Appl'd: Ferriday v Repatriation Commission (1996) 69 FCR 521 at 527 8 per Lee J. The present appeal, it is considered, is not such a case. Left unexplored with Ms Davies is what may constitute " suitable employment " other than her Bali Gardens business and the quantification of her ability to earn. Although these may be matters fundamental to the application of s 19(2), each is very much a factual matter which to date has largely been left unexplored in the evidence and is best left to the Tribunal to undertake. The fact that other issues have also been left unresolved by the Tribunal, only further reinforces the desirability of leaving all issues to the Tribunal to determine upon the basis of such further evidence (if any) as is considered appropriate.
Case: Kuswardana v Minister for Immigration &amp; Ethnic Affairs (1981) 54 FLR 334
Outcome: followed
In some circumstances this Court may proceed to resolve a submission which has not previously been raised before the Tribunal: Kuswardana v Minister for Immigration &amp; Ethnic Affairs (1981) 54 FLR 334. Bowen CJ there observed at 343: ... In my opinion a party is not necessarily precluded by the conduct of his case before the Tribunal from arguing on "appeal" matters conceded below. If he is successful then the decision of the Tribunal may be overturned -- found in some way to be wrong in law, even though that error may have been substantially contributed to by the conduct of the case by the party in question. In other words, the conduct of the party's case before the Tribunal goes to this court's discretion as to what course it will take given that there has been an error rather than to the question as to whether the Tribunal really made an error. The case before this court is not merely one of parties agreeing upon what facts should be decided by the trier of fact, nor a case of facts, peculiarly within the knowledge of the party, being conceded. Rather, there was a clear statutory precondition upon which the Tribunal had to be satisfied and enough material and evidence before it to raise the issue independently of the parties' submissions. In these circumstances it was an error of law not to consider and decide the issue of immigrant status. Whether or not that error should lead to the decision of the Tribunal being set aside and the matter remitted to it depends, in my view, upon principles similar to those expressed by Dixon J in Burston's case, supra and by the same judge in Orr v Holmes [1948] HCA 16 ; (1948) 76 CLR 632 at 640: "to fulfil an imperative demand of justice". Appl'd: Ferriday v Repatriation Commission (1996) 69 FCR 521 at 527 8 per Lee J. The present appeal, it is considered, is not such a case. Left unexplored with Ms Davies is what may constitute " suitable employment " other than her Bali Gardens business and the quantification of her ability to earn. Although these may be matters fundamental to the application of s 19(2), each is very much a factual matter which to date has largely been left unexplored in the evidence and is best left to the Tribunal to undertake. The fact that other issues have also been left unresolved by the Tribunal, only further reinforces the desirability of leaving all issues to the Tribunal to determine upon the basis of such further evidence (if any) as is considered appropriate.
Case: McAuliffe v Department of Social Security [1991] FCA 268 ; (1991) 13 AAR 462
Outcome: followed
It is unnecessary to place reliance upon a further submission advanced on behalf of Comcare that error on the part of the Tribunal is further exposed -- or at least supported -- by the failure of the Tribunal to make reference to s 19(2) in terms. Comcare sought to draw some support for its contention that s 19(2) had not been properly considered from the fact that the Tribunal expressly refers to s 19(4), but makes no reference to s 19(2). Section 43(2B) does not require the Tribunal to include or make reference to law or legal principles: cf McAuliffe v Department of Social Security [1991] FCA 268 ; (1991) 13 AAR 462 at 469 per von Doussa J. Had it been necessary to resolve this submission, it most probably would have been resolved against Comcare. Although not referring to s 19(2), it is evident from the Tribunal's reasons that it was directing its consideration to the subject matter of s 19(2) and applying its provisions to the facts before it. Hence the Tribunal referred to: " What amount, if any, was Ms Davies able to earn in 'suitable employment'? " It also gave consideration to, " What was 'suitable employment' for Ms Davies? ", and separate consideration to, " What amount was Ms Davies able to earn in her employment in her own business during the period 28 September 1999 to 19 April 2006? " 40 Order 5 as made by the Tribunal quantified Ms Davies' ability to earn as " nil " for the period ending on " 30 June 2004 ". 41 The period for which compensation was payable ended on 19 April 2006.
Case: Minister for Immigration &amp; Ethnic Affairs v Liang [1996] HCA 6 , 185 CLR 259
Outcome: followed
Section 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) provides as follows: Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. The nature and extent of this obligation has been extensively canvassed. For the purposes of the resolution of the present appeal it is sufficient to note that the reasons of the Tribunal are " meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed ": Minister for Immigration &amp; Ethnic Affairs v Liang [1996] HCA 6 , 185 CLR 259 at 272. But it is equally important " to review the Tribunal's reasons to be satisfied that the Tribunal has in fact had regard to the matters which it must address ": Zhang v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 30 at [14] .
Case: Re Davies and Comcare [2007] AATA 1829
Outcome: cited
This is an appeal from a decision of the Administrative Appeals Tribunal made on 3 October 2007: Re Davies and Comcare [2007] AATA 1829. In that decision the Tribunal concluded that as from 3 December 2001 Ms Davies had been partially incapacitated for work as a result of an injury she had suffered and was entitled to compensation in respect to that injury. 2 Comcare seeks to appeal from that decision. Its Grounds of Appeal are: (i) whether the Tribunal misconstrued the meaning of the phrase " able to earn " as it arises in subsection 19(2) of the Safety, Rehabilitation and Compensation Act 1988 (Cth); and (ii) whether the Tribunal failed to provide adequate reasons as required pursuant to subsection 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) for that part of its decision at paragraph 71(5). Paragraph 71(5) of the Tribunal's decision concluded that: during the period 3 December 2001 to 30 June 2004 inclusive, the amount which Ms Davies was able to earn in employment in the business was nil.
Case: Roncevich v Repatriation Commission [2005] HCA 40 , 222 CLR 115
Outcome: followed
The requirement imposed by s 43(2B) of the 1975 Act has to be applied in the factual context being considered and applied in a realistic and practical manner. One objective of that provision, of course, is " to make the system of appeals effective ": Roncevich v Repatriation Commission [2005] HCA 40 at [62] , [2005] HCA 40 ; 222 CLR 115. The adequacy of reasons provided, however, is also a matter of " substance ": Dodds v Comcare Australia (1993) 31 ALD 690. Burchett J at 691 there observed: The obligation to furnish reasons, and to furnish reasons which are adequate, is a very important obligation. It is a pillar of the system of administrative decision-making by the Tribunal, and it is essential that the Court should insist on its fulfillment. But it is the substance of the obligation that matters. Indeed, as Lord Suniner pointed out in 55 Hontestroom v 55 Sagaporack [19271 AC 37 at 50, even a Judge's reasons on a question of fact will not be vitiated by "imperfections in form and expression". Section 43 is not to be construed in a pedantic spirit, but sensibly. If the Tribunal's reasons exposed the logic of its decision, and contained findings on those matters of fact which are essential to that logic, it will not be, easy to demonstrate a failure of compliance with the requirement to include "findings on material questions of fact".
Case: SZEHN v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1389
Outcome: followed
It is not the fact that the Tribunal has not referred to such evidence as that set forth (for example) in the Walter Turnbull report which exposes a " question of law " ( SZEHN v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1389 at [58] per Lindgren J; SZHPI v Minister for Immigration &amp; Citizenship [2008] FCA 306 at [15] ). The question arises by reason of the Tribunal not making necessary findings of fact and referring to the evidence upon which it makes such findings. Its failure to do so is a departure from the requirements imposed by s 43(2B) and renders " ineffective " the appeal process to this Court. In the absence of explanation, neither Ms Davies nor this Court knows how the Tribunal reached the conclusion that it did. In the absence of explanation, it would appear that the Tribunal has wrongly equated net profit with earning ability.
Case: SZHPI v Minister for Immigration &amp; Citizenship [2008] FCA 306
Outcome: followed
It is not the fact that the Tribunal has not referred to such evidence as that set forth (for example) in the Walter Turnbull report which exposes a " question of law " ( SZEHN v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1389 at [58] per Lindgren J; SZHPI v Minister for Immigration &amp; Citizenship [2008] FCA 306 at [15] ). The question arises by reason of the Tribunal not making necessary findings of fact and referring to the evidence upon which it makes such findings. Its failure to do so is a departure from the requirements imposed by s 43(2B) and renders " ineffective " the appeal process to this Court. In the absence of explanation, neither Ms Davies nor this Court knows how the Tribunal reached the conclusion that it did. In the absence of explanation, it would appear that the Tribunal has wrongly equated net profit with earning ability.
Case: Zhang v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 30
Outcome: followed
Section 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) provides as follows: Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. The nature and extent of this obligation has been extensively canvassed. For the purposes of the resolution of the present appeal it is sufficient to note that the reasons of the Tribunal are " meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed ": Minister for Immigration &amp; Ethnic Affairs v Liang [1996] HCA 6 , 185 CLR 259 at 272. But it is equally important " to review the Tribunal's reasons to be satisfied that the Tribunal has in fact had regard to the matters which it must address ": Zhang v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 30 at [14] .
Case: Re APN News &amp; Media Ltd [2007] FCA 770 ; (2007) 62 ACSR 400
Outcome: referred to
details of the break fee are addressed in the affidavit of Mr Barry John Hamilton, who is the non-executive Chairman of People. Importantly, the break fee is not payable if the proposed scheme is not approved by the shareholders, thus it cannot be said to be a matter which could influence voting at the scheme meeting: see Re SFE Corporation Limited [2006] FCA 670 per Gyles J at [6] to [7]; see also Re APN News &amp; Media Ltd [2007] FCA 770 ; (2007) 62 ACSR 400 at [43] .
Case: Re SFE Corporation Limited [2006] FCA 670
Outcome: referred to
details of the break fee are addressed in the affidavit of Mr Barry John Hamilton, who is the non-executive Chairman of People. Importantly, the break fee is not payable if the proposed scheme is not approved by the shareholders, thus it cannot be said to be a matter which could influence voting at the scheme meeting: see Re SFE Corporation Limited [2006] FCA 670 per Gyles J at [6] to [7]; see also Re APN News &amp; Media Ltd [2007] FCA 770 ; (2007) 62 ACSR 400 at [43] .
Case: Andrew &amp; Frewin Pty Ltd v Arrow Limited [1990] FCA 247
Outcome: cited
As the proceeding was commenced in the New South Wales Registry, Sydney is presently the ' proper place ' in relation to the proceeding (see the definition of that expression in O 1 r 4) and, unless an order is made to the contrary, the place of trial will be Sydney (O 30 r 6(1)). However, it is not necessary for the proceeding to be transferred to the Cairns Registry to enable the trial, or any part of it, to be heard in Cairns. The Court may direct that the trial, or any part of the trial, be held at a place other than the proper place (O 30 r 6(2)). In Andrew &amp; Frewin Pty Ltd v Arrow Limited [1990] FCA 247 the Full Court observed that O 30 r 6 authorised the Court to take evidence in various cities so as to accommodate the needs of witnesses notwithstanding that a different city was the proper place.
Case: Beach Petroleum NL v Johnson (No 2) (1995) FCR 119
Outcome: applied
In Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 120F-G von Doussa J said of O 62 r 4(2)(c) that: 'The purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation. The power is appropriate to be used in complex cases.' 6 In my opinion it is also appropriate to be used in cases which are simple and in which there would be utility in the court cutting the Gordian knot of protracted fights about costs which is the hallmark of this particular piece of litigation. It is a commonplace for the court to fix in administrative appeals under the Migration Act 1958 (Cth) an amount of costs for a successful party. 7 In my opinion, it is appropriate that an amount of costs be fixed by the court so as to prevent yet further argument and delay in finalising this matter.
Case: Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72
Outcome: cited
If this Court were free to review the Tribunal's discretion as to costs as on a re-hearing de novo, there might well be something to be said for this view. However, that is not the case. An error of law must be shown. Where the exercise of a discretion is involved, this usually involves the application of some legally mistaken principle. In matters of practice and procedure and, perhaps especially, costs in a well-trodden field such as workers' compensation litigation, such an error ought not lightly be inferred, because the discretion is a broad one, confined only by considerations relevant to the case at hand: Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 per Gaudron &amp; Gummow JJ at [22].
Case: Willis Tu v Pakway Australia Pty Ltd [2004] FCA 1151
Outcome: referred to
This is a design case in which the applicants claimed injunctive relief and damages for infringement of the first applicant's registered designs in respect of plates or, at the first applicant's option, an account of profits in respect of the infringement of its designs. On 7 September 2004, I published reasons for judgment on liability: Willis Tu v Pakway Australia Pty Ltd [2004] FCA 1151 (" Willis Tu "). I found that the first and second respondents had infringed the registered designs. The applicants elected to have an account of profits and, by agreement, the parties subsequently settled on $36,728 as the amount of profit. The parties were, however, unable to agree on costs and have filed submissions concerning a number of costs questions. The question of costs now falls for determination. 2 The respondents concede that the applicants are entitled to a general order for costs in their favour. However, they submit that they are entitled to costs that were reserved in connection with the application for an interlocutory injunction and the notice of motion filed on 13 February 2002. The respondents also claim that the applicants should not recover costs relating to affidavits of Robin Walton, the evidence of Peter Kingsley Bayly, and the retention of two counsel for trial. 3 The applicants submit that there is no reason to depart from, or modify, the application of the general rule that costs follow the event. Moreover, they submit that the Court should order that costs not be reduced by one-third pursuant to O 62 r 36A(1) of the Federal Court Rules 1979 (Cth) ("the Rules"). 18 The affidavits of Robin Walton and the evidence of Peter Bayly, to the extent admissible, did not much advance the applicants' case: see Willis Tu at [90]. Nevertheless, Mr Bayly's evidence assisted the Court in identifying the significant features of the registered designs: see Willis Tu at [91]-[94]. In the circumstances of the case, I do not find the applicants' reliance on his evidence as so unreasonable as to justify denying him the costs of this evidence. Similarly, I would not disallow the applicants the costs of Mr Walton's affidavits simply because these affidavits included some unnecessary technical details and the applicants did not succeed on the issues to which they were directed. 19 Accordingly, the applicants should recover the costs relating to the affidavits of Mr Walton and the evidence of Mr Bayly. 20 Finally, the respondents contended that the applicants should not recover the costs of retaining senior and junior counsel. This is an issue that is properly raised before a taxing officer, although I deal with it here as a matter of expediency.
Case: Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72
Outcome: referred to
The power of the Court to make orders for costs derives from s 43 of the Federal Court of Australia Act 1976 (Cth). A successful litigant is ordinarily entitled to an award of costs: see, e.g., Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 at 97 per McHugh J (dissenting in result) and 120-1 per Kirby J. The power to make orders for costs is, however, discretionary, although it "must be exercised judicially and not against the successful party except for some reason connected with the case": see Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229 (" Ruddock v Vadarlis (No 2) ") at 234 per Black CJ and French JJ. As their Honours said in that case, at 234 235: "Within the general discretion of the courts to award costs it is accepted by decisions in both Australian and English jurisdictions that: &#8226; Ordinarily costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order. &#8226; Where a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed. &#8226; A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party's costs of them. In this sense ' issue ' does not mean a precise issue in the technical pleading sense but any disputed question of fact or law. See Hughes v Western Australian Cricket Association (Inc) and Ors (1986 ) ATPR 40 748 at 48,136 ; approved by the Full Court in Queensland Wire Industries Pty Ltd v Broken Hill Co Ltd (1987) 17 FCR 211 at 222."