mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Outcome: referred to
scope of an appeal under s 44(1) of the AAT Act and the requirement that the notice of appeal state a question, or questions of law, have been discussed in the authorities. The relevant principles are well established and I refer to Brown v The Repatriation Commission [1985] FCA 194 ; (1985) 7 FCR 302 ; TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 ; Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 38 AAR 55 ; Hussain v Minister for Foreign Affairs &amp; Anor [2008] FCAFC 128 ; (2008) 169 FCR 241. The difference between a question of fact and a question of law has also been discussed in the authorities. Again, although there are sometimes difficulties in applying the relevant principles, they are well established and I refer to Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36 ; (1995-1996) 186 CLR 389.
Case: Comcare Australia v Lees (1997) 151 ALR 647
Outcome: referred to
question whether a failure by the Tribunal to comply with s 43(2B) is an error of law which vitiates the Tribunal's decision is not, as far as I can see, clearly answered by the authorities: Repatriation Commission v O'Brien [1985] HCA 10 ; (1985) 155 CLR 422 at 445-446 per Brennan J; Comcare Australia v Lees (1997) 151 ALR 647 at 658-659 per Finkelstein J; TelePacific Pty Ltd v Federal Commissioner of Taxation (2005) 58 ATR 441 at 451 per Sackville J; Lang v Comcare (2007) 44 AAR 370. The answer to the question may turn on an examination of the effect of the particular failure on the Tribunal's decision. I do not need to determine the question in this case because I have decided that the Tribunal did not fail to comply with s 43(2B).
Case: Hussain v Minister for Foreign Affairs &amp; Anor [2008] FCAFC 128 ; (2008) 169 FCR 241
Outcome: referred to
scope of an appeal under s 44(1) of the AAT Act and the requirement that the notice of appeal state a question, or questions of law, have been discussed in the authorities. The relevant principles are well established and I refer to Brown v The Repatriation Commission [1985] FCA 194 ; (1985) 7 FCR 302 ; TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 ; Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 38 AAR 55 ; Hussain v Minister for Foreign Affairs &amp; Anor [2008] FCAFC 128 ; (2008) 169 FCR 241. The difference between a question of fact and a question of law has also been discussed in the authorities. Again, although there are sometimes difficulties in applying the relevant principles, they are well established and I refer to Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36 ; (1995-1996) 186 CLR 389.
Case: Lang v Comcare (2007) 44 AAR 370
Outcome: referred to
question whether a failure by the Tribunal to comply with s 43(2B) is an error of law which vitiates the Tribunal's decision is not, as far as I can see, clearly answered by the authorities: Repatriation Commission v O'Brien [1985] HCA 10 ; (1985) 155 CLR 422 at 445-446 per Brennan J; Comcare Australia v Lees (1997) 151 ALR 647 at 658-659 per Finkelstein J; TelePacific Pty Ltd v Federal Commissioner of Taxation (2005) 58 ATR 441 at 451 per Sackville J; Lang v Comcare (2007) 44 AAR 370. The answer to the question may turn on an examination of the effect of the particular failure on the Tribunal's decision. I do not need to determine the question in this case because I have decided that the Tribunal did not fail to comply with s 43(2B). The obligation in s 43(2B) relates to the Tribunal's "findings on material questions of fact". On one view, the material question of fact on the particular issue of whether the applicant was unemployed within s 593(1) was the level or intensity of the applicant's vehicle-related activities judged by reference to the amount of time and effort he expended on those activities. The Tribunal made its decision with respect to that matter by drawing inferences from evidence it accepted. On one view, the Tribunal's conclusion that the applicant's evidence on this topic was unreliable was no more than the rejection of an item of evidence which might otherwise have assisted it in making its finding on a material question of fact. On this view, the Tribunal's conclusion on the reliability or otherwise of the applicant's evidence was not a finding on a material question of fact. Without pausing to discuss some of the issues which arise, I refer to Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741 ; (1999) 95 FCR 425 ; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323. I will not take such an approach because it seems to me that, in a case of this nature the better view is that the question of what is a finding on a material question of fact depends very much on the nature and circumstances of the decision. That was the approach taken by Stone J in Lang v Comcare (2007) 44 AAR 370. In this case, the applicant's evidence as to the time he spent on his vehicle-related activities was an important consideration in terms of a decision as to whether he was unemployed within the meaning of the term in s 593(1) of the Act. He was the only witness before the Tribunal who could and did give direct evidence on the issue.
Case: McAuliffe v Secretary, Department of Social Security [1992] FCA 483 ; (1992) 28 ALD 609
Outcome: referred to
Tribunal set out the legal principles relevant to a determination of whether the applicant was "unemployed" within the meaning of that term in s 593(1) of the Act. He referred to the decision of Graham J in Secretary, Department of Employment and Workplace Relations v Joss [2006] FCA 884 ; (2006) 152 FCR 541. One of the principles the Tribunal formulated was that the question of whether a person is unemployed is a question of fact and degree, and regard should be had to the intensity with which the person applies himself or herself to particular work or a particular enterprise. There is no doubt that the question of whether a person is unemployed is essentially one of fact and degree to be decided having regard to the relevant principles: McAuliffe v Secretary, Department of Social Security [1992] FCA 483 ; (1992) 28 ALD 609. It was not suggested on the appeal that the Tribunal had applied the wrong legal test.
Case: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: referred to
obligation in s 43(2B) relates to the Tribunal's "findings on material questions of fact". On one view, the material question of fact on the particular issue of whether the applicant was unemployed within s 593(1) was the level or intensity of the applicant's vehicle-related activities judged by reference to the amount of time and effort he expended on those activities. The Tribunal made its decision with respect to that matter by drawing inferences from evidence it accepted. On one view, the Tribunal's conclusion that the applicant's evidence on this topic was unreliable was no more than the rejection of an item of evidence which might otherwise have assisted it in making its finding on a material question of fact. On this view, the Tribunal's conclusion on the reliability or otherwise of the applicant's evidence was not a finding on a material question of fact. Without pausing to discuss some of the issues which arise, I refer to Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741 ; (1999) 95 FCR 425 ; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323. I will not take such an approach because it seems to me that, in a case of this nature the better view is that the question of what is a finding on a material question of fact depends very much on the nature and circumstances of the decision. That was the approach taken by Stone J in Lang v Comcare (2007) 44 AAR 370. In this case, the applicant's evidence as to the time he spent on his vehicle-related activities was an important consideration in terms of a decision as to whether he was unemployed within the meaning of the term in s 593(1) of the Act. He was the only witness before the Tribunal who could and did give direct evidence on the issue.
Case: Repatriation Commission v O'Brien [1985] HCA 10 ; (1985) 155 CLR 422
Outcome: referred to
question whether a failure by the Tribunal to comply with s 43(2B) is an error of law which vitiates the Tribunal's decision is not, as far as I can see, clearly answered by the authorities: Repatriation Commission v O'Brien [1985] HCA 10 ; (1985) 155 CLR 422 at 445-446 per Brennan J; Comcare Australia v Lees (1997) 151 ALR 647 at 658-659 per Finkelstein J; TelePacific Pty Ltd v Federal Commissioner of Taxation (2005) 58 ATR 441 at 451 per Sackville J; Lang v Comcare (2007) 44 AAR 370. The answer to the question may turn on an examination of the effect of the particular failure on the Tribunal's decision. I do not need to determine the question in this case because I have decided that the Tribunal did not fail to comply with s 43(2B).
Case: Secretary, Department of Employment and Workplace Relations v Joss [2006] FCA 884 ; (2006) 152 FCR 541
Outcome: referred to
Tribunal set out the legal principles relevant to a determination of whether the applicant was "unemployed" within the meaning of that term in s 593(1) of the Act. He referred to the decision of Graham J in Secretary, Department of Employment and Workplace Relations v Joss [2006] FCA 884 ; (2006) 152 FCR 541. One of the principles the Tribunal formulated was that the question of whether a person is unemployed is a question of fact and degree, and regard should be had to the intensity with which the person applies himself or herself to particular work or a particular enterprise. There is no doubt that the question of whether a person is unemployed is essentially one of fact and degree to be decided having regard to the relevant principles: McAuliffe v Secretary, Department of Social Security [1992] FCA 483 ; (1992) 28 ALD 609. It was not suggested on the appeal that the Tribunal had applied the wrong legal test.
Case: Suters v Australian Postal Corporation (1992) 28 ALD 320
Outcome: referred to
so far as there was an obligation on the Tribunal, aside from s 43(2B) of the AAT Act, to explain its reasons for rejecting evidence not directly contradicted by other evidence (see Suters v Australian Postal Corporation (1992) 28 ALD 320) , the Tribunal complied with that obligation. As part of ground one, the applicant submitted that the matters the Tribunal relied on could not justify the finding it made. First, he contended that because his dishonesty did not occur in his claim for the newstart allowance, or in the course of his evidence to the Tribunal, it should have been ignored. That contention is incorrect and his dishonesty was a matter the Tribunal was entitled to take into account. Secondly, he contended that the Tribunal erred in concluding that the total number of vehicles "emerged progressively". However, that is a challenge to a finding of fact and cannot be characterised as an error of law having regard to the fact that there was evidence upon which the Tribunal could make that finding. Ground two The second ground also relates to the findings of the Tribunal referred to in ground one. It is said by the applicant that an important part of the applicant's vehicle-related activities was the repair work carried out by the applicant himself. The first limb of the second ground is that there was no challenge to the applicant's evidence in this respect and that therefore the Tribunal's finding was made in breach of the rules of procedural fairness. The second limb of the second ground is that the Tribunal's finding that the applicant had underestimated the time he spent on vehicle-related activities was not based on any evidence.
Case: TelePacific Pty Ltd v Federal Commissioner of Taxation (2005) 58 ATR 441
Outcome: referred to
question whether a failure by the Tribunal to comply with s 43(2B) is an error of law which vitiates the Tribunal's decision is not, as far as I can see, clearly answered by the authorities: Repatriation Commission v O'Brien [1985] HCA 10 ; (1985) 155 CLR 422 at 445-446 per Brennan J; Comcare Australia v Lees (1997) 151 ALR 647 at 658-659 per Finkelstein J; TelePacific Pty Ltd v Federal Commissioner of Taxation (2005) 58 ATR 441 at 451 per Sackville J; Lang v Comcare (2007) 44 AAR 370. The answer to the question may turn on an examination of the effect of the particular failure on the Tribunal's decision. I do not need to determine the question in this case because I have decided that the Tribunal did not fail to comply with s 43(2B).
Case: TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175
Outcome: referred to
scope of an appeal under s 44(1) of the AAT Act and the requirement that the notice of appeal state a question, or questions of law, have been discussed in the authorities. The relevant principles are well established and I refer to Brown v The Repatriation Commission [1985] FCA 194 ; (1985) 7 FCR 302 ; TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 ; Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 38 AAR 55 ; Hussain v Minister for Foreign Affairs &amp; Anor [2008] FCAFC 128 ; (2008) 169 FCR 241. The difference between a question of fact and a question of law has also been discussed in the authorities. Again, although there are sometimes difficulties in applying the relevant principles, they are well established and I refer to Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36 ; (1995-1996) 186 CLR 389.
Case: Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741 ; (1999) 95 FCR 425
Outcome: referred to
obligation in s 43(2B) relates to the Tribunal's "findings on material questions of fact". On one view, the material question of fact on the particular issue of whether the applicant was unemployed within s 593(1) was the level or intensity of the applicant's vehicle-related activities judged by reference to the amount of time and effort he expended on those activities. The Tribunal made its decision with respect to that matter by drawing inferences from evidence it accepted. On one view, the Tribunal's conclusion that the applicant's evidence on this topic was unreliable was no more than the rejection of an item of evidence which might otherwise have assisted it in making its finding on a material question of fact. On this view, the Tribunal's conclusion on the reliability or otherwise of the applicant's evidence was not a finding on a material question of fact. Without pausing to discuss some of the issues which arise, I refer to Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741 ; (1999) 95 FCR 425 ; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323. I will not take such an approach because it seems to me that, in a case of this nature the better view is that the question of what is a finding on a material question of fact depends very much on the nature and circumstances of the decision. That was the approach taken by Stone J in Lang v Comcare (2007) 44 AAR 370. In this case, the applicant's evidence as to the time he spent on his vehicle-related activities was an important consideration in terms of a decision as to whether he was unemployed within the meaning of the term in s 593(1) of the Act. He was the only witness before the Tribunal who could and did give direct evidence on the issue.
Case: Barclay Mowlem v Tesrol Walsh Bay [2004] NSWSC 1232
Outcome: distinguished
cases relied on by Mr Gould are distinguishable. They are Barclay Mowlem v Tesrol Walsh Bay [2004] NSWSC 1232 and Commissioner of Taxation v Ryan (1998) 82 FCR 345 ( Ryan) . Neither concerned a payment of a final dividend to creditors. Mr Gould's submissions did not refer to the decision of the High Court on appeal in Ryan which, if anything, is unfavourable to his argument (see Commissioner of Taxation of the Commonwealth of Australia v Ryan [2000] HCA 4 ; (2000) 201 CLR 109). The intention to be found in the Trinbay DOCA is that in the absence of an actual payment, it would be a matter for the creditors, or for the Court upon application by a person referred to in s 445D(2), whether the DOCA was to terminate.
Case: Commissioner of Taxation of the Commonwealth of Australia v Ryan [2000] HCA 4 ; (2000) 201 CLR 109
Outcome: referred to
cases relied on by Mr Gould are distinguishable. They are Barclay Mowlem v Tesrol Walsh Bay [2004] NSWSC 1232 and Commissioner of Taxation v Ryan (1998) 82 FCR 345 ( Ryan) . Neither concerned a payment of a final dividend to creditors. Mr Gould's submissions did not refer to the decision of the High Court on appeal in Ryan which, if anything, is unfavourable to his argument (see Commissioner of Taxation of the Commonwealth of Australia v Ryan [2000] HCA 4 ; (2000) 201 CLR 109). The intention to be found in the Trinbay DOCA is that in the absence of an actual payment, it would be a matter for the creditors, or for the Court upon application by a person referred to in s 445D(2), whether the DOCA was to terminate.
Case: Commisioner of Taxation v Ryan (1998) 82 FCR 345
Outcome: distinguished
cases relied on by Mr Gould are distinguishable. They are Barclay Mowlem v Tesrol Walsh Bay [2004] NSWSC 1232 and Commissioner of Taxation v Ryan (1998) 82 FCR 345 ( Ryan) . Neither concerned a payment of a final dividend to creditors. Mr Gould's submissions did not refer to the decision of the High Court on appeal in Ryan which, if anything, is unfavourable to his argument (see Commissioner of Taxation of the Commonwealth of Australia v Ryan [2000] HCA 4 ; (2000) 201 CLR 109). The intention to be found in the Trinbay DOCA is that in the absence of an actual payment, it would be a matter for the creditors, or for the Court upon application by a person referred to in s 445D(2), whether the DOCA was to terminate.
Case: Advanced Hair Studio Pty Ltd v TVN Enterprises Ltd (1987) 18 FCR 1
Outcome: cited
In Advanced Hair Studio Pty Ltd v TVN Enterprises Ltd (1987) 18 FCR 1 at 11 French J expressed the view that the reference in paragraph (a) to "a publication of matter" ' suggests that what is of importance is the content and not the general nature of the material in question '. That observation was referred to by Wilcox J in Sun Earth Homes Pty Limited v Australian Broadcasting Corporation (1993) 45 FCR 265 at 280. However, French J was not concerned with subparagraph (vi) and was not referring to the subject of an agreement between the prescribed information provider and a third person. His Honour did not expand upon the distinction between and the dividing line between what may constitute "conduct" and "general nature". 95 In Advanced Hair Studio , French J outlined the history to the insertion of s 65A. According to the Second Reading Speech, s 65A was introduced to overcome the suggestion that newspaper publishers and television publishers may be taken to have contravened s 52 if the newspaper contains inaccurate information. The section was said to operate to exempt the media and other persons who engage in businesses of providing information from the operation of the provisions of Division 1 of Part V of the Act which could inhibit activities relating to the provision of "news and other information". 96 Section 65A was not intended to exempt information providers: 'where they have what might be regarded as a commercial interest in the content of the information. In such cases, information providers must take the same responsibility for the accuracy of information as any other person who publishes information in trade or commerce. This can occur, for example, where a newspaper has agreed to publish a "news" item about a product in exchange for the product supplier taking out paid advertising in that publication.' 97 Seven does not have any commercial interest in the content of the information contained in the Episodes. A general commercial interest in publishing or promoting successful programs or programs which attract viewers is not a relevant commercial interest for the purposes of s 65A ( Advanced Hair Studio at 10-11 per French J; Horwitz at 29 per Wilcox J).
Case: Bond v Barry [2007] FCA 1484
Outcome: cited
In Sun Earth at 282, Wilcox J described matter that would fall within paragraph (a) as matter concerning the applicants, published in connection with the supply of goods or services of the applicants. His Honour did not direct his observations to the argument raised here by Seven, that the supply of goods or services "of that kind" was limited to goods and services of the kind supplied by the prescribed information provider. It is worth noting however that intuitively Wilcox J considered goods or services "of that kind" as not so restricted. In Bond v Barry [2007] FCA 1484 , French J at [41] [42] did not read subparagraph (vi)(A) as restricted to "relevant goods or services". However, it does not seem that his Honour was directed to that possible construction.
Case: Campomar Sociedad, Limitada v Nike International Limited [2000] HCA 12 ; (2000) 202 CLR 45
Outcome: cited
The Episodes must be considered in their entirety ( Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 199 per Gibbs CJ). That involves taking account of content and presentation and also the circumstances in which the Episodes were broadcast ( Johnson &amp; Johnson Pacific Pty Limited v Unilever Australia Limited (No 2) (2006) 70 IPR 574 at [16]). The question for the Court is whether reasonably minded viewers would take from the Episodes the representations which are alleged ( Campomar Sociedad, Limitada v Nike International Limited [2000] HCA 12 ; (2000) 202 CLR 45). There is no dispute that viewers would be unlikely to engage in a detailed analysis of textual or linguistic nuances. The question is one of the overall impression of each Episode.
Case: Global Sportsman PL v Mirror Newspapers Limited (1984) 2 FCR 82
Outcome: cited
The Commission accepts that the mere broadcast or publication of a statement or opinion of Ms Boholt or Ms Forster which does not involve an endorsement, approval or adoption by the Seven Licensees does not constitute conduct in contravention of s 52 of the Act merely because that statement or opinion is erroneous ( Global Sportsman PL v Mirror Newspapers Limited (1984) 2 FCR 82 at 89 90). Adoption does not necessarily occur by the mere publication or broadcast of a statement ( Global Sportsman at 90).