mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Evans Deakin Pty Ltd v Sebel Furniture Ltd [2003] FCA 171 
Outcome: discussed
That leads to the next basis of objection, that there has not been laid out a sufficient body of reasoning and assumptions to ground the admissible reception of the evidence. It is necessary to be clear about the legal framework in which I am dealing with this question. I begin with the judgment which I wrote in 2003, not because of any reason other than that it is a convenient starting point. In Evans Deakin Pty Ltd v Sebel Furniture Ltd [2003] FCA 171 , at [68] and following, I said some things about expert evidence. It is important to understand the context of what I wrote, as it is always important to understand the context of the reasons of judges. As can be seen from a discussion of the subject of the objection in that case (and once again with respect to the author of it, who is identified in that case) the expert report was a complete muddle of fact, assertion and opinion that was grounded in common sense only, if that, and with some very minor body of expert opinion sprinkled through over 300 paragraphs. It reflected a trend which is, probably since Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 ; (2001) 52 NSWLR 705 and HG v The Queen [1999] HCA 2 ; (1999) 197 CLR 414 and other cases, somewhat on the wane, of throwing together litigation support reports and tendering them to judges on the basis that the discursive opinions of former auditors and accountants about how damages should be assessed in any particular case should be given weight. That was what I was dealing with: It was that kind of muddled interweaving of argument, fact and assumption with any relevant accounting expertise camouflaged to the point of being unfathomable. This is a somewhat different case. The affidavit of Mr Stokoe does not suffer from that kind of admixture of material, and it was in that context that I said what I did, and from a full reading of HG v The Queen [1999] HCA 2 ; 197 CLR 414, though not a commercial case, it can be seen that it was that very kind of context and problem that the Chief Justice was dealing with in the clear language which he used in that case. 29 Having identified what I was dealing with in Evans Deakin [2003] FCA 171 , it is necessary to say something which was not necessary to say in Evans Deakin [2003] FCA 171. There is a difference, I think, which has been identified between the approach of the Court of Appeal of New South Wales and the Federal Court of Australia about, in effect, the existence of a basis rule for the application under s 79 of the Evidence Act 1995 (Cth).
Case: Hughes Aircraft Systems v Airservices Australia (No 3) (1997) 80 FCR 276
Outcome: cited
In addition to that material, Mr Stokoe seeks to give evidence about what he says would have happened. I will come to the form of the paragraphs in a moment, but let me put one matter to one side. It was initially said that this was not opinion evidence but, rather, evidence of fact in a hypothetical state of affairs, and some reliance was initially placed on cases such as Hughes Aircraft Systems v Airservices Australia (No 3) (1997) 80 FCR 276 and Allstate Life Insurance Co v ANZ Banking Group Ltd (No 28) (1996) 64 FCR 55. That contention was, correctly in my view, not pressed. The evidence is not evidence of a person stating what her or his state of mind would have been had another event occurred, thereby identifying, in a sense, a true potential or nascent state of mind at the time. It is not the identification of a personal reaction to a state of affairs which might arise in either a negligent or fraudulent representation case or a case under s 52 of the Trade Practices Act 1974 (Cth), or a case otherwise dealing with state of mind such as estoppel. Nor is it a case about what an individual has been caused to do. Rather, it is an attempt to say what customers in the market would have done in an alternative world hypothesis. It was put by Mr Catterns in submission that this was not state of mind, but existing market trends. I think the distinction is elusive, or really non-existent.
Case: Black v Minister for Immigration &amp; Citizenship [2007] FCAFC 189 , 99 ALD 1
Outcome: followed
When considering the decision of an administrative tribunal, including the Refugee Review Tribunal, considerable caution must be exercised in construing the findings and reasons set forth in that decision: Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. This approach has since been endorsed: SZBYR v Minister for Immigration &amp; Citizenship [2007] HCA 26 at [25] , [2007] FCA 26 ; 235 ALR 609 at 617 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; Black v Minister for Immigration &amp; Citizenship [2007] FCAFC 189 at [36] , [2007] FCAFC 189 ; 99 ALD 1 at 9.
Case: Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: followed
When considering the decision of an administrative tribunal, including the Refugee Review Tribunal, considerable caution must be exercised in construing the findings and reasons set forth in that decision: Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. This approach has since been endorsed: SZBYR v Minister for Immigration &amp; Citizenship [2007] HCA 26 at [25] , [2007] FCA 26 ; 235 ALR 609 at 617 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; Black v Minister for Immigration &amp; Citizenship [2007] FCAFC 189 at [36] , [2007] FCAFC 189 ; 99 ALD 1 at 9. 13 To construe the reasons provided by the Tribunal as involving an " inconsistency ", it is considered, would be to engage in the " over-zealous judicial review " warned against in Wu Shan Liang. See: Huttner R, Judicial Review of Refugee Decisions: The High Court's Decision in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 3 AJ Admin L 222. The reasons provided by the Tribunal adequately explain the basis upon which it proceeded. 14 The first Ground of Appeal is therefore rejected.
Case: NAHI v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 10
Outcome: followed
The findings as made by the Tribunal and extracted in the second Ground of Appeal are not " information " which could fall within s 424A(1)(a). This Ground of Appeal is more properly characterised as an impermissible challenge to the merits of the decision made by the Tribunal: NAHI v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 10 at [10] per Gray, Tamberlin and Lander JJ.
Case: NBDV v Minister for Immigration &amp; Citizenship [2008] FMCA 309
Outcome: cited
The present decision of the Tribunal, differently constituted, was signed on 25 October 2006 and again affirmed the delegate's decision. On 6 March 2008 the Federal Magistrates Court dismissed an application seeking review of the decision of the reconstituted Tribunal: NBDV v Minister for Immigration &amp; Citizenship [2008] FMCA 309. 5 The Appellant now appeals to this Court. His Notice of Appeal relies upon the same two grounds as were before the Federal Magistrates Court, namely: (i) a failure on the part of the Tribunal to " consider the Applicant's refugee claims in a constructive and articulate manner because of ... contradictory findings it made during the assessment of the claims "; and (ii) a failure to comply with s 424A(1)(a) of the Migration Act 1958 (Cth). For the same reasons as were provided by the learned Federal Magistrate, neither ground is made out and the appeal is dismissed. 6 The Appellant appeared before this Court unrepresented, although he did have the assistance of an interpreter. Previously filed with the Court were written submissions signed by the Appellant and dated 12 May 2008.
Case: SAAP v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 24 , 215 ALR 162
Outcome: followed
Section 424A(1)(a) of the Migration Act 1958 (Cth) provides as follows: Information and invitation given in writing by Tribunal (1) Subject to subsections (2A) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; ... Compliance with this provision is mandatory: SAAP v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 24 , 215 ALR 162 ; SZBYR v Minister for Immigration &amp; Citizenship [2007] HCA 26 at [13] , [2007] FCA 26 ; 235 ALR 609 at 614 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
Case: SZIBR v Minister for Immigration &amp; Citizenship [2008] FCA 502
Outcome: followed
Assuming that the written submissions constituted a previously unexpressed application for leave to amend the Notice of Appeal , the granting of such leave was opposed by the solicitor appearing for the Respondent Minister. Two principal contentions advanced on behalf of the Minister were that: (a) none of the grounds had been advanced before the Federal Magistrates Court; and (b) none of the grounds were formulated in such a manner as to be able to be properly understood. Further, and more specifically, submissions focussed upon the fact that s 91R initially had been raised as a ground before the Federal Magistrates Court and an alternative ground expressly " substituted " in lieu. A party, of course, is generally not entitled to raise new grounds which were deliberately or by inadvertence not put to the court from which an appeal is brought: SZIBR v Minister for Immigration &amp; Citizenship [2008] FCA 502 at [38] per Lander J. The contention that there was a failure to " assess information " is simply denied by the very task undertaken by the Tribunal. That, and other grounds, it was submitted were thus without substance, nor was there any specification as to which of the " findings " of the Tribunal were said to have been made without sufficient evidentiary foundation.
Case: SZICU v Minister for Immigration &amp; Citizenship [2008] FCAFC 1 , 100 ALD 1
Outcome: followed
At best, it is a contention that the Appellant was entitled to be informed of the findings as proposed to be made by the Tribunal and to be afforded a further opportunity to be heard. The Appellant was not entitled to any such further opportunity. Concurrence is expressed with the reliance by the Federal Magistrate upon SZBYR v Minister for Immigration &amp; Citizenship [2007] HCA 26 at [18] , [2007] FCA 26 ; 235 ALR 609 at 616 and his Honour's conclusion that such findings do not fall within s 424A(1)(a). In SZBYR , Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ held: [18] ... if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of para (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [[2004] FCAFC 123 , 206 ALR 471 at 477] that the word "information". does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc. If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself. See also: SZICU v Minister for Immigration &amp; Citizenship [2008] FCAFC 1 at [24] [25], 100 ALD 1 at 6 7 per Tamberlin, Finn and Besanko JJ; SZLBA v Minister for Immigration &amp; Citizenship [2008] FCA 484 at [23] [24] per Cowdroy J.
Case: VUAX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 158
Outcome: followed
To entertain the written submissions filed by the Appellant, leave to amend the Notice of Appeal would necessarily have been required. That leave was refused. The submissions as advanced on behalf of the Respondent Minister should be accepted. None of the grounds, it is considered, have merit: VUAX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 158. That, it should be noted, was the decision communicated to the Appellant during the course of the hearing of the appeal. 27 The orders of the Court are: 1. The Appeal be dismissed. 2. The Appellant to pay the costs of the First Respondent of and incidental to the appeal. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 28 May 2008 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: A Nanson (Australian Government Solicitor) Date of Hearing: 21 May 2008 Date of Judgment: 28 May 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/778.html
Case: Comcare v Mather and Anor (1995) 37 ALD 463
Outcome: referred to
The courts have recognised that employment can extend beyond the mere fulfilment of daily duties: see Favelle Mort Ltd v Murray; Henderson v The Commissioner of Railways (Western Australia) [1937] HCA 67 ; (1937) 58 CLR 281 ; Commonwealth v Oliver [1962] HCA 38 ; (1962) 107 CLR 353; Hatzimanolis v ANI Corporation Ltd [1992] HCA 21 ; (1992) 173 CLR 473; Humphrey Earl Ltd v Speechley [1951] HCA 75 ; (1951) 84 CLR 126. Particularly with respect to employment in the armed forces, the courts have recognised that employment entails more than simply those duties which are the subject of commands and orders, and includes matters ancillary or incidental to those duties: see Comcare v Mather and Anor (1995) 37 ALD 463; Roncevich ; Commonwealth of Australia v Carter .
Case: Commonwealth of Australia v Carter (1965) 7 FLR 223
Outcome: referred to
The applicant submits that the Tribunal should properly have considered that living in barracks was itself an authorised or expected activity, despite the fact that the applicant was not required to live there. The applicant submits that performance of duties as service personnel includes a wider range of matters than for civilian employment, and extends to ancillary duties or matters incidental to the employment: see Military Rehabilitation &amp; Compensation Commission v Wall [2005] FCAFC 127 at [20] [29]; Commonwealth of Australia v Carter (1965) 7 FLR 223 at 227; Commonwealth v Wright [1956] HCA 79 ; (1956) 96 CLR 536 per Dixon CJ at 546; McTiernan J at 547-8; Webb J at 550-1. 22 The courts have recognised that employment can extend beyond the mere fulfilment of daily duties: see Favelle Mort Ltd v Murray; Henderson v The Commissioner of Railways (Western Australia) [1937] HCA 67 ; (1937) 58 CLR 281 ; Commonwealth v Oliver [1962] HCA 38 ; (1962) 107 CLR 353; Hatzimanolis v ANI Corporation Ltd [1992] HCA 21 ; (1992) 173 CLR 473; Humphrey Earl Ltd v Speechley [1951] HCA 75 ; (1951) 84 CLR 126. Particularly with respect to employment in the armed forces, the courts have recognised that employment entails more than simply those duties which are the subject of commands and orders, and includes matters ancillary or incidental to those duties: see Comcare v Mather and Anor (1995) 37 ALD 463; Roncevich ; Commonwealth of Australia v Carter .
Case: Commonwealth v Oliver [1962] HCA 38 ; (1962) 107 CLR 353
Outcome: referred to
The courts have recognised that employment can extend beyond the mere fulfilment of daily duties: see Favelle Mort Ltd v Murray; Henderson v The Commissioner of Railways (Western Australia) [1937] HCA 67 ; (1937) 58 CLR 281 ; Commonwealth v Oliver [1962] HCA 38 ; (1962) 107 CLR 353; Hatzimanolis v ANI Corporation Ltd [1992] HCA 21 ; (1992) 173 CLR 473; Humphrey Earl Ltd v Speechley [1951] HCA 75 ; (1951) 84 CLR 126. Particularly with respect to employment in the armed forces, the courts have recognised that employment entails more than simply those duties which are the subject of commands and orders, and includes matters ancillary or incidental to those duties: see Comcare v Mather and Anor (1995) 37 ALD 463; Roncevich ; Commonwealth of Australia v Carter .
Case: Commonwealth v Wright [1956] HCA 79 ; (1956) 96 CLR 536
Outcome: referred to
The applicant submits that the Tribunal should properly have considered that living in barracks was itself an authorised or expected activity, despite the fact that the applicant was not required to live there. The applicant submits that performance of duties as service personnel includes a wider range of matters than for civilian employment, and extends to ancillary duties or matters incidental to the employment: see Military Rehabilitation &amp; Compensation Commission v Wall [2005] FCAFC 127 at [20] [29]; Commonwealth of Australia v Carter (1965) 7 FLR 223 at 227; Commonwealth v Wright [1956] HCA 79 ; (1956) 96 CLR 536 per Dixon CJ at 546; McTiernan J at 547-8; Webb J at 550-1.
Case: Favelle Mort Ltd v Murray [1976] HCA 13 ; (1976) 133 CLR 580
Outcome: referred to
In relation to its second submission, the applicant says that the Tribunal should have considered the cause as a question of exposure: see Favelle Mort Ltd v Murray [1976] HCA 13 ; (1976) 133 CLR 580 at 584, 601; Re Tully and Comcare (unreported, Administrative Appeals Tribunal, 4 October 1996). 22 The courts have recognised that employment can extend beyond the mere fulfilment of daily duties: see Favelle Mort Ltd v Murray; Henderson v The Commissioner of Railways (Western Australia) [1937] HCA 67 ; (1937) 58 CLR 281 ; Commonwealth v Oliver [1962] HCA 38 ; (1962) 107 CLR 353; Hatzimanolis v ANI Corporation Ltd [1992] HCA 21 ; (1992) 173 CLR 473; Humphrey Earl Ltd v Speechley [1951] HCA 75 ; (1951) 84 CLR 126. Particularly with respect to employment in the armed forces, the courts have recognised that employment entails more than simply those duties which are the subject of commands and orders, and includes matters ancillary or incidental to those duties: see Comcare v Mather and Anor (1995) 37 ALD 463; Roncevich ; Commonwealth of Australia v Carter .
Case: Hatzimanolis v ANI Corporation Ltd [1992] HCA 21 ; (1992) 173 CLR 473
Outcome: referred to
The courts have recognised that employment can extend beyond the mere fulfilment of daily duties: see Favelle Mort Ltd v Murray; Henderson v The Commissioner of Railways (Western Australia) [1937] HCA 67 ; (1937) 58 CLR 281 ; Commonwealth v Oliver [1962] HCA 38 ; (1962) 107 CLR 353; Hatzimanolis v ANI Corporation Ltd [1992] HCA 21 ; (1992) 173 CLR 473; Humphrey Earl Ltd v Speechley [1951] HCA 75 ; (1951) 84 CLR 126. Particularly with respect to employment in the armed forces, the courts have recognised that employment entails more than simply those duties which are the subject of commands and orders, and includes matters ancillary or incidental to those duties: see Comcare v Mather and Anor (1995) 37 ALD 463; Roncevich ; Commonwealth of Australia v Carter .
Case: Henderson v The Commissioner of Railways (Western Australia) [1937] HCA 67 ; (1937) 58 CLR 281
Outcome: referred to
The courts have recognised that employment can extend beyond the mere fulfilment of daily duties: see Favelle Mort Ltd v Murray; Henderson v The Commissioner of Railways (Western Australia) [1937] HCA 67 ; (1937) 58 CLR 281 ; Commonwealth v Oliver [1962] HCA 38 ; (1962) 107 CLR 353; Hatzimanolis v ANI Corporation Ltd [1992] HCA 21 ; (1992) 173 CLR 473; Humphrey Earl Ltd v Speechley [1951] HCA 75 ; (1951) 84 CLR 126. Particularly with respect to employment in the armed forces, the courts have recognised that employment entails more than simply those duties which are the subject of commands and orders, and includes matters ancillary or incidental to those duties: see Comcare v Mather and Anor (1995) 37 ALD 463; Roncevich ; Commonwealth of Australia v Carter .
Case: Humphrey Earl Ltd v Speechley [1951] HCA 75 ; (1951) 84 CLR 126
Outcome: referred to
The courts have recognised that employment can extend beyond the mere fulfilment of daily duties: see Favelle Mort Ltd v Murray; Henderson v The Commissioner of Railways (Western Australia) [1937] HCA 67 ; (1937) 58 CLR 281 ; Commonwealth v Oliver [1962] HCA 38 ; (1962) 107 CLR 353; Hatzimanolis v ANI Corporation Ltd [1992] HCA 21 ; (1992) 173 CLR 473; Humphrey Earl Ltd v Speechley [1951] HCA 75 ; (1951) 84 CLR 126. Particularly with respect to employment in the armed forces, the courts have recognised that employment entails more than simply those duties which are the subject of commands and orders, and includes matters ancillary or incidental to those duties: see Comcare v Mather and Anor (1995) 37 ALD 463; Roncevich ; Commonwealth of Australia v Carter .
Case: Military Compensation and Rehabilitation Commission v Wall [2004] FCA 1711
Outcome: followed
In Military Rehabilitation and Compensation Commission v Wall , a recent decision of the Full Court of the Federal Court of Australia, the question to be determined was whether the respondent's employment in the armed forces contributed to the development of his smoking habit (which in turn contributed to his medical condition). The majority upheld the decision of the Tribunal, adopting the reasoning of Hely J at first instance. The finding of the Tribunal was based upon a factual finding that the respondent had commenced smoking in part because of the circumstances of his employment. Hely J rejected the submission that there was a necessary distinction between incidents of life in the military and the performance of duties as a member of the Defence Force: see the judgment of Hely J in Military Compensation and Rehabilitation Commission v Wall [2004] FCA 1711 at [47] - [48] .
Case: Military Rehabilitation &amp; Compensation Commission v Wall [2005] FCAFC 127
Outcome: followed
The applicant submits that the Tribunal should properly have considered that living in barracks was itself an authorised or expected activity, despite the fact that the applicant was not required to live there. The applicant submits that performance of duties as service personnel includes a wider range of matters than for civilian employment, and extends to ancillary duties or matters incidental to the employment: see Military Rehabilitation &amp; Compensation Commission v Wall [2005] FCAFC 127 at [20] [29]; Commonwealth of Australia v Carter (1965) 7 FLR 223 at 227; Commonwealth v Wright [1956] HCA 79 ; (1956) 96 CLR 536 per Dixon CJ at 546; McTiernan J at 547-8; Webb J at 550-1. 23 However, diseases may be contracted by an employee during the period of his service in a temporal sense which are not contributed to by employment. To establish an entitlement to compensation under the SRC Act there must be a causal connection between the employment and the disease or injury sustained by the employee: see Re Tully and Comcare; Military Rehabilitation &amp; Compensation Commission v Wall; Roncevich ; Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323.