mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Securities &amp; Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290
Outcome: cited
The questions of law must be stated with precision: Australian Securities &amp; Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290. Order 53B rule 2 of the Federal Court of Australia Rules 1979 (Cth) provides that O 53, with any necessary changes, applies for appeals from the SCT. Order 53 relates to appeals from the Administrative Appeals Tribunal (the Tribunal). In particular, O 53 r 3(2)(b) provides that the notice of appeal shall state the question or questions of law to be raised on the appeal. 44 It is the respondent's contention that this notice of appeal does not comply with O 53 r 3(2)(b) but, more particularly, does not raise any question of law.
Case: Birdseye v Australian Securities &amp; Investments Commission [2003] FCAFC 232 ; (2003) 76 ALD 321
Outcome: cited
In TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 , Gummow J, speaking of the corresponding provision in the AAT Act, said at 178: Section 44 of the AAT Act is expressed in narrower terms than the old s 196 of the Tax Act. This provided for appeals from the Board of Review which "involved" a question of law. The result was that if some question of law was involved, the whole of the decision of the Board was open to review, not merely the question of law ... This no longer will be the case with appeals brought to this court under s 44 of the AAT Act. The existence of a question of law is now not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself. (Footnotes omitted.) That statement was approved by the Full Court in Birdseye v Australian Securities &amp; Investments Commission [2003] FCAFC 232 ; (2003) 76 ALD 321.
Case: Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36 ; (1996) 186 CLR 389
Outcome: considered
In Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322 ; (1993) 43 FCR 280 , the Full Court of the Federal Court sought to identify from previous decisions what might amount to a question of law. That decision was considered by the High Court in Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36 ; (1996) 186 CLR 389. The Court said at 395: Some recent Federal Court decisions have attempted to distil the numerous authorities on the problem into a number of general propositions. Thus in Pozzolanic, after referring to many cases, the Court identified five general propositions: "1. The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law. 2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact. 3. The meaning of a technical legal term is a question of law. 4. The effect or construction of a term whose meaning or interpretation is established is a question of law. 5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law." (Footnotes omitted.)
Case: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322 ; (1993) 43 FCR 280
Outcome: cited
In Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322 ; (1993) 43 FCR 280 , the Full Court of the Federal Court sought to identify from previous decisions what might amount to a question of law. That decision was considered by the High Court in Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36 ; (1996) 186 CLR 389. The Court said at 395: Some recent Federal Court decisions have attempted to distil the numerous authorities on the problem into a number of general propositions. Thus in Pozzolanic, after referring to many cases, the Court identified five general propositions: "1. The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law. 2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact. 3. The meaning of a technical legal term is a question of law. 4. The effect or construction of a term whose meaning or interpretation is established is a question of law. 5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law." (Footnotes omitted.)
Case: Davis v Rio Tinto Staff Superannuation Fund Pty Ltd [2002] FCAFC 376 ; (2002) 118 FCR 170
Outcome: followed
In my opinion, that is not correct. The procedure under s 37 of the Act is to review the decisions made by the trustee and insurer. The SCT needs to determine whether those decisions were correct when they were made. In Davis v Rio Tinto Staff Superannuation Fund Pty Ltd [2002] FCAFC 376 ; (2002) 118 FCR 170 at 173-174 at [15], Heerey J said: Under s 37 of the Act the function of the Tribunal was to determine whether the decision of the Trustee was fair and reasonable in the circumstances: see National Mutual Life Association of Autralia Ltd v Campbell [2000] FCA 852 ; (2000) 99 FCR 562 and the cases therein cited. Counsel for the applicant submitted that the relevant time to consider whether the applicant was TPD within the meaning of the contract of insurance was 19 February 1999, that being six months from the date on which he last worked. I do not agree. What the Tribunal had to review and either affirm, vary or set aside was the decision of the Trustee made on 23 December 1999 and subsequently reviewed and affirmed by the Trustee on 1 June 2000 and 28 June 2000. Although not explicitly stated, it would seem that the Tribunal regarded its task as reviewing the decision of the Trustee as at the last mentioned date, an approach I think was correct. The system of review under the Act is to be distinguished from claims made by an insured under a policy: cf Giles v National Mutual Life Association of Australasia Ltd (1986) 4 ANZ Ins Cas 60-751. See also Samaras v Australian Retirement Fund Pty Ltd [2007] FCA 1323 per Gordon J at [18].
Case: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Outcome: cited
An appeal lies to this Court pursuant to s 46 of the Act on a question of law: s 46(1). The appeal is, of course, an application in the original jurisdiction of the Court: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 581.
Case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: cited
A failure to take into account particular facts will only raise a question of law if the Tribunal was bound to take that fact or that matter into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24. The applicant complained that the SCT should not have taken into account the video surveillance evidence because it was in digital format. He said that the video might have been altered, cropped, edited or corrupted in its conversion to the digital format. He also complained that the SCT failed to take into consideration that the medical report from Dr BC was based on a short term medical treatment. It failed to take into account that Dr BC was a general practitioner, not a specialist. It failed to take into account any and all pain levels experienced in the activities seen on the video footage. He said that the SCT could not know what medication he had taken on that day or prior to being able to drive his vehicle. The SCT failed to take into account the disadvantage that he had been placed in by receiving his disability support pension. He said also that the SCT should not have taken into account the report of the private investigators. They were not signed and therefore they were inadmissible. 56 The Tribunal's powers, for complaints under s 14, are identified in s 37. In particular, the Tribunal is obliged to affirm a decision in relation to a complainant if satisfied that the decision was fair and reasonable in the circumstances. Section 37(6) of the Act provides: (6) The Tribunal must affirm a decision referred to under subsection (3) if it is satisfied that the decision, in its operation in relation to: (a) the complainant; and (b) so far as concerns a complaint regarding the payment of a death benefit--any person (other than the complainant, a trustee, insurer or decision-maker) who: (i) has become a party to the complaint; and (ii) has an interest in the death benefit or claims to be, or to be entitled to benefits through, a person having an interest in the death benefit; was fair and reasonable in the circumstances. 57 The Tribunal is not compelled or obliged to take into account any particular consideration in determining whether or not a decision was fair and reasonable.
Case: SAAP v Minister of Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 228 CLR 294
Outcome: cited
The SCT has been appropriately joined as the third respondent to the appeal: SAAP v Minister of Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 228 CLR 294 at [43] , [91], [153] and [180]. It has filed a submitting appearance which is also appropriate: The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13.
Case: The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13
Outcome: cited
The SCT has been appropriately joined as the third respondent to the appeal: SAAP v Minister of Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 228 CLR 294 at [43] , [91], [153] and [180]. It has filed a submitting appearance which is also appropriate: The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13.
Case: TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175
Outcome: considered
In TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 , Gummow J, speaking of the corresponding provision in the AAT Act, said at 178: Section 44 of the AAT Act is expressed in narrower terms than the old s 196 of the Tax Act. This provided for appeals from the Board of Review which "involved" a question of law. The result was that if some question of law was involved, the whole of the decision of the Board was open to review, not merely the question of law ... This no longer will be the case with appeals brought to this court under s 44 of the AAT Act. The existence of a question of law is now not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself. (Footnotes omitted.) That statement was approved by the Full Court in Birdseye v Australian Securities &amp; Investments Commission [2003] FCAFC 232 ; (2003) 76 ALD 321.
Case: Samaras v Australian Retirement Fund Pty Ltd [2007] FCA 1323
Outcome: followed
In my opinion, that is not correct. The procedure under s 37 of the Act is to review the decisions made by the trustee and insurer. The SCT needs to determine whether those decisions were correct when they were made. In Davis v Rio Tinto Staff Superannuation Fund Pty Ltd [2002] FCAFC 376 ; (2002) 118 FCR 170 at 173-174 at [15], Heerey J said: Under s 37 of the Act the function of the Tribunal was to determine whether the decision of the Trustee was fair and reasonable in the circumstances: see National Mutual Life Association of Autralia Ltd v Campbell [2000] FCA 852 ; (2000) 99 FCR 562 and the cases therein cited. Counsel for the applicant submitted that the relevant time to consider whether the applicant was TPD within the meaning of the contract of insurance was 19 February 1999, that being six months from the date on which he last worked. I do not agree. What the Tribunal had to review and either affirm, vary or set aside was the decision of the Trustee made on 23 December 1999 and subsequently reviewed and affirmed by the Trustee on 1 June 2000 and 28 June 2000. Although not explicitly stated, it would seem that the Tribunal regarded its task as reviewing the decision of the Trustee as at the last mentioned date, an approach I think was correct. The system of review under the Act is to be distinguished from claims made by an insured under a policy: cf Giles v National Mutual Life Association of Australasia Ltd (1986) 4 ANZ Ins Cas 60-751. See also Samaras v Australian Retirement Fund Pty Ltd [2007] FCA 1323 per Gordon J at [18].
Case: Powerflex Services Pty Ltd v Data Access Corp (1996) 67 FCR 65
Outcome: applied
The Court has the power to grant a stay in its discretion pursuant to O 52 r 17 of the Federal Courts Rules. The principles governing applications for a stay are settled. It is sufficient for the respondent to demonstrate that there is a reason or it is an appropriate case to warrant the exercise of the discretion: see Powerflex Services Pty Ltd v Data Access Corp (1996) 67 FCR 65 at 66. 6 The prima facie assumption is that the judgment appealed from is correct and the Court should not deprive a litigant of the benefit of a judgment in its favour. Counsel for the Union relied on this and opposed the grant of a stay upon the basis, first, that the appeal disclosed no arguable ground of appeal, alternatively, the prospects of success were weak; secondly, Ms Chester said all but three of the employees had indicated that they would repay the money if called upon to do so pursuant to a judgment of the Court on appeal; and, thirdly, the evidence for Prestige did not rise above speculation as to the difficulty of recovery. 7 According to counsel for Prestige, it proposed to challenge the judgment under appeal on two bases, first, that as a matter of construction the Victorian Arts Centre is not a premise of a state government instrumentality for the purposes of the relevant industrial awards in the ordinary sense of those words; and, secondly, as understood in context, having regard to relevant history, it was not such an instrumentality.
Case: Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 1483 ; (2005) 147 FCR 394
Outcome: cited
Mr Hutley draws attention to the remarks of Branson, Lindgren and Finkelstein JJ in Sharman Networks Ltd and Others v Universal Music Australia Pty Ltd and Others [2006] FCAFC 178 ; (2006) 155 FCR 291 at [8] . Their Honours recognised that industry associations whose members' interests may be affected, directly or indirectly, by the outcome of litigation, may be an appropriate class of interveners: see also Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 1483 ; (2005) 147 FCR 394 at [22] - [24] .
Case: P. &amp; C. Cantarella Pty Ltd v Egg Marketing Board for the State of New South Wales [1973] 2 NSWLR 366
Outcome: referred to
Moreover, I do not consider that ASIC will be influenced by tactical or forensic considerations which would be necessary to be off-set by submissions made by AFMA. ASIC's duty as a litigant is analogous to that of the executive branch of Government. As to this, Mahoney J said in P. &amp; C. Cantarella Pty Ltd v Egg Marketing Board for the State of New South Wales [1973] 2 NSWLR 366 at 383: "it is the duty of the executive to assist the Court to arrive at the proper and just result". 14 However, against the possibility that in the course of the proceedings I should come to the view that AFMA's submissions would provide a useful and different perspective, I will reserve liberty to it to renew this application. 15 I have no doubt that AFMA will closely observe the conduct of the proceedings so that if, at or toward the close of the hearing, it wishes to renew its application it should be well placed to do so.
Case: Sharman Networks Ltd and Ors v Universal Music Australia Pty Ltd and Ors [2006] FCAFC 178 ; [2006] 155 FCR 291
Outcome: referred to
Mr Hutley draws attention to the remarks of Branson, Lindgren and Finkelstein JJ in Sharman Networks Ltd and Others v Universal Music Australia Pty Ltd and Others [2006] FCAFC 178 ; (2006) 155 FCR 291 at [8] . Their Honours recognised that industry associations whose members' interests may be affected, directly or indirectly, by the outcome of litigation, may be an appropriate class of interveners: see also Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 1483 ; (2005) 147 FCR 394 at [22] - [24] .
Case: Wilson v Manna Hill Mining Co Pty Ltd (2004) 51 ASCR 404
Outcome: cited
If those criteria are made out, the Court has discretion to give leave to intervene on appropriate terms: see Wilson v Manna Hill Mining Co Pty Ltd (2004) 51 ASCR 404 at [104]. The basis upon which AFMA wishes to intervene is quite limited. It seeks to make oral and written submissions in closing address on the following issues raised in the statement of claim: &#8226; the interpretation, scope and operation of s 912A(1)(aa) of the Corporations Act 2001 (Cth) and related regulations, and the scope of any fiduciary duties that may arise at general law in respect of services provided by a financial services licensee to its client; and &#8226; the effect of any disclosure provided by a financial services licensee to its client upon obligations that may arise under s 912A(1)(aa) of the Corporations Act , and upon any fiduciary obligations that may arise at general law. 3 AFMA is an industry association for participants in the financial markets industry. It would not be an overstatement to describe it as a lobby group for the industry. Its role is to represent the interests of its members and advocate what it describes in its evidence as a "sensible and proportionate regulation of the wholesale banking and financial markets". 4 It is an association made up of 141 direct and indirect participants ('Members'). Citigroup is a Full Member and has a representative on the AFMA board. ASIC is an Affiliate Member.
Case: SBRF v Minister for Immigration and Citizenship [2008] FMCA 163
Outcome: affirmed
This is set out conveniently in [3] to [17] of the decision of the Federal Magistrate whose orders are the subject of the present appeal: SBRF v Minister for Immigration and Citizenship [2008] FMCA 163. The following is an adaptation of those paragraphs. I should indicate at the outset that the Tribunal has made three decisions in relation to review applications of the appellant. Though it is technically inaccurate, I will for ease in exposition differentiate between what I will call the "first Tribunal", "the second Tribunal" and the "third Tribunal". 4 The Tribunal decision, the subject of the present judicial review proceedings, is in fact the third decision of the Tribunal in relation to the appellant. The first review was conducted in 2000. The appellant was unsuccessful, both before the delegate of the Minister and before the Tribunal at that time and for reasons of lack of credibility in each instance. In the claim advanced by the appellant in 2000 he and his wife used false identities. His claimed entitlement to a protection visa and to refugee status under the Refugee Convention arose from a fear of his being persecuted by Serbs, arising out of what he said was his forced conscription into the Kosovo Liberation Army. 5 Notwithstanding the lack of success of their application, in 2001 the Minister exercised his discretion under s 417(1) of the Act and provided the appellant and his wife with three year protection visas on humanitarian grounds.
Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152
Outcome: cited
As the High Court indicated in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 at [33] to [35]: [33] The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited "to give evidence and present arguments relating to the issues arising in relation to the decision under review ". The reference to "the issues arising in relation to the decision under review" is important. [34] Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language "arising in relation to the decision under review" is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise ... all the powers and discretions conferred by the Act on the original decision-maker (here, the minister's delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons. [35] The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But ... unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant. (Emphasis in original.) 19 As I have already noted, the particular decision that was under review by the third Tribunal was the decision of the second delegate who said that he found the appellant was not credible in those claims originally advanced under his false identity and that he made no claims in relation to fear of persecution in Albania under his actual name. To reiterate the Albanian blood feud claims were only raised for the first time before the second Tribunal whose decision was quashed by Brown FM. 20 There has been recent discussion and some level of disagreement between judges of this Court on the operation of s 425(1) where a Tribunal decision is quashed and the matter remitted to the Tribunal (whether or not constituted by the same member) for determination. For present purposes I would merely note the following.
Case: SZEPZ v Minister for Immigration and Multicultural Affairs (2006) 159 FCR 291
Outcome: cited
(i) Until the Tribunal makes a valid decision on the review that has been initiated by a valid application under s 414, it has a duty to perform that particular review: SZEPZ v Minister for Immigration and Multicultural Affairs (2006) 159 FCR 291 at [39]. 23 (iii) When a decision on a particular review is set aside, it is a decision of the Tribunal, not of the person constituting it, that is set aside: Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11 ; (2003) 215 CLR 518 at [31] . Correspondingly, a redetermination of the particular review is a redetermination by the Tribunal, not by the particular member who happens to constitute the Tribunal for the purpose: SZEPZ at [38]. 24 (iv) As was said by the Full Court in SZEPZ at [39]: An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the materials that were obtained when the decision that had been set aside was made. To the extent that Cowdroy J is properly to be taken as suggesting to the contrary in SZHLM v Minister for Immigration and Citizenship [2007] FCA 1100 ; (2007) 98 ALD 567 at [34] , his Honour's view ought not be followed in my view. 25 (v) As it is the Tribunal which continues to conduct the particular review consequent upon a remitter, the steps taken by the Tribunal to discharge its statutory obligations under s 424A and s 425 in the conduct of that review prior to the making of an invalid decision may, but need not necessarily, be a sufficient discharge of those statutory obligations for the purpose of making a subsequent and valid decision on the review: SZEPZ (on s 424A); SZILQ (on s 425); and also NBKM v Minister for Immigration and Citizenship [2007] FCA 1413. Thus, a s 424A notice or a s 425 invitation given prior to the Tribunal's invalid decision may, or may not, suffice without a further notice or invitation depending upon whether on the remitter the circumstances then are such that s 424A or s 425 does or does not require, according to their respective terms, a fresh notice or invitation.