mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Telstra Corporation Ltd v Commonwealth [2008] HCA 7 ; (2008) 234 CLR 210
Outcome: cited
ACCC also submits that it is irrelevant, if it be the fact, that call diversion itself could have been declared a "declared service". ACCC points to the breadth of the chapeau to s 152CP(2) and to the examples found in paras (d) and (e) of that subsection. ACCC calls in aid of its construction of s 152CP the special nature of Div 8 arbitrations as exercises that are to take place in the public interest, not just the private interests of Telstra and the access seeker (ACCC refers to Telstra Corporation Ltd v Commonwealth [2008] HCA 7 ; (2008) 234 CLR 210 at [32] ff). Consideration 157 I have concluded that s 152CP(2) authorised ACCC to include the provision for the charge to be paid "in respect of call diversion as part of a ULLS connection" in the Optus, Chime and Primus ULLS (Connections) FDs. 158 First, however, I will briefly refer to s 152CP(1).
Case: Visa International v Reserve Bank of Australia [2003] FCA 977 ; (2003) 131 FCR 300
Outcome: cited
Telstra contends that s 152DB(1)(b) had the effect, in the circumstances of the present case, of requiring ACCC to inquire into and investigate a particular matter. Telstra submits that this statutory duty may be no less than the duty developed at common law in connection with Wednesbury unreasonableness, and refers to Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170 per Wilcox J; Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273 ; Minister for Immigration and Citizenship v Le [2007] FCA 1318 ; (2007) 164 FCR 151 at [60] - [79] ; Visa International v Reserve Bank of Australia [2003] FCA 977 ; (2003) 131 FCR 300 at [623] - [627] . That common law rule is that a failure by a decision maker to obtain "centrally relevant" information on a critical issue which the decision maker knows or ought reasonably to know is readily available, may be so unreasonable that no reasonable decision maker would have proceeded to make the decision without making an inquiry with a view to obtaining the information, in default of which the decision will be an invalid exercise of power.
Case: Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5 ; (2008) 242 ALR 383
Outcome: cited
Optus submits that while an error of principle in arriving at a value may amount to an error of law, the cases in which that has been held to be so have concerned statutory valuation exercises, and in any event the approach should be treated with caution: Optus cites Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5 ; (2008) 233 CLR 259 ( Walker Corporation ) at 269-272. Optus submits that in any event Telstra has failed to identify the "principle" which it says ACCC ignored or misapplied. Optus distinguishes the particular substantive principles considered in Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426 and the related authorities cited by Telstra (see [219] above). In Walker Corporation the High Court (at 270) cautioned against importing into one case general "principles" derived from other cases that arose in different statutory contexts. Optus submits that Telstra has not identified in Pt XIC of the Act or in the common law a source of any "principles" that control the arbitral powers conferred on ACCC by Div 8 of that Part.
Case: Ward v Repatriation Commission (1997) 46 ALD 454
Outcome: followed
The 2007 LSS Pricing Principles did not expressly revoke the 2002 LSS Pricing Principles. It is well established, however, that the making of a later statutory instrument that is inconsistent with an earlier one revokes the earlier one to the extent of the inconsistency: see, for example Ward v Repatriation Commission (1997) 46 ALD 454 at 461 and the authorities there referred to, as well as Caloundra City Council v Netstar Pty Ltd [2008] 1 Qd R 258 at [8]-[14].
Case: Applicant WAEE v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 184 ; (2003) 75 ALD 630
Outcome: cited
Australia Post accepts that the Tribunal does not need to cover every aspect of every factual matter. It submits, however, that the Tribunal failed to consider submissions of substance which, if accepted, were capable of affecting the outcome of the case. Such a failure constitutes an error of law, as does the failure to consider a claim or the integer of a claim ( Applicant WAEE v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 184 ; (2003) 75 ALD 630 ; Casarotto v Australian Postal Corporation [1989] FCA 116 ; (1989) 86 ALR 399 at 403 per Hill J citing Dennis Willcox Pty Ltd v FCT (1988) 79 ALR 267 at 276 per Jenkinson J). Australia Post relies on the silence of the Tribunal's reasons in respect of the various specific matters raised. A failure to advert to the content of submissions does not of itself necessarily mean that the matter was not considered ( Tobacco Institute of Australia Ltd v National Health and Medical Research Council (1996) 71 FCR 265 at 279 per Finn J). If the particular submission did not go to the substance of the decision or would not have affected the outcome, failure to advert to it in the reasons does not mean that the matter was not considered and does not give rise to error of law.
Case: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Outcome: followed
A decision made under an enactment is invalid if there is a total absence of evidence to satisfy an essential element of the decision. The question whether there is any evidence of a particular fact is a question of law ( Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-356 per Mason CJ). 92 Section 44(1) of the AAT Act provides that: (1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding. 93 Section 5 of the ADJR Act relevantly provides that: (1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds: (a) that a breach of the rules of natural justice occurred in connection with the making of the decision; ... (e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made; (f) that the decision involved an error of law, whether or not the error appears on the record of the decision; ... 95 Section 5(1)(f) of the ADJR Act contains a stipulation in the word "involved" that the error be material in contributing to the decision so that but for the error, the decision might have been different ( Bond at 353 354 per Mason CJ, East Australia Pipeline Pty Ltd v ACCC [2007] HCA 44 ; (2007) 239 ALR 50 at [71] per Gummow &amp; Hayne JJ). As discussed, the error of the Tribunal in respect of the second reviewable decision is such an error of law. 101 Mr Sellick submits that where an appeal lies under s 44 of the AAT Act, applications brought under s 5 of the ADJR Act should be dismissed unless the subject of the appeal is a decision going to practice and procedure. He relies on Duong v Australian Postal Corporation (2005) 41 AAR 288 at [12] where Edmonds J dismissed an ADJR Act application where the Tribunal decision did not go to practice and procedure. His Honour followed Tuite v Administrative Appeals Tribunal [1993] FCA 71 ; (1993) 40 FCR 483 where Davies J had held that, as s 44 of the AAT Act provides a specific procedure for the granting of relief by the Court in respect of decisions of the AAT, that procedure should be adopted and applications brought under s 5 of the ADJR Act, where an appeal under s 44 of the AAT Act is available, should be dismissed as of course (at 484). Justice Davies expressed the view at 484 that questions of law as provided for in s 44 of the AAT Act encompass grounds enunciated in s 5 of the ADJR Act. Duong was decided prior to Etheridge , a decision of the Full Court and Tuite was decided prior to Birdseye, which discussed the difficulties in the framing of questions of law . Further, the ADJR Act is not only available for matters of practice and procedure ( Bond at 337 per Mason CJ; Griffith University v Tang [2005] HCA 7 ; (2005) 221 CLR 99 at [89] [90] per Gummow, Callinan and Heydon JJ).
Case: Australian Postal Corporation v Barry [2006] 44 AAR 186
Outcome: cited
The medical opinion accepted by the Tribunal, given some two years after the claimed injury, was that the additional conditions were aggravated by Mr Sellick's work duties. The Tribunal does not explain how the claimed pain and injury of 2002 which had resolved resulted in the additional conditions which, in turn, were the reason for Mr Sellick's ongoing pain. The 2004 diagnoses were made well after the injury he sustained in 2002. Mr Sellick has not demonstrated how they fulfil the claim requirements of the SRC Act. It is impossible to understand from the Tribunal's reasons the reasoning process that led it to conclude that Australia Post continued to be liable for a claimed injury that had resolved and where the claimed symptoms of that injury had resolved. The Tribunal accepted that the additional conditions were caused by or rendered symptomatic by Mr Sellick's work duties but did not explain the connection with the specific claim. Failure to consider issues critical to the validity of its decision is a failure to address the correct legal question which is an error of law ( Australian Postal Corporation v Barry [2006] 44 AAR 186 at [23] [24]). There is an error of law where the Tribunal's reasoning is impossible to understand ( Lang at [55]). 99 Justice Branson pointed out at [27] and [30] in Etheridge that judicial review under s 5(1) of the ADJR Act is also available for Tribunal decisions under the SRC Act where such an application is made. In Brown v Repatriation Commission [2006] FCA 914 Branson J referred at [8] to the fact that the ADJR Act provided an alternative source of jurisdiction to the AAT Act. In Barry Branson J made orders under s 5 of the ADJR Act for errors of law when it was not clear that the Court's jurisdiction under s 44(1) of the AAT Act was properly invoked. Mr Sellick argues that her Honour's comments in Etheridge and Brown are obiter and that Ms Barry was unrepresented so that no submissions on jurisdiction under the ADJR Act were made.
Case: Australian Telecommunications Corp v Lambroglou (1990) 12 AAR 515
Outcome: cited
In Birdseye , the appeal was brought in reliance on s 44 of the AAT Act. Justices Branson and Stone expressed approval of comments made by Gummow J in TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 at 178 where his Honour pointed out that where an appeal lies "on a question of law" the subject matter of the appeal is the question or questions of law stated ( Birdseye at [11]; cf Etheridge at [13]). Their Honours also approved the comments of Ryan J in Australian Telecommunications Corp v Lambroglou (1990) 12 AAR 515 at 527 namely that ' If the question, properly analysed, is not a question of law no amount of formulary like "erred in law" or "was open as a matter of law" can make it into a question of law ' ( Birdseye at [13] [15]; cf Etheridge at [15]). Accordingly, a mixed question of fact and law is not a question of law within s 44(1) of the AAT Act ( Birdseye at [18]).
Case: Brown v Repatriation Commission [2006] FCA 914
Outcome: considered
Justice Branson pointed out at [27] and [30] in Etheridge that judicial review under s 5(1) of the ADJR Act is also available for Tribunal decisions under the SRC Act where such an application is made. In Brown v Repatriation Commission [2006] FCA 914 Branson J referred at [8] to the fact that the ADJR Act provided an alternative source of jurisdiction to the AAT Act. In Barry Branson J made orders under s 5 of the ADJR Act for errors of law when it was not clear that the Court's jurisdiction under s 44(1) of the AAT Act was properly invoked. Mr Sellick argues that her Honour's comments in Etheridge and Brown are obiter and that Ms Barry was unrepresented so that no submissions on jurisdiction under the ADJR Act were made.
Case: Casarotto v Australian Postal Corporation [1989] FCA 116 ; (1989) 86 ALR 399
Outcome: cited
Australia Post accepts that the Tribunal does not need to cover every aspect of every factual matter. It submits, however, that the Tribunal failed to consider submissions of substance which, if accepted, were capable of affecting the outcome of the case. Such a failure constitutes an error of law, as does the failure to consider a claim or the integer of a claim ( Applicant WAEE v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 184 ; (2003) 75 ALD 630 ; Casarotto v Australian Postal Corporation [1989] FCA 116 ; (1989) 86 ALR 399 at 403 per Hill J citing Dennis Willcox Pty Ltd v FCT (1988) 79 ALR 267 at 276 per Jenkinson J). Australia Post relies on the silence of the Tribunal's reasons in respect of the various specific matters raised. A failure to advert to the content of submissions does not of itself necessarily mean that the matter was not considered ( Tobacco Institute of Australia Ltd v National Health and Medical Research Council (1996) 71 FCR 265 at 279 per Finn J). If the particular submission did not go to the substance of the decision or would not have affected the outcome, failure to advert to it in the reasons does not mean that the matter was not considered and does not give rise to error of law.
Case: Chowdhary v Bayne [1999] FCA 41 ; (1999) 29 AAR 100
Outcome: cited
Several decisions of the Court have followed Tuite (eg Peczalski v Comcare (1999) 58 ALD 697 per Finn J ; Chowdhary v Bayne [1999] FCA 41 ; (1999) 29 AAR 100 per Finn J ; Percerep v Minister for Immigration &amp; Multicultural Affairs [1998] FCA 1088 ; (1998) 86 FCR 483 per Weinberg J) but Mr Sellick did not point to any case where that course was taken since Etheridge .
Case: Comcare Australia v Rowe [2002] FCA 1034 ; (2002) 35 AAR 410
Outcome: cited
The failure to consider at all the way in which a party puts its case is an error of law ( Ma v FCT (1992) 37 FCR 225 at 231 per Burchett J). The failure to consider submissions of substance which, if accepted, are capable of affecting the outcome of a case is an error of law ( Comcare Australia v Rowe [2002] FCA 1034 ; (2002) 35 AAR 410 at [12] per Merkel J; Casarotto at 403 per Hill J; Applicant WAEE ).
Case: Dennis Willcox Pty Ltd v FCT (1988) 79 ALR 267
Outcome: cited
Australia Post accepts that the Tribunal does not need to cover every aspect of every factual matter. It submits, however, that the Tribunal failed to consider submissions of substance which, if accepted, were capable of affecting the outcome of the case. Such a failure constitutes an error of law, as does the failure to consider a claim or the integer of a claim ( Applicant WAEE v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 184 ; (2003) 75 ALD 630 ; Casarotto v Australian Postal Corporation [1989] FCA 116 ; (1989) 86 ALR 399 at 403 per Hill J citing Dennis Willcox Pty Ltd v FCT (1988) 79 ALR 267 at 276 per Jenkinson J). Australia Post relies on the silence of the Tribunal's reasons in respect of the various specific matters raised. A failure to advert to the content of submissions does not of itself necessarily mean that the matter was not considered ( Tobacco Institute of Australia Ltd v National Health and Medical Research Council (1996) 71 FCR 265 at 279 per Finn J). If the particular submission did not go to the substance of the decision or would not have affected the outcome, failure to advert to it in the reasons does not mean that the matter was not considered and does not give rise to error of law.
Case: Duong v Australian Postal Corporation (2005) 41 AAR 288
Outcome: considered
Mr Sellick submits that where an appeal lies under s 44 of the AAT Act, applications brought under s 5 of the ADJR Act should be dismissed unless the subject of the appeal is a decision going to practice and procedure. He relies on Duong v Australian Postal Corporation (2005) 41 AAR 288 at [12] where Edmonds J dismissed an ADJR Act application where the Tribunal decision did not go to practice and procedure. His Honour followed Tuite v Administrative Appeals Tribunal [1993] FCA 71 ; (1993) 40 FCR 483 where Davies J had held that, as s 44 of the AAT Act provides a specific procedure for the granting of relief by the Court in respect of decisions of the AAT, that procedure should be adopted and applications brought under s 5 of the ADJR Act, where an appeal under s 44 of the AAT Act is available, should be dismissed as of course (at 484). Justice Davies expressed the view at 484 that questions of law as provided for in s 44 of the AAT Act encompass grounds enunciated in s 5 of the ADJR Act. Duong was decided prior to Etheridge , a decision of the Full Court and Tuite was decided prior to Birdseye, which discussed the difficulties in the framing of questions of law . Further, the ADJR Act is not only available for matters of practice and procedure ( Bond at 337 per Mason CJ; Griffith University v Tang [2005] HCA 7 ; (2005) 221 CLR 99 at [89] [90] per Gummow, Callinan and Heydon JJ). 103 Australia Post submits that Duong and Tuite should not be followed. It submits that s 10 of the ADJR Act makes it plain that the rights conferred by that Act are in addition to the rights otherwise conferred to review decisions. Mr Sellick submits that, if there is concurrent jurisdiction, the Court should exercise in discretion so that the grounds of review under the ADJR Act are no more extensive than questions of law available under the AAT Act.
Case: East Australia Pipeline Pty Ltd v ACCC [2007] HCA 44 ; (2007) 239 ALR 50
Outcome: cited
Section 5(1)(f) of the ADJR Act contains a stipulation in the word "involved" that the error be material in contributing to the decision so that but for the error, the decision might have been different ( Bond at 353 354 per Mason CJ, East Australia Pipeline Pty Ltd v ACCC [2007] HCA 44 ; (2007) 239 ALR 50 at [71] per Gummow &amp; Hayne JJ). As discussed, the error of the Tribunal in respect of the second reviewable decision is such an error of law.
Case: Griffith University v Tang [2005] HCA 7 ; (2005) 221 CLR 99
Outcome: cited
Australia Post contends that the Tribunal forgot or overlooked the fact that Dr Burke and Dr McGill gave oral evidence, did not therefore deal with that evidence and accordingly failed to consider the case put by Australia Post. The evidence was referred to in submissions to the Tribunal. The Tribunal made no reference to the oral evidence of Dr Burke or Dr McGill. Australia Post submits that the Tribunal may have forgotten about the evidence in view of the time that elapsed between the evidence and the decision. Australia Post says that this gives rise to jurisdictional error or denial of natural justice because of the risk that the capacity of the Tribunal for competent evaluation of the evidence was diminished by the timeframe and the delay between the evidence and the decision ( NAIS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 77 ; (2005) 228 CLR 470 at [10] - [11] per Gleeson CJ, [106] per Kirby J, [172] per Callinan and Heydon JJ). This would also give rise to an error of law. 101 Mr Sellick submits that where an appeal lies under s 44 of the AAT Act, applications brought under s 5 of the ADJR Act should be dismissed unless the subject of the appeal is a decision going to practice and procedure. He relies on Duong v Australian Postal Corporation (2005) 41 AAR 288 at [12] where Edmonds J dismissed an ADJR Act application where the Tribunal decision did not go to practice and procedure. His Honour followed Tuite v Administrative Appeals Tribunal [1993] FCA 71 ; (1993) 40 FCR 483 where Davies J had held that, as s 44 of the AAT Act provides a specific procedure for the granting of relief by the Court in respect of decisions of the AAT, that procedure should be adopted and applications brought under s 5 of the ADJR Act, where an appeal under s 44 of the AAT Act is available, should be dismissed as of course (at 484). Justice Davies expressed the view at 484 that questions of law as provided for in s 44 of the AAT Act encompass grounds enunciated in s 5 of the ADJR Act. Duong was decided prior to Etheridge , a decision of the Full Court and Tuite was decided prior to Birdseye, which discussed the difficulties in the framing of questions of law . Further, the ADJR Act is not only available for matters of practice and procedure ( Bond at 337 per Mason CJ; Griffith University v Tang [2005] HCA 7 ; (2005) 221 CLR 99 at [89] [90] per Gummow, Callinan and Heydon JJ).
Case: Hannaford v Telstra Corp Ltd (2005) 88 ALD 702
Outcome: cited
"Injury" is not defined in the SRC Act in terms of its cause but in terms of an injury suffered by an employee arising out of, or in the course of, the employee's employment. The Tribunal has authority to decide whether there was liability for a particular injury or an aggravation of a disease. The Tribunal is not bound by Australia Post's assessment of what constitutes the injury ( Hannaford v Telstra Corp Ltd (2005) 88 ALD 702). Section 7(4) of the SRC Act relevantly provides that an employee is taken to have sustained an injury, being a disease or an aggravation of a disease, on the day when he or she first sought medical treatment for the disease or aggravation. Mr Sellick does not suggest that anything turns on the difference in time between the date of the injury and the seeking of medical advice. Section 7(6) relevantly provides that incapacity for work or impairment of an employee shall be taken to have resulted from a disease or an aggravation of a disease if, but for that disease or aggravation, the incapacity or impairment would not have occurred or would have commenced at a significantly later time or would have been significantly less in extent. 51 The only claim made by Mr Sellick in the approved claim form in relation to the upper body was for shoulder pain. Mr Sellick described his injury as ' pain in right shoulder '. Australia Post accepted liability for soft tissue injury of the shoulder girdle musculature. The Tribunal considered whether it had jurisdiction to take into account the effects of aggravation of the degenerative condition of the spine and ligamentous strain in deciding whether Mr Sellick had ceased to suffer the effects of the injury suffered in October 2002 and the preceding months. It expressed itself satisfied that the injury in respect of which Mr Sellick claimed compensation was not limited to the soft tissue injury of the right shoulder. It noted at [17] that the medical certificates ' at the time, or very soon after, the claim form was lodged, referred to strained muscles of the right upper back, upper back pain and interscapular stabilizer strain ' (at [63]). 52 The Tribunal also referred to Mr Sellick's history of informing some of the medical practitioners who examined him, including Dr Chew, that he suffered pain in the upper back, including the area of the mid-thoracic spine. The Tribunal concluded at [52] that: ...in the period of several months prior to and including October 2002 Mr Sellick suffered a soft tissue injury to his shoulder but that at present he does not suffer the effect of this injury . [emphasis added]