mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Dunstan v Human Rights and Equal Opportunity Commission (No 2) [2005] FCA 1885
Outcome: related
Even if there were power to set aside the orders of 9 February 2007, I would not do so. The original notice of appeal was filed on 30 January 2006 from a judgment delivered on 21 December 2005 ( Dunstan v Human Rights and Equal Opportunity Commission (No 2) [2005] FCA 1885). The case had commenced in 1997 concerning events occurring between 1987 and 1997. The hearing had taken place over six days and involved a large volume of documents. The judgment ran to some 307 paragraphs. Mr Dunstan had appeared for himself. Mr Dunstan was in custody at the time of the hearing and has remained in custody until the hearing of this motion. The original notice of appeal was plainly not in accordance with the Federal Court Rules and was quite inappropriate for the orderly preparation for appeal. That was pointed out to Mr Dunstan at the hearing of a motion to strike it out on 6 November 2006. During the course of that hearing Mr Dunstan spelled out the difficulties that he had by reason of his being in custody as well as being a litigant in person. The respondents had filed an application for security of costs. It was pointed out that there could be no progress in relation to the appeal or in relation to the question of security for costs until a proper notice of appeal was filed. It was also pointed out that individuals were named as respondents and suffered from the delay. The matter was then approaching an anniversary of the date of judgment. The notice of appeal was struck out and the appellant was granted leave to file an amended notice of appeal on or before 2 February 2007. By 9 February 2007, an amended notice of appeal had been filed but still was nowhere near being in proper form. That led to the orders in question. 14 The bases put for reopening fall into three categories. The first is that Mr Dunstan wishes to pursue an application for a retrial based upon fresh evidence as to documents which were not properly disclosed to him on discovery or otherwise in the course of the case. This is based upon what are effectively no more than assertions by Mr Dunstan, supported by a process of reasoning which is not self-explanatory. The support for such an application falls very far short of that which would be required to persuade a court to permit such an issue to be raised at this stage of a case on appeal. To the extent that the issues can be grappled with, counsel for the respondents has pointed to gaps in relation to each of the conclusions sought to be drawn by Mr Dunstan. In any event, there is no proper explanation for delay. 15 The second is to flesh out to a greater extent than hitherto some of the practical difficulties that Mr Dunstan has suffered in preparing matters in custody. However, the general nature of the problems he would suffer has been obvious at all times.
Case: Australian Fisheries Management Authority v PW Adams Pty Ltd (No 2) (1996) 66 FCR 349
Outcome: distinguished
In Australian Fisheries Management Authority v PW Adams Pty Ltd (No 2) (1996) 66 FCR 349 the orders of the Full Court had not been entered. In Fox v Commissioner for Superannuation (No 2) [1999] FCA 372 ; (1999) 88 FCR 416, the order had not been entered and O 35 r 7(1) was available. The "appeal" was the exercise of original jurisdiction.
Case: Copping v ANZ McCaughan Ltd (1997) 67 SASR 525
Outcome: cited
There has been controversy as to whether there is any implied power to set aside an order once entered. In Copping v ANZ McCaughan Ltd (1997) 67 SASR 525 at 565 Lander J said that: "there is no inherent power in the Court to revoke or vary an order once made and perfected by sealing" (Doyle CJ agreed with Lander J.) That topic was discussed in Yevad 147 FCR at 286 288, particularly at [29] [30], but only incidentally as it did not arise on the facts of the case. The Court referred to the decision of the High Court in DJL v Central Authority [2000] HCA 17 ; (2000) 201 CLR 226 where the majority pointed out that there was no decision of the High Court that approved the reopening of final orders after entry ( DJL [2000] HCA 17 ; 201 CLR 226 at [44] ). Kirby J, in dissent, at [100] referred to decisions of this Court said to favour a wider view. The Court in Yevad [2005] FCAFC 263 ; 147 FCR 282 had to consider a case where the notice of motion for reopening of an appeal where final orders had been made was filed before the orders were entered. The Court held that the time of making of the application to reopen was determinative. The issue was considered on the basis that orders had not been entered and so O 35 r 7(1) was engaged ( Yevad [2005] FCAFC 263 ; 147 FCR 282 at [32] [33]). That case can be regarded as being concerned with the power of the Court to vary its orders before entry (cf Pantzer v Wenkart [2007] FCAFC 27 per Black CJ at [7]).
Case: DJL v Central Authority [2000] HCA 17 ; (2000) 201 CLR 226 
Outcome: considered
There has been controversy as to whether there is any implied power to set aside an order once entered. In Copping v ANZ McCaughan Ltd (1997) 67 SASR 525 at 565 Lander J said that: "there is no inherent power in the Court to revoke or vary an order once made and perfected by sealing" (Doyle CJ agreed with Lander J.) That topic was discussed in Yevad 147 FCR at 286 288, particularly at [29] [30], but only incidentally as it did not arise on the facts of the case. The Court referred to the decision of the High Court in DJL v Central Authority [2000] HCA 17 ; (2000) 201 CLR 226 where the majority pointed out that there was no decision of the High Court that approved the reopening of final orders after entry ( DJL [2000] HCA 17 ; 201 CLR 226 at [44] ). Kirby J, in dissent, at [100] referred to decisions of this Court said to favour a wider view. The Court in Yevad [2005] FCAFC 263 ; 147 FCR 282 had to consider a case where the notice of motion for reopening of an appeal where final orders had been made was filed before the orders were entered. The Court held that the time of making of the application to reopen was determinative. The issue was considered on the basis that orders had not been entered and so O 35 r 7(1) was engaged ( Yevad [2005] FCAFC 263 ; 147 FCR 282 at [32] [33]). That case can be regarded as being concerned with the power of the Court to vary its orders before entry (cf Pantzer v Wenkart [2007] FCAFC 27 per Black CJ at [7]). 8 The first of the cases referred to by Kirby J in DJL [2000] HCA 17 ; 201 CLR 226 was Donkin v AGC (Advances) Ltd [1995] FCA 696. The procedural history of that case is a cautionary tale. The orders of the Full Court sought to be set aside had not been entered (see Whitlam J at 11). The application was considered on the assumption that there was power to reopen but the exceptional nature of that power was stressed and the application refused. 9 The issue was touched on in Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 in the course of deciding whether an appeal lay from a single judge's refusal to extend time to institute an appeal. The order had been entered. The Full Court was prepared to assume, without deciding, that there was jurisdiction to set the orders aside and that that jurisdiction could be exercised by a Full Court but dismissed the purported appeal as incompetent. The authorities referred to that were said to support power to reopen an entered order, albeit in very limited circumstances, were Wentworth v Rogers (No 9) (1987) 8 NSWLR 388 per Kirby P at 394 and Haig v Minister Administering the National Parks &amp; Wildlife Act 1974 (1994) 85 LGERA (CA (NSW)) 143 per Kirby P at 153 154. Those references now have to be read in the light of the majority decision in DJL [2000] HCA 17 ; 201 CLR 226.
Case: Donkin v AGC (Advances) Ltd [1995] FCA 696 
Outcome: considered
The first of the cases referred to by Kirby J in DJL [2000] HCA 17 ; 201 CLR 226 was Donkin v AGC (Advances) Ltd [1995] FCA 696. The procedural history of that case is a cautionary tale. The orders of the Full Court sought to be set aside had not been entered (see Whitlam J at 11). The application was considered on the assumption that there was power to reopen but the exceptional nature of that power was stressed and the application refused.
Case: Fox v Commissioner for Superannuation (No 2) [1999] FCA 372 ; (1999) 88 FCR 416
Outcome: distinguished
In Australian Fisheries Management Authority v PW Adams Pty Ltd (No 2) (1996) 66 FCR 349 the orders of the Full Court had not been entered. In Fox v Commissioner for Superannuation (No 2) [1999] FCA 372 ; (1999) 88 FCR 416, the order had not been entered and O 35 r 7(1) was available. The "appeal" was the exercise of original jurisdiction.
Case: Haig v Minister Administering the National Parks &amp; Wildlife Act 1974 (1994) 85 LGERA 143 (CA (NSW))
Outcome: referred to
The issue was touched on in Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 in the course of deciding whether an appeal lay from a single judge's refusal to extend time to institute an appeal. The order had been entered. The Full Court was prepared to assume, without deciding, that there was jurisdiction to set the orders aside and that that jurisdiction could be exercised by a Full Court but dismissed the purported appeal as incompetent. The authorities referred to that were said to support power to reopen an entered order, albeit in very limited circumstances, were Wentworth v Rogers (No 9) (1987) 8 NSWLR 388 per Kirby P at 394 and Haig v Minister Administering the National Parks &amp; Wildlife Act 1974 (1994) 85 LGERA (CA (NSW)) 143 per Kirby P at 153 154. Those references now have to be read in the light of the majority decision in DJL [2000] HCA 17 ; 201 CLR 226.
Case: Pantzer v Wenkart [2007] FCAFC 27 
Outcome: cited
There has been controversy as to whether there is any implied power to set aside an order once entered. In Copping v ANZ McCaughan Ltd (1997) 67 SASR 525 at 565 Lander J said that: "there is no inherent power in the Court to revoke or vary an order once made and perfected by sealing" (Doyle CJ agreed with Lander J.) That topic was discussed in Yevad 147 FCR at 286 288, particularly at [29] [30], but only incidentally as it did not arise on the facts of the case. The Court referred to the decision of the High Court in DJL v Central Authority [2000] HCA 17 ; (2000) 201 CLR 226 where the majority pointed out that there was no decision of the High Court that approved the reopening of final orders after entry ( DJL [2000] HCA 17 ; 201 CLR 226 at [44] ). Kirby J, in dissent, at [100] referred to decisions of this Court said to favour a wider view. The Court in Yevad [2005] FCAFC 263 ; 147 FCR 282 had to consider a case where the notice of motion for reopening of an appeal where final orders had been made was filed before the orders were entered. The Court held that the time of making of the application to reopen was determinative. The issue was considered on the basis that orders had not been entered and so O 35 r 7(1) was engaged ( Yevad [2005] FCAFC 263 ; 147 FCR 282 at [32] [33]). That case can be regarded as being concerned with the power of the Court to vary its orders before entry (cf Pantzer v Wenkart [2007] FCAFC 27 per Black CJ at [7]).
Case: Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 
Outcome: cited
The order in this case is final in the sense that it ended the appeal once and for all. On the other hand, it is not an order made after hearing argument on the merits. I would be inclined to think that it would be regarded as interlocutory if O 35 r 7(2)(c) were applicable (cf Re Luck [2003] HCA 70 ; (2003) 203 ALR 1). 12 Even if applicable, it would be a bold step to utilise s 23 of the Act or an inherent power to cover a situation where s 25 of the Act and O 35 and O 52 of the Federal Court Rules have closely regulated the field. If there is a gap it should be filled by amendment of the Rules.
Case: SZISM v Minister for Immigration and Citizenship [2007] FCAFC 61 
Outcome: cited
Setting aside of a judgment or order is dealt with by O 35 r 7 of the Federal Court Rules . As judgment has been entered, subrule (1) is not applicable. If the Court is exercising the appellate or related jurisdiction under Div 2 of Pt III of the Act, subrule (2) does not apply. It is possible that the phrase 'where it is not exercising its appellate or related jurisdiction under Div 2 of Pt III of the Act' could be given a restricted meaning. On that view, the motion before the Court is not, in itself, the exercise of appellate or related jurisdiction although it relates to an order made in the appellate or related jurisdiction. That is rather strained construction of the rule, and would appear to be contrary to the opinion of the Full Court in SZISM v Minister for Immigration and Citizenship [2007] FCAFC 61 at [17] . No clerical mistake or error arising from an accidental slip or omission has been made, so subrule (3) does not apply. In my opinion, the better view is that the present application is not to vary or terminate the operation of an order but, rather, to set it aside. On that basis, subrule (4) does not apply. Although the authorities discussed in Yevad Products Pty Ltd v Brookfield [2005] FCAFC 263 ; (2005) 147 FCR 282 at [26] [27] give some basis for a wider view, subrule (4) most naturally applies to an order with continuing effect such as an injunction.
Case: Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 
Outcome: discussed
The issue was touched on in Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 in the course of deciding whether an appeal lay from a single judge's refusal to extend time to institute an appeal. The order had been entered. The Full Court was prepared to assume, without deciding, that there was jurisdiction to set the orders aside and that that jurisdiction could be exercised by a Full Court but dismissed the purported appeal as incompetent. The authorities referred to that were said to support power to reopen an entered order, albeit in very limited circumstances, were Wentworth v Rogers (No 9) (1987) 8 NSWLR 388 per Kirby P at 394 and Haig v Minister Administering the National Parks &amp; Wildlife Act 1974 (1994) 85 LGERA (CA (NSW)) 143 per Kirby P at 153 154. Those references now have to be read in the light of the majority decision in DJL [2000] HCA 17 ; 201 CLR 226.
Case: Wentworth v Rogers (No 9) (1987) 8 NSWLR 388 
Outcome: referred to
The issue was touched on in Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 in the course of deciding whether an appeal lay from a single judge's refusal to extend time to institute an appeal. The order had been entered. The Full Court was prepared to assume, without deciding, that there was jurisdiction to set the orders aside and that that jurisdiction could be exercised by a Full Court but dismissed the purported appeal as incompetent. The authorities referred to that were said to support power to reopen an entered order, albeit in very limited circumstances, were Wentworth v Rogers (No 9) (1987) 8 NSWLR 388 per Kirby P at 394 and Haig v Minister Administering the National Parks &amp; Wildlife Act 1974 (1994) 85 LGERA (CA (NSW)) 143 per Kirby P at 153 154. Those references now have to be read in the light of the majority decision in DJL [2000] HCA 17 ; 201 CLR 226.
Case: Yevad Products Pty Ltd v Brookfield [2005] FCAFC 263 ; (2005) 147 FCR 282
Outcome: considered
Setting aside of a judgment or order is dealt with by O 35 r 7 of the Federal Court Rules . As judgment has been entered, subrule (1) is not applicable. If the Court is exercising the appellate or related jurisdiction under Div 2 of Pt III of the Act, subrule (2) does not apply. It is possible that the phrase 'where it is not exercising its appellate or related jurisdiction under Div 2 of Pt III of the Act' could be given a restricted meaning. On that view, the motion before the Court is not, in itself, the exercise of appellate or related jurisdiction although it relates to an order made in the appellate or related jurisdiction. That is rather strained construction of the rule, and would appear to be contrary to the opinion of the Full Court in SZISM v Minister for Immigration and Citizenship [2007] FCAFC 61 at [17] . No clerical mistake or error arising from an accidental slip or omission has been made, so subrule (3) does not apply. In my opinion, the better view is that the present application is not to vary or terminate the operation of an order but, rather, to set it aside. On that basis, subrule (4) does not apply. Although the authorities discussed in Yevad Products Pty Ltd v Brookfield [2005] FCAFC 263 ; (2005) 147 FCR 282 at [26] [27] give some basis for a wider view, subrule (4) most naturally applies to an order with continuing effect such as an injunction. 7 There has been controversy as to whether there is any implied power to set aside an order once entered. In Copping v ANZ McCaughan Ltd (1997) 67 SASR 525 at 565 Lander J said that: "there is no inherent power in the Court to revoke or vary an order once made and perfected by sealing" (Doyle CJ agreed with Lander J.) That topic was discussed in Yevad 147 FCR at 286 288, particularly at [29] [30], but only incidentally as it did not arise on the facts of the case. The Court referred to the decision of the High Court in DJL v Central Authority [2000] HCA 17 ; (2000) 201 CLR 226 where the majority pointed out that there was no decision of the High Court that approved the reopening of final orders after entry ( DJL [2000] HCA 17 ; 201 CLR 226 at [44] ). Kirby J, in dissent, at [100] referred to decisions of this Court said to favour a wider view. The Court in Yevad [2005] FCAFC 263 ; 147 FCR 282 had to consider a case where the notice of motion for reopening of an appeal where final orders had been made was filed before the orders were entered. The Court held that the time of making of the application to reopen was determinative. The issue was considered on the basis that orders had not been entered and so O 35 r 7(1) was engaged ( Yevad [2005] FCAFC 263 ; 147 FCR 282 at [32] [33]). That case can be regarded as being concerned with the power of the Court to vary its orders before entry (cf Pantzer v Wenkart [2007] FCAFC 27 per Black CJ at [7]).
Case: Bushell v Repatriation Commission [1992] HCA 47 ; (1992) 175 CLR 408
Outcome: cited
hypothesis in this context cannot be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable: Byrnes v Repatriation Commission [1993] HCA 51 ; (1993) 177 CLR 564 at 571. Further, in Bushell v Repatriation Commission [1992] HCA 47 ; (1992) 175 CLR 408 at 416 the High Court said: 'The Commission will be satisfied beyond reasonable doubt "that there is no sufficient ground for making [the] determination" if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis. Thus, if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for making the determination.'
Case: Byrnes v Repatriation Commission [1993] HCA 51 ; (1993) 177 CLR 564
Outcome: cited
hypothesis in this context cannot be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable: Byrnes v Repatriation Commission [1993] HCA 51 ; (1993) 177 CLR 564 at 571. Further, in Bushell v Repatriation Commission [1992] HCA 47 ; (1992) 175 CLR 408 at 416 the High Court said: 'The Commission will be satisfied beyond reasonable doubt "that there is no sufficient ground for making [the] determination" if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis. Thus, if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for making the determination.' As made clear by the decisions of the High Court in Byrnes and the Full Court in Deledio , once the decision-maker has determined that the hypothesis raised is reasonable, the decision-maker must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the injury was not war-caused . It is only at this stage that the decision-maker will be required to find facts from the material before it. As the High Court said in Byrnes : 'The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.'
Case: Ergon Energy Incorporation Limited v The Commissioner of Taxation [2006] FCAFC 125
Outcome: cited
relation to the questions of law in the notice of appeal numbered (i), (ii), (vi) and (viii), issues of law arise which I can consider. As pointed out in Ergon Energy Incorporation Limited v The Commissioner of Taxation [2006] FCAFC 125 at [51] a question which is inelegantly drafted may nonetheless be a question of law if its purport is tolerably clear, having regard for example to relevant legislation, relevant authorities, the language of the Tribunal's reasons and the grounds stated in the notice of appeal. Reading these questions of law, the grounds of appeal, and the submissions of the applicant, I understand that the criticism of the findings of the Tribunal may be summarised and restated as follows: 1. The Tribunal did not take into account a relevant consideration, namely the cognitive impairment aspects of post traumatic stress disorder and dysthymic disorder. 2. The Tribunal failed to properly consider whether the incident at Nui Dat was a 'severe stressor' affecting the applicant. 3. The Tribunal made a finding not open on Dr Barry's evidence. 4. The Tribunal took into account irrelevant considerations by adding improper criteria to the SoPs and then found that the applicant did not satisfy those additional criteria. 5. The Tribunal failed to take into account Dr Mulholland's evidence. 6. The Tribunal failed to take into account the passage of time as provided by s 119(1)(h). Ms Bowskill for the respondent has framed her submissions in accordance with these issues, and I propose to consider each of these issues in turn. In his grounds of appeal, the applicant claimed that the Tribunal erred in not taking into account the medical factors which form part of the diagnosis of both post traumatic stress disorder and dysthymic disorder, in particular the cognitive impairment that manifested as the applicant's lack of memory of the events of 9 November 1969.
Case: Fenner v Repatriation Commission [2005] FCA 27
Outcome: cited
in relation to both s 119(1)(g) and s 119(1)(h) I note comments by Mansfield J in Fenner v Repatriation Commission [2005] FCA 27 where his Honour said (at par 29): '...whilst the directions of s 119(1)(f), (g) and (h) are of relevance to the way in which the Tribunal proceeded, they cannot remove from it the responsibility of applying ss 120 and 120A and other relevant provisions of the Act according to the proper terms. I do not think the argument therefore really advances the appellant's case on this appeal.' Those comments apply equally here. In the absence of further submissions explaining how s 119(1)(g) and (h) are of relevance, in my view they add little to the applicant's case. I see no error of law in the decision of the Tribunal in relation to s 119(1)(g) and (h).