mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Deledio v Repatriation Commission (1997) 47 ALD 261
Outcome: referred to
Section 120A(3) of the VE Act relevantly provides that a hypothesis connecting the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force a SoP or a determination by the Commission that upholds the hypothesis. The second basis (a determination by the Commission) is not relevant to the circumstances of this case. That is, the hypothesis raised (that is, pointed to) by the material will only be reasonable if the hypothesis is consistent with, or fits the template of, a SoP: see Repatriation Commission v Deledio (1998) 83 FCR 82 at 96, endorsing the observations of Heerey J at first instance: Deledio v Repatriation Commission (1997) 47 ALD 261 at 275.
Case: Dunlop v Repatriation Commission [2003] FCAFC 201
Outcome: cited
However, the Deledio methodology is subject to at least three important qualifications. First, the methodology is not to be applied mechanistically or to operate in substitution for the requirements of the VE Act : Hill v Repatriation Commission (2005) 218 ALR 251 at [35] and [85]; Hardman v Repatriation Commission [2005] FCAFC 83 at [32] and Dunlop v Repatriation Commission [2003] FCAFC 201 at [33] .
Case: East v Repatriation Commission (1987) 16 FCR 517
Outcome: cited
As the language of s 120(3) makes clear, and as the High Court emphasised in Repatriation Commission v Owens (1996) 70 ALJR 904 at 904, the question whether a reasonable hypothesis is raised is to be determined on a consideration of the whole of the material before the decision-maker: see also Repatriation Commission v Bey (1997) 79 FCR 364 at 367. A reasonable hypothesis within s 120(3) of the VE Act is a hypothesis that is pointed to by the material before the decision-maker, and not merely left open (or not excluded) by that material. A hypothesis that is not pointed to, but is a matter of assertion or is merely left open by the material, is not a reasonable hypothesis: see East v Repatriation Commission (1987) 16 FCR 517 at 532-533. See also Repatriation Commission v Bey (1997) 79 FCR 364 at 366-367, 372-373; Bull v Repatriation Commission (2001) 188 ALR 756 at [18] and [41].
Case: Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1998] UKHL 5 ; [1999] 2 AC 22
Outcome: cited
The notion of "causing" has been said to be one of common sense: Environment Agency (formerly National Rivers Authority) v Empress Car Co. (Abertillery) Ltd [1998] UKHL 5 ; [1999] 2 AC 22 at 29 (per Lord Hoffman). But whatever may be conveyed by the reference to " common sense ", answers to questions of causation will differ according to the purpose for which the question is asked: Travel Compensation Fund v Tambree [2005] HCA 69 ; (2005) 224 CLR 627 at [45] ; Allianz Australia Insurance Limited v GSF Australia Pty Ltd [2005] HCA 26 ; (2005) 221 CLR 568 at [96] - [97] ; Chappel v Hart [1998] HCA 55 ; (1998) 195 CLR 232 at [63] - [64] (per Gummow J) and at [122] (per Hayne J).
Case: Hardman v Repatriation Commission [2005] FCAFC 83
Outcome: cited
However, the Deledio methodology is subject to at least three important qualifications. First, the methodology is not to be applied mechanistically or to operate in substitution for the requirements of the VE Act : Hill v Repatriation Commission (2005) 218 ALR 251 at [35] and [85]; Hardman v Repatriation Commission [2005] FCAFC 83 at [32] and Dunlop v Repatriation Commission [2003] FCAFC 201 at [33] .
Case: Hill v Repatriation Commission (2005) 218 ALR 251
Outcome: cited
However, the Deledio methodology is subject to at least three important qualifications. First, the methodology is not to be applied mechanistically or to operate in substitution for the requirements of the VE Act : Hill v Repatriation Commission (2005) 218 ALR 251 at [35] and [85]; Hardman v Repatriation Commission [2005] FCAFC 83 at [32] and Dunlop v Repatriation Commission [2003] FCAFC 201 at [33] .
Case: McKenna v Repatriation Commission [1999] FCA 323 ; (1999) 86 FCR 144
Outcome: applied
The Commission contends that the Tribunal's reasons for decision contain two errors of law and therefore, on appeal, raise two questions of law: (1) the proper construction of ss 120 , 120A (3) and 120A (4) of the VE Act and, in particular, the meaning of the phrase " kind of death " in s 120A(4) of the VE Act; (2) even if the Tribunal had properly construed ss 120 , 120A (3) and 120A (4) of the VE Act and, in particular, the meaning of the phrase " kind of death " in s 120A(4) of the VE Act in finding that the kind of death met by the veteran was " death by road accident ", whether the Tribunal erred in failing to determine the application of pension by applying the reasoning of Goldberg J in Repatriation Commission v McKenna (1998) 28 AAR 7 at 15-16 which was endorsed by the Full Court in McKenna v Repatriation Commission [1999] FCA 323 ; (1999) 86 FCR 144 at [20] . (I will describe this as the " McKenna principle"). 44 Even if I am wrong in my view of the proper construction of ss 120 , 120A (3) and 120A (4) of the VE Act and, in particular, the meaning of the phrase " kind of death " in s 120A(4) of the VE Act , it is common ground that the Tribunal proceeded to consider the application for pension contrary to the decision of the Full Court in McKenna v Repatriation Commission [1999] FCA 323 ; (1999) 86 FCR 144 at [20] .
Case: Repatriation Commission v Bey (1997) 79 FCR 364
Outcome: referred to
As the language of s 120(3) makes clear, and as the High Court emphasised in Repatriation Commission v Owens (1996) 70 ALJR 904 at 904, the question whether a reasonable hypothesis is raised is to be determined on a consideration of the whole of the material before the decision-maker: see also Repatriation Commission v Bey (1997) 79 FCR 364 at 367. A reasonable hypothesis within s 120(3) of the VE Act is a hypothesis that is pointed to by the material before the decision-maker, and not merely left open (or not excluded) by that material. A hypothesis that is not pointed to, but is a matter of assertion or is merely left open by the material, is not a reasonable hypothesis: see East v Repatriation Commission (1987) 16 FCR 517 at 532-533. See also Repatriation Commission v Bey (1997) 79 FCR 364 at 366-367, 372-373; Bull v Repatriation Commission (2001) 188 ALR 756 at [18] and [41].
Case: Repatriation Commission v Codd [2005] FCA 888
Outcome: referred to
On 30 March 2001, Mrs Codd made a third claim for a war widow's pension under the Repatriation Act. A delegate of the Commission decided that the veteran's death was not war-caused. On 10 October 2002, the VRB affirmed the Commission's decision that the death of the veteran was not war-caused. On 19 December 2002, pursuant to s 175 of the VE Act , Mrs Codd applied to the Tribunal for review of the VRB's decision of 10 October 2002. On 20 August 2004, the Tribunal decided that the death of the veteran was war-caused. On 30 June 2005, the Federal Court allowed an appeal by the Commission from the decision of the Tribunal, on the basis that material before the Tribunal could not support the Tribunal's diagnosis of generalised anxiety disorder ("GAD") and that if the veteran had been suffering from GAD, the Tribunal had failed to consider whether a hypothesis of connection between that disease and the veteran's operational service was upheld by the relevant Statement of Principles ("SoP"): Repatriation Commission v Codd [2005] FCA 888 at [46] - [47] and [49]. The Court remitted the matter to the Tribunal to be heard and determined according to law. 8 On 24 October 2006, the Tribunal decided again, on different grounds, that the death of the veteran was war-caused. On 20 November 2006, the Commission appealed from the Tribunal's decision. It is the Tribunal's decision of 24 October 2006 which is the subject of this appeal. 9 Section 13(1) of the VE Act renders the Commonwealth liable to pay a pension to the dependents of a veteran whose death was war-caused. Section 8(1) of the VE Act sets out the circumstances in which a veteran's death is taken to be war-caused. They include if: "(b) the death of the veteran arose out of, or was attributable to , any eligible war service rendered by the veteran; ... (d) in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service; ..." (Emphasis added.)
Case: Repatriation Commission v McKenna (1998) 28 AAR 7
Outcome: applied
The Commission contends that the Tribunal's reasons for decision contain two errors of law and therefore, on appeal, raise two questions of law: (1) the proper construction of ss 120 , 120A (3) and 120A (4) of the VE Act and, in particular, the meaning of the phrase " kind of death " in s 120A(4) of the VE Act; (2) even if the Tribunal had properly construed ss 120 , 120A (3) and 120A (4) of the VE Act and, in particular, the meaning of the phrase " kind of death " in s 120A(4) of the VE Act in finding that the kind of death met by the veteran was " death by road accident ", whether the Tribunal erred in failing to determine the application of pension by applying the reasoning of Goldberg J in Repatriation Commission v McKenna (1998) 28 AAR 7 at 15-16 which was endorsed by the Full Court in McKenna v Repatriation Commission [1999] FCA 323 ; (1999) 86 FCR 144 at [20] . (I will describe this as the " McKenna principle").
Case: Repatriation Commission v Owens (1996) 70 ALJR 904
Outcome: referred to
As the language of s 120(3) makes clear, and as the High Court emphasised in Repatriation Commission v Owens (1996) 70 ALJR 904 at 904, the question whether a reasonable hypothesis is raised is to be determined on a consideration of the whole of the material before the decision-maker: see also Repatriation Commission v Bey (1997) 79 FCR 364 at 367. A reasonable hypothesis within s 120(3) of the VE Act is a hypothesis that is pointed to by the material before the decision-maker, and not merely left open (or not excluded) by that material. A hypothesis that is not pointed to, but is a matter of assertion or is merely left open by the material, is not a reasonable hypothesis: see East v Repatriation Commission (1987) 16 FCR 517 at 532-533. See also Repatriation Commission v Bey (1997) 79 FCR 364 at 366-367, 372-373; Bull v Repatriation Commission (2001) 188 ALR 756 at [18] and [41].
Case: Repatriation Commission v Towns (2003) 38 AAR 77
Outcome: distinguished
Despite the respondent's submissions to the contrary, the decision of Tamberlin J in Repatriation Commission v Towns (2003) 38 AAR 77 does not assist the respondent's case. The decision must be understood having regard to the matters that were in issue in the case. In Towns , there was consensus that there was no relevant SoP and so it was unnecessary to make any analysis of the kind of death met by the veteran: at [28]. It would be wrong, then, to take what was said in that case as supporting or establishing the general proposition that the expression " kind of death " was not concerned with medical causation where the medical cause or causes can be identified. Likewise, the decision of Branson J in Brown v Repatriation Commission [2006] FCA 914 makes plain that the decision in that case was not the occasion to provide general and definitive guidance about the meaning of the expression.
Case: Travel Compensation Fund v Tambree [2005] HCA 69 ; (2005) 224 CLR 627
Outcome: cited
The notion of "causing" has been said to be one of common sense: Environment Agency (formerly National Rivers Authority) v Empress Car Co. (Abertillery) Ltd [1998] UKHL 5 ; [1999] 2 AC 22 at 29 (per Lord Hoffman). But whatever may be conveyed by the reference to " common sense ", answers to questions of causation will differ according to the purpose for which the question is asked: Travel Compensation Fund v Tambree [2005] HCA 69 ; (2005) 224 CLR 627 at [45] ; Allianz Australia Insurance Limited v GSF Australia Pty Ltd [2005] HCA 26 ; (2005) 221 CLR 568 at [96] - [97] ; Chappel v Hart [1998] HCA 55 ; (1998) 195 CLR 232 at [63] - [64] (per Gummow J) and at [122] (per Hayne J).
Case: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140 ; (2003) 128 FCR 359
Outcome: referred to
In any event, it may be that the statement of principle to which I have referred in SCAR is not correct. A Full Court has pointed out that the statement may not be correct because it is based upon a misconstruction of a decision of Hely J in Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140 ; (2003) 128 FCR 359; see NALQ v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 121 at [34] .
Case: Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908
Outcome: referred to
Branson J preferred the approach adopted by Lindgren and Hely JJ in NAQF and Wu respectively, to that of French and Gray JJ in WAJR and Moradian; see SZBDF at [17]. Bennett J found it unnecessary to decide the question in Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908 at [46] [49].
Case: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553
Outcome: referred to
An alternative approach to the determination of the content of the Tribunal's obligation to give notice of the rescheduled hearing was suggested by counsel for the Minister. He submitted that its content would be governed by the statutory obligation of the Tribunal under s 425 of the Act to provide a "real and meaningful" invitation to attend the hearing; see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553 (" SCAR") at [37]. 43 In any event, it may be that the statement of principle to which I have referred in SCAR is not correct. A Full Court has pointed out that the statement may not be correct because it is based upon a misconstruction of a decision of Hely J in Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140 ; (2003) 128 FCR 359; see NALQ v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 121 at [34] .
Case: Moradian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1590 ; (2004) 142 FCR 170
Outcome: referred to
As Branson J pointed out in SZBDF at [12], there is a division of opinion within the Court as to the ambit of s 422B(1). One view is that the phrase "in relation to the matters it deals with" imports a limitation upon the extent to which Div 4 is to be read as a code and doe not, in effect, completely exclude common law rules of natural justice; see WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 ( WAJR") at [47] [59] and Moradian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1590 ; (2004) 142 FCR 170 (" Moradian") at [35] [37]. 31 Branson J preferred the approach adopted by Lindgren and Hely JJ in NAQF and Wu respectively, to that of French and Gray JJ in WAJR and Moradian; see SZBDF at [17]. Bennett J found it unnecessary to decide the question in Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908 at [46] [49].
Case: NALQ v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 121
Outcome: referred to
In any event, it may be that the statement of principle to which I have referred in SCAR is not correct. A Full Court has pointed out that the statement may not be correct because it is based upon a misconstruction of a decision of Hely J in Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140 ; (2003) 128 FCR 359; see NALQ v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 121 at [34] .
Case: NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 356
Outcome: referred to
The other view is that s422B applies to a larger subject matter than the exact text of the requirements stated in Div 4; see NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 356 (" NAQF") at [50] [87] and Wu v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1249 ; (2003) 133 FCR 221 (" Wu") at [21] [23]; see also VXDC v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 1388 ; (2005) 146 FCR 562 ("VXDC") at [30] [31] per Heerey J. 31 Branson J preferred the approach adopted by Lindgren and Hely JJ in NAQF and Wu respectively, to that of French and Gray JJ in WAJR and Moradian; see SZBDF at [17]. Bennett J found it unnecessary to decide the question in Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908 at [46] [49].
Case: NBBU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 767
Outcome: referred to
Support for the view that a distinction is to be drawn between the situation where the Tribunal itself reschedules the hearing date and when it does so at the applicant's request is found in the decisions of Sackville J in NBBU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 767 and Barnes FM in SZBAZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 790 (" SZBAZ") . Conti J referred to both of these authorities.
Case: Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah [2001] HCA 22 ; (2001) 206 CLR 57
Outcome: referred to
In VXDC, Heerey J was of the view that an examination of the explanatory statement of the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) and the second reading speech made it plain that the intention of the 2002 amendment was to reverse the effect of the decision of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah [2001] HCA 22 ; (2001) 206 CLR 57; it was also to provide a comprehensive code for procedural fairness which excluded the common law natural justice hearing rule.
Case: SAAP v Minister for Immigration, Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162
Outcome: referred to
As the appellant was unrepresented, the Federal Magistrate also considered whether any issue arose in relation to s 424A of the Act , in light of the High Court's decision in SAAP v Minister for Immigration, Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162. He concluded that there had been no breach of s 424A. 19 The relevant sections of the Act and the Regulations are as follows:- " Section 425 Tribunal must invite applicant to appear (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. (2) Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or (c) subsection 424C(1) or (2) applies to the applicant. (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal. Section 425A Notice of invitation to appear (1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear. (2) The notice must be given to the applicant: (a) except where paragraph (b) applies--by one of the methods specified in section 441A ; or (b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person. (3) The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period. (4) The notice must contain a statement of the effect of section 426A." 20 Regulation 4.35D, entitled 'Prescribed periods - notice to appear before Tribunal ([Migration] Act , s 425A) ', provides as follows: "For subsection 425A (3) of the Act , the prescribed period: (a) if the applicant is a detainee -- starts when the applicant receives notice of the invitation to appear before the Tribunal and ends at the end of 7 days after the day on which the notice is received; or (b) in any other case -- starts when the applicant receives notice of the invitation to appear before the Tribunal and ends at the end of 14 days after the day on which the notice is received. Note 1 If the Tribunal gives a person a document by a method specified in section 441A of the Act , the person is taken to have received the document at the time specified in section 441C of the Act in respect of the method. Note 2 A document given to a person in immigration detention is given in the manner specified in regulation 5.02."
Case: SZATG v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 596
Outcome: cited
Section 422B applies to applications to the Tribunal for review of a decision filed after 4 July 2002; see SZATG v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 596 at [31]; see also SZBDF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1493 (" SZBDF") at [11]. It therefore applies to the present case.
Case: SZBAZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 790
Outcome: referred to
Support for the view that a distinction is to be drawn between the situation where the Tribunal itself reschedules the hearing date and when it does so at the applicant's request is found in the decisions of Sackville J in NBBU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 767 and Barnes FM in SZBAZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 790 (" SZBAZ") . Conti J referred to both of these authorities. 24 The rationale for the distinction is that where the Tribunal itself reschedules the hearing it may be thought to have issued a fresh invitation. However, where the applicant requests a postponement, s 425A does not apply because the section is limited to the situation where an applicant "is invited to appear before the Tribunal"; see SZBAZ at [28] [29], quoted by Conti J at [21]. 25 The conclusion reached by Conti J that s 425A(3) does not apply where an applicant requests a rescheduling is supported by the language of s 425A. It is also consistent with the detailed statutory provisions of Division 4 of Part 7 of the Act , as was observed by Barnes FM in SZBAZ . 26 It is to be noted that s 426A appears to draw a distinction between an invitation to appear before the Tribunal as required by s 425(1) and the power of the Tribunal to reschedule the hearing; see s 426A(2). This might be thought to provide further support for the view that s 425A is limited to the initial invitation but it does not explain the distinction between a rescheduling by the Tribunal itself rather than at the request of an applicant. 27 The difficulty which seems to me to arise on the approach adopted by Conti J is whether the common law rules of nature justice govern the requirement of notice of a hearing which is rescheduled at the applicant's request. As His Honour correctly observed, this must be subject to the provisions of s 422B which provides that Division 4 of Part 7 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.