mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Pearson v Naydler [1977] 1 WLR 899
Outcome: referred to
Whether the applicant is in substance a plaintiff or the proceedings are defensive in the sense of directly resisting proceedings already brought or seeking to halt the respondent's self-help procedures." The present circumstances 5 It is common ground between the parties that Horizon's liabilities considerably exceed its assets and that it would be unable to meet a costs order in favour of the respondents. The respondents accept that impecuniosity, of itself, is not a sufficient reason to order security ( Cowell v Taylor (1885) 31 Ch D 34 at 38) however the inability of an applicant to meet the costs of a successful respondent not only "opens the jurisdiction for the giving of security" but is also a significant consideration in the exercise of the Court's discretion: Pearson v Naydler [1977] 1 WLR 899 at 906; Rosenfield Nominees v Bain &amp; Co (1988) 14 ACLR 467 at 470. 6 The respondents submit, however, that there is an additional reason why Horizon's impecuniosity should weigh heavily in the Court's consideration of their application. They allege that it is the result of calculated and deliberate conduct directed towards frustrating the processes of the Court. The respondents submit that statements made by officers of Horizon, indicating an intention to strip the company of its assets so that there would be no assets available to meet claims made by the respondents, invite this conclusion. 7 In support of their application the respondents relied on affidavits made by employees of GlobeCast, namely: Nitish Gawde, Direct to Home Broadcast Manager and Mike Lattin Chief Executive Officer. Both gentlemen gave evidence of comments made by Mr Seymon Pinchuk, a director of Horizon at meetings on 27 April and 19 May 2006, in the course of discussions about the disputed invoices. In response to demands made by GlobeCast for Horizon to pay the amounts in the disputed invoices, Mr Pinchuk is alleged to have threatened to "wind up" or "bankrupt" or "close down" the company so that no one would be paid. They also claimed that Mr Pinchuk referred to Horizon as "just a $2 company" or said that he would "make it" a $2 company.
Case: Rosenfield Nominees v Bain &amp; Co (1988) 14 ACLR 467
Outcome: referred to
Whether the applicant is in substance a plaintiff or the proceedings are defensive in the sense of directly resisting proceedings already brought or seeking to halt the respondent's self-help procedures." The present circumstances 5 It is common ground between the parties that Horizon's liabilities considerably exceed its assets and that it would be unable to meet a costs order in favour of the respondents. The respondents accept that impecuniosity, of itself, is not a sufficient reason to order security ( Cowell v Taylor (1885) 31 Ch D 34 at 38) however the inability of an applicant to meet the costs of a successful respondent not only "opens the jurisdiction for the giving of security" but is also a significant consideration in the exercise of the Court's discretion: Pearson v Naydler [1977] 1 WLR 899 at 906; Rosenfield Nominees v Bain &amp; Co (1988) 14 ACLR 467 at 470. 6 The respondents submit, however, that there is an additional reason why Horizon's impecuniosity should weigh heavily in the Court's consideration of their application. They allege that it is the result of calculated and deliberate conduct directed towards frustrating the processes of the Court. The respondents submit that statements made by officers of Horizon, indicating an intention to strip the company of its assets so that there would be no assets available to meet claims made by the respondents, invite this conclusion. 7 In support of their application the respondents relied on affidavits made by employees of GlobeCast, namely: Nitish Gawde, Direct to Home Broadcast Manager and Mike Lattin Chief Executive Officer. Both gentlemen gave evidence of comments made by Mr Seymon Pinchuk, a director of Horizon at meetings on 27 April and 19 May 2006, in the course of discussions about the disputed invoices. In response to demands made by GlobeCast for Horizon to pay the amounts in the disputed invoices, Mr Pinchuk is alleged to have threatened to "wind up" or "bankrupt" or "close down" the company so that no one would be paid. They also claimed that Mr Pinchuk referred to Horizon as "just a $2 company" or said that he would "make it" a $2 company.
Case: Jess v Scott (1986) 12 FCR 187
Outcome: considered
It is possible under the rules of court for an extension of that 21 day period to be granted. The rules of court require that a special reason form the basis of any such extension. The leading authority in relation to whether or not to grant an extension is a decision of the Full Court in Jess v Scott (1986) 12 FCR 187. 4 In essence, special reason is intended to distinguish a particular case from the usual course, according to which the time limit is 21 days. Under the rules of court, I have a discretion to exercise, if satisfied that there is a special reason which justifies departure from the general rule in a particular case. I also remind myself that the rules of court are meant to be a servant of justice, rather than a master of justice. An application for extension of time was not lodged in court until 30 November 2007. 5 The Applicant has, by his affidavit, sworn that he did not receive the judgment until 23 October 2007 when he personally got it from the Federal Court Registry in Queens Square. I take it that what is meant by this, is that he did not get a written copy of the Magistrate's decision and reasons until then. That particular statement is not challenged by the Minister. I accept that it was not until 23 October 2007 that the Applicant received the written version of the Court's decision and reasons. Even allowing for that, more than 21 days expired prior to the application for an extension of time.
Case: Abrahams v Comcare [2006] FCA 1829 , 93 ALD 147
Outcome: cited
14 of the 1988 Act provides that Comcare is liable to pay compensation " in respect of an injury suffered by an employee ... ". Section 53 requires notice to be given " of the injury " and s 54 provides that compensation is not payable " unless a claim for compensation is made ..." that complies with certain requirements set out in that section. Section 54 is a procedural prerequisite to an entitlement to compensation: Lang , supra , at [43]. The claim as made by a claimant is to be given " a broad, generous and practical interpretation ...": Abrahams v Comcare [2006] FCA 1829 at [18] , [2006] FCA 1829 ; 93 ALD 147 at 152; Australian Postal Corporation v Sellick , supra , at [55]. Section 24 provides for the payment of compensation for " permanent impairment " and s 25 provides for the " interim payment of compensation " pending the final determination of a claimant's disability. Section 26 provides that " an amount of compensation payable to an employee under section 24 or 25 ... shall be paid to the employee within 30 days after the date of the assessment of the amount ".
Case: Application by Chime Communications Pty Ltd (No 2) [2009] ACompT 2 , 257 ALR 765
Outcome: cited
it is considered, was the Tribunal in its reasons for decision attempting to narrow down its finding to either: the resolution of a claim founded upon a " twisting " movement; or the resolution of the claim as strictly described in the account given by Ms Hughes of the events of 13 January 2006. Paragraph [43] of its reasons unquestionably exposes the fact that the Tribunal was aware of the difference between " abduction " and " adduction ". Indeed, given the expertise of the medical member of the Tribunal, it would be surprising if such a distinction was not well understood. Section 7(2)(b) of the 1975 Act provides for the appointment of persons to the Tribunal who have " experience ... in ... the practice of a profession ... " and such a member is " entitled to use his or her experience in interpreting and weighing the material and in reaching conclusions on technical matters ": cf Application by Chime Communications Pty Ltd (No 2) [2009] ACompT 2 at [7] , 257 ALR 765 at 770. But the reference by the Tribunal to the difference in the nature of the physical movements to which reference had been made in the evidence is not a sufficient basis upon which to conclude that the Tribunal was thereafter confining its attention to the resolution of a claim founded upon that difference alone and to the resolution of a claim for compensation in respect of an injury different to that originally claimed in February 2006 and as identified in the statement of issues as filed by the parties. It should finally be noted that there is not considered to be a clear distinction as between the claim as made by Ms Hughes and her description of the manner in which the accident or injury on 13 January 2006 occurred. Both the claim and the description are but a means of communicating to a decision-maker a description of the injury for which compensation is claimed and how that injury occurred. Either may give content to the other and the two should be read together.
Case: Re Beigman and Secretary, Department of Social Security [1992] AATA 377 ; (1992) 29 ALD 332
Outcome: applied
procedures of the Tribunal, it must be recalled, are not adversarial but designed to facilitate the Tribunal making the " correct or preferable " decision in a manner which is " fair, just, economical, informal and quick ": s 2A. The responsibility imposed by s 33(1AA) remains irrespective of whether or not an applicant before the Tribunal is represented or unrepresented. Even prior to the amendments to the 1975 Act which introduced ss 2A and 33(1AA), in Re Beigman and Secretary, Department of Social Security [1992] AATA 377 ; (1992) 29 ALD 332 the Tribunal, comprised of the then President, a Deputy President and a Member, observed: [24] Proceedings before this tribunal are not adversarial but are designed to enable the tribunal to reach the correct or preferable decision in the circumstances of the case. To this end the role of the parties is to assist the tribunal in reaching its decision. The tribunal expects departments and agencies involved in the review process to have an understanding of that role. ... The non-adversarial role of the Tribunal has been repeatedly referred to: Osborne G, "Inquisitorial Procedure in the Administrative Appeals Tribunal A Comparative Perspective" (1982) 13 Fed L Rev 150; Bedford N and Creyke R, "Inquisitorial v Adversarial Processes in Australian Tribunals in Shaping Administrative Law for the Next Generation", in Finn R, Shaping Administrative Law for the Next Generation: Fresh Perspectives (AIAL National Administrative Law Forum, 1999) p 91. The non-adversarial role of the Tribunal is of paramount importance. Indeed, with reference to the distinction between adversarial and inquisitorial procedures, it has been noted that a " perceived dichotomy " exists between " an adjudication of the evidence presented and ... a search for the truth ": Thawley T, "Adversarial and Inquisitorial Procedures in the Administrative Appeals Tribunal" (1997) 4 AJ Admin L 61 at 63. Given these tasks and responsibilities it is not considered appropriate to either confine Ms Hughes' claim or her account of the accident or injury in any artificial manner. The evidence of Dr Fearnside supports the conclusions he reached and his " presumption " &#8212; even if that is how his evidence is to be properly characterised &#8212; was supported by a " generous and practical interpretation " of both the claim as made and the account of the events that occurred on 13 January 2006.
Case: Black v Minister for Immigration and Citizenship [2007] FCAFC 189 , 99 ALD 1
Outcome: cited
there was also no dispute that reasons provided for an administrative decision are not to be scrutinised in an " over-zealous " manner: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259. In a passage which has often been repeated, Brennan CJ, Toohey, McHugh and Gummow JJ there referred to the earlier decision of the Full Court of this Court which was the subject of the appeal, and continued at 271 to 272 as follows: When the Full Court referred to "beneficial construction", it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic [(1993) 43 FCR 280]. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker [(1993) 43 FCR 280 at 287]. The Court continued [(1993) 43 FCR 280 at 287]: "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error." These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed [See McAuliffe v Secretary, Department of Social Security [1992] FCA 483 ; (1992) 28 ALD 609 at 616]. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. See also: Kirby J at 291 to 293; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [25] , [2007] HCA 26 ; 96 ALD 1 at 9 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; Black v Minister for Immigration and Citizenship [2007] FCAFC 189 at [36] , [2007] FCAFC 189 ; 99 ALD 1 at 9 per Branson, Sundberg and Dowsett JJ.
Case: Brown v Repatriation Commission [1985] FCA 194 ; (1985) 7 FCR 302
Outcome: applied
jurisdiction being exercised is nevertheless constrained by the requirement that the appeal be " on a question of law ". In Brown v Repatriation Commission [1985] FCA 194 ; (1985) 7 FCR 302 at 304, Bowen CJ, Fisher and Lockhart JJ observed in respect to this constraint: The existence of a question of law is not merely a qualifying condition to ground an appeal from a decision of the Tribunal; rather, it and it alone is the subject matter of the appeal, and the ambit of the appeal is confined to it. In the present proceeding, the Questions of Law as formulated in the Notice of Appeal were identified as follows: (a) Whether the Tribunal failed to comply with its duty to give reasons for its decision. (b) Whether the Tribunal made findings that were not supported by any evidence. (c) Whether the Tribunal failed to consider a submission worthy of serious consideration. Each of these Questions of Law and each of the three Grounds of Appeal was intended to raise for resolution whether or not there was any evidence to support, or whether the reasons provided by the Tribunal adequately explained, how the account of the injury as provided by Ms Hughes gave rise to the injury for which compensation was awarded. In summary form, the Corporation contended that the account of the injury provided by Ms Hughes could not have caused the particular injury as found by the Tribunal. The jurisdiction of this Court to entertain the present " appeal " was not put in question.
Case: Centrelink v Dykstra [2002] FCA 1442
Outcome: cited
s 43(2B) does not impose any constraint as to the manner in which the Tribunal is to make " reference " to either evidence or other material upon which it proceeds to " base " its findings. The greater the conflict in the evidence, the greater may be the need for the Tribunal to make " reference " to the conflicting evidence and to set forth that evidence upon which it proceeds to " base " its findings, and to set forth its reasons for rejecting some evidence and accepting other evidence: Copperart Pty Ltd v Commissioner of Taxation [1993] FCA 462 ; (1993) 30 ALD 377 per Hill J. Although there is no necessity for the Tribunal to refer to every piece of evidence adduced before the Tribunal, a failure to advert to relevant evidence may lead to a conclusion that it has been ignored: Waldron v Comcare Australia [1995] FCA 1154 ; (1995) 37 ALD 471 at 477 per Burchett J; Centrelink v Dykstra [2002] FCA 1442 at [20] . As observed by French, Sackville and Hely JJ in Applicant WAEE , supra : [46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact ... and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. ... It is an administrative body and not a court and its reasons are not to be scrutinised "with an eye keenly attuned to error". Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law. A failure to refer to material which is " fundamental " may lead to a conclusion that there has been jurisdictional error: WAFP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 319 at [21] per Lee, Carr and Tamberlin JJ.
Case: Comcare Australia v Mathieson [2004] FCA 212 , 79 ALD 518
Outcome: cited
was thus no dispute that " sufficient reasons " must be provided " to make the system of appeals effective and to fulfil its assumptions ": Roncevich v Repatriation Commission [2005] HCA 40 at [62] , [2005] HCA 40 ; 222 CLR 115 at 135 per Kirby J. It must be possible " to discern from the reasons given the actual reasoning process adopted ": Comcare Australia v Mathieson [2004] FCA 212 at [61] , 79 ALD 518 at 531 per Weinberg J. "... [T]he tribunal will have discharged its duty under s 43 if its reasons disclose its findings of fact, the evidence on which they were based and the logical process by which it moved from those findings to the result in the case ": Secretary, Department of Employment and Workplace Relations v Homewood [2006] FCA 779 at [40] , 91 ALD 103 at 111 per French J. See also: Comcare v Davies [2008] FCA 393 at [31] to [33], 173 IR 294 at 302 to 303.
Case: Comcare v Davies [2008] FCA 393 , 173 IR 294
Outcome: cited
was thus no dispute that " sufficient reasons " must be provided " to make the system of appeals effective and to fulfil its assumptions ": Roncevich v Repatriation Commission [2005] HCA 40 at [62] , [2005] HCA 40 ; 222 CLR 115 at 135 per Kirby J. It must be possible " to discern from the reasons given the actual reasoning process adopted ": Comcare Australia v Mathieson [2004] FCA 212 at [61] , 79 ALD 518 at 531 per Weinberg J. "... [T]he tribunal will have discharged its duty under s 43 if its reasons disclose its findings of fact, the evidence on which they were based and the logical process by which it moved from those findings to the result in the case ": Secretary, Department of Employment and Workplace Relations v Homewood [2006] FCA 779 at [40] , 91 ALD 103 at 111 per French J. See also: Comcare v Davies [2008] FCA 393 at [31] to [33], 173 IR 294 at 302 to 303. A Tribunal's compliance with all aspects of s 43(2B) &#8212; be it the requirement to set forth its " reasons ", the requirement to include " findings on material questions of fact " or the requirement that there be " a reference to the evidence or other material " &#8212; is a matter of substance and not form: Dodds v Comcare Australia (1993) 31 ALD 690 at 691 per Burchett J; Comcare v Davies , supra , at [33]. The statutory requirement, it is to be recalled, has as a principal objective the exposure of the reasoning process of the Tribunal to judicial scrutiny. There must be sufficient compliance with each aspect of s 43 such that judicial scrutiny is not frustrated. But the manner in which the Tribunal discharges its responsibility to comply with s 43(2B) must inevitably depend upon &#8212; among other things &#8212; the nature of the cases coming before the Tribunal, the nature of the evidence and legal complexity of each case, and the particular style in which Tribunal members choose to express themselves. The less important a particular matter may be to the conclusion reached by the Tribunal, the less the need for the Tribunal to " refer to " or deal in any depth with the evidence relevant to that matter: e.g. Lafu v Minister for Immigration and Citizenship [2009] FCA 733 at [28] to [30] per Jagot J. A failure to refer to evidence of little ultimate significance to the conclusion reached may not permit an inference that such evidence has not been considered.
Case: Copperart Pty Ltd v Commissioner of Taxation [1993] FCA 462 ; (1993) 30 ALD 377
Outcome: cited
s 43(2B) does not impose any constraint as to the manner in which the Tribunal is to make " reference " to either evidence or other material upon which it proceeds to " base " its findings. The greater the conflict in the evidence, the greater may be the need for the Tribunal to make " reference " to the conflicting evidence and to set forth that evidence upon which it proceeds to " base " its findings, and to set forth its reasons for rejecting some evidence and accepting other evidence: Copperart Pty Ltd v Commissioner of Taxation [1993] FCA 462 ; (1993) 30 ALD 377 per Hill J. Although there is no necessity for the Tribunal to refer to every piece of evidence adduced before the Tribunal, a failure to advert to relevant evidence may lead to a conclusion that it has been ignored: Waldron v Comcare Australia [1995] FCA 1154 ; (1995) 37 ALD 471 at 477 per Burchett J; Centrelink v Dykstra [2002] FCA 1442 at [20] . As observed by French, Sackville and Hely JJ in Applicant WAEE , supra : [46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact ... and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. ... It is an administrative body and not a court and its reasons are not to be scrutinised "with an eye keenly attuned to error". Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law. A failure to refer to material which is " fundamental " may lead to a conclusion that there has been jurisdictional error: WAFP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 319 at [21] per Lee, Carr and Tamberlin JJ.