mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Harts Australia Ltd v Commissioner, Australian Federal Police [2001] FCA 175 , 65 ALD 463
Outcome: applied
11(1)(c) assumes present relevance because the events now the subject of the present proceeding took place on 15 April 2009 and the initial Application was not lodged until 7 September 2009 &#8212; a period some four months out of time. Reliance upon s 39B of the Judiciary Act 1903 (Cth) ('the Judiciary Act ') may not present such a problem for the Applicants &#8212; but reliance upon s 39B could not permit review of the decision of the " issuing officer " to issue the warrants, that officer not being an " an officer ... of the Commonwealth ". If an extension of time were granted, the decisions to issue the warrants would also be susceptible to review pursuant to the Judicial Review Act . Decisions to issue warrants, it may be accepted, are decisions of an " administrative character " ( Harts Australia Ltd v Commissioner, Australian Federal Police [2001] FCA 175 at [26] , 65 ALD 463 at 470 per Drummond J) and decisions made " under an enactment " ( Kennedy [2004] FCA 562 at [7] , 135 FCR at 524 per Branson J).
Case: Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 ; (1984) 3 FCR 344
Outcome: applied
11(1) provides as follows: (1) An application to the Federal Court or the Federal Magistrates Court for an order of review: (a) ...; and (b) ...; and (c) shall be lodged with a Registry of the court concerned and, in the case of an application in relation to a decision that has been made and the terms of which were recorded in writing and set out in a document that was furnished to the applicant, including such a decision that a person purported to make after the expiration of the period within which it was required to be made, shall be so lodged within the prescribed period or within such further time as the court concerned (whether before or after the expiration of the prescribed period) allows. The principles relevant to the exercise of the discretion conferred by s 11(1)(c) have been summarised by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 ; (1984) 3 FCR 344 at 348 to 349. Included amongst those matters relevant to the exercise of the discretion are " the merits of the substantial application " and prejudice to the respondent, although it is recognised that " the mere absence of prejudice is not enough to justify the grant of an extension ". It is considered that the merits of the case as sought to be advanced by the Applicants are such that an extension of time should be granted. The discretion to extend time in the present proceeding has been exercised by reference to the merits of the case together with those other matters referred to by Wilcox J. Two submissions advanced on behalf of the Respondents, however, warrant specific attention.
Case: Johns v Australian Securities Commission [1993] HCA 56 ; (1993) 178 CLR 408
Outcome: cited
the extent that there may have been some unstated assumption on the part of the Applicants at the outset that s 16 may have conferred some unconstrained power or authority on this Court to grant interlocutory relief, such an assumption must be rejected. In Johns v Australian Securities Commission [1993] HCA 56 ; (1993) 178 CLR 408 at 434 Brennan J observed (citations omitted): The relief which may be ordered under s 16(1)(d) of the AD(JR) Act is not so much at large that the Court may make an order against a party to litigation even though no ground for relief under the general law is established against that party. Section 16(1)(d) does not set the Court on an uncharted course without legal reference points by which to steer. ... However, s 16(1)(d) applies only when the making of an order is "necessary to do justice between the parties". That means justice according to law. It may be that a person who acquires information knowing that the information is imparted to him in breach of a statutory duty is in the same position as he would have been if the duty were an equitable obligation of confidence. ... If there be no right to relief against a person under the general law, that person does not become liable to have an adverse order made under s 16(1)(d) merely by reason of being joined as a respondent in an application to the Federal Court under the AD(JR) Act. ... See also: Minister for Immigration and Multicultural Affairs v Thiyagarajah [2000] HCA 9 at [34] , [2000] HCA 9 ; 199 CLR 343 at 356 to 357; Carter v Minister for Aboriginal Affairs [2005] FCA 667 at [39] , [2005] FCA 667 ; 143 FCR 383 at 395 to 396.
Case: Minister for Immigration and Multicultural Affairs v Thiyagarajah [2000] HCA 9 , 199 CLR 343
Outcome: cited
the extent that there may have been some unstated assumption on the part of the Applicants at the outset that s 16 may have conferred some unconstrained power or authority on this Court to grant interlocutory relief, such an assumption must be rejected. In Johns v Australian Securities Commission [1993] HCA 56 ; (1993) 178 CLR 408 at 434 Brennan J observed (citations omitted): The relief which may be ordered under s 16(1)(d) of the AD(JR) Act is not so much at large that the Court may make an order against a party to litigation even though no ground for relief under the general law is established against that party. Section 16(1)(d) does not set the Court on an uncharted course without legal reference points by which to steer. ... However, s 16(1)(d) applies only when the making of an order is "necessary to do justice between the parties". That means justice according to law. It may be that a person who acquires information knowing that the information is imparted to him in breach of a statutory duty is in the same position as he would have been if the duty were an equitable obligation of confidence. ... If there be no right to relief against a person under the general law, that person does not become liable to have an adverse order made under s 16(1)(d) merely by reason of being joined as a respondent in an application to the Federal Court under the AD(JR) Act. ... See also: Minister for Immigration and Multicultural Affairs v Thiyagarajah [2000] HCA 9 at [34] , [2000] HCA 9 ; 199 CLR 343 at 356 to 357; Carter v Minister for Aboriginal Affairs [2005] FCA 667 at [39] , [2005] FCA 667 ; 143 FCR 383 at 395 to 396.
Case: Mitchell v New Plymouth Club (Incorporated ) [1958] NZLR 1070
Outcome: cited
of the limitations upon the power conferred by these provisions only assumes additional importance when it is recalled that a search warrant may be issued and executed in respect to premises occupied by persons other than those involved or suspected of being involved in criminal activity. Where the terms of s 3E are satisfied, a warrant may thus be issued in respect to premises occupied by persons unconnected with any crime. The fundamental interference with privacy which is authorised by a search warrant must be constantly borne in mind. Search warrants are " ... intrusions into the sanctity of a person's domain and concomitantly an interference with his privacy ... ": Different Solutions Pty Ltd v Australian Federal Police (No 2) [2008] FCA 1686 at [106] per Graham J (applying: Cloran (1984) 4 FCR at 154 per Lockhart J). Similarly, in TVW Ltd v Robinson [1964] WAR 33 at 37 Negus J observed: The issue of a search warrant is a very serious matter indeed because it authorizes the invasion of the privacy of the subject in his home or in his business premises. It necessarily involves an interference with the rights of an individual and affects his liberty. See also: Mitchell v New Plymouth Club (Incorporated ) [1958] NZLR 1070 at 1072. Although effect must be given to the terms employed in s 3E , it is also legitimate to bear in mind that the common law has long been " jealous of the prima facie immunity from seizure of papers and possessions ": George v Rockett [1990] HCA 26 ; (1990) 170 CLR 104 at 110 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.
Case: Parker v Churchill [1986] FCA 88 ; (1986) 9 FCR 334
Outcome: cited
one time it had been suggested that a " warrant should state the description of the offence in question with a particularity sufficient to enable the person whose premises are being searched to know the exact object of the search ": Parker v Churchill [1986] FCA 88 ; (1986) 9 FCR 334 at 348 per Jackson J; Australian Broadcasting Corporation v Cloran (1984) 4 FCR 151 at 153 per Lockhart J. But there has since been a retreat from such an exacting standard. The " precision required ", it has since been suggested, " may vary with the nature of the offence, the other circumstances revealed, the particularity achieved in other respects, and what is disclosed by the warrant, read as a whole, and taking account of its recitals ": Beneficial Finance Corporation Ltd v Commissioner of Australian Federal Police [1991] FCA 92 ; (1991) 31 FCR 523 at 543 per Burchett J. The objective of the requirement, however, has remained constant. The " requirement to state the offence exists to set bounds to the area of search which the execution of the warrant would involve . ... What is significant ... is that the warrant disclose the nature of the offence in question so as to indicate the area of search ": Harts Australia No 1 (1997) 75 FCR at 152 per Hill, Cooper and Whitlam JJ.
Case: Price v Elder [2000] FCA 166
Outcome: applied
such circumstances, that inference and that alone may be sufficient to form a conclusion that the balance of convenience rests heavily in favour of the Applicants. If interlocutory relief were to be refused, any success that the Applicants may have at a final hearing would be largely rendered nugatory: cf Price v Elder [2000] FCA 166 per Emmett J. The rights of individuals are not to be whittled away by conferring greater power upon those executing warrants than the already extensive power they presently possess. Damages, in such a context, may not be an adequate remedy. Such factors, however, must necessarily be taken into account together with other considerations. Also to be taken into account is the effect that the seizure of documents is having upon the business of the Applicants. That effect is not insignificant. Some significance is also to be attached to the estimated cost of about $240,000 that would be incurred by the Applicants in further reviewing the materials seized. Whether the task is as complex as is asserted and whether the costs are as high as may presently be believed may be queried. And, whatever may be the extent of those costs and whatever may be the explanation as may finally emerge, the Applicants have made decisions since April 2009 to not challenge the validity of the warrants or the manner of their execution until now. To now raise the question of costs is a very much belated consideration that should be given less weight than had such matters been raised at the outset. But some additional costs will unquestionably be incurred and some weight can be given to that consideration when assessing the balance of convenience.
Case: TVW Ltd v Robinson [1964] WAR 33
Outcome: cited
of the limitations upon the power conferred by these provisions only assumes additional importance when it is recalled that a search warrant may be issued and executed in respect to premises occupied by persons other than those involved or suspected of being involved in criminal activity. Where the terms of s 3E are satisfied, a warrant may thus be issued in respect to premises occupied by persons unconnected with any crime. The fundamental interference with privacy which is authorised by a search warrant must be constantly borne in mind. Search warrants are " ... intrusions into the sanctity of a person's domain and concomitantly an interference with his privacy ... ": Different Solutions Pty Ltd v Australian Federal Police (No 2) [2008] FCA 1686 at [106] per Graham J (applying: Cloran (1984) 4 FCR at 154 per Lockhart J). Similarly, in TVW Ltd v Robinson [1964] WAR 33 at 37 Negus J observed: The issue of a search warrant is a very serious matter indeed because it authorizes the invasion of the privacy of the subject in his home or in his business premises. It necessarily involves an interference with the rights of an individual and affects his liberty. See also: Mitchell v New Plymouth Club (Incorporated ) [1958] NZLR 1070 at 1072. Although effect must be given to the terms employed in s 3E , it is also legitimate to bear in mind that the common law has long been " jealous of the prima facie immunity from seizure of papers and possessions ": George v Rockett [1990] HCA 26 ; (1990) 170 CLR 104 at 110 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.
Case: Cage Developments Pty Ltd v Schubert [1983] HCA 37 ; (1983) 151 CLR 584
Outcome: followed
In some circumstances actual net earnings might be seen as reflecting an ability to earn: Cage Developments Pty Ltd v Schubert [1983] HCA 37 ; (1983) 151 CLR 584. Gibbs CJ, Murphy, Brennan, Deane and Dawson JJ there observed at 587 8: . . . there may well be cases in which the actual earnings of a business either represent the actual or potential earnings of a former worker during a period of partial incapacity. Where, for example, a business consists essentially of the provision of personal services by the former worker (eg a business of a sole plumber or casual gardener) and no significant investment of capital is involved, the actual net earnings of the business might properly be seen as representing the actual "reward for [the] labour" of the former worker (see J &amp; H Timbers Pty Ltd v Nelson, at 652) during a period of partial incapacity. In such a case, if the former worker is carrying on business solely on his own account, the net earnings of the business might properly be seen as representing the "amount he is earning" in a business; if he is carrying on business in partnership or as an employee of a family company, the net earnings might properly be seen as representing the "amount he ... is able to earn" either in employment or in a business. The difficulty with the approach of the Tribunal in the present proceedings is that the evidence the Tribunal was relying upon to reach its conclusion has not been identified; nor have findings of facts been made or reasons provided. The Tribunal has set forth a conclusion but none of the processes by which it reached that conclusion.
Case: Chen v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 1901 , 106 FCR 157
Outcome: followed
No " question of law ", it is considered, arises in circumstances of the present appeal where the Tribunal did not resolve an issue or did not make findings of fact in respect to other forms of " suitable employment " where no such contention was advanced before it. " Some difficulty ", it has been said, must arise " in finding as 'error of law'... the failure in the Tribunal to make a finding first urged in this court ": Federal Commissioner of Taxation v Raptis (1989) 19 ALD 726 at 728 per Gummow J. Appl'd: Chen v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 1901 at [88] [89], [2000] FCA 1901 ; 106 FCR 157 at 175 6 per Carr J.
Case: Comcare Australia v Woodbridge (Unreported, Federal Court of Australia, O'Loughlin J, 13 February 1996)
Outcome: considered
Section 19(2) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) relevantly provides as follows: Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula: NWE AE where: "AE" is the greater of the following amounts: (a) the amount per week (if any) that the employee is able to earn in suitable employment; (b) the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week. "NWE" is the amount of the employee's normal weekly earnings. That provision, by its terms, requires a calculation to be undertaken whereby there is deducted from an employee's normal weekly earnings an amount which is the greater of either the weekly amount that an employee is " able to earn in suitable employment " or the amount which an employee earns from " any employment (including self-employment) that is undertaken by the employee during that week ". The legislative intention of this provision is presumably to ensure that an employee is not entitled to retain the whole of his actual earnings and also to retain 100% of his normal weekly earnings: Comcare v Line [2002] FCA 553 at [60] per Carr J. And, the amount that an employee may be " able to earn " is not to be equated with profit: J &amp; H Timbers Pty Ltd v Nelson [1972] HCA 12 ; (1972) 126 CLR 625. Windeyer J there observed at 643: ... The earning capacity of a man as a worker is measured by the remuneration that is the fruit of his labour, his wages or their equivalent. It is not to be measured by the profits he derives by embarking his capital in a business or by his usual capital equipment in earning money... See also: Comcare Australia v Woodbridge (Unreported, Federal Court of Australia, O'Loughlin J, 13 February 1996).
Case: Comcare v Holt [2007] FCA 405 , 94 ALD 576
Outcome: considered
A Statement of Facts and Contentions should obviously not be construed with the constraints appropriate to a pleading in a Superior Court. Nor should a Statement of Facts and Contentions be filed with such generality that all issues which potentially may emerge will be held subsequently to fall within one or other of the matters set forth. But it should be drafted with a sufficient level of precision to enable both an opponent and the Tribunal to know the facts and contentions being raised for consideration. The procedures of the Tribunal are sufficiently flexible to permit of any subsequent need to revisit a Statement which has been filed if that is necessary to ensure that the " correct or preferable decision " is reached and reached in a manner which permits all parties to have a " reasonable opportunity to present his or her case ": Administrative Appeals Tribunal Act 1975 (Cth), s 39(1). Within those broad limits, the procedures followed by the Tribunal should be sufficiently flexible to permit new or additional contentions to be raised, where that is necessary to ensure that the Tribunal properly discharges its functions, and sufficiently flexible to ensure that contentions which may have been initially raised at the outset of proceedings are able to be later abandoned (eg, Comcare v Holt [2007] FCA 405 at [33] , [2007] FCA 405 ; 94 ALD 576 at 583 per Mansfield J). 23 Notwithstanding such flexibility, this first contention of Comcare is rejected. 24 But Comcare's alternative submission, namely that the Tribunal has impermissibly equated profit with an ability to earn, it is considered should prevail. Comcare's Contentions as filed with the Tribunal unequivocally asserted that Ms Davies had " an ability to earn in suitable employment ", and also that " an ability to earn should not be confused with ability to run a profitable business ".
Case: Comcare v Line [2002] FCA 553
Outcome: followed
Section 19(2) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) relevantly provides as follows: Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula: NWE AE where: "AE" is the greater of the following amounts: (a) the amount per week (if any) that the employee is able to earn in suitable employment; (b) the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week. "NWE" is the amount of the employee's normal weekly earnings. That provision, by its terms, requires a calculation to be undertaken whereby there is deducted from an employee's normal weekly earnings an amount which is the greater of either the weekly amount that an employee is " able to earn in suitable employment " or the amount which an employee earns from " any employment (including self-employment) that is undertaken by the employee during that week ". The legislative intention of this provision is presumably to ensure that an employee is not entitled to retain the whole of his actual earnings and also to retain 100% of his normal weekly earnings: Comcare v Line [2002] FCA 553 at [60] per Carr J. And, the amount that an employee may be " able to earn " is not to be equated with profit: J &amp; H Timbers Pty Ltd v Nelson [1972] HCA 12 ; (1972) 126 CLR 625. Windeyer J there observed at 643: ... The earning capacity of a man as a worker is measured by the remuneration that is the fruit of his labour, his wages or their equivalent. It is not to be measured by the profits he derives by embarking his capital in a business or by his usual capital equipment in earning money... See also: Comcare Australia v Woodbridge (Unreported, Federal Court of Australia, O'Loughlin J, 13 February 1996).
Case: Dodds v Comcare Australia (1993) 31 ALD 690
Outcome: followed
The requirement imposed by s 43(2B) of the 1975 Act has to be applied in the factual context being considered and applied in a realistic and practical manner. One objective of that provision, of course, is " to make the system of appeals effective ": Roncevich v Repatriation Commission [2005] HCA 40 at [62] , [2005] HCA 40 ; 222 CLR 115. The adequacy of reasons provided, however, is also a matter of " substance ": Dodds v Comcare Australia (1993) 31 ALD 690. Burchett J at 691 there observed: The obligation to furnish reasons, and to furnish reasons which are adequate, is a very important obligation. It is a pillar of the system of administrative decision-making by the Tribunal, and it is essential that the Court should insist on its fulfillment. But it is the substance of the obligation that matters. Indeed, as Lord Suniner pointed out in 55 Hontestroom v 55 Sagaporack [19271 AC 37 at 50, even a Judge's reasons on a question of fact will not be vitiated by "imperfections in form and expression". Section 43 is not to be construed in a pedantic spirit, but sensibly. If the Tribunal's reasons exposed the logic of its decision, and contained findings on those matters of fact which are essential to that logic, it will not be, easy to demonstrate a failure of compliance with the requirement to include "findings on material questions of fact".
Case: Drake v Minister for Immigration &amp; Ethnic Affairs (1979) 46 FLR 409
Outcome: followed
Even where one or other or both parties are represented before the Tribunal, a party may depart from the contentions it has identified in its written Statement . Indeed, to conclude otherwise may confine the ability of the Tribunal to discharge its principal function of making the " correct or preferable decision ": Drake v Minister for Immigration &amp; Ethnic Affairs (1979) 46 FLR 409 at 419. Factual or legal contentions or issues different to those raised in a Statement of Facts and Contentions may emerge in any one of a number of ways, including from questions asked by the Tribunal or that arise from evidence given and subsequent cross-examination. Facts or contentions different to those raised in a Statement of Facts and Contentions may also arise from the manner in which a case is opened or even, although far from desirable, in closing submissions. 20 In the present proceedings before the Tribunal, however, such questions as were asked of Ms Davies in cross-examination, it is considered, could not fairly be construed as raising for resolution the potential for Ms Davies to engage in other forms of suitable employment. Neither the invoices disclosing monies charged for lecturing or the questions asked of her during cross-examination would have alerted her to the possibility that Comcare could be suggesting the development of that part of her abilities as other " suitable employment ".