mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Brunner v Greenslade [1971] Ch 993
Outcome: applied
The applicant contended that the only reason was that given by Kenny J at [45] of Batt . The Board asserted that she gave two reasons. If two, the Tribunal was right to say that it "must follow" Batt . If the only true reason for decision was that recorded at [45] of Batt , the Tribunal should still have followed her Honour's considered opinion on the interest point. There was no other authority available on that question. In Brunner v Greenslade [1971] Ch 993 at 1002-1003 Megarry J said: A mere passing remark or a statement or assumption on a matter that has not been argued is one thing, a considered judgment on a point fully argued is another, especially where, had the facts been otherwise, it would have formed part of the ratio. Such judicial dicta, standing in authority somewhere between a ratio decidendi and an obiter dictum, seem to me to have a weight nearer to the former than the latter. Writing of "varying degrees of authority of dicta", Cross and Harris say: It is a truism upon which there is no need to enlarge that dicta are of various degrees of persuasiveness. At one end of the scale we have the considered opinion of all members of the House of Lords who sat to hear a case. At the other end of the scale we have broad observations made on the spur of the moment such as the remark which prompted Lord Abinger to say 'It was not only an obiter dictum, but a wide divaricating dictum. Dicta of the highest degree of persuasiveness may often, for all practical purposes, be indistinguishable from pronouncements which must be treated as ratio decidendi .... Precedent in English Law 4 th ed (1991) at 77.
Case: Chief Supplementary Benefit Officer v Leary [1985] 1 WLR 84
Outcome: cited
I do not accept the applicant's submission that the Tribunal was not bound to follow Batt because, not being a court, it is not bound by the doctrine of precedent. In the use of its own precedents the Tribunal is in a different position from a court. A court may be bound by the rules of precedent to decide a case in accordance with an earlier decision, whether or not the result accords with the court's own opinion. But an administrative body which acts in that way in deference to an earlier decision of its own may thereby commit reviewable error. It is not allowed to pursue consistency at the expense of the merits of individual cases. Cf Wade and Forsyth, Administrative Law 9 th ed (2004) at 325, 931. However, that principle has no application to the Tribunal's obligation to follow decisions of this Court, whose decisions under ss 39 and 46 of the Act provide the Tribunal with authoritative guidance as to the law. See Cross and Harris, op cit, at 124, citing Chief Supplementary Benefit Officer v Leary [1985] 1 WLR 84 at 89. If the applicant's submission were correct, the Tribunal could, without committing correctible error, decline to follow this Court's decision on a question referred to it by the Tribunal under s 39, or indeed a unanimous decision of the High Court. In my view the observations of Megarry J quoted at [21] have added weight in relation to an administrative body such as the Tribunal.
Case: BHP Billiton Iron Ore Pty Ltd v National Competition Council (2007) 162 FCR 234
Outcome: applied
In counsel's written submissions it was asserted that Batt was wrongly decided. When asked whether the real point was whether Batt was distinguishable, counsel replied that she did not withdraw the submission that Batt was wrong, but that the principal contention was that it was distinguishable. I do not consider the claim that Batt was wrongly decided is an available submission. A judge should follow an earlier decision of another judge of this Court unless satisfied it is plainly or clearly wrong. In BHP Billiton Iron Ore Pty Ltd v National Competition Council (2007) 162 FCR 234 at [83] to [84] Greenwood J, with whom I agreed, said: The circumstances in which a judge in the exercise of the Court's original jurisdiction might find a decision of a single judge of the Court to be 'plainly wrong' should be approached with real and deliberative caution and would generally involve that class of case where for one reason or another there is transparent error such as the consideration of an incorrect statutory instrument in the resolution of the controversy; consideration of a provision of a statute in a form not enacted at the relevant date of the events or a failure to consider a provision of an Act relevant to the disposition of the cause, thus causing the analysis to fall into error; a failure to apply having regard to the issues raised by the controversy, a binding decision of a Full Court of this Court or the High Court; a failure to apply a decision of a Full Court of this Court, an intermediate Court of Appeal of another jurisdiction or an authority of the High Court expressing a clear persuasive emphasis of opinion in favour of a particular conclusion (particularly concerning legislation of the Commonwealth Parliament); or some other circumstance that has caused a dispositive adjudication of the controversy to miscarry. That minds might differ on a question is not a foundation for a conclusion that a decision supported by exposed reasons for judgment after full argument, is plainly wrong.
Case: Minister for Immigration and Ethnics Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
The first respondent submitted that the appellant's contentions were based on merits review of the Tribunal's findings of fact, and did not support a claim of error of law or jurisdictional error: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272.
Case: MZWHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 201
Outcome: cited
The first respondent made two additional submissions that it said justify the decision of Connolly FM. First, it was submitted that the appellant failed to make any submission justifying his decision to start a new proceeding after the orders made by Merkel J on 12 July 2004, despite ample opportunity to do so: see MZWHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 201 at [13] . Secondly, the first respondent submitted that the appellant has failed to explain the delay between the Tribunal's decision being handed down and his application for review being filed: see Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491.
Case: Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491
Outcome: cited
The first respondent made two additional submissions that it said justify the decision of Connolly FM. First, it was submitted that the appellant failed to make any submission justifying his decision to start a new proceeding after the orders made by Merkel J on 12 July 2004, despite ample opportunity to do so: see MZWHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 201 at [13] . Secondly, the first respondent submitted that the appellant has failed to explain the delay between the Tribunal's decision being handed down and his application for review being filed: see Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491.
Case: Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558
Outcome: cited
As Kenny J observed in Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558 at [4] , on an appeal conducted by way of re-hearing, such as an appeal from a judgment of the Federal Magistrates Court, 'the powers of an appellate court are exercisable only if the appellant can demonstrate that, having regard to the evidence before the appellate court, the judgment under appeal is a consequence of some legal, factual or discretionary error'. The appellant has failed to point to any error in the decisions of the Tribunal and Connolly FM.
Case: Fenner v Repatriation Commission (2005) 218 ALR 122
Outcome: cited
Mr Fenner first claimed a disability pension under the Act as a result of those conditions, or of one or other of them, on 30 April 2001. Both the Repatriation Commission in August 2001 and then the Veterans' Review Board in September 2002 rejected the claim. In April 2004, the Administrative Appeals Tribunal (the AAT) affirmed that decision. However, on 2 February 2005, the AAT decision was set aside and the matter remitted to the AAT for rehearing: Fenner v Repatriation Commission (2005) 218 ALR 122. 4 The AAT, differently constituted, on 8 September 2006, after the rehearing, again affirmed the decision to refuse to grant a disability pension to Mr Fenner. 5 This is an application by way of appeal from that decision. It is confined to errors of law on the part of the AAT: Administrative Appeals Tribunal Act 1975 (Cth) s 44. Moreover, the application concerns only the AAT's decision with respect to Mr Fenner's condition of alcohol abuse. The AAT also rejected his claim based upon the condition of PTSD, but Mr Fenner does not contend that its decision in that regard involved any errors of law. 6 Section 13(1) of the Act renders the Commonwealth liable to pay a disability pension to a veteran who has become incapacitated from a war-caused injury or disease. 7 Section 9(1) prescribes the circumstances in which an injury or disease is taken to be war-caused. Relevantly, those circumstances include where the injury or disease resulted from an occurrence on "operational service". Mr Fenner's trips to Vietnam on HMAS Sydney constituted operational service. Consequently, s 120(1) of the Act was enlivened. It provides: (1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. It obliged the Commission, and on review the Tribunal, to determine that Mr Fenner's injuries or diseases were war-caused unless the decision-maker was satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. 48 It was first contended that the AAT had failed to apply s 119(1)(h) in its consideration of the claim. I discussed a similar contention in Roncevich v Repatriation Commission [2002] FCA 1458 at [29] - [31] and in Fenner v Repatriation Commission [2005] FCA 27 at [26] - [29] . Section 119(1)(h) informs the AAT as to how it should proceed in applying the central provisions of the Act, relevantly s 120.
Case: Roncevich v Repatriation Commission [2002] FCA 1458
Outcome: cited
It was first contended that the AAT had failed to apply s 119(1)(h) in its consideration of the claim. I discussed a similar contention in Roncevich v Repatriation Commission [2002] FCA 1458 at [29] - [31] and in Fenner v Repatriation Commission [2005] FCA 27 at [26] - [29] . Section 119(1)(h) informs the AAT as to how it should proceed in applying the central provisions of the Act, relevantly s 120.
Case: Hill v Repatriation Commission (2005) 218 ALR 251
Outcome: cited
I do not therefore need to address the contention on behalf of the respondent that s 119(1)(h) provides merely an exhortatory direction to the decision-makers, in this instance the AAT, so that its contravention does not amount to an error of law on the part of the AAT where it has complied otherwise with the decision-making requirements of the Act: see Hill v Repatriation Commission (2005) 218 ALR 251 at 266, at [75], although it may be noted that the position of s 119 in the Act provides a point of distinction from the decision in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 concerning s 420 of the Migration Act 1958 (Cth).
Case: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611
Outcome: cited
I do not therefore need to address the contention on behalf of the respondent that s 119(1)(h) provides merely an exhortatory direction to the decision-makers, in this instance the AAT, so that its contravention does not amount to an error of law on the part of the AAT where it has complied otherwise with the decision-making requirements of the Act: see Hill v Repatriation Commission (2005) 218 ALR 251 at 266, at [75], although it may be noted that the position of s 119 in the Act provides a point of distinction from the decision in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 concerning s 420 of the Migration Act 1958 (Cth).
Case: Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620
Outcome: cited
I can deal with the seventh contention shortly. I do not consider that the AAT failed to provide adequate and sufficient reasons for its determination. The nature of that obligation under s 43(2B) of the AAT Act is explained in Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620; Commonwealth v Smith (1989) 18 ALD 224 at 225. The AAT's reasons demonstrate the process by which it came to its decision. They demonstrate the findings of fact which it made and why it made them. They sufficiently expose its reasons for decision to enable it to be determined whether it has fallen into legal error in reaching the conclusions which it did. It is not incumbent upon the AAT to refer to all pieces of evidence on every topic, or to give a refutation of evidence to which it has not attributed any weight.
Case: Commonwealth v Smith (1989) 18 ALD 224
Outcome: cited
I can deal with the seventh contention shortly. I do not consider that the AAT failed to provide adequate and sufficient reasons for its determination. The nature of that obligation under s 43(2B) of the AAT Act is explained in Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620; Commonwealth v Smith (1989) 18 ALD 224 at 225. The AAT's reasons demonstrate the process by which it came to its decision. They demonstrate the findings of fact which it made and why it made them. They sufficiently expose its reasons for decision to enable it to be determined whether it has fallen into legal error in reaching the conclusions which it did. It is not incumbent upon the AAT to refer to all pieces of evidence on every topic, or to give a refutation of evidence to which it has not attributed any weight.
Case: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321
Outcome: followed
I have expressed in [33]-[40] my view that, in part at least, the reasons for the AAT's conclusion that Mr Fenner's evidence had inconsistencies was illogical. It drew conclusions which I do not think were logically available to it. However, want of logic in fact finding, of itself, does not constitute error of law: see per Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 356; SZEEO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 546 per Tamberlin J, at [14]-[17] and the cases cited at [14].
Case: SZEEO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 546
Outcome: cited
I have expressed in [33]-[40] my view that, in part at least, the reasons for the AAT's conclusion that Mr Fenner's evidence had inconsistencies was illogical. It drew conclusions which I do not think were logically available to it. However, want of logic in fact finding, of itself, does not constitute error of law: see per Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 356; SZEEO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 546 per Tamberlin J, at [14]-[17] and the cases cited at [14].
Case: Mines v Repatriation Commission (2004) 86 ALD 62
Outcome: cited
The conclusion of the AAT that, on the balance of probabilities, Mr Fenner did not suffer from PTSD reflects the approach approved by Gray J in Mines v Repatriation Commission (2004) 86 ALD 62 at 74, at [48]. 64 Given the findings of the AAT about Mr Fenner's exposure to the scare charges and to the full steam ahead incident, it is instructive to note the conclusions of the psychiatrist whose evidence the AAT accepted about the connection between Mr Fenner's disease of alcohol abuse and his operational service. Professor Goldney said: It is a reasonable hypothesis that Mr Fenner's alcohol abuse is related to the stressors he alleges ... it is pertinent that often alcohol dependence is associated with anti-social personality disorders, and it is not necessary to invoke the specific stressors to explain Mr Fenner's alcohol dependence. Nevertheless, if in fact the alleged stressors did occur, then one could state it is a reasonable hypothesis that they, at the very least, contributed to his alcohol abuse. 65 As that evidence shows, those or many of those who experienced scare charges had the concern that the ship may have been under attack and so felt frightened. In my view that evidence was relevant not just to whether the scare charges and the full ahead incident were severe stressors, but also to whether the AAT was satisfied beyond reasonable doubt that Mr Fenner uniquely, or almost uniquely, did not in fact react as would have been expected and as others did. It also shows that the medical evidence preferred by the AAT also recognised the potential role of the stressors in Mr Fenner's disease. The AAT has not referred to that evidence. Senior counsel for the Commission contended that it was unnecessary that it should do so. But I think, in the circumstances, the absence of any reference to that material demonstrates more than illogicality upon the part of the AAT in the respects I have mentioned. I think it demonstrates that the AAT has equated a satisfaction beyond reasonable doubt that Mr Fenner was not a reliable witness and that no weight could be placed on his own evidence with a conclusion beyond reasonable doubt that he was not in fact scared by the two stressors. In my view that amounts to an error of law on the part of the AAT. I conclude that it has therefore erred in law by failing to apply the clear direction of s 120(1) to the facts. The absence of reference to relevant evidence on that topic tends to confirm that conclusion.
Case: Corpique (Number 20) Proprietary Limited v Eastcourt Limited (1999) 15 ACLR 586
Outcome: considered
might, having regard to those sentiments, call into question, on the basis of such authorities, the propriety of the resignation of the last of the directors of the company. That said, though, in the ordinary course of events, it would be possible for the shareholders of a company to remove directors and to replace them. Further, as Cohen J observed in Corpique (Number 20) Proprietary Limited v Eastcourt Limited (1999) 15 ACLR 586 , it would not be a proper exercise of a company's powers, either under statute or under its constitution, to pass resolutions removing directors and not replacing them such that the minimum number required by law was not maintained.
Case: Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210
Outcome: cited
The bankrupt is not entitled, having been adjudged bankrupt, to bring proceedings against his trustee and other parties seeking to maintain a claim for, if it be his claim, as I say it is not particularised, that the trustee and those other parties maliciously procured the bankruptcy or conspired amongst themselves to cause the bankruptcy to occur: Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210. Nor, in my opinion, can the applicant do what the applicant sought to do by seeking to set aside the bankruptcy and have an order for an annulment bring proceedings at the same time against those other parties, if it be the case, for the malicious procurement of the bankruptcy or conspiracy to cause the bankruptcy: Re Coyle and Another (1993) 120 ALR 527. In my opinion, these proceedings are misconceived. The applicant is not entitled in this proceeding to seek damages against the third to ninth respondents whilst at the same time seeking to set aside the order for bankruptcy and seeking an order for an annulment. Whilst he remains a bankrupt he has no right of action of the kind that he seeks to pursue against the third to ninth respondents.
Case: Re Coyle and Another (1993) 120 ALR 527
Outcome: cited
The bankrupt is not entitled, having been adjudged bankrupt, to bring proceedings against his trustee and other parties seeking to maintain a claim for, if it be his claim, as I say it is not particularised, that the trustee and those other parties maliciously procured the bankruptcy or conspired amongst themselves to cause the bankruptcy to occur: Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210. Nor, in my opinion, can the applicant do what the applicant sought to do by seeking to set aside the bankruptcy and have an order for an annulment bring proceedings at the same time against those other parties, if it be the case, for the malicious procurement of the bankruptcy or conspiracy to cause the bankruptcy: Re Coyle and Another (1993) 120 ALR 527. In my opinion, these proceedings are misconceived. The applicant is not entitled in this proceeding to seek damages against the third to ninth respondents whilst at the same time seeking to set aside the order for bankruptcy and seeking an order for an annulment. Whilst he remains a bankrupt he has no right of action of the kind that he seeks to pursue against the third to ninth respondents.
Case: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: referred to
The test is no longer the one propounded in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125. The test is now whether there is any reasonable prospect of the party successfully prosecuting the proceeding. 23 In my opinion, there is no prospect at all, let alone a reasonable prospect of the applicant prosecuting the proceeding against the third to ninth respondents for the reasons already advanced. There is no reasonable prospect of the applicant prosecuting the proceedings against the second respondent, who is not the trustee of the applicant's bankrupt estate but the trustee of his wife's bankrupt estate. As I have already mentioned, his wife sought that her application for an annulment be dismissed this morning. I am also satisfied that there is no reasonable prospect that the applicant could prosecute an application for an annulment against the first respondent in the absence of any proper particulars. For all of those reasons, the proceeding is dismissed. 24 Each of the respondents has sought costs against the applicant and on an indemnity basis. In my opinion, this is one of those cases where it would be appropriate to make an order of that kind, having regard to what I have already described as the scandalous allegations in the proceeding which has been brought, and the hopelessness of the proceeding generally.
Case: Guest v Commissioner of Taxation [2007] FCA 193
Outcome: cited
On 23 February 2007 I delivered reasons substantially upholding Mr Guest's contentions in this matter. I directed that counsel bring in minutes of proposed orders to give effect to the reasons: Guest v Commissioner of Taxation [2007] FCA 193. 2 Differences have arisen between the parties as to the appropriate calculation of interest for which I have held Mr Guest is entitled to deductions. Written submissions have been filed. 3 Two issues arise: the method of calculation of interest and the application of sale of fruit proceeds. Depending on which approach is correct as to each issue, Mr Guest may have been under no liability at all to Rural Finance as at 31 March 1991 in which case no deductions will be allowable for the tax years in question (1998 2001 inclusive). Alternatively, there may be a liability which will result in a deduction for substantially less than the amounts claimed.