mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: O'Neill v Mann [2000] FCA 1650
Outcome: cited
There is force in the proposition of the plaintiffs that in circumstances such as these where the parties have argued to abandon the litigation because of the disproportionate burden of costs, the Court should be slow to order costs against the plaintiff: cf JJ Stratford &amp; Son Ltd v Lindley (No 2) [1969] 1 WLR 1547 at 1553-54 and Australian Securities Commission v Aust-Home Investments Limited (1993) 116 ALR 523 at 530. Relevant of course is the default such that the party who discontinues often pays costs: O'Neill v Mann [2000] FCA 1650 at [13] . It is appropriate, however, to look at the whole of the circumstances including the kinds of considerations to which I earlier referred, the reasonableness and efficiency of the conduct of the proceedings by all parties, the extent to which parties who were asserting that they were not liable frankly informed the plaintiff with substantiating material of their position, and the contemporaneous views of the commercial parties as to an appropriate course.
Case: Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558
Outcome: cited
An appeal from the Federal Magistrates Court's decision is an appeal by way of a re-hearing. The powers of the appellate court are to be exercised only where the appellant can demonstrate, having regard to all the evidence before the appellate court, that the order that is the subject of appeal is the result of some legal, factual or discretionary error: Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558 at [4] .
Case: Kim v Witton (1995) 59 FCR 258
Outcome: cited
The next step in the appellant's submissions is also misconceived. Counsel for the appellant contended that in considering the question whether there had been substantial compliance with condition 8202, the decision in Gurung requires that the Tribunal confine itself to an examination of the appellant's academic results rather than an assessment of the appellant's academic progress. In my opinion, this is a misreading of Gurung : Tamberlin J in that case held that it was open to the Tribunal to find that the applicant had not substantially complied with condition 8202, having regard to the applicant's high failure rate. His Honour did not suggest that the Tribunal must have regard solely to the applicant's failure rate, expressed as a percentage of the number of subjects for which the appellant sat, in assessing whether there has been substantial compliance with condition 8202: see Kim v Witton (1995) 59 FCR 258. RMIT did not certify that the appellant's results were at least satisfactory. As Hartnett FM stated, there was no certificate provided and nor should there have been having regard to the evidence of the appellant's academic results. There was ample evidence of the appellant's poor academic performance in the present case, and of RMIT's opinion that the appellant's results were unsatisfactory.
Case: Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54
Outcome: considered
appellant contended that the findings of the Tribunal in these paragraphs were wrong, and that upon the basis of the alleged incorrect advice given by Centrelink, the appellant returned to Australia. I do not find any error (of law or otherwise) in those two paragraphs. Having regard to the sequence of events described, namely, the appellant's receipt of the letter and the subsequent telephone conversation and the nature of the telephone inquiry, it seems to me that the conclusions reached by the Tribunal were correct. It may well be that the appellant misunderstood the terms of the information, and upon the basis of the communication did act in returning to Australia before 1 July 2004. Later on in its reasons, the Tribunal accepted that had the appellant realised that if he came back to Australia and was not absent on 1 July 2004, there would be a limitation of his disability support pension, he would not have returned to Australia on 22 June 2004. However, this does not mean the advice was incorrect, just that it may have been misunderstood, and upon that basis, it was acted upon. In any event, paragraphs [8] and [9] represent findings of fact of the Tribunal and are not reviewable by this Court (see s 44 of the Administrative Appeals Tribunal Act 1975 (Cth)). Even if the findings of fact were erroneous, it would not constitute an error of law: see Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 at 77 per Brennan J. The appellant contends that the respondent is now estopped from not exercising the discretion found in cl 135 in his favour. If I am wrong and the advice given to the appellant was incorrect, the respondent is not estopped from refusing to determine that the appellant's maximum portability period for disability support pension is for an unlimited period, where the Act now limits the portability period for disability support pension to 13 weeks.
Case: Australian Mutual Provident Society v Gregory (1908) 5 CLR 615
Outcome: applied
although the orders made in respect of the respondent's property by the High Court of Justice in the United Kingdom are not recognised in this Court as operating as an assignment of the respondent's Australian lands ( Australian Mutual Provident Society v Gregory (1908) 5 CLR 615), the Court may act in aid of the foreign court under s 29 Bankruptcy Act to make property in Australia available to the trustee in bankruptcy to enable it to be realised for the benefit of the creditors in the foreign bankruptcy: Australian Mutual Provident Society v Gregory (1908) 5 CLR 615 at 623, 625, 628, 630; Radich v Bank of New Zealand [1993] FCA 450 ; (1993) 45 FCR 101 at 109, 115, 119; Dick as Trustee in Bankruptcy v McIntosh [2001] FCA 1008 at [7] . Indeed, s 29(1) requires this Court to give all assistance it can to a requesting Court if the conditions of the section are satisfied, leaving this Court with a discretion as to what assistance ought to be given (including discretion as to any conditions attach to the provision of assistance): Re Ayres; Ex parte Evans (1981) 51 FLR 395 at 405-407 esp at 407 per Lockhart J; Ayres v Evans (1981) 56 FLR 235 (FC) at 240, 247, 254-255; Radich v Bank of New Zealand at 105, 118; Dick as Trustee in Bankruptcy v McIntosh at [8].
Case: Ayres v Evans (1981) 56 FLR 235
Outcome: cited
although the orders made in respect of the respondent's property by the High Court of Justice in the United Kingdom are not recognised in this Court as operating as an assignment of the respondent's Australian lands ( Australian Mutual Provident Society v Gregory (1908) 5 CLR 615), the Court may act in aid of the foreign court under s 29 Bankruptcy Act to make property in Australia available to the trustee in bankruptcy to enable it to be realised for the benefit of the creditors in the foreign bankruptcy: Australian Mutual Provident Society v Gregory (1908) 5 CLR 615 at 623, 625, 628, 630; Radich v Bank of New Zealand [1993] FCA 450 ; (1993) 45 FCR 101 at 109, 115, 119; Dick as Trustee in Bankruptcy v McIntosh [2001] FCA 1008 at [7] . Indeed, s 29(1) requires this Court to give all assistance it can to a requesting Court if the conditions of the section are satisfied, leaving this Court with a discretion as to what assistance ought to be given (including discretion as to any conditions attach to the provision of assistance): Re Ayres; Ex parte Evans (1981) 51 FLR 395 at 405-407 esp at 407 per Lockhart J; Ayres v Evans (1981) 56 FLR 235 (FC) at 240, 247, 254-255; Radich v Bank of New Zealand at 105, 118; Dick as Trustee in Bankruptcy v McIntosh at [8]. Sixth, it is clear that under s 29 Bankruptcy Act the Court has power to appoint a receiver of the respondent's property in Australia in aid of the administration of the respondent's insolvent estate in the United Kingdom: Re Ayres; Ex parte Evans (1981) 51 FLR at 408-409; Ayres v Evans (1981) 56 FLR at 240, 247, 255; Radich v Bank of New Zealand at 121-122; Dick as Trustee in Bankruptcy v McIntosh at [19].
Case: Dick as Trustee in Bankruptcy v McIntosh [2001] FCA 1008
Outcome: cited
although the orders made in respect of the respondent's property by the High Court of Justice in the United Kingdom are not recognised in this Court as operating as an assignment of the respondent's Australian lands ( Australian Mutual Provident Society v Gregory (1908) 5 CLR 615), the Court may act in aid of the foreign court under s 29 Bankruptcy Act to make property in Australia available to the trustee in bankruptcy to enable it to be realised for the benefit of the creditors in the foreign bankruptcy: Australian Mutual Provident Society v Gregory (1908) 5 CLR 615 at 623, 625, 628, 630; Radich v Bank of New Zealand [1993] FCA 450 ; (1993) 45 FCR 101 at 109, 115, 119; Dick as Trustee in Bankruptcy v McIntosh [2001] FCA 1008 at [7] . Indeed, s 29(1) requires this Court to give all assistance it can to a requesting Court if the conditions of the section are satisfied, leaving this Court with a discretion as to what assistance ought to be given (including discretion as to any conditions attach to the provision of assistance): Re Ayres; Ex parte Evans (1981) 51 FLR 395 at 405-407 esp at 407 per Lockhart J; Ayres v Evans (1981) 56 FLR 235 (FC) at 240, 247, 254-255; Radich v Bank of New Zealand at 105, 118; Dick as Trustee in Bankruptcy v McIntosh at [8]. Sixth, it is clear that under s 29 Bankruptcy Act the Court has power to appoint a receiver of the respondent's property in Australia in aid of the administration of the respondent's insolvent estate in the United Kingdom: Re Ayres; Ex parte Evans (1981) 51 FLR at 408-409; Ayres v Evans (1981) 56 FLR at 240, 247, 255; Radich v Bank of New Zealand at 121-122; Dick as Trustee in Bankruptcy v McIntosh at [19].
Case: Radich v Bank of New Zealand [1993] FCA 450 ; (1993) 45 FCR 101
Outcome: applied
although the orders made in respect of the respondent's property by the High Court of Justice in the United Kingdom are not recognised in this Court as operating as an assignment of the respondent's Australian lands ( Australian Mutual Provident Society v Gregory (1908) 5 CLR 615), the Court may act in aid of the foreign court under s 29 Bankruptcy Act to make property in Australia available to the trustee in bankruptcy to enable it to be realised for the benefit of the creditors in the foreign bankruptcy: Australian Mutual Provident Society v Gregory (1908) 5 CLR 615 at 623, 625, 628, 630; Radich v Bank of New Zealand [1993] FCA 450 ; (1993) 45 FCR 101 at 109, 115, 119; Dick as Trustee in Bankruptcy v McIntosh [2001] FCA 1008 at [7] . Indeed, s 29(1) requires this Court to give all assistance it can to a requesting Court if the conditions of the section are satisfied, leaving this Court with a discretion as to what assistance ought to be given (including discretion as to any conditions attach to the provision of assistance): Re Ayres; Ex parte Evans (1981) 51 FLR 395 at 405-407 esp at 407 per Lockhart J; Ayres v Evans (1981) 56 FLR 235 (FC) at 240, 247, 254-255; Radich v Bank of New Zealand at 105, 118; Dick as Trustee in Bankruptcy v McIntosh at [8]. Sixth, it is clear that under s 29 Bankruptcy Act the Court has power to appoint a receiver of the respondent's property in Australia in aid of the administration of the respondent's insolvent estate in the United Kingdom: Re Ayres; Ex parte Evans (1981) 51 FLR at 408-409; Ayres v Evans (1981) 56 FLR at 240, 247, 255; Radich v Bank of New Zealand at 121-122; Dick as Trustee in Bankruptcy v McIntosh at [19].
Case: Re Ayres; Ex parte Evans (1981) 51 FLR 395
Outcome: cited
although the orders made in respect of the respondent's property by the High Court of Justice in the United Kingdom are not recognised in this Court as operating as an assignment of the respondent's Australian lands ( Australian Mutual Provident Society v Gregory (1908) 5 CLR 615), the Court may act in aid of the foreign court under s 29 Bankruptcy Act to make property in Australia available to the trustee in bankruptcy to enable it to be realised for the benefit of the creditors in the foreign bankruptcy: Australian Mutual Provident Society v Gregory (1908) 5 CLR 615 at 623, 625, 628, 630; Radich v Bank of New Zealand [1993] FCA 450 ; (1993) 45 FCR 101 at 109, 115, 119; Dick as Trustee in Bankruptcy v McIntosh [2001] FCA 1008 at [7] . Indeed, s 29(1) requires this Court to give all assistance it can to a requesting Court if the conditions of the section are satisfied, leaving this Court with a discretion as to what assistance ought to be given (including discretion as to any conditions attach to the provision of assistance): Re Ayres; Ex parte Evans (1981) 51 FLR 395 at 405-407 esp at 407 per Lockhart J; Ayres v Evans (1981) 56 FLR 235 (FC) at 240, 247, 254-255; Radich v Bank of New Zealand at 105, 118; Dick as Trustee in Bankruptcy v McIntosh at [8]. Sixth, it is clear that under s 29 Bankruptcy Act the Court has power to appoint a receiver of the respondent's property in Australia in aid of the administration of the respondent's insolvent estate in the United Kingdom: Re Ayres; Ex parte Evans (1981) 51 FLR at 408-409; Ayres v Evans (1981) 56 FLR at 240, 247, 255; Radich v Bank of New Zealand at 121-122; Dick as Trustee in Bankruptcy v McIntosh at [19].
Case: Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321
Outcome: cited
meaning of "a question of law" in s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) has been considered by this Court in a number of cases. In addition, the requirements in the Rules of Court as to the contents of a notice of appeal under s 44(1) (see O 53 rr 2, 3 and Form numbered 55A) have been considered. It is not necessary for me to discuss the cases: Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321; Repatriation Commission v Hill [2002] FCAFC 192 ; (2002) 69 ALD 581 ; Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 ; HBF Health Funds Inc v Minister for Health and Ageing [2006] FCAFC 34 ; (2006) 149 FCR 291.
Case: Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21 ; (1979) 41 FLR 338
Outcome: followed
statement of the relevant principles is correct: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179 ; (1979) 24 ALR 577 ; Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21 ; (1979) 41 FLR 338. Deledio does not provide support for the applicant's submission. Ground 7
Case: Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522
Outcome: cited
meaning of "a question of law" in s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) has been considered by this Court in a number of cases. In addition, the requirements in the Rules of Court as to the contents of a notice of appeal under s 44(1) (see O 53 rr 2, 3 and Form numbered 55A) have been considered. It is not necessary for me to discuss the cases: Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321; Repatriation Commission v Hill [2002] FCAFC 192 ; (2002) 69 ALD 581 ; Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 ; HBF Health Funds Inc v Minister for Health and Ageing [2006] FCAFC 34 ; (2006) 149 FCR 291.
Case: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179 ; (1979) 24 ALR 577
Outcome: followed
statement of the relevant principles is correct: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179 ; (1979) 24 ALR 577 ; Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21 ; (1979) 41 FLR 338. Deledio does not provide support for the applicant's submission. Ground 7
Case: Ettridge v TransAdelaide [1997] SASC 6753
Outcome: cited
contention in this ground of appeal is that the Tribunal erred in law "on the grounds of duplicity". There is no question of duplicity in the present proceeding and the case to which the applicant referred, Ettridge v TransAdelaide [1997] SASC 6753 , is not relevant to any issue before me. No doubt there were a number of issues before the Deputy President, but there is no reason to think that the proceeding miscarried because of the number of issues the parties were required to address. Ground 19 The contention in this ground of appeal is that the Tribunal erred in law in refusing to allow the applicant "to run his case in the way that he wished".
Case: Giannarelli v Wraith [1988] HCA 52 ; (1988) 165 CLR 543
Outcome: cited
applicant referred to various passages in the transcript of the hearing before the Tribunal (pages 194, 195, 197, 201, 202, 204, 205, 208, 209, 210, 214, 216, 217, 218, 219, 220 and 233-345). He also referred to the decision in Giannarelli v Wraith [1988] HCA 52 ; (1988) 165 CLR 543. I have considered the transcript and I am satisfied that the Deputy President did no more than control the proceeding before him in an appropriate manner. Ground 20 The contention in this ground of appeal is that the Tribunal erred in law in refusing to allow the applicant to ask witnesses relevant questions and to cross-examine witnesses in the witness box. This ground seems to be formulated on the assumption that an applicant is entitled to ask whatever question he or she thinks is appropriate. That is not the case. The Deputy President has the power to disallow irrelevant, scandalous or oppressive questions. In my opinion, the Deputy President did no more than exercise appropriate control in respect of the conduct of the application for review. Ground 21
Case: HBF Health Funds Inc v Minister for Health and Ageing [2006] FCAFC 34 ; (2006) 149 FCR 291
Outcome: cited
meaning of "a question of law" in s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) has been considered by this Court in a number of cases. In addition, the requirements in the Rules of Court as to the contents of a notice of appeal under s 44(1) (see O 53 rr 2, 3 and Form numbered 55A) have been considered. It is not necessary for me to discuss the cases: Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321; Repatriation Commission v Hill [2002] FCAFC 192 ; (2002) 69 ALD 581 ; Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 ; HBF Health Funds Inc v Minister for Health and Ageing [2006] FCAFC 34 ; (2006) 149 FCR 291.
Case: Kowalski v Repatriation Commission [2008] FCA 1970
Outcome: cited
concluding these reasons, I record the fact that the applicant asked me to disqualify myself from hearing this appeal. I declined to do so: Kowalski v Repatriation Commission [2008] FCA 1970. Leave to appeal from my decision was refused: Kowalski v Repatriation Commission [2009] FCA 47. I certify that the preceding one hundred and twenty-eight (128) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 30 July 2009 The Applicant appeared in person. Counsel for the Respondent: Mr G Camilos Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 22 January 2009 Date of Judgment: 30 July 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/794.html
Case: Kowalski v Repatriation Commission [2009] FCA 47
Outcome: cited
concluding these reasons, I record the fact that the applicant asked me to disqualify myself from hearing this appeal. I declined to do so: Kowalski v Repatriation Commission [2008] FCA 1970. Leave to appeal from my decision was refused: Kowalski v Repatriation Commission [2009] FCA 47. I certify that the preceding one hundred and twenty-eight (128) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 30 July 2009 The Applicant appeared in person. Counsel for the Respondent: Mr G Camilos Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 22 January 2009 Date of Judgment: 30 July 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/794.html
Case: Langley v Repatriation Commission [1993] FCA 299 ; (1993) 43 FCR 194
Outcome: followed
respondent's response to this contention is, in my opinion, correct. The applicant claimed that his conditions were related to service through a connection with his duodenal ulcer and, in those circumstances, the Tribunal was required to determine whether his duodenal ulcer was relevantly related to his defence service: Langley v Repatriation Commission [1993] FCA 299 ; (1993) 43 FCR 194 at 201 per Lockhart and Beazley JJ; McKenna v Repatriation Commission [1999] FCA 323 ; (1999) 86 FCR 144 at 151 [20] per Branson, Sundberg and Kenny JJ. The previous acceptance of liability for the applicant's duodenal ulcer under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) did not prevent the Tribunal from considering this matter. The cases to which the applicant referred do not support his argument ( Fitzmaurice v Repatriation Commission (1989) 19 ALD 297 and Power v Comcare (1998) 89 FCR 514). Ground 2
Case: Lees v Repatriation Commission [2002] FCAFC 398 ; (2002) 125 FCR 331
Outcome: cited
Deputy President referred to the definition of "hypertension" in clause 2(b) and the definition of the expression "being obese" in clause 8. He also referred to the meaning of "clinical onset" as articulated in the cases ( Lees v Repatriation Commission [2002] FCAFC 398 ; (2002) 125 FCR 331 ; Repatriation Commission v Cornelius [2002] FCA 750). It is clear from the Deputy President's reasons that he was aware of the blood pressure reading in March 1973 and that he took it into account (at [67]-[68]). I also agree with the respondent's submission that the Deputy President's analysis of the authorities ( Lees v Repatriation Commission [2002] FCAFC 398 ; (2002) 125 FCR 331 ; Repatriation Commission v Cornelius [2002] FCA 750) was correct and it was open to him to find that the clinical onset of the applicant's hypertension was 24 August 1984. Ground 4
Case: McDonald v Director-General of Social Security [1984] FCA 57 ; (1984) 1 FCR 354
Outcome: followed
my opinion, the respondent's submission, that where the decision-maker cannot be satisfied on the evidence before it of the existence of a necessary fact for the claim to succeed, then it cannot decide the claim in the claimant's favour, is correct ( McDonald v Director-General of Social Security [1984] FCA 57 ; (1984) 1 FCR 354 at 358-359 per Woodward, Northrop and Jenkinson JJ). Deledio and O'Brien do not support the applicant's submission. Ground 12 The contention raised in this ground of appeal is that the Tribunal erred in law in placing the onus of proof on the applicant. I have read the paragraphs in the Tribunal's reasons to which the applicant referred ([123], [125], [127] and [128]). I do not think that the Tribunal placed the onus of proof on the applicant. The Deputy President said: "However, except to this extent, it remained necessary for Mr Kowalski to adduce evidence or documents in support of his claim. Proceedings in this tribunal are administrative proceedings, and where (as in the present matter) the relevant legislation does not impose, expressly or by implication, an onus of proof, neither party bears such an onus: Bushell (supra) at 425. Nevertheless, it remains necessary for a party asserting facts to adduce evidence which would support a finding by the tribunal that those facts exist: McDonald v Director-General of Social Security [1984] FCA 57 ; (1984) 1 FCR 354 , at 358." There is no error in the Deputy President's reasoning and this ground of appeal must be rejected. Ground 38 The contention in this ground of appeal is that the Tribunal erred in law in failing to determine, as a preliminary matter, whether the applicant suffered from the claimed psychiatric conditions in accordance with s 120(4) of the Act. This ground of appeal does not raise a question of law. In any event, nothing was put to support the ground of appeal. Ground 39