mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402
Outcome: referred to
already noted there is authority to support an affirmative answer to this question. It is to be found in the Victorian Supreme Court's decision in the State Electricity Commission case. Authority is also to be found in decisions of this Court. In Dornan v Riordan (1990) 24 FCR 564 , a Full Court held that a failure to give adequate reasons constitutes an error of law justifying the setting aside of an administrative decision. See also Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 ; Preston v Secretary, Department of Family and Community Services (2004) 39 AAR 177 at 184; Hill v Repatriation Commission [2004] FCA 832 ; (2004) 207 ALR 470 at 474; and, most recently, Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137. These were cases in which the tribunal concerned had produced cryptic and uninformative reasons such that the reviewing court could not discern why it was that the tribunal had reached the impugned decision. In particular it was not possible to determine whether the correct legal principles had been applied. In Dornan , the Full Court drew on authorities such as Pettitt v Dunkley [1971] 1 NSWLR 376 in which appellate courts had found that trial judges erred in law if they failed to provide reasons or sufficient reasons thereby depriving the appeal court of the capacity to determine whether a verdict had been reached in accordance with law.
Case: Padfield v Minister of Agriculture, Fisheries and Food [1968] UKHL 1 ; [1968] AC 997
Outcome: referred to
approach did not enjoy universal acceptance. In Comcare v Lees (1997) 151 ALR 647 at 656-9, Finkelstein J reviewed the authorities which commenced with Dornan and concluded that, were he not bound by these decisions, he would not follow them. He drew attention to conflicting decisions, including that of Brennan J in Repatriation Commission v O'Brien [1985] HCA 10 ; (1985) 155 CLR 422 at 445-6 and the English Divisional Court in Mountview Court Properties Ltd v Devlin (1970) 21 P &amp; CR 689. He considered it to be inappropriate to draw on cases in which appellate courts found reasons to be inadequate because, in such cases, no remedies such as a statutory order in the nature of mandamus were available to require the relevant trial judges to rectify the deficiencies in their reasons. His Honour also noted that, in the appellate context, the appellable error was founded on common law doctrine rather than on the construction of a statutory obligation to provide reasons. One might add that there is no compelling reason for treating a decision as errant solely because no reasons or no adequate reasons have been advanced to support it, unless one was attracted to Lord Denning's notion that, if a decision-maker fails to give reasons for a decision, a reviewing court could infer that he did not have any good reasons: see Padfield v Minister of Agriculture, Fisheries and Food [1968] UKHL 1 ; [1968] AC 997 at 1007.
Case: Pettitt v Dunkley [1971] 1 NSWLR 376
Outcome: referred to
already noted there is authority to support an affirmative answer to this question. It is to be found in the Victorian Supreme Court's decision in the State Electricity Commission case. Authority is also to be found in decisions of this Court. In Dornan v Riordan (1990) 24 FCR 564 , a Full Court held that a failure to give adequate reasons constitutes an error of law justifying the setting aside of an administrative decision. See also Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 ; Preston v Secretary, Department of Family and Community Services (2004) 39 AAR 177 at 184; Hill v Repatriation Commission [2004] FCA 832 ; (2004) 207 ALR 470 at 474; and, most recently, Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137. These were cases in which the tribunal concerned had produced cryptic and uninformative reasons such that the reviewing court could not discern why it was that the tribunal had reached the impugned decision. In particular it was not possible to determine whether the correct legal principles had been applied. In Dornan , the Full Court drew on authorities such as Pettitt v Dunkley [1971] 1 NSWLR 376 in which appellate courts had found that trial judges erred in law if they failed to provide reasons or sufficient reasons thereby depriving the appeal court of the capacity to determine whether a verdict had been reached in accordance with law.
Case: Preston v Secretary, Department of Family and Community Services (2004) 39 AAR 177
Outcome: referred to
already noted there is authority to support an affirmative answer to this question. It is to be found in the Victorian Supreme Court's decision in the State Electricity Commission case. Authority is also to be found in decisions of this Court. In Dornan v Riordan (1990) 24 FCR 564 , a Full Court held that a failure to give adequate reasons constitutes an error of law justifying the setting aside of an administrative decision. See also Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 ; Preston v Secretary, Department of Family and Community Services (2004) 39 AAR 177 at 184; Hill v Repatriation Commission [2004] FCA 832 ; (2004) 207 ALR 470 at 474; and, most recently, Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137. These were cases in which the tribunal concerned had produced cryptic and uninformative reasons such that the reviewing court could not discern why it was that the tribunal had reached the impugned decision. In particular it was not possible to determine whether the correct legal principles had been applied. In Dornan , the Full Court drew on authorities such as Pettitt v Dunkley [1971] 1 NSWLR 376 in which appellate courts had found that trial judges erred in law if they failed to provide reasons or sufficient reasons thereby depriving the appeal court of the capacity to determine whether a verdict had been reached in accordance with law. The Full Court referred to Dornan and noted that, in Lees , Finkelstein J had acknowledged that he was bound to follow Dornan . It referred to Preston and Hill as authority for the proposition that a "failure to state reasons for a decision at least in those circumstances where a statement of reasons is a requirement of the exercise of the decision-making process constitutes an error of law": at [49].
Case: Repatriation Commission v O'Brien [1985] HCA 10 ; (1985) 155 CLR 422
Outcome: considered
approach did not enjoy universal acceptance. In Comcare v Lees (1997) 151 ALR 647 at 656-9, Finkelstein J reviewed the authorities which commenced with Dornan and concluded that, were he not bound by these decisions, he would not follow them. He drew attention to conflicting decisions, including that of Brennan J in Repatriation Commission v O'Brien [1985] HCA 10 ; (1985) 155 CLR 422 at 445-6 and the English Divisional Court in Mountview Court Properties Ltd v Devlin (1970) 21 P &amp; CR 689. He considered it to be inappropriate to draw on cases in which appellate courts found reasons to be inadequate because, in such cases, no remedies such as a statutory order in the nature of mandamus were available to require the relevant trial judges to rectify the deficiencies in their reasons. His Honour also noted that, in the appellate context, the appellable error was founded on common law doctrine rather than on the construction of a statutory obligation to provide reasons. One might add that there is no compelling reason for treating a decision as errant solely because no reasons or no adequate reasons have been advanced to support it, unless one was attracted to Lord Denning's notion that, if a decision-maker fails to give reasons for a decision, a reviewing court could infer that he did not have any good reasons: see Padfield v Minister of Agriculture, Fisheries and Food [1968] UKHL 1 ; [1968] AC 997 at 1007.
Case: Stuart v Kirland-Veenstra [2009] HCA 15 ; (2009) 254 ALR 432
Outcome: referred to
Kennedy contended that s 27 makes remedial provision for an eligible person who has been disadvantaged by having suffered a serious misfortune. For an eligible person so disadvantaged, s 27 provides a benevolent scheme: a person who suffered serious misfortune should be no worse off than he or she might have been had the relevant period been worked. Accordingly, once an eligible person comes within the purview of ss 27(1)(a) and (b) of the Management Plan, he or she is entitled as of right to AFMA's making the calculations prescribed by ss 27(1)(c) and (d): see Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 at 222-223; The Metropolitan Coal Company of Sydney Limited v The Australian Coal and Shale Employees' Federation [1917] HCA 64 ; (1917) 24 CLR 85 at 96-100; Re United Firefighters Union (1969) 129 CAR 43 at 52-55; Finance Facilities Pty Limited v The Commissioner of Taxation of the Commonwealth of Australia [1971] HCA 12 ; (1971) 127 CLR 106 at 134-5; Stuart v Kirland-Veenstra [2009] HCA 15 ; (2009) 254 ALR 432 at 468. It was submitted that the word "may" in s 27(1)(c) of the Management Plan confers a power on AFMA which is to be exercised upon its satisfaction of the matters described in ss 27(1)(a) and (b): see Leach v The Queen [2007] HCA 3 ; (2007) 230 CLR 1 at 17-18 .
Case: TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175
Outcome: cited
161 of the Act, like s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"), allows an appeal to this Court only on a question of law. The existence of a question of law is not merely a qualifying condition to ground an appeal under s 44, but is also the subject matter of the appeal itself: see TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 at 178 per Gummow J. The Court has repeatedly emphasised the need for pure questions of law to be identified and for them to appear in the notice of appeal in order for the Court to be able to entertain an appeal: see, for example, Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524; Birdseye at 324-325; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at 300-302; Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at 526-527; Commissioner of Taxation v Dixon [2006] FCA 1250 ; (2006) 155 FCR 101 at 104-106; Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 169 FCR 241 at 253-7. In Birdseye , Branson and Stone JJ held (at 325) that: "... O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the tribunal should be stated with precision as a pure question of law . It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal" (emphasis added).
Case: United Firefighters Union, Re (1969) 129 CAR 43
Outcome: referred to
Kennedy contended that s 27 makes remedial provision for an eligible person who has been disadvantaged by having suffered a serious misfortune. For an eligible person so disadvantaged, s 27 provides a benevolent scheme: a person who suffered serious misfortune should be no worse off than he or she might have been had the relevant period been worked. Accordingly, once an eligible person comes within the purview of ss 27(1)(a) and (b) of the Management Plan, he or she is entitled as of right to AFMA's making the calculations prescribed by ss 27(1)(c) and (d): see Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 at 222-223; The Metropolitan Coal Company of Sydney Limited v The Australian Coal and Shale Employees' Federation [1917] HCA 64 ; (1917) 24 CLR 85 at 96-100; Re United Firefighters Union (1969) 129 CAR 43 at 52-55; Finance Facilities Pty Limited v The Commissioner of Taxation of the Commonwealth of Australia [1971] HCA 12 ; (1971) 127 CLR 106 at 134-5; Stuart v Kirland-Veenstra [2009] HCA 15 ; (2009) 254 ALR 432 at 468. It was submitted that the word "may" in s 27(1)(c) of the Management Plan confers a power on AFMA which is to be exercised upon its satisfaction of the matters described in ss 27(1)(a) and (b): see Leach v The Queen [2007] HCA 3 ; (2007) 230 CLR 1 at 17-18 .
Case: Wentworth Securities Ltd v Jones [1980] AC 74
Outcome: referred to
contended that the plain language of s 27 requires the average of " all sequences of permits to be used". It submitted that the word "all" is to be given work to do and the language does not allow or permit a construction that means less than the total number of permits. The ordinary meaning of the word "all" is "the whole amount, quantity or extent of". It does not mean less than the total. It does not admit of the construction advanced by Mr Kennedy that only a subset of the permits, those that were "active" in a certain period, should be used to calculate the average. Mr Kennedy had invited the Court to read words into s 27 such that only "active" permits were to be taken into consideration. In such circumstances, it must be possible for the Court to state with certainty what the additional words were that would have been inserted by the draftsman and approved by Parliament, had their attention been drawn to the omission before the Bill passed into law: see Wentworth Securities Ltd v Jones [1980] AC 74 at 105. To seek to qualify the word "all" by the word "active" introduces ambiguity. The word "active" is not defined in the Management Plan. AFMA submitted that Mr Kennedy proceeded on an assumption that the Management Plan evinces an intention to maximise the allocation for those who consider themselves active fishers. Such an assumption is inconsistent with the language of the provisions, the portion of the formula which is based on permit value and with a choice of a particular qualifying period. AFMA rejected the significance which Mr Kennedy attached to the words "catch" and "set". Catch describes the product of fishing, rather than the activity of fishing. The words "catch" and "set" do not assist in limiting the class of permit-holders in "all sequences of that kind". The construction advanced by Mr Kennedy also ignored the definitions of "old longline permit" in s 20 of the Management Plan, which does not focus on activity under the permits, but the instrument which authorises fishing. The context and purpose of s 27 favour the construction advanced by AFMA which was accepted, without elaboration, by the Panel. Section 27 must be read in the context of the Management Plan as a whole. The Management Plan reflects policy choices on the allocation of commercial fishing rights, in relation to a finite resource. These choices are embodied in the formula in s 26. The phrase "all sequences of that kind" must be construed in this context.
Case: Burgess v Centrelink and Ors [2006] FMCA 1952
Outcome: cited
The applicants on the motion for an order for security for costs, namely Centrelink, the Secretary of the Department of Employment and Workplace Relations, and the Secretary, Department of Families, Community Services and Indigenous Affairs are the respondents to an appeal to the Federal Court of Australia by Mr Darren John Burgess, from a decision of Federal Magistrate Wilson on 18 December 2006 ( Burgess v Centrelink and Ors [2006] FMCA 1952) , dismissing the appellant's application for an extension of time to file and serve a notice of appeal from the Administrative Appeals Tribunal given on 6 September 2006. 2 The appellant on 22 January 2007, filed, in this court, an application for leave to appeal from the decision of Federal Magistrate Wilson and a notice of appeal. The applicants on the motion acknowledge that leave to appeal is not required from the decision of Federal Magistrate Wilson on the footing that the decision is a final decision of that court. 3 Mr Burgess has appeared this morning by telephone in response to the application for security for costs.
Case: Carey-Hazell v Getz Brothers &amp; Co (Aust) Pty Ltd [2004] FCA 1334
Outcome: cited
The Federal Court of Australia Act and Order 52, rule 20 of the Federal Court Rules provides for what has been described as an 'undeniably broad discretionary judgment' ( Carey-Hazell v Getz Brothers &amp; Co (Aust) Pty Ltd [2004] FCA 1334 per French J [32]), which is consistent with other expressions of view: note, Cooper v Universal Music Australia Pty Ltd [2006] FCA 642 per Tamberlin J [11]. In the decision in Carey-Hazell v Getz , French J noted a number of considerations to be taken into account in the exercise of the discretion and those discretionary considerations derive, in large part, from the observations of Hill J in Equity Access v Westpac Banking Corporation (1989) ATPR 40-972 at 50,635, and the observations of Beazley J in KP Cable Investments Pty Ltd v Melt Glow Pty Ltd (1995) 56 FCR 189.
Case: Cooper v Universal Music Australia Pty Ltd [2006] FCA 642
Outcome: cited
The Federal Court of Australia Act and Order 52, rule 20 of the Federal Court Rules provides for what has been described as an 'undeniably broad discretionary judgment' ( Carey-Hazell v Getz Brothers &amp; Co (Aust) Pty Ltd [2004] FCA 1334 per French J [32]), which is consistent with other expressions of view: note, Cooper v Universal Music Australia Pty Ltd [2006] FCA 642 per Tamberlin J [11]. In the decision in Carey-Hazell v Getz , French J noted a number of considerations to be taken into account in the exercise of the discretion and those discretionary considerations derive, in large part, from the observations of Hill J in Equity Access v Westpac Banking Corporation (1989) ATPR 40-972 at 50,635, and the observations of Beazley J in KP Cable Investments Pty Ltd v Melt Glow Pty Ltd (1995) 56 FCR 189.
Case: Equity Access v Westpac Banking Corporation (1989) ATPR 40-972
Outcome: cited
The Federal Court of Australia Act and Order 52, rule 20 of the Federal Court Rules provides for what has been described as an 'undeniably broad discretionary judgment' ( Carey-Hazell v Getz Brothers &amp; Co (Aust) Pty Ltd [2004] FCA 1334 per French J [32]), which is consistent with other expressions of view: note, Cooper v Universal Music Australia Pty Ltd [2006] FCA 642 per Tamberlin J [11]. In the decision in Carey-Hazell v Getz , French J noted a number of considerations to be taken into account in the exercise of the discretion and those discretionary considerations derive, in large part, from the observations of Hill J in Equity Access v Westpac Banking Corporation (1989) ATPR 40-972 at 50,635, and the observations of Beazley J in KP Cable Investments Pty Ltd v Melt Glow Pty Ltd (1995) 56 FCR 189.
Case: KP Cable Investments Pty Ltd v Melt Glow Pty Ltd (1995) 56 FCR 189
Outcome: cited
The Federal Court of Australia Act and Order 52, rule 20 of the Federal Court Rules provides for what has been described as an 'undeniably broad discretionary judgment' ( Carey-Hazell v Getz Brothers &amp; Co (Aust) Pty Ltd [2004] FCA 1334 per French J [32]), which is consistent with other expressions of view: note, Cooper v Universal Music Australia Pty Ltd [2006] FCA 642 per Tamberlin J [11]. In the decision in Carey-Hazell v Getz , French J noted a number of considerations to be taken into account in the exercise of the discretion and those discretionary considerations derive, in large part, from the observations of Hill J in Equity Access v Westpac Banking Corporation (1989) ATPR 40-972 at 50,635, and the observations of Beazley J in KP Cable Investments Pty Ltd v Melt Glow Pty Ltd (1995) 56 FCR 189.
Case: Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd (1999) 46 IPR 309
Outcome: cited
to subconscious copying, Willmer LJ noted in Francis Day &amp; Hunter at p 613 that, "if subconscious copying is to be found, there must be proof (or at least a strong inference) of de facto familiarity with the work alleged to be copied". In the absence of any direct evidence of use of or access to the Jennings plan in suit, the causal link can be established by inference. The greater the degree of objective similarity between the two plans, the more likely it is that an inference of actual use might be drawn ( S W Hart &amp; Co (supra) per Gibbs CJ at 472; Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd (1999) 46 IPR 309 per Heerey, Sundberg and Finkelstein JJ). Exact copying is rarely the conduct in controversy. Normally an inference is sought to be drawn in the face of quantitative features of the plan in suit, present in the plan under challenge, or by correspondence with a substantial part qualitatively of the plaintiff's plan, or both. If the contention is that a substantial part of the plan in suit has been taken, a question of "fact and degree" arises ( Inform Design and Construction Pty Ltd v Boutique Homes Melbourne Pty Ltd [2008] FCA 912 per Weinberg J at [71]) and the "protected element may arise out of a combination of elements, any one of which considered individually might not qualify as sufficiently original to attract copyright" ( Inform Design , per Weinberg J at [71] [emphasis added]). An allegation of substantial reproduction of the work by reproduction of a substantial part will be made out if what is taken is an essential or material part of the work in suit. The phrase "substantial part" refers to the quality of that taken and the importance it bears to the work as a whole ( Tamawood v Henley Arch at [50], [52] and [54]; Dixon Investments Pty Ltd v Hall 18 IPR 490 at 494 per Lockhart, Spender and Ryan JJ; Autodesk Inc. v Dyason [No. 2] [1993] HCA 6 ; (1993) 176 CLR 300 per Mason CJ at 305). It may be that a particular orientation and layout of rooms which draws a user through a structure in a particular way is an essential or material part of a plan ( Eagle Homes Pty Ltd v Austec Homes Pty Ltd [1999] FCA 138 ; (1999) 161 ALR 503 at [74] ). Essentiality is a question of fact and degree.