mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313
Outcome: cited
context and the characteristics or properties of the original and the substitute can assist in ascertaining whether what is put forward is truly a substitution for what was originally there. Usually, it will be a question of fact whether a substitution or something more radical has occurred in a given case. In competition law, s 4E of the Trade Practices Act 1974 (Cth) provides a definition of a market as including a market for the particular goods or services under consideration "and other goods or services that are substitutable for ..." the former. Yet, the mere fact that a consumer will on occasion purchase tea instead of coffee does not necessarily mean that because of that substitution tea and coffee cannot be distinct goods with their own separate markets. On the other hand, it maybe that, if the relevant market is the hot beverage market, they will be substitutes; hence the importance of the context in which substitution is assessed: cp Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 332 per Lockhart, Wilcox and Gummow JJ; Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd [1989] HCA 6 ; (1989) 167 CLR 177 at 188 per Mason CJ and Wilson J.
Case: Australian Securities and Investments Commission v DB Management Pty Ltd [2000] HCA 7 ; (2000) 199 CLR 321
Outcome: applied
the construction of s 12DL(2) favoured by the Commission would broaden the scope of the strict liability offence created by s 12DL(1) in a manner that strains the natural and ordinary meaning of "a card of the same kind" as referring to one or other of the two cards referred to in s 12DL(1). This invites a more cautious approach to the looser construction of this criminal provision than the Commission's contention: Stevens 224 CLR at 210-211 [45]; Australian Securities and Investments Commission v DB Management Pty Ltd [2000] HCA 7 ; (2000) 199 CLR 321 at 338 [34] - [35] per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ; and see too R v Adams [1935] HCA 62 ; (1935) 53 CLR 563 at 567-568 where Rich, Dixon, Evatt and McTiernan JJ said: "No doubt, in determining whether an offence has been created or enlarged, the Court must be guided, as in other questions of interpretation, by the fair meaning of the language of the enactment, but when that language is capable of more than one meaning, or is vague or cloudy so that its denotation is uncertain and no sure conclusion can be reached by a consideration of the provisions and subject matter of the legislation, then it ought not to be construed as extending any penal category ." (emphasis added)
Case: Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594
Outcome: applied
construction of s 12DL must be approached having regard to its dual operation as a section that imposes both criminal and civil liability for a contravention of either s 12DL(1) or (4). The heading to the subdivision in the Act of which s 12DL forms part is headed "Consumer protection". That heading provides part of the context in which the substantive provisions of Subdiv D of Div 2 of Pt 2 of the Act must be construed: s 13 of the Acts Interpretation Act 1901 (Cth). The heading should be taken into consideration in determining the meaning of those sections in cases of ambiguity. However, as Mason CJ, Deane, Dawson and Gaudron JJ cautioned in Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 at 601, the heading does not control the permissible scope of the substantive provisions within the subdivision in the Act. The heading cannot properly be used to impose an unnaturally constricted or expanded meaning upon the words of those substantive provisions: cf Concrete Constructions 169 CLR at 601-602, 603-604.
Case: Federal Commissioner of Taxation v St Hubert's Island Pty Ltd (In Liq) [1978] HCA 10 ; (1978) 138 CLR 210
Outcome: discussed
expression "of the same kind" does not require that the previous and later cards are absolutely identical. A retail business will replace or substitute new goods for those it has sold. Sometimes suppliers of such goods discontinue production of a particular good or go out of business. The trader will often seek a replacement or substitute good that has some identity or characteristic in common with the unavailable product. The new good may be an improved version of the old with more functions or features, perhaps having shed others: cf the discussion in the dissenting judgments of Stephen J and Aickin J in Federal Commissioner of Taxation v St Hubert's Island Pty Ltd (In Liq) [1978] HCA 10 ; (1978) 138 CLR 210 at 218 and 242-243.
Case: Futures Industry (NSW) Code in Corporate Affairs Commission (NSW) v Lombard Nash International Pty Ltd (1986) 11 ACLR 566
Outcome: cited
Commission accepted that because a card could be sent in substitution for another of the same kind, the substitute did not have to be identical with the original card. But, it argued that the words "of the same kind" in s 12DL(2) should be construed as meaning "substantially of the same nature or type" following the view of Young J on that expression as used in s 4(1) of the Futures Industry (NSW) Code in Corporate Affairs Commission (NSW) v Lombard Nash International Pty Ltd (1986) 11 ACLR 566 at 569-570. The Commission argued that the word "kind" in s 12DL(2) did not relate back to just whether the card was a credit card or a debit card. This was because, it said, the definitions in s 12DL(5) did not create a bright line distinction between the two terms; indeed each card could have features of the other within their defined meanings. Thus, the Commission contended, one had to consider the functionality of each card in order to ascertain whether the cards were "of the same kind". This was a question of fact and degree. The Commission argued that the functionality of a Handycard was more limited than the new card. It said that the Handycard was used in a straightforward, simple manner requiring personal presence of the card holder and the use of his or her PIN to access the person's account at only two types of entry points, namely on EFTPOS or ATM machines. The Commission argued that this functionality was substantively different in kind to the broader range offered by the new card. It argued that because the new card could access different payment systems and be used by mail, over the telephone or on the internet, the risk of its unauthorised use was greater than that for a Handycard. It contended that these features amounted to a difference in kind.
Case: McNamara v Consumer Trader and Tenancy Tribunal [2005] HCA 55 ; (2005) 221 CLR 646
Outcome: cited
the predecessor versions of s 12DL had significantly different wording and operated differently. Secondly, because s 12DL in its present form is different to the previous versions, the relevant task of statutory construction is to construe the section as it now is. The previous wordings were in respect of differently expressed provisions, including the repealed offence created in the former version of s 12DL(1): cf McNamara v Consumer Trader and Tenancy Tribunal [2005] HCA 55 ; (2005) 221 CLR 646 at 661 [40] per McHugh, Gummow and Heydon JJ, Gleeson CJ agreeing at 650 [1]. Thirdly, I am of opinion that the language of the present s 12DL is clear and the earlier versions do not elucidate its meaning. Fourthly, the earlier version of s 12DL(1) expressly referred to two separate types of debit card including one being "a debit card of the same kind" which may have had a relationship to the expression "card of the same kind" as then used in s 12DL(2). In addition, there was also a definition of "debit card". The absence in the present s 12DL of the expression "a debit card of that kind" demonstrates the irrelevance of the earlier legislation to the construction of the Act in its present form. The Commission also relied on complaint logs to argue that the new card was not regarded by Westpac's customers as a card of the same kind as their Handycard. A total of 740 complaints was recorded although it is not clear whether one complainant could have had more than one complaint recorded. In any event, the total number of complaints is inconsequential having regard to the fact that over 420,000 new cards were issued, the last over six months ago. Next the Commission relied on what it asserted were differences in reported fraudulent use of all Westpac debit cards in relation to the category "card not present" in the 12 quarters to September 2009. The Commission did not put forward any analysis to make good its assertion that this material was probative of the new card not being a card of the same kind as the Handycard. As a percentage of the total amount spent on the cards, the incidence of this fraudulent use varied quarter by quarter within a range, while the overall spending has been significantly increasing. The first three quarters in 2008 and 2009 show broadly similar percentages although they are all slightly less for 2009. In contrast the incidence of fraudulent use of a PIN is very much smaller.
Case: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Outcome: applied
three purposes specified at the commencement of para (b) in s 12DL(2) must each be given a distinct meaning and operation. This is because the Court must strive to give meaning to every word of the provision and construe it, if possible, so as to give effect to harmonious goals: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69]-[71] per McHugh, Gummow, Kirby and Hayne JJ. A renewal of a card ordinarily will occur close to the expiry date of the credit or debit card. By renewing the card, the issuer creates a new expiry date for the card. A replacement card ordinarily would be one sent to take the place of a card that had been lost by or stolen from the cardholder. A card in substitution for an existing card is different, again, from a renewed or replacement card. A substitute is not normally an exact replica. Often a substitute will have different characteristics, even though it will be able to take the place of the original. The Oxford English Dictionary defines "substitution" as including "the putting of one ... thing in place of another" and "replacement (of one thing) by another". Suppose that on renewal, a renewed debit card has a significant new security feature offering the cardholder extra protection that the expired debit card did not have. Or suppose that because of improvements in technology a completely new payment system allowed the renewed card to be used in many more locations, but with the same security features as the expiring card. If the Commission's contentions were correct, the presence of the new security feature or the functionality with the new payment system would mean that the card was not "of the same kind" as the expiring card. I reject that argument.
Case: Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd [1989] HCA 6 ; (1989) 167 CLR 177
Outcome: cited
context and the characteristics or properties of the original and the substitute can assist in ascertaining whether what is put forward is truly a substitution for what was originally there. Usually, it will be a question of fact whether a substitution or something more radical has occurred in a given case. In competition law, s 4E of the Trade Practices Act 1974 (Cth) provides a definition of a market as including a market for the particular goods or services under consideration "and other goods or services that are substitutable for ..." the former. Yet, the mere fact that a consumer will on occasion purchase tea instead of coffee does not necessarily mean that because of that substitution tea and coffee cannot be distinct goods with their own separate markets. On the other hand, it maybe that, if the relevant market is the hot beverage market, they will be substitutes; hence the importance of the context in which substitution is assessed: cp Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 332 per Lockhart, Wilcox and Gummow JJ; Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd [1989] HCA 6 ; (1989) 167 CLR 177 at 188 per Mason CJ and Wilson J.
Case: R v Adams [1935] HCA 62 ; (1935) 53 CLR 563
Outcome: discussed
the construction of s 12DL(2) favoured by the Commission would broaden the scope of the strict liability offence created by s 12DL(1) in a manner that strains the natural and ordinary meaning of "a card of the same kind" as referring to one or other of the two cards referred to in s 12DL(1). This invites a more cautious approach to the looser construction of this criminal provision than the Commission's contention: Stevens 224 CLR at 210-211 [45]; Australian Securities and Investments Commission v DB Management Pty Ltd [2000] HCA 7 ; (2000) 199 CLR 321 at 338 [34] - [35] per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ; and see too R v Adams [1935] HCA 62 ; (1935) 53 CLR 563 at 567-568 where Rich, Dixon, Evatt and McTiernan JJ said: "No doubt, in determining whether an offence has been created or enlarged, the Court must be guided, as in other questions of interpretation, by the fair meaning of the language of the enactment, but when that language is capable of more than one meaning, or is vague or cloudy so that its denotation is uncertain and no sure conclusion can be reached by a consideration of the provisions and subject matter of the legislation, then it ought not to be construed as extending any penal category ." (emphasis added)
Case: Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9
Outcome: cited
As Beadle, Hales and Riddell indicate, the wording of the section is broad and does not, financial hardship alone aside, impose a fetter on the matters which may be considered by the decision maker. See also Trimboli v Secretary, Department of Social Security (1989) 86 ALR 64 at 73, and Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9 at [33]).
Case: Australian Postal Commission v Wallace (1996) 41 ALD 455
Outcome: applied
As Tamberlin J also observed in Australian Postal Commission v Wallace (1996) 41 ALD 455 , at 457: It is clear that s 43 is not to be construed with a pedantic eye but in a practical common sense way in order to determine, in substance, whether the decision conveys sufficient of the decision making process to enable the parties and other interested persons to properly understand it. Where the reasons expose the logical process underlying the decision and contain findings on matters of fact essential to that reasoning process, then as Burchett J said in Dodds v Comcare Australia (1993) 31 ALD 690 at 691: ... it will not be easy to demonstrate a failure of compliance with the requirements to include "findings on material questions of fact". 76 The appellant in this case argues that the Tribunal's reasons are deficient in several respects. First, the appellant argues that the statutory provision here under consideration requires the exercise of a discretion, as discussed by French J above. Accordingly, the appellant argues, this is not a case where the Tribunal can simply state a finding of fact and then move to a conclusion. It was further submitted that, in the Tribunal's reasons there is not to be found a statement of the evidence upon which the facts found were based; the materials before the Tribunal were listed, but were not discussed; the statements of principle are sometimes contradictory to the result reached; and in many instances, the facts found did not, on their face, answer the question posed by the statute. 77 The respondent argues that the Tribunal's conclusions incorporated its reasoning. By stating that the applicant's circumstances were not so special as to justify waiver, and by indicating that those circumstances were not "outside the ordinary run of cases", the Tribunal fulfilled its obligation. It was not required, argue the respondents, to go further. In direct contrast to the applicant, the respondent submits that this case is within that category of cases described by French J in paragraph [40] of his Honour's judgment set out above in which it is sufficient to state the rule or principle, the facts, the evidence upon which the facts are based, and the result.
Case: Re DSGR and Secretary, Department of Education, Science and Technology [2007] AATA 1981
Outcome: considered
For completeness, reference was made to Re DSGR and Secretary, Department of Education, Science and Technology [2007] AATA 1981 , where Senior Member Handley commented, at [43]: 43. From my part, whilst I would not exclude the possibility of the circumstances of a person being so special that set off by notional entitlement could never be permitted, I would think that those circumstances would be unusual and set off by notional entitlement would be a relatively uncommon occurrence.
Case: Re Sara and Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 708 ; (2006) 91 ALD 759
Outcome: approved
The appellant referred to decisions in which the Tribunal had considered notional entitlement relevant. Principal among these was the decision, subsequent to Schulze and Varhegyi , in Re Sara and Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 708 ; (2006) 91 ALD 759. In that case, Member Carstairs said, at [30]: Ms Dole submitted, referring to the tribunal decisions in Re Schulze and Secretary Department of Family and Community Services (2004) 81 ALD 636 ; [2004] AATA 705 and Re Secretary Department of Family and Community Services and Varhegyi (2005) 87 ALD 717 ; [2005] AATA 635 that it would be an incorrect approach to the discretion under s 1237AAD of the Act to incorporate a consideration of any notional entitlement to another payment in its exercise. I agree with the reasons expressed in those decisions that there is specific reference in other sections of the Act to particular payments (not including youth allowance) where notional entitlement is recognised. However, I do not understand either deputy president in these decisions to be stating that there are no circumstances in which notional entitlement can be considered in the context of the discretion for special circumstances. There are, after all, no fetters on this discretion, except as expressed in s1237AAD itself.
Case: Re Secretary, Department of Employment and Workplace Relations and QX2006/1 [2006] AATA 372 ; (2006) 90 ALD 320
Outcome: considered
Ms Kidson, counsel for the appellant, also referred to the decision of Deputy President Hack and Member Carstairs in Re Secretary, Department of Employment and Workplace Relations and QX2006/1 [2006] AATA 372 ; (2006) 90 ALD 320 ( QX2006/1 ). In that case, the applicant had applied for and received benefits using an assumed identity. After discovering the use of a false name, the Department sought to recover the payments made. It was acknowledged that had the applicant applied using his real name, he would have been entitled to the benefits paid. The applicant argued, amongst other things, that the debt should be waived under s 1237AAD. That case, therefore, is somewhat different to that under consideration here. The case was decided on other grounds; however the Tribunal made the following comments, which may be seen as relevant, with regard to "special circumstances" in s 1237AAD(b) (at 329-330): We are well satisfied that special circumstances exist where the payments made are identical to those to which the respondent would have been entitled had he applied in his own name. Provisions of this nature are designed to protect the revenue and permit the recovery of payments made in excess of an entitlement. Here, were it to be determined that there was a debt, the fact that the respondent had an equivalent, but not claimed, entitlement takes the present case out of the ordinary run of cases and gives to it a "special" character. (Emphasis added). 63 The view reflected by the Tribunal in Lyster, Huynh, Dobbie, Sara, and QX2006/1 referred to above, to the effect that notional entitlement is not necessarily excluded in considering whether "special circumstances" exist, for the purposes of s 1237AAD, is correct. 64 It follows that, in my view, notional entitlement should not be excluded from the range of available relevant considerations in deciding whether there are "special circumstances" to waive a debt under s 1237AAD. 65 The Tribunal's conclusion to the contrary, expressed in the first two sentences of [48] of its reasons, is wrong.
Case: Re Secretary, Department of Family and Community Services and Lyster (2000) 59 ALD 587
Outcome: approved
In Schulze , the applicant had been overpaid a parenting allowance, following which the Department raised and sought to recover the debt. The sole question for the Tribunal was whether the debt should be waived. Following consideration of the phrase "special circumstances" and what was required to show such circumstances, Deputy President Jarvis addressed the applicant's argument that a notional entitlement of his son should be considered. The Deputy President said, at [34]-[35]: 34. The applicant also urged the Tribunal to consider the notional entitlement of his son to Youth Allowance as a further special circumstance... 35. Notional entitlement has been found to constitute part of the factual matrix of special circumstances in several cases such as Re Secretary, Department of Family and Community Services and Lyster (2000) 59 ALD 587. However, I note that the legislature has seen fit to amend the Act to provide for set-off of notional entitlement in the circumstances provided for in s 1237AAC. That provision provides for set-off of notional entitlement in only very limited circumstances and by reference to specific payments. It was the respondent's contention that any attempt to expand notional entitlement by virtue of the special circumstances provision would defeat the intention of Parliament. I think this submission is well founded. In addition, I consider, in any event, that as it is the applicant's son, and not the applicant, who is notionally entitled to youth allowance, the failure of the applicant's son to apply for a payment to which he would have personally been entitled, in circumstances in which the applicant can only estimate what portion of those moneys would have been paid to him and his wife, does not form a sound basis for consideration of waiver of a debt involving public moneys.
Case: Riddell v Secretary, Department of Social Security [1993] FCA 261 ; (1993) 42 FCR 443
Outcome: considered
The Full Federal Court in Riddell v Secretary, Department of Social Security [1993] FCA 261 ; (1993) 42 FCR 443 ( Riddell ) held, at 450: Each particular case must be considered on its merits. It is the essential nature of the provision to create a broad discretion to meet the great variety of circumstances which must occur, raising considerations of individual hardship, need, fairness, reasonableness, and whatever else may move an administrator, keeping in mind the scope and purposes of the Act, to make a decision one way or the other. 56 As Beadle, Hales and Riddell indicate, the wording of the section is broad and does not, financial hardship alone aside, impose a fetter on the matters which may be considered by the decision maker. See also Trimboli v Secretary, Department of Social Security (1989) 86 ALR 64 at 73, and Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9 at [33]).
Case: Roncevich v Repatriation Commission [2005] HCA 40 ; (2005) 222 CLR 115
Outcome: considered
It is also important, however, not to pick apart the reasons of an administrative tribunal in search of error. Kirby J in Roncevich v Repatriation Commission [2005] HCA 40 ; (2005) 222 CLR 115 stated, at 135: ... sufficient reasons on the part of the Tribunal would be required to make the system of appeals effective and to fulfil its assumptions. 74 His Honour further observed, at 136: Courts conducting [judicial] review have been repeatedly enjoined by this Court to avoid overly pernickety examination of the reasons.