mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Defence Force Retirement and Death Benefits Authority v House [2009] FCA 302
Outcome: cited
not every failure to hear and resolve every submission necessarily gives rise to such a question. In Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 at 276 to 277, Jenkinson J expressed the position as follows: There is also the further possibility that the tribunal's failure to mention either the submission or the questions of fact which it raises was the result of a failure, by inadvertence, to consider the submission when the tribunal was engaged in deciding the reference. Not every failure by the Administrative Appeals Tribunal to mention a contention advanced on behalf of a party will amount to a failure to comply with the requirements of s 43(2) of the Administrative Appeals Tribunal Act 1975 , or demonstrate that the contention was not considered in deciding the matter before the tribunal. But this submission concerning the ascertainment of profit was worthy of serious consideration and was seriously advanced to the tribunal. It ought, therefore, to be inferred that the submission was inadvertently overlooked by the tribunal either when the reference was being decided or when the reasons for the decision were being committed to writing (cf Sullivan v Department of Transport (1978) 20 ALR 323 at 353). In either event there has been, in my opinion, an error of law by the tribunal, so that the power of this court which s 44(1) of the Administrative Appeals Tribunal Act 1975 confers to decide the appeal "on a question of law" is available. The failure of the tribunal to carry out the duty to consider and determine each question of law and fact relevant to the determination of the reference to it of the respondent's decision, or the failure to carry out the duty imposed by s 43(2) of that Act, as the case may be, has brought about a miscarriage of justice by preventing this court from affording the parties a determination whether the tribunal's decision was vitiated by error of law: see Pettitt v Dunkley [1971] 1 NSWLR 376. Woodward and Foster JJ agreed. Subsequently, in Australian Postal Corporation v Sellick , supra , at [35], Bennett J also referred to the need to address a submission of " substance " or a submission which would have " affected the outcome ". See also: Zoia v Secretary, Department of Employment and Workplace Relations [2008] FCA 988 at [29] per Siopis J; Defence Force Retirement and Death Benefits Authority v House [2009] FCA 302 at [29] per Collier J.
Case: Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267
Outcome: cited
not every failure to hear and resolve every submission necessarily gives rise to such a question. In Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 at 276 to 277, Jenkinson J expressed the position as follows: There is also the further possibility that the tribunal's failure to mention either the submission or the questions of fact which it raises was the result of a failure, by inadvertence, to consider the submission when the tribunal was engaged in deciding the reference. Not every failure by the Administrative Appeals Tribunal to mention a contention advanced on behalf of a party will amount to a failure to comply with the requirements of s 43(2) of the Administrative Appeals Tribunal Act 1975 , or demonstrate that the contention was not considered in deciding the matter before the tribunal. But this submission concerning the ascertainment of profit was worthy of serious consideration and was seriously advanced to the tribunal. It ought, therefore, to be inferred that the submission was inadvertently overlooked by the tribunal either when the reference was being decided or when the reasons for the decision were being committed to writing (cf Sullivan v Department of Transport (1978) 20 ALR 323 at 353). In either event there has been, in my opinion, an error of law by the tribunal, so that the power of this court which s 44(1) of the Administrative Appeals Tribunal Act 1975 confers to decide the appeal "on a question of law" is available. The failure of the tribunal to carry out the duty to consider and determine each question of law and fact relevant to the determination of the reference to it of the respondent's decision, or the failure to carry out the duty imposed by s 43(2) of that Act, as the case may be, has brought about a miscarriage of justice by preventing this court from affording the parties a determination whether the tribunal's decision was vitiated by error of law: see Pettitt v Dunkley [1971] 1 NSWLR 376. Woodward and Foster JJ agreed. Subsequently, in Australian Postal Corporation v Sellick , supra , at [35], Bennett J also referred to the need to address a submission of " substance " or a submission which would have " affected the outcome ". See also: Zoia v Secretary, Department of Employment and Workplace Relations [2008] FCA 988 at [29] per Siopis J; Defence Force Retirement and Death Benefits Authority v House [2009] FCA 302 at [29] per Collier J.
Case: Dodds v Comcare Australia (1993) 31 ALD 690
Outcome: cited
Tribunal's compliance with all aspects of s 43(2B) &#8212; be it the requirement to set forth its " reasons ", the requirement to include " findings on material questions of fact " or the requirement that there be " a reference to the evidence or other material " &#8212; is a matter of substance and not form: Dodds v Comcare Australia (1993) 31 ALD 690 at 691 per Burchett J; Comcare v Davies , supra , at [33]. The statutory requirement, it is to be recalled, has as a principal objective the exposure of the reasoning process of the Tribunal to judicial scrutiny. There must be sufficient compliance with each aspect of s 43 such that judicial scrutiny is not frustrated. But the manner in which the Tribunal discharges its responsibility to comply with s 43(2B) must inevitably depend upon &#8212; among other things &#8212; the nature of the cases coming before the Tribunal, the nature of the evidence and legal complexity of each case, and the particular style in which Tribunal members choose to express themselves. The less important a particular matter may be to the conclusion reached by the Tribunal, the less the need for the Tribunal to " refer to " or deal in any depth with the evidence relevant to that matter: e.g. Lafu v Minister for Immigration and Citizenship [2009] FCA 733 at [28] to [30] per Jagot J. A failure to refer to evidence of little ultimate significance to the conclusion reached may not permit an inference that such evidence has not been considered.
Case: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179 ; (1979) 2 ALD 60
Outcome: applied
s 44(1) employs the language of an " appeal ", the jurisdiction of the Court being exercised is its original jurisdiction and not its appellate jurisdiction: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179 ; (1979) 2 ALD 60 at 61 per Bowen CJ and Deane J.
Case: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 , 73 ALD 321
Outcome: cited
failure on the part of the Tribunal " to respond to a substantial, clearly articulated argument relying upon established facts " may constitute a constructive failure to exercise jurisdiction: cf Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [24] to [25] [2003] HCA 26 ; , 73 ALD 321 at 326 per Gummow and Callinan JJ. The comments there made in respect to a failure on the part of the Refugee Review Tribunal have been applied by the Full Court of this Court in respect to a decision of the Administrative Appeals Tribunal: Industry Research and Development Board v Bridgestone Australia Ltd [2004] FCAFC 56 at [26] , [2004] FCAFC 56 ; 136 FCR 47 at 58.
Case: Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 , 158 FCR 252
Outcome: applied
the absence of any reference in her description of the accident or injury to any " twisting " movement and her description of having done the " splits ", it is perhaps understandable that the Corporation accepted Ms Hughes' account and did not question her as to whether there was any " twisting " movement involved. The Corporation may have wished to confine her account of the events to as narrow a factual description as possible. But the task of the Tribunal, however, was to reach the " correct or preferable " decision. And, in discharging that task, s 33(1AA) of the 1975 Act imposes upon the person who made the decision under review the responsibility of using " his or her best endeavours to assist the Tribunal to make its decision ... ": Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [19] , [2007] FCA 404 ; 158 FCR 252 at 257 per Gyles J. In the present proceeding, the potential significance of a " twisting " movement or " adduction " as opposed to " abduction " was a matter that did not emerge only during the course of the hearing before the Tribunal. It was a matter of significance that had been identified as early as 6 November 2006 in a report provided to the Corporation by another orthopaedic surgeon, Dr Horsley. His report stated in part: The injury as described to me by Ms Hughes is of her doing the "splits". This, if anything, would tend to stretch the adductor tendons. In this position, in fact, the gluteus medius and minimus tendons are relaxed. I find it difficult to understand why there would be mild tendinosis with the type of injury she describes. The distinction having been thus highlighted, it is surprising that there was no further questioning &#8212; either in chief or in cross-examination &#8212; of Ms Hughes as to the description she had provided. The failure to further question Ms Hughes as to the movement experienced during the accident on 13 January 2006 did little to " assist " the Tribunal.
Case: Hughes v Australian Postal Corporation [2009] AATA 260
Outcome: affirmed
13 January 2006 she was injured whilst performing her delivery duties on a motorcycle. A claim was made and ultimately resolved by a decision of the Administrative Appeals Tribunal on 21 April 2009: Hughes v Australian Postal Corporation [2009] AATA 260. The Tribunal concluded that Ms Hughes continued to suffer from the effects of an injury to her lower back and left hip joint. The Tribunal further concluded that Ms Hughes was not entitled to compensation for permanent impairment pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the 1988 Act"). The conclusion of the Tribunal as to permanent impairment is not in issue in this appeal. In the hearing before the Tribunal, Ms Hughes gave evidence. Her claim was sought to be supported by medical evidence from Dr Fearnside (a neurosurgeon) and Dr Ginnane (Ms Hughes' general practitioner). The Corporation relied upon the medical evidence of Dr Maxwell (an orthopaedic and spinal surgeon), Dr Brennan (a neurosurgeon), Dr Dan (a neurosurgeon), Dr Holman (an orthopaedic surgeon), Dr Horsley (an orthopaedic surgeon) and Dr McGee-Collett (a neurosurgeon). The Corporation now appeals to this Court from that part of the Tribunal's decision whereby it concluded that Ms Hughes continues to suffer from the effects of the injury to her lower back and left hip joint and that the Corporation continues to be liable. Reliance is placed by the Corporation upon s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the 1975 Act") and s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the 1977 Act").
Case: Industry Research and Development Board v Bridgestone Australia Ltd [2004] FCAFC 56
Outcome: cited
failure on the part of the Tribunal " to respond to a substantial, clearly articulated argument relying upon established facts " may constitute a constructive failure to exercise jurisdiction: cf Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [24] to [25] [2003] HCA 26 ; , 73 ALD 321 at 326 per Gummow and Callinan JJ. The comments there made in respect to a failure on the part of the Refugee Review Tribunal have been applied by the Full Court of this Court in respect to a decision of the Administrative Appeals Tribunal: Industry Research and Development Board v Bridgestone Australia Ltd [2004] FCAFC 56 at [26] , [2004] FCAFC 56 ; 136 FCR 47 at 58.
Case: Lafu v Minister for Immigration and Citizenship [2009] FCA 733
Outcome: cited
Tribunal's compliance with all aspects of s 43(2B) &#8212; be it the requirement to set forth its " reasons ", the requirement to include " findings on material questions of fact " or the requirement that there be " a reference to the evidence or other material " &#8212; is a matter of substance and not form: Dodds v Comcare Australia (1993) 31 ALD 690 at 691 per Burchett J; Comcare v Davies , supra , at [33]. The statutory requirement, it is to be recalled, has as a principal objective the exposure of the reasoning process of the Tribunal to judicial scrutiny. There must be sufficient compliance with each aspect of s 43 such that judicial scrutiny is not frustrated. But the manner in which the Tribunal discharges its responsibility to comply with s 43(2B) must inevitably depend upon &#8212; among other things &#8212; the nature of the cases coming before the Tribunal, the nature of the evidence and legal complexity of each case, and the particular style in which Tribunal members choose to express themselves. The less important a particular matter may be to the conclusion reached by the Tribunal, the less the need for the Tribunal to " refer to " or deal in any depth with the evidence relevant to that matter: e.g. Lafu v Minister for Immigration and Citizenship [2009] FCA 733 at [28] to [30] per Jagot J. A failure to refer to evidence of little ultimate significance to the conclusion reached may not permit an inference that such evidence has not been considered.
Case: Milbourn v Repatriation Commission [2009] FCA 176 , 174 FCR 486
Outcome: cited
reference in s 43 to " other material " is a reference to " material " which may not be evidence, including such materials as an agreed statement of facts or policy statements: Milbourn v Repatriation Commission [2009] FCA 176 at [29] , [2009] FCA 176 ; 174 FCR 486 at 492 per Graham J.
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: considered
there was also no dispute that reasons provided for an administrative decision are not to be scrutinised in an " over-zealous " manner: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259. In a passage which has often been repeated, Brennan CJ, Toohey, McHugh and Gummow JJ there referred to the earlier decision of the Full Court of this Court which was the subject of the appeal, and continued at 271 to 272 as follows: When the Full Court referred to "beneficial construction", it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic [(1993) 43 FCR 280]. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker [(1993) 43 FCR 280 at 287]. The Court continued [(1993) 43 FCR 280 at 287]: "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error." These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed [See McAuliffe v Secretary, Department of Social Security [1992] FCA 483 ; (1992) 28 ALD 609 at 616]. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. See also: Kirby J at 291 to 293; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [25] , [2007] HCA 26 ; 96 ALD 1 at 9 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; Black v Minister for Immigration and Citizenship [2007] FCAFC 189 at [36] , [2007] FCAFC 189 ; 99 ALD 1 at 9 per Branson, Sundberg and Dowsett JJ.
Case: Roncevich v Repatriation Commission [2005] HCA 40 , 222 CLR 115
Outcome: cited
was thus no dispute that " sufficient reasons " must be provided " to make the system of appeals effective and to fulfil its assumptions ": Roncevich v Repatriation Commission [2005] HCA 40 at [62] , [2005] HCA 40 ; 222 CLR 115 at 135 per Kirby J. It must be possible " to discern from the reasons given the actual reasoning process adopted ": Comcare Australia v Mathieson [2004] FCA 212 at [61] , 79 ALD 518 at 531 per Weinberg J. "... [T]he tribunal will have discharged its duty under s 43 if its reasons disclose its findings of fact, the evidence on which they were based and the logical process by which it moved from those findings to the result in the case ": Secretary, Department of Employment and Workplace Relations v Homewood [2006] FCA 779 at [40] , 91 ALD 103 at 111 per French J. See also: Comcare v Davies [2008] FCA 393 at [31] to [33], 173 IR 294 at 302 to 303.
Case: Secretary, Department of Employment and Workplace Relations v Homewood [2006] FCA 779 , 91 ALD 103
Outcome: cited
was thus no dispute that " sufficient reasons " must be provided " to make the system of appeals effective and to fulfil its assumptions ": Roncevich v Repatriation Commission [2005] HCA 40 at [62] , [2005] HCA 40 ; 222 CLR 115 at 135 per Kirby J. It must be possible " to discern from the reasons given the actual reasoning process adopted ": Comcare Australia v Mathieson [2004] FCA 212 at [61] , 79 ALD 518 at 531 per Weinberg J. "... [T]he tribunal will have discharged its duty under s 43 if its reasons disclose its findings of fact, the evidence on which they were based and the logical process by which it moved from those findings to the result in the case ": Secretary, Department of Employment and Workplace Relations v Homewood [2006] FCA 779 at [40] , 91 ALD 103 at 111 per French J. See also: Comcare v Davies [2008] FCA 393 at [31] to [33], 173 IR 294 at 302 to 303.
Case: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 , 96 ALD 1
Outcome: cited
there was also no dispute that reasons provided for an administrative decision are not to be scrutinised in an " over-zealous " manner: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259. In a passage which has often been repeated, Brennan CJ, Toohey, McHugh and Gummow JJ there referred to the earlier decision of the Full Court of this Court which was the subject of the appeal, and continued at 271 to 272 as follows: When the Full Court referred to "beneficial construction", it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic [(1993) 43 FCR 280]. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker [(1993) 43 FCR 280 at 287]. The Court continued [(1993) 43 FCR 280 at 287]: "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error." These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed [See McAuliffe v Secretary, Department of Social Security [1992] FCA 483 ; (1992) 28 ALD 609 at 616]. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. See also: Kirby J at 291 to 293; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [25] , [2007] HCA 26 ; 96 ALD 1 at 9 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; Black v Minister for Immigration and Citizenship [2007] FCAFC 189 at [36] , [2007] FCAFC 189 ; 99 ALD 1 at 9 per Branson, Sundberg and Dowsett JJ.
Case: SZGYT v Minister for Immigration and Citizenship [2009] FCA 705
Outcome: cited
Applicant WAEE , their Honours made reference to whether an " issue has at least been identified at some point ". A mere passing reference to evidence, however, may not be sufficient compliance with the requirements imposed by s 43(2B). The mere fact that an administrative tribunal refers to information or evidence does not of itself mean that the tribunal has given that evidence proper consideration: SZGYT v Minister for Immigration and Citizenship [2009] FCA 705 at [24] per Edmonds J.
Case: Tralongo v Malios [2007] VSC 239 , 27 VAR 74
Outcome: cited
contrast to the present set of circumstances is the decision in Tralongo v Malios [2007] VSC 239 , 27 VAR 74 where a misstatement in the decision of a medical panel as to the history provided by a claimant led to a conclusion that a decision of the panel should be set aside. In the present proceeding it is considered that the account provided by Ms Hughes was clearly at the forefront of the mind of the medical practitioners and the Tribunal itself. The first Ground of Appeal is thus rejected. The second Ground of Appeal focuses attention upon the following finding as made by the Tribunal: [41] Her symptoms did not subside as may have been expected, and in fact spread to other areas. ... This reference as to the symptoms having spread to " other areas " was a reference to the evidence Ms Hughes had earlier provided and which was summarised by the Tribunal earlier in its reasons for decision as follows: [11] She had a cortisone injection in late February 2006. By September 2006 she had been prescribed Endone, a narcotic for her occasional severe pain. She has developed a variety of symptoms. She told Dr Fearnside in October 2007 she has continued to experience back, left buttock and left hip pain; also that she had developed left sided sciatica with referred pain to the foot. She also described having alternate cold and burning feelings in the left hip and buttock region and had experienced some paraesthesia in her right buttock and thigh, but no sciatica. Also since January 2006 she had been constipated and also experienced loss of bladder sensation and some urinary incontinence. [12] She said that since 13 January 2006 she has had virtually the same level of back pain, the intensity of which varies according to her activities. Her left hip has deteriorated and that pain also fluctuates. Her hip is more troublesome than her back. Nonetheless since late August 2007 she has worked 7 hours 21 minutes each work day and does 1 1&#189; hours overtime most days. [13] She said she has had several experiences of her left hip locking and her left leg giving way. That might occur once a month, although it occurred three times one month. These paragraphs may be taken as an account of the symptoms claimed to be suffered by Ms Hughes.