mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Lees v Comcare (1999) 56 ALD 84
Outcome: cited
Section 53(1) of the SRC Act provides that the Act does not apply in relation to an injury unless notice in writing of the injury is given to the relevant authority ( Lees v Comcare (1999) 56 ALD 84 at [35]). Compensation is not payable to a person under the SRC Act unless a claim for compensation is made by or on behalf of the person under s 54 (s 54(1)). Section 54(2) provides that a claim shall be made by giving the relevant authority a written claim in accordance with the form approved by Comcare and by giving a certificate by a legally qualified medical practitioner in accordance with the correct form. 71 Further, the Tribunal did not explain how Australia Post was liable under the SRC Act. The notice and the claim referred to right shoulder pain which had resolved. The first reviewable decision can, read beneficially to Mr Sellick, be said to have included reference to the additional conditions in that it included a reference to Dr Shroot's and Dr Chew's medical certificates of 2004 that diagnosed some upper back pain and minor soft tissue injury to his thoracic spine. However, those conditions were found to have resulted in pain in a different area to that the subject of the claim, the mid-thoracic spine. The degenerative spinal condition was a pre-existing condition. While injury or disease of the thoracic spine was referred to in the first reviewable decision, it was not the subject of that decision. It was referred to in the context of pre-existing conditions which were not relevant to the claimed injury. In finding liability under the SRC Act for the additional conditions which had not been the subject of a notice of injury (s 53), claim for compensation (s 54), a determination under s 60, the first reviewable decision (s 62) and an application to the Tribunal (s 64), the Tribunal failed to observe the limitations on its jurisdiction flowing from these sections of the SRC Act and the procedural prerequisites to entitlement to compensation under the SRC Act ( Lang at [41] [43]; Lees at [35]).
Case: Ma v FCT (1992) 37 FCR 225
Outcome: cited
The failure to consider at all the way in which a party puts its case is an error of law ( Ma v FCT (1992) 37 FCR 225 at 231 per Burchett J). The failure to consider submissions of substance which, if accepted, are capable of affecting the outcome of a case is an error of law ( Comcare Australia v Rowe [2002] FCA 1034 ; (2002) 35 AAR 410 at [12] per Merkel J; Casarotto at 403 per Hill J; Applicant WAEE ).
Case: Minister for Immigration &amp; Citizenship v Hassani (2007) 94 ALD 378
Outcome: considered
In Minister for Immigration &amp; Citizenship v Hassani (2007) 94 ALD 378 there was an objection to jurisdiction under the ADJR Act and the Judiciary Act in an appeal under s 44 of the AAT Act. Separate applications were filed. Justice Besanko considered that neither the AAT Act nor the ADJR Act provided the relief sought but made orders under s 39B of the Judiciary Act (at [29] [30]; [32]).
Case: Minister for Immigration &amp; Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59
Outcome: cited
A Tribunal may be taken to have considered the whole of the evidence although its conclusions are stated shortly ( Minister for Immigration &amp; Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59 at [111] per Gleeson CJ, Repatriation Commission v Gosewinckel [1999] FCA 1273 ; (1999) 59 ALD 690 at [59] per Weinberg J). I am not prepared to conclude that the Tribunal forgot Dr Burke's oral evidence. I accept Mr Sellick's characterisation of the Tribunal's reasons at [50] as referring only to the absence of Dr Burke's oral evidence concerning the shoulder/upper back claim and not the hernia claim.
Case: Minister for Immigration &amp; Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: cited
The Tribunal failed to give reasons for its conclusion that Australia Post was liable under the SRC Act. The Tribunal is obliged to give reasons for its decision (s 43(2) of the AAT Act). While not obliged to make a finding on every question of fact that is objectively material to the Court conducting judicial review ( Minister for Immigration &amp; Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at [87] [97] ; Lang at [53]), the Tribunal is obliged to include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based (s 43(2B) of the AAT Act).
Case: NAIS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 77 ; (2005) 228 CLR 470
Outcome: cited
Australia Post contends that the Tribunal forgot or overlooked the fact that Dr Burke and Dr McGill gave oral evidence, did not therefore deal with that evidence and accordingly failed to consider the case put by Australia Post. The evidence was referred to in submissions to the Tribunal. The Tribunal made no reference to the oral evidence of Dr Burke or Dr McGill. Australia Post submits that the Tribunal may have forgotten about the evidence in view of the time that elapsed between the evidence and the decision. Australia Post says that this gives rise to jurisdictional error or denial of natural justice because of the risk that the capacity of the Tribunal for competent evaluation of the evidence was diminished by the timeframe and the delay between the evidence and the decision ( NAIS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 77 ; (2005) 228 CLR 470 at [10] - [11] per Gleeson CJ, [106] per Kirby J, [172] per Callinan and Heydon JJ). This would also give rise to an error of law.
Case: Peczalski v Comcare (1999) 58 ALD 697
Outcome: cited
Several decisions of the Court have followed Tuite (eg Peczalski v Comcare (1999) 58 ALD 697 per Finn J ; Chowdhary v Bayne [1999] FCA 41 ; (1999) 29 AAR 100 per Finn J ; Percerep v Minister for Immigration &amp; Multicultural Affairs [1998] FCA 1088 ; (1998) 86 FCR 483 per Weinberg J) but Mr Sellick did not point to any case where that course was taken since Etheridge .
Case: Percerep v Minister for Immigration &amp; Multicultural Affairs [1998] FCA 1088 ; (1998) 86 FCR 483
Outcome: cited
Several decisions of the Court have followed Tuite (eg Peczalski v Comcare (1999) 58 ALD 697 per Finn J ; Chowdhary v Bayne [1999] FCA 41 ; (1999) 29 AAR 100 per Finn J ; Percerep v Minister for Immigration &amp; Multicultural Affairs [1998] FCA 1088 ; (1998) 86 FCR 483 per Weinberg J) but Mr Sellick did not point to any case where that course was taken since Etheridge . 105 The grounds advanced by Australia Post which I have found to be made out do not relate to grounds of review that would involve further evidence (as in Percerep ). I am not satisfied that I should strike out the ADJR Act application or exercise the discretion in s 10(2) of the ADJR Act to refuse relief under that Act. The fact that there are errors of law that found relief under the ADJR Act that are identical to the errors of law that found questions of law as set out in the application filed under the AAT Act goes to the practical outcome of the relief, a single remittal to the Tribunal.
Case: Repatriation Commission v Gosewinckel [1999] FCA 1273 ; (1999) 59 ALD 690
Outcome: cited
A Tribunal may be taken to have considered the whole of the evidence although its conclusions are stated shortly ( Minister for Immigration &amp; Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59 at [111] per Gleeson CJ, Repatriation Commission v Gosewinckel [1999] FCA 1273 ; (1999) 59 ALD 690 at [59] per Weinberg J). I am not prepared to conclude that the Tribunal forgot Dr Burke's oral evidence. I accept Mr Sellick's characterisation of the Tribunal's reasons at [50] as referring only to the absence of Dr Burke's oral evidence concerning the shoulder/upper back claim and not the hernia claim.
Case: Repatriation Commission v Hill [2002] FCAFC 192 ; (2002) 69 ALD 581
Outcome: considered
With respect to the first reviewable decision the Tribunal failed to give reasons for its conclusion that the additional conditions were work-related and were related to the claimed injury and that Australia Post was liable for those additional injuries. That failure constitutes an error of law. In relation to the second reviewable decision the Tribunal failed to consider an aspect of Australia Post's case. Further, the Tribunal made a factual finding which formed the basis for its conclusions for which there was no evidence. Accordingly, the Tribunal's decision is affected by error of law and jurisdictional error. The errors of law are of a kind that support an appeal under s 44 of the AAT Act on a question of law ( Repatriation Commission v Hill [2002] FCAFC 192 ; (2002) 69 ALD 581 at [59] ). 107 The Tribunal decision regarding each of the reviewable decisions should be remitted to the Tribunal to be decided according to law. I will hear the parties as to costs. I certify that the preceding one hundred and seven (107) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 5 March 2008 Counsel for the Applicant: G T Johnson Solicitor for the Applicant: Forner Solicitors Counsel for the First Respondent: D Richards Solicitor for the First Respondent: Slater &amp; Gordon Date of Hearing: 1 June 2007, 2 October 2007 Date of Judgment: 7 March 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/236.html
Case: TelePacific Pty Ltd v Commissioner of Taxation (2005) 218 ALR 85
Outcome: cited
The Tribunal has an obligation to give reasons that make it possible to understand its reasoning process. Failure to do so is an error of law ( Lang v Comcare (2007) 94 ALD 141 at [54]-[55] per Stone J citing TelePacific Pty Ltd v Commissioner of Taxation (2005) 218 ALR 85). This includes an obligation to give reasons for rejecting evidence that is plainly central to a party's claim and crucial to a medical report that supported that claim ( Lang at [54] per Stone J). As was pointed out by Stone J in Lang at [53] [55], the Tribunal is entitled to accept or reject the respective pieces of evidence before it or to accord certain pieces of evidence different weight. It is under no obligation to refer to all of the evidence before it. There is no obligation to make a finding on every question of fact that may be regarded as objectively material. The Tribunal is entitled to refer to all the medical reports, as Mr Sellick says the Tribunal did and to accept and reject evidence as it sees fit. The Tribunal is entitled to reject medical evidence or simply to prefer contrary medical evidence. It is obliged, however, to include in its reasons findings on all material questions of fact. Where a failure to give reasons makes it impossible to understand the Tribunal's reasoning process, that is an error of law.
Case: Tobacco Institute of Australia Ltd v National Health and Medical Research Council (1996) 71 FCR 265
Outcome: cited
Australia Post accepts that the Tribunal does not need to cover every aspect of every factual matter. It submits, however, that the Tribunal failed to consider submissions of substance which, if accepted, were capable of affecting the outcome of the case. Such a failure constitutes an error of law, as does the failure to consider a claim or the integer of a claim ( Applicant WAEE v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 184 ; (2003) 75 ALD 630 ; Casarotto v Australian Postal Corporation [1989] FCA 116 ; (1989) 86 ALR 399 at 403 per Hill J citing Dennis Willcox Pty Ltd v FCT (1988) 79 ALR 267 at 276 per Jenkinson J). Australia Post relies on the silence of the Tribunal's reasons in respect of the various specific matters raised. A failure to advert to the content of submissions does not of itself necessarily mean that the matter was not considered ( Tobacco Institute of Australia Ltd v National Health and Medical Research Council (1996) 71 FCR 265 at 279 per Finn J). If the particular submission did not go to the substance of the decision or would not have affected the outcome, failure to advert to it in the reasons does not mean that the matter was not considered and does not give rise to error of law.
Case: TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175
Outcome: cited
In Birdseye , the appeal was brought in reliance on s 44 of the AAT Act. Justices Branson and Stone expressed approval of comments made by Gummow J in TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 at 178 where his Honour pointed out that where an appeal lies "on a question of law" the subject matter of the appeal is the question or questions of law stated ( Birdseye at [11]; cf Etheridge at [13]). Their Honours also approved the comments of Ryan J in Australian Telecommunications Corp v Lambroglou (1990) 12 AAR 515 at 527 namely that ' If the question, properly analysed, is not a question of law no amount of formulary like "erred in law" or "was open as a matter of law" can make it into a question of law ' ( Birdseye at [13] [15]; cf Etheridge at [15]). Accordingly, a mixed question of fact and law is not a question of law within s 44(1) of the AAT Act ( Birdseye at [18]).
Case: Tuite v Administrative Appeals Tribunal [1993] FCA 71 ; (1993) 40 FCR 483
Outcome: considered
Mr Sellick submits that where an appeal lies under s 44 of the AAT Act, applications brought under s 5 of the ADJR Act should be dismissed unless the subject of the appeal is a decision going to practice and procedure. He relies on Duong v Australian Postal Corporation (2005) 41 AAR 288 at [12] where Edmonds J dismissed an ADJR Act application where the Tribunal decision did not go to practice and procedure. His Honour followed Tuite v Administrative Appeals Tribunal [1993] FCA 71 ; (1993) 40 FCR 483 where Davies J had held that, as s 44 of the AAT Act provides a specific procedure for the granting of relief by the Court in respect of decisions of the AAT, that procedure should be adopted and applications brought under s 5 of the ADJR Act, where an appeal under s 44 of the AAT Act is available, should be dismissed as of course (at 484). Justice Davies expressed the view at 484 that questions of law as provided for in s 44 of the AAT Act encompass grounds enunciated in s 5 of the ADJR Act. Duong was decided prior to Etheridge , a decision of the Full Court and Tuite was decided prior to Birdseye, which discussed the difficulties in the framing of questions of law . Further, the ADJR Act is not only available for matters of practice and procedure ( Bond at 337 per Mason CJ; Griffith University v Tang [2005] HCA 7 ; (2005) 221 CLR 99 at [89] [90] per Gummow, Callinan and Heydon JJ). 102 Several decisions of the Court have followed Tuite (eg Peczalski v Comcare (1999) 58 ALD 697 per Finn J ; Chowdhary v Bayne [1999] FCA 41 ; (1999) 29 AAR 100 per Finn J ; Percerep v Minister for Immigration &amp; Multicultural Affairs [1998] FCA 1088 ; (1998) 86 FCR 483 per Weinberg J) but Mr Sellick did not point to any case where that course was taken since Etheridge . 103 Australia Post submits that Duong and Tuite should not be followed. It submits that s 10 of the ADJR Act makes it plain that the rights conferred by that Act are in addition to the rights otherwise conferred to review decisions. Mr Sellick submits that, if there is concurrent jurisdiction, the Court should exercise in discretion so that the grounds of review under the ADJR Act are no more extensive than questions of law available under the AAT Act.
Case: Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290
Outcome: cited
lack of compliance was not articulated with any great precision or clarity. It was said that the grounds in the amended draft notice of appeal 'are little more than a duplication of the alleged question of law'. Grounds 4(a) to 4(j) differ only from the corresponding alleged questions of law in two ways: first, the word 'whether' is omitted from the opening words so that each paragraph is no longer prefaced as a question and; second, statutory references are inserted. But as the Commissioner acknowledges in his referral to various quotations from cases such as Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at [47] (Branson J); Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 523 (Ryan J); Young v Commissioner of Taxation [2008] FCA 1908 at [19] (Gilmour J); Price Street Professional Centre Pty Ltd v Commissioner of Taxation [2007] FCAFC 154 ; (2007) 243 ALR 728 at [75] (Greenwood J); and Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 38 AAR 55 at [18] (Branson and Stone JJ), because the existence of a question of law is not merely a qualifying condition to ground the appeal, but must be 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 (Gummow J) there should be a link or symmetry between the question raised and the ground relied upon. Subject to the question raised being truly a pure question of law (see Birdseye at [18] (Branson and Stone JJ)), the applicant's articulation of the grounds in the manner assailed by the Commissioner may well provide the necessary link or symmetry. I would not exercise my discretion to refuse to extend time on the basis that the amended draft notice of appeal does not comply with 0 53 r 3(2)(d).
Case: Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515
Outcome: cited
lack of compliance was not articulated with any great precision or clarity. It was said that the grounds in the amended draft notice of appeal 'are little more than a duplication of the alleged question of law'. Grounds 4(a) to 4(j) differ only from the corresponding alleged questions of law in two ways: first, the word 'whether' is omitted from the opening words so that each paragraph is no longer prefaced as a question and; second, statutory references are inserted. But as the Commissioner acknowledges in his referral to various quotations from cases such as Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at [47] (Branson J); Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 523 (Ryan J); Young v Commissioner of Taxation [2008] FCA 1908 at [19] (Gilmour J); Price Street Professional Centre Pty Ltd v Commissioner of Taxation [2007] FCAFC 154 ; (2007) 243 ALR 728 at [75] (Greenwood J); and Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 38 AAR 55 at [18] (Branson and Stone JJ), because the existence of a question of law is not merely a qualifying condition to ground the appeal, but must be 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 (Gummow J) there should be a link or symmetry between the question raised and the ground relied upon. Subject to the question raised being truly a pure question of law (see Birdseye at [18] (Branson and Stone JJ)), the applicant's articulation of the grounds in the manner assailed by the Commissioner may well provide the necessary link or symmetry. I would not exercise my discretion to refuse to extend time on the basis that the amended draft notice of appeal does not comply with 0 53 r 3(2)(d).
Case: Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 38 AAR 55
Outcome: referred to
lack of compliance was not articulated with any great precision or clarity. It was said that the grounds in the amended draft notice of appeal 'are little more than a duplication of the alleged question of law'. Grounds 4(a) to 4(j) differ only from the corresponding alleged questions of law in two ways: first, the word 'whether' is omitted from the opening words so that each paragraph is no longer prefaced as a question and; second, statutory references are inserted. But as the Commissioner acknowledges in his referral to various quotations from cases such as Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at [47] (Branson J); Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 523 (Ryan J); Young v Commissioner of Taxation [2008] FCA 1908 at [19] (Gilmour J); Price Street Professional Centre Pty Ltd v Commissioner of Taxation [2007] FCAFC 154 ; (2007) 243 ALR 728 at [75] (Greenwood J); and Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 38 AAR 55 at [18] (Branson and Stone JJ), because the existence of a question of law is not merely a qualifying condition to ground the appeal, but must be 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 (Gummow J) there should be a link or symmetry between the question raised and the ground relied upon. Subject to the question raised being truly a pure question of law (see Birdseye at [18] (Branson and Stone JJ)), the applicant's articulation of the grounds in the manner assailed by the Commissioner may well provide the necessary link or symmetry. I would not exercise my discretion to refuse to extend time on the basis that the amended draft notice of appeal does not comply with 0 53 r 3(2)(d).
Case: Carpentaria Transport Pty Ltd v Federal Commissioner of Taxation 90 ATC 4590
Outcome: referred to
paragraph provides: [W]hether the Tribunal erred in law in failing to make any findings or give any consideration as to whether the receipts by the applicant which were treated as consideration for taxable supplies by the respondent were properly to be characterised as financial supplies on which no GST was payable because they were input taxed supplies; The contention here advanced was not advanced by the applicant before the Tribunal. There will be cases where a question of law arises from a failure on the part of the Tribunal to deal with an issue not put to it: see Carpentaria Transport Pty Ltd v Federal Commissioner of Taxation 90 ATC 4590 at 4593 (Davies J), but generally this will not be so, and this case is no exception. There was no error of law on the part of the Tribunal in failing to consider and make findings as to whether the receipts by the applicant were properly to be characterised as consideration for financial supplies on which no GST was payable because they were input taxed supplies. This paragraph does not raise a question of law on which to ground the appeal: Commissioner of Taxation v Perkins 93 ATC 4524 at 4526 (Davies J, with whom French and Heerey JJ concurred); Commissioner of Taxation v Glennan [1999] FCA 297 ; (1999) 90 FCR 538 at [80] [83] (Hill, Sackville and Hely JJ). Paragraphs 2(h) (j)