mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Lees v Repatriation Commission [2002] FCAFC 398 ; (2002) 125 FCR 331
Outcome: cited
The appeal focuses on the alleged failure of the Tribunal to approach the question whether the applicant's CP was war-caused in the manner prescribed by subss 120(1) and (3) and 120A(3) of the Veterans' Entitlements Act 1986 (Cth) ('the Act'), as explained in the authorities, including Repatriation Commission v Deledio [1998] FCA 391 ; (1998) 83 FCR 82 ; Repatriation Commission v Cornelius [2002] FCA 750 ; Meehan v Repatriation Commission (2002) 35 AAR 353 ; Lees v Repatriation Commission [2002] FCAFC 398 ; (2002) 125 FCR 331 ; and Hardman v Repatriation Commission [2005] FCAFC 83. In particular, the applicant contends that the Tribunal erred in law by: (1) Treating clinical onset of CP as requiring the contemporaneous diagnosis of CP ground 4(i); (2) impermissible fact-finding at the reasonable hypothesis stage that one of the elements required to raise a reasonable hypothesis connecting CP with the applicant's war service (clinical onset of CP within six months of direct trauma to the patella) did not occur within the prescribed time ground 4(ii); and (3) rejecting the alternative hypothesis (of inability to obtain appropriate clinical management in Vietnam for pre-existing CP) on the basis of impermissible fact-finding that the applicant's CP did not have its clinical onset until after his operational service grounds 4(iii) and 4(iv). 33 The Tribunal then referred to the meaning of 'clinical onset' considered by the Full Court in Lees v Repatriation Commission [2002] FCAFC 398 ; (2002) 125 FCR 331 , referring to the analysis of the Tribunal in Re Robertson v Repatriation Commission (1998) 50 ALD 668 , in which Senior Member Dwyer concluded at 670 that: '... there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.' and noted this analysis was specifically endorsed by Branson J in Cornelius at [26].
Case: Meehan v Repatriation Commission (2002) 35 AAR 353
Outcome: cited
The appeal focuses on the alleged failure of the Tribunal to approach the question whether the applicant's CP was war-caused in the manner prescribed by subss 120(1) and (3) and 120A(3) of the Veterans' Entitlements Act 1986 (Cth) ('the Act'), as explained in the authorities, including Repatriation Commission v Deledio [1998] FCA 391 ; (1998) 83 FCR 82 ; Repatriation Commission v Cornelius [2002] FCA 750 ; Meehan v Repatriation Commission (2002) 35 AAR 353 ; Lees v Repatriation Commission [2002] FCAFC 398 ; (2002) 125 FCR 331 ; and Hardman v Repatriation Commission [2005] FCAFC 83. In particular, the applicant contends that the Tribunal erred in law by: (1) Treating clinical onset of CP as requiring the contemporaneous diagnosis of CP ground 4(i); (2) impermissible fact-finding at the reasonable hypothesis stage that one of the elements required to raise a reasonable hypothesis connecting CP with the applicant's war service (clinical onset of CP within six months of direct trauma to the patella) did not occur within the prescribed time ground 4(ii); and (3) rejecting the alternative hypothesis (of inability to obtain appropriate clinical management in Vietnam for pre-existing CP) on the basis of impermissible fact-finding that the applicant's CP did not have its clinical onset until after his operational service grounds 4(iii) and 4(iv).
Case: Re Robertson v Repatriation Commission (1998) 50 ALD 668
Outcome: cited
The Tribunal then referred to the meaning of 'clinical onset' considered by the Full Court in Lees v Repatriation Commission [2002] FCAFC 398 ; (2002) 125 FCR 331 , referring to the analysis of the Tribunal in Re Robertson v Repatriation Commission (1998) 50 ALD 668 , in which Senior Member Dwyer concluded at 670 that: '... there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.' and noted this analysis was specifically endorsed by Branson J in Cornelius at [26].
Case: Repatriation Commission v Cornelius [2002] FCA 750
Outcome: cited
The appeal focuses on the alleged failure of the Tribunal to approach the question whether the applicant's CP was war-caused in the manner prescribed by subss 120(1) and (3) and 120A(3) of the Veterans' Entitlements Act 1986 (Cth) ('the Act'), as explained in the authorities, including Repatriation Commission v Deledio [1998] FCA 391 ; (1998) 83 FCR 82 ; Repatriation Commission v Cornelius [2002] FCA 750 ; Meehan v Repatriation Commission (2002) 35 AAR 353 ; Lees v Repatriation Commission [2002] FCAFC 398 ; (2002) 125 FCR 331 ; and Hardman v Repatriation Commission [2005] FCAFC 83. In particular, the applicant contends that the Tribunal erred in law by: (1) Treating clinical onset of CP as requiring the contemporaneous diagnosis of CP ground 4(i); (2) impermissible fact-finding at the reasonable hypothesis stage that one of the elements required to raise a reasonable hypothesis connecting CP with the applicant's war service (clinical onset of CP within six months of direct trauma to the patella) did not occur within the prescribed time ground 4(ii); and (3) rejecting the alternative hypothesis (of inability to obtain appropriate clinical management in Vietnam for pre-existing CP) on the basis of impermissible fact-finding that the applicant's CP did not have its clinical onset until after his operational service grounds 4(iii) and 4(iv). 33 The Tribunal then referred to the meaning of 'clinical onset' considered by the Full Court in Lees v Repatriation Commission [2002] FCAFC 398 ; (2002) 125 FCR 331 , referring to the analysis of the Tribunal in Re Robertson v Repatriation Commission (1998) 50 ALD 668 , in which Senior Member Dwyer concluded at 670 that: '... there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.' and noted this analysis was specifically endorsed by Branson J in Cornelius at [26].
Case: Repatriation Commission v Hill [2002] FCAFC 192 ; (2002) 69 ALD 581
Outcome: applied
In Repatriation Commission v Hill [2002] FCAFC 192 ; (2002) 69 ALD 581 , a Full Court (Black CJ, Drummond and Kenny JJ) said that the function of the Statement of Principles is to prescribe the essential content of what is a reasonable hypothesis, for subs 120(3) purposes, capable of connecting the particular kind of injury, disease or death with the circumstances of the veteran's particular service. In order to satisfy subss 120(3) and 120A(3) of the Act, an hypothesis relied on by a dependent of a veteran to support a pension claim must be supported by material pointing to each element that the Statement of Principles makes essential for the hypothesis to be reasonable. The Court said at [57] [58]: 'Whatever the situation may have been in relation to claims before 1 June 1994, the effect of s 120A(3) (where there is an SoP under s 196B(2)) is that a hypothesis is reasonable only if it is upheld by the SoP. Pursuant to s 196B(2), the SoP must set out "the factors that must as a minimum exist" and "which of those factors must be related to service". The result is that, where it applies, the SoP prescribes the essential content of what is a reasonable hypothesis, for s 120(3) purposes, capable of connecting the particular kind of injury, diseases or death with the circumstances of a veteran's particular service. In order to satisfy ss 120(3) and 120A(3), a hypothesis relied on by a veteran to support a pension claim must be supported by material pointing to each element that the SoP makes essential for the hypothesis to be reasonable. In order for Mr Hill to succeed, the hypothesis raised by the material before the Tribunal had to fit the template set out in the PTSD SoP. ...' (Emphasis added) 16 At the time of the decision and of the Tribunal's decision, there was in force a Statement of Principles concerning CP, No. 33 of 2001 ('the SoP'). Clause 4 of the SoP provides that one of the factors set out in cl 5 of the SoP must be related to any relevant service rendered by the person. 17 The applicant relied on factors 5(a), (b) and (h) in the SoP (presumably for both knees): '(5)(a) "suffering direct trauma to the patella of the affected knee within the six months immediately before the clinical onset of chondromalacia patellae;" (5)(b) "suffering an injury to the affected knee resulting in meniscal damage or permanent ligamentous instability within the six months immediately before the clinical onset of chondromalacia patella ..." (5)(h) "inability to obtain appropriate clinical management for chondromalacia patellae."' In the alternative, the applicant relied on factor 5(e) in relation to his right knee: '(5)(e) "suffering direct trauma to the patella of the affected knee within the six months immediately before the clinical worsening of chondromalacia patellae ..."'
Case: Antoun v The Queen [2006] HCA 2 ; (2006) 224 ALR 51
Outcome: cited
The test for reasonable apprehension of bias in curial proceedings is whether a "fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question" that is to be decided; see Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at [27] . See also Antoun v The Queen [2006] HCA 2 ; (2006) 224 ALR 51 at [51] ; Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at [6] .
Case: Al Abdullatif Industrial Group Co Ltd v Minister for Justice and Customs [2000] FCA 758
Outcome: cited
The observations of O'Connor J in Al Abdullatif Industrial Group Co Ltd v Minister for Justice and Customs [2000] FCA 758 at [22] are to the same effect. Her Honour pointed out that in many cases, an implied duty to investigate each avenue suggested by an interested party would make the statutory scheme unworkable. 205 It is plain from the passages of the Trade Measures Report which I have set out at [80]-[85], [97] and [100] that the CEO did investigate the relative significance of price to other factors and that he made findings as to the existence of the necessary causal link. 206 However, Schaefer submitted that the CEO breached the duty to investigate by failing to make further enquiries, in particular to ask further questions as to the relative significance of price to other factors.
Case: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Outcome: cited
The CEO is required by s 269TEA(5)(b) of the Act to provide particulars of the evidence relied on in support of the findings. But it is not necessary for him to refer to every piece of evidence put before him; the Court will infer that matters not mentioned were not considered to be material; see Yusuf at [69]; see also Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46].
Case: Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1
Outcome: cited
The difficulty was illustrated at a practical level because, apart from contending that there was a duty to ask further questions, Dr Flick was unable to formulate the particular questions which Customs ought to have asked. This is hardly surprising. Once it is determined that the decision-maker has asked himself/herself the correct question, how can the Court determine what particular questions the repository of the power ought to ask to complete the exercise of jurisdiction? To do so may well be to cross the limits of judicial intervention delineated by Brennan J in Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35-36.
Case: Azzi v Minister for Immigration and Multicultural Affairs [2002] FCA 24 ; (2002) 120 FCR 48
Outcome: followed
The authorities confine the duty to investigate to rare and exceptional circumstances. It is limited to cases where it is obvious that material is readily available that is centrally relevant to the decision; see Prasad at 169-170; Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 558-559, 561; Luu v Renevier (1989) 91 ALR 39 at 50; Azzi v Minister for Immigration and Multicultural Affairs [2002] FCA 24 ; (2002) 120 FCR 48 at [102] - [112] .
Case: C A Ford Pty Ltd v Comptroller-General of Customs (1993) 46 FCR 443
Outcome: followed
The duty to hold an investigation under Part XVB does not impose upon Customs an obligation to itself investigate and ascertain all relevant facts; it is a duty to investigate within the statutory framework and the CEO is entitled to rely primarily on submissions received from interested parties; see C A Ford Pty Ltd v Comptroller-General of Customs (1993) 46 FCR 443 at 447 per Davies J. 200 That is not to say that the CEO's duty to investigate is limited entirely to a consideration of the application and the submission of interested parties. Clearly enough, the Act imposes a duty to carry out an investigation. There are numerous references to it; see for example ss 269TC(4)(e), 269TDAA(1) and 269TEA(1). 201 As may be expected, the Act does not direct the CEO as to how to conduct the investigation. It leaves to the CEO/Minister the task of reaching the necessary state of satisfaction having regard to the matters he or she may, or in certain instances must, take into account; ss 269TAE(1), 269TAE(2A), 269TE(2) and 269TG(1).
Case: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Outcome: followed
To the extent that Dr Flick's submissions rested upon the proposition that the CEO is required to expose his or her reasoning in advance of the provision of the report to the Minister under s 269TEA, this would be contrary to well-established authority; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592. See also Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212.
Case: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337
Outcome: cited
The test for reasonable apprehension of bias in curial proceedings is whether a "fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question" that is to be decided; see Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at [27] . See also Antoun v The Queen [2006] HCA 2 ; (2006) 224 ALR 51 at [51] ; Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at [6] .
Case: Enichem Anic Srl v Anti-Dumping Authority (1992) 39 FCR 458
Outcome: followed
This test was applied by the Full Court in Fraser and by other Full Courts in Enichem Anic Srl v Anti-Dumping Authority (1992) 39 FCR 458 at 470 and Minister for Small Business, Construction and Customs v La Doria di Diodata Ferraiolli SPA (1994) 33 ALD 35 at 48. It has also been applied by single judges; see Mullins Wheels Pty Ltd v Minister for Customs and Consumer Affairs (1999) 166 ALR 449 at [18], [21]; N.V. Beaulieu Real v Minister for Justice and Customs ("N.V. Beaulieu Real") [2002] FCA 467 at [50] ; affirmed on appeal [2002] FCAFC 339. 203 It is true, as Hill J observed in Enichem at 469, that decision-making is a "function of the real world". His Honour pointed out that a decision-maker is not bound to investigate each avenue that may be suggested to him/her by an interested party; ultimately, the decision-maker must do the best he or she can on the material available after giving interested parties the right to be heard. Gummow and O'Connor JJ agreed with Hill J.
Case: GTE (Aust) Pty Ltd v Brown (1986) 14 FCR 309
Outcome: distinguished
Dr Flick sought to overcome this difficulty by referring to the decision of Burchett J in GTE (Aust) Pty Ltd v Brown ("Brown's case") (1986) 14 FCR 309 at 337. He submitted that this was authority for the proposition that a statement of essential facts which omitted material facts known to the CEO must create a materially inaccurate impression to the Minister which was reviewable under ss 5(2)(a) and 5 (2)(g) of the ADJR Act . 140 However, Brown's case was decided under a different statutory scheme to that which is now applicable. The observations to which Dr Flick pointed have no application to the provisions of s 269TDAA in their present form.
Case: ICI Australia Operations Pty Limited Ltd v Fraser (1992) 34 FCR 564
Outcome: followed
The subject matter of the enquiry which the CEO/Minister must make under s 269TAE(1), read with s 269TG(1), is material injury to an Australian industry that is causally connected to, "by reason of" or "because of", dumping; see ICI Australia Operations Pty Ltd v Fraser (1992) 34 FCR 564 at 571. 148 This test was applied by the Full Court in Fraser and by other Full Courts in Enichem Anic Srl v Anti-Dumping Authority (1992) 39 FCR 458 at 470 and Minister for Small Business, Construction and Customs v La Doria di Diodata Ferraiolli SPA (1994) 33 ALD 35 at 48. It has also been applied by single judges; see Mullins Wheels Pty Ltd v Minister for Customs and Consumer Affairs (1999) 166 ALR 449 at [18], [21]; N.V. Beaulieu Real v Minister for Justice and Customs ("N.V. Beaulieu Real") [2002] FCA 467 at [50] ; affirmed on appeal [2002] FCAFC 339. 202 After holding an investigation, the CEO must make a recommendation as to whether the Minister ought to be satisfied of the necessary causal link; s 269TEA(1)(d). The question is one ultimately for the Minister having regard to the matters relevant to the determination of material injury and causation; see Fraser at 571.
Case: Kamha v Australian Prudential Regulation Authority [2005] FCAFC 248 ; (2005) 147 FCR 516
Outcome: cited
A similar discretion exits to refuse a claim for relief under the ADJR Act ; see Kamha v Australian Prudential Regulation Authority [2005] FCAFC 248 ; (2005) 147 FCR 516 at [87] . 286 Since I have come to the view that Schaefer has failed to make out a claim for judicial review, the question of discretion does not arise. 287 The orders I will make are that the application be dismissed with costs. I certify that the preceding two hundred and eighty-seven (287) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Date: 29 November 2006 Counsel for the Applicant: G Flick SC with M Izzo Solicitor for the Applicant: Moulis Legal Counsel for the Respondents: S Gageler SC with S Lloyd Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 28-29 August 2006 Date of Judgment: 29 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1644.html
Case: Luu v Renevier (1989) 91 ALR 39 
Outcome: followed
The authorities confine the duty to investigate to rare and exceptional circumstances. It is limited to cases where it is obvious that material is readily available that is centrally relevant to the decision; see Prasad at 169-170; Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 558-559, 561; Luu v Renevier (1989) 91 ALR 39 at 50; Azzi v Minister for Immigration and Multicultural Affairs [2002] FCA 24 ; (2002) 120 FCR 48 at [102] - [112] . 211 Indeed, as the Full Court said in Luu v Renevier at 50, the underlying rationale for the duty to investigate is the ground of unreasonableness; see also Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273 at 290.
Case: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: cited
However, I do not think it is a question of parsing and analysing these passages to criticise what may be thought to be contestable fact finding. Subject to any questions of unreasonableness or perversity, it was a matter for the CEO as to what weight he was to give to the various considerations to be taken into account; Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24 at 41-42. 158 The findings in Chapters 7, 8 and 9 of the Trade Measures Report pave the way for a consideration of the question of causation which is dealt with in Chapter 10. That chapter opens by stating that it considers whether there is a "causal link" between the dumped MGBs and the injury suffered by the Australian industry and whether the injury is material. This is a further clear statement of the question which the CEO was required to address. 159 The chapter contains findings of material injury including the loss of approximately 213,000 units representing 8% of the total market, as well as price depression of about 8% in the market for 120 litre MGBs.
Case: Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553
Outcome: followed
The authorities confine the duty to investigate to rare and exceptional circumstances. It is limited to cases where it is obvious that material is readily available that is centrally relevant to the decision; see Prasad at 169-170; Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 558-559, 561; Luu v Renevier (1989) 91 ALR 39 at 50; Azzi v Minister for Immigration and Multicultural Affairs [2002] FCA 24 ; (2002) 120 FCR 48 at [102] - [112] .
Case: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611
Outcome: followed
But that is not to make immune from judicial intervention the CEO's decision as to the existence of a causal link. In my view, what really underlies Dr Flick's attack on the decision is that it was based on findings or inferences of fact that were not supported by probative material or logical grounds; see Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at [145] ; Re Minister For Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59. 220 I do not consider that these findings were so unreasonable that no reasonable authority could have arrived at them; see Eshetu at [136]; Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-119. 221 The CEO was not bound to accept the contractor's statement. Of course, a different fact finder may have reached a different view. But, as Gummow J said in Eshetu at [137]: ... where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way. 222 I do not consider that the evidence was all one way. It was open for the CEO to find that, notwithstanding the contractor's stated views, the position would have been different if the MGBs were offered at undumped prices. 223 Dr Flick submitted that the omission of the confidential material from the SEF, the Report and the public site visit report for Coffs indicated perversity on the part of the CEO. He submitted that s 269ZJ(4) cannot be construed so as to confer upon Customs a power to select from the information which it has been told and to exclude from the public record other information of which it is aware.
Case: Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 ; (2001) 205 CLR 507
Outcome: cited
In order to make out a finding of actual bias, an applicant must demonstrate that the decision-maker was guilty of pre-judgment. He or she must be committed to a conclusion, and not open to a contrary view, whatever arguments or evidence may be presented; see Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 ; (2001) 205 CLR 507 at [71] - [72] ; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [36] .