mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Comcare v Sahu-Khan [2007] FCA 15 ; (2007) 156 FCR 536
Outcome: referred to
Mr Robertson agrees with the Commission's submission and agrees that the Tribunal erroneously referred to s 9(1)(e) of the Act. It is also agreed that the Tribunal erroneously referred to 'war caused' disease of Mr Robertson in its decision instead of 'defence caused'. Mr Robertson acknowledges that because his PTSD was found to have had its clinical onset in 1994 (after termination of Mr Robertson's defence service), the Tribunal's reference to 'the contribution, to a material degree' adopting the wording of s 9(1)(e) and s 70(5)(d) was irrelevant as the issue raised by these sections is whether an injury or disease was contributed to in a material degree or was aggravated by any eligible war service or defence service respectively rendered after the injury was suffered or the disease was contracted. Mr Robertson refers to Comcare v Sahu-Kahn [2007] FCA 15 ; (2007) 156 FCR 536 at [16] and submits that the adoption by the Tribunal of the wording in s 9(1)(e) and s 70(5)(d) required a more onerous test than that required by s 70(5)(a) of the Act which Mr Robertson submits is the section to which the Tribunal should have had regard. Such provision renders an injury 'defence-caused' if it arose out of, or was attributable to, defence service. 21 The Commission submits that Clauses 5(b) and 6 of the SoP for PTSD give effect to s 70(5)(d) of the Act. Accordingly s 70(5)(d) precluded the Tribunal from finding that Mr Robertson's PTSD was defence caused unless either Mr Robertson developed PTSD during, or prior to, his defence service and the PTSD was contributed to or was aggravated by his defence service. Because the Tribunal did not refer to s 70(5)(d) it failed to apply the correct test for determining whether Mr Robertson's condition was contributed to in a material degree or was aggravated by defence service rendered after he developed PTSD. 22 Mr Robertson submits such errors made no difference because the statutory provisions which establish the necessary causal relationships between the service and disease or injury contained in s 9(1) and s 70(5) respectively are virtually the same for 'eligible war service' and 'defence service'. The relevant SoP all applied to 'eligible service' which is defined in clause 8 of each SoP to include 'eligible war service' and 'defence service' with the result that the factors required by the SoP for both forms of service were identical.
Case: Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163
Outcome: followed
Even though the text of s 9(1)(e) and of s 70(5)(d) are similar, this circumstance does not detract from the conclusion that the wrong test was applied by the Tribunal. The failure of the Tribunal to refer to the correct statutory provision demonstrates that the Tribunal asked itself the wrong question. Jurisdictional error therefore exists in its decision: see Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6 ; [1969] 2 AC 147 at 171; Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179. Whether such error is by itself sufficient to warrant the setting aside of the Tribunal's decision is a matter within the Court's discretion.
Case: Deledio v Repatriation Commission (1997) 25 AAR 396
Outcome: referred to
Since the Tribunal found that Mr Robertson's PTSD had its clinical onset in 1994 namely after his defence service had concluded there could be no scope for any contribution to or aggravation of his PTSD by the subsequent stressors suffered during his defence service as considered in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 unless they were severe stressors which caused the PTSD: see the observations of Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261 at 275 with whom the Full Court agreed (see Repatriation Commission v Deledio (1998) 83 FCR 82 at 95-96). See also Repatriation Commission v Bendy (1989) 18 ALD 144 at 146.
Case: Lees v Repatriation Commission [2002] FCAFC 398 ; (2002) 125 FCR 331
Outcome: referred to
The term 'clinical onset' is not defined in the Act. The parties accept the definition provided in Re Robertson v Repatriation Commission (1998) 50 ALD 668 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 that 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. See also Repatriation Commission v Cornelius [2002] FCA 750 ; and Lees v Repatriation Commission [2002] FCAFC 398 ; (2002) 125 FCR 331. 43 The clinical onset of such a condition is a diagnostic issue requiring medical opinion: see Cornelius [2002] FCA 750 at [28] ; Lees [2002] FCAFC 398 ; 125 FCR 331; Repatriation Commission v Milenz (2006) 43 AAR 565 at [34]; Repatriation Commission v Brady [2007] FCA 1087 at [36] .
Case: Mines v Repatriation Commission (2004) 40 AAR 238
Outcome: followed
As was recognised by Gray J in Mines v Repatriation Commission (2004) 40 AAR 238 at [39], one or more possible traumatic events might exist and the making of a determination as to which of the events was responsible for the condition may be required: see also Bendy 18 ALD 144. However it is essential to identify the stressor occurring during defence service which resulted in the PTSD to satisfy Clause 5(a) of the SoP for PTSD. Unless such stressor or stressors experienced during defence service led to such clinical onset, they are irrelevant.
Case: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 32
Outcome: followed
The Court is not satisfied that if the Tribunal had addressed the correct questions, its decision would be the same, irrespective of the error: see Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 384. The errors of the Tribunal include the reference to eligible service under s 9(1) when the correct test was contained in s 70(5) of the Act; the reference to 'war service' when the only service relevant was Mr Robertson's 'defence service'; the failure to refer to the correct provisions in s 70(5) of the Act; and the finding made in the absence of evidence of Mr Robertson's alcohol dependence. The Tribunal did not identify the correct issues which it was required to determine and accordingly fell into jurisdictional error: see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 347-348.
Case: Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206
Outcome: referred to
In view of the above findings of error in the decision of the Tribunal, the Court is not of the opinion that it would be 'futile to remit the matter' : see Arnott v Repatriation Commission [2001] FCA 262 ; (2001) 106 FCR 83 at [36] . Rather the Court considers that there is a possibility that a different result would be reached on such remitter: see Santa Sabina College v Minister for Education (1985) 58 ALR 527 at 540; and Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206 at 213-214.
Case: Re Robertson v Repatriation Commission (1998) 50 ALD 668
Outcome: referred to
The term 'clinical onset' is not defined in the Act. The parties accept the definition provided in Re Robertson v Repatriation Commission (1998) 50 ALD 668 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 that 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. See also Repatriation Commission v Cornelius [2002] FCA 750 ; and Lees v Repatriation Commission [2002] FCAFC 398 ; (2002) 125 FCR 331.
Case: Repatriation Commission v Bendy (1989) 18 ALD 144
Outcome: referred to
Since the Tribunal found that Mr Robertson's PTSD had its clinical onset in 1994 namely after his defence service had concluded there could be no scope for any contribution to or aggravation of his PTSD by the subsequent stressors suffered during his defence service as considered in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 unless they were severe stressors which caused the PTSD: see the observations of Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261 at 275 with whom the Full Court agreed (see Repatriation Commission v Deledio (1998) 83 FCR 82 at 95-96). See also Repatriation Commission v Bendy (1989) 18 ALD 144 at 146. 35 As was recognised by Gray J in Mines v Repatriation Commission (2004) 40 AAR 238 at [39], one or more possible traumatic events might exist and the making of a determination as to which of the events was responsible for the condition may be required: see also Bendy 18 ALD 144. However it is essential to identify the stressor occurring during defence service which resulted in the PTSD to satisfy Clause 5(a) of the SoP for PTSD. Unless such stressor or stressors experienced during defence service led to such clinical onset, they are irrelevant.
Case: Repatriation Commission v Brady [2007] FCA 1087
Outcome: referred to
The clinical onset of such a condition is a diagnostic issue requiring medical opinion: see Cornelius [2002] FCA 750 at [28] ; Lees [2002] FCAFC 398 ; 125 FCR 331; Repatriation Commission v Milenz (2006) 43 AAR 565 at [34]; Repatriation Commission v Brady [2007] FCA 1087 at [36] .
Case: Repatriation Commission v Cornelius [2002] FCA 750
Outcome: referred to
The term 'clinical onset' is not defined in the Act. The parties accept the definition provided in Re Robertson v Repatriation Commission (1998) 50 ALD 668 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 that 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. See also Repatriation Commission v Cornelius [2002] FCA 750 ; and Lees v Repatriation Commission [2002] FCAFC 398 ; (2002) 125 FCR 331. 43 The clinical onset of such a condition is a diagnostic issue requiring medical opinion: see Cornelius [2002] FCA 750 at [28] ; Lees [2002] FCAFC 398 ; 125 FCR 331; Repatriation Commission v Milenz (2006) 43 AAR 565 at [34]; Repatriation Commission v Brady [2007] FCA 1087 at [36] .
Case: Repatriation Commission v Deledio (1998) 83 FCR 82
Outcome: referred to
Since the Tribunal found that Mr Robertson's PTSD had its clinical onset in 1994 namely after his defence service had concluded there could be no scope for any contribution to or aggravation of his PTSD by the subsequent stressors suffered during his defence service as considered in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 unless they were severe stressors which caused the PTSD: see the observations of Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261 at 275 with whom the Full Court agreed (see Repatriation Commission v Deledio (1998) 83 FCR 82 at 95-96). See also Repatriation Commission v Bendy (1989) 18 ALD 144 at 146.
Case: Repatriation Commission v Milenz (2006) 43 AAR 565
Outcome: referred to
The clinical onset of such a condition is a diagnostic issue requiring medical opinion: see Cornelius [2002] FCA 750 at [28] ; Lees [2002] FCAFC 398 ; 125 FCR 331; Repatriation Commission v Milenz (2006) 43 AAR 565 at [34]; Repatriation Commission v Brady [2007] FCA 1087 at [36] .
Case: Santa Sabina College v Minister for Education (1985) 58 ALR 527
Outcome: referred to
In view of the above findings of error in the decision of the Tribunal, the Court is not of the opinion that it would be 'futile to remit the matter' : see Arnott v Repatriation Commission [2001] FCA 262 ; (2001) 106 FCR 83 at [36] . Rather the Court considers that there is a possibility that a different result would be reached on such remitter: see Santa Sabina College v Minister for Education (1985) 58 ALR 527 at 540; and Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206 at 213-214.
Case: Munnings v Australian Government Solicitor [1994] HCA 12 ; (1994) 120 ALR 586
Outcome: cited
In Munnings v Australian Government Solicitor [1994] HCA 12 ; (1994) 120 ALR 586 at 589 Mason CJ and Brennan and Toohey JJ observed: ... Although a plaintiff is often granted leave to re-plead if a statement of claim is struck out, there are some cases where the plaintiff so misconceives the cause of action that the action ought to be brought to an end. 17 In this case I am not satisfied that the application and the statement of claim disclose no reasonable cause of action or that the applicant so misconceives the cause of action that the action should be brought to an end at this stage. At present, however, the case the seventh respondent faces is not pleaded with sufficient clarity for the seventh respondent to meet it. In Court this morning the applicant indicated that she is currently seeking legal advice and would require at least two and a half weeks to do so. 18 In my view the appropriate orders, in addition to the consent order which I have already made this morning concerning the second respondent, are as follows: 1. The application and the statement of claim so far as the applicant seeks relief against the first, third, fourth, fifth and sixth respondents, should be struck out. 2. The applicant be given leave to file and serve an amended application and an amended statement of claim by 4.00 pm on 29 October 2008, in default of which the application so far as the seventh respondent is concerned stands dismissed. 19 Counsel for the third, fourth, fifth, sixth and seventh respondents submitted that their clients did not seek any orders as to costs. No such submission was made by the first respondent. In relation to the first respondent I order that costs be reserved. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 17 October 2008 Counsel for the Applicant: The applicant appeared in person Solicitor for the First Respondent: Mr M Downey of Sparke Helmore Counsel for the Second Respondent: Mr M Cooke Solicitor for the Second Respondent: McInnes Wilson Counsel for the Third, Fourth, Fifth, Sixth and Seventh Respondents: Mr P Travis Solicitor for the Third, Fourth, Fifth, Sixth and Seventh Respondents: Elliott May Date of Hearing: 10 October 2008 Date of Judgment: 10 October 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1523.html
Case: Cassidy v Saatchi &amp; Saatchi Australia Pty Ltd [2004] FCAFC 34
Outcome: cited
It is well-known that the provisions of the ASIC Act regulating consumer protection resulted from the transfer of consumer protection functions in relation to financial services from the regulatory responsibility of the Australian Competition and Consumer Commission to the Australian Securities and Investments Commission: Financial Sector Reform (Consequential Amendments) Bill 1998 (Cth), Second reading speech, Treasurer, the Hon Peter Costello MP; Financial Sector Reform (Consequential Amendments) Bill 1998 (Cth) Explanatory Memorandum, paras 4.11-4.14; Cassidy v Saatchi &amp; Saatchi Australia Pty Ltd [2004] FCAFC 34. 26 It is also clear that the provisions of the ASIC Act under consideration in this case replicate the equivalent provisions of the Trade Practices Act : Financial Sector Reform (Consequential Amendments) Bill 1998 (Cth) Explanatory Memorandum, paras 4.33-4.39, Miller R, Annotated Trade Practices Act (28th ed, Thomson, 2007) at 516. 27 I am not persuaded that, by substituting the consumer protection provisions of the ASIC Act for the equivalent provisions of the Trade Practices Act in her claim, the applicant's case in paras 1-4 and 6-7 under "Details of Claim" and paras 2-3 under "Claim for Interlocutory Relief" is any different from the case which was before Spender J. Indeed, these pleadings are otherwise identical to those before Spender J, and no relevance has been ascribed either in the pleadings before me or by the applicant at the hearing to the conduct of the respondents so far as it relates specifically to financial services (to which the ASIC Act applies), as distinct from other goods or services (to which the Trade Practices Act applies). The applicant relies on the same facts, matters and circumstances in the application before me as she did in QUD525/2005 before Spender J. The applicant is attempting to re-litigate issues already decided by Spender J. In this respect the application is an abuse of process and should be dismissed pursuant to O 20 r 2 Federal Court Rules .
Case: Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232
Outcome: cited
Section 31A Federal Court Act applies to all cases commenced on or after 1 December 2005. The nature of the provision and its overlap with O 20 r 2 Federal Court Rules have been considered in a number of cases in this Court, including the recent decision of Lindgren J in White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511. In that case, his Honour articulated a number of principles including: &#8226; Section 31A of the Federal Court Act, like O 20 of the Rules, is concerned with the bringing and defending of proceedings, not just with pleadings; with substance, not just with form (at [50]). &#8226; Section 31A(2) is comparable to O 20 r 2 in that they are both concerned with dismissals of proceedings (at [50]). &#8226; The only difference that suggests itself between the concept of no reasonable cause of action being disclosed (O 20 r 2(1)(a)) and no reasonable prospect of successfully prosecuting a proceeding (s 31A(2)) is that the latter makes plain that there may be taken into account the unavailability of evidence necessary to bring success at trial, whereas it is arguable that the former does not permit the unavailability of such evidence to be taken into account (at [51]). &#8226; It appears that the legislature's intention in enacting s 31A was to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by such authorities as Dey v Victorian Railway Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91-92, and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129-130 (at [54]). (To that extent the test in s 31A appears less stringent than that in O 20 r 2: Spender J in Rogers v Asset Loan Co Pty Ltd (2007) FCA 1371 at [55] ). &#8226; The "no reasonable prospects of success" formula of s 31A reflects the approach adopted in r 24.2 of the United Kingdom's Civil Procedure Rules (at [53]). In the United Kingdom it has been held in the context of that equivalent rule that the expressions "no real prospect of succeeding" and "no real prospect of successfully defending" require attention to be given to real, as opposed to "fanciful" or "merely arguable" prospects (at [59]). &#8226; The same test has been adopted in r 292(2) and r 293(2) of Queensland's Uniform Civil Procedure Rules 1999 (at [53]). The Queensland Court of Appeal has similarly held that the "no reasonable prospects of success" test requires the court to determine whether there are "real" as opposed to "fanciful" prospects of success: Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 at 235 (at [59]).
Case: Dey v Victorian Railway Commissioners [1949] HCA 1 ; (1949) 78 CLR 62
Outcome: cited
Section 31A Federal Court Act applies to all cases commenced on or after 1 December 2005. The nature of the provision and its overlap with O 20 r 2 Federal Court Rules have been considered in a number of cases in this Court, including the recent decision of Lindgren J in White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511. In that case, his Honour articulated a number of principles including: &#8226; Section 31A of the Federal Court Act, like O 20 of the Rules, is concerned with the bringing and defending of proceedings, not just with pleadings; with substance, not just with form (at [50]). &#8226; Section 31A(2) is comparable to O 20 r 2 in that they are both concerned with dismissals of proceedings (at [50]). &#8226; The only difference that suggests itself between the concept of no reasonable cause of action being disclosed (O 20 r 2(1)(a)) and no reasonable prospect of successfully prosecuting a proceeding (s 31A(2)) is that the latter makes plain that there may be taken into account the unavailability of evidence necessary to bring success at trial, whereas it is arguable that the former does not permit the unavailability of such evidence to be taken into account (at [51]). &#8226; It appears that the legislature's intention in enacting s 31A was to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by such authorities as Dey v Victorian Railway Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91-92, and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129-130 (at [54]). (To that extent the test in s 31A appears less stringent than that in O 20 r 2: Spender J in Rogers v Asset Loan Co Pty Ltd (2007) FCA 1371 at [55] ). &#8226; The "no reasonable prospects of success" formula of s 31A reflects the approach adopted in r 24.2 of the United Kingdom's Civil Procedure Rules (at [53]). In the United Kingdom it has been held in the context of that equivalent rule that the expressions "no real prospect of succeeding" and "no real prospect of successfully defending" require attention to be given to real, as opposed to "fanciful" or "merely arguable" prospects (at [59]). &#8226; The same test has been adopted in r 292(2) and r 293(2) of Queensland's Uniform Civil Procedure Rules 1999 (at [53]). The Queensland Court of Appeal has similarly held that the "no reasonable prospects of success" test requires the court to determine whether there are "real" as opposed to "fanciful" prospects of success: Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 at 235 (at [59]).