mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Wilson v Darling Island Stevedoring &amp; Lighterage Co Ltd [1956] HCA 8 ; (1956) 95 CLR 43
Outcome: cited
for present purposes, as Gordon J observed in Jefferson Ford at [130] (citations omitted): ... where there is a real issue of fact relevant to a pleaded cause of action, it is unlikely that that part of the proceeding has no prospect of success ... So, for example, if the pleadings, affidavits, and other materials considered in connection with the summary judgment motion, reveal a factual dispute and that factual dispute must be resolved to determine whether or not the claim succeeds, it cannot be said that the claim has "no reasonable prospect of success" ... On the other hand, if the factual contest is unnecessary to the resolution of the cause of action pleaded, then in the absence of other relevant material, there is nothing to prevent the court entering judgment on that claim. Breach of Trust/Fiduciary Duty While it is not strictly necessary that I express a concluded view on this foreshadowed defence, and while I share the view of Fullagar J in Wilson v Darling Island Stevedoring &amp; Lighterage Co Ltd [1956] HCA 8 ; (1956) 95 CLR 43 at 67 that it is "difficult to understand the reluctance which courts have sometimes shown to infer a trust in such cases" a reluctance I acknowledge I am satisfied that having regard not only to the text of the agreement but also to the known surrounding circumstances and the purpose and object of the contract: cf Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 at [22] ; a court would readily infer a trust intention in this matter.
Case: Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451
Outcome: cited
it is not strictly necessary that I express a concluded view on this foreshadowed defence, and while I share the view of Fullagar J in Wilson v Darling Island Stevedoring &amp; Lighterage Co Ltd [1956] HCA 8 ; (1956) 95 CLR 43 at 67 that it is "difficult to understand the reluctance which courts have sometimes shown to infer a trust in such cases" a reluctance I acknowledge I am satisfied that having regard not only to the text of the agreement but also to the known surrounding circumstances and the purpose and object of the contract: cf Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 at [22] ; a court would readily infer a trust intention in this matter.
Case: Lidden v Composite Buyers (1996) 67 FCR 560
Outcome: cited
ordinarily MMAL would be a necessary party to the raising of such a defence: see Lidden v Composite Buyers (1996) 67 FCR 560 ; see also Jacobs' Law of Trusts in Australia , [2303] (7 th ed, 2006); the respondents acknowledge were the matter to proceed to trial, MMAL could be joined as a party for the purpose of enforcing the trust. I should add that, while the Trustee did not seek to insist on its rights for the purpose of the 2001 reconsideration and properly so given Mr Smelt's assurance at the time of the mediation agreement that he would raise the TPD claim with Colonial the Trustee has done nothing that could be said (i) to amount to a renunciation of its rights; or (ii) to found an estoppel against it for the future. Given this available defence, I am satisfied it provides a further basis for concluding that Mr Kowalski's application has no reasonable prospects of success.
Case: Aston and Secretary, Department of Primary Industry, Re (1985) 8 ALD 366
Outcome: discussed
In Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 (" Re Aston "), the Tribunal (of which Davies J was the President) considered the correct and preferable decision on the material before it in relation to an allocation of a quota of Southern bluefin tuna under a scheme limiting the taking of tuna adopted pursuant to the Fisheries Act 1952 (Cth). The Tribunal quoted extensively from the reasons for judgment of Brennan J in Drake (No 2) and noted the reasons why, in the circumstances of Re Aston , it was appropriate to place great weight on the policy (at 380): "There being no special circumstances which affected the Astons, this is pre-eminently the type of matter in which the policy adopted by the primary decision-maker ought to be applied by this Tribunal. The policy affected an industry. It was a policy decided upon at the highest level, being resolved upon by the Australian Fisheries Council comprised of the six relevant Ministers of the States and the Federal Minister for Primary Industry and the Federal Minister for Science and Technology. It was a policy which could only be developed in the political arena after consultation with industry. The Tribunal, which is not accountable politically and which cannot proceed by obtaining industry consensus, must give such a policy great weight."
Case: Becker and Minister for Immigration and Ethnic Affairs, Re (1977) 1 ALD 158
Outcome: discussed
In an earlier decision, Brennan J, again sitting as the President of the Tribunal and on a review of a Minister's decision to order deportation under s 13(a) of the Migration Act 1958 (Cth) (" Migration Act "), as it then was, drew a distinction between policies made or settled at the political level and policies made or settled at the departmental level: Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158 at 163. Different considerations may apply to the review of each kind of policy and more substantial reasons might need to be shown why policies forged at the political level should be reviewed.
Case: Drake and Minister for Immigration and Ethnic Affairs (No 2), Re [1979] 2 ALD 634
Outcome: discussed
The appeal was allowed in Drake and the matter was remitted to the Tribunal for rehearing. The President of the Tribunal, Brennan J (as his Honour then was), conducted the rehearing: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 2 ALD 634 (" Drake No 2 "). Brennan J referred to the advantages which flowed from the original decision-maker being able to be guided by policy statements, guidelines or standards. The policy must be consistent with the statute and it must not be framed so as to preclude consideration of the merits of the individual case. The Tribunal may apply the policy on a review. Brennan J said (at 643): "If the Tribunal applies ministerial policy, it is because of the assistance which the policy can furnish in arriving at the preferable decision in the circumstances of the case as they appear to the Tribunal. One of the factors to be considered in arriving at the preferable decision in a particular case is its consistency with other decisions in comparable cases, and one of the most useful aids in achieving consistency is a guiding policy." 40 Brennan J went on to explain why it was not convenient for the Tribunal to formulate policy. His Honour said that administrative policies are best formed and amended in a political context. In the course of his discussion, his Honour referred to the chain of responsibility from Minister to government to Parliament and to the fact that the bureaucracy is best placed to advise on broad policy. His Honour reached the following conclusions (at 645): "When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny."
Case: Federal Commissioner of Taxation v Swift and Others (1989) 18 ALD 679
Outcome: discussed
In Federal Commissioner of Taxation v Swift and Others (1989) 18 ALD 679 , this Court was required to consider a decision of the Tribunal granting the applicant relief under s 5(4) of the Taxation (Unpaid Company Tax) Assessment Act 1982 (Cth). There was a ruling of the Commissioner which specified the circumstances in which relief should be granted. After referring to the particular policy which was in issue in Re Aston , French J (as his Honour then was) said (at 692): "And, as in that case, which involved the exercise of a discretion to limit the terms of fishing licences under a national quota scheme, a policy which is developed in the political arena after consultation with the relevant industry ought generally to be given great weight. Taxation ruling IT 2063 does not appear to be in that category. Nevertheless, the magnitude of the task involved in carrying out original decision-making and supervising and regulating the exercise of delegated authority under the taxation laws, is a powerful indicator that appropriate guidelines are essential for the avoidance of administrative chaos and for the achievement of reasonable consistency. The need to maintain the perception and reality of equal treatment is an important factor in the administration of all laws and not least in those relating to taxation. But such considerations go to the weight to be attributed to policy and that is ultimately a matter for the Tribunal: Nevistic v Minister for Immigration and Ethnic Affairs, supra , at 647 (Deane J); Re Aston, supra , at AAR 78 (Davies J)."
Case: Hneidi v Minister for Immigration and Citizenship (2008) 104 ALD 668
Outcome: cited
This is an appeal from a decision of the Administrative Appeals Tribunal: Hneidi v Minister for Immigration and Citizenship (2008) 104 ALD 668. The appeal to this Court is limited to an appeal on a question of law ( Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") s 44(1)). 2 The first applicant holds both Syrian and Lebanese citizenship, and he currently resides in Beirut. He is married to Ms Karina Hneidi, who holds both Australian and Lebanese citizenship, and there are four children of the marriage. One of the applicant's children holds Australian citizenship. 3 On 30 October 2006, the first applicant made an application for Australian citizenship for himself and for the three children who did not hold Australian citizenship. On 1 June 2007, a delegate of the Minister for Immigration and Citizenship refused the application. In his reasons, the delegate did not specifically provide reasons for refusing the applications with respect to the three children. On the application for review to the Tribunal, the Tribunal member said that as the three children had been joined to the first applicant's application then "by implication" the applications by the children had also been refused.
Case: Lofthouse and Australian Securities and Investments Commission, Re [2004] AATA 327 ; (2004) 82 ALD 481
Outcome: referred to
Finally, I mention that I was referred to the Tribunal's decision in Re Lofthouse and Australian Securities and Investments Commission [2004] AATA 327 ; (2004) 82 ALD 481 , a case involving consideration of the weight to be given to a Policy Statement formulated by the Australian Securities and Investments Commission. 47 I turn now to examine the Tribunal's reasons in light of these principles. 48 The Tribunal member did not discuss the source of the Instructions. She did not discuss whether the Instructions had been made by the Minister or by senior officers in the Minister's Department. She appears to have proceeded on the basis that the Instructions were Ministerial Guidelines rather than Departmental Guidelines. She formulated one of the issues before the Tribunal as: "... to what extent can the Tribunal go outside the Ministerial Guidelines (the Guidelines) in exercising its discretion?"
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: followed
The reasons of the Tribunal are not to be read with an eye keenly attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259. It was not suggested that the Instructions are unlawful. In any event, I would reject such a contention. Key elements of the Instructions simply reflect important criteria in s 13(1) of the Act which deals with a grant of a certificate of citizenship. The fundamental question is whether the Tribunal member made an independent assessment on the material before her. I think that she did. 58 I reject the first ground of appeal. The second question of law and the second and third grounds of appeal 59 The respondent accepted that when a decision-maker is determining whether to grant a certificate of Australian citizenship under s 13(9) of the Act, he or she is bound to take into account whether members of the person's immediate family are Australian citizens. The applicants submitted that the matter was not taken into account and that that was an error of law. The respondent submitted that this matter was taken into account by the Tribunal both in relation to the first applicant's application and the application of the children.
Case: Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639
Outcome: discussed
In Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639 , the Full Court of this Court considered an appeal from the Tribunal on a question of law. The Tribunal had reviewed a decision of the Minister to deport the applicant under s 12 of the Migration Act as it then was. The Tribunal had taken into account government policy on the deportation of persons involved in growing, importation or distribution of illicit drugs and had decided that the correct and preferable decision in all the circumstances of the case was that the applicant be deported from Australia. The Tribunal said that, absent the policy, its decision may have been different. The Full Court dismissed the appeal and held that the Tribunal was entitled to take the policy into account as a relevant factor and that the weight to be accorded to the policy was a matter for that Tribunal. The Court also said that the Tribunal could not abdicate its function of determining the correct and preferable decision on the material before it by simply applying the policy without conducting an independent assessment. 45 In Federal Commissioner of Taxation v Swift and Others (1989) 18 ALD 679 , this Court was required to consider a decision of the Tribunal granting the applicant relief under s 5(4) of the Taxation (Unpaid Company Tax) Assessment Act 1982 (Cth). There was a ruling of the Commissioner which specified the circumstances in which relief should be granted. After referring to the particular policy which was in issue in Re Aston , French J (as his Honour then was) said (at 692): "And, as in that case, which involved the exercise of a discretion to limit the terms of fishing licences under a national quota scheme, a policy which is developed in the political arena after consultation with the relevant industry ought generally to be given great weight. Taxation ruling IT 2063 does not appear to be in that category. Nevertheless, the magnitude of the task involved in carrying out original decision-making and supervising and regulating the exercise of delegated authority under the taxation laws, is a powerful indicator that appropriate guidelines are essential for the avoidance of administrative chaos and for the achievement of reasonable consistency. The need to maintain the perception and reality of equal treatment is an important factor in the administration of all laws and not least in those relating to taxation. But such considerations go to the weight to be attributed to policy and that is ultimately a matter for the Tribunal: Nevistic v Minister for Immigration and Ethnic Affairs, supra , at 647 (Deane J); Re Aston, supra , at AAR 78 (Davies J)."
Case: Sadiq and Minister for Immigration and Multicultural and Indigenous Affairs, Re [2006] AATA 75
Outcome: referred to
Secondly, the applicants submitted that the Tribunal member had not considered the propriety of the Instructions. There are two answers to this submission. First, where a policy is lawful, the Tribunal would not normally consider the propriety of the policy as a policy. It would consider the propriety of applying the policy to the facts of the particular case. I am satisfied that the Tribunal member did that. The second answer is that, by reference to some observations in Re Sadiq and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 75 , the Tribunal member did give consideration to the propriety of the policy as a policy. 56 Thirdly, the applicants submitted that the Tribunal member misdirected herself in law because she referred to two cases, namely: Drake No 2 and Re Dainty , which discussed the relevant principles in the context of ministerial policy, not departmental policy. The answers to this submission are as follows. A fair reading of the Tribunal member's reasons reveals that she did not adopt an incorrect approach to the Instructions as departmental policy. In so far as it might be said that she placed greater weight on the Instructions than was called for, that was a question of weight which was a matter for the Tribunal.
Case: Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388
Outcome: referred to
It may appear from the Tribunal's reasons that a consideration was taken into account even though it is not expressly mentioned ( Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 at 392 per Toohey J). It seems to me that the inference that the matter was taken into account will be more easily drawn if the consideration is one of less significance than other considerations in the case. It seems to me that the fact that Maya is an Australian citizen is of less significance than other considerations in the case. 61 Plainly, the Tribunal was aware and made reference to the fact that Maya was an Australian citizen. I am satisfied that the matter was taken into account because the Tribunal member contrasted the position of Ms Hneidi and Maya with the first applicant and the three children in terms of assistance from the Australian Embassy and ease of international travel. 62 I reject the second and third grounds of appeal. Conclusion
Case: Allianz Australia Insurance Limited v GSF Australia Pty Ltd [2005] HCA 26 ; (2005) 221 CLR 568
Outcome: cited
The notion of "causing" has been said to be one of common sense: Environment Agency (formerly National Rivers Authority) v Empress Car Co. (Abertillery) Ltd [1998] UKHL 5 ; [1999] 2 AC 22 at 29 (per Lord Hoffman). But whatever may be conveyed by the reference to " common sense ", answers to questions of causation will differ according to the purpose for which the question is asked: Travel Compensation Fund v Tambree [2005] HCA 69 ; (2005) 224 CLR 627 at [45] ; Allianz Australia Insurance Limited v GSF Australia Pty Ltd [2005] HCA 26 ; (2005) 221 CLR 568 at [96] - [97] ; Chappel v Hart [1998] HCA 55 ; (1998) 195 CLR 232 at [63] - [64] (per Gummow J) and at [122] (per Hayne J).
Case: Brown v Repatriation Commission [2006] FCA 914
Outcome: distinguished
Despite the respondent's submissions to the contrary, the decision of Tamberlin J in Repatriation Commission v Towns (2003) 38 AAR 77 does not assist the respondent's case. The decision must be understood having regard to the matters that were in issue in the case. In Towns , there was consensus that there was no relevant SoP and so it was unnecessary to make any analysis of the kind of death met by the veteran: at [28]. It would be wrong, then, to take what was said in that case as supporting or establishing the general proposition that the expression " kind of death " was not concerned with medical causation where the medical cause or causes can be identified. Likewise, the decision of Branson J in Brown v Repatriation Commission [2006] FCA 914 makes plain that the decision in that case was not the occasion to provide general and definitive guidance about the meaning of the expression.
Case: Bull v Repatriation Commission (2001) 188 ALR 756
Outcome: cited
As the language of s 120(3) makes clear, and as the High Court emphasised in Repatriation Commission v Owens (1996) 70 ALJR 904 at 904, the question whether a reasonable hypothesis is raised is to be determined on a consideration of the whole of the material before the decision-maker: see also Repatriation Commission v Bey (1997) 79 FCR 364 at 367. A reasonable hypothesis within s 120(3) of the VE Act is a hypothesis that is pointed to by the material before the decision-maker, and not merely left open (or not excluded) by that material. A hypothesis that is not pointed to, but is a matter of assertion or is merely left open by the material, is not a reasonable hypothesis: see East v Repatriation Commission (1987) 16 FCR 517 at 532-533. See also Repatriation Commission v Bey (1997) 79 FCR 364 at 366-367, 372-373; Bull v Repatriation Commission (2001) 188 ALR 756 at [18] and [41].
Case: Byrnes v Repatriation Commission [1993] HCA 51 ; (1993) 177 CLR 564
Outcome: referred to
The threshold question posed by s 120(3) is whether the whole of the material before the decision-maker raises a reasonable hypothesis connecting the veteran's death with the circumstances of his service. If the material does raise such a reasonable hypothesis, the decision-maker proceeds to the question posed by s 120(1) namely, is the decision-maker satisfied beyond reasonable doubt that the facts required to connect the veteran's death with his service were disproved or were displaced by other facts: Byrnes v Repatriation Commission [1993] HCA 51 ; (1993) 177 CLR 564 at 571.
Case: Chappel v Hart [1998] HCA 55 ; (1998) 195 CLR 232
Outcome: cited
The notion of "causing" has been said to be one of common sense: Environment Agency (formerly National Rivers Authority) v Empress Car Co. (Abertillery) Ltd [1998] UKHL 5 ; [1999] 2 AC 22 at 29 (per Lord Hoffman). But whatever may be conveyed by the reference to " common sense ", answers to questions of causation will differ according to the purpose for which the question is asked: Travel Compensation Fund v Tambree [2005] HCA 69 ; (2005) 224 CLR 627 at [45] ; Allianz Australia Insurance Limited v GSF Australia Pty Ltd [2005] HCA 26 ; (2005) 221 CLR 568 at [96] - [97] ; Chappel v Hart [1998] HCA 55 ; (1998) 195 CLR 232 at [63] - [64] (per Gummow J) and at [122] (per Hayne J).
Case: Collector of Customs v Agfa-Gevaert [1996] HCA 36 ; (1996) 186 CLR 389
Outcome: cited
The respondent contended that the Tribunal's finding of the " kind of death " as death by road accident was a finding of fact which was 'unimpeachable'. That submission should be rejected. For the reasons that follow, it is apparent that in making that finding, the Tribunal erred in the proper construction of ss 120 , 120A (3) and 120A (4) of the VE Act and, in particular, the meaning of the phrase " kind of death " in s 120A(4) of the VE Act . That is an error of law: Collector of Customs v Agfa-Gevaert [1996] HCA 36 ; (1996) 186 CLR 389 at 394-5. 31 The phrase " kind of death met by the person " in s 120A(4) asks a causative question. It is not a question about whether the death was slow, fast or the like. It asks " questions of medical causation" about the cause of death and does so in a particular context the VE Act and, in particular, Part VIII of the VE Act : see also Explanatory Memorandum to the Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 (Cth) pp i-ii.