mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Repatriation Commission v Owens (1996) 70 ALJR 904
Outcome: cited
The threshold question posed by s 120(3) requires a consideration of the whole of the material before the decision-maker and the raised hypothesis connecting the death with the circumstances of the particular service rendered by the veteran: see Repatriation Commission v Owens (1996) 70 ALJR 904. Further, it is mandatory to find in favour of an applicant unless the decision-maker forms an opinion that the whole of the material does not raise the reasonable hypothesis referred to in the statute: see Repatriation Commission v Whetton (1991) 31 FCR 513 at 521.
Case: Repatriation Commission v Smith (1987) 15 FCR 327
Outcome: cited
The question as to the kind of death suffered by a veteran is to be determined by applying the standard of proof in s 120(4) of the VE Act; that is, to the reasonable satisfaction of the decision-maker. That section imports the civil standard of proof: see Repatriation Commission v Smith (1987) 15 FCR 327 at 335. 9 Section 120(1), so far as is relevant, provides: Where a claim under Part II for a pension in respect of...the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the death of the veteran was war-caused...unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. 10 Relevantly, s 120(3) provides: In applying subsection (1)...in respect of the...death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining: ... (c) that the death was war-caused or defence-caused; ...if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the...death with the circumstances of the particular service rendered by the person.
Case: Repatriation Commission v Whetton (1991) 31 FCR 513
Outcome: cited
The threshold question posed by s 120(3) requires a consideration of the whole of the material before the decision-maker and the raised hypothesis connecting the death with the circumstances of the particular service rendered by the veteran: see Repatriation Commission v Owens (1996) 70 ALJR 904. Further, it is mandatory to find in favour of an applicant unless the decision-maker forms an opinion that the whole of the material does not raise the reasonable hypothesis referred to in the statute: see Repatriation Commission v Whetton (1991) 31 FCR 513 at 521. 17 The question for me is whether there was sufficient material before the Tribunal pointing to or supporting a reasonable hypothesis connecting the veteran's death with the circumstances of his service having regard to these facts. I say having regard to these facts because the reasonableness of the hypothesis is to be considered in the context of the relevant factual scenario. This includes that exposure to benzene occurred some 52 years before the veteran contracted myelofibrosis, and was at best intermittent whilst cleaning guns and machinery over a period of approximately 12 months: see, e.g. the approach taken in Whetton 31 FCR 513. This is not to say that proof of any of these facts is necessary at this stage, just that they needed to be considered in connection with the hypothesis before the Tribunal.
Case: Schiffer v Pattison [2001] FCA 1094
Outcome: cited
Section 39(1) of the AAT Act provided that, subject to provisions which are irrelevant for present purposes, the Tribunal must ensure that every party sitting before a Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision, and to make submissions in relation to those documents. It seems to be clear that the section provides that the Tribunal must apply notions of procedural fairness: see Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 per Mason J and O'Sullivan v Repatriation Commission [2003] FCA 387 ; (2003) 128 FCR 590 at [45] . Obviously the requirements will depend upon the particular circumstances of each case. It may be in some circumstances where a party is represented then there is some onus upon a party to be proactive in requesting from the Tribunal an opportunity to present its case such as, for instance, in seeking an adjournment: see, e.g. Schiffer v Pattison [2001] FCA 1094. However, as I have said, in this case the Tribunal and the respondent effectively represented there would be an opportunity for the applicant to present further submissions on the issue of the bundle of documents once those documents had been seen. That opportunity was not given.
Case: Russell v Commissioner of Taxation of the Commonwealth of Australia [2009] FCA 1224
Outcome: considered
I published my reasons for judgment in respect of these taxation appeals on 30 October 2009 I directed the parties to bring in proposed short minutes of orders to give effect to the conclusions which I had reached. These reasons for judgment should be read in conjunction with those which I published that day: Russell v Commissioner of Taxation of the Commonwealth of Australia [2009] FCA 1224. As those reasons reveal, a particular motivation for not then pronouncing final orders was an apprehension on my part that procedural fairness required the affording of an opportunity to the parties to make submissions as to whether the jurisdiction conferred upon the Court by the Taxation Administration Act 1953 (Cth) (TAA) in relation to the hearing and determination of a taxation appeal extended to the remission of a matter to the Commissioner of Taxation (Commissioner) for the purpose of amending an income tax assessment so as to increase the amount of the appellant taxpayer's taxable income for a given income year. Another motivation was the need for the parties to have an opportunity to assimilate lengthy reasons for judgment in respect of appeals raising a plethora of issues in respect of which each party had enjoyed mixed success before making submissions in respect of costs. The parties have now made submissions with respect to the question of the powers exercisable on a taxation appeal, costs and the form of orders disposing of the appeals. I shall deal with each in turn. Power to make orders authorising an assessment increasing taxable income
Case: Russell v Commissioner of Taxation [2008] FCA 343 ; (2008) 168 FCR 330
Outcome: considered
taxation legislation must necessarily provide for a taxpayer to have the ability to have recourse to an exercise of judicial power so as to contest a decision by the Commissioner that he is subject to a taxation liability: see the High Court authorities to which I refer in Russell v Commissioner of Taxation [2008] FCA 343 ; (2008) 168 FCR 330 at 333, [13] . The administrative decision by which that liability is ascertained is an assessment, not an objection decision. The latter decision might result in the confirmation or varying of an assessment but it remains an assessment by which the taxable income and the tax payable thereon is, in the absence of further challenge, fixed for a given income year. The exercise of judicial power having in this case been sought, there is, at least on reflection, something rather odd about the notion that, even though, in the exercise of that judicial power, a conclusion has been reached that an assessment is not excessive because, as the Commissioner has permissibly and successfully contended that, in truth, the assessment understates the taxable income, and even though s 14ZZP of the TAA is broadly expressed, warrant for the making of an amended assessment is to be found only in s 170 of the ITAA 1936 (but not s 170(7)), assuming that conditions then obtain for the administrative exercise of that power. That would leave open the prospect of a further objection and appeal or review proceeding in respect of that amended assessment. That would also mean that the exercise of judicial power had not resulted in the final determination, as between the Commissioner and the taxpayer, of the latter's assessed taxation liability for a given income year. In truth, it is as yet an open question as to whether there is power to order remission for the purpose of amendment so as to increase a taxation liability. Mr Russell also enjoyed success in an interlocutory controversy in respect of which I gave directions on 14 March 2008: Russell v Commissioner of Taxation [2008] FCA 343 ; (2008) 168 FCR 330. The costs of and incidental to that interlocutory proceeding should not form part of the Commissioner's costs. There are also other reserved costs. The Commissioner should have two thirds of these as well as those two thirds of the appeal hearing costs. Orders Mr Russell agrees with the draft short minute of orders for the disposing of the appeals proposed by the Commissioner. These, in turn, have evidently been drawn by reference to my earlier reasons for judgment. I was initially inclined to think that, in respect of the 2001 income year, I should make an order confirming the objection decision insofar as it concluded that the assessment in respect of the 2001 year was not excessive but on the basis that Mr Russell's taxable income for that year was $1869.23 higher than that assessed and thus his assessed tax was in fact lower than that payable in respect of that higher taxable income. The draft proposes the making of such an order.
Case: DB Rreef Funds Management Ltd v Commissioner of Taxation [2005] FCA 509 ; (2005) 218 ALR 144
Outcome: considered
this as it may, the position which obtains is that, though he has now been offered the opportunity to seek the same, the Commissioner has expressly not sought the making of any order which would have the effect of authorising him to amend Mr Russell's 2001 income tax assessment so as to increase his taxable income and, necessarily, the tax payable thereon. Further, Mr Russell has not sought the making of any such order. That being so, and like Sackville J in DB Rreef Funds Management Ltd v Commissioner of Taxation [2005] FCA 509 ; (2005) 218 ALR 144 at 149, [19] , I consider that the following observations made by the High Court in Australian Communication Exchange Ltd v Deputy Commissioner of Taxation [2003] HCA 55 ; (2003) 77 ALJR 1806 at 1813-1814, [41] are apposite: We appreciate the width of the power conferred upon the Federal Court by s 14ZZP of the [TAA] to vary the disallowance of objections to assessments. Nevertheless, we question, at least in the circumstances of this particular case, the appropriateness of the adoption by the Full Court of an approach, and a conclusion, that neither party has sought. Perhaps it is desirable in the public interest that contributions be made to an approved fund calculated in accordance with the Full Court's compromise formula. But even though that may be so, which we are inclined to doubt as the respondent as the party responsible for the administration of the Acts advanced no such proposition, this remains civil litigation between parties who have identified the issues upon which they are joined. Even if we thought the reasoning of the Full Court correct, we would still entertain doubt whether we should uphold its conclusion, unwanted as it is by each side. I shall not therefore make an order remitting the matter to the Commissioner for the purpose of amending the 2001 income tax assessment so as to increase the amount of the taxable income and the tax payable thereon. I expressly refrain from voicing any opinion as to whether, either in light of the position he has adopted in this case or otherwise, the Commissioner has any other power to raise such an amended assessment. Costs
Case: Australian Communication Exchange Ltd v Deputy Commissioner of Taxation [2003] HCA 55 ; (2003) 77 ALJR 1806
Outcome: applied
this as it may, the position which obtains is that, though he has now been offered the opportunity to seek the same, the Commissioner has expressly not sought the making of any order which would have the effect of authorising him to amend Mr Russell's 2001 income tax assessment so as to increase his taxable income and, necessarily, the tax payable thereon. Further, Mr Russell has not sought the making of any such order. That being so, and like Sackville J in DB Rreef Funds Management Ltd v Commissioner of Taxation [2005] FCA 509 ; (2005) 218 ALR 144 at 149, [19] , I consider that the following observations made by the High Court in Australian Communication Exchange Ltd v Deputy Commissioner of Taxation [2003] HCA 55 ; (2003) 77 ALJR 1806 at 1813-1814, [41] are apposite: We appreciate the width of the power conferred upon the Federal Court by s 14ZZP of the [TAA] to vary the disallowance of objections to assessments. Nevertheless, we question, at least in the circumstances of this particular case, the appropriateness of the adoption by the Full Court of an approach, and a conclusion, that neither party has sought. Perhaps it is desirable in the public interest that contributions be made to an approved fund calculated in accordance with the Full Court's compromise formula. But even though that may be so, which we are inclined to doubt as the respondent as the party responsible for the administration of the Acts advanced no such proposition, this remains civil litigation between parties who have identified the issues upon which they are joined. Even if we thought the reasoning of the Full Court correct, we would still entertain doubt whether we should uphold its conclusion, unwanted as it is by each side. I shall not therefore make an order remitting the matter to the Commissioner for the purpose of amending the 2001 income tax assessment so as to increase the amount of the taxable income and the tax payable thereon. I expressly refrain from voicing any opinion as to whether, either in light of the position he has adopted in this case or otherwise, the Commissioner has any other power to raise such an amended assessment. Costs
Case: Scanlan v Swan (1982) 61 FLR 468
Outcome: considered
may, with respect, be that a degree of rigidity of thinking and misconception attended the objection decisions insofar as they affirmed the penalty uplift for obstruction. This is not the first occasion either when in practice or thereafter when I have seen an obstruction based penalty uplift imposed on assessment and maintained on objection only to be abandoned in appeal or review proceedings. Those within the Commissioner's office who conceive such a penalty uplift is applicable on assessment or who review the same on objection would be well advised to read the observations made by Helman DCJ (as his Honour then was) on the subject of what does and does not amount to obstruction in Scanlan v Swan (1982) 61 FLR 468 at 472-473 (Special leave to appeal to the High Court from this decision was granted but then revoked on the hearing of the appeal), a judgment described by Gray J in Australian Federation of Air Pilots v Ansett Transport Industries (Operations) Pty Ltd (No 1) [1991] FCA 61 ; (1991) 28 FCR 379 at 385 as, "helpful". What is relevant for present purposes though is that, in these proceedings, the Commissioner readily and at an early stage conceded that Mr Russell ought to succeed in respect of this aspect of his appeals. That is hardly behaviour consistent with an absence of good faith on the Commissioner's part. The same may be said in respect of the Commissioner's ready and voluntary concession that the amount assessed in the 2002 income year was excessive and in respect of his conceding that the goods and services tax and related penalty assessments were excessive insofar as they related to the "resident agent amount".
Case: Australian Federation of Air Pilots v Ansett Transport Industries (Operations) Pty Ltd (No 1) [1991] FCA 61 ; (1991) 28 FCR 379
Outcome: cited
may, with respect, be that a degree of rigidity of thinking and misconception attended the objection decisions insofar as they affirmed the penalty uplift for obstruction. This is not the first occasion either when in practice or thereafter when I have seen an obstruction based penalty uplift imposed on assessment and maintained on objection only to be abandoned in appeal or review proceedings. Those within the Commissioner's office who conceive such a penalty uplift is applicable on assessment or who review the same on objection would be well advised to read the observations made by Helman DCJ (as his Honour then was) on the subject of what does and does not amount to obstruction in Scanlan v Swan (1982) 61 FLR 468 at 472-473 (Special leave to appeal to the High Court from this decision was granted but then revoked on the hearing of the appeal), a judgment described by Gray J in Australian Federation of Air Pilots v Ansett Transport Industries (Operations) Pty Ltd (No 1) [1991] FCA 61 ; (1991) 28 FCR 379 at 385 as, "helpful". What is relevant for present purposes though is that, in these proceedings, the Commissioner readily and at an early stage conceded that Mr Russell ought to succeed in respect of this aspect of his appeals. That is hardly behaviour consistent with an absence of good faith on the Commissioner's part. The same may be said in respect of the Commissioner's ready and voluntary concession that the amount assessed in the 2002 income year was excessive and in respect of his conceding that the goods and services tax and related penalty assessments were excessive insofar as they related to the "resident agent amount".
Case: Comcare v Canute [2005] FCAFC 262 ; (2005) 148 FCR 232
Outcome: followed
It was only during the hearing of the latter matter that I became aware of the dictum of French and Stone JJ in Comcare v Canute [2005] FCAFC 262 ; (2005) 148 FCR 232 at [63] - [66] with which, with respect, I agreed, but which nonetheless was inconsistent with the test that I had applied in Wiegand . 6 The question of construction I decided in Sahu-Khan concerned the proper construction to be given the phrase "in a material degree" in the definition of "disease" in s 4(1) of the SRC Act. Put shortly "disease" is defined to mean any ailment or aggravation of any ailment suffered by an employee "that was contributed to in a material degree by the employee's employment by the Commonwealth". In conformity with the dictum in Canute , I held that the phrase imposed a more demanding requirement of contribution than had conventionally been considered to be the case, largely because of misplaced reliance upon observations made in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323 (a decision under earlier and differently worded legislation).
Case: Comcare v Sahu-Khan [2007] FCA 15
Outcome: cited
On 19 January 2007 I delivered judgment in the latter matter. I upheld the construction of the s 4(1) definition propounded by Comcare, but dismissed the application on the basis that it would be futile to remit the matter having regard to the findings made by the Tribunal: Comcare v Sahu-Khan [2007] FCA 15. 5 I subsequently heard the parties in this matter on the question whether my judgment should be set aside and the orders made that I had foreshadowed. On 16 February 2007 I made those orders. Accepting that the discretion to set aside a judgment not entered should be exercised with caution, I am satisfied that the circumstances of this matter warrant the course I have taken. A miscarriage of justice is being averted. 6 The question of construction I decided in Sahu-Khan concerned the proper construction to be given the phrase "in a material degree" in the definition of "disease" in s 4(1) of the SRC Act. Put shortly "disease" is defined to mean any ailment or aggravation of any ailment suffered by an employee "that was contributed to in a material degree by the employee's employment by the Commonwealth". In conformity with the dictum in Canute , I held that the phrase imposed a more demanding requirement of contribution than had conventionally been considered to be the case, largely because of misplaced reliance upon observations made in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323 (a decision under earlier and differently worded legislation).
Case: Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Outcome: cited
The question of construction I decided in Sahu-Khan concerned the proper construction to be given the phrase "in a material degree" in the definition of "disease" in s 4(1) of the SRC Act. Put shortly "disease" is defined to mean any ailment or aggravation of any ailment suffered by an employee "that was contributed to in a material degree by the employee's employment by the Commonwealth". In conformity with the dictum in Canute , I held that the phrase imposed a more demanding requirement of contribution than had conventionally been considered to be the case, largely because of misplaced reliance upon observations made in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323 (a decision under earlier and differently worded legislation). 7 It clearly was the case in the present matter that Dr Coyte, the medical practitioner whose evidence the Tribunal accepted, gave his evidence concerning what matters contributed in a material degree to Mr Wiegand's condition after being directed by the Tribunal in accordance with the less exacting Treloar test. That direction was given after Dr Coyte had been asked by Mr Wiegand in oral examination about whether his employment did or did not contribute materially to his condition, to which Dr Coyte replied: "one would have to define what degree of contribution is material". 8 I am satisfied that Dr Coyte's evidence was contrived by the Treloar direction. I am not satisfied that it would not have been different and more discerning if he had been properly directed. Given the significance attributed to Dr Coyte's evidence in the Tribunal's reasons, I am not prepared to say that it would be futile to remit the matter to the Tribunal because if it applied the proper test it would nonetheless be driven ineluctably to the same conclusion. 9 Accordingly, I have made the orders I earlier foreshadowed. I would add that, in my view, Comcare should have appropriate procedures in place to ensure consistency in the stances it takes on matters of statutory interpretation. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 1 March 2007 Counsel for the Applicant: The Applicant appeared in person. Counsel for the Respondent: Mr S Cole Solicitor for the Respondent: Sparke Helmore Date of Hearing: 16 February 2007 Date of Judgment: 1 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/237.html