mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: NAWZ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 199
Outcome: followed
Understandably, the applicant did not argue that the application for a protection visa which was made with his authority and signed by him, albeit in a false name, was not a valid application (see NAWZ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 199). 31 I conclude that the applicant's application for a protection visa constituted an attempt to practise deception on the Minister. I am satisfied that he knew that the application had been made in a name that was not his true name. I am further satisfied that the applicant either knew that the Statement was false in material particulars or alternatively took no steps to ensure that the Statement was accurate. The applicant's application to the Tribunal was similarly pressed on a false basis as was his appeal to the Federal Magistrates Court. It was understandably not suggested that the applicant was not throughout aware that his true identity and the contents of the Statement formed critical aspects of his application for a protection visa. 32 The applicant seeks discretionary relief from this Court. In NAWZ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs the Full Court declined to grant discretionary relief to an appellant who had attempted to practise deception on the Minister noting at [14] that: 'It is contrary to the public interest for any encouragement to be given to conduct of the type engaged in by the appellant.' 33 In my view, this is also a case in which the public interest requires that discretionary relief be denied to the applicant. The evidence does not support any suggestion, and it was not so submitted, that what the applicant sought to do was simply, in the words of Shakespeare, ' [to] gild refined gold, to paint the lily' (see King John Act IV Scene II). The applicant's application for a protection visa does not merely exaggerate the applicant's experiences in the PRC. The applicant applied for a protection visa using a name that was not his own. As mentioned above, I am satisfied that he did this knowingly and that he has either known throughout the time that he has asserted an entitlement to a protection visa that the contents of the Statement are false in material respects or alternatively that he has been recklessly indifferent concerning the accuracy of the Statement. 34 Moreover, if the applicant were to be allowed to appeal from the judgment of the Federal Magistrates Court, it is unclear what claims it will be asserted that the learned Federal Magistrate should have regarded as the legitimate subject matter of the review conducted by the Tribunal.
Case: Comcare Australia (Department of Defence) v Maida (2002) 36 AAR 69
Outcome: referred to
In Comcare Australia (Department of Defence) v Maida (2002) 36 AAR 69, the claimant had an accepted schizophrenic condition. That was a permanent impairment that the claimant had prior to 1 December 1988. There was no entitlement to compensation by way of a lump sum for that condition under the 1971 Act. The claimant's condition worsened after 1 December 1988. The question was whether the claimant's claim under the SRC Act should be allowed. After reviewing the authorities, Mansfield J said (at [28]) that the following was a correct summary of the state of the law: '1. The progression of a disease or gradual worsening of the degree of an impairment does not constitute a new or distinct impairment. 2. If there is no change in the underlying patho-physiological condition causing an impairment, any worsening of that impairment will not constitute a new or distinct impairment. 3. A significant worsening of an impairment may constitute a new or distinct impairment, but only if there has been a change in the underlying path-physiological condition, so that there has been a qualitative change to the impairment that is, the development of a new impairment.' 33 On the evidence in this case, the deterioration in the applicant's hearing loss was an effect of ageing and that means that it was not a new or further impairment in the relevant sense. The applicant has already received compensation of a lump sum in respect of his hearing loss under the 1971 Act. Any claim for compensation of a lump sum in relation to a deterioration of that condition of the nature indicated is precluded by s 124(3)(a) of the SRC Act. 34 As I have said, there is no evidence of a deterioration of the applicant's tinnitus, but even if it has deteriorated, there is nothing to suggest that that deterioration is other than a progression or gradual worsening of the condition. Tinnitus was not a compensable condition under the 1930 Act or the 1971 Act. Any claim for compensation of a lump sum in relation to that condition or a deterioration of that condition of the nature indicated is precluded by s 124(3)(b) of the SRC Act. 35 The claim in relation to the conditions of loss of balance and stress were not the subject of any debate before the Tribunal. The applicant's case is that those conditions were permanent impairments that occurred in 1970. The applicant's claim for compensation of a lump sum in relation to those conditions in these proceedings cannot succeed for a number of reasons.
Case: Comcare v Mooi (1996) 69 FCR 439
Outcome: referred to
Finally, although there are related conditions or effects under the SRC Act (eg, vertigo), loss of balance and stress are not of themselves conditions compensable under the approved guide prepared under s 28 of the SRC Act (see also Comcare v Mooi (1996) 69 FCR 439). 39 In my opinion, the proposed appeal is futile and doomed to fail and, in those circumstances, the application for an extension of time within which to appeal should be dismissed. 40 The application for an extension of time within which to appeal is dismissed. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 27 July 2006 The Applicant: The Applicant appeared in person. Counsel for the Respondent: Mr M Roder Solicitor for the Respondent: Sparke Helmore Date of Hearing: 25 May 2006 Date of Judgment: 27 July 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/946.html
Case: Department of Defence as Delegate of Comcare v West (1998) 156 ALR 651
Outcome: referred to
In Department of Defence as Delegate of Comcare v West (1998) 156 ALR 651, the question was whether a deterioration in the claimant's lumbar spine and an impairment in both legs were new impairments for the purpose of a claim for compensation under the SRC Act. Merkel J (with whom O'Connor J agreed) stated the relevant principles in the following passages from his reasons for judgment (at 668 and 669): 'The present state of the authorities can be summarised as follows: &#8226; the gradual worsening of a permanent impairment in accordance with its natural progress does not constitute a series of new impairments each giving rise to a separate liability to pay compensation: see Blackman at 14 and Brennan at FCR 570 1 per Gummow J; cf Brennan at FCR 558 9 per Burchett J; &#8226; the observation in Blackman at 14 that a permanent impairment which worsens significantly or is such that the variation between it and the earlier permanent impairment is substantial does not result in a new permanent impairment is to be approached with "some caution": see Brennan at FCR 558 9 and 560 1 per Burchett J and at 571 per Gummow J and Levett at FCR 20. The present case requires resolution of the question left unresolved in the current state of the authorities, that is, whether a deterioration in a permanent impairment which existed as at 1 December 1988 is capable of constituting a new permanent impairment. The caution expressed in relation to Blackman by Burchett and Gummow JJ in Brennan and adopted by the Full Court in Levett suggests a reluctance to accept that a substantial variation, or a significant deterioration, in a person's permanent impairment is incapable of constituting a permanent impairment which is different to that which existed prior to the variation or deterioration. ... A loss of the entitlement conferred under ss 24 and 25 by reason of s 124(3) only occurs when the permanent impairment the subject of the claim is the permanent impairment that the employee suffered as at 1 December 1988. On my reasoning, and that of Burchett J in Brennan , where a change in a permanent impairment occurring after the commencement date is such that, quantitatively and qualitatively, it is properly to be characterised as a further or new impairment occurring after the commencing date it is compensable by a lump sum payment under ss 24 and 25. That conclusion is consistent with the language used and with the statutory policy to be discerned from ss 24, 25 and 124 of providing benefits to workers in respect of a further permanent impairment that occurs after the commencing day irrespective of whether the injury that resulted in the impairment occurred before or after the commencing day. It also avoids capricious and arbitrary outcomes under workers' compensation legislation, which is of a remedial nature and should be construed liberally: see Brennan at FCR 559 and the cases there referred to.'
Case: Lees v Comcare (1999) 56 ALD 84
Outcome: referred to
First, it was the claim for loss of hearing which was the subject of the reconsideration under s 62 of the SRC Act. In those circumstances, it seems that a claim in relation to loss of balance and stress could not have been considered by the Tribunal: Lees v Comcare (1999) 56 ALD 84. 37 Secondly, the applicant's case is that the conditions of loss of balance and stress were permanent impairments which occurred in 1970. Those conditions were not impairments for which there was an entitlement to compensation of a lump sum under the 1930 Act or the 1971 Act. Accordingly, there was no entitlement to receive compensation of a lump sum in relation to them under the SRC Act: s 124(3)(b) of the SRC Act.
Case: Repatriation Commission v Smith (1987) 15 FCR 327
Outcome: cited
In forming this opinion, the Repatriation Commission is required to decide the matter to its reasonable satisfaction; s 120(4). This requires the Commission to ask itself whether it was satisfied on the balance of probabilities; Repatriation Commission v Smith (1987) 15 FCR 327. Section 120 does not impose an onus of proof on the applicant for a pension or on the Commission; s 120(6). Nevertheless, the Commission can only reach the requisite state of satisfaction if two conditions are fulfilled; s 120B(3). First, the material before the Commission must raise a connection between the disease and some particular service rendered by the person. Secondly, where there is a Statement of Principles in force concerning that disease, that Statement of Principles must uphold the contention that the disease is, on the balance of probabilities, connected with the service. 8 Statements of Principles are determined by the Repatriation Medical Authority; s 196B(1). They set out the factors that must be present and must be related to service before it can be said that, on the balance of probabilities, a disease can be connected with the service; s 196B(3). Subsection 196B(14)(d) states that a factor causing or contributing to a disease is related to service if: (d) it was contributed to in a material degree by, or was aggravated by, that service; ... 9 The Authority has determined a Statement of Principles, Instrument No. 16 of 1998, for IFA. This Statement of Principles holds that, in order for IFA to be connected with the circumstances of defence service, there must have been an "inability to obtain appropriate clinical management" for the condition; see clause 5(a). This applies only where IFA was contracted before or during service (although not arising out of that service), but was materially contributed to or aggravated by that service; see clause 6.
Case: Somerset v Repatriation Commission [2005] FCA 1399
Outcome: distinguished
The applicant cited Somerset v Repatriation Commission [2005] FCA 1399 as authority for the proposition that failure to diagnose may not necessarily constitute an inability to obtain appropriate clinical management. However, in Somerset Greenwood J plainly left open the possibility that it may do so; see [36]. Somerset is distinguishable on the grounds that, in that case, there was no basis for believing that the veteran was suffering from the disease during his period of service. In contrast, the expert opinion of Dr Waring is that there was adequate evidence that Mr Money had IFA "at least as early as 30 April 1979". As indicated above at [27], Dr Musk was inclined to a similar view. In Repatriation Commission v Wedekind [2000] FCA 649 , Kenny J was prepared at [17] to assume, without deciding, that the Tribunal may reasonably have been satisfied that diagnostic failure could lead to an inability to obtain appropriate clinical management. Given that a beneficial approach is called for in dealing with this legislation ( Brew v Repatriation Commission [1999] FCA 1246 ; (1999) 94 FCR 80) , it seems to me that a person in Mr Money's position may well be prevented from obtaining appropriate clinical management of a condition by lack of awareness that they suffer from it.
Case: Repatriation Commission v Wedekind [2000] FCA 649
Outcome: considered
The applicant cited Somerset v Repatriation Commission [2005] FCA 1399 as authority for the proposition that failure to diagnose may not necessarily constitute an inability to obtain appropriate clinical management. However, in Somerset Greenwood J plainly left open the possibility that it may do so; see [36]. Somerset is distinguishable on the grounds that, in that case, there was no basis for believing that the veteran was suffering from the disease during his period of service. In contrast, the expert opinion of Dr Waring is that there was adequate evidence that Mr Money had IFA "at least as early as 30 April 1979". As indicated above at [27], Dr Musk was inclined to a similar view. In Repatriation Commission v Wedekind [2000] FCA 649 , Kenny J was prepared at [17] to assume, without deciding, that the Tribunal may reasonably have been satisfied that diagnostic failure could lead to an inability to obtain appropriate clinical management. Given that a beneficial approach is called for in dealing with this legislation ( Brew v Repatriation Commission [1999] FCA 1246 ; (1999) 94 FCR 80) , it seems to me that a person in Mr Money's position may well be prevented from obtaining appropriate clinical management of a condition by lack of awareness that they suffer from it.
Case: Baxter Healthcare Pty Limited v Comptroller-General of Customs (1997) 72 FCR 467
Outcome: considered
The applicant submits that the correct construction in this matter is that adopted in Brew v Repatriation Commission [1999] FCA 1246 ; (1999) 94 FCR 80 , namely, that as a matter of practical reality, "inability" requires barriers to obtaining appropriate clinical management. The applicant submits that it could not be said that the same outcome would have resulted if the Tribunal had considered this meaning. I do not think that the applicant has been able to establish this. As Burchett J expressed it in Baxter Healthcare Pty Limited v Comptroller-General of Customs (1997) 72 FCR 467 at 469, the issue "turns on whether the Tribunal in reality mistook its legal task, or whether it merely strayed into a measure of obscurity in the statement of its reasons, the actual meaning of which can nevertheless be ascertained by some perseverance, and being ascertained, reveals no error".
Case: Collins v Minister for Immigration and Ethnic Affairs [1981] FCA 147 ; (1981) 36 ALR 598
Outcome: considered
In Collins v Minister for Immigration and Ethnic Affairs [1981] FCA 147 ; (1981) 36 ALR 598 , Fox, Deane and Morling JJ said at 601: An appellant who attacks a conclusion of the Tribunal because of deficiency of proof said to amount to error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based. 51 The applicant argues that there was no material before the Tribunal capable of supporting a finding that there were barriers to Mr Money obtaining appropriate clinical management for his IFA. As discussed above, I am of the view that a failure to diagnose is sufficient to create a barrier to obtaining appropriate clinical management, and the evidence in this case is that a diagnosis could have been made in 1979. 52 The applicant submits that there was no material before the Tribunal capable of supporting the finding that Mr Money did not receive appropriate clinical management. This submission is founded on the equation of appropriate management with appropriate treatment and the contemporary absence of any effective treatment; two contentions which I have rejected above. In any event, there was expert evidence before the Tribunal that Mr Money did not receive appropriate clinical management. Dr Waring gave this opinion in his letter to the departmental medical officer dated 13 April 2004 and in his report dated 8 March 2005. Both of these reports are discussed in the context of the first ground of appeal. That discussion shows that there was considerable evidence on the point and that this 'no evidence' ground must fail. 53 The applicant claims that the Tribunal was required to find whether any inability to obtain appropriate clinical management was related to Mr Money's service in one of the ways set out in s 196B(14). The applicant further claims that the Tribunal failed to make such a finding.
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
The Tribunal's discussion of the applicable law includes, at [28], an explicit acknowledgement that the "relationship to service must be one of the relationships prescribed in s 196B(14) of the Act". As noted above, one of those relationships is that prescribed by s 196B(14)(a), which states that a factor contributing to a disease (here, inability to obtain appropriate clinical management) can be related to service if it "resulted from an occurrence that happened while the person was rendering that service". In its reasons, the Tribunal explicitly found that one of the circumstances of Mr Money's service and therefore an occurrence during his service was that "the Navy's medical system, on this particular occasion, failed to deliver appropriate clinical management" to Mr Money. Additional examples of the "systems failure in the medical management structure that the Navy had in place in relation to this applicant's disease at that time" were given by the Tribunal and are described above at [26] et seq. Bearing in mind that the Tribunal's reasons should "not be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed" ( Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ at 272), it is clear that the Tribunal has found that Mr Money's inability to obtain appropriate clinical management for his IFA resulted from occurrences while he was serving in the Navy.
Case: Federal Broom Company Pty Limited v Semlitch (1964) 110 CLR 626
Outcome: considered
The applicant submits that the Tribunal was in error in considering that the issue was governed by the decision of the High Court in Federal Broom Company Pty Limited v Semlitch (1964) 110 CLR 626. Alternatively, it submits that if Federal Broom were applicable, it would require the Tribunal to turn its mind to whether Mr Money's inability to obtain appropriate clinical management was a state of affairs to which he would not otherwise have been exposed - presumably if he had not been in the Navy at the relevant time. The applicant submits that a similar comparative exercise is required by Johnston v Commonwealth [1982] HCA 54 ; (1982) 150 CLR 331 at 337-8. In my view, it is clear that the Tribunal did consider this issue. Implicit in the finding that the naval doctor's "clinical management fell short of the level required" is the finding that other doctors would be capable of meeting that standard. Mr Money could self-evidently not have been subject to a systemic failure of the Navy's medical management structure if he had not been serving in the Navy. Accordingly, this ground must fail.
Case: Johnston v Commonwealth [1982] HCA 54 ; (1982) 150 CLR 331
Outcome: cited
The applicant submits that the Tribunal was in error in considering that the issue was governed by the decision of the High Court in Federal Broom Company Pty Limited v Semlitch (1964) 110 CLR 626. Alternatively, it submits that if Federal Broom were applicable, it would require the Tribunal to turn its mind to whether Mr Money's inability to obtain appropriate clinical management was a state of affairs to which he would not otherwise have been exposed - presumably if he had not been in the Navy at the relevant time. The applicant submits that a similar comparative exercise is required by Johnston v Commonwealth [1982] HCA 54 ; (1982) 150 CLR 331 at 337-8. In my view, it is clear that the Tribunal did consider this issue. Implicit in the finding that the naval doctor's "clinical management fell short of the level required" is the finding that other doctors would be capable of meeting that standard. Mr Money could self-evidently not have been subject to a systemic failure of the Navy's medical management structure if he had not been serving in the Navy. Accordingly, this ground must fail. 58 The applicant argues that there was no evidence before the Tribunal that any inability to obtain appropriate clinical management had contributed materially to, or aggravated, Mr Money's IFA. The applicant submits that the evidence does not demonstrate that Mr Money's defence service made his IFA worse than it otherwise would have been; Johnston v Commonwealth [1982] HCA 54 ; (1982) 150 CLR 331 at 338. 59 I have already held that a factor not being mentioned in the Statement of Principles is not inconsistent with it being a factor that aggravates a disease, though it cannot of itself be a factor that creates a connection with defence service. Dr Waring's report refers to Mr Money's exposure to poor atmospheric conditions while serving in submarines, notes that if his IFA had been correctly diagnosed it would have been reasonable to recommend that he no longer serve in submarines, and states that it is likely that his continued exposure could have exacerbated his condition. The Tribunal relied on this evidence; see [73]. There was material before the Tribunal upon which it could base its conclusion that Mr Money's condition was aggravated by the failure to diagnose it. It is not for this Court to substitute its opinion as to the appropriate weight that should be given to that evidence. That is a task for the Tribunal. It is sufficient for this Court to note that there was some real evidence for it to reject this 'no evidence' claim.