mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Martin-Baker Aircraft Co Ld v Canadian Flight Equipment Ld [1955] 2 QB 556
Outcome: cited
In my view, it was also open to the applicant to rely, by analogy, upon the position of employees under contracts of indefinite duration. In the case of Martin-Baker Aircraft Co Ld v Canadian Flight Equipment Ld [1955] 2 QB 556, McNair J considered whether a 'reasonable notice' term was to be implied into an agreement, which he characterised as an agency agreement, between a company and an individual. The agreement required the agent to work full time to promote the interests of the company. In deciding whether to imply a reasonable notice clause into the agreement, the learned judge had regard to the nature of the agent's duties and the restrictions imposed upon him. At 581-582 McNair J determined that there were similarities between the duties of, and the restrictions on, the agent and those of an employee. He held that, by analogy, with the implication of a reasonable notice term into an employment contract of indefinite duration, such a term should be implied into the agency agreement. In this case, also, Mr Hayes provided services on a full time basis to the respondent and the analogy with an employee was apt. 178 I find, therefore, that the post 30 June 2001 contract between the applicant and the respondent contained an implied term that the contract was terminable by either party giving to the other party reasonable notice of termination. It also follows from this finding that the provisions in cl 8 of the consultancy agreement, which are premised on the absence of any power in the respondent to terminate the agreement by notice, did not form part of the post 30 June 2001 contract.
Case: Quinn v Jack Chia (Australia) Ltd [2000] VSCA 75 ; [1992] 1 VR 567
Outcome: cited
The question of what period of notice is reasonable must be assessed at the date when the notice is given, not when the contract is entered into ( Quinn v Jack Chia (Australia) Ltd [2000] VSCA 75 ; [1992] 1 VR 567 ('Quinn') ). 180 As to the question of what period of notice would be reasonable, the applicant relied upon the following observations of Ashley J at 580-581 in Quinn : 'It was common ground that the content of "reasonable notice" is to be determined as at the date when notice is given, not when the contract is entered into. In this context matters occurring antecedently to the making of and in the course of the performance of the contract up to the date of termination are not irrelevant. Macken et al Law of Employment , pp 157-8, lists certain pertinent considerations. Thus, for example: the duration of the hiring; industry practice, the seniority of the position held; the importance of the position held; the size of the salary; the worker's age; the worker's length of service; what the worker gave up to come to the present employer; the worker's prospective pension or other rights. In the present case I regard as principally important the worker's age when he entered the August 1985 contract, the seniority and importance of, and salary commanded by that position, the fact that the parties would have envisaged in August 1985 as they did in January 1985 that the job would be a long term one, the fact that the plaintiff had given up security to enter the defendant's employment in January 1985 (albeit that this was under a different contract) and the fact that the plaintiff's reasonable expectation of getting superannuation protection was destroyed by the termination which was effected.' 181 The applicant argued that taking into account the senior position Mr Hayes held with the respondent, the consultancy fee payable, the applicant's length of service and Mr Hayes' age, a reasonable period of notice was six months. 182 The respondent argued that such notice as was given to Mr Hayes by Mr Jordan in his conversation with Mr Hayes in April 2003 was reasonable in all the circumstances, and the applicant was, accordingly, not entitled to any greater notice of termination than he received. 183 The factors mentioned by Ashley J related specifically to an employment contract. This was a consultancy agreement. The factors there mentioned are of some assistance as a guide to assessing what would be reasonable notice in a consultancy contract, but each case must be assessed by reference to its own circumstances. Another factor which has been held to be relevant in assessing reasonable notice in a commercial context is the time that it would take for a party to make alternative contractual arrangements (see Crawford Fitting Co v Sydney Valve and Fittings Pty Ltd (1988) 14 NSWLR 438 at 444-445).
Case: Crawford Fitting Co v Sydney Valve and Fittings Pty Ltd (1988) 14 NSWLR 438
Outcome: cited
The factors mentioned by Ashley J related specifically to an employment contract. This was a consultancy agreement. The factors there mentioned are of some assistance as a guide to assessing what would be reasonable notice in a consultancy contract, but each case must be assessed by reference to its own circumstances. Another factor which has been held to be relevant in assessing reasonable notice in a commercial context is the time that it would take for a party to make alternative contractual arrangements (see Crawford Fitting Co v Sydney Valve and Fittings Pty Ltd (1988) 14 NSWLR 438 at 444-445).
Case: Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: followed
The appellant also refers to the Tribunal's treatment of letters produced by him, purportedly from Maoists demanding money from him and from police stations purportedly reporting what he had reported to the police. The Tribunal commented in the "Claims and Evidence" section of the reasons on the difficulties and deficiencies it saw in those documents. That put into context the conclusion of the Tribunal in the "Findings and Reasons" section that it gave no weight to the documents in support of the appellant's claims. The Tribunal did not repeat its previous comments, which provided the reason for declining to give weight to those documents but that does not amount to a failure to give reasons in the decision as a whole ( Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ and 291 per Kirby J). Further, having found that the appellant was an unreliable witness, the Tribunal placed no weight on material he provided in support of his claims. This does not mean that the Tribunal's reasons were irrational or illogical ( Minister for Immigration &amp; Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 58 at [11] [12] per Gleeson CJ, at [49] per McHugh and Gummow JJ).
Case: Minister for Immigration &amp; Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 58
Outcome: cited
The appellant also refers to the Tribunal's treatment of letters produced by him, purportedly from Maoists demanding money from him and from police stations purportedly reporting what he had reported to the police. The Tribunal commented in the "Claims and Evidence" section of the reasons on the difficulties and deficiencies it saw in those documents. That put into context the conclusion of the Tribunal in the "Findings and Reasons" section that it gave no weight to the documents in support of the appellant's claims. The Tribunal did not repeat its previous comments, which provided the reason for declining to give weight to those documents but that does not amount to a failure to give reasons in the decision as a whole ( Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ and 291 per Kirby J). Further, having found that the appellant was an unreliable witness, the Tribunal placed no weight on material he provided in support of his claims. This does not mean that the Tribunal's reasons were irrational or illogical ( Minister for Immigration &amp; Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 58 at [11] [12] per Gleeson CJ, at [49] per McHugh and Gummow JJ).
Case: Minister for Immigration &amp; Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: cited
Counsel for the appellant raised the same grounds in the notice of appeal to this Court as were raised before the Federal Magistrate. The appellant's primary argument is that the Tribunal did not outline its reasons for reaching its conclusion and the facts it considered material to that conclusion, so that the appellant cannot identify its reasons with certainty (citing Minister for Immigration &amp; Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323). The appellant also refers to s 430 of the Act which obliges the Tribunal to set out its findings on those questions of fact it considers material to its decision and the reasons for that decision. 7 The Tribunal's reasons are brief. That itself does not found jurisdictional error. The Tribunal accepted that the appellant is a Nepalese national and that he was a Kathmandu-based proprietor of a fruit company who had some trouble successfully transporting produce from rural regions in Nepal, which he remedied through import contracts with producers in India and China. The Tribunal did not accept that Maoists had targeted the appellant for donations. The Tribunal rejected the appellant's claims, gave no weight to supporting documentation and expressed itself not satisfied that the appellant was a reliable witness. The "Findings and Reasons" section of the decision did little more than state these conclusions, subject to one matter. 8 The Tribunal did set out some commentary on the veracity of the appellant's claims: The Tribunal does not accept on the evidence before it that the Maoists have been targeting the Applicant for donations, whether for Convention-related reasons or even just for criminal, mercenary ones. The Tribunal accepts that such a practice has been going on in Nepal but does not accept that it has been happening to the Applicant. The appellant says that this does not make sense.
Case: SZJJA v Minister for Immigration &amp; Citizenship [2007] FMCA 1498
Outcome: considered
Federal Magistrate Smith concluded that the Tribunal's reasons sufficiently disclosed "the simple reason" why it affirmed the delegate's decision ( SZJJA v Minister for Immigration &amp; Citizenship [2007] FMCA 1498 at [19] ). This referred to the finding that the appellant was not a reliable witness. He found that the Tribunal sufficiently revealed its reasons for affirming the delegate's decision and that ' it had undertaken a genuine and rational review of the matter before it ' (at [20]). In coming to his conclusions, his Honour observed that it was appropriate to read together the "findings and reasons" and the description of the hearing before the Tribunal as set out in the reasons (at [20]). His Honour was not persuaded that the Tribunal failed to perform a genuine consideration of all of the claims and evidence (at [19]). His Honour dismissed the application.
Case: Applicant WAEE v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 184
Outcome: followed
law is clear that failure to consider a submission of substance which, if accepted, would be capable of affecting the outcome of the case, constitutes an error of law ( Applicant WAEE v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 184 ; Casarotto v Australian Postal Corporation [1989] FCA 116 ; (1989) 86 ALR 399 at 403; Dennis Willcox Pty Ltd v FCT (1988) 79 ALR 267 at 276; Sellick [2008] FCA 236 at [35] ). Was the submission of the Authority in relation to previous consideration of the issue of Mr House's personality disorder a submission of substance? In my view it was. While the Tribunal was not necessarily bound by its early decision indeed the decision of the Full Court in Morales (1998) 82 FCR 374 indicates that the issue was one of discretion nevertheless the submission should have been considered by the Tribunal in reaching its decision. Failure by the Tribunal to do so in my view constitutes an error of law. Second and third grounds of appeal
Case: Australian Postal Corporation v Sellick [2008] FCA 236
Outcome: cited
a failure by the Tribunal to advert to the content of submissions does not of itself necessarily mean that the matter was not considered ( Tobacco Institute of Australia Ltd v National Health and Medical Research Council (1996) 71 FCR 265 at 279, Australian Postal Corporation v Sellick [2008] FCA 236 at [35] ). However in this case, aside from a bare reference by the Tribunal to the existence of its 2004 decision (at [4]), there is no indication that it had taken into consideration the submission of the Authority concerning previous consideration by the Tribunal of issues relating to Mr House's personality disorder. This absence of reference to its earlier decision is particularly surprising where the Tribunal has found that Mr House had greater incapacity than that found by the Tribunal in 2004, notwithstanding the evidence before the Tribunal in these proceedings that, between August 2001 and November 2004, inter alia , Mr House had stopped drinking ( House [2008] AATA 38 at [15] ), was no longer an active alcoholic ( House [2008] AATA 38 at [52] ), and Mr House was maturing and less affected by his personality disorder ( House [2008] AATA 38 at [60] ). The law is clear that failure to consider a submission of substance which, if accepted, would be capable of affecting the outcome of the case, constitutes an error of law ( Applicant WAEE v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 184 ; Casarotto v Australian Postal Corporation [1989] FCA 116 ; (1989) 86 ALR 399 at 403; Dennis Willcox Pty Ltd v FCT (1988) 79 ALR 267 at 276; Sellick [2008] FCA 236 at [35] ). Was the submission of the Authority in relation to previous consideration of the issue of Mr House's personality disorder a submission of substance? In my view it was. While the Tribunal was not necessarily bound by its early decision indeed the decision of the Full Court in Morales (1998) 82 FCR 374 indicates that the issue was one of discretion nevertheless the submission should have been considered by the Tribunal in reaching its decision. Failure by the Tribunal to do so in my view constitutes an error of law. Second and third grounds of appeal
Case: Casarotto v Australian Postal Corporation [1989] FCA 116 ; (1989) 86 ALR 399 at 403
Outcome: followed
law is clear that failure to consider a submission of substance which, if accepted, would be capable of affecting the outcome of the case, constitutes an error of law ( Applicant WAEE v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 184 ; Casarotto v Australian Postal Corporation [1989] FCA 116 ; (1989) 86 ALR 399 at 403; Dennis Willcox Pty Ltd v FCT (1988) 79 ALR 267 at 276; Sellick [2008] FCA 236 at [35] ). Was the submission of the Authority in relation to previous consideration of the issue of Mr House's personality disorder a submission of substance? In my view it was. While the Tribunal was not necessarily bound by its early decision indeed the decision of the Full Court in Morales (1998) 82 FCR 374 indicates that the issue was one of discretion nevertheless the submission should have been considered by the Tribunal in reaching its decision. Failure by the Tribunal to do so in my view constitutes an error of law. Second and third grounds of appeal
Case: Cheung v AAT [2009] FCA 241
Outcome: cited
this principle applies in relation to decisions of the Tribunal appears settled law: Comcare Australia v Grimes [1994] FCA 1054 at [24] , Cheung v AAT [2009] FCA 241 at [49] . In affirming the principle, the Full Court in Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374 said at 390: In our view, the essentially administrative nature of the Tribunal's function and the nature of its task in looking to the correct or preferable decision, in circumstances where it is to have regard amongst other things to the dictates of fairness, point to the conclusion that the Tribunal may, in appropriate circumstances, conclude that a previous decision should be applied again as the correct and preferable decision when it is sought to revisit the earlier decision at some later time. Of course, the circumstance that a Court has set aside an entire decision may mean that it is either impermissible, or quite inappropriate, to adopt such a course but that would not necessarily be the case where, as here, a particular determination had not itself been the subject of challenge. In the present case, we think it was open to Purvis J, having considered all the relevant circumstances, to regard the previous decision of Mr McMahon as determinative of the s 501(2) issue and to decide that this issue should not be reopened. Of course, his Honour might have concluded that this course was not appropriate in the circumstances; but it was a matter of discretion and his Honour's reasons lead us to conclude that he did not see himself as having such discretion. In this respect there was an error of law.
Case: Comcare Australia v Grimes [1994] FCA 1054
Outcome: cited
this principle applies in relation to decisions of the Tribunal appears settled law: Comcare Australia v Grimes [1994] FCA 1054 at [24] , Cheung v AAT [2009] FCA 241 at [49] . In affirming the principle, the Full Court in Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374 said at 390: In our view, the essentially administrative nature of the Tribunal's function and the nature of its task in looking to the correct or preferable decision, in circumstances where it is to have regard amongst other things to the dictates of fairness, point to the conclusion that the Tribunal may, in appropriate circumstances, conclude that a previous decision should be applied again as the correct and preferable decision when it is sought to revisit the earlier decision at some later time. Of course, the circumstance that a Court has set aside an entire decision may mean that it is either impermissible, or quite inappropriate, to adopt such a course but that would not necessarily be the case where, as here, a particular determination had not itself been the subject of challenge. In the present case, we think it was open to Purvis J, having considered all the relevant circumstances, to regard the previous decision of Mr McMahon as determinative of the s 501(2) issue and to decide that this issue should not be reopened. Of course, his Honour might have concluded that this course was not appropriate in the circumstances; but it was a matter of discretion and his Honour's reasons lead us to conclude that he did not see himself as having such discretion. In this respect there was an error of law.
Case: Dennis Willcox Pty Ltd v FCT (1988) 79 ALR 267
Outcome: cited
law is clear that failure to consider a submission of substance which, if accepted, would be capable of affecting the outcome of the case, constitutes an error of law ( Applicant WAEE v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 184 ; Casarotto v Australian Postal Corporation [1989] FCA 116 ; (1989) 86 ALR 399 at 403; Dennis Willcox Pty Ltd v FCT (1988) 79 ALR 267 at 276; Sellick [2008] FCA 236 at [35] ). Was the submission of the Authority in relation to previous consideration of the issue of Mr House's personality disorder a submission of substance? In my view it was. While the Tribunal was not necessarily bound by its early decision indeed the decision of the Full Court in Morales (1998) 82 FCR 374 indicates that the issue was one of discretion nevertheless the submission should have been considered by the Tribunal in reaching its decision. Failure by the Tribunal to do so in my view constitutes an error of law. Second and third grounds of appeal
Case: Dixon v Commissioner of Taxation [2008] FCAFC 54
Outcome: cited
appeal should be allowed. However I accept the submission of Mr Harding that it is not appropriate for this Court to merely affirm the decision of the Authority. That would result in the Court, in effect, substituting its own decision on the matter under review by the Tribunal (cf Dixon v Commissioner of Taxation [2008] FCAFC 54 at [26] ). The appropriate order is that the decision of the Tribunal be set aside and the matter remitted to the Tribunal for determination according to law. No order is made as to costs. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 1 April 2009 Counsel for the Applicant: Mr A Dillon Counsel for the Respondent: Mr AC Harding Solicitor for the Respondent: Woods Prince Date of Hearing: 29 May 2008 Date of Judgment: 1 April 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/302.html
Case: Doman v Riordan (1990) 21 ALD 255
Outcome: cited
respect, I do not consider it possible to understand the reasoning process of the Tribunal in assessing Mr House's level of incapacity at 30% from the statement of reasons. Nor are the reasons adequate to enable the Court to determine whether or not any other error had occurred in the reasoning process (cf Doman v Riordan (1990) 21 ALD 255 at 256). The Tribunal has not given reasons for its decision as required by s 43(2) AAT Act. This fatally infects the Tribunal's decision. Conclusion
Case: Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: followed
administrative decision can be impugned on the basis of error if the decision-maker has failed to take into account a consideration which the subject matter, scope and purpose of a statute indicates was necessary to be considered: Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40 ; (1986) 162 CLR 24 at 40. In relation to the submission of the Authority that the Tribunal failed to take into account the improvement in Mr House's condition, I accept the contention that the Tribunal was required, in assessing the percentage of incapacity of Mr House, to take into consideration whether or not Mr House's incapacity for civil employment had changed since he or she was last classified. That this is a relevant consideration follows from a plain reading of s 34(1) of the Act: The Authority may, from time to time , if it is satisfied that the percentage of incapacity in relation to civil employment of a recipient member in receipt of invalidity pay is such that the classification of the member should be altered , reclassify him in the appropriate classification set out in section 30 according to the percentage of his incapacity in relation to civil employment. (emphasis added) The weight the Tribunal gives to such an issue is for the Tribunal as arbiter of fact. Nonetheless improvement in the condition of Mr House was a relevant consideration, as defined in Peko-Wallsend [1986] HCA 40 ; (1986) 162 CLR 24. In my view Mr Harding's submission in relation to this issue seeks merely to rationalise the failure by the Tribunal to take into account evidence of Mr House's improvement, and does not answer the claim of the Authority in relation to this aspect of the Tribunal's decision. Further, in relation to the submission of the Authority as to the kinds of civil employment taken into account by the Tribunal, s 34(1A) of the Act provides that, in determining what is the percentage of incapacity in relation to civil employment, the Authority shall have regard to, inter alia , the following matters: (b) the kinds of civil employment which [such a person as Mr House, having his] skills, qualifications and experience might reasonably undertake; (c) the degree to which any physical or mental impairment of the recipient member, being a prescribed physical or mental impairment, has or had diminished the capacity of the recipient member to undertake the kinds of civil employment referred to in paragraph (b).