mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1 ; (2001) 204 CLR 559
Outcome: cited
It is, as McHugh J observed in Solomons at [37], a long recognised rule of statutory construction that a reference to courts, matters, things and persons in the legislation of a State (or Territory) is a reference to courts, matters, things and persons in that State (or Territory). Statutory provisions can be "picked up" by s 79 even though they are expressed in terms applying specifically to State or Territory courts ( Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1 ; (2001) 204 CLR 559 at [72] per Gleeson CJ, Gaudron and Gummow JJ citing Kruger v The Commonwealth [1997] HCA 27 ; (1997) 190 CLR 1 at 140 per Gaudron J; Solomons at [58] per McHugh J). There may also be statutory provisions couched in terms which make it impossible for them to be "picked up" ( Edensor at [72]-[74] per Gleeson CJ, Gaudron and Gummow JJ; Solomons at [24] per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ). 7 A court exercising federal jurisdiction has no jurisdiction to apply an Act which, upon its proper construction, applies only to State matters ( Solomons at [33] per McHugh J). Justice McHugh commented in Edensor at [141] and affirmed in Solomons at [59] that it is not the literal interpretation of a State Act that determines whether it is applied in Federal Courts but the substance of the Act. The nature of some State and Territory statutes may make them inapplicable to proceedings in the federal jurisdiction. 17 In neither the constitutional challenge nor the substantive proceedings is the Court called upon to interpret or apply a Territory law, but laws of the Commonwealth. Section 79 of the Judiciary Act does not change the meaning of the State or Territory Act that is "picked up", nor does it operate to give a State or Territory law a new or extended meaning when it is made applicable in federal jurisdiction ( Edensor at [134] per McHugh J; Solomons at [60] per McHugh J). For these reasons, s 79 of the Judiciary Act does not operate to make s 21(1) of the Human Rights Act applicable to the present proceedings, which involve the application and interpretation of Commonwealth, not Territory, laws.
Case: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337
Outcome: cited
I have already dealt with various applications by Mr Priestley that I disqualify myself on the grounds of reasonable apprehension of bias and an asserted lack of independence and impartiality because, he says, neither I nor any judge of the Federal Court can hear and determine the constitutional challenge. In doing so, I applied the common law test as described in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 ( Priestley at [24]). In Forge v Australian Securities and Investments Commission [2006] HCA 44 ; (2006) 228 CLR 45 at [66] , Gummow, Hayne and Crennan JJ described the requirements as discussed by the High Court in Ebner in terms that included the requirement that a court or tribunal must be "independent" and "impartial". Those are the same terms as used in s 21(1) of the Human Rights Act . Section 21(1) does not relevantly change or add to the test as laid out in Ebner and Forge . It is the same test that I applied in Priestley .
Case: Forge v Australian Securities and Investments Commission [2006] HCA 44 ; (2006) 228 CLR 45
Outcome: cited
I have already dealt with various applications by Mr Priestley that I disqualify myself on the grounds of reasonable apprehension of bias and an asserted lack of independence and impartiality because, he says, neither I nor any judge of the Federal Court can hear and determine the constitutional challenge. In doing so, I applied the common law test as described in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 ( Priestley at [24]). In Forge v Australian Securities and Investments Commission [2006] HCA 44 ; (2006) 228 CLR 45 at [66] , Gummow, Hayne and Crennan JJ described the requirements as discussed by the High Court in Ebner in terms that included the requirement that a court or tribunal must be "independent" and "impartial". Those are the same terms as used in s 21(1) of the Human Rights Act . Section 21(1) does not relevantly change or add to the test as laid out in Ebner and Forge . It is the same test that I applied in Priestley .
Case: Solomons v District Court of New South Wales [2002] HCA 47 ; (2002) 211 CLR 119
Outcome: cited
As was pointed out in Solomons v District Court of New South Wales [2002] HCA 47 ; (2002) 211 CLR 119 at [22] , s 79 is couched in mandatory terms. The section is addressed to courts exercising federal jurisdiction and is limited to cases to which the State or Territory laws in question are applicable ( Solomons at [23]). 6 It is, as McHugh J observed in Solomons at [37], a long recognised rule of statutory construction that a reference to courts, matters, things and persons in the legislation of a State (or Territory) is a reference to courts, matters, things and persons in that State (or Territory). Statutory provisions can be "picked up" by s 79 even though they are expressed in terms applying specifically to State or Territory courts ( Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1 ; (2001) 204 CLR 559 at [72] per Gleeson CJ, Gaudron and Gummow JJ citing Kruger v The Commonwealth [1997] HCA 27 ; (1997) 190 CLR 1 at 140 per Gaudron J; Solomons at [58] per McHugh J). There may also be statutory provisions couched in terms which make it impossible for them to be "picked up" ( Edensor at [72]-[74] per Gleeson CJ, Gaudron and Gummow JJ; Solomons at [24] per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ). 7 A court exercising federal jurisdiction has no jurisdiction to apply an Act which, upon its proper construction, applies only to State matters ( Solomons at [33] per McHugh J). Justice McHugh commented in Edensor at [141] and affirmed in Solomons at [59] that it is not the literal interpretation of a State Act that determines whether it is applied in Federal Courts but the substance of the Act. The nature of some State and Territory statutes may make them inapplicable to proceedings in the federal jurisdiction. 17 In neither the constitutional challenge nor the substantive proceedings is the Court called upon to interpret or apply a Territory law, but laws of the Commonwealth. Section 79 of the Judiciary Act does not change the meaning of the State or Territory Act that is "picked up", nor does it operate to give a State or Territory law a new or extended meaning when it is made applicable in federal jurisdiction ( Edensor at [134] per McHugh J; Solomons at [60] per McHugh J). For these reasons, s 79 of the Judiciary Act does not operate to make s 21(1) of the Human Rights Act applicable to the present proceedings, which involve the application and interpretation of Commonwealth, not Territory, laws.
Case: An v Minister for Immigration and Citizenship [2007] FCAFC 97
Outcome: cited
In my view, and contrary to the Secretary's submission, the first question (relating to the construction of s 1170(1)) raised by Mr Clark is one of law: that question of law is whether the notion of receipt of two payments in a particular statutory provision signifies, as the Secretary submits, simply the historical event of their being received, or, as Mr Clark submits, something like "receipt and retention of them" or "being in receipt of them" or "continuing enjoyment of them". The respondent cites Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at [26] ; Collector of Customs v Agfa-Gavaert Limited [1996] HCA 36 ; (1996) 186 CLR 389 ( Agfa-Gavaert ) at 395-396; and Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 at 7 in support of the proposition that the question set out at [2] above is not a question of law because the words "receives both" in s 1170(1) are used according to their ordinary meaning. Therefore, the respondent argues, the question of whether the facts as found by the AAT fall within the meaning of those words is a question of fact. However, the meaning of a non-technical English word can give rise to associated questions of law, such as whether the word is used in its (presumably one and only) ordinary non-technical sense, and, most importantly, whether, and if so how, the meaning of the word in a particular case is affected by the statutory context in which it occurs: see the discussion in Agfa-Gavaert [1996] HCA 36 ; 186 CLR 389 at 395ff, and An v Minister for Immigration and Citizenship [2007] FCAFC 97.
Case: Collector of Customs v Agfa-Gavaert Limited [1996] HCA 36 ; (1996) 186 CLR 389
Outcome: cited
In my view, and contrary to the Secretary's submission, the first question (relating to the construction of s 1170(1)) raised by Mr Clark is one of law: that question of law is whether the notion of receipt of two payments in a particular statutory provision signifies, as the Secretary submits, simply the historical event of their being received, or, as Mr Clark submits, something like "receipt and retention of them" or "being in receipt of them" or "continuing enjoyment of them". The respondent cites Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at [26] ; Collector of Customs v Agfa-Gavaert Limited [1996] HCA 36 ; (1996) 186 CLR 389 ( Agfa-Gavaert ) at 395-396; and Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 at 7 in support of the proposition that the question set out at [2] above is not a question of law because the words "receives both" in s 1170(1) are used according to their ordinary meaning. Therefore, the respondent argues, the question of whether the facts as found by the AAT fall within the meaning of those words is a question of fact. However, the meaning of a non-technical English word can give rise to associated questions of law, such as whether the word is used in its (presumably one and only) ordinary non-technical sense, and, most importantly, whether, and if so how, the meaning of the word in a particular case is affected by the statutory context in which it occurs: see the discussion in Agfa-Gavaert [1996] HCA 36 ; 186 CLR 389 at 395ff, and An v Minister for Immigration and Citizenship [2007] FCAFC 97.
Case: Comcare v Etheridge (2006) 149 FLR 522
Outcome: cited
In my view, and contrary to the Secretary's submission, the first question (relating to the construction of s 1170(1)) raised by Mr Clark is one of law: that question of law is whether the notion of receipt of two payments in a particular statutory provision signifies, as the Secretary submits, simply the historical event of their being received, or, as Mr Clark submits, something like "receipt and retention of them" or "being in receipt of them" or "continuing enjoyment of them". The respondent cites Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at [26] ; Collector of Customs v Agfa-Gavaert Limited [1996] HCA 36 ; (1996) 186 CLR 389 ( Agfa-Gavaert ) at 395-396; and Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 at 7 in support of the proposition that the question set out at [2] above is not a question of law because the words "receives both" in s 1170(1) are used according to their ordinary meaning. Therefore, the respondent argues, the question of whether the facts as found by the AAT fall within the meaning of those words is a question of fact. However, the meaning of a non-technical English word can give rise to associated questions of law, such as whether the word is used in its (presumably one and only) ordinary non-technical sense, and, most importantly, whether, and if so how, the meaning of the word in a particular case is affected by the statutory context in which it occurs: see the discussion in Agfa-Gavaert [1996] HCA 36 ; 186 CLR 389 at 395ff, and An v Minister for Immigration and Citizenship [2007] FCAFC 97.
Case: Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1
Outcome: cited
In my view, and contrary to the Secretary's submission, the first question (relating to the construction of s 1170(1)) raised by Mr Clark is one of law: that question of law is whether the notion of receipt of two payments in a particular statutory provision signifies, as the Secretary submits, simply the historical event of their being received, or, as Mr Clark submits, something like "receipt and retention of them" or "being in receipt of them" or "continuing enjoyment of them". The respondent cites Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at [26] ; Collector of Customs v Agfa-Gavaert Limited [1996] HCA 36 ; (1996) 186 CLR 389 ( Agfa-Gavaert ) at 395-396; and Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 at 7 in support of the proposition that the question set out at [2] above is not a question of law because the words "receives both" in s 1170(1) are used according to their ordinary meaning. Therefore, the respondent argues, the question of whether the facts as found by the AAT fall within the meaning of those words is a question of fact. However, the meaning of a non-technical English word can give rise to associated questions of law, such as whether the word is used in its (presumably one and only) ordinary non-technical sense, and, most importantly, whether, and if so how, the meaning of the word in a particular case is affected by the statutory context in which it occurs: see the discussion in Agfa-Gavaert [1996] HCA 36 ; 186 CLR 389 at 395ff, and An v Minister for Immigration and Citizenship [2007] FCAFC 97.
Case: Kertland v Secretary, Department of Family and Community Services [1999] FCA 1596 ; (1999) 95 FCR 64
Outcome: referred to
In Secretary, Department of Family and Community Services v Chamberlain [2002] FCA 67 ; (2002) 116 FCR 348 ( Chamberlain ), Kiefel J addressed at some length the question of the circumstances that might be "special" within s 1184K. In particular, her Honour reviewed earlier cases and noted (at [32]) that two of them, Kertland v Secretary, Department of Family and Community Services [1999] FCA 1596 ; (1999) 95 FCR 64 and Secretary, Department of Social Security v Smith (1991) 30 FCR 56, were "unusual" in that in them "it could be seen, objectively, that there could not have been a double payment", so that "it might be concluded that the statutory assumption operated unjustly". Her Honour thought that that situation would not often arise and set those cases apart from the usual.
Case: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: followed
Mr Clark's submissions go to the merits of the Tribunal's reasons. In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 ( Yusuf ) at [67] [69], McHugh, Gummow and Hayne JJ made clear that statutory obligations of the present kind require a statement of the administrative tribunal's actual reasons and findings and references to the evidence or other material on which the findings were actually based ( Yusuf [2001] HCA 30 ; 206 CLR 323 was concerned with s 430 of the Migration Act 1958 (Cth)). 54 It is not shown that the statement of "reasons for decision" provided by the Tribunal did not contain its actual reasons for its decision, did not include its actual findings on material questions of fact, and did not contain a reference to the evidence or other material on which those findings were actually based. 55 I turn now to the first question relating to s 1184K. According to the amended notice of appeal, Mr Clark relies on the following ground: The Tribunal erred by not taking into account the following relevant matters: i. the unusual unfair or unjust consequences of strict adherence to s 1170(1) in the circumstances of this case; ii. the implication found in s 17(4) that consideration of the total amount of "periodic compensation payments" is to be deducted from the "lump sum compensation" upon its receipt thereby leaving the appellant in receipt of only one lump sum to the ultimate effect that "periodic compensation payments" have not been made; iii. the unintended effect, when considering the objects of the legislation that if the Appellant had received "compensation affected payments" and not "periodic compensation payments", that the commencement date of the preclusion period would then have commenced on 31 October 2000; iv. the unfairness occasioned by the limitation placed on the Appellant's claim for economic loss compensation after the age of 65 coupled with the requirement that "periodic compensation payments" calculated up to the age of 66 were deducted from the appellant's "lump sum compensation". 56 In its reasons, the AAT referred to Mr Clark's financial circumstances and health, the fact that he had been legally represented during his settlement negotiations, and that advice had been sought from, and given by, Centrelink. 57 Mr Clark complains that the AAT failed to address the true nature of the "special circumstances" on which he relied, namely, that the very provision in s 1170 for a preclusion period worked unjustly in his case. Much of what I have said above in dealing with the first question is relevant to this complaint.
Case: Secretary, Department of Social Security v Smith (1991) 30 FCR 56
Outcome: referred to
In Secretary, Department of Family and Community Services v Chamberlain [2002] FCA 67 ; (2002) 116 FCR 348 ( Chamberlain ), Kiefel J addressed at some length the question of the circumstances that might be "special" within s 1184K. In particular, her Honour reviewed earlier cases and noted (at [32]) that two of them, Kertland v Secretary, Department of Family and Community Services [1999] FCA 1596 ; (1999) 95 FCR 64 and Secretary, Department of Social Security v Smith (1991) 30 FCR 56, were "unusual" in that in them "it could be seen, objectively, that there could not have been a double payment", so that "it might be concluded that the statutory assumption operated unjustly". Her Honour thought that that situation would not often arise and set those cases apart from the usual.
Case: Australian Securities &amp; Investments Commission v Forestview Nominees Pty Ltd (Receivers and Managers Appointed) [2006] FCA 1530
Outcome: cited
The factual and procedural background to the present application was set out in Australian Securities &amp; Investments Commission v Forestview Nominees Pty Ltd (Receivers and Managers Appointed) [2006] FCA 1530 concerning an appeal against a decision by the receivers and managers to refuse to release funds for legal representation of the company in these proceedings. So that these reasons may be self contained, it is convenient to reproduce the bulk of the factual and procedural background set out in the earlier judgment. 3 Forestview was incorporated in February 1994. Its current directors are Norman Phillip Carey, who has been a director since its incorporation, and his sister, Karen Sandra Carey-Hazell, who has been a director since 19 January 1996. The company is trustee of the Matheson Unit Trust. On 8 December 1998 the company granted a fixed and floating charge to Sandhurst Trustees Ltd (Sandhurst). The charge was assigned to Perpetual Nominees Ltd (Perpetual) as custodian of the ING Mortgage Pool for ING Funds Management Ltd as the responsible entity of The ING Mortgage Pool (ING) (ING Charge) on 28 June 2000. 4 Clause 2 of the ING Charge recited that Sandhurst, the mortgagee, had agreed to provide or continue providing credit or financial accommodation from time to time to, or at the request of, Forestview upon the condition that Forestview entered into the mortgage. The money secured by the Charge was defined expansively in cl 4.1.15 and included: '4.1.15.1 any money which at any time the Borrower in any capacity and whether alone or with others:- 4.1.15.1.1 is actually or contingently liable to pay to the Mortgagee; or 4.1.15.1.2 may become actually or contingently liable to pay to the Mortgagee in the future pursuant to any transaction or arrangement at any time entered into or made by the Mortgagee with any person;' Subclauses 4.1.15.2 and 4.1.15.3 are not material for present purposes. The definition was extended in 4.1.15.4 to: 'all moneys expended by the Mortgagee to make good any breach or non-compliance by the Mortgagor of any term, covenant, condition, or agreement on the part of the Mortgagor to be observed or performed under this document and all moneys incurred or spent by the Mortgagee in exercising or attempting to exercise any of the powers under this document together with interest on those moneys from the date of expenditure until repayment at the rate specified in this document and if more than one rate is specified then at the higher rate or if no rate is specified then at the Applicable Rate, and where the context permits means any part of that money;.'
Case: National Wage Case (1988) 25 IR 170
Outcome: cited
The questions for determination arise in part from the reorganization of the electricity industry in Victoria and, according to Mr Urquhart, in part from the restructuring consequent upon the delivery of the National Wage Cases on 12 August 1988 and 7 August 1989: see (1988) 25 IR 170 and (1989) 30 IR 81.
Case: National Wage Case (1989) 30 IR 81
Outcome: cited
The questions for determination arise in part from the reorganization of the electricity industry in Victoria and, according to Mr Urquhart, in part from the restructuring consequent upon the delivery of the National Wage Cases on 12 August 1988 and 7 August 1989: see (1988) 25 IR 170 and (1989) 30 IR 81.
Case: Australian Rail Tram and Bus Industry Union v Torrens Transit Services Pty Ltd [2000] FCA 1683 ; (2000) 105 FCR 88
Outcome: cited
In response, counsel for Mr Urquhart argued that "transmission" was a non-legal concept and did not depend upon privity or any formal legal transfer of rights between the parties. Moreover, he submitted that the Court should not give weight to the consideration as to whether or not Powercor technically retained rights or obligations with respect to meter reading, because to give weight to this consideration would not reflect commercial reality. He referred to North Western Health Care and Australian Rail Tram and Bus Industry Union v Torrens Transit Services Pty Ltd [2000] FCA 1683 ; (2000) 105 FCR 88 , which applied North Western Health Care . Both cases concerned, amongst other things, a transmission of the business of State government or department and, in any event, for the reasons appearing below, since PP Consultants and Gribbles , North Western Health Care can no longer be said reliably to state the law in this area.
Case: Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014
Outcome: referred to
The majority judgment in Gribbles shows that some aspects of the transaction between Powercor and AMRS are more relevant than others to the disposal/enjoyment test. In particular, it must be asked whether the new employer has acquired any of the tangible or intangible assets of the old employer: compare Gribbles at 212. In Gribbles , the majority found that, by the relevant transaction, the new employer did not come to enjoy either the tangible assets of the former employer (i.e., the former employer's equipment) or the intangible assets of the former employer (i.e., the former employer's goodwill): see Gribbles 214. Further, citing Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014 , the majority also recognised that, while both former and new employers employed the same employees, "no employee is an asset in the employer's balance sheet to be bought or sold": Gribbles at 214. Accordingly, the majority concluded that the former employer had not disposed of any part of its business and the new employer was not, therefore, a successor to or of any part of the business of the former employer because "[a]t no time did [the new employer] enjoy any asset of the [former employer], tangible or intangible, which [the former employer] had used in the pursuit of its business activities": see Gribbles at 204. This test is substantially identical to that proposed by Callinan J in PP Consultants (at 664) in that his Honour there asked whether there was anything for the new employer "to sell or otherwise pass on to someone else".