mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: A B Pty Ltd v Australian Crime Commission (2009) 107 ALD 591
Outcome: referred to
applicant submitted that, by reason of s 25D of the Acts Interpretation Act , the second respondent was required to set out in his reasons his findings on material questions of fact and refer to the evidence or other material on which those findings were based, and that he had not done that. It was not in this case contended by the respondents, as it had been by the respondents (albeit in the context of s 29 of the Act) in A B Pty Ltd v Australian Crime Commission (2009) 107 ALD 591 at 607 [54] per Flick J, that s 25D was engaged. I do not need to examine the question of whether the second respondent set out his findings or material questions of fact and referred to the evidence or other material on which those findings were based because, in my opinion, s 25D was not engaged and, even if it was, a failure to comply with its provisions would not lead to the conclusion that the second summons is invalid. Section 25D of the Acts Interpretation Act provides as follows: " 25D Content of statements of reasons for decisions Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression 'reasons', 'grounds' or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based."
Case: A v Boulton [2004] FCAFC 101 ; (2004) 136 FCR 420
Outcome: referred to
first ground of challenge to the second summons is that it failed to state that the applicant was required to give evidence as a "witness". It is submitted that the second summons was therefore deficient "on its face". The applicant referred to various sections in the Act which refer to a person appearing before an examiner in response to a summons as a witness: ss 25A(6), (7) and (8), 26 , 27 , 28 (heading), 30 and 31 . I leave to one side the fact that a section heading is not part of an Act: Acts Interpretation Act 1901 (Cth) (" Acts Interpretation Act ") s 13(3). There is nothing in the Act which requires a summons to state that the person to whom it is directed is required to give evidence as a witness. It is not clear to me whether, by making this submission, the applicant was suggesting that he could only be required to give evidence as a witness in the sense that he could not be required to give evidence of his own activities or involvement in the activities of others. If he was suggesting that, it is plainly not a proposition supported by the provisions of the Act. The provisions of the Act have the effect of removing the privilege against self-incrimination: s 30(4) and (5) (see A v Boulton [2004] FCAFC 101 ; (2004) 136 FCR 420). A copy of the determination The second ground of challenge to the second summons is that it was not accompanied by a copy of the determination. The Act provides that a copy of the determination must accompany the summons: s 28(2). This ground of challenge was not the subject of any submissions by the applicant. It must be rejected because the evidence tendered by the applicant included evidence from his solicitor that he was served with the second summons and it was accompanied by a copy of the determination. The written statement of rights and obligations
Case: Australian Crime Commission v NTD8 [2009] FCAFC 86
Outcome: referred to
summons itself refers to a special investigation and it has the determination attached to it. The determination plainly relates to a special investigation. The Statement of Facts and Circumstances document refers to a special investigation and to the determination and the Legal Submissions document refers to the determination and to a special investigation. It seems to me that, looking at the documents as a whole, it has not been established that the second respondent misunderstood the nature of the instrument pursuant to which he was issuing the summons. It is more likely that some of the dangers of using a standard form document have been realised (see the observations of the Full Court of this Court in Australian Crime Commission v NTD8 [2009] FCAFC 86 at [34]). The second ground upon which the applicant challenged the second respondent's decision to issue the second summons was that he misunderstood the exercise he was performing. The applicant referred to the fact that the Legal Submissions document is referred to under the heading, "Material Facts" and to the fact that in one part of the reasons he states that he had regard to "&#169; My knowledge obtained from a recent examination" and yet when setting out his conclusions under the heading "Consideration" he makes no reference to that piece of information. It seems to me that, however one looks at those matters, neither of them establishes an error which is a jurisdictional error. The third ground upon which the applicant challenged the second respondent's decision to issue the second summons is that the second respondent did not consider, or properly consider, the inclusion of the notation referred to in s 29A of the Act. In formulating his reasons for including the notation, there is nothing to prevent the second respondent from relying on each of paragraphs (a), (b) and (c) in s 29A(2) (see [35] above). Furthermore, it is clear from the reference in paragraph 6), "in the terms approved by me", (see [8] above) that he addressed the terms of the notation.
Case: Craig v The State of South Australia [1995] HCA 58 ; (1995) 184 CLR 163
Outcome: referred to
were no detailed submissions on the grounds upon which the decision to issue a summons under s 28(1) may be challenged on an application under s 39B of the Judiciary Act . I gave brief consideration to some of the issues which arise in AA (at [13]-[18]). I propose to proceed on the basis that if the second respondent's decision involved any of the matters which constitute jurisdictional error then it is invalid (see Craig v The State of South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 176-180).
Case: D v Australian Crime Commission [2006] FCA 660 ; (2006) 152 FCR 497
Outcome: followed
was told by the parties that there is no case which determines in an authoritative way the scope and effect of s 16. The section was referred to in passing in P v Board of Australian Crime Commission [2006] FCAFC 54 ; (2006) 151 FCR 114 at 121 [24] - [26] and D v Australian Crime Commission [2006] FCA 660 ; (2006) 152 FCR 497 at 503 [31] per Mansfield J. The submission was considered by Mansfield J in D v Australian Crime Commission [2006] FCA 660 ; (2006) 152 FCR 497 at [28] - [60] and rejected. With respect, I think his Honour's decision is correct and I will follow it. The determination is not invalid because it does not identify the class or classes of persons to participate in the investigation. Consent to conferral of State powers
Case: Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154
Outcome: cited
applicant submits that the determination is invalid because the Board did not, before making the determination, decide that ordinary police methods of investigation into the matters were not likely to be effective. For present purposes, I will proceed on the assumption that the Board had to be satisfied that ordinary police methods of investigation into the matters were not likely to be effective, although I note that on the face of it that is not what s 7C(3) provides. There were no detailed submissions on the construction of the subsection. The short answer to the applicant's submission is that there is no evidence that the Board was not so satisfied. There is no requirement that such a state of satisfaction be set out in the determination and there is simply no evidence that the Board was not so satisfied at the meeting on 25 June 2008. The onus is on the applicant to establish the invalidity of the determination: X v Australian Crime Commission [2004] FCA 1475 ; (2004) 139 FCR 413 at 419-420 [22] per Finn J; Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 164 per McHugh JA.
Case: P v Board of Australian Crime Commission [2006] FCAFC 54 ; (2006) 151 FCR 114
Outcome: referred to
was told by the parties that there is no case which determines in an authoritative way the scope and effect of s 16. The section was referred to in passing in P v Board of Australian Crime Commission [2006] FCAFC 54 ; (2006) 151 FCR 114 at 121 [24] - [26] and D v Australian Crime Commission [2006] FCA 660 ; (2006) 152 FCR 497 at 503 [31] per Mansfield J.
Case: Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476
Outcome: referred to
respondents referred to Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 and submitted that s 16 was engaged in circumstances where the determination was not lawfully made because of an error of law which did not go to jurisdiction, or because of a failure to comply with a provision of the Act which was not an inviolable jurisdictional restraint. In other words, they accepted that s 16 was not engaged where the determination was not lawfully made because of jurisdictional error, or a failure to comply with an inviolable jurisdictional restraint. I do not need to consider the scope and effect of s 16 because I do not think any of the grounds upon which the determination is challenged are made out. I turn now to examine those grounds. Chair of the Board The Act deals with the composition of the Board and it provides for a Board composed of 14 members with the Commissioner of the Australian Federal Police as Chair of the Board: s 7B. The Chair has various powers and functions in relation to meetings of the Board. He or she may convene meetings of the Board: s 7D. He or she must preside over meetings of the Board: s 7E(a). There is one exception to this last requirement. A person who is another eligible Commonwealth Board member (defined in s 4) and who is nominated, in writing, by the Chair may preside over a meeting of the Board if the Chair is not present: s 7E(b).
Case: X v Australian Crime Commission [2004] FCA 1475 ; (2004) 139 FCR 413
Outcome: cited
applicant submits that the determination is invalid because the Board did not, before making the determination, decide that ordinary police methods of investigation into the matters were not likely to be effective. For present purposes, I will proceed on the assumption that the Board had to be satisfied that ordinary police methods of investigation into the matters were not likely to be effective, although I note that on the face of it that is not what s 7C(3) provides. There were no detailed submissions on the construction of the subsection. The short answer to the applicant's submission is that there is no evidence that the Board was not so satisfied. There is no requirement that such a state of satisfaction be set out in the determination and there is simply no evidence that the Board was not so satisfied at the meeting on 25 June 2008. The onus is on the applicant to establish the invalidity of the determination: X v Australian Crime Commission [2004] FCA 1475 ; (2004) 139 FCR 413 at 419-420 [22] per Finn J; Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 164 per McHugh JA.
Case: Samaras v Australian Retirement Fund Pty Ltd [2007] FCA 1323
Outcome: followed
relevant date for consideration of the operation of the total and permanent disablement definition in the policy is the date of the decision of the trustee; see Samaras v Australian Retirement Fund Pty Ltd [2007] FCA 1323 at [18] per Gordon J and Davis v Rio Tinto Staff Superannuation Fund Pty Ltd (2002) 118 FCR 170 at [15] per Heerey J.
Case: Davis v Rio Tinto Staff Superannuation Fund Pty Ltd (2002) 118 FCR 170
Outcome: followed
relevant date for consideration of the operation of the total and permanent disablement definition in the policy is the date of the decision of the trustee; see Samaras v Australian Retirement Fund Pty Ltd [2007] FCA 1323 at [18] per Gordon J and Davis v Rio Tinto Staff Superannuation Fund Pty Ltd (2002) 118 FCR 170 at [15] per Heerey J.
Case: Constantinides v Du Pont Superannuation Fund Pty Ltd [2002] FCA 534
Outcome: followed
appeal lies to the Court on a question of law from a determination of the Tribunal; see s 46 of the Act. The Court is not free to interfere with a determination of the Tribunal because it has reservations about or disagrees with the merits of its determination. The Court's role is to consider whether the Tribunal fulfilled its duty under s 37 of the Act; see Constantinides v Du Pont Superannuation Fund Pty Ltd [2002] FCA 534 at [34] . THE ALLEGED ERRORS OF LAW Absence of evidence about return to full time work Counsel for Ms Purcell contends that the Tribunal had no material upon which it could find that Ms Purcell was ever able to work full-time. More properly expressed, the Court considers the point raised by this contention is that the Tribunal could not find that the decisions of the insurer and the trustee were fair and reasonable in the absence of material which showed that Ms Purcell was capable of returning to full-time employment, in the context of there being material which showed she could not so return. In response, counsel for the insurer, contends that the Tribunal analysed the relevant medical evidence and the weight of that evidence was a matter for the Tribunal.
Case: Edwards v Giudice (1999) 94 FCR 561
Outcome: applied
for Ms Purcell submits that the Tribunal gave no proper reasons for its decision. The reasons of the Tribunal disclose a reasoning process, albeit flawed in the failure to examine the consequences of an absence of medical evidence which suggested that a return to full-time work was possible. Generally, as long as a tribunal produces reasons which disclose a reasoning process, it cannot be said to have erred in law by failing to provide proper reasons; see Edwards v Giudice (1999) 94 FCR 561 at [44] [48].
Case: Edwards v Postsuper Pty Ltd [2007] FCAFC 83
Outcome: applied
s 40 of the Act, the Tribunal is required to give written reasons for its decision. As the Full Court said in Edwards v Postsuper Pty Ltd [2007] FCAFC 83 at [20]: Under s 25D of the Acts Interpretation Act 1901 (Cth), reasons contemplated by s 40 of the Complaints Act must include findings on material questions of fact and refer to the evidence or other material on which those findings are based. Here the Tribunal referred to material questions of fact, albeit with the exception of the critical return to full-time work issue, and to the evidence upon which those findings of fact were made by the insurer and trustee so that it could assess the reasonableness and fairness of the decisions before it. The Tribunal complied with its obligation to give written reasons for its decision by setting out findings on material questions of fact and referring to the evidence on which these findings were based, in the context of the findings being those of the trustee and the insurer for the purpose of the Tribunal's assessment of the reasonableness and fairness of those decisions.
Case: Northern Land Council v The Commonwealth (No 2) [1987] HCA 52 ; (1987) 75 ALR 210
Outcome: cited
Because this matter has proceeded as if it were an application to strike out both the PFASC and the statement of claim of 12 September 2005 on the ground that it disclose no reasonable cause of action against the second respondents, it is appropriate to assume that the allegations of fact made in the PFASC and the statement of claim of 12 September 2005 will be made out at trial: Northern Land Council v The Commonwealth (No 2) [1987] HCA 52 ; (1987) 75 ALR 210 at 216; Cubillo v The Commonwealth [1999] FCA 518 ; (1999) 89 FCR 528 at 542. The allegations of fact contained in the statement of claim should be accepted at face value: Australian Competition and Consumer Commission v Alice Car &amp; Truck Rentals Pty Ltd trading as Territory Rent-a-car [1997] FCA 129.
Case: Cubillo v The Commonwealth [1999] FCA 518 ; (1999) 89 FCR 528
Outcome: cited
Because this matter has proceeded as if it were an application to strike out both the PFASC and the statement of claim of 12 September 2005 on the ground that it disclose no reasonable cause of action against the second respondents, it is appropriate to assume that the allegations of fact made in the PFASC and the statement of claim of 12 September 2005 will be made out at trial: Northern Land Council v The Commonwealth (No 2) [1987] HCA 52 ; (1987) 75 ALR 210 at 216; Cubillo v The Commonwealth [1999] FCA 518 ; (1999) 89 FCR 528 at 542. The allegations of fact contained in the statement of claim should be accepted at face value: Australian Competition and Consumer Commission v Alice Car &amp; Truck Rentals Pty Ltd trading as Territory Rent-a-car [1997] FCA 129.
Case: Australian Competition and Consumer Commission v Alice Car &amp; Truck Rentals Pty Ltd trading as Territory Rent-a-car [1997] FCA 129
Outcome: cited
Because this matter has proceeded as if it were an application to strike out both the PFASC and the statement of claim of 12 September 2005 on the ground that it disclose no reasonable cause of action against the second respondents, it is appropriate to assume that the allegations of fact made in the PFASC and the statement of claim of 12 September 2005 will be made out at trial: Northern Land Council v The Commonwealth (No 2) [1987] HCA 52 ; (1987) 75 ALR 210 at 216; Cubillo v The Commonwealth [1999] FCA 518 ; (1999) 89 FCR 528 at 542. The allegations of fact contained in the statement of claim should be accepted at face value: Australian Competition and Consumer Commission v Alice Car &amp; Truck Rentals Pty Ltd trading as Territory Rent-a-car [1997] FCA 129.
Case: General Steel Industries v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: applied
I should approach this application on the basis that the PFASC should be allowed to be filed unless it is clearly made out that the pleading discloses no reasonable cause of action, at least against the second respondents. In that regard it would be appropriate to apply the test in General Steel Industries v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 130 and allow the pleading to be filed or, alternatively, in the case of the statement of claim of 12 September 2005, not be struck out unless the cause of action is so untenable that it cannot possibly succeed. The provisions of s 31A of the Federal Court of Australia Act 1976 (Cth) do not apply to this application because this is not an application for summary judgment. 42 The statement of claim should contain in a summary form the material facts upon which the applicant relies but not the evidence upon which those facts are to be proved. The applicant must include sufficient particulars to enable the respondent to the proceeding to know and understand the case which is brought against him or her. The statement of claim should contain such material facts and particulars as will allow the respondent to prevent the respondent from being taken by surprise at the trial and to know the evidence that needs to be obtained. 43 Essentially, three matters are put against the second respondents. First, that the second respondents are vicariously liable for conduct of the first respondent in using the applicant's confidential information in relation to the written quotes. Secondly, the second respondents knowingly participated in the first respondent's breach of his duty of confidence. Thirdly, the second respondents are accessorily liable because they aided, abetted, counselled or procured the first respondent to contravene s 183(1) of the Act or were knowingly concerned in that contravention. In that regard it is pleaded that the second respondents thereby contravened s 183(2) of the Act .
Case: Photo Production v Securicor Transport Limited [1980] UKHL 2 ; [1980] AC 827
Outcome: cited
The second respondents argued that the doctrine of vicarious liability was confined to a tort committed by an employee in the course of that employee's employment and that therefore that this plea should be struck out. In Photo Production v Securicor Transport Limited [1980] UKHL 2 ; [1980] AC 827 at 848, Lord Diplock said that the expression 'vicarious liability' should be confined to liability for tort. There is, however, authority contrary to the second respondents' proposition. In Coulthard v South Australia (1995) 63 SASR 531 (' Coulthard ') the Full Court of the Supreme Court of South Australia was concerned with the publication of confidential information. King CJ said at 535: 'No authority has come to my attention which establishes that vicarious liability of an employer can exist under the equitable doctrine of breach of confidence. Nevertheless a breach of the equitable obligation of confidence is analogous to a common law tort. It is to be expected that equity would follow the law in such circumstances and that the common law doctrine of the vicarious liability in tort of an employer for the acts of employees in the course of their employment would apply in equity to breaches of confidence. It is to be expected that equity would act upon the conscience of the employer by requiring the employer to accept responsibility for the employee's breach of confidence.'
Case: Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64 ; (1984) 156 CLR 41
Outcome: cited
The plea that the first respondent breached his duty of trust and confidence is a plea of breach of fiduciary duty: Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64 ; (1984) 156 CLR 41 at 96-97. The plea in par 29 is that the second respondents knowingly participated in that breach of fiduciary duty. As I have said, the knowledge relied on is both actual and, in the alternative, constructive.
Case: Consul Development Pty Ltd v DPC Estates Pty Ltd [1975] HCA 8 ; (1975) 132 CLR 373
Outcome: cited
It is not suggested that the second respondents owed any fiduciary duty to the applicant. There is no suggestion, nor could there be, that there was any fiduciary relationship between the second respondents and the applicant. The second respondents are said to be liable to the applicant because they knowingly participated in the first respondent's breach of fiduciary duty. A person who knowingly participates in a breach of fiduciary duty is liable to account to the person to whom the fiduciary duty was owed where that person obtains a benefit by that participation: Consul Development Pty Ltd v DPC Estates Pty Ltd [1975] HCA 8 ; (1975) 132 CLR 373 at 397. 54 It was not put that the second respondents could not be liable without actual knowledge of the first respondent's breach of fiduciary duty. It was accepted that a plea that the second respondents knowingly participated in a breach by the first respondent of his duty of confidence with the kind of knowledge pleaded in par 28 of the PFASC could be allowed to stand. 55 In Consul Development Pty Ltd v DPC Estates Pty Ltd , Gibbs J (at 398) and Stephen J (at 412) with whom Barwick CJ agreed expressed different views as to the knowledge required to establish liability in circumstances of this kind. The English Courts have expressed different views: Royal Brunei Airlines Sdn Bhd v Tan Kok Ming [1995] UKPC 4 ; [1995] 2 AC 378; Twinsectra Ltd v Yardley [2002] UKHL 12 ; [2002] 2 AC 164. It appears that the English view has not been accepted in New South Wales and Stephen J's view has been preferred to that of Gibbs J: Yeshiva Properties No 1 Pty Ltd and Others v Marshall (2005) 219 ALR 112 per Bryson JA at [18]-[22]. Because of the uncertainty in the law in Australia on this topic, it would be difficult to conclude that a plea of the kind in par 28 was untenable: Short (as Executrix of the Estate of Short (decd)) v Crawley (No 25) [2005] NSWSC 928 per White J at [43]; The Bell Group Ltd (in liq) v Westpac Banking Corporation and Ors (No 5) [2004] WASC 273. However, because no issue was raised by the second respondents as to the kind of knowledge required, I do not need to explore this complex issue.