case_text: In Integrated Computer Services Pty Ltd v Digital Equipment Corp (Australia) Pty Ltd (1988) 5 BPR 11,110 at 11,117 ('Integrated Computer Services') , McHugh JA (Hope JA and Mahoney JA concurring) observed: '...a contract may be inferred from the acts and conduct of parties as well as or in the absence of their words:...The question in this class of case is whether the conduct of the parties viewed in the light of the surrounding circumstances shows a tacit understanding or agreement. The conduct of the parties, however, must be capable of proving all the essential elements of an express contract:...Care must also be taken not to infer anterior promises from conduct which represents no more than an adjustment of their relationship in the light of changing circumstances.' 106 Further, at 11,118, his Honour observed: 'Moreover, in an ongoing relationship, it is not always easy to point to the precise moment when the legal criteria of a contract have been fulfilled. Agreements concerning terms and conditions which might be too uncertain or too illusory to enforce at a particular time in the relationship may by reason of the parties' subsequent conduct become sufficiently specific to give rise to legal rights and duties. In a dynamic commercial relationship new terms will be added or will supersede older terms. It is necessary therefore to look at the whole relationship and not only at what was said and done when the relationship was first formed.' (Authorities omitted) 108 The assessment of whether the conduct of the parties gives rise to a concluded contract is to be made by reference to the objective standard ( Meates v Attorney General [1983] NZLR 308 at 377; Integrated Computer Services at 11,118). 113 In this regard, the position of the applicant is to be distinguished from the position where the content of one of the party's conduct can provide a basis from which an inference can be drawn that an agreement has been reached, in the sense that the conduct evidences the performance of one or other of its provisions. The position is distinguishable from that in Integrated Computer Services , where McHugh JA said at 11,118: 'By the end of October 1983, I think that the parties had entered into a contract which embraced the seven matters to which I have referred. The terms of the June 1983 arrangement may not have been specific enough to be enforceable. But by June 1984 when access to the VAX was cut off, the parties had acted under the arrangement and given effect to it. What they did is explicable only on the basis of a binding agreement. ...' (emphasis added) 114 Secondly, I accept the submissions of counsel for the respondent that the subsequent conduct of the respondent did not point to the existence of the pleaded variation to the consultancy agreement. The memorandum of 10 July 2000 from Mr Brand to Mr Punch was not, in my view, an item of subsequent conduct evidencing the pleaded variation to the consultancy agreement. In fact, the contrast between the way in which Mr Brand in the memorandum describes the termination payment provisions in relation to Mr Hayes, on the one hand, and the reference to the respondent's 'standard' provision on termination in relation to Mr Rutherford and Mr Jones, on the other, supports an inference that there was a different regime in place for the payment of a termination payment to the applicant when compared to the other consultants. Indeed, the evidence of Mr Lindsay that he had seen the consultancy agreements and they all contained an express clause providing for payment of four weeks' fee for each year of service, serves further to distinguish the contractual position of the applicant (which did not have such a clause in its contract) from that of the other consultants. 115 Thirdly, I do not find that the notation in the respondent's Annual Report for the year ending June 2000 of a contingent liability of $1 575 853 in respect of termination payments for directors and executives, supports the inference that there was a variation to the applicant's consultancy agreement in the terms pleaded. The evidence as to how that sum was derived was unsatisfactory. During his opening counsel for the applicant tendered as exhibit 5 the document described in [94] on the basis that Mr Lindsay would identify this document as one of the documents which he used in deriving the $1 575 853 contingent liability and which he had sent to the respondent's auditors. However, when he came to give evidence Mr Lindsay did not in fact identify exhibit 5 as being the document referred to at par 21 of his witness statement or as being among the documents which he said he sent to the auditors to explain how the sum of $1 575 853 was derived. Further, in his evidence Mr Lindsay said that the contingent liability figure in the 2000 accounts was calculated by reference to a consultant's termination payment being payable on the basis of two months' base pay plus a payment of one month for each year of service. This method of calculation also does not support the applicant's contention that there was a standard practice of paying consultants' termination payments at the rate of one month's fee for each year of completed service. In any event, even if exhibit 5 had been used by Mr Lindsay in deriving the contingent liability figure in the 2000 accounts, the figure of $119 399 in respect of the applicant does not, for the reasons referred to by counsel for the respondent, support the applicant's contention. Neither is that figure of $119 399 explained by the methodology involving the two months' base pay described by Mr Lindsay. This would have resulted in the applicant being entitled to termination payment based on eight months' fee.


case_outcome: cited

case_text: In Vroon BV v Foster's Brewing Group Ltd [1994] 2 VR 32 Ormiston J said at 81: '...I am prepared to accept...that agreement and thus a contract can be extracted from circumstances where no acceptance of an offer can be established or inferred and where the most that can be said is that a manifestation of mutual assent must be implied from the circumstances.'


case_text: The assessment of whether the conduct of the parties gives rise to a concluded contract is to be made by reference to the objective standard ( Meates v Attorney General [1983] NZLR 308 at 377; Integrated Computer Services at 11,118).


case_text: The applicant did not make a specific alternative claim that it was entitled to the payment of the termination payment under cl 8.6 of the consultancy agreement. However, it followed that if the Court accepted the case advanced by the respondent, it would find that cl 8.6 of the consultancy agreement continued. Accordingly, although there was no alternative plea by the applicant founded on the continued existence of cl 8.6, it was a live issue because it was an incident of the case advanced by the respondent at trial (see, Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liquidation) [1916] HCA 81 ; (1916) 22 CLR 490 at 517-518). 122 Clause 8.6 of the consultancy agreement provides: 'In the event that the Company terminates this Agreement for any other reason other than as stated in clause 8.1 hereof or the Term (as extended or renewed) is not renewed the Company shall pay to the Consultant the Fee for the remaining period of the contract or six (6) months whichever is the lesser period.' 123 After trial I asked the parties for submissions on the proper construction of cl 8.6 of the consultancy agreement and in particular, whether in the absence of rectification, the word 'lesser' should be construed as 'greater'.


case_outcome: applied

case_text: In my view, counsel for the respondent's contention cannot be accepted. It is clear that the contractual intention was to provide the applicant with a termination payment of a minimum of six months, regardless of whether the relationship between the parties ended by the non renewal of the term of the consultancy agreement on the expiry of the existing term or by the termination of the agreement (other than for a reason set out in cl 8.1) during the currency of the term, of the consultancy agreement. This construction is consistent with the presence in the clause of the words 'or the Term (as extended or renewed) is not renewed '. The construction contended for by the respondent is inconsistent with the presence of those words in the clause and renders those words otiose. In my view, it is obvious that there was a mistake by the draftsman in using the word 'lesser' when the word 'greater' should have been used to give effect to the obvious intention of the parties. Where there is an obvious mistake the Court can give effect to the true contractual intention of the parties without there being any need for rectification. The principle was expressed thus by Santow J in the case of Spunwill Pty Ltd v BAB Pty Ltd (1994) 36 NSWLR 290 at 299: '...Where a court can discern the intent of the parties from an examination of the document as a whole, words may be supplied, omitted or corrected in the instrument, where it is clearly necessary in order to avoid absurdity or inconsistency: Fitzgerald v Masters [1956] HCA 53 ; (1956) 95 CLR 420 at 426-427. In such cases rectification of the document is not required: Re United Pacific Transport Pty Ltd [1968] Qd R 517; Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (at 346).'


case_text: In my view, counsel for the respondent's contention cannot be accepted. It is clear that the contractual intention was to provide the applicant with a termination payment of a minimum of six months, regardless of whether the relationship between the parties ended by the non renewal of the term of the consultancy agreement on the expiry of the existing term or by the termination of the agreement (other than for a reason set out in cl 8.1) during the currency of the term, of the consultancy agreement. This construction is consistent with the presence in the clause of the words 'or the Term (as extended or renewed) is not renewed '. The construction contended for by the respondent is inconsistent with the presence of those words in the clause and renders those words otiose. In my view, it is obvious that there was a mistake by the draftsman in using the word 'lesser' when the word 'greater' should have been used to give effect to the obvious intention of the parties. Where there is an obvious mistake the Court can give effect to the true contractual intention of the parties without there being any need for rectification. The principle was expressed thus by Santow J in the case of Spunwill Pty Ltd v BAB Pty Ltd (1994) 36 NSWLR 290 at 299: '...Where a court can discern the intent of the parties from an examination of the document as a whole, words may be supplied, omitted or corrected in the instrument, where it is clearly necessary in order to avoid absurdity or inconsistency: Fitzgerald v Masters [1956] HCA 53 ; (1956) 95 CLR 420 at 426-427. In such cases rectification of the document is not required: Re United Pacific Transport Pty Ltd [1968] Qd R 517; Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (at 346).' 126 In the case of Fitzgerald v Masters [1956] HCA 53 ; (1956) 95 CLR 420 the word 'inconsistent' was read to mean 'consistent'. 127 I have found below that, on the expiry of the term of the consultancy agreement on 30 June 2001, the term was not renewed. I am of the view that on the non-renewal of the consultancy agreement, the applicant became entitled to a termination payment under cl 8.6 of the consultancy agreement. It follows that, in my view, on the expiry of the term of the consultancy agreement on 30 June 2001, the applicant became entitled to a termination payment in a sum equal to six months' fee measured by reference to the annual consultancy fee of $190 000 (exclusive of GST). I will hear the parties on whether a GST component is to be included in that sum, as I apprehend the applicant to contend. 128 The evidence of Mr Hayes and Mr Brand established that there was an agreement by conduct that the consultancy fee of $190,000 per annum payable to the applicant under the consultancy agreement was from the date of the introduction of GST to be a fee that was to be free of GST. In other words, the applicant was entitled to earn that fee exclusive of GST and so it could add the amount of GST payable on the fee to the invoice furnished to the respondent. Such an agreement can also be inferred by the respondent's practice in paying the invoices rendered by the applicant and other consultants after 1 July 2001 which invariably included an additional amount in respect of GST.


case_text: In the case of Brambles Ltd v Wail [2002] VSCA 150 ; (2002) 5 VR 169 ('Brambles') , the Court of Appeal (Winneke P, Charles and Batt JJA) held that where the parties to a fixed term contract for the provision of services had, following the expiry of the fixed term contract, continued to deal with each other on the same basis as prior to the expiry of the term of the contract, there could be an implied or tacit agreement that a new contract between the parties was formed on the same terms as the previous contract except as to the term. The new contract would instead be terminable on reasonable notice. 152 In the course of its reasons the Court of Appeal in Brambles at 185-186, at [57] referred with approval to the following statement which appears in Chitty on Contracts 28th ed, (1999), vol i, p 21, para 1-034: 'There may also be an implied contract where the parties make an express contract to last for a fixed term, and continue to act as though the contract still bound them after the term has expired. In such a case the court may infer that the parties have agreed to a newly expressed contract for another term.' 153 The Court of Appeal also considered at some length the North American cases on this issue and also referred with approval (at 186, at [59]) to the following statement in Corbin on Contracts Rev ed, (1993), vol 1, p 60, para 1.19 ('Corbin') : 'Parties who have made an express contract to be in effect for one year (or any other stated time) frequently proceed with performance after expiration of the year without making any new express agreement, of extension or otherwise. From such continued action a court may infer that the parties have agreed in fact to renew the one-year contract for another similar period. Illustrations can be found in leaseholds, employment transactions and contracts for a continuing supply of a commodity...' 162 According to the authorities approved by the Court of Appeal in Brambles , the relevant conduct that is to be assessed on an objective basis, is the conduct between the parties which occurred after the expiry of the consultancy agreement. Whilst it is possible that events prior to the termination date may colour the inferences to be drawn from the post termination conduct, this does not arise on the facts in this case. 163 I do not regard the fact that in late 1999 and early 2000, Mr Brand and Mr Hayes had discussed the prospect of terminating the consultancy agreement as being of any weight in assessing whether a tacit agreement was made after 30 June 2001. The discussions between Mr Brand and Mr Hayes in late 1999 and early 2000 did not lead to any agreement being concluded between the applicant and the respondent. Further and significantly, those discussions were superseded by subsequent events, including, of course, Mr Brand's own letter of 4 August 2000 and the applicant's letters of 7 August 2000, 9 October 2000, 22 December 2000, 20 February 2001, 14 March 2001 and 29 June 2001. All of these letters show that the applicant throughout this period regarded the consultancy agreement as being on foot, and the letter of 29 June 2001 shows that the applicant was prepared to continue to supply services on the then existing terms of the consultancy agreement after the termination of the consultancy agreement. When viewed in its full context this evidence does not support an inference that there was any abandonment by the applicant of the consultancy agreement prior to 30 June 2001. Rather, the evidence demonstrates a dogged insistence on the part of the applicant on the continued existence of the consultancy agreement right up until the termination date of the agreement and a willingness to continue to provide services on the existing terms thereafter. Insofar as the evidence shows that there was a preparedness by Mr Hayes on behalf of the applicant to consider alternative arrangements, it also shows that Mr Hayes was insistent that such alternative agreement be made and recorded, before there would be any abandonment of the consultancy agreement. 164 Likewise, no weight can be placed on the fact that there was a meeting between Mr Elliott and Mr Hayes in February 2001 where Mr Elliott expressed his dislike of consultancy agreements, and discussed with Mr Hayes the possibility of the applicant terminating the consultancy agreement and coming to a different contractual arrangement with the respondent. This conduct also predates termination of the consultancy agreement. Further, after that meeting, Mr Jordan wrote the letter to the applicant which is referred to in [33] above suggesting Mr Hayes had agreed to terminate the consultancy agreement. However, by his letter dated 14 March 2001 and referred to in [34] above, Mr Hayes rebutted the statements made in the letter and asserted the continuance of the consultancy agreement. This evidence must also be assessed in light of all the evidence including the applicant's other letters referred to in the previous paragraph. The comments I made in the preceding paragraph about the overall effect of that evidence, are equally applicable here. 166 I accept that it is relevant that there was no express response by the respondent of the applicant's letter of 29 June 2001. However, I do not regard this fact as undermining the inference that there was a tacit agreement between the parties that their continuing relationship after 30 June 2001 was to be on the same terms as the consultancy agreement save as to the term thereof. The question of 'silence' or the absence of response to that letter which indicated a preparedness by the applicant to continue to provide services on the existing terms of the consultancy agreement, cannot be looked at in isolation. As is illustrated by the authorities referred to in Brambles , the relevant conduct in assessing whether an agreement is to be inferred, is not confined to the words or absence of words, of the parties. What is crucial is how the parties deal with each other in that period after the expiry of the original term. In this case, on the basis of the findings that I have made, the parties conduct after the expiry of 30 June 2001, when viewed objectively, showed that the parties continued to behave towards each other in the same way as before 30 June 2001. 167 In my view, on the facts that I have found, it is to be inferred that the applicant and the respondent tacitly agreed that the applicant was to provide the services of Mr Hayes to the respondent on the same terms as those in the consultancy agreement, save that the agreement was to be of an indefinite duration. I consider below whether it was a term of that contract that it was terminable on reasonable notice. It follows that I reject the contention of the respondent that the post 30 June 2001 contract between the applicant and the respondent was for the supply by the applicant of Mr Hayes' services on a casual basis at the rate of $75 per hour (exclusive of GST). 168 In [145] above, I said that I would defer consideration of the respondent's contention that there was no forbearance by the applicant during the period 1 July 2001 to May 2003 because the applicant agreed to supply the services of Mr Hayes after 1 July 2001 at a rate of $75 per hour (exclusive of GST) - being the amount reflected in the invoices which the applicant furnished after 30 June 2001. 173 The applicant relied on the Brambles case as authority in support of the proposition that the post 30 June 2001 contract was terminable on reasonable notice. 174 Further, the applicant submitted that, in deciding whether the post 30 June 2001 contract was terminable on reasonable notice, an analogy was to be drawn between the position of an employee under a contract of employment and the position of the applicant under a consultancy contract. It was submitted that, at common law, it was an implied term of any employment contract of indefinite duration that the agreement would be terminable on reasonable notice. The applicant argued that, by analogy, such a term should be implied as a term of the post 30 June 2001 contract between the applicant and the respondent. 175 The respondent argued that it was not necessary to imply a term that the contract be terminable on reasonable notice to give the contract business efficiency. Further, counsel for the respondent submitted, that it was not open to the applicant to rely, by way of analogy, on cases involving an employment relationship. 176 There are similarities between the facts in this case and those in Brambles. In the Brambles case the Court was also concerned with an independent contractor agreement. The contract in that case was a written contract whereby the contractor company, Andar Transport Pty Ltd, was to provide services to Brambles for a period of three years. On the expiry of the term the parties continued to deal with each other in the same way as they had before the term expired. The implication of the reasonable notice term in the successor agreement was necessary to accommodate the circumstance that the initial fixed term had expired and that it was necessary for there to be some procedure for the termination of the agreement. Likewise, in this case, by providing that the consultancy agreement would terminate on the expiry of the fixed term, the parties manifested an intention that the contract, which was essentially a contract for the provision of personal services by Mr Hayes, would be of limited duration. In other words, there was no intention that the respondent would engage Mr Hayes's services through the applicant, for the duration of Mr Hayes' working life. In light of my findings that parties did not transform the contractual relationship after 30 June 2001 into a casual contractor relationship, and, in the absence of an express agreement as to a further fixed term, it is necessary to imply the term that the successor contract be terminable on reasonable notice to give effect to the common intention that the contract was to be terminable in circumstances other than by way of mutual agreement.


case_text: 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_text: 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_text: 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_outcome: followed

case_text: 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 & 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 & 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_title: Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 58


case_text: 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 & 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_outcome: considered

case_text: 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 & 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_text: 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 & Multicultural & 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_text: 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 & Multicultural & 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_title: Casarotto v Australian Postal Corporation [1989] FCA 116 ; (1989) 86 ALR 399 at 403


case_title: Cheung v AAT [2009] FCA 241

case_text: 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_text: Harding, appearing on behalf of Mr House, submitted in summary: Principles relevant to appeals to this Court from Tribunal decisions were explained in Collector of Customs v Pozzolanic [1993] FCA 456 ; (1993) 43 FCR 280 at 286-287. These principles include the following: a wrong finding of fact is not sufficient to demonstrate error of law; only in exceptional circumstances should the decision of the Tribunal not be the final decision; the Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal's thoughts; the reasons for the decision under review are not to be construed minutely and finely with an eye attuned to the perception of error. In relation to the Authority's claim that the Tribunal erred by revisiting findings of fact already made by the Tribunal in House [2004] AATA 667 and by not taking that decision into account, in fact the Tribunal made key findings on critical issues which differed from those of the earlier Tribunal decision. Accordingly, the decision of the Tribunal in House [2004] AATA 667 was made redundant. Specifically: in House [2004] AATA 667 , the Tribunal had found that the incapacity by reason of which Mr House was retired was the effects of alcoholism and that Mr House's prescribed physical and mental impairments were alcoholism and alcoholic liver disease, and not his personality disorder; in the decision the subject of this appeal, the Tribunal found that alcoholism and the personality disorder of Mr House were the prescribed physical and mental impairments; the Tribunal in the decision the subject of this appeal recognised it faced different evidence and different issues as to the kinds of civil employment which a person with the applicant's skills, qualification and experience might reasonably undertake; the fact that the 2004 decision of the Tribunal was upheld by the Federal Magistrates Court in House [2004] FMCA 833 is irrelevant it simply means that, in the view of the Federal Magistrates Court, the earlier decision of the Tribunal was not infected by legal error. In relation to the Authority's submission that the Tribunal had failed to take into account a relevant consideration, namely that Mr House's condition had improved, any comparison between Mr House's level of functioning at the effective date of the Tribunal's decision and earlier points in time must recognise that, until the Tribunal's decision, Mr House's personality disorder had not been considered to be one of his prescribed physical and mental impairments. In relation to the Authority's submission that the Tribunal failed to take into account relevant considerations as to the kind of employment Mr House could undertake in determining Mr House's overall incapacity for civil employment, the Authority was inviting the Court to consider the Tribunal's reasons "minutely and finely with an eye keenly attuned to the perception of error". In relation to the Authority's submission as to misdirection, that submission does not take the Authority's case any further than other grounds of appeal. In relation to the Authority's submission as to the alleged failure of the Tribunal to give adequate reasons, in relation to the issues which the Authority raised the Tribunal was not required to expressly give an explanation. The Tribunal made findings with reasons in respect of each of the issues under s 34 of the Act in compliance with s 43(2B) AAT Act. The Tribunal was required to make a global assessment, such an assessment is not a mathematical exercise, and a precise identification of how the Tribunal arrived at 30% incapacity is not necessary. Because the decision as to Mr House's degree of incapacity is a "value judgment", not a mathematical exercise, if the Court upholds the Authority's appeal the appropriate course is for the Court to remit the matter to the Tribunal as the arbiter of fact. Consideration First ground of appeal


case_title: Comcare Australia v Grimes [1994] FCA 1054


case_title: Dennis Willcox Pty Ltd v FCT (1988) 79 ALR 267


case_text: 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_title: Doman v Riordan (1990) 21 ALD 255

case_text: 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_text: particular significance was the decision of the Tribunal immediately preceding the decision of the Tribunal the subject of this appeal. That decision House and Defence Force Retirement and Death Benefits Authority [2004] AATA 667 was upheld on appeal to the Federal Magistrates Court ( House v D.F.R.D.B. Authority [2004] FMCA 833). I shall return to this decision later in the judgment. The decision of the Authority Mr Harding, appearing on behalf of Mr House, submitted in summary: Principles relevant to appeals to this Court from Tribunal decisions were explained in Collector of Customs v Pozzolanic [1993] FCA 456 ; (1993) 43 FCR 280 at 286-287. These principles include the following: a wrong finding of fact is not sufficient to demonstrate error of law; only in exceptional circumstances should the decision of the Tribunal not be the final decision; the Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal's thoughts; the reasons for the decision under review are not to be construed minutely and finely with an eye attuned to the perception of error. In relation to the Authority's claim that the Tribunal erred by revisiting findings of fact already made by the Tribunal in House [2004] AATA 667 and by not taking that decision into account, in fact the Tribunal made key findings on critical issues which differed from those of the earlier Tribunal decision. Accordingly, the decision of the Tribunal in House [2004] AATA 667 was made redundant. Specifically: in House [2004] AATA 667 , the Tribunal had found that the incapacity by reason of which Mr House was retired was the effects of alcoholism and that Mr House's prescribed physical and mental impairments were alcoholism and alcoholic liver disease, and not his personality disorder; in the decision the subject of this appeal, the Tribunal found that alcoholism and the personality disorder of Mr House were the prescribed physical and mental impairments; the Tribunal in the decision the subject of this appeal recognised it faced different evidence and different issues as to the kinds of civil employment which a person with the applicant's skills, qualification and experience might reasonably undertake; the fact that the 2004 decision of the Tribunal was upheld by the Federal Magistrates Court in House [2004] FMCA 833 is irrelevant it simply means that, in the view of the Federal Magistrates Court, the earlier decision of the Tribunal was not infected by legal error. In relation to the Authority's submission that the Tribunal had failed to take into account a relevant consideration, namely that Mr House's condition had improved, any comparison between Mr House's level of functioning at the effective date of the Tribunal's decision and earlier points in time must recognise that, until the Tribunal's decision, Mr House's personality disorder had not been considered to be one of his prescribed physical and mental impairments. In relation to the Authority's submission that the Tribunal failed to take into account relevant considerations as to the kind of employment Mr House could undertake in determining Mr House's overall incapacity for civil employment, the Authority was inviting the Court to consider the Tribunal's reasons "minutely and finely with an eye keenly attuned to the perception of error". In relation to the Authority's submission as to misdirection, that submission does not take the Authority's case any further than other grounds of appeal. In relation to the Authority's submission as to the alleged failure of the Tribunal to give adequate reasons, in relation to the issues which the Authority raised the Tribunal was not required to expressly give an explanation. The Tribunal made findings with reasons in respect of each of the issues under s 34 of the Act in compliance with s 43(2B) AAT Act. The Tribunal was required to make a global assessment, such an assessment is not a mathematical exercise, and a precise identification of how the Tribunal arrived at 30% incapacity is not necessary. Because the decision as to Mr House's degree of incapacity is a "value judgment", not a mathematical exercise, if the Court upholds the Authority's appeal the appropriate course is for the Court to remit the matter to the Tribunal as the arbiter of fact. Consideration First ground of appeal I have set out these observations of her Honour in some detail to illustrate the point that the submission of the Authority before me has substance. It is unnecessary for me, in these proceedings, to look further into previous deliberations and decisions of the Tribunal. The submission of the Authority in relation to its submission before the Tribunal in these proceedings is that the issue whether Mr House has a personality disorder has previously been before the Tribunal. The excerpts from her Honour's judgment and the reasons for decision of the Tribunal in House and Defence Force Retirement and Death Benefits Authority [2004] AATA 667 support this submission.


case_outcome: related

case_title: House and Defence Force Retirement and Death Benefits Authority [2008] AATA 38

case_text: is an appeal from a decision ( House and Defence Force Retirement and Death Benefits Authority (Cth) [2008] AATA 38) of the Administrative Appeals Tribunal ("the Tribunal") by which the Tribunal set aside the decision of the Defence Force Retirement and Death Benefits Authority ("the Authority") and substituted the following decision: For the purposes of section 34(1B)(a) of the Defence Force Retirement and Death Benefits Act 1973 ("the Act"), alcoholism and the personality disorder of Mr House were the prescribed physical and mental impairments of the recipient member; and The percentage of incapacity in relation to the civil employment of Mr House for the purposes of section 34(1) is 30%; and For the purposes of section 30 of the Act, the invalidity classification of Mr House is Class B with effect from 19 November 2004. "Appeals" from decisions of the Tribunal pursuant to s 44(1) Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act") are on issues of law only, and fall within the original jurisdiction of this Court. The orders sought by the Authority in this appeal are: That the determination of the Tribunal be set aside. That the reviewable decision before the Tribunal be affirmed. Such other orders as the Court sees fit. Accordingly, the Authority confirmed the decision of the delegate to refuse Mr House's request for a review of his classification. The Tribunal's decision the subject of this appeal (House [2008] AATA 38) A person who is affected by a decision of the Authority and who is dissatisfied with the decision may request the Authority to reconsider the decision (s 99(2) of the Act). An application may be made to the Tribunal to review a decision of the Authority, being a decision which has been confirmed or varied (s 99(6) of the Act). In this case Mr House sought review of the Authority's decision by the Tribunal. The Tribunal considered in detail evidence given by Mr House, and by a psychologist, an occupational therapist, and a psychiatrist called as witnesses by Mr House. The Tribunal also considered in detail evidence given by a psychiatrist and an orthopaedic surgeon called as witnesses by the Authority. Clearly 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] ). In relation to the incapacity of Mr House for each kind of employment the Tribunal found as follows: I accept the evidence of Dr Reddan who gave an opinion of percentages of incapacity which are mentioned in the report of 1 June 2007. Dr Reddan took account of the alcohol condition as well as the personality disorder condition in providing her opinion. These percentages are driver, minimal, 5% (which Dr Reddan conceded could be increased to 10%); mobile plant operator, minimal, 5%; labourer, minimal, 5%; storeman, minimal, 5%; mining and construction labourer, small, 15%; security officer, moderate, 30%; powder monkey, small, 20%; sub-contractor in mining and construction, small, 20%; foreman in any of these fields, moderate, 30%. ( House [2008] AATA 38 at [117] ) The Authority submitted that the conclusion of the Tribunal that therefore Mr House's level of incapacity for civil employment was 30% suggested that the Tribunal had only taken into consideration the levels of incapacity for security officer and foreman (evidence of Dr Reddan in relation to both kinds of employment indicating 30% incapacity). In my view this submission raises a serious question as to whether the Tribunal actually did take into consideration evidence before it of the levels of incapacity of Mr House in relation to all kinds of employment listed, and not merely the levels of incapacity in relation to security officer and foreman. The fact that, in relation to the other seven kinds of civil employment listed, the evidence accepted by the Tribunal was that Mr House's incapacity ranged from 5% to 20%, means that the finding by the Tribunal of 30% incapacity warrants some explanation of the process of reasoning. Unfortunately, in my view such explanation as there is in the Tribunal's statement of reasons is inadequate. The Tribunal leaps directly to the conclusion on the basis of a "value judgment" that the percentage of incapacity in relation to the civil employment of Mr House for the purposes of s 34(1) of the Act is 30%. I reject the submission on behalf of Mr House that criticism of the Tribunal's reasoning in this context is examination "minutely and finely with an eye keenly attuned to the perception of error". With respect, the conclusion of the Tribunal supports the Authority's submission that a relevant consideration, namely the evidence as to the levels of incapacity in respect of kinds of employment other than security officer and foreman, was not considered.


case_text: particular significance was the decision of the Tribunal immediately preceding the decision of the Tribunal the subject of this appeal. That decision House and Defence Force Retirement and Death Benefits Authority [2004] AATA 667 was upheld on appeal to the Federal Magistrates Court ( House v D.F.R.D.B. Authority [2004] FMCA 833). I shall return to this decision later in the judgment. The decision of the Authority Mr Harding, appearing on behalf of Mr House, submitted in summary: Principles relevant to appeals to this Court from Tribunal decisions were explained in Collector of Customs v Pozzolanic [1993] FCA 456 ; (1993) 43 FCR 280 at 286-287. These principles include the following: a wrong finding of fact is not sufficient to demonstrate error of law; only in exceptional circumstances should the decision of the Tribunal not be the final decision; the Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal's thoughts; the reasons for the decision under review are not to be construed minutely and finely with an eye attuned to the perception of error. In relation to the Authority's claim that the Tribunal erred by revisiting findings of fact already made by the Tribunal in House [2004] AATA 667 and by not taking that decision into account, in fact the Tribunal made key findings on critical issues which differed from those of the earlier Tribunal decision. Accordingly, the decision of the Tribunal in House [2004] AATA 667 was made redundant. Specifically: in House [2004] AATA 667 , the Tribunal had found that the incapacity by reason of which Mr House was retired was the effects of alcoholism and that Mr House's prescribed physical and mental impairments were alcoholism and alcoholic liver disease, and not his personality disorder; in the decision the subject of this appeal, the Tribunal found that alcoholism and the personality disorder of Mr House were the prescribed physical and mental impairments; the Tribunal in the decision the subject of this appeal recognised it faced different evidence and different issues as to the kinds of civil employment which a person with the applicant's skills, qualification and experience might reasonably undertake; the fact that the 2004 decision of the Tribunal was upheld by the Federal Magistrates Court in House [2004] FMCA 833 is irrelevant it simply means that, in the view of the Federal Magistrates Court, the earlier decision of the Tribunal was not infected by legal error. In relation to the Authority's submission that the Tribunal had failed to take into account a relevant consideration, namely that Mr House's condition had improved, any comparison between Mr House's level of functioning at the effective date of the Tribunal's decision and earlier points in time must recognise that, until the Tribunal's decision, Mr House's personality disorder had not been considered to be one of his prescribed physical and mental impairments. In relation to the Authority's submission that the Tribunal failed to take into account relevant considerations as to the kind of employment Mr House could undertake in determining Mr House's overall incapacity for civil employment, the Authority was inviting the Court to consider the Tribunal's reasons "minutely and finely with an eye keenly attuned to the perception of error". In relation to the Authority's submission as to misdirection, that submission does not take the Authority's case any further than other grounds of appeal. In relation to the Authority's submission as to the alleged failure of the Tribunal to give adequate reasons, in relation to the issues which the Authority raised the Tribunal was not required to expressly give an explanation. The Tribunal made findings with reasons in respect of each of the issues under s 34 of the Act in compliance with s 43(2B) AAT Act. The Tribunal was required to make a global assessment, such an assessment is not a mathematical exercise, and a precise identification of how the Tribunal arrived at 30% incapacity is not necessary. Because the decision as to Mr House's degree of incapacity is a "value judgment", not a mathematical exercise, if the Court upholds the Authority's appeal the appropriate course is for the Court to remit the matter to the Tribunal as the arbiter of fact. Consideration First ground of appeal It is clear on reading the decision of Emmett FM in House [2004] FMCA 833 that the issue of Mr House's personality disorder had been raised in the proceedings both before the Tribunal in its 2004 proceedings and in the Federal Magistrates Court. In this context it is useful to set out comments by her Honour in House [2004] FMCA 833 with respect to this issue: "New grounds of Appeal 18. The Appellant argued orally that the Tribunal had further erred: a) in seeking to separate his personality disorder from his alcoholism and thereby discount by half the assessment of the Appellant's impairment in circumstances where that exercise had not been undertaken in any prior determination; b) in failing to find that the Appellant's personality disorder had been part of the reason for his discharge from the Armed Forces in May 1975 and therefore part of the physical or mental incapacity for which he was retired and therefore not able to be separated or discounted from his alcoholism; and c) in that the Tribunal's finding that the Appellant's alcoholism and personality disorder could be separated such that the percentage of the incapacity from impairment that was a cause of his retirement was halved was a finding so repugnant to the evidence as to amount to an error of law. 19. Leave was then sought by the Appellant to further amend his Amended Notice of Appeal to raise those further alleged errors of law. Leave was opposed by the Respondent on the basis that there had been ample time for the Appellant to seek leave prior to the hearing, that the Appellant had already amended his Notice of Appeal once and that in any event the grounds were so unlikely to succeed as to render leave futile. 20. In considering the question of leave, I have had regard to the submissions by the parties on the further grounds sought to be raised by the Appellant with a view to determining the likelihood of success of any of the further grounds raised. (a) Was it open to the Tribunal to discount the percentage of incapacity of alcoholism to take account of personality disorder 21. Before the Tribunal, the Appellant relied on the evidence of Dr J. Hargraves psychiatrist who had been treating the Appellant since January 1998. Dr Hargraves evidence was relied on in relation to the involvement of his personality disorder with the identified impairment of his alcoholism and the inability to distinguish the two impairments. 22. The Respondent relied on reports of Doctors Reddan and Stevenson as enabling the Tribunal to consider objectively the separation of the two conditions and to seek to deal with the personality disorder separately from the alcoholism by way of discounting the incapacity of the alcoholism by the personality disorder. The Tribunal had regard to Dr Hargraves opinion that the Appellant suffers from alcoholism and personality disorder (para 21). 23. It is common ground that personality disorder of the Appellant has been found by previous Tribunal decisions not to be a prescribed impairment. The Tribunal concluded that the prescribed physical or mental impairment in the Appellant's case is alcoholism and alcoholic liver disease. 24. The Tribunal found that "the respondent conceded that the impairment by reason of which the applicant was retired were alcoholism and alcoholic liver disease and this aspect is not in issue". (para 11) 25. The Tribunal concluded in paragraph 53 that: "Dr Hargraves has not opined that the cessation of work was entirely due to the effect of alcoholism. Consequently, whilst the applicant seeks to connect the cessation of work with the correlating escalation in the degree of his impairments, the Tribunal finds that this approach is misdirected and without foundation. It is clear from the reports of Dr Stevenson and Dr Reddan that an objective approach is warranted and this Tribunal agrees." In paragraph 34 the Tribunal said: "Dr Reddan acknowledges the artificiality of separating the symptoms produced by alcohol abuse and personality disorder." 26. On the other hand, Dr Hargraves report took into account both the Appellant's personality disorder and his alcoholism in assessing the incapacity of the Appellant to undertake to the Accepted Kinds of Employment. 27. Dr Reddan, in her report at page 815, states: "I think that people with personality disorder seem to be more prone to alcohol abuse." At AB 817 Dr Reddan was asked in chief: "If you were asked to look at Mr House and say, leaving aside the effect of his personality order, what effect does the alcohol abuse have on his capacity to undertake both kinds of employments we have identified? Is it possible can you make an assessment of just the effect of the alcohol abuse?" Answer: "Well, it is artificial and its difficult. As I said in that report things like attending work intoxicated or other sequelae of alcohol abuse I suppose we should say might have certain sequelae for some jobs but not for others. So the sort of percentages I was sort of estimating then were really when you kind of combine the two together and I think you'd really have to kind of almost if you assign a percentage you'd almost sort of have to harvest in each case in relation to personality or alcohol but it's a somewhat artificial kind of distinction that in real life isn't quite right." 28. Having regard to the finding of the Tribunal in respect of the separation of the personality disorder from alcoholism and the consequent halving of the impairment, the Tribunal clearly acknowledges the evidence of Dr Reddan that there is an artificiality in separating the symptoms. Whilst I may not necessarily have come to the same conclusion, it is clear that the Tribunal's finding was open to it on the evidence before it." [29] Further, in submissions before the Tribunal, the Respondent clearly invited the Tribunal to discount the incapacity arising from the Appellant's personality disorder although at the same time making it clear to the Tribunal that that was not an exercise that had been done before. [30] The Appellant did not seek to address that submission in any way at the hearing and states today that it was because neither he nor his representative had expected such a submission to be put and did not expect the Tribunal to make a finding in accordance with that submission. The Appellant stated today that the matter did not concern him at the time as he was of the view that it had not been possible on the medical evidence to date, and particularly in relation to Dr Hargraves evidence, to separate the alcoholism from the personality disorder. That is unfortunate and I have a deal of sympathy for the Appellant in perhaps failing to challenge those submissions when he had the opportunity. However, it cannot be said that opportunity was denied him.


case_text: Tribunal found in summary as follows: The Tribunal's task was to decide the appropriate invalidity classification of Mr House on 19 November 2004, which was the date Mr House sought a review of his invalidity classification by the Authority. The Tribunal was required to determine, as at 19 November 2004, the percentage of Mr House's incapacity in relation to civil employment, and the appropriate classification in respect of that incapacity for the purposes of s 30 and s 34 of the Act. The Tribunal was required to give consideration to the impairment for which Mr House was retired. The Tribunal found that the primary reason for Mr House's discharge was his alcoholism condition which was interrelated with his personality condition (at [90]). Accordingly, alcoholism was the prescribed physical or mental impairment for the purposes of s 34 of the Act. The Tribunal was required to consider whether the personality disorder of Mr House should be accepted as being one of his prescribed physical or mental impairments which was a cause of the incapacity by reason of which he was retired. In so considering, the Tribunal found: It had long been recognised that Mr House had a personality disorder. There was considerable medical evidence that this disorder was part of Mr House's "constitution", and that the personality disorder was present at the time of his enlistment. However under the scheme of the Act a constitutional condition may itself constitute a prescribed physical or mental impairment (at [94]). This is recognised by s 28 of the Act. In order for the personality disorder of Mr House to constitute a prescribed impairment there must be some evidence that this condition rendered Mr House incapable of performing his duties (at [95]). Evidence that the personality disorder of Mr House could "impact" upon his employment was given by one of the psychiatrists, Dr Reddan. There was evidence before the Tribunal that the personality disorder of Mr House was a significant condition. The Tribunal interpreted evidence of Dr Reddan as meaning that Mr House's personality condition was as significant as the alcohol condition as an impairment, and that both conditions could impact on Mr House's employment (at [99)]. Accordingly, the Tribunal concluded that the personality disorder of Mr House was one cause of his retirement, and that for the purposes of s 34(1B)(a) of the Act, alcoholism and the personality disorder of Mr House were his prescribed physical and mental impairments (at [99]-[100]). The Tribunal referred to s 34(1A) of the Act which provides that, in determining the percentage of incapacity in relation to civil employment of a recipient member, the Authority shall have regard to, inter alia , the kinds of civil employment which a person with skills, qualifications and experience referred to in s 34(1A)(a) of the Act might reasonably undertake. The Tribunal accepted as relevant the kinds of civil employment submitted by the Authority, but also accepted a number of categories nominated by Mr House. Specifically the Tribunal found that: ...the kinds of civil employment which Mr House with skills, qualifications and experience referred to in section 34(1A)(a) of the Act might reasonably undertake would be as a driver, mobile plant operator, labourer, store person, mining and construction labourer, security officer, powder monkey, sub-contractor in mining and construction, and foreman in any of those fields. (at [113]) The Tribunal was required to have regard to the degree to which any physical or mental impairment of Mr House had diminished his capacity to undertake the kinds of civil employment accepted by the Tribunal. In this case the Tribunal noted that it would ordinarily examine the degree to which each prescribed impairment diminished the capacity of Mr House to undertake each of the relevant kinds of employment, but that in the circumstances it would be artificial to endeavour to determine the effect of each prescribed impairment (at [116]-[117]). In this case it would be inappropriate to simply perform a mathematical calculation by taking an average of various percentages of impairment for the kinds of employment listed. The Tribunal also noted that it was administering beneficial legislation. It was appropriate for the Tribunal to make a "value judgment" as described in McGovern and Defence Force Retirement and Death Benefits Authority (1988) 16 ALD 791. The Tribunal accepted that Mr House was able to drive, that the alcoholism condition of Mr House was in remission, and that Dr Reddan had given Mr House a 30% rating on two kinds of civil employment that Mr House could reasonably undertake. The Tribunal found that the percentage of incapacity in relation to the civil employment of Mr House for the purposes of s 34(1) was 30% (at [121]). Accordingly, the Tribunal found that Mr House had a classification of Class B for the purposes of s 30 of the Act, such classification to take effect from 19 November 2004, and made the orders the subject of this appeal. The Appeal I have already set out the orders sought by the Authority in this case. The questions of law raised on the appeal are whether the Tribunal erred at law in: (1) Failing to consider a serious submission. (2) Failing to take into account a relevant consideration, ie that the applicant's condition had improved since 2001. (3) Failing to take into account a relevant consideration, ie that a person with the applicant's skills, qualifications and experience would reasonably be expected to undertake a wider range of civil employment than security officer and foreman. (4) Misdirecting itself as to the nature of the decision it was required to make, or misapplied s 34(1) of the Act; and (5) Making a statement of reasons that was manifestly inadequate. I am satisfied that these are proper questions of law for consideration by this Court. This ground of appeal adds very little to the Authority's submissions concerning the failure of the Tribunal to take into account relevant considerations. To the extent however that the Tribunal (after referring to McGovern and Defence Force Retirement and Death Benefits Authority (1988) 16 ALD 791 at 792) stated that it was required to have regard to the width, quality and nature of the range of employment opportunities and make a "value judgment", it appeared that the Tribunal actually did not have regard to the "width, quality and nature of the range in employment opportunities". As I have already noted, it appears that the Tribunal in making its decision as to the level of incapacity took into consideration only two of the nine employment types. It follows therefore that the Tribunal did not follow the procedure it outlined for itself as necessary. In this respect the Tribunal appears to have made an error of law. Fifth ground of appeal Mr Harding on behalf of Mr House submitted that the Tribunal made findings in respect of each of the issues under s 34 of the Act, was required to make a global assessment which is not a mathematical exercise, and was not required to give detailed explanation of the manner in which it arrived at its conclusions. While this may be true as a general proposition, nonetheless in my view some explanation is required where the Tribunal appears to make decisions which appear contrary to the weight of evidence, as is the case in relation to the Tribunal's value judgment that Mr House's level of incapacity for civil employment was 30%. I note again that the only explanation given by the Tribunal was as follows: PERCENTAGE OF INCAPACITY OF CIVIL EMPLOYMENT 121. I consider that it would be inappropriate for me to simply perform a " mathematical calculation " by taking an average of the various percentages of impairment for the kinds of employment listed above. I am also conscious that I am administering beneficial legislation. I accept the fact that Mr House is able to drive as he regularly drives his partner to appointments. I also accept the evidence of Dr John Morris who has made a realistic assessment of the ability of Mr House to be a driver. I also accept that the alcohol condition of Mr House is now in remission and Mr House is to be commended for his responsible attitude. I have already mentioned that in McGovern Deputy President R D Nicholson has stated that I am required to have regard to the width, quality and nature of the range in employment opportunities and make a " value judgment ". I have had regard to the fact that Dr Reddan, who has been called by the Authority has given Mr House a 30% rating on two kinds of civil employment that Mr House could reasonably undertake. Making a " value judgment " I find that the percentage of incapacity in relation to the civil employment of Mr House for the purposes of section 34(1) of the Act is 30%.


case_text: 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).


case_text: 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. 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 & Multicultural & 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_text: my view, in the circumstances the Tribunal's statement of reasons were inadequate. I accept the Authority's submission that these reasons do not satisfy the test in Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) [1987] FCA 301 ; (1987) 77 ALR 577 , namely that the unsuccessful party, having read the decision, must be in a position to say: Even though I may not agree with it, now I understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging. ( Our Town FM Pty Ltd [1987] FCA 301 ; (1987) 77 ALR 577 at 593)


case_text: grounds of appeal of the Authority are as follows: The Tribunal erred in law in not considering a serious submission of the applicant that, adopting the principle that having regard to the dictates of fairness and expedition "previous Tribunal decisions should generally be regarded as establishing the matters actually decided and the grounds for determination unless there is reason not to do so": Re Quinn & Australian Postal Corporation (1992) 15 AAR 519 at 526, the question for the Tribunal is what has changed since the operative date for the previous Tribunal determination of the respondent's incapacity. The Tribunal erred in law in failing to take into account a relevant consideration, ie that the respondent's condition had improved since 2001. The Tribunal was required to take into account this consideration by s 34(1) of the Act. The Tribunal erred in law in failing to take into account a relevant consideration, ie that a person with the applicant's skills, qualifications and experience would reasonably be expected to undertake a wider range of civil employment than security officer and foreman. Under s 34(1)(c) of the Act the Tribunal made its assessment of the degree to which the prescribed impairment of the respondent had diminished his capacity to undertake the kinds of employment identified for the purposes of s 34(1)(b) of the Act by reference to only two of the nine identified employment kinds. The Tribunal erred in law by misdirecting itself as to the nature of the decision it was required to make, or misapplied s 34(1) of the Act. The Tribunal said that it was "required to have regard to the width, quality and nature of the range in employment opportunities and make a 'value judgment'". But it then made its decision on the assessment of only two of nine identified employment types. The Tribunal's statement of reasons was manifestly inadequate in that it: is impossible to glean from the statement the reasons what was the Tribunal's reasoning process that led to its decisions; and does not state reasons adequate to enable the court to determine whether or not any other error had occurred in the reasoning process. Relevant legislative scheme The governing law in these proceedings is Pt V of the Act. Part V provides invalidity benefits for members of the scheme established by the Act who have been retired on the ground of invalidity or physical or mental incapacity to perform their duties. The initial classification of a member is made under s 30, which provides as follows: 30 (1) Where a member of the scheme, not being a member of the scheme to whom section 36 applies, is, or is about to become, entitled to invalidity benefit, the Authority shall determine his percentage of incapacity in relation to civil employment and shall classify him according to the percentage of incapacity as follows: Percentage of incapacity Class 60% or more A 30% or more but less than 60% B Less than 30% C In its Reasons for Decision the Tribunal also referred to s 34 of the Act, which so far as is relevant in these proceedings provides: 34 (1) 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. ... (1A) In determining: (aa)What is the percentage of incapacity in relation to civil employment of a recipient member;... (aab) The Authority shall have regard to the following matters only: (a) the vocational, trade and professional skills, qualifications and experience of the recipient member ; (b) the kinds of civil employment which a person with skills, qualifications and experience referred to in paragraph (a) 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); (d) such other matters (if any) as are prescribed for the purposes of this subsection (1B) In subsection (1A), prescribed physical or mental impairment , in relation to a recipient member or a deceased member who was immediately before his or her death a recipient member, means: (a) a physical or mental impairment of the member that was the cause, or one of the causes, of the invalidity or physical or mental incapacity by reason of which the member was retired, whether or not that impairment changed, for better or worse, since that retirement; or (b) any other physical or mental impairment of the member causally connected with a physical or mental impairment referred to in paragraph (a). Submissions of the parties In re Quinn & Australian Postal Corporation (1992) 15 AAR 519 at 526 the Tribunal stated: It would seem inappropriate and unreasonable to us for there to be relitigation without reason of the same issues before the Tribunal. It would be unjust to applicants to have to face a situation where a decision may be made today and relitigated tomorrow on the very same facts. The Tribunal should not generally allow relitigation of issues already decided and previous Tribunal decisions should be regarded as establishing the matters actually decided and of the grounds for the determination.


case_text: 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] ).


case_title: Minister for Immigration v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259

case_text: behalf of Mrs Holmes it was submitted that, on a reading of the Tribunal's reasons as a whole, it should not be concluded that the learned senior member had, as the Secretary alleged, addressed the incorrect question, notwithstanding the commencement passage quoted. To that end, my attention was appropriately directed to the salutary reminder offered by Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration v. Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 , at 272 that an administrator's reasons are " not to 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 ". Giving full weight to this reminder, it nonetheless seems to me that, in form, the learned senior member did not address the correct question. The following excerpts from his reasons underscore the impression in that regard created by the commencement passage from the reasons which I have quoted: " The questions for the Tribunal here are fundamentally, whether there was a marriage-like relationship in any ordinary sense, or conversely, whether Mrs Holmes and her husband should be regarded as living separately and apart. " (Reasons, par 16) " The Tribunal must assess whether Mr and Mrs Holmes are in a marriage-like relationship based on the way they function in their relationship and with their children. " (Reasons, par 18) " The period of time spent together is also indicative of whether a marriage-like relationship can be said to exist. " (Reasons, par 32) " I find that the nature of the household does not reflect a marriage-like relationship. " (Reasons, par 33) " I therefore find the social aspects of the relationship do not amount to a normal marital relationship of a marriage-like relationship. " (Reasons, par 36). [In relation to sexual relations] " They were, it seems, satisfying temporal physical needs, but there is not sufficient evidence for it to be seen to be a marriage-like relationship, particularly where there was the absence of other commonly accepted elements of a marriage. " (Reasons, par 39) " I do not find the sexual relationship was typical of a marriage-like relationship where there was a minimal amount of emotional warmth. " (Reasons, par 40) " IS THERE A MARRIAGE-LIKE RELATIONSHIP? The requirements of s 4 require me to evaluate, by distillation of all the evidence, whether there can be said to be a marriage-like relationship. In other words, I must have regard to the weight to be placed on the various elements which characterise the relationship and which might be regarded on the balance of probabilities as being a marriage-like relationship. ... Nevertheless, while there are many factors which have justifiably been raised by the respondent and, on the face of it, point to the applicant being in a marriage-like relationship, the proper inference to be drawn from the analysis of factors in s 4(3) more than tip the scales in favour of Mrs Holmes. ... " (Reasons, pars 45 and 46) The repetitive use of the term "marriage-like relationship" and the deliberate entitling of a section of the reasons with the rhetorical question, "Is there a marriage-like relationship?" are consistent only with the posing by the Tribunal for itself of a question which was, in the circumstances of Mrs Holmes' subsisting lawful marriage, incorrect. Even so construed, each question suffers from the vice of being premised on a violation of the reminder given in Wu Shan Liang against over-zealous scrutiny of an administrator's reasons. The passage to which question 2.6 seems to be directed appears in par 17 of the Tribunal's reasons, " A marriage or marriage-like relationship might be differentiated from other dyadic friendships or relationships and must be expected to have at least some degree of intimacy. " The passage is subordinate to an earlier adoption by the learned senior member of a sense of union and common purpose being the essence of "marriage" when used as part of the expression "marriage-like" in ss 4(2), 4(3) and 4(3A) of the Act. For reasons that I develop below, there is no error in that conception of what the word "marriage" imports in that expression. It is quite wrong to read the quoted sentence out of this context as if its contents were seen by the learned senior member as indicating some additional or overarching requirement. The suggestion in question 2.7 that the Tribunal has elevated the criterion of the "nature of commitment" to a pre-condition to answering the question as to whether a person was a "member of a couple" as opposed to that criterion being part of "all the circumstances of the relationship" is, on a fair reading of the Tribunal's reasons, also wrong. A discrete portion of the Tribunal's reasons is entitled "Nature of the Commitment between the Applicant and Mr Holmes", but it is patent from other such headings that this is but a reference to a particular consideration by the Tribunal of such of the criteria specified in s 4(3) as seemed to the Tribunal to require more detailed comment in the circumstances of the case.


case_text: referred to in s 4(2)(b)(iii) of the Act is s 4(3A). That subsection intrudes upon the forming of the Secretary's opinion as to whether a couple in a relationship are in a "marriage-like" relationship by requiring consideration of whether a member of that couple is "living separately and apart from his or her partner on a permanent or indefinite basis". If one reads in isolation the conditional clause at the conclusion of s 4(3A) of the Act, in which the words just quoted appear, one might perhaps come to the view that, in the case of a marriage-like relationship, the condition it posits is an objective absolute. It is to be remembered that there is a very definite distinction in law between a "jurisdictional fact" grounded in the holding of an opinion or state of satisfaction as to whether a given state of affairs exists and one grounded in whether that state of affairs truly exists: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 , at 651, [130] per Gummow J. Yet so to construe s 4(3A) would be to introduce an asymmetry in the definition of "member of a couple" between the position with respect to a couple who are parties to a legal marriage and the position with respect to a couple who, in the Secretary's opinion, are in a marriage-like relationship. Unless the language of the Act was intractable such a construction would introduce an unnecessarily subtle distinction into the operation and administration of a definition of pervasive importance in a statute of wide application in our community. In the case of a legally married couple what s 4(2)(a) requires is the forming of an opinion by the Secretary as to whether one party to that marriage is " living separately and apart from the other person on a permanent or indefinite basis ". That there is a relationship in form is a given flowing from a prior transaction of lawful marriage with the concern being whether, in substance and having regard to the considerations mentioned in s 4(3), the couple are, in the Secretary's (or in his place the Tribunal's) opinion, living separately and apart on a permanent or indefinite basis. One of those considerations which, in its application to a legally married couple, conceptually surely owes its inspiration to the works of Lewis Carroll, is whether that legally married couple " see their relationship as a marriage-like relationship" : s 4(3)(e)(iv). In my opinion, reading s 4(2)(b)(iii) and s 4(3A) together yields the result that Parliament intended that the forming of the Secretary's opinion as to whether a couple who are not legally married were nonetheless in a marriage-like relationship would also be informed by and conditioned upon the Secretary's opinion as to whether the persons in that relationship were " living separately and apart from the other person on a permanent or indefinite basis ". The parenthetical reference in s 4(2)(b)(iii) to both s 4(3) and s 4(3A) indicates that the Secretary's opinion is to be formed by reference to the criteria in each of these subsections. I have already referred to the reminder given by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 as to the distinction in law between a "jurisdictional fact" grounded in the holding of an opinion or state of satisfaction as to whether a given state of affairs exists and one grounded in whether that state of affairs truly exists. Earlier in time and in a passage to which Gummow J drew attention in his judgment in Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 , at 653-654 [136], Gibbs J had observed in Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-119, in relation to the review of a "satisfaction" based decision by a court: "In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached." In respect of the last of these observations made by Gibbs J, Gummow J added in Eshetu [1999] HCA 21 ; , (1999) 197 CLR 611 , at 654 [137]: " This passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way." To similar effect is a passage in the speech of Lord Brightman in Puhlhofer v Hillingdon [1986] UKHL 1 ; [1986] AC 484 , at 518, referred to with approval by Gleeson CJ and McHugh J in their separate, joint judgment in Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 , at 626-627 [41], with whose reasons Hayne J (at 659 [158]) relevantly agreed: "Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely." The formation of an opinion for the purposes of s 4(2)(a) of the Act as to whether a legally married couple were living separately and apart on a permanent or indefinite basis is a paradigm example of the kind of statutory provision to which reference is made in the passages quoted from Eshetu and Buck v Bavone .