case_title: Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515


case_outcome: referred to

case_text: lack of compliance was not articulated with any great precision or clarity. It was said that the grounds in the amended draft notice of appeal 'are little more than a duplication of the alleged question of law'. Grounds 4(a) to 4(j) differ only from the corresponding alleged questions of law in two ways: first, the word 'whether' is omitted from the opening words so that each paragraph is no longer prefaced as a question and; second, statutory references are inserted. But as the Commissioner acknowledges in his referral to various quotations from cases such as Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at [47] (Branson J); Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 523 (Ryan J); Young v Commissioner of Taxation [2008] FCA 1908 at [19] (Gilmour J); Price Street Professional Centre Pty Ltd v Commissioner of Taxation [2007] FCAFC 154 ; (2007) 243 ALR 728 at [75] (Greenwood J); and Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 38 AAR 55 at [18] (Branson and Stone JJ), because the existence of a question of law is not merely a qualifying condition to ground the appeal, but must be the subject matter of the appeal itself see TNT Skypak International (Aust.) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 at 178 (Gummow J) there should be a link or symmetry between the question raised and the ground relied upon. Subject to the question raised being truly a pure question of law (see Birdseye at [18] (Branson and Stone JJ)), the applicant's articulation of the grounds in the manner assailed by the Commissioner may well provide the necessary link or symmetry. I would not exercise my discretion to refuse to extend time on the basis that the amended draft notice of appeal does not comply with 0 53 r 3(2)(d).


case_text: paragraph provides: [W]hether the Tribunal erred in law in failing to make any findings or give any consideration as to whether the receipts by the applicant which were treated as consideration for taxable supplies by the respondent were properly to be characterised as financial supplies on which no GST was payable because they were input taxed supplies; The contention here advanced was not advanced by the applicant before the Tribunal. There will be cases where a question of law arises from a failure on the part of the Tribunal to deal with an issue not put to it: see Carpentaria Transport Pty Ltd v Federal Commissioner of Taxation 90 ATC 4590 at 4593 (Davies J), but generally this will not be so, and this case is no exception. There was no error of law on the part of the Tribunal in failing to consider and make findings as to whether the receipts by the applicant were properly to be characterised as consideration for financial supplies on which no GST was payable because they were input taxed supplies. This paragraph does not raise a question of law on which to ground the appeal: Commissioner of Taxation v Perkins 93 ATC 4524 at 4526 (Davies J, with whom French and Heerey JJ concurred); Commissioner of Taxation v Glennan [1999] FCA 297 ; (1999) 90 FCR 538 at [80] [83] (Hill, Sackville and Hely JJ). Paragraphs 2(h) (j)


case_title: Commissioner of Taxation v Glennan [1999] FCA 297 ; (1999) 90 FCR 538


case_title: Commissioner of Taxation v Perkins 93 ATC 4524


case_outcome: considered

case_text: recently, however, the importance to be attached to the merits of the appeal has, arguably, been downgraded in its ranking among the criteria to be taken into account by the court in exercising its discretion as to whether or not an extension of time should be granted. For example, in Culley v Australian Securities and Investments Commission [2008] FCA 1784 at [5] , Jessup J observed: A party to a proceeding in the Tribunal has an appeal as of right on a question of law. Such an appeal is in the nature of a new proceeding in the original jurisdiction of the court. It is unnecessary for an applicant in such an appeal to have grounds of any particular strength or intrinsic merit (although I recognise, of course, the relevance of s 31A of the Federal Court of Australia Act 1976 (Cth) in these, as in all other, original proceedings). For this reason (and perhaps the more so because of the availability of s 31A) , I consider that the court should be slow to reject an application for an extension of time under s 44(2A) of the AAT Act, where otherwise the principles in Hunter are appropriately satisfied, for no reason other than that the appeal, if prosecuted, would be unlikely even very unlikely to succeed. I note that this was effectively the approach taken by the court in Mustafa v Chief Executive Officer, Centrelink [2000] FCA 1897 and in Wiegand v Comcare Australia [2005] FCA 1904. I consider that such an approach would be consistent with that taken by Fitzgerald J in Lucic [ v Nolan (1982) 45 ALR 411] and, because his Honour followed Lucic , by Wilcox J in Hunter .


case_outcome: cited

case_text: Commissioner's opposition to the grant of an extension of time for the applicant to file a notice of appeal from the decision of the Tribunal was mainly, indeed wholly, grounded on the principle in (5), namely, the merits of the applicant's proposed appeal. In submissions, the Commissioner referred to the fact that in Federal Commissioner of Taxation v Brown [1999] FCA 1198 ; 99 ATC 4852 at [12] a Full Court of this Court referred to that matter as an 'important consideration'; an applicant should show that he or she has an 'arguable case' to warrant an extension of time: Brown , at first instance [1999] FCA 563 ; , 99 ATC 4516 at [56] per Hill J, accepting the view of von Doussa J in Windshuttle v Deputy Federal Commissioner of Taxation [1993] FCA 553 ; (1993) 46 FCR 235 at 243.


case_text: the discretion to extend time to institute an appeal pursuant to O 53 r 7 of the Rules is not expressly confined by specified criteria, there is a range of factors of varying actual importance, which have been developed by the Court in analogous situations. Frequently relied on are the criteria referred to by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 ; (1984) 3 FCR 344 where his Honour was concerned with s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the AD(JR) Act') which, like O 53 r 7, does not set out any criteria by reference to which the court's discretion to extend time for an application for review under s 5 of the AD(JR) Act is to be exercised. At 348 his Honour said: Already there have been a number of decisions of judges of this Court, all sitting at first instance, dealing with the approach proper to be taken. They differ a little, both in language and in emphasis, but I venture to suggest that from them may be distilled the following principles to guide, not in any exhaustive manner, the exercise of the court's discretion ... His Honour then went on to deal with each of these principles, which, relevantly, may be paraphrased in the following way: (1) Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper to do so. It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an 'acceptable explanation of the delay' and that it is 'fair and equitable in the circumstances' to extend time. (2) A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision and a case where the decision-maker was allowed to believe the matter was finally concluded. (3) Any prejudice to the respondent occasioned by the delay is a material factor militating against the grant of an extension. (4) The mere absence of prejudice is not enough to justify the grant of an extension. (5) The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. More recently, however, the importance to be attached to the merits of the appeal has, arguably, been downgraded in its ranking among the criteria to be taken into account by the court in exercising its discretion as to whether or not an extension of time should be granted. For example, in Culley v Australian Securities and Investments Commission [2008] FCA 1784 at [5] , Jessup J observed: A party to a proceeding in the Tribunal has an appeal as of right on a question of law. Such an appeal is in the nature of a new proceeding in the original jurisdiction of the court. It is unnecessary for an applicant in such an appeal to have grounds of any particular strength or intrinsic merit (although I recognise, of course, the relevance of s 31A of the Federal Court of Australia Act 1976 (Cth) in these, as in all other, original proceedings). For this reason (and perhaps the more so because of the availability of s 31A) , I consider that the court should be slow to reject an application for an extension of time under s 44(2A) of the AAT Act, where otherwise the principles in Hunter are appropriately satisfied, for no reason other than that the appeal, if prosecuted, would be unlikely even very unlikely to succeed. I note that this was effectively the approach taken by the court in Mustafa v Chief Executive Officer, Centrelink [2000] FCA 1897 and in Wiegand v Comcare Australia [2005] FCA 1904. I consider that such an approach would be consistent with that taken by Fitzgerald J in Lucic [ v Nolan (1982) 45 ALR 411] and, because his Honour followed Lucic , by Wilcox J in Hunter .


case_title: Price Street Professional Centre Pty Ltd v Commissioner of Taxation [2007] FCAFC 154 ; (2007) 243 ALR 728


case_text: his Honour at [6] went on: While it will be apparent that I do not consider that an application for an extension of time is an occasion for any more than the most cursory examination of the merits of the proposed proceeding, nonetheless I recognise that, if such an examination does reveal the proceeding as being conspicuously devoid of merit, the application might well be rejected upon the ground that the prosecution of it would, in effect, be pointless. In relation to this last observation, see Tey v Commissioner of Taxation [2007] FCA 920 at [28] [33] per Gilmour J. Having regard to the following facts and circumstances, namely: (1) That Mr Hua, an unqualified person, appeared on behalf of the applicant at the hearing before the Tribunal; (2) the evidence embodied in Ex. 2, none of which was challenged; and (3) the evidence embodied in Ex. 1, none of which was challenged, I am satisfied that the only relevant consideration, a conclusion on which might militate against an exercise of discretion to extend the time for filing a notice of appeal, is whether the grounds of appeal as articulated in the amended draft notice of appeal disclose an arguable case, even if it is unlikely to succeed, or whether they are so devoid of merit as to render prosecution of the appeal pointless. Before turning to that issue, it is necessary that I deal with the various bases upon which the Commissioner assailed the amended draft notice of appeal. The Commissioner assailed the grounds relied on in the amended draft notice of appeal on an holistic basis claiming that they did not comply with O 53 r 3(2)(d) of the Rules which expressly provides that a notice of appeal must state 'briefly, but specifically, the grounds relied upon in support of the order sought'.


case_title: TNT Skypak International (Aust.) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175


case_title: Windshuttle v Deputy Federal Commissioner of Taxation [1993] FCA 553 ; (1993) 46 FCR 235


case_title: Young v Commissioner of Taxation [2008] FCA 1908


case_text: third major difficulty only confronts the applicant's case if it be assumed that the appointment of the second respondent to the classification of Leading Firefighter was in breach of the Award or the Certified Agreement. The difficulty is that of concluding that something done in breach of the relevant clauses of the Award and the Certified Agreement is to be treated as a nullity, in consequence of the breach. As I have said, none of the relevant provisions of the Award or the Certified Agreement appears to impose on the first respondent any obligation only to appoint to classifications persons with the required experience, much less any mandatory obligation. The question whether non-compliance with a statutory provision results in a particular act being treated as void no longer depends on the classification of the provision as mandatory or directory. Since Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at [91] - [94] , it has been recognised that it is necessary to gather from the statute, or statutory instrument, as a whole the intention that non-compliance should lead to invalidity, before a conclusion can be reached that a non-complying act is to be treated as void. It is certainly not the case that non-compliance with an award made under the WR Act would necessarily lead to the conclusion that an act was void. See Byrne v Australian Airlines Ltd [1995] HCA 24 ; (1995) 185 CLR 410 at 426-429 per Brennan CJ, Dawson, Toohey JJ and 453-457 per McHugh and Gummow JJ, and NTEIU v University of Wollongong [2002] FCA 31 at [38] - [39] . In the application of the approach favoured by Project Blue Sky , there are some guiding principles. One such guiding principle is that, where Parliament has chosen to make an act done in contravention of a statutory provision punishable by a specified penalty, it is unlikely that Parliament also intended other consequences, such as the invalidity of the act, to follow. See Yango Pastoral Company Pty Ltd v First Chicago Australia Ltd [1978] HCA 42 ; (1978) 139 CLR 410 at 429 per Mason J, with whom Aickin J agreed. In the present context, Parliament has chosen in s 178 of the WR Act to enforce obligations in awards and certified agreements by means of the imposition of civil financial penalties. As a consequence, it is unlikely that it also intended that acts done in contravention of the provisions of awards and certified agreements should be treated as void. To the extent (if any) to which the particular terms of an award or a certified agreement might disclose an intention that contravention is to lead to invalidity, they certainly do not do so in the present case. It would be extremely difficult to argue that a failure to observe strictly the elements of a definition, in the appointment of a person to a particular classification, would result in the invalidity of that appointment. As I have said, only if the appointment of the second respondent as a Leading Firefighter were to be regarded as invalid would it follow that there were contraventions of any of the relevant clauses of the Certified Agreement.


case_title: NTEIU v University of Wollongong [2002] FCA 31


case_text: caution must be exercised in attempting to rely upon the conduct of parties to an award or agreement as an aid in the interpretation of that award or agreement. Plainly, conduct subsequent to the making of an award or agreement is inadmissible as an aid to interpretation. See Seamen's Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FLR 444 at 445 and Printing & Kindred Industries Union & Anor v Davies Bros Ltd (1986) 18 IR 444 at 452. Only if it can be shown that there is a history of the use of a particular term with a particular meaning, sufficient to demonstrate a common understanding between or among the parties to an award or agreement that the term has that meaning, is there any possibility that the conduct of the parties can be relied on. The evidence in the present case goes nowhere near establishing such a common understanding. It would be necessary to show that the word "service" had been used in the same context in a previous Award or agreement, now superseded by the Award, and for there to be clear evidence that both the applicant and the first respondent understood the word to have a particular restricted meaning in that context. There is no evidence of either of these kinds in the present case. Such evidence as there is about custom and practice in the appointment by the first respondent by employees to classifications seems to indicate that there is a recognition that it is not always possible, or advisable, to rely upon the experience levels specified in the definitions in cl 2.9 of the Award strictly. There have been cases of accelerated advancement, when there have been vacancies in positions requiring particular classifications, and shortages of employees with the length of experience designated for those classifications. There is evidence that the Union actively assisted in the promotion of one firefighter, who had emigrated from England, because of the high level of his skills as a result of his long service with a firefighting authority in England. Custom and practice provides no support for the proposition that the word "service" should be given a particular restricted meaning when it is used in cl 2.9 of the Award.


case_title: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355


case_title: Seamen's Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FLR 444


case_outcome: followed

case_title: Yango Pastoral Company Pty Ltd v First Chicago Australia Ltd [1978] HCA 42 ; (1978) 139 CLR 410


case_text: The international conventions that govern the carriage of goods by sea using bills of lading and similar documents in non-charterparty carriage deal variously with onus or burden of proof. The issues that can be raised in respect of the respective and related operation of Articles 3 and 4 of the Hague Rules and the Hague-Visby Rules are not straightforward (despite the passage of over 80 years from the conferences at London, The Hague and Brussels) and not finally settled: cf Shipping Corporation of India Ltd v Gamlen Chemical Co (A/Asia) Pty Ltd [1980] HCA 51 ; (1980) 147 CLR 142, Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation Berhad [1998] HCA 65 ; (1999) 196 CLR 161 and Davies M and Dickey A, Shipping Law (Lawbook Co, 2004) at 212-213 . The Hamburg Rules in Article 5 sought to remove the complexities of this onus question by substantially shifting the onus to the carrier. These rules have not received universal acclaim. With the exception of some aspects borrowed from them, they do not form the basis of Australian, Hong Kong or Chinese law, which were the alternatives governing this carriage.


case_title: Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation Berhad [1998] HCA 65 ; (1999) 196 CLR 161


case_outcome: applied

case_text: There is force in the proposition of the plaintiffs that in circumstances such as these where the parties have argued to abandon the litigation because of the disproportionate burden of costs, the Court should be slow to order costs against the plaintiff: cf JJ Stratford & Son Ltd v Lindley (No 2) [1969] 1 WLR 1547 at 1553-54 and Australian Securities Commission v Aust-Home Investments Limited (1993) 116 ALR 523 at 530. Relevant of course is the default such that the party who discontinues often pays costs: O'Neill v Mann [2000] FCA 1650 at [13] . It is appropriate, however, to look at the whole of the circumstances including the kinds of considerations to which I earlier referred, the reasonableness and efficiency of the conduct of the proceedings by all parties, the extent to which parties who were asserting that they were not liable frankly informed the plaintiff with substantiating material of their position, and the contemporaneous views of the commercial parties as to an appropriate course.


case_title: Australian Securities Commission v Aust-Home Investments Limited (1993) 116 ALR 523


case_title: O'Neill v Mann [2000] FCA 1650


case_text: The Tribunal took into account that strict compliance with cls 572.212 and 572.226 is not required and that substantial compliance is sufficient to meet the criteria: Baidakova v Minister for Immigration and Multicultural Affairs [1998] FCA 1436 (' Baidakova' ). The Tribunal considered whether there were any circumstances beyond the control of the appellant, such as absence or failure due to illness, and whether the appellant was able to provide evidence in support of these circumstances. This accorded with the guidelines in the Department of Immigration and Multicultural and Indigenous Affairs' Procedures Advice Manual. In the Tribunal's view, the appellant had failed to provide any genuine information of such circumstances beyond his control, or any genuine information regarding his unsatisfactory academic results or attendance. Rather, the Tribunal found that the appellant had presented and relied upon forged documents to explain or excuse his breach of condition 8202. The Tribunal also noted that the appellant's breach was significant. 16 On the basis of the relevant material before it and applying the test in Baidakova , the Tribunal found that at the time of his application, the appellant had not complied substantially with the conditions of his Student (Temporary) (Class TU) visa, subclass 560, during the period 15 August 2000 to 15 March 2002. Therefore the Tribunal determined that the appellant failed to meet the requirements of cl 572.212 and affirmed the delegate's decision not to grant a subclass 572 visa. 17 The appellant applied to the Federal Magistrates Court for review of the Tribunal's decision on 17 February 2004. The application was dismissed by Hartnett FM on 17 August 2005. His Honour found that the Tribunal's reasons disclosed no error or law or principle and that there had been no breach of natural justice or unfairness in relation to the way in which the Tribunal had conducted its proceedings. 18 In the Federal Magistrates Court, the appellant contended that the Tribunal had ignored a relevant consideration, being the alleged practice that RMIT provided results without commenting upon whether they were satisfactory or not. Hartnett FM's reasons state that the appellant's contention appeared to be derived from a telephone conversation between a Tribunal officer and the international student officer at RMIT on 6 August 2003 in which the international student officer is alleged to have said: 'RMIT gives results but don't comment on whether or not they are satisfactory. She said that the Tribunal will need to work this out from his results.' 19 Hartnett FM went on to state: 'Whatever the practice of RMIT might be, and whatever the international student officer's understanding of that practice might have been, condition 8202 clearly requires that the visa holder: Achieves an academic result that is certified by the education provider to be at least satisfactory. In the absence of such a certificate there is not compliance with condition 8202, and subject to the possibility of substantial compliance, an applicant would not satisfy the requirements for a further visa. In any event it is clear that RMIT did not consider the applicant's results to be at least satisfactory. The applicant's Head of Department sent the Tribunal a facsimile on 13 December 2002, describing the academic results as "very poor" and "well short of satisfactory" for 2001. The international student officer herself when asked in writing, and presumably when RMIT's obligations were explained to her, responded that the applicant did not achieve a satisfactory result for the 2000 and 2001 academic years. Accordingly it cannot be said that the Tribunal ignored a relevant consideration. The applicant alleged the Tribunal made its own findings about whether the applicant's results were satisfactory. That is not what the Tribunal did. It found that RMIT had not certified the results to be at least satisfactory. There was no certificate provided and nor should there have been such a certificate based on the applicant's academic results.' 20 Hartnett FM noted that the appellant was advised by the Tribunal in correspondence of 16 January 2003 that information obtained by the Tribunal indicated that his attendance and academic results were unsatisfactory. The Tribunal gave the appellant an opportunity to submit further information and comments in relation to these matters. In the circumstances, Hartnett FM was not persuaded that there had been any breach of natural justice or unfairness in relation to the way the Tribunal conducted its proceedings.


case_text: An appeal from the Federal Magistrates Court's decision is an appeal by way of a re-hearing. The powers of the appellate court are to be exercised only where the appellant can demonstrate, having regard to all the evidence before the appellate court, that the order that is the subject of appeal is the result of some legal, factual or discretionary error: Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558 at [4] .


case_title: Gurung v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 772

case_text: On appeal, the appellant alleged a number of jurisdictional errors based on the purported practice of RMIT not to comment on whether results were satisfactory or not. The appellant contended that the Tribunal had been informed that RMIT had a policy of providing academic results without comment as to whether those results were satisfactory or not. In light of that policy, the appellant submitted that strict compliance with condition 8202 was not possible and it was open to the Tribunal to make its own finding as to whether the appellant had achieved substantial compliance with condition 8202: Gurung v Minister for Immigration & Multicultural and Indigenous Affairs [2002] FCA 772 (' Gurung '). The appellant submitted that the Tribunal did not properly make its own finding about whether the appellant's results were satisfactory, but rather relied on the opinions of RMIT staff whose statements about the appellant's academic performance were contrary to RMIT's established procedures. 23 These circumstances were said by the appellant to give rise to jurisdictional error on two bases. First, the appellant submitted that the Tribunal had relied upon opinions expressed by staff members of RMIT as to whether or not the appellant's results in the years 2000 and 2001 were or were not satisfactory, knowing that the giving of such opinions was contrary to RMIT's established procedure. This was said to be a jurisdictional error in several ways, including denial of procedural fairness and reliance upon irrelevant material. 24 There is no substance in these contentions, essentially for the reasons given by Hartnett FM. The basis for the contention that RMIT had an established procedure of not expressing opinions as to whether or not results were satisfactory seems to be flimsy, to say the least. It appears to be based entirely upon a telephone conversation between a Tribunal officer and an international student officer at RMIT. The suggestion is not consistent with formal advices sent to the Tribunal by the head of the relevant department at RMIT. But in any event, whatever the practice of RMIT might be, condition 8202 requires that the visa holder achieve an academic result that is certified by the education provider to be at least satisfactory. There was no such certificate. 25 The second alleged jurisdictional error is said to be based upon a misapplication of Gurung . In Gurung , Tamberlin J stated at [14]: 'Condition 8202(d) requires that the holder of the visa achieve an academic result that is certified by the education provider to be at least satisfactory... for a course that runs for at least a semester, for each term or semester of that course. In the present case there was no such certification and in making its finding, the Tribunal has not usurped or encroached upon the province of the educational institution. On its face, it was clearly open for the Tribunal to make a finding that the academic performance of the applicant was not satisfactory having regard to his high failure rate.' 26 At the hearing, counsel for the appellant sought to argue that Gurung stands for the proposition that, in the absence of certification of academic results from the education provider, the Tribunal should have made its own finding of substantial compliance with condition 8202 having regard to the applicant's failure rates as a percentage of the number of subjects for which the appellant sat. Counsel asserted that in 2001 the appellant passed five out of the six subjects for which he sat, which was said to be a failure rate of 16.6 per cent. Counsel then submitted that this failure rate was better than the appellant's failure rate in the first semester of 2002 (26.3 per cent), for which period RMIT certified that the appellant had achieved a satisfactory result. On the basis of these calculations, it was submitted that RMIT's statements concerning the appellant's academic results were internally inconsistent, and that the Tribunal had misdirected itself by relying on those statements. 27 The factual basis for these submissions appears to be entirely misconceived. The failure rates calculated by counsel ignore the subjects where the appellant did not sit the examination, but did not withdraw. As the Tribunal rightly found, these subjects must be taken into account in considering whether the appellant achieved a satisfactory result. The Tribunal correctly found that the appellant only achieved seven passes/exemptions out of the 17 subjects that he undertook during the 2001 academic year. Those 17 subjects comprised the five passed, one failed, nine for which the appellant did not sit, and two exemptions. 28 The next step in the appellant's submissions is also misconceived. Counsel for the appellant contended that in considering the question whether there had been substantial compliance with condition 8202, the decision in Gurung requires that the Tribunal confine itself to an examination of the appellant's academic results rather than an assessment of the appellant's academic progress. In my opinion, this is a misreading of Gurung : Tamberlin J in that case held that it was open to the Tribunal to find that the applicant had not substantially complied with condition 8202, having regard to the applicant's high failure rate. His Honour did not suggest that the Tribunal must have regard solely to the applicant's failure rate, expressed as a percentage of the number of subjects for which the appellant sat, in assessing whether there has been substantial compliance with condition 8202: see Kim v Witton (1995) 59 FCR 258. RMIT did not certify that the appellant's results were at least satisfactory. As Hartnett FM stated, there was no certificate provided and nor should there have been having regard to the evidence of the appellant's academic results. There was ample evidence of the appellant's poor academic performance in the present case, and of RMIT's opinion that the appellant's results were unsatisfactory.


case_title: Kim v Witton (1995) 59 FCR 258

case_text: The next step in the appellant's submissions is also misconceived. Counsel for the appellant contended that in considering the question whether there had been substantial compliance with condition 8202, the decision in Gurung requires that the Tribunal confine itself to an examination of the appellant's academic results rather than an assessment of the appellant's academic progress. In my opinion, this is a misreading of Gurung : Tamberlin J in that case held that it was open to the Tribunal to find that the applicant had not substantially complied with condition 8202, having regard to the applicant's high failure rate. His Honour did not suggest that the Tribunal must have regard solely to the applicant's failure rate, expressed as a percentage of the number of subjects for which the appellant sat, in assessing whether there has been substantial compliance with condition 8202: see Kim v Witton (1995) 59 FCR 258. RMIT did not certify that the appellant's results were at least satisfactory. As Hartnett FM stated, there was no certificate provided and nor should there have been having regard to the evidence of the appellant's academic results. There was ample evidence of the appellant's poor academic performance in the present case, and of RMIT's opinion that the appellant's results were unsatisfactory.


case_text: aside the question of whether the advice given to the appellant was not sufficiently clear and unambiguous so as to be capable of giving rise to an estoppel (see Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 196, 200 and 207-8 (' Kurtovic ')) in my view, no estoppel can arise when the provisions of the Act are mandatory (see discussion in Kurtovic at 208-10 per Gummow J; Theo v Department of Family and Community Services [2005] FCAFC 239 at [20] per Kiefel, Jacobson and Greenwood JJ; Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 at 104-7 per Davies and Branson JJ ( 'Polat') ; and Formosa v Department of Social Security (1988) 46 FCR 117 at 125 per Davies and Gummow JJ). 15 Kurtovic was not a case where a party asserted that the public authority was estopped from asserting that a particular action, of which the other party sought performance, would be ultra vires as exceeding the powers given by or pursuant to a law of the Parliament. However, Gummow J considered the applicability of the doctrine of estoppel in such a case, and stated, at 208: Any doctrine of estoppel in that context would threaten to undermine the doctrine of ultra vires by enabling public authorities to extend their powers both de facto and de jure by making representations beyond power, which they would then be estopped from denying. The inapplicability of the doctrine of estoppel to this case ensures the performance of a statutory duty: see Kurtovic at 208-10 per Gummow J. In my view, the authorities clearly provide that the doctrine of estoppel cannot be called on to aid the appellant in this case. Any suggested exceptions or qualifications to the general rejection of estoppel in public law (see Kurtovic at 213 per Gummow J) have no application to the present case. Further, this is not a case dealing with the exercise of a statutory discretion that is capable of being exercised in favour of the appellant and certainly not at an operational level. It is true that cl 135(1) of sch 1A to the Act gives the respondent discretion to extend a person's maximum portability period, but the respondent can only exercise it in favour of a person who satisfies the criteria set out in subclauses (a), (b) and (c). It was further argued by the appellant that the provision of incorrect advice involves a breach of duty on the part of the respondent. I do not accept that the findings of the Tribunal establish any such breach of duty, but any such breach would, in any event, not constitute an error of law such as to enable me to grant the relief sought in this proceeding ( Apthorpe v Repatriation Commission (1987) 77 ALR 42 at 52-3 per Davies, Lockhart and Gummow JJ; Polat at 103-4 per Davies and Branson JJ. It was also argued that the words 'absent' and 'absence' in cl 135(1) sch 1A to the Act should be read in the context of the Act as a whole and should be interpreted as more than just not physically present. It was submitted that I should adopt a purposive approach to interpreting the legislation and take into account that if one construction will manifestly work an injustice and the other avoid it, the latter construction should be adopted. It was submitted that the appellant was absent from Australia in that while physically present, he was not a resident of Australia. Reference was made to Re Alderson; ex parte Jackson [1895] 1 QB 183, where Vaughan Williams J held that in order to come within s 4 of the Bankruptcy Act 1883, which constituted an act of bankruptcy where a debtor with certain intent 'absents himself' a debtor need not absent himself from any particular place by physical bodily absence. In the context of the Act I am unable to accept that the word 'absent' or 'absence' has any other meaning than its ordinary meaning as found in the dictionary, namely: 'away, not present' ( Shorter Oxford English Dictionary ); 'being away: not present' ( Chambers English Dictionary ); and 'not in a certain place at a given time' ( Macquarie Dictionary ). It is clear that in the case of the appellant, he was not absent from Australia on, relevantly, 1 July 2004. Reliance was placed by the appellant upon the second reading speech of the Family and Community Services and Veterans' Affairs Legislation Amendment (2003 Budget and Other Measures) Bill 2003 (Cth) ('the Bill'). In my view, the provisions of the Act are clear and unambiguous. Extrinsic material cannot be used to contradict the meaning of the legislation itself: see Deputy Commissioner of Taxation v Roger Crook & Associates Pty Ltd [2005] FCA 450 ; (2005) 142 FCR 273 at 277-8. In any event, nothing in the second reading speech deals specifically with the issue for determination here, particularly the requirement that as at 1 July 2004, the person is absent from Australia. I also observe that the Tribunal itself referred to the Explanatory Memorandum to the Bill, which provides, in relation to cl 135(1) sch 1A that: This new provision enables the Secretary to determine unlimited portability for DSP where a disability support pensioner with an unlimited portability period is absent from Australia on 1 July 2004 comes to Australia after that date and does not become an Australian resident again. This part of the Explanatory Memorandum takes away nothing from the ordinary meaning to be given to the legislation itself and may in fact support the ordinary and natural meaning of the word "absent". CONCLUSION The appeal is dismissed with costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate: Dated: 26 October 2006 Counsel for the Appellant: P Kistler Solicitor for the Appellant: Victoria Legal Aid Commission Counsel for the Respondent: J Lenczer Solicitor for the Respondent: Australia Government Solicitor Date of Hearing: 20 September 2006 Date of Judgment: 20 September 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1396.html


case_title: Deputy Commissioner of Taxation v Roger Crook & Associates Pty Ltd [2005] FCA 450 ; (2005) 142 FCR 273


case_title: Formosa v Department of Social Security (1988) 46 FCR 117


case_title: Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98


case_title: Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193


case_text: appellant contended that the findings of the Tribunal in these paragraphs were wrong, and that upon the basis of the alleged incorrect advice given by Centrelink, the appellant returned to Australia. I do not find any error (of law or otherwise) in those two paragraphs. Having regard to the sequence of events described, namely, the appellant's receipt of the letter and the subsequent telephone conversation and the nature of the telephone inquiry, it seems to me that the conclusions reached by the Tribunal were correct. It may well be that the appellant misunderstood the terms of the information, and upon the basis of the communication did act in returning to Australia before 1 July 2004. Later on in its reasons, the Tribunal accepted that had the appellant realised that if he came back to Australia and was not absent on 1 July 2004, there would be a limitation of his disability support pension, he would not have returned to Australia on 22 June 2004. However, this does not mean the advice was incorrect, just that it may have been misunderstood, and upon that basis, it was acted upon. In any event, paragraphs [8] and [9] represent findings of fact of the Tribunal and are not reviewable by this Court (see s 44 of the Administrative Appeals Tribunal Act 1975 (Cth)). Even if the findings of fact were erroneous, it would not constitute an error of law: see Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 at 77 per Brennan J. The appellant contends that the respondent is now estopped from not exercising the discretion found in cl 135 in his favour. If I am wrong and the advice given to the appellant was incorrect, the respondent is not estopped from refusing to determine that the appellant's maximum portability period for disability support pension is for an unlimited period, where the Act now limits the portability period for disability support pension to 13 weeks.


case_text: although the orders made in respect of the respondent's property by the High Court of Justice in the United Kingdom are not recognised in this Court as operating as an assignment of the respondent's Australian lands ( Australian Mutual Provident Society v Gregory (1908) 5 CLR 615), the Court may act in aid of the foreign court under s 29 Bankruptcy Act to make property in Australia available to the trustee in bankruptcy to enable it to be realised for the benefit of the creditors in the foreign bankruptcy: Australian Mutual Provident Society v Gregory (1908) 5 CLR 615 at 623, 625, 628, 630; Radich v Bank of New Zealand [1993] FCA 450 ; (1993) 45 FCR 101 at 109, 115, 119; Dick as Trustee in Bankruptcy v McIntosh [2001] FCA 1008 at [7] . Indeed, s 29(1) requires this Court to give all assistance it can to a requesting Court if the conditions of the section are satisfied, leaving this Court with a discretion as to what assistance ought to be given (including discretion as to any conditions attach to the provision of assistance): Re Ayres; Ex parte Evans (1981) 51 FLR 395 at 405-407 esp at 407 per Lockhart J; Ayres v Evans (1981) 56 FLR 235 (FC) at 240, 247, 254-255; Radich v Bank of New Zealand at 105, 118; Dick as Trustee in Bankruptcy v McIntosh at [8].


case_title: Ayres v Evans (1981) 56 FLR 235

case_text: although the orders made in respect of the respondent's property by the High Court of Justice in the United Kingdom are not recognised in this Court as operating as an assignment of the respondent's Australian lands ( Australian Mutual Provident Society v Gregory (1908) 5 CLR 615), the Court may act in aid of the foreign court under s 29 Bankruptcy Act to make property in Australia available to the trustee in bankruptcy to enable it to be realised for the benefit of the creditors in the foreign bankruptcy: Australian Mutual Provident Society v Gregory (1908) 5 CLR 615 at 623, 625, 628, 630; Radich v Bank of New Zealand [1993] FCA 450 ; (1993) 45 FCR 101 at 109, 115, 119; Dick as Trustee in Bankruptcy v McIntosh [2001] FCA 1008 at [7] . Indeed, s 29(1) requires this Court to give all assistance it can to a requesting Court if the conditions of the section are satisfied, leaving this Court with a discretion as to what assistance ought to be given (including discretion as to any conditions attach to the provision of assistance): Re Ayres; Ex parte Evans (1981) 51 FLR 395 at 405-407 esp at 407 per Lockhart J; Ayres v Evans (1981) 56 FLR 235 (FC) at 240, 247, 254-255; Radich v Bank of New Zealand at 105, 118; Dick as Trustee in Bankruptcy v McIntosh at [8]. Sixth, it is clear that under s 29 Bankruptcy Act the Court has power to appoint a receiver of the respondent's property in Australia in aid of the administration of the respondent's insolvent estate in the United Kingdom: Re Ayres; Ex parte Evans (1981) 51 FLR at 408-409; Ayres v Evans (1981) 56 FLR at 240, 247, 255; Radich v Bank of New Zealand at 121-122; Dick as Trustee in Bankruptcy v McIntosh at [19].


case_title: Dick as Trustee in Bankruptcy v McIntosh [2001] FCA 1008


case_title: Radich v Bank of New Zealand [1993] FCA 450 ; (1993) 45 FCR 101


case_title: Re Ayres; Ex parte Evans (1981) 51 FLR 395


case_text: meaning of "a question of law" in s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) has been considered by this Court in a number of cases. In addition, the requirements in the Rules of Court as to the contents of a notice of appeal under s 44(1) (see O 53 rr 2, 3 and Form numbered 55A) have been considered. It is not necessary for me to discuss the cases: Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321; Repatriation Commission v Hill [2002] FCAFC 192 ; (2002) 69 ALD 581 ; Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 ; HBF Health Funds Inc v Minister for Health and Ageing [2006] FCAFC 34 ; (2006) 149 FCR 291.


case_text: statement of the relevant principles is correct: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179 ; (1979) 24 ALR 577 ; Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21 ; (1979) 41 FLR 338. Deledio does not provide support for the applicant's submission. Ground 7


case_title: Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522


case_title: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179 ; (1979) 24 ALR 577


case_text: contention in this ground of appeal is that the Tribunal erred in law "on the grounds of duplicity". There is no question of duplicity in the present proceeding and the case to which the applicant referred, Ettridge v TransAdelaide [1997] SASC 6753 , is not relevant to any issue before me. No doubt there were a number of issues before the Deputy President, but there is no reason to think that the proceeding miscarried because of the number of issues the parties were required to address. Ground 19 The contention in this ground of appeal is that the Tribunal erred in law in refusing to allow the applicant "to run his case in the way that he wished".


case_text: respondent's response to this contention is, in my opinion, correct. The applicant claimed that his conditions were related to service through a connection with his duodenal ulcer and, in those circumstances, the Tribunal was required to determine whether his duodenal ulcer was relevantly related to his defence service: Langley v Repatriation Commission [1993] FCA 299 ; (1993) 43 FCR 194 at 201 per Lockhart and Beazley JJ; McKenna v Repatriation Commission [1999] FCA 323 ; (1999) 86 FCR 144 at 151 [20] per Branson, Sundberg and Kenny JJ. The previous acceptance of liability for the applicant's duodenal ulcer under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) did not prevent the Tribunal from considering this matter. The cases to which the applicant referred do not support his argument ( Fitzmaurice v Repatriation Commission (1989) 19 ALD 297 and Power v Comcare (1998) 89 FCR 514). Ground 2 In order to explain this ground, it is necessary to set out the following passages from the Deputy President's reasons. "As mentioned in paragraph 6 above, during the hearing I raised a concern as to jurisdiction, because the application for review refers to the decision of the VRB instead of the decision of the Commission. To overcome my concern I suggested that Mr Kowalski should lodge a fresh application to review the decision of the Commission. He did this, and I made an order, with the consent of the Commission, to extend the time for making the new application. I then gave directions to the effect that the existing proceedings and the new proceedings should be heard together, with the evidence in each case being treated as evidence in the other. ... As there is no issue of jurisdiction in relation to the new application, and in view of the conclusion I have reached, it is not necessary for me to determine whether I had jurisdiction by virtue of the original application. However, on reflection, I think that the original application was sufficient." That reasoning is correct and nothing was said by the Full Court in Fitzmaurice v Repatriation Commission (1989) 19 ALD 297 which suggests that the Deputy President's approach was erroneous. Ground 10 The contention in this ground of appeal is that the Tribunal erred in law in determining that the error that the applicant had made by referring to the Board's decision in his application for review instead of referring to the respondent's decision was an obvious error that should not have rendered his application for review ineffective, or deprived the Tribunal of its jurisdiction or power to make a determination on his application for review. The passage of which the applicant complains is as follows: "In the present case Mr Kowalski clearly intended to invoke the jurisdiction of this tribunal because he was dissatisfied with the decision of the VRB. The error he made in referring to the wrong decision was an obvious error, and should not render his application for review ineffective." That approach favours the applicant and it is not at all clear why he is attacking it. In any event, the approach does not involve error. Ground 11 The contention in this ground of appeal is that the Tribunal failed to consider the applicant's many contentions and his contention based on the changed "ability to work classification" from FE on enlistment to HO on discharge to which the Tribunal referred in paragraph 29 of its reasons "because the facts found in those par's [sic] clearly meet the evidentiary burden on the applicant to adduce sufficient evidence to establish his claims, therefore, Jarvis DP erred in law in finding that the conditions for which the applicant was claiming a disability pension were not caused by his compulsory National Service in the Army". I have set out above the Deputy President's conclusions in the penultimate paragraph in his reasons (see [29]).


case_text: applicant referred to various passages in the transcript of the hearing before the Tribunal (pages 194, 195, 197, 201, 202, 204, 205, 208, 209, 210, 214, 216, 217, 218, 219, 220 and 233-345). He also referred to the decision in Giannarelli v Wraith [1988] HCA 52 ; (1988) 165 CLR 543. I have considered the transcript and I am satisfied that the Deputy President did no more than control the proceeding before him in an appropriate manner. Ground 20 The contention in this ground of appeal is that the Tribunal erred in law in refusing to allow the applicant to ask witnesses relevant questions and to cross-examine witnesses in the witness box. This ground seems to be formulated on the assumption that an applicant is entitled to ask whatever question he or she thinks is appropriate. That is not the case. The Deputy President has the power to disallow irrelevant, scandalous or oppressive questions. In my opinion, the Deputy President did no more than exercise appropriate control in respect of the conduct of the application for review. Ground 21


case_title: HBF Health Funds Inc v Minister for Health and Ageing [2006] FCAFC 34 ; (2006) 149 FCR 291


case_text: concluding these reasons, I record the fact that the applicant asked me to disqualify myself from hearing this appeal. I declined to do so: Kowalski v Repatriation Commission [2008] FCA 1970. Leave to appeal from my decision was refused: Kowalski v Repatriation Commission [2009] FCA 47. I certify that the preceding one hundred and twenty-eight (128) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 30 July 2009 The Applicant appeared in person. Counsel for the Respondent: Mr G Camilos Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 22 January 2009 Date of Judgment: 30 July 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/794.html


case_title: Kowalski v Repatriation Commission [2009] FCA 47


case_text: respondent's response to this contention is, in my opinion, correct. The applicant claimed that his conditions were related to service through a connection with his duodenal ulcer and, in those circumstances, the Tribunal was required to determine whether his duodenal ulcer was relevantly related to his defence service: Langley v Repatriation Commission [1993] FCA 299 ; (1993) 43 FCR 194 at 201 per Lockhart and Beazley JJ; McKenna v Repatriation Commission [1999] FCA 323 ; (1999) 86 FCR 144 at 151 [20] per Branson, Sundberg and Kenny JJ. The previous acceptance of liability for the applicant's duodenal ulcer under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) did not prevent the Tribunal from considering this matter. The cases to which the applicant referred do not support his argument ( Fitzmaurice v Repatriation Commission (1989) 19 ALD 297 and Power v Comcare (1998) 89 FCR 514). Ground 2


case_text: Deputy President referred to the definition of "hypertension" in clause 2(b) and the definition of the expression "being obese" in clause 8. He also referred to the meaning of "clinical onset" as articulated in the cases ( Lees v Repatriation Commission [2002] FCAFC 398 ; (2002) 125 FCR 331 ; Repatriation Commission v Cornelius [2002] FCA 750). It is clear from the Deputy President's reasons that he was aware of the blood pressure reading in March 1973 and that he took it into account (at [67]-[68]). I also agree with the respondent's submission that the Deputy President's analysis of the authorities ( Lees v Repatriation Commission [2002] FCAFC 398 ; (2002) 125 FCR 331 ; Repatriation Commission v Cornelius [2002] FCA 750) was correct and it was open to him to find that the clinical onset of the applicant's hypertension was 24 August 1984. Ground 4


case_text: my opinion, the respondent's submission, that where the decision-maker cannot be satisfied on the evidence before it of the existence of a necessary fact for the claim to succeed, then it cannot decide the claim in the claimant's favour, is correct ( McDonald v Director-General of Social Security [1984] FCA 57 ; (1984) 1 FCR 354 at 358-359 per Woodward, Northrop and Jenkinson JJ). Deledio and O'Brien do not support the applicant's submission. Ground 12 The contention raised in this ground of appeal is that the Tribunal erred in law in placing the onus of proof on the applicant. I have read the paragraphs in the Tribunal's reasons to which the applicant referred ([123], [125], [127] and [128]). I do not think that the Tribunal placed the onus of proof on the applicant. The Deputy President said: "However, except to this extent, it remained necessary for Mr Kowalski to adduce evidence or documents in support of his claim. Proceedings in this tribunal are administrative proceedings, and where (as in the present matter) the relevant legislation does not impose, expressly or by implication, an onus of proof, neither party bears such an onus: Bushell (supra) at 425. Nevertheless, it remains necessary for a party asserting facts to adduce evidence which would support a finding by the tribunal that those facts exist: McDonald v Director-General of Social Security [1984] FCA 57 ; (1984) 1 FCR 354 , at 358." There is no error in the Deputy President's reasoning and this ground of appeal must be rejected. Ground 38 The contention in this ground of appeal is that the Tribunal erred in law in failing to determine, as a preliminary matter, whether the applicant suffered from the claimed psychiatric conditions in accordance with s 120(4) of the Act. This ground of appeal does not raise a question of law. In any event, nothing was put to support the ground of appeal. Ground 39


case_title: McKenna v Repatriation Commission [1999] FCA 323 ; (1999) 86 FCR 144


case_outcome: distinguished

case_title: Oliver v Repatriation Commission [2002] AATA 408

case_text: v Repatriation Commission [2002] AATA 408 (" Oliver ") was a decision of a senior member of the Tribunal. The issue was whether the death of a veteran was due to war service and, in particular, whether the veteran satisfied factor (d) of the relevant principles concerning ischaemic heart disease. The senior member had particular evidence before him and he made certain findings of fact. The circumstances and evidence before the Deputy President in this case were different and Oliver is therefore of no assistance to the resolution of the present matter. I do not think the Deputy President erred. To link the applicant's hypertension with service through a service-related obesity there was a need to show that the applicant was obese at the time of the clinical onset of hypertension and the applicant had plainly not shown that. As I have said, the reference to Oliver does not assist the applicant. Ground 3 The contention in this ground of appeal is that the Tribunal erred in law in determining that the date of clinical onset of the applicant's hypertension was 24 August 1984 and that there was no evidence that the applicant had a pre-existing condition of hypertension that worsened. This ground does not raise a question of law. The contention in this ground of appeal is that, in view of the Tribunal's decision in Oliver , the Tribunal erred in law in determining that there was no evidence that the applicant was suffering from dyslipidaemia as defined in the SoP prior to the clinical onset of the ischaemic heart disease and that the applicant's claim was not supported by factor 6(f). This ground of appeal does not raise a question of law. The Deputy President's findings were open to him on the evidence before him. Oliver does not support the applicant's submission for reasons previously given. Ground 8 The contention in this ground of appeal is that the Tribunal erred in law in determining that it was unnecessary for the Tribunal to consider whether the material before it raised a connection between the ischaemic heart disease and his compulsory National Service in the Army within the meaning of s 120B(3)(a) of the Act. This ground of appeal does not raise a question of law. The Deputy President was not required to consider the matter in s 120B(3)(a) in circumstances where he was satisfied that s 120B(3)(b) had not been met. Oliver and Deledio do not support the applicant's submission for reasons previously given. Ground 9 The contention in this ground of appeal is that the Tribunal erred in law in determining that the decision under review as varied by the Board was affirmed. This ground of appeal does not raise a question of law. Again, Oliver , Deledio and O'Brien do not support the applicant's submissions. Ground 13 This ground of appeal is without content. No particulars are provided as to the test said to have been applied by the Tribunal, the reasons it was the wrong test, the details of the Tribunal's application of the SoPs and the statements made from the bar table. This ground of appeal does not raise a question of law. Reference was made to Oliver , Deledio and O'Brien but, for reasons previously given, those cases do not advance the applicant's submission. Ground 14


case_title: Power v Comcare (1998) 89 FCR 514


case_title: Repatriation Commission v Cornelius [2002] FCA 750


case_title: Repatriation Commission v Deledio [1998] FCA 391 ; (1998) 83 FCR 82

case_text: Commission v Deledio [1998] FCA 391 ; (1998) 83 FCR 82 (" Deledio ") was a decision of the Full Court of this Court. The case concerned the proper approach to the application of s 120(1) and (3) of the Act. By contrast, this case involved the application of s 120(4) and s 120B(3) of the Act. Deledio is therefore of no direct assistance to the resolution of the issues in this case. This statement of the relevant principles is correct: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179 ; (1979) 24 ALR 577 ; Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21 ; (1979) 41 FLR 338. Deledio does not provide support for the applicant's submission. Ground 7 The Deputy President was not required to consider the matter in s 120B(3)(a) in circumstances where he was satisfied that s 120B(3)(b) had not been met. Oliver and Deledio do not support the applicant's submission for reasons previously given. Ground 9 The contention in this ground of appeal is that the Tribunal erred in law in determining that the decision under review as varied by the Board was affirmed. This ground of appeal does not raise a question of law. Again, Oliver , Deledio and O'Brien do not support the applicant's submissions. Ground 13 This ground of appeal is without content. No particulars are provided as to the test said to have been applied by the Tribunal, the reasons it was the wrong test, the details of the Tribunal's application of the SoPs and the statements made from the bar table. This ground of appeal does not raise a question of law. Reference was made to Oliver , Deledio and O'Brien but, for reasons previously given, those cases do not advance the applicant's submission. Ground 14 The contention in this ground of appeal is that the Tribunal erred in law by failing to follow and rely upon the decision of this Court in Deledio . Deledio is not relevant for reasons previously given. Ground 18 Again, this ground of appeal does not raise a question of law, and I agree with the respondent's submission that the Deputy President did not find clinical onset of anxiety disorder in 1973 and therefore there is no proper basis for this contention. Again, Deledio does not support the applicant's submission for the reasons previously given. Ground 24 The contention in this ground of appeal is that the Tribunal erred in law in failing to find that the clinical onset of the applicant's anxiety disorder was 20 August 1973. Again, the applicant makes reference to the fact that the applicant was prescribed Librax on 20 August 1973. This ground of appeal does not raise a question of law. I have previously dealt with the merits of the ground in relation to ground 22. Ground 25


case_title: Repatriation Commission v Hill [2002] FCAFC 192 ; (2002) 69 ALD 581


case_title: Repatriation Commission v O'Brien [1985] HCA 10 ; (1985) 155 CLR 422

case_text: Commission v O'Brien [1985] HCA 10 ; (1985) 155 CLR 422 (" O'Brien ") was a decision of the High Court and it involved the interpretation of s 47(2) of the Repatriation Act 1920 (Cth) which subsection provided for a test of whether the determining body was satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim. An observation by Gibbs CJ, Wilson and Dawson JJ (at 430) on the facts of that case (upon which the applicant relied) is of no assistance to the resolution of the issues in this case. Ground 1 The contention in this ground of appeal is that the Tribunal had no jurisdiction or power to make a determination with respect to the applicant's "previously accepted compensable defence-caused duodenal ulcer" where neither the respondent nor the Board had made a determination with respect to that matter. The Deputy President's finding was as follows: "In summary, the SoP does not uphold the contention that the ulcer was, on the balance of probabilities, connected with Mr Kowalski's service, and I am not satisfied that his duodenal ulcer arose out of or was attributable to his eligible defence service, or that it would not have occurred but for that service." The contention in this ground of appeal is that the Tribunal erred in law in determining that the decision under review as varied by the Board was affirmed. This ground of appeal does not raise a question of law. Again, Oliver , Deledio and O'Brien do not support the applicant's submissions. Ground 13 This ground of appeal is without content. No particulars are provided as to the test said to have been applied by the Tribunal, the reasons it was the wrong test, the details of the Tribunal's application of the SoPs and the statements made from the bar table. This ground of appeal does not raise a question of law. Reference was made to Oliver , Deledio and O'Brien but, for reasons previously given, those cases do not advance the applicant's submission. Ground 14


case_text: Next, the applicant contends that the Tribunal erred in failing to take into account the possibility that the applicant's human rights could be violated. He says that the Tribunal failed to consider whether, in cancelling his visa, the applicant would be taken to a detention centre and would be subjected to arbitrary detention. He says that the Tribunal should have taken into account the possibility that cancellation of his visa would have exposed him to a violation of Australian domestic criminal law, namely, arbitrary detention. There is no substance in this ground, in my view. It is precluded by the decision of the High Court in Al-Kateb v Godwin [2004] HCA 37 ; (2004) 219 CLR 562. 22 That brings me to the second ground, namely, the question of whether or not the Tribunal misdirected itself in the approach that it took. In order to deal with this ground, it is necessary to say something more about the Tribunal's reasons. 23 The Tribunal began by describing the applicant briefly, and referring to the decision of the delegate and the hearing before the Tribunal. The Tribunal then stated the issues in the case as follows: (1) whether the applicant passes the character test, given his substantial criminal record; and (2) if not, whether the Tribunal should exercise its discretion to set aside or affirm the decision made by the delegate to cancel the applicant's visa. It may be significant that the Tribunal characterised the issue as whether it should exercise a discretion to set aside or affirm the decision. In a sense, that is unexceptionable in so far as the Tribunal, once it has made a decision, must either set aside, affirm, or vary the decision. However, the review of a delegate's decision by the Tribunal involves the Tribunal standing in the shoes of the Minister, so to speak, and exercising de novo the discretion that is conferred by section 501.


case_text: The question is whether the Tribunal wrongly interpreted s 501(2) as conferring a discretion not to cancel a visa as distinct from conferring a discretion to cancel the visa. Section 501(2) is permissive. It confers a power to cancel a visa in the exercise of the Minister's discretion, or, in the present case, the Tribunal's discretion. There is a difference between power and obligation. The question is whether the Tribunal considered that the section obliged it to cancel the applicant's visa, unless it was satisfied that it should not cancel the visa (see Ross v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1716 ; 107 FCR 1 at [27] to [29], and Doukmak v Minister for Immigration and Multicultural Affairs [2001] FCA 1821 ; 114 FCR 432 at [50] and [51]).


case_title: Evans v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 180

case_text: Next, in relation to this ground, the applicant appears to advance a contention that having regard to the provisions of s 201 , the use of s 501 is for an improper use or an act of bad faith. The applicant says that, by slavishly following policy, and applying s 501 in matters where s 201 could apply, there has been an error in so far as discretionary power has been exercised in accordance with a rule or policy without regard to the merits of the applicant's case, and without availing the applicant of a process by which he could convince the decision-maker to consider his matter under s 201. I consider that this argument is precluded by the decision of the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50 ; (2006) 230 ALR 370: see also Evans v Minister [2006] FCAFC 180.


case_text: The Tribunal then referred to s 501 , saying: "The Minister may cancel a visa if the holder does not satisfy the Minister that the person passes the character test." That statement is also unexceptionable. The question, however, is whether the Tribunal did, in fact, approach the exercise of discretion from the right direction. Doubt is cast on that matter by that part of the Tribunal's reasons in which it deals with the application of the law and findings of fact. The Tribunal repeats that the first issue for it to decide is whether, pursuant to ss 501(6)(a) and 501 (7), the applicant passes the character test, having regard to his substantial criminal record. The Tribunal observes, citing authority of the Full Federal Court, that the character test requires an objective consideration of the applicant's enduring moral qualities, but that that does not require the applicant to meet the highest standards of integrity. This issue is whether any deficiencies in his character are such that it is in the public good to refuse the visa (see Goldie v Minister for Immigration and Multicultural Affairs 56 ALD 321 at [8] and [24]). The Tribunal then went on to say that, on the other hand, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness. 25 The Tribunal then purports to state the second stage of its decision-making process, and says, relevantly, as follows: "Secondly, I am required to have regard to Part 1 of Direction 21 as a guide to the application of the character test. If I decide that the applicant does not pass the character test, I must consider whether to exercise the discretion in s 501(1) not to cancel the applicant's visa, notwithstanding that the applicant does not pass the character test. In so doing, I must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion." 26 The Tribunal then observed that the applicant in the present case failed the character test because of his substantial criminal record, and observed that there were no mitigating circumstances, but that, on the contrary, the record was aggravated by the presence of offences committed while on bail. The Tribunal then said: "I must therefore consider whether to exercise my discretion under 501(2) to decide, nevertheless, whether not to cancel the applicant's visa. In exercising that discretion, the Tribunal has regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations." 27 The Tribunal then went on to deal in some detail with each of the primary considerations that are set out in Direction No 21. After dealing with protection of the Australian community, the Tribunal said: "To set aside the decision under review in the case of an unrehabilitated offender with such a serious record during his eight years in Australia would, in my view, send entirely the wrong message to other non-citizens contemplating criminal behaviour." 28 At the end of the section dealing with the expectations of the Australian community the Tribunal said: "The community would be likely to take the view that there is a limit to how far further chances can be offered to a repeat offender, and the applicant has crossed it. Community expectations would clearly favour visa cancellation in this case." 29 The third primary consideration, the best interests of the child, has no relevance in the present case. After having regard to the other considerations that are specified in Direction No 21, the Tribunal concluded as follows: "The primary considerations of community protection and expectations outweigh the other considerations in this case. The decision under review is affirmed."


case_title: Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50 ; (2006) 230 ALR 370


case_title: Ross v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1716 ; 107 FCR 1


case_text: The applicant also advanced a contention that the possibility that cancellation of a visa and subsequent removal of a non-citizen may be punitive. However, the exercise of the discretion under s 501 is not directed to the punishment of a visa holder. The possible consequence of deterring other non-citizens from committing similar offences is not an irrelevant consideration in the exercise of the discretion conferred by s 501(2) of the Act, in deciding whether a visa holder should be permitted to remain in Australia, see Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 172 at [44] .


case_text: In Visa International Service Association v Reserve Bank of Australia [2003] FCA 977 ; (2003) 131 FCR 300 at 437-439 [659] - [666] , Tamberlin J admitted evidence of this kind in judicial review proceedings so that the Court was in the position to understand the particular meaning of words used in the specialised area concerned. He applied what Street J had earlier held in Ancher, Mortlock, Murray & Woolley Pty Ltd v Hooker Homes Pty Ltd 2 [1971] NSWLR 278 at 286 that an argumentative process between experts enables the Court to proceed more readily and thus appreciate the relevant issue for decision. It can also illuminate the application of a specialised usage of words in the context.


case_text: I am of opinion that when s 152CR(1)(d) required the Commission, in making a final determination, to take into account Telstra's direct costs of providing access to the ULLS in the manner the Commission proposed, it was required to take that matter into account, together with the other matters referred to in the section, and to give weight to them as a fundamental element in making its decision: The Queen v Toohey; Ex parte Meneling Station Pty Limited [1982] HCA 69 ; (1982) 158 CLR 327 at 333 per Gibbs CJ applying what Mason J had said in Sean Investments 180 CLR at 329 to a section requiring a decision-maker to take a variety of matters into account. Mason J said that the requirement to have regard to a matter meant that it would become a central element for the decision-maker in his considerations: Meneling Station 158 CLR at 338. And, as he later explained in his classic judgment in Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 41, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the Court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising a statutory power. Mason J said that the Court could set aside an administrative decision which had failed to give adequate weight to a relevant factor of great importance, or had given excessive weight to a relevant factor of no great importance, but the preferred ground on which that power was to be exercised was that the decision was "manifestly unreasonable". A person entrusted with a discretion must call his own attention to the matters which he is bound to consider: Peko-Wallsend 162 CLR at 39 per Mason J applying Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 at 228 per Lord Greene MR. 178 In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59 at 76 [73] McHugh and Gummow JJ said that one species of what is known as Wednesbury unreasonableness ( Wednesbury [1948] 1 KB at 230) was identified by Dixon CJ in Klein v Domus Pty Ltd [1963] HCA 54 ; (1963) 109 CLR 467 at 473. There, Dixon CJ said that if it appeared that the dominating or actuating reason for a decision was outside the scope of the purpose of the enactment, that vitiated the supposed exercise of a discretion. Dixon CJ said that the Court looks to the scope and purpose of a provision and what its real object is to determine whether a decision-maker has exercised a discretion in accordance with the purpose of the enactment. However, the Court must approach the exercise from the perspective that the real object of the legislature is to leave the scope for judicial or other officer who is investigating the facts and considering the purpose of the enactment to give effect to his or her view of the justice of the case: see too S20/2002 198 ALR at 75-76 [67]-[70]; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212 at 221 [30] per Gleeson CJ, Gummow and Heydon JJ. A decision which is so unreasonable that it might almost be described as being done in bad faith or so absurd that no sensible person could dream that it lay within the powers of the decision-maker is affected by jurisdictional error: Palme 216 CLR at 221 [30].


case_text: That reasoning dealt with what the Commission had provided in pars 10(f) and (g). But it avoided the real possibility that an inactive service with a soft dial tone might not be an ULLS service at all. Serviceability is one thing, existence another. As Fullagar J observed in Australian Communist Party v The Commonwealth [1951] HCA 5 ; (1951) 83 CLR 1 at 258: "A power to make laws with respect to lighthouses does not authorize the making of a law with respect to anything which is, in the opinion of the law-maker, a lighthouse. A power to make a proclamation carrying legal consequences with respect to a lighthouse is one thing: a power to make a similar proclamation with respect to anything which in the opinion of the Governor-General is a lighthouse is another thing." 173 In the way it was expressed, the Commission's final determination did not adapt the provisions of Code 569, because it presupposed the fundamental matter that an ULLS transfer request had to determine, namely, the existence of an ULLS to transfer. This created a fundamental uncertainty both as to how the final determination should be construed and the methodology for Telstra to follow postulated in par 10. If the presupposition is wrong in respect of a request made by Optus, will Telstra be in breach of the final determination since it can never supply the service over the identified pathway used by the soft dial tone? Alternatively, will Telstra be entitled to reject the request in any event because the omission of essential information in the ULLS transfer request process in cl 11 of Code 569 and or cl 13 of Guideline 587 (namely the ULLS identifier) entitled it to do so? 174 Neither scenario makes the final determination certain. The presupposition takes the place of the processes in cl 11 of Code 569 without establishing that the process in par 10(a) can be applied to a particular line with a soft dial which is not, in fact, an ULLS. And, notwithstanding that par 10(a) treats every request where a soft dial tone is present as an ULLS transfer request, if Telstra can reject each such request because it does not give an ULLS identifier, the process stipulated in the final determination is pointless.


case_text: In my opinion, some of the contentious material was admissible to prove the meaning of technical terms used in the final determination, Code 569 and Guideline 587 (discussed below at Ch 7) in the context of the telecommunications industry: Collector of Customs v Agfa Gevaert Ltd [1996] HCA 36 ; (1996) 186 CLR 389 at 398-399 per Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ. Evidence as to the meaning of technical terms used in an administrative decision is admissible so that the Court is placed in the context of understanding the natural and ordinary meaning of those words as they would be understood by persons familiar with their use: see also Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707 ; (2005) 148 FCR 446 at 566 [458] . Such evidence is capable of establishing that the decision-maker erred in its understanding of the technical matters with which its decision dealt. In Australian Retailers Association 148 FCR at 566 [458], Weinberg J held that such evidence is admissible where an administrative decision is challenged on the ground that the decision-maker lacked jurisdiction to make it because that was dependent on an actual state of facts that did not exist, or the decision-maker based the decision on a finding of a particular fact that did not exist. He said: "If additional evidence is available, in cases reliant upon such grounds, there is no reason in principle why such evidence should not also be admissible where the ground is couched in terms of unreasonableness." 106 A decision-maker must give proper, genuine and realistic consideration to the merits of the case: Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457 ; (1987) 14 ALD 291 at 292 per Gummow J; Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 601 [62] where Spigelman CJ collected the authorities; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 367 [138] per Kirby J; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at 92-93 [212] per Madgwick J, 96 [229] per Conti J; SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 at [39] , [60] where I applied this principle. In Tickner v Chapman (1995) 57 FCR 451 at 462C-D, Black CJ said that where a decision-maker was required to consider material, the process of consideration "... involves an active intellectual process" directed at the nominated subject-matter: see too per Burchett J at 476F-477E, per Kiefel J at 495F-G and Tobacco Institute of Australia v National Health & Medical Research Council (1996) 71 FCR 265 at 277G per Finn J; Australian Retailers Association 148 FCR at 577 [526] per Weinberg J.


case_text: Optus argued that the proper construction of par 10(a) required an assumption that the requirements of cl 11.4 of Code 569 were satisfied once the conditions set out in par 10(a) were met. In other words Optus argued that the final determination required Telstra to treat the provision of the information specified in par 10(a) by itself, as an ULLS transfer request with the necessary consequence that Telstra would then process it as if it were valid under cl 11.5 of Code 569. It contended that the final determination should be construed in a practical manner which required "... Telstra to modify its existing procedures to exclude the kind of validation processes that are specific to transfers between access seekers". It referred to the practical approach in construction of instruments enunciated by Lord Reid in Gill v Donald Humberstone & Co Ltd [1963] 1 WLR 929 at 933-934 and applied by Stone J in Australian Tea Tree Oil Research Institute v Industry Research and Development Board [2002] FCA 1127 ; (2002) 124 FCR 316 at 328-329 [37] - [38] ; see too per Stein and Giles JJA in Langton v Independent Commission against Corruption (2000) 49 NSWLR 164 at 167-168 [12]-[13]. Lord Reid had said that instruments which were addressed to practical people skilled in a particular trade or industry ought be construed in light of practical considerations rather than by a meticulous comparison of the language of their various provisions of the kind appropriate for the construction of a statute.


case_text: In Avon Downs Pty Limited v Commissioner for Taxation [1949] HCA 26 ; (1949) 78 CLR 353 at 360 Dixon J discussed judicial review of an administrative decision for which the decision-maker did not have to give reasons. He said: "The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law."


case_text: I am of opinion that par 10(e) could be severed because the rest of the final determination would not operate differently without it: Bank of New South Wales v The Commonwealth [1948] HCA 7 ; (1948) 76 CLR 1 at 371 per Dixon J; Victoria v The Commonwealth (Industrial Relations Act Case) [1996] HCA 56 ; (1996) 187 CLR 416 at 502 per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ. The relevance of par 10(e) is that it confirms the incorrect approach which the Commission took as to the significance of a soft dial tone in par 10(a). Severance of par 10(e) would not make the final determination any more meaningful or give it validity.


case_text: Optus argued that par 10 of the final determination had to be construed in accordance with the principle explained by Dixon J in King Gee Clothing Company Pty Limited v The Commonwealth [1945] HCA 23 ; (1945) 71 CLR 184 at 195 and Cann's Pty Limited v The Commonwealth [1946] HCA 5 ; (1946) 71 CLR 210 at 227-228. Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ in Westfield Management Limited v Perpetual Trustee Company Limited [2007] HCA Trans 367 applied that principle to hold that where it was asserted that one of its terms was uncertain, an instrument or decision made under a statute was not construed as if it were a contract: cp Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd [1968] HCA 8 ; (1968) 118 CLR 429 at 436-437.


case_text: In my opinion, some of the contentious material was admissible to prove the meaning of technical terms used in the final determination, Code 569 and Guideline 587 (discussed below at Ch 7) in the context of the telecommunications industry: Collector of Customs v Agfa Gevaert Ltd [1996] HCA 36 ; (1996) 186 CLR 389 at 398-399 per Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ. Evidence as to the meaning of technical terms used in an administrative decision is admissible so that the Court is placed in the context of understanding the natural and ordinary meaning of those words as they would be understood by persons familiar with their use: see also Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707 ; (2005) 148 FCR 446 at 566 [458] . Such evidence is capable of establishing that the decision-maker erred in its understanding of the technical matters with which its decision dealt. In Australian Retailers Association 148 FCR at 566 [458], Weinberg J held that such evidence is admissible where an administrative decision is challenged on the ground that the decision-maker lacked jurisdiction to make it because that was dependent on an actual state of facts that did not exist, or the decision-maker based the decision on a finding of a particular fact that did not exist. He said: "If additional evidence is available, in cases reliant upon such grounds, there is no reason in principle why such evidence should not also be admissible where the ground is couched in terms of unreasonableness."


case_text: Where a decision-maker must consider matters prescribed by law, generally, he or she cannot jettison or ignore some of those factors or give them cursory consideration only in order to put them to one side: East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission [2007] HCA 44 ; (2007) 233 CLR 229 at 244 [52] per Gleeson CJ, Heydon and Crennan JJ. As Gummow and Hayne JJ, in concurring observed ( East Australian Pipeline 233 CLR at 256 [102]): "It was not enough for the ACCC to say in its final determination that it had considered those matters in the sense of having looked at but discarded them."


case_text: This reflects a fundamental precept of constitutional law. When legislative power is used to create rights or impose liabilities and obligations, one consequence is that the freedom of those affected by the legislation is constrained or expanded by what the law provides. Where the law requires the executive branch of government, such as the Commission, to do something to give effect to the intention of the Parliament, the executive must obey the law, just like every other member of the community, be it a corporation or individual. This is because it is the duty of the executive branch of government to obey the law as laid down by the Parliament and the Courts, even if the executive does not agree with those decisions: The Commonwealth v New South Wales [1923] HCA 23 ; (1923) 32 CLR 200 at 214 per Isaacs, Rich and Starke JJ applying Eastern Trust Co v McKenzie, Mann & Co [1915] AC 750 at 759; see also Tran v Minister for Immigration [2006] FCA 1229 ; (2006) 154 FCR 536 at 540 [9] per myself.


case_text: I am of opinion that while the Commission had taken the provisions of Code 569 and Guideline 587 into account (Reasons [202]), it did not treat Code 569 as providing model terms and conditions covering the ULLS for the purposes of s 152AQB(9). This was because it did not consider that the October 2003 determination included, relevantly, the whole of cl 11 of Code 569 as model terms and conditions. That was a misconstruction or misunderstanding of the purposes of Code 569 and its October 2003 determination in the sense that the Commission did not have regard the whole of to cl 11 as being a determination under s 152AQB(9) but rather had regard to it as a provision of lesser importance. This resulted in the Commission failing to exercise its powers in accordance with s 152AQB(9): cf: Minister for Immigration v Gray [1994] FCA 1052 ; (1994) 50 FCR 189 at 208B-D per French and Drummond JJ; Elliott v Minister for Immigration [2007] FCAFC 22 ; (2007) 156 FCR 559 at 572 [40] - [42] per Ryan, Tamberlin and Middleton JJ. The weight which the Commission accorded Code 569, and in particular cl 11, may have been different and more significant had it had regard to the Code in accordance with s 152AQB(9).


case_text: There is, however, no error of law in a decision simply because the decision-maker made a wrong finding of fact: Enfield City Corporation v Development Assessment Commission [2000] HCA 5 ; (2000) 199 CLR 135 at 154 [44] per Gleeson CJ, Gummow, Kirby and Hayne JJ. In that case, the Court held that evidence was admissible in judicial review proceedings to assist in the determination of a jurisdictional fact, namely, whether a development fell within a statutory description "special industry": see Enfield 199 CLR at 147 [24], 155-156 [50].


case_text: Because s 152CR(1) required it to take into account each of the seven specified factors, the Commission had to give each of them appropriate consideration in arriving at its final determination. The number and variety of factors which a statute requires a decision-maker to take into account or to have regard to in arriving at a decision necessarily affects the weight any one of those factors must be given in the deliberative process. In Sean Investments [1979] HCA 32 ; 180 CLR 322 , the costs were fundamental - or foundational - because they were the only matter which the statute prescribed. The subject matter, scope and purpose of the statutory power provide a context in which to assess the duties it imposes on the decision-maker in any particular situation: cf: Foster v Minister for Customs [2000] HCA 38 ; (2000) 200 CLR 442 at 452 [22] - [23] per Gleeson CJ and McHugh J, Gaudron and Hayne JJ agreeing with their Honours at 454 [32]. 112 Therefore, depending on the facts of a particular arbitration, one or more of the matters in s 152CR(1) may become of greater or lesser weight in the decision-making process. However, as a matter of law, none of the factors, including s 152CR(1)(d), is entitled to a fixed weighting in that process regardless of the subject matter of any arbitration and all other relevant factors: Peko-Wallsend 162 CLR at 41 per Mason J; Foster 200 CLR at 452 [22]-[24] per Gleeson CJ and McHugh J; cf: Telstra [2008] FCA 1436 at [118] per Lindgren J.


case_text: "All reasonable steps" are not "some" step or steps which the Commission thinks are reasonable: cf: George v Rockett [1990] HCA 26 ; (1990) 170 CLR 104 at 112. The ULLS service was a core service described in the Act. The Act provided specifically for the regulation of access to that service. It imposed liabilities on Telstra, among others, to ensure that access was given in accordance with the model terms and conditions (if they were applicable) that the Parliament required be promulgated by the Commission acting with an appropriate degree of urgency and attention to the terms of the Act. The explanatory memorandum was not the law and its stated intention was not reflected in the statutory language. This is particularly important since the Act provides for heavy penalties on those who contravene its requirements.


case_text: Optus argued that the proper construction of par 10(a) required an assumption that the requirements of cl 11.4 of Code 569 were satisfied once the conditions set out in par 10(a) were met. In other words Optus argued that the final determination required Telstra to treat the provision of the information specified in par 10(a) by itself, as an ULLS transfer request with the necessary consequence that Telstra would then process it as if it were valid under cl 11.5 of Code 569. It contended that the final determination should be construed in a practical manner which required "... Telstra to modify its existing procedures to exclude the kind of validation processes that are specific to transfers between access seekers". It referred to the practical approach in construction of instruments enunciated by Lord Reid in Gill v Donald Humberstone & Co Ltd [1963] 1 WLR 929 at 933-934 and applied by Stone J in Australian Tea Tree Oil Research Institute v Industry Research and Development Board [2002] FCA 1127 ; (2002) 124 FCR 316 at 328-329 [37] - [38] ; see too per Stein and Giles JJA in Langton v Independent Commission against Corruption (2000) 49 NSWLR 164 at 167-168 [12]-[13]. Lord Reid had said that instruments which were addressed to practical people skilled in a particular trade or industry ought be construed in light of practical considerations rather than by a meticulous comparison of the language of their various provisions of the kind appropriate for the construction of a statute. 187 Optus argued that the Commission should not be taken to have required the parties to engage in a pointless exercise of submitting a Vacant ULLS request in circumstances where it was already known that they should be rejected. It pointed to the necessity to construe the words of par 10(e) in a way that gave them a practical operation consistent with the intention of the Commission: Gill [1963] 1 WLR at 933-934 per Lord Reid. 188 Optus argued that the Commission was concerned to specify a practical means of identifying and connecting a particular line to a customer's premises. It said that that par 10(e) read together with par 10(a) showed that the existence of a soft dial tone indicated an existing continuous connection on a particular line from the customer's apartment with an MDU to the exchange. It contended that the practical utility of this was to enable Telstra, when provided with the other information in par 10(a), to identify the particular line in place and allow for connecting (jumpering) Optus' equipment to occur at the exchange without the need for technicians to visit the apartment building to connect a different pair of copper wires to the customer's premises. Optus argued that par 10(e) applied to situations other than those in par 10(a), namely that there was no soft dial tone so that it was not possible to identify an existing continuous connection. 189 While these submissions of Optus recognised the practical operation of the final determination, they pointed to the fact that it did not operate on an ULLS connection, but rather in respect of a presupposed situation where there either was an ULLS (par 10(a)) or there was no ULLS (par 10(e)). That was the very difficulty of which Telstra complained. The drafting of par 10 was inapt to specify terms and conditions for ordering and provisioning a communications wire or ULLS in a practical or intelligible fashion. The Commission's power was conferred to enable it to regulate a declared service, such as the ULLS, not to regulate something else. The Commission's powers under Part XIC of the Act to determine access to the declared service, being the ULLS, did not extend to determining matters where no ULLS existed as contemplated in par 10(e). I am of opinion that the Commission exceeded its jurisdiction by including par 10(e) in its final determination.


case_text: Telstra argued that par 10 fails to specify terms and conditions with reasonable precision or in such a way that both Telstra and the Court can determine whether a particular request by Optus must be dealt with in a certain, identified way: cf: Herald-Sun TV Pty Ltd v Australian Broadcasting Tribunal [1985] HCA 32 ; (1985) 156 CLR 1 at 4 per Gibbs CJ, Mason, Wilson, Deane and Dawson JJ. Telstra contended that par 10 was "... so vaguely expressed that either its meaning or its application is a matter of real uncertainty ..." and so was not "... reasonably certain", using the words of Kitto J in Television Corporation Ltd v The Commonwealth [1963] HCA 30 ; (1963) 109 CLR 59 at 70. Kitto J said there that the latter concept included both certainty of expression and certainty in operation.


case_text: A decision-maker must give proper, genuine and realistic consideration to the merits of the case: Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457 ; (1987) 14 ALD 291 at 292 per Gummow J; Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 601 [62] where Spigelman CJ collected the authorities; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 367 [138] per Kirby J; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at 92-93 [212] per Madgwick J, 96 [229] per Conti J; SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 at [39] , [60] where I applied this principle. In Tickner v Chapman (1995) 57 FCR 451 at 462C-D, Black CJ said that where a decision-maker was required to consider material, the process of consideration "... involves an active intellectual process" directed at the nominated subject-matter: see too per Burchett J at 476F-477E, per Kiefel J at 495F-G and Tobacco Institute of Australia v National Health & Medical Research Council (1996) 71 FCR 265 at 277G per Finn J; Australian Retailers Association 148 FCR at 577 [526] per Weinberg J.