case_text: Experience shows that, in cases like the present one, it is not really practicable to separate out the leave issue of whether there the decision below is "attended with sufficient doubt" from the substantive merits. Often the merits of the proposed appeal are argued no less fully than would have been the case were leave not an issue: Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2008] FCAFC 133 at [28] . 14 It would seem to be a very inefficient and wasteful course for there to be a separate hearing before a single judge, and if leave were granted, a subsequent hearing before a Full Court. Notwithstanding the complexity of the matter which resulted in, I am told, written submissions of some 40 pages on each side, his Honour disposed of the hearing in less than a day. One would expect that a Full Court dealing with the leave application would be able to deal with the hearing of the matter in a similar time. 15 Related to the question of efficiency is the matter of timing. There is a possibility, although it certainly cannot be guaranteed, that the leave application and appeal could be heard before a Full Court in either the first week or the last week of the coming November sittings. However, these sittings are already extremely full. Alternatively, and still less is this the subject of any promise, a Full Court might be convened before November. 16 If the application for leave were to be heard before a single judge, the hearing may not occur immediately and the judge might have to reserve his or her decision. While of course if leave were refused that would be the end of the matter, if leave were granted the passage of time may have made it impossible to secure a hearing date for the appeal in the November sittings or earlier. In the meantime, the parties would have to go ahead with their preparations for the US trial which conceivably could be heard before the hearing and disposition of the appeal. 17 I think that in all the circumstances the most efficient and fairest course is to order that the application for leave to appeal be heard by a Full Court.


case_outcome: cited

case_text: about the same time that Meltend 75 FCR 511 was decided, Hunt CJ at CL in New South Wales also reviewed the authorities in some detail in Director of Public Prosecutions (Commonwealth) v Kane (1997) 140 FLR 468. That judgment provides support for the view that a document sent inadvertently or mistakenly would not be disclosed voluntarily within the meaning of s 122 , particularly if the hypothetical reasonable solicitor would have realised that it had been sent by mistake. Not long afterwards, Sackville J said something similar in BT Australasia Pty Ltd v State of New South Wales (No 8) (1998) 154 ALR 202 at 208 209. The authorities have again recently been reviewed by Harper M in the Supreme Court of the Australian Capital Territory in ACTEW Corp Ltd v Mihaljevic [2007] ACTSC 39 and Willett v Belconnen Soccer Club Ltd [2007] ACTSC 41. In both cases his Honour followed Meltend 75 FCR 511. Pagone J of the Victorian Supreme Court did the same in Body Corporate No 413424R v Sheppard [2007] VSC 179.


case_text: with that apparent conflict between judges of the Court, in the time available I endeavoured to see what has happened in other courts. That exercise has further confused the picture. For example, counsel for the applicant relied heavily upon the decision of Austin J in Sovereign Motor Inns Pty Ltd v Bevillesta Pty Ltd [2000] NSWSC 521 in which privilege was maintained, notwithstanding inspection of the document by the other side. On the other hand, Austin J considered a similar question in Australian Securities and Investments Commission v Rich [2004] NSWSC 934 and held that disclosure of documents which could be described as inadvertent, in a situation not unlike the present, was held to be knowing and voluntary pursuant to s 122(2) of the Act without reference to his decision in Sovereign Motor Inns [2000] NSWSC 521. The question is further complicated where the opposing party actually has a copy of the document in his possession available to be used.


case_title: Body Corporate No 413424R v Sheppard [2007] VSC 179


case_outcome: considered

case_title: Boensch v Pascoe [2007] FCA 532

case_text: of client legal privilege for relevant purposes is governed by s 122 of the Act. Section 122(2) involves a party knowingly and voluntarily disclosing to another person the substance of the evidence. Section 122(4) deals with the substance of the evidence having been disclosed with the express or implied consent of the party to another person. Counsel for the applicant submitted that I should follow the decision of Jacobson J in Boensch v Pascoe [2007] FCA 532 where his Honour held (at [38]): "An inadvertent or unintentional act will not be sufficient to amount to waiver." I would normally follow such a recent and considered decision of a judge of the Court. However, the other authorities to which I was referred by counsel drew attention to the decision of Goldberg J in Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 75 FCR 511, to which Jacobson J was apparently not referred, in which Goldberg J made a detailed analysis of the statutory provisions and the authorities and concluded that mere inadvertence or unintentional disclosure in itself is not sufficient to maintain privilege particularly where documents have been inspected.


case_title: BT Australasia Pty Ltd v State of New South Wales (No 8) (1998) 154 ALR 202


case_title: Director of Public Prosecutions (Commonwealth) v Kane (1997) 140 FLR 468


case_text: of client legal privilege for relevant purposes is governed by s 122 of the Act. Section 122(2) involves a party knowingly and voluntarily disclosing to another person the substance of the evidence. Section 122(4) deals with the substance of the evidence having been disclosed with the express or implied consent of the party to another person. Counsel for the applicant submitted that I should follow the decision of Jacobson J in Boensch v Pascoe [2007] FCA 532 where his Honour held (at [38]): "An inadvertent or unintentional act will not be sufficient to amount to waiver." I would normally follow such a recent and considered decision of a judge of the Court. However, the other authorities to which I was referred by counsel drew attention to the decision of Goldberg J in Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 75 FCR 511, to which Jacobson J was apparently not referred, in which Goldberg J made a detailed analysis of the statutory provisions and the authorities and concluded that mere inadvertence or unintentional disclosure in itself is not sufficient to maintain privilege particularly where documents have been inspected. At about the same time that Meltend 75 FCR 511 was decided, Hunt CJ at CL in New South Wales also reviewed the authorities in some detail in Director of Public Prosecutions (Commonwealth) v Kane (1997) 140 FLR 468. That judgment provides support for the view that a document sent inadvertently or mistakenly would not be disclosed voluntarily within the meaning of s 122 , particularly if the hypothetical reasonable solicitor would have realised that it had been sent by mistake. Not long afterwards, Sackville J said something similar in BT Australasia Pty Ltd v State of New South Wales (No 8) (1998) 154 ALR 202 at 208 209. The authorities have again recently been reviewed by Harper M in the Supreme Court of the Australian Capital Territory in ACTEW Corp Ltd v Mihaljevic [2007] ACTSC 39 and Willett v Belconnen Soccer Club Ltd [2007] ACTSC 41. In both cases his Honour followed Meltend 75 FCR 511. Pagone J of the Victorian Supreme Court did the same in Body Corporate No 413424R v Sheppard [2007] VSC 179.


case_title: Sovereign Motor Inns Pty Ltd v Bevillesta Pty Ltd [2000] NSWSC 521


case_title: Willett v Belconnen Soccer Club Ltd [2007] ACTSC 41


case_text: The question, therefore, is whether the failure to consider this issue constituted a failure to consider the whole of the applicant's case. In Commissioner of Taxation (Cth) v Cainero (1988) 15 ALD 368, Foster J said (at 370): 'It could not be suggested that the Tribunal was under any obligation to isolate in its reasons every issue of fact and record a specific finding in respect of each of them. It is obviously sufficient, in light of the cases referred to above, and as a matter of common sense, that a sufficient compliance with the requirement of considering all issues of fact and giving adequate reasons occurs when the reasons themselves provide a sufficient indication that the ultimate facts to be decided have been fully kept in mind and that no significant area of primary fact has been ignored.'


case_outcome: referred to

case_text: In relation to this submission, the respondent submits that the Tribunal was not required to consider expressly every matter raised by the applicant: see Minister for Health v Charvid Pty Ltd (1986) 10 ALD 124. Further, the respondent says that the applicant expressly disavowed reliance upon the ground of aggravation before the Tribunal (see the portion of the transcript set out at [8] above), and that accordingly he was not entitled to raise it on appeal, and relies upon Coulton and Ors v Holcombe and Ors [1986] HCA 33 ; (1986) 162 CLR 1 at 7-8.


case_title: Mifsud v Campbell (1991) 21 NSWLR 725

case_text: The applicant says that the Tribunal should have considered the totality of the medical evidence and consider whether it suggested that the applicant had suffered an ' injury ' within the meaning of the SRC Act. The applicant submits that because of the comments in relation to 'aggravation' at the beginning of the hearing, the Tribunal failed to carry out its review of the material before it, and relies upon Mifsud v Campbell (1991) 21 NSWLR 725.


case_outcome: applied

case_text: In relation to this submission, the respondent submits that the Tribunal was not required to consider expressly every matter raised by the applicant: see Minister for Health v Charvid Pty Ltd (1986) 10 ALD 124. Further, the respondent says that the applicant expressly disavowed reliance upon the ground of aggravation before the Tribunal (see the portion of the transcript set out at [8] above), and that accordingly he was not entitled to raise it on appeal, and relies upon Coulton and Ors v Holcombe and Ors [1986] HCA 33 ; (1986) 162 CLR 1 at 7-8. 57 In these circumstances, and even having taken into account the fact that the applicant was unrepresented, I consider that the evidence was insufficient to raise this question as a real issue in the proceedings. In coming to this conclusion, I bear in mind the observations of Woodward J in Charvid , where his Honour said (at 129): 'Counsel relied ... on s 43 of the Administrative Appeals Tribunal Act 1975 , which requires the Tribunal to give reasons for its decision, which, if in writing, "shall include its findings on material questions of fact and a reference to the evidence ... on which those findings were based". Arising from this requirement, it is to be assumed that any matters not dealt with in the Tribunal's reasons must have been found to be not material to its decision: Sullivan v Department of Transport (1978) 1 ALD 383; 20 ALR 323 at 353. There could, however, be two reasons for a matter raised in the hearing not being dealt with in the decision. It could be that the Tribunal took the view that, whatever the state of the evidence, the matter was not important or "material" to the issues which it had to determine; or it could be that, although the matter was potentially important, the evidence on it was so skimpy or uncertain that no useful conclusion could be drawn. The Tribunal need not attempt, in its reasons, to deal with every matter which has been covered by evidence before it, or even every matter dealt with in counsel's arguments. The requirement of s 43 is, in my view, that the Tribunal should deal with all the matters which it is bound by relevant legislation to consider, or which it has found persuasive, or which have been urged upon it and would have been persuasive had they been established by the evidence: Steed v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 126; 37 ALR 620 at 621.'


case_text: The respondent submits that the applicant is intelligent and was competent in the presentation of his claim before the Tribunal, which are factors to be taken into consideration by the Tribunal and the Court: see Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85 ; (1999) 84 FCR 438. 41 The further amended supplementary notice of appeal contains five questions of law to be determined by this appeal (see at [33] above). However, I consider that in fact the appeal raises two real issues. The first issue, which corresponds to the second and third question of law, relates to whether the Tribunal erred in determining that the appellant could not have suffered a subclinical compression fracture during his period of army service. 42 The second issue, which corresponds to the first, fourth and fifth question of law, relates to the question whether the Tribunal considered the totality of the evidence, and in particular, whether the Tribunal erred by confining itself to propositions (a), (b) and (c) (reproduced at [9] above). Related to this issue is the submission that the Tribunal unjustifiably narrowed the scope of its inquiry because of the conversation with the applicant at the outset of the hearing. 52 The issue of assistance to be provided to unrepresented litigants was further considered by the Full Federal Court in Minogue v Human Rights and Equal Opportunity Commission . The Court there observed (at [27]): 'In Abram v Bank of New Zealand [1996] ATPR 42340 at 42347, a Full Federal Court, faced with an unrepresented litigant's claim that the trial judge had not given him appropriate assistance to present his case, made this comment: "What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant's intelligence and understanding of the case." We respectfully agree with this observation. Because the duty of the judge varies according to the factors identified by the Full Court in Abram , the duty to assist an unrepresented accused in criminal proceedings is likely to be more extensive than that imposed on a judge hearing civil proceedings in which one or more of the parties are not legally represented ...' 53 The Full Court in Minogue then referred to the decision of Rajski, in which Mahoney JA observed (at 22-3 of his Honour's reasons): 'Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done.'


case_text: The issue of assistance to be provided to unrepresented litigants was further considered by the Full Federal Court in Minogue v Human Rights and Equal Opportunity Commission . The Court there observed (at [27]): 'In Abram v Bank of New Zealand [1996] ATPR 42340 at 42347, a Full Federal Court, faced with an unrepresented litigant's claim that the trial judge had not given him appropriate assistance to present his case, made this comment: "What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant's intelligence and understanding of the case." We respectfully agree with this observation. Because the duty of the judge varies according to the factors identified by the Full Court in Abram , the duty to assist an unrepresented accused in criminal proceedings is likely to be more extensive than that imposed on a judge hearing civil proceedings in which one or more of the parties are not legally represented ...' 59 Certainly, if it had been squarely raised as a material issue by the evidence (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 219 ALR 27 at [58] ), the Tribunal would have been required to consider whether the applicant had suffered an aggravation without suffering a fracture even if the applicant had not raised the issue. However, as outlined above, there was no recent or detailed medical opinion which supported the claim which the applicant now seeks to make. Brief references in dated medical reports were not sufficient to determine the issue in his favour. In these circumstances, the fact that the applicant was unrepresented was not enough to oblige the Tribunal to investigate the issue further. 60 I note the applicant's submission that the Tribunal improperly confined itself as a result of its question to the applicant at the outset of the hearing. I agree that, in the circumstances, if the Tribunal had in fact improperly confined itself, it would have been unfair of the Tribunal to rely upon the applicant's statement that he was not claiming aggravation to restrict its consideration of the issues. The applicant's statement was made in response to a question from the Tribunal. That question effectively asked the applicant to confine his claim, when there would have been no apparent advantage to him (and, in fact, a distinct disadvantage) in doing so. There was no indication from the transcript that the applicant understood the significance of the statement he was making, or that he could make submissions in the alternative. Without intending any criticism, I note that there is no suggestion in the transcript that this possibility was explained to him by the Tribunal or by counsel for the respondent. When an applicant is unrepresented, I do not consider that a Tribunal should exclude from its consideration a matter which is raised as a material issue by the evidence because an unrepresented party has agreed to do so, unless it is clear that the unrepresented party understands the implications of confining his or her claim. 61 However, as referred to above, I do not consider that the Tribunal failed to consider any material issue. The claim now pressed by the applicant was not a material issue before the Tribunal. Whilst it may have been possible for the applicant to have made a claim of the nature which he is now suggesting, it was not a claim which he made to the Tribunal, nor was it raised as a material issue by the evidence before the Tribunal. Accordingly, this ground of appeal must also fail.


case_text: It is a well-recognised principle that a tribunal (or a court) has a particular duty towards unrepresented applicants who appear before it. The High Court in Neil v Nott [1994] HCA 23 ; (1994) 68 ALJR 509 observed at 510 that: 'A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.'


case_text: The respondent rejects the submission that the Tribunal 'manoeuvred' the applicant into a disadvantageous position. The respondent says that the applicant at no time requested assistance or guidance, and does not make any complaint that he was prevented from presenting his claim in the manner in which he intended. The Tribunal was merely refraining from interfering in the applicant's case: see Sullivan at 342-3. The respondent says that it was not incumbent upon the Tribunal to frame the applicant's claim on his behalf, and to have done so would have contravened the impartiality and neutrality which are vital to fairness between the parties: see Rajski and Anor v Scitec Corporation Pty Ltd (unreported, Court of Appeal of New South Wales, 16 June 1986). 53 The Full Court in Minogue then referred to the decision of Rajski, in which Mahoney JA observed (at 22-3 of his Honour's reasons): 'Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done.' 54 I note also the observations of Samuels JA in Rajski with respect to the limits upon the assistance that a court or tribunal should provide to an unrepresented litigant. His Honour observed (at 6 of his Honour's reasons): 'In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent.' 55 I have set out above the medical evidence which was before the Tribunal at the time it made its decision. Much of that evidence relates to whether the applicant exhibited vertebral fractures. However, several medical experts linked the applicant's degenerative spinal change to his roping and climbing activities without specifically identifying vertebral fractures: see the reports of Dr Bull, Dr Millar, Dr Ness and Dr Garrick and the 1990 report of Professor Sambrook. The reports of Dr Cameron and Dr Billett, as well as the evidence of Dr Maxwell and Dr McGill, contradict the claim that the applicant's spondylosis was aggravated by his activities. 56 Some of the reports which formed part of the applicant's medical history raised the possibility that his spinal degeneration could be exacerbated without him having suffered a fracture. However, the evidence relating to this possibility was scant and derived from various medical reports which were part of the background to the applicant's claim, rather than the main portion of his medical evidence. Many of those reports were brief reports which were many years old. Despite the fact that the existence of compression fractures was clearly in dispute, none of the recent evidence of Professor Sambrook suggested that the applicant could have suffered an aggravation of his spondylosis even if the fractures did not exist. Further, the respondent's medical experts gave evidence that the applicant's condition was the result of normal degeneration, which is inconsistent with the position now pressed by the applicant. In these circumstances, the references in his medical reports mentioned above would have been insufficient, without further evidence, for the Tribunal to have made a finding that the applicant's spondylosis had been aggravated by his service without him having suffered a compression fracture.


case_title: Re Martin and Commonwealth (1983) 5 ALD 277


case_text: In Riordan v Australian Sports Drug Agency [2002] FCA 858 ; (2002) 120 FCR 424, Gray J said at [50]: 'The extent to which the Tribunal is obliged to be proactive is a difficult question. It is possible to have considerable sympathy with the proposition that the Tribunal is obliged only to determine the issues placed before it by the parties. It must be recognised, however, that at least in some circumstances, the Tribunal is obliged to look at issues that are not raised directly. It can only do so, however, if those issues are apparent on the material before it.'


case_text: The applicant responds that in view of the fact that he was unrepresented, it was unfair of the Tribunal to ask him whether he was claiming aggravation. That issue was essentially a medico-legal issue and the applicant, who had neither medical nor legal training, may have been unaware of the legal implications of his answer. The applicant points to the fact that the claim of aggravation had been before the original decision-maker, and that under s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal has the power to inform itself as it thinks appropriate. The applicant says that, if the Tribunal confined itself because of the applicant's answer to this question, the Tribunal failed to afford procedural fairness to the applicant, and relies upon Sullivan v Department of Transport (1978) 20 ALR 323 at 342-3 per Deane J. 39 The respondent rejects the submission that the Tribunal 'manoeuvred' the applicant into a disadvantageous position. The respondent says that the applicant at no time requested assistance or guidance, and does not make any complaint that he was prevented from presenting his claim in the manner in which he intended. The Tribunal was merely refraining from interfering in the applicant's case: see Sullivan at 342-3. The respondent says that it was not incumbent upon the Tribunal to frame the applicant's claim on his behalf, and to have done so would have contravened the impartiality and neutrality which are vital to fairness between the parties: see Rajski and Anor v Scitec Corporation Pty Ltd (unreported, Court of Appeal of New South Wales, 16 June 1986). 57 In these circumstances, and even having taken into account the fact that the applicant was unrepresented, I consider that the evidence was insufficient to raise this question as a real issue in the proceedings. In coming to this conclusion, I bear in mind the observations of Woodward J in Charvid , where his Honour said (at 129): 'Counsel relied ... on s 43 of the Administrative Appeals Tribunal Act 1975 , which requires the Tribunal to give reasons for its decision, which, if in writing, "shall include its findings on material questions of fact and a reference to the evidence ... on which those findings were based". Arising from this requirement, it is to be assumed that any matters not dealt with in the Tribunal's reasons must have been found to be not material to its decision: Sullivan v Department of Transport (1978) 1 ALD 383; 20 ALR 323 at 353. There could, however, be two reasons for a matter raised in the hearing not being dealt with in the decision. It could be that the Tribunal took the view that, whatever the state of the evidence, the matter was not important or "material" to the issues which it had to determine; or it could be that, although the matter was potentially important, the evidence on it was so skimpy or uncertain that no useful conclusion could be drawn. The Tribunal need not attempt, in its reasons, to deal with every matter which has been covered by evidence before it, or even every matter dealt with in counsel's arguments. The requirement of s 43 is, in my view, that the Tribunal should deal with all the matters which it is bound by relevant legislation to consider, or which it has found persuasive, or which have been urged upon it and would have been persuasive had they been established by the evidence: Steed v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 126; 37 ALR 620 at 621.'


case_text: when faced with a claim such as the present, which centres upon an allegation of long standing and insidious anti-Semitism, and which the husband contended was still prevalent in Latvia, the Tribunal was bound to consider that claim. It had to consider each incident of alleged discrimination, not merely in isolation, but also in conjunction with the others. It had to consider the "totality of the case put forward": Khan v Minister for Immigration and Multicultural Affairs [2000] FCA 1478 per Katz J (at [31]), cited with apparent approval by Merkel J in VTAO v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332 (" VTAO ") (at [62]). In doing so it had also to consider each of the "integers" of the claim: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 (at 259). An act that might seem capable of innocent explanation when viewed discretely can take on a different and more sinister connotation when viewed against a broader background.


case_title: Khan v Minister for Immigration and Multicultural Affairs [2000] FCA 1478


case_text: failure on the part of the Tribunal to consider a claim that is in fact advanced and properly supported by the material before the Tribunal is capable of giving rise to jurisdictional error. It amounts to a constructive failure to exercise jurisdiction: R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30 ; (1933) 50 CLR 228 per Rich, Dixon and McTiernan JJ (at 242-243) and Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 at 81-83 per Gaudron J. See also Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 ; (2001) 106 FCR 426 (at [78]). This has nothing to do with merits review. It is rather a failure on the part of the Tribunal to discharge its statutory duty. Counsel for the Minister conceded as much. In my opinion, the Tribunal constructively failed to exercise jurisdiction in this case.


case_text: it must be remembered that the list does not constitute a definition of "serious harm". That expression plainly has a residual meaning beyond the examples given, though that meaning is informed by those examples. See generally NBFP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 95.


case_title: R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30 ; (1933) 50 CLR 228


case_title: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57


case_text: the Tribunal in the present case did not consider whether the husband's claims, considered cumulatively , could amount to "serious harm". Whether those claims in fact rise to that level, bearing in mind that we are dealing with the future, and not the past, is a matter for the Tribunal, and not for this Court. See SZBOV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1407 per Jacobson J (at [19]). Given that the point is arguable, I consider that the matter should be remitted to the Tribunal to be determined according to law. It follows for the reasons set out above that the appeal should be allowed. The orders of the Federal Magistrate dismissing the application for review, and ordering the appellants to pay costs, should be set aside. In lieu thereof, a writ of certiorari should issue directed to the Tribunal, quashing its decision. A writ of mandamus should also issue directing that the matter be heard and determined according to law. The appellants should have their costs, if any, of the proceeding before the Federal Magistrates Court. They are entitled also to have their costs, if any, of the appeal to this Court. I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg. Associate: Dated: 18 August 2006 The First Appellant appeared in person on behalf of all Appellants Counsel for the First Respondent: Mr R Knowles Solicitors for the First Respondent: Clayton Utz Date of Hearing: 2 May 2006 Date of Judgment: 18 August 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1095.html


case_outcome: discussed

case_text: when faced with a claim such as the present, which centres upon an allegation of long standing and insidious anti-Semitism, and which the husband contended was still prevalent in Latvia, the Tribunal was bound to consider that claim. It had to consider each incident of alleged discrimination, not merely in isolation, but also in conjunction with the others. It had to consider the "totality of the case put forward": Khan v Minister for Immigration and Multicultural Affairs [2000] FCA 1478 per Katz J (at [31]), cited with apparent approval by Merkel J in VTAO v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332 (" VTAO ") (at [62]). In doing so it had also to consider each of the "integers" of the claim: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 (at 259). An act that might seem capable of innocent explanation when viewed discretely can take on a different and more sinister connotation when viewed against a broader background. It is possible that individual instances of discrimination will not of themselves amount to "serious harm", but when considered cumulatively satisfy the requirements of s 91R. See, for example, VTAO , where Merkel J took a similar approach. In that case his Honour found, just as I have done, that the Tribunal's failure to consider a series of claims cumulatively gave rise to a constructive failure to exercise jurisdiction.


case_text: The Tribunal is not required to conduct the proceedings as if they were a Court hearing: see SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 49 ; (2006) 229 ALR 423 at 425 per Gleeson CJ, delivering the decision of the High Court of Australia said: The procedure of review is inquisitorial, and does not involve an adversarial trial, at which evidence is adduced and tested, and issues are debated. There are no parties. The tribunal investigates an applicant's claims in a process of administrative merits review of the delegate's decision. For similar observations see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 164 [40]; Abebe v The Commonwealth of Australia [1999] HCA 14 ; (1999) 197 CLR 510 at 576 [187] ; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57]; Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128 at [52] .


case_text: The Tribunal did not accept that the appellant did not know of the interview on 7 May 2003 between Australian Embassy officials in Beijing and the appellant's wife. Lloyd-Jones FM noted the evidence upon which the Tribunal could reach such conclusion, which included the sponsorship of the wife and child by the appellant. Contrary to the claim of the appellant, there was sufficient factual circumstances to warrant the inference by the Tribunal in making such finding: see Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 356; Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141 at [34]-[35]; Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222 at 232-233, 236, 240 and 259; VAAW of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 202 at [33] - [35] . Further, the Court accepts the submissions of the Minister that such finding does not bear on the Tribunal's conclusion that the appellant's political activities in Australia were not bona fide.


case_title: Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141


case_title: Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222


case_outcome: followed

case_text: The Tribunal found that the appellant engaged in the conduct for the purpose of strengthening his claim to be a refugee. As such, s 91R(3) of the Act applies and the Tribunal was entitled, having made such findings of fact, to determine that the conduct was not bona fide. The factual findings of the Tribunal thus operate to exclude the hypothesis proposed by the appellant. Further, s 91R(3) of the Act creates a reversal of onus of proof, which the appellant did not discharge: see NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1536 at [26] which was approved in SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 at [39] .


case_title: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437


case_title: Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128


case_text: The process by which the Tribunal reached its conclusions was the same as that considered by Mansfield J in SAAS v Minister for Immigration and Multicultural Affairs [2002] FCA 726 ; (2002) 124 FCR 182 at [52] - [57] which was later upheld on appeal: see SAAS of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 340 at [15] . The Court can find no error in the findings of Lloyd- Jones FM.


case_title: SAAS of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 340


case_title: SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129


case_title: SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 49 ; (2006) 229 ALR 423


case_title: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152


case_text: The fourth ground of appeal contended that the Tribunal breached its obligation to hear and determine the application and had breached s 424A of the Act. The appellant relied upon the transcript of the Tribunal hearing, noting in particular that the Tribunal questioned a witness relating to his impartiality. The appellant claimed that the issue of impartiality was not translated by the interpreter. His Honour found that there was no evidence to support such claim. His Honour referred to Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 in finding that the Tribunal's view of the impartiality of a witness is part of the Tribunal's reasoning process and does not constitute information within the meaning of s 424A(1) of the Act. His Honour found that there was no obligation to provide the appellant with particulars of its opinion of the impartiality of a witness and dismissed this ground of appeal. 12 The fifth ground of review arises out of an interview which was held between Australian officials in Beijing and the appellant's wife. The appellant had claimed that he was not married when he obtained his Preferential Relative (Migrant) visa. However, such claim was shown to be false during the subsequent interview with his wife. The Tribunal drew the inference that the details of such interview would have been conveyed to the appellant by the wife. The appellant challenged the drawing of such inference. 13 Lloyd-Jones FM accepted that the Tribunal could draw the inference contained in the fifth ground of review, and that such inference was reasonably open to the Tribunal on the material before it. There was no need for direct evidence of specific communication before such an inference could have been drawn. 28 The assessment of the credibility of a witness is a matter entirely for the determination of the Tribunal: see Tin [2000] FCA 1109 and does not form information for the purposes of s 424A(1) of the Act. The provisions of the Act are an exhaustive statement of the principles of natural justice and there is no scope for the application of any residue common law principles: see s 422B of the Act. 29 There is no error as claimed, and Lloyd-Jones FM was correct in his conclusion that there was no denial of natural justice. 30 The Tribunal accepted that the appellant engaged in some political activities in Australia but found that any such activities were engaged in for the purpose of enhancing his refugee claim. The Tribunal would pay no regard to such activities because they were activities which were excluded pursuant to s 91R(3) of the Act. The appellant submits that s 91R(3) does not exclude the possibility that an applicant may act with more than one purpose, so that if he or she engages in conduct to which s 91R(3) applies, there may be another purpose which has resulted in the conduct. It is alleged that the Tribunal failed to exclude such possibility of more than one purpose in its determination.


case_title: VAAW of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 202


case_text: nature of a certified agreement and the means of enforcement, together with the role of this Court conferred by s 413A, has been the subject of analysis by the Full Court in ACTEW Corporation Ltd v Pangallo [2002] FCAFC 325 , 127 FCR 1. Whitlam and Gyles JJ there observed: [34] The argument that the remedies provided by the Act are inadequate to ensure compliance with a certified agreement and that there should be means for enforcing obligations beyond those specifically provided by this statute is contrary to the history of enforcement of industrial obligations, as explained by Madgwick J in Wattyl. The Act has, for some time, reflected the policy of not specifically enforcing industrial obligations, except insofar as express remedies are provided. In any event, the point loses much of its force when consideration is given to ss 131, 170LT and 170LW. This is not the occasion to explore all of the ramifications of those provisions or to decide what role, if any, the courts have to play in enforcement of such provisions. It is sufficient to say that there is no complaint about the operation of the dispute settling mechanism in this case -- it is the result about which complaint is made. There is no need to call in aid the power of a court to make a declaration of right as to the construction of the agreement as that role is expressly dealt with by s 413A of the Act. [35] ... [W]e accept the submission that the Act has created the concept of a certified agreement, has given it statutory force and has also regulated the means by which it may be construed and enforced in accordance with the principle in Josephson v Walker . In our opinion, the statute excludes a court of general jurisdiction of a State or Territory from the field, except insofar as it is expressly included, and is inconsistent with the ability of such a court to make a binding declaration of right as to the effect of a certified agreement. ... See also: McAleer v University of Western Australia (No 3) [2008] FCA 1490 , 171 FCR 499 per Siopis J at [76].


case_title: Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10 , 222 CLR 241

case_text: 12 of the present Agreement is , like clauses in other industrial instruments, to be " understood in the light of its industrial context and purpose ": Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10 at [2] , [2005] HCA 10 ; 222 CLR 241 at 246 per Gleeson CJ and McHugh J. Such a provision is to " be read in context " and having regard to " the text and operation of the Agreement both as a whole and by reference to other particular provisions made by it ...": [2005] HCA 10 at [30] , 222 CLR at 253 per Gummow, Hayne and Heydon JJ. In the context of an industrial award, Madgwick J (sitting as a judge of the Industrial Relations Court of Australia) in Kucks v CSR Ltd (1996) 66 IR 182 observed at 184: It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand. But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. ... These observations were cited with approval in Amcor Ltd : [2005] HCA 10 per Kirby J at [96] and Callinan J at [129]. See also: Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208 at 212 per Northrop J; Transadelaide v Leddy (No 2) (1998) 80 IR 265 at 271; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ardmona Foods Ltd [2006] FCA 1039 , 155 IR 211 per Ryan J at [26] to [27]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Ltd [2007] FCA 1515 , 168 IR 353 per Gordon J at [42] to [43]; Soliman v University of Technology, Sydney [2008] FCA 1512 , 176 IR 183 per Jagot J at [82]. The " words of the award or agreement cannot be interpreted in a vacuum divorced from industrial realities ": Sydney Ferries Corporation v Australian Maritime Officers Union (No 2) [2008] FCA 954 per Sackville J at [52].


case_text: the context of an industrial award, Madgwick J (sitting as a judge of the Industrial Relations Court of Australia) in Kucks v CSR Ltd (1996) 66 IR 182 observed at 184: It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand. But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. ... These observations were cited with approval in Amcor Ltd : [2005] HCA 10 per Kirby J at [96] and Callinan J at [129]. See also: Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208 at 212 per Northrop J; Transadelaide v Leddy (No 2) (1998) 80 IR 265 at 271; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ardmona Foods Ltd [2006] FCA 1039 , 155 IR 211 per Ryan J at [26] to [27]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Ltd [2007] FCA 1515 , 168 IR 353 per Gordon J at [42] to [43]; Soliman v University of Technology, Sydney [2008] FCA 1512 , 176 IR 183 per Jagot J at [82]. The " words of the award or agreement cannot be interpreted in a vacuum divorced from industrial realities ": Sydney Ferries Corporation v Australian Maritime Officers Union (No 2) [2008] FCA 954 per Sackville J at [52].


case_title: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ardmona Foods Ltd [2006] FCA 1039 , 155 IR 211


case_title: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Ltd [2007] FCA 1515 , 168 IR 353


case_text: was appropriate that the challenge to jurisdiction be raised by a Notice of Contention as envisaged by Order 52 r 22(3) of the Federal Court Rules 1979 (Cth). That Rule provides as follows: If the respondent proposes to contend that the judgment should be affirmed on grounds other than those relied on by the court below, but does not seek a discharge or variation of any part of the judgment, the respondent need not file a notice of cross-appeal, but must: (a) file a notice of the respondent's contention within 21 days after the service upon the respondent of the notice of appeal, or within such further time as the Court or a Judge fixes; and (aa) serve a copy of the notice on the appellant; and (b) give notice to the appellant of the record of evidence or documents before the court below relating to the contention, for inclusion in the appellant's draft index of appeal papers; and (c) at the appointment to settle the appeal papers, request the Registrar to include the record of evidence or documents in the appeal papers. Consistent with that rule, the Respondent wished to have the decision of the Chief Industrial Magistrate " affirmed " and did not seek a " discharge or variation " of such part of the judgment under appeal as embraced the construction of clause 12 which it successfully advanced at first instance. As noted by Branson J in Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187 , 156 FCR 380 (French J, as His Honour then was, agreeing): [76] As the terms of O 52 r 22(3) make clear, the purpose of a notice of contention is to place the appellant and the Court on notice that the respondent contends that the judgment below (ie the orders made below) can be supported on grounds other than those which the court below relied on when pronouncing the judgment. That is, that even if a ground of appeal is made out, it may not lead to the order the subject of the appeal being set aside or varied. The filing of a notice of contention is not a mechanism for challenging any order made below or for challenging the failure of the court below to make an order to which a party below claimed to be entitled. The importance of resolving the Notice of Contention was considerably reduced, however, when Senior Counsel on behalf of the Respondent accepted that the Appellant could by one means or another have the question as to the proper construction of the Agreements now resolved by this Court. Whether that means was by way of an application being made under the provision identified by Senior Counsel as s 413A of the 1996 Act and returnable instanter , or by treating the present Notice of Appeal as such an application, it was properly accepted by Senior Counsel were questions which could be left to one side. However the question as to the jurisdiction of Chief Industrial Magistrate's Court was resolved, both the Appellant and the Respondent wanted the Court to go on and resolve the construction of the Agreements . But Senior Counsel also maintained that the question as to jurisdiction of the Chief Industrial Magistrate's Court remained an important question which needed to be addressed and resolved.


case_title: Kucks v CSR Ltd (1996) 66 IR 182


case_text: considerable reservation, it is considered that those claims could best be characterised as claims for the underpayment of wages and for penalties — rather than as applications impermissibly seeking an interpretation of a certified agreement which only this Court can give: cf Master Builders' Association of Victoria v Australian Building Construction Employees' and Builders' Labourers' Federation [1981] FCA 49 ; (1981) 54 FLR 358 at 360 to 361 per Evatt and Northrop JJ. As emphasised by Senior Counsel for the Respondent, cause for reservation may be founded upon the very manner in which the case was opened. The Chief Industrial Magistrate asked at the outset: Are you going to open and tell me what this is about? After some preliminary matters were mentioned, Counsel on behalf of the now Appellant answered as follows: Your Honour the matter before the court is one of an interpretation of a certified agreement ... He concluded his brief opening with these words: So your Honour the matter before you is one of the interpretation for correct construction of an industrial instrument being a certified agreement ... There was only passing reference in the opening to any claim for wages and no reference to penalties. Notwithstanding the manner in which the case may have been opened, however, the applications as filed were expressed in terms of claims for underpayment of wages and penalties. Neither the scarcity of the evidence in support of those claims, nor the manner in which the claims were presented, is sufficient to deny to those claims the character of proceedings which properly fell within the jurisdiction of the Chief Industrial Magistrate's Court. The scarcity of the evidence presented may well have provided a sufficient basis upon which those claims could possibly have been rejected. Had a different conclusion been reached by the Industrial Magistrate as to the construction of clause 12, it may have been appropriate to extend a further opportunity to the claimant employees to remedy the deficiency in the existing evidence. So much was recognised by the Chief Industrial Magistrate in his reasons for decision. But it was the construction of clause 12 which ultimately proved fatal to the claims being advanced. A further opportunity to supplement the deficiency in the evidence became unnecessary by reason of that construction.


case_title: McAleer v University of Western Australia (No 3) [2008] FCA 1490 , 171 FCR 499


case_text: this approach, in United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board [2006] FCAFC 84 , 152 FCR 18 it was concluded that the term " appeal " as used in a certified agreement did not include a claim for prerogative relief. Nicholson, Jacobson and Lander JJ there reasoned that " (T)he framers could hardly have had in mind that disputes under an agreement which includes matters such as worker safety could be delayed for many years while appeal steps in the Commission are pursued and then followed up by a claim for constitutional writs in the High Court ": at [64]. Their Honours previously observed at [53] that " the language of the instrument must be construed in its context, having regard to the subject matter and the wording of the entire agreement ...". Reference was there made by the Full Court to the judgment of Burchett J in Short v F W Hercus Pty Ltd [1993] FCA 51 ; (1993) 40 FCR 511 at 518. His Honour was there considering a clause in a Metal Industry Award and observed (references omitted): ... The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read. That much is fairly clear. Where there is seen to be a difficulty, the court can often go to the history of the matter. ... Is the court then forbidden to look past the document itself that is before it? The respondent says the instant award is clear, and we must shut our eyes to what went before. I think there are two answers to this argument. On the one hand, I do not accept that the award is clear on its face. The fact that I have given it a meaning by a process of construction (as it happens, contrary to the respondent's contention) cannot disguise the possibility of understanding the language, as the learned judge understood it, differently. ... That is certainly sufficient to justify a reference to its source. Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form, only a kind of wilful judicial blindness could lead the court to deny itself the light of that history, and to prefer to peer unaided at some obscurity in the language. ...


case_title: Sydney Ferries Corporation v Australian Maritime Officers Union (No 2) [2008] FCA 954


case_title: Transadelaide v Leddy (No 2) (1998) 80 IR 265


case_title: United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board [2006] FCAFC 84 , 152 FCR 18


case_text: addition to the jurisdiction conferred by s 382 of the 1966 Act, s 177A of the Workplace Relations Act 1996 (Cth) ("the 1996 Act"), as in force at the relevant period, defined a " court of competent jurisdiction " as including a magistrate's court and in Western Newspapers Pty Limited v Warren (1994) 56 IR 340 at 346 it was concluded that the Chief Industrial Magistrate's Court of New South Wales was a court of competent jurisdiction for the purposes of s 178. Section 178 conferred jurisdiction to impose a penalty. As noted by Moore J in Warren , the source of the Commonwealth Parliament's power to confer federal jurisdiction on a state court is to be found in s 77(iii) of the Constitution : (1994) 56 IR at 345. The present Appeal originated on 22 February 2006 when two proceedings were commenced in the Chief Industrial Magistrate's Court. In one proceeding the Applicant Union sought ( inter alia ) an order that $2,164.80 plus interest be paid to a member of the Union, Mr Colin Haidle, increasing to a claim for $4,649.37 plus interest at trial. In the second proceeding the Applicant Union sought an order that $10,170.45 plus interest be paid to another union member, Mr John Hodge, increasing to a claim for $16,915.25 plus interest at trial. In addition, in both proceedings the imposition of a penalty was sought. The entitlement to be paid those monies depended upon the construction of a series of three agreements made under the Workplace Relations Act 1996 (Cth). The first of these agreements was the Ulan Coal Mines Ltd Underground Mine Certified Agreement 1998 ; the second being the Ulan Coal Mines Ltd Underground Certified Agreement 2001 2002 ; and the current agreement being the Ulan Coal Mines Ltd Underground Certified Agreement 2003 . The provision of each agreement upon which the claimed entitlement to monies was founded, clause 12, was in relevantly identical terms. That clause provided for payment and rates of payment on weekends and holidays.


case_text: am satisfied that the proposed orders that have been freely agreed to by all of the parties on an informed basis are appropriate. There are now a number of decisions of this Court that have considered the requirements of this section of the Act that promotes a resolution of native title applications by way of negotiated agreement. Justice Greenwood, in Deborah Hobson and Ors on behalf of the Kuuku Ya'u People v State of Queensland [2009] FCA 679 at [12] referred to the observations made by Chief Justice French in his paper, Lifting the Burden of Native Title Some Modest proposals for Improvement , that the Court will not lightly second-guess the agreement the parties have reached by requiring formal proof of the content of the subject matter of each proposition contained in the proposed orders which in turn must necessarily address the elements of ss 223 and 225 of the Act. Otherwise the Applicant would be burdened with, in effect, a subset of a trial in establishing the appropriateness of consensual orders. Consideration of Agreement and Draft Determination


case_text: s 9(2) obligation to make s 9(1) documents available is not unqualified. Relevantly for present purposes, s 9(4) does not require the making available of a s 9(1) document containing "exempt matter" (the term "exempt document" to which this refers is defined in s 4(1)), though it does require, where practicable, the making available of a redacted version excluding that matter. I would note in passing that, whether or not identifying a s 9(1) document itself involves the making of a decision this is considered below the making available of it necessarily involves a decision that it does not contain exempt matter: see Harris v Australian Broadcasting Corporation [1983] FCA 242 ; (1983) 50 ALR 551 at 558. Though only relevant as providing part of the context of s 9, s 10(1) of the Act is noteworthy as providing some legislative recognition that documents may not have been made available or included in a statement, despite the requirements of s 9. Section 10(1) provides: " 10 Unpublished documents not to prejudice public (1) If a document required to be made available in accordance with section 9 , being a document containing a rule, guideline or practice relating to a function of an agency, was not made available, or was not included in a statement made available at each Information Access Office , as referred to in that section, before the time at which a person did, or omitted to do, any act or thing relevant to the performance of that function in relation to him or her (whether or not the time allowed for publication of a statement in respect of the document had expired before that time), that person, if he or she was not aware of that rule, guideline or practice at that time, shall not be subjected to any prejudice by reason only of the application of that rule, guideline or practice in relation to the thing done or omitted to be done by him or her if he or she could lawfully have avoided that prejudice had he or she been aware of that rule, guideline or practice." (Emphasis added.) The AD(JR) Act The claim prosecuted now by Mr Duncan relates to s 13 of the AD(JR) Act. For present purposes it is sufficient to note that, subject to specified exceptions, s 13(1) provides that where a person makes a decision to which the Act applies, any person who is entitled to apply to this Court or to the Federal Magistrates Court under s 5 in relation to the decision may, by giving written notice to the decision maker, request that person to provide him or her a statement in writing setting out the findings on material questions of fact relating to that decision, referring to the evidence or other material on which those findings were based and giving reasons for the decision. A person who is "aggrieved" by a decision to which the Act applies may apply for an order of review of that decision on the grounds specified in s 5 of the AD(JR) Act. I would note in passing that one of Centrelink's bases for opposing Mr Duncan's application is that Mr Duncan is not a "person aggrieved" for s 5 purposes, hence he was not entitled to make a s 13(1) request in any event. It is equally contended that the CEO (or his delegate) makes no "decision" for AD(JR) Act purposes when performing the function imposed by s 9 of the Act. Other Matters I earlier noted that the CEO did not, as s 13(3) of the AD(JR) Act requires, give Mr Duncan a notice that the CEO was of the opinion that he was not entitled to make his latter two requests. Absent such a notice Mr Duncan could not apply to this Court under s 13(4A) of the Act for an order that he was entitled to make a s 13(1) request. It would seem that for this reason, he has sought declaratory relief to the same end under s 21 of the Federal Court of Australia Act 1976 (Cth). Additionally, no reliance has been sought to be placed upon the provisions of s 7(2) of the AD(JR) Act. It is common ground that the provisions of s 26 of the FOI Act (which relate to the provision of reasons for a decision refusing to grant access to a document to which access had been requested) is of no present relevance. I would note in passing that s 13(1) of the AD(JR) Act does not apply to such a refusal decision: see s 26(1A) of the FOI Act. One final matter of statutory and jurisdictional significance that I should mention arises out of observations I made at the hearing of Centrelink's strike out motion. In giving Mr Duncan leave to file an amended application I expressed the view that what, possibly, he was seeking was an order that the CEO discharge the statutory obligation imposed by s 9. Relief to that end has not been sought in the present application. Rather the relief sought is the provision of a statement of reasons in relation variously to a decision that the FOI manual was not one to which s 9 applied and/or a decision to prepare a s 9(2)(b) statement which did not list all documents of the types enumerated in s 9(1).


case_text: to what I have to say below, I am prepared to assume for present purposes, that, given his apparently ongoing disputes with Centrelink, Mr Duncan has had a special interest in the proper performance of the statutory obligations imposed by s 9 above that of an ordinary member of the public: see Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 at 547-548; Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49 ; (1998) 194 CLR 247 at 261; insofar as those obligations relate both to the making available of, and to including in the s 9(2)(b) statements, documents used in Centrelink's making decisions or recommendations concerning him. I am, in consequence, prepared to assume that he could have been "a person aggrieved" if, for the purposes of s 5(1) of the AD(JR) Act, the CEO had taken a "decision" to which s 5 applied: see Mark v Australian Broadcasting Tribunal [1991] FCA 570 ; (1991) 32 FCR 476 at 477.


case_title: Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49 ; (1998) 194 CLR 247


case_title: Mark v Australian Broadcasting Tribunal [1991] FCA 570 ; (1991) 32 FCR 476


case_text: do not consider that Mr Duncan has, throughout, been acting simply as "an effective and faithful representative of the public interest in due administration of the [FOI Act]": Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50 at 84; notwithstanding that he has made comments suggesting this in his affidavits. I would also note that s 10(1) of the FOI Act, to which I earlier referred, lends support to the view that a person could in fact be prejudiced by the reliance by a decision maker on a document not made publicly available, or included in the s 9(2)(b) statement, when making a decision in relation to that person. Secondly, I am prepared to assume (a) that, subject to the s 9(4) exempt matter question, the FOI Manual was of such character that it ought to have been made available to the public and to have been specified in the 2006 statement as Centrelink, through Ms Terry's evidence, seems to accept; and (b) that its non-inclusion in the documents made available could found an application under s 5(1) of the AD(JR) Act by an aggrieved person, if such resulted from a decision of an administrative character made under an enactment. For the reasons I will shortly give, I am satisfied that, in discharge of the s 9 obligations, a decision making process was adopted for which the CEO was responsible and that a decision of a type that was amenable to AD(JR) Act review was taken by Ms Terry for the CEO which resulted both in the omission of the FOI Manual from the documents made publicly available and in no reference being made to it in the statement.


case_text: do not consider that it properly can be said that, s 9(4) apart, s 9(1) and (2) create a self-executing regime with the obligation to make documents available flowing directly from the "existence of facts falling within [s 9(1)]" and not from "a decision": cf Whim Creek Consolidated NL v Colgan [1991] FCA 467 ; (1991) 103 ALR 204 at 211 and the cases referred to therein; see also Aronson, Dyer and Groves, Judicial Review of Administrative Action , 61 ff (3 rd ed, 2004).


case_title: Peverill v Meir (1990) 95 ALR 401

case_text: intent of s 9 is obvious enough. It is to have made publicly available for inspection and purchase documents having the characteristics prescribed in s 9(1), though subject (inter alia) to exceptions as in s 9(4). Moreover, it is mandatory in its requirement. The exceptions apart, no discretion is given as to whether documents having those characteristics will be made available, i.e. whether the s 9(2)(a) function ought be performed at all or in a given instance, but then a discretion is not the necessary requirement for a decision to which the AD(JR) Act applies: see s 3(1) "decision to which this Act applies". Provided a decision is of an administrative character required to be made under an enactment, that suffices: cf Peverill v Meir (1990) 95 ALR 401 at 421.


case_text: is, in my view, improbable that Parliament intended s 9(1) as identifying objective facts on which s 9(2)(a) would operate rather than as setting criteria which, though largely factual in character, does involve deliberative evaluation and could give rise to questions of judgment and degree (e.g. was a document "used by the agency or its officers" in the manners specified and for the purposes specified). When coupled with the need to negative the operation of s 9(4) before making the determination to make a document available, s 9(2)(a) clearly required that a mental process be engaged in requiring the application of consideration to a variety of matters posed by the s 9(1) criteria and by the s 9(4) exception before reaching a decision which had its external manifestation in the s 9(2)(b) statement. That determination, in a practical sense, ordained whether or not a document would be made available for public inspection and purchase. I am not in this suggesting that there was a decision made under s 9(2)(b) to make available the statement specifying the s 9(2)(a) documents. That action itself did not emanate from a deliberative or reasoning process: cf Guss v Commissioner of Taxation [2006] FCAFC 88 ; (2006) 152 FCR 88 at [75] , [82]. It was simply a routine mechanical (or ministerial) act that was required to be done. Rather, I am of the view that the s 9(2)(b) statement was the formal manifestation of the CEO's decisions as to the documents that were required to be made available under s 9(2)(a). Further, the CEO's decision was "of an administrative character made under an enactment". Its object was the ascertainment of the documents which members of the public would be entitled as of right under the Act to inspect and purchase. In this its administrative character was obvious enough.


case_text: Griffith University v Tang [2005] HCA 7 ; (2005) 221 CLR 99 , Gummow, Callinan and Heydon JJ in commenting on the mirror "made under an enactment" formula of Queensland's Judicial Review Act 1991 (Qld), observed (at [89]): "The determination of whether a decision is 'made ... under an enactment' involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be 'made ... under an enactment' if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice." (Emphasis in original.) The statutory right presently in question was a right the FOI Act intended Mr Duncan to have as a member of the public. It was affected by the decision manifested in the non-inclusion of the FOI Manual in the 1 August 2006 statement. The travails he had in securing his statutory entitlement up until the decision to give him the manual evidence the possible significance of the right itself to a member of the public. He was denied that to which the Act gave him an entitlement. Accordingly I would be satisfied that, but for the provision to Mr Duncan of the manual on 8 August 2006, and on the assumptions that I have been making, Mr Duncan would have been entitled to the declaration that he is now seeking, i.e. that he is entitled to the provision of a statement of reasons for the non-inclusion of the FOI Manual in the documents made available to the public under s 9(2)(a) of the Act, which was manifest in the 1 August 2006 statement. Nonetheless, as a matter of discretion, I am also satisfied that declaratory relief ought be refused.


case_text: utility of the declaration as a species of relief is now well accepted. It equally is well accepted that it is neither possible nor desirable to fetter the exercise of this discretionary power by laying down rules as to the manner of its exercise: Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421 at 437. Nonetheless, its exercise is confined by the considerations which mark out the boundaries of judicial power hence it must be directed to the determination of legal controversies and not to the answering of abstract, hypothetical, or moot questions or giving advisory opinions: Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1991) 175 CLR 564 at 582; Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334 at 355-356. An applicant must demonstrate a "real interest" in a "real question" the answering of which must produce some "real consequences for the parties": Forster at 437; and see generally Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406 at 413-415.


case_title: Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1991) 175 CLR 564


case_title: Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334


case_title: Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406


case_text: immediately present relevance to the duty to provide reasons under s 13(1), the Court as a matter of discretion ought not, except in exceptional circumstances, make a declaration in relation to the entitlement to a s 13(1) statement where the decision to which the statement relates has been set aside, revoked or superseded: see United Airlines v Secretary, Department of Transport and Communications [1990] FCA 427 ; (1990) 26 FCR 598 at 607. The reason for this is that in such cases the "real question" will not relate to the failure to give reasons as such, but to the correctness or otherwise of an existing operative decision for which the reasons have been sought. Having made all of the assumptions I have made in Mr Duncan's favour, he has not satisfied me that to make the declaration he seeks has real practical consequences. On 25 July 2006 he sought reasons for the decision not to make the manual available for inspection by members of the public. His complaint in substance, though, was that at that time he personally was aggrieved by the decision. On his making of that request, the CEO was likelihood bound to furnish that statement for the reasons I have given. I do not consider it necessary here to enter upon the question whether because of the decision of 21 July 2006 to give him the manual under s 9 he ceased to be aggrieved even though he was not aware of this decision until 27 June 2006, i.e. two days after he made his request for reasons. As with Hill J in United Airlines at 606-607, I incline to the view that duty once enlivened, was "not abrogated" by the later provision to him of the manual. What the later provision of the manual did, though, was to eliminate the substance of his grievance. He had been provided by the internal review officer in accordance with his s 9 entitlement with the manual to which he claimed the right to inspect and purchase. Mr Duncan has put on extensive evidence alleging ongoing causes of grievance to him. His complaint now is essentially that Centrelink still has not identified all the documents falling within s 9(1). The present is not an application for preliminary discovery with all of the conditions required to be satisfied before "information discovery" is allowed: see St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360 ; (2004) 211 ALR 147 at [26] . My sole concern, as ultimately was accepted at the hearing, was with the manual and its non-provision.


case_text: made all of the assumptions I have made in Mr Duncan's favour, he has not satisfied me that to make the declaration he seeks has real practical consequences. On 25 July 2006 he sought reasons for the decision not to make the manual available for inspection by members of the public. His complaint in substance, though, was that at that time he personally was aggrieved by the decision. On his making of that request, the CEO was likelihood bound to furnish that statement for the reasons I have given. I do not consider it necessary here to enter upon the question whether because of the decision of 21 July 2006 to give him the manual under s 9 he ceased to be aggrieved even though he was not aware of this decision until 27 June 2006, i.e. two days after he made his request for reasons. As with Hill J in United Airlines at 606-607, I incline to the view that duty once enlivened, was "not abrogated" by the later provision to him of the manual. What the later provision of the manual did, though, was to eliminate the substance of his grievance. He had been provided by the internal review officer in accordance with his s 9 entitlement with the manual to which he claimed the right to inspect and purchase. Mr Duncan has put on extensive evidence alleging ongoing causes of grievance to him. His complaint now is essentially that Centrelink still has not identified all the documents falling within s 9(1). The present is not an application for preliminary discovery with all of the conditions required to be satisfied before "information discovery" is allowed: see St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360 ; (2004) 211 ALR 147 at [26] . My sole concern, as ultimately was accepted at the hearing, was with the manual and its non-provision.


case_text: In submissions yesterday, counsel for the respondent referred to Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 ( "Mason" ) and Kelly v Fitzpatrick [2007] FCA 1080 ( "Kelly" ). In Kelly at [14] Tracey J adopted "as potentially relevant and applicable" to the question of penalty the "non-exhaustive range of considerations" referred to by Mowbray FM in Mason . Plainly enough, the particular circumstances of the contravention are relevant. These circumstances are set out in my earlier reasons for judgment: see generally Claveria v Pilkington Australia Ltd [2007] FCA 1692 , especially at [148]. This case involved the one breach, which occurred on the day of Mr Claveria's termination. In my previous reasons for judgment, I referred to the nature of the respondent's business. I previously found that the respondent terminated Mr Claveria's employment with it on 24 January 2007 for reasons that included retaliation for Mr Claveria's having recourse to the union in connection with perceived bullying and harassment on his manager's part. I have also referred to the factors that affected his manager, Mr Dunstan, at the time. I accept that Mr Dunstan was not at senior management level and was in the order of lower management. I have also referred to the fact that there was less than straight dealing on the respondent's part at and immediately subsequent to Mr Claveria's termination and to the statement in evidence by Mr Findlay, the respondent's human resources manager, that he knew that termination in retaliation for "going to the union" would be wrong and in breach of the Act .


case_title: Kelly v Fitzpatrick [2007] FCA 1080

case_text: In submissions yesterday, counsel for the respondent referred to Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 ( "Mason" ) and Kelly v Fitzpatrick [2007] FCA 1080 ( "Kelly" ). In Kelly at [14] Tracey J adopted "as potentially relevant and applicable" to the question of penalty the "non-exhaustive range of considerations" referred to by Mowbray FM in Mason . Plainly enough, the particular circumstances of the contravention are relevant. These circumstances are set out in my earlier reasons for judgment: see generally Claveria v Pilkington Australia Ltd [2007] FCA 1692 , especially at [148]. This case involved the one breach, which occurred on the day of Mr Claveria's termination. In my previous reasons for judgment, I referred to the nature of the respondent's business. I previously found that the respondent terminated Mr Claveria's employment with it on 24 January 2007 for reasons that included retaliation for Mr Claveria's having recourse to the union in connection with perceived bullying and harassment on his manager's part. I have also referred to the factors that affected his manager, Mr Dunstan, at the time. I accept that Mr Dunstan was not at senior management level and was in the order of lower management. I have also referred to the fact that there was less than straight dealing on the respondent's part at and immediately subsequent to Mr Claveria's termination and to the statement in evidence by Mr Findlay, the respondent's human resources manager, that he knew that termination in retaliation for "going to the union" would be wrong and in breach of the Act . 5 I have previously noted that the respondent acted so as to deny Mr Claveria the freedom to pursue a basic right protected by the Act . The need for deterrence must be borne in mind. In light of the circumstances referred to above, it appears that general, as opposed to specific, deterrence is the more important factor in this case: compare Kelly at [28]. In this regard, counsel for Mr Claveria referred to Finance Sector Union v Commonwealth Bank of Australia (2005) 147 IR 462 (" FSU ") at [41], where Merkel J reiterated earlier observations that "for a penalty to have the desired [deterrent] effect, it must be imposed at a meaningful level". As counsel for Mr Claveria rightly conceded, FSU concerned conduct of a very different nature to that impugned in the present case: see Merkel J's characterisation of the conduct in FSU at [59] as "flagrant and deliberate". Notwithstanding this (and the judgments of Spender, Branson and Marshall JJ on appeal: (2007) 161 IR 262), Merkel J's statement as to the relationship of the level of penalty to general deterrence remains apposite.


case_text: I have previously noted that the respondent acted so as to deny Mr Claveria the freedom to pursue a basic right protected by the Act . The need for deterrence must be borne in mind. In light of the circumstances referred to above, it appears that general, as opposed to specific, deterrence is the more important factor in this case: compare Kelly at [28]. In this regard, counsel for Mr Claveria referred to Finance Sector Union v Commonwealth Bank of Australia (2005) 147 IR 462 (" FSU ") at [41], where Merkel J reiterated earlier observations that "for a penalty to have the desired [deterrent] effect, it must be imposed at a meaningful level". As counsel for Mr Claveria rightly conceded, FSU concerned conduct of a very different nature to that impugned in the present case: see Merkel J's characterisation of the conduct in FSU at [59] as "flagrant and deliberate". Notwithstanding this (and the judgments of Spender, Branson and Marshall JJ on appeal: (2007) 161 IR 262), Merkel J's statement as to the relationship of the level of penalty to general deterrence remains apposite.


case_title: Claveria v Pilkington Australia Ltd [2007] FCA 1692


case_title: Vickery v Assetta [2004] FCA 555

case_text: Mitigating circumstances need to be borne in mind. In mitigation of penalty, the parties agreed that the respondent has "never before been found to have breached section 659 of the Workplace Relations Act 1996 (Cth) or like provisions in earlier legislation" and "has a history of cooperating with the union". The respondent submitted, and I accept, that it should be regarded as a first offender. I accept that the penalty should not be at the higher end of the range: compare Vickery v Assetta [2004] FCA 555 at [25] per Finkelstein J. 7 Section 841 of the Act provides that a penalty can be paid "to a particular ... person". The Court has held that a penalty can be paid to an applicant, such as Mr Claveria: see Vickery v Assetta at [25], Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union v DMG Industries Pty Ltd (1999) 89 IR 360 at 365-6 per Marshall J, Stewart v Nickles [1999] FCA 888 per Ryan JR; and Gibbs v The Mayor, Councillors and Citizens of the City of Altona (1992) 37 FCR 216 at 223 per Gray J. The respondent does not oppose this course. I would order that the penalty be paid to Mr Claveria.


case_text: Section 841 of the Act provides that a penalty can be paid "to a particular ... person". The Court has held that a penalty can be paid to an applicant, such as Mr Claveria: see Vickery v Assetta at [25], Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union v DMG Industries Pty Ltd (1999) 89 IR 360 at 365-6 per Marshall J, Stewart v Nickles [1999] FCA 888 per Ryan JR; and Gibbs v The Mayor, Councillors and Citizens of the City of Altona (1992) 37 FCR 216 at 223 per Gray J. The respondent does not oppose this course. I would order that the penalty be paid to Mr Claveria.


case_title: Stewart v Nickles [1999] FCA 888


case_title: Gibbs v Altona City Corporation (1992) 37 FCR 216


case_text: Counsel for Mr Claveria argued that these superannuation contributions should be included. If these contributions were included, the cap or limit in s 665(3) would be $31,993.23. Counsel argued that these contributions were remuneration "received by" Mr Claveria because they were received by his superannuation trustee on his behalf. She argued that the expression "received by" was to be understood as "received by or on behalf of the employee". There is some force in this submission. In Furey v Civil Service Association of WA (Inc) [1999] FCA 1492 ; (1999) 91 FCR 407 at 421, Carr J held that held that the expression "pay to the employee" in s 170CM(4) of the Act as it then stood should be understood to mean "pay to or on behalf of the employee". That is, the Act imposed an obligation on an employee seeking to pay compensation instead of notice, to pay either to or for the benefit or on behalf of the employee everything that the employee would have been entitled to have been paid had he or she worked out the required period of notice. This obligation extended to superannuation payments. By failing to pay superannuation for the four week period in question, the respondent breached s 170CM of the Act . In so concluding, Carr J followed the approach of Finn J in Comcare v Fyfe [1999] FCA 1368: see also the decision of the Australian Industrial Relations Commission in Deane v Paper Australia Pty Ltd (2003) 121 IR 362 at 366, holding that the operation of the superannuation guarantee legislation rendered the employer's contribution a benefit to the employee and within the concept of "remuneration" for the purposes of calculating the limits imposed by the Act for applicants wishing to bring unfair dismissal proceedings.


case_title: Comcare v Fyfe [1999] FCA 1368


case_title: Deane v Paper Australia Pty Ltd (2003) 121 IR 362


case_text: The parties also disagreed as to how the cap or limit in s 665(3) should be applied. According to counsel for the respondent, s 665(1)(c) does not contemplate that 'compensation' be first assessed by reference to that which the employee has lost or otherwise suffered by reason of the employer's contravention of s 659 , although he conceded that it conferred a discretion on the court, which might be exercised having regard to the employee's loss. The respondent submitted that s 665(3) operated as a jurisdictional constraint on the exercise of this discretion. The respondent argued that, if the court, in the exercise of its discretion, determined that the maximum amount of compensation payable under the cap (or some lesser amount) was appropriate, then any deductions (such as those referred to in [12] above) should be made from this amount. Finally, the respondent submitted that, to the extent that Laz v Downer Group Ltd (2000) 108 IR 244 (" Laz ") was contrary to this suggested interpretation, it was wrongly decided or was to be reconsidered in light of the fact that s 665(3) in its present form was enacted after Laz . 20 I reject the respondent's submissions concerning the operation of the cap. There is no warrant to accord to s 665(3) such a contrived operation. Section 665(3) operates merely to limit or cap the amount of compensation that the court may fix under s 665(1)(c) , as an amount to be paid by the employer to the employee in compensation for terminating his employment in contravention of s 659 of the Act . Accordingly, I propose to approach the calculation of compensation in the way advocated by counsel for Mr Claveria. That is to say, I have calculated the amount of Mr Claveria's lost remuneration, and deducted from this amount the amounts referred to at [12] above. Only then, once an appropriate compensatory figure is arrived at, should regard be had to the cap in s 665(3). As I have already said, approached in this way, if lost remuneration is properly dealt with in an order under s 665(1)(c) , then s 665(3) does not operate to require the fixing of any sum lower than the $27,643.00 which I would otherwise award to Mr Claveria (whether or not superannuation is included in the calculation of the s 665(3) cap). 21 Of course, as counsel for Mr Claveria noted, s 665(1)(b) , (d) or (e) might also support an order for the payment of lost remuneration: see Laz at 260 per Moore J. I accept this might be so. Section 665(1)(d) , in particular, would in terms provide a basis for such an order. I note, in passing, that s 665(3) apparently contemplates that an amount of compensation may be ordered under this paragraph. Having regard to the earlier form of the Act , it does not seem to me that the respondent has shown any convincing basis for its argument that Laz was wrongly decided or stands to be reconsidered. Of course, if an order of this kind were properly regarded as having been made under s 665(1)(d) (or paragraphs (b) or (e)), the limit set by s 665(3) would not apply. This is a matter to be considered on another day. 22 In summary, the first respondent should pay Mr Claveria the sums of $4,000 by way of penalty, $27,643.00 (with an appropriate deduction for taxation) in lost remuneration, and $2,924.31 to Mr Claveria's nominated superannuation trustee. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny J. Associate: Dated: 6 December 2007 Counsel for the Applicant: Ms L Doust Solicitor for the Applicant: Maurice Blackburn Counsel for the Respondent: Mr T Donaghey Solicitor for the Respondent: Victorian Employers' Chambers of Commerce and Industry Date of Hearing: 5 December 2007 Date of Judgment: 6 December 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1917.html


case_title: Bull v Attorney-General (NSW) [1913] HCA 60 ; (1913) 17 CLR 370

case_text: The relevant statute is certainly beneficial to employees and the enactment of the statutory 'but for' test by s 6(1)(a) must, being ambiguous, be construed to 'give the fullest relief which the fair meaning of its language will allow', as Isaacs J put it in Bull v Attorney-General for New South Wales [1913] HCA 60 ; (1913) 17 CLR 370 at 384. A fair meaning will, however, not be one arrived at by straining language or exceeding its reach, nor will it be one that results in absurdity ex facie or an anomalous result, clearly shown: Esso Australian Resources Ltd v Commissioner of Taxation [1998] FCA 1655 ; (1998) 83 FCR 511 at 518-19 and 565-6.


case_title: Esso v Commissioner of Taxation [1998] FCA 1655 ; (1998) 83 FCR 511


case_text: As to s 6(1)(a) , the applicant maintained that the 'but for' test there set out remains a test of causation (rather than temporal connection) when applied to injuries occurring otherwise than in the course of employment. In reliance on Kennedy v Telstra Corporation (1995) 61 FCR 160, counsel submitted that the 'but for' test has to be applied 'practically and in a commonsense way'. Furthermore, it was submitted that the Tribunal also failed to provide any reasoning in support of its finding that the 'but for' test contained in subsection 6(1)(a) of the Act was satisfied. 37 The only cases dealing with s 6(1)(a) are Kennedy and Schmid v Comcare (2004) 77 ALD 782. In Schmid , Weinberg J took a similar approach to that of Tamberlin J in Kennedy . His Honour considered that it could not have been Parliament's intention that the 'but for' test should be construed literally: a degree of 'proximity', going beyond temporal connections of time and place, was required under s 6(1)(a). This approach was said to be consistent with that taken by McMahon D P in Re Mulligan and Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees (1995) 36 ALD 699. 61 In that sense, a 'commonsense or practical' approach (per Tamberlin J in Kennedy ) or a requirement for some degree of 'proximity' (per Weinberg J in Schmid ) may be necessary to confine the unbounded logical possibilities of a 'but for' test within limits that may be imputed to the legislature as acceptable. Courts must take care however, lest in the guise of avoiding a construction that would result in a clear anomaly, they try to rewrite a legislative provision closer to their own, and possibly highly contestable, views of what would be a fair and 'common sense' law to deal with the subject at hand.