case_text: In this context, a finding involves an error of law when there is no evidence at all to support it ( Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 355-356 and 358 per Mason CJ ( Bond ). It is not sufficient, however, that the decision-maker draws an inference by illogical reasoning. Rather, it must be established that there was no evidence permitting the drawing of the inference by any process of reasoning ( Bond at 356). 340 The factual findings in question made by ACCC in each of the LSS arbitrations are: that introducing a contribution to line costs within the period of the LSS FD would require significant changes to the access seeker's business (see [331] of Adam LSS FD Statement of Reasons set out at [334] above); that the access seeker will have formed its business plan in expectation that ACCC would act consistently with the 2002 LSS Pricing Principles (see [331], [332] of Adam LSS FD Statement of Reasons set out at [334] above); and that introducing a contribution to line costs into the LSS Annual Charge would be likely to necessitate a shift in the access seeker's business model and divert it from conducting its business (see [335] and [376] of Adam LSS FD Statement of Reasons set out at [334] and [335] above). I will call these "the Findings" or "the Four Findings" and will refer to them individually by number, e.g. Finding 1, 2, 3 and 4. Telstra's submissions in general 341 Telstra complains that there was "no material or other evidence" before ACCC in each proceeding to support the Findings (Telstra's words are similar to those found in s 5(1)(h) of the ADJR Act, but Telstra does not raise that ground of review (see [362] below)). In particular, Telstra complains that although the access seekers' submissions allege various matters in respect of their business plans, no document was produced (apart from the statement of Mr Hicks, discussed below): recording any business plan; showing the likely effect on a business plan of an LSS Annual Charge that included a line cost contribution; identifying the amount of the LSS Annual Charge that an access seeker expected to be charged; containing a financial model that revealed the basis of any business plan of an access seeker; demonstrating the effect of an LSS Annual Charge above the $2.50 level which was, in the event, set by ACCC. 353 Therefore, the access seekers argue, the inferences drawn by ACCC were "reasonably open" (see Bond at 356). No profit and loss statements were necessary, so the access seekers contend, for those conclusions to be supportable. The parties' submissions relating to Mr Hicks's statement 354 I turn now to Mr Hicks's statement. 355 It will be recalled that in his statement that was annexed to AAAP's submissions to ACCC (see [305] above), Mr Hicks referred to an assumed LSS price that was used in Adam's business models at certain times. Telstra submits that Mr Hicks's statement directly contradicted ACCC's findings (in the case of Adam) as distinct from merely not supporting it. Telstra does not specify the supposed contradiction. Telstra points out in addition that Mr Hicks's statement does not refer to any expectation on the part of Adam that the LSS price would not include a contribution to line costs. 362 In discussing the ground of review provided for in s 5(1)(f) as compared with that in s 5(1)(h) (the "no evidence" ground in the ADJR Act), Mason CJ said in Bond (at 358): The better view, one which seeks to harmonize the two grounds of review, is to treat "error of law" in s 5(1)(f) as embracing the "no evidence" ground as it was accepted and applied in Australia before the enactment of the [ADJR Act] and to treat the "no evidence" ground of review [that is, s 5(1)(h)], as elucidated in s 5(3), as expanding that ground of review in the applications for which pars (a) and (b) of s 5(3) make provision. Within the area of operation of par (a) it is enough to show an absence of evidence or material from which the decision-maker could reasonably be satisfied that the particular matter was established, that being a lesser burden than that of showing absence of evidence (or material) to support the decision. The limitations provided for in s 5(3) of the ADJR Act therefore have no application, but the strictures associated with the no evidence ground at common law apply. 363 It is necessary to bear in mind the following features of the Div 8 arbitrations as they were conducted by ACCC: (1) ACCC was not bound by technicalities, legal forms or rules of evidence, and was entitled to inform itself of any matter relevant to the dispute in any way it thought appropriate (s 152DB(1)(a) and (c)); (2) ACCC had power to give generally all such directions and do all such things as were necessary or expedient for the speedy hearing and determination of the access disputes (s 152DC(1)(f)); (3) In accordance with ACCC's directions, the arbitrations were not divided into evidentiary and submissions stages as would be the case in litigation, and ACCC was entitled to "inform itself" by means of the parties' "submissions"; (4) ACCC had long since made it clear that ideally entities accessing the LSS should contribute to Telstra's line costs, but that since ACCC considered that Telstra was already recovering those costs, it was a condition of the inclusion of a contribution to line costs that there be a rebalancing as between LSS on the one hand and ULLS and WLR on the other hand, in order to ensure that Telstra would recover no more than its line costs and did not "double dip"; (5) ACCC reasoned, as it was entitled to do, that a rebalancing would create an incentive to move from LSS to ULLS or WLR because an access seeker that accessed the LSS alone would be less competitive compared with those that accessed the ULLS and WLR because of the reduction in Telstra's charges to the latter resulting from the rebalancing. 364 Understandably, in the report accompanying the DFD, ACCC accepted that a rebalancing would take time, have the potential to disrupt competition in DSL services, and would involve Telstra in restructuring its existing charges for other services. ACCC sought submissions from the parties as to whether there was a real prospect for a rebalancing to take effect prior to the proposed expiry date of the proposed FDs (which was then only a matter of months away; see [294] above).


case_outcome: cited

case_text: It is trite that such expressions as "relating to", "in relation to" and "in respect of" are very wide and that their meaning will be determined by context: cf Hatfield v Health Insurance Commission (1987) 15 FCR 487 at 491; HP Mercantile Pty Ltd v Commissioner of Taxation [2005] FCAFC 126 ; (2005) 143 FCR 553 at [35] ; Australian Securities and Investments Commission v Narain [2008] FCAFC 120 ; (2008) 169 FCR 211 at [68] , [69]. The relationship which the expressions invoke is not a merely accidental or remote relationship (see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at [87] ) and must be a relevant relationship. The sufficiency of a particular relationship, association or connection is a matter for judgment, and depends on, inter alia, the subject matter, the legislative history and the facts in the particular case.


case_outcome: distinguished

case_text: In support of proposition (a) (that a decision made on the basis of an erroneous methodology, principle of valuation or economic analysis is infected by error of law), Telstra refers to the following cases, which I need not discuss at this stage: Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426 ; Brisbane City Council v The Valuer-General for the State of Queensland [1978] HCA 40 ; (1978) 140 CLR 41 ; Maurici v Chief Commissioner of State Revenue [2003] HCA 8 ; (2003) 212 CLR 111 ; Repatriation Commission v Harrison (1997) 78 FCR 442 ; NSW Coal Compensation Board v Nardell Colliery P/L [2004] NSWCA 35.


case_text: The 2007 LSS Pricing Principles did not expressly revoke the 2002 LSS Pricing Principles. It is well established, however, that the making of a later statutory instrument that is inconsistent with an earlier one revokes the earlier one to the extent of the inconsistency: see, for example Ward v Repatriation Commission (1997) 46 ALD 454 at 461 and the authorities there referred to, as well as Caloundra City Council v Netstar Pty Ltd [2008] 1 Qd R 258 at [8]-[14].


case_text: ACCC submits that when exercising its power to backdate the Adam LSS FD, s 152DNA(7) allowed it to have regard to matters it considered relevant and those matters included, in the circumstances, the 2007 LSS Pricing Principles. Finally, ACCC submits that it is not the case that s 152AQA(6) gives anyone an accrued right to have an access arbitration determined in accordance with pricing principles that were current at the time of notification of the access dispute or at any other time. ACCC refers to Esber v Commonwealth [1992] HCA 20 ; (1992) 174 CLR 430 at 440. Consideration Ground 2(a) 467 The way in which Telstra's Ground 2(a) was expressed in the amended application for an order of review in the Adam proceeding does not sit comfortably with the way in which Telstra's submissions were put. In the amended application, Ground 2(a) depended on the invalidity in whole or in part of the 2007 LSS Pricing Principles: see [400] [401] above. The invalidity was said to arise from the fact of the continuing and operative 2002 LSS Pricing Principles or from inconsistency between them and the 2007 LSS Pricing Principles. 468 Telstra's submission, however, is that ACCC erred by having regard to both the 2002 and 2007 LSS Pricing Principles.


case_text: ACCC refers to the ordinary principles of statutory construction that a later legislative instrument will repeal an earlier one by implication if the provisions of both cannot stand together, either because the two are inconsistent or because effect cannot be given to both. ACCC cites Mitchell v Scales [1907] HCA 66 ; (1907) 5 CLR 405 at 417 and Goodwin v Phillips [1908] HCA 55 ; (1908) 7 CLR 1. 482 In my view the determination of the 2007 LSS Pricing Principles by necessary implication revoked determination of the 2002 LSS Pricing Principles in toto and not merely to the extent of the inconsistency. This view is supported by the following considerations: the 2007 LSS Pricing Principles evince an intention to deal comprehensively with the principles relating to the price of access to the LSS, i.e. to cover the subject matter that had been the subject matter of the 2002 LSS Pricing Principles, namely, the "principles relating to the price of access to a declared service [the LSS]" (cf s 152AQA(1) of the Act, and see on the implied repeal of legislation Mitchell v Scales [1907] HCA 66 ; (1907) 5 CLR 405 at 417; Goodwin v Phillips (1908) 7 CLR 1 at 7, 10); the 2002 and 2007 LSS Pricing Principles were made in exercise of the same statutory power; the LSS Declaration Review considered the 2002 LSS Pricing Principles and subsequent events, and discussed at length and comprehensively in the light of them the question of "appropriate pricing principles" to be determined; the 2007 LSS Pricing Principles re-stated the first of the 2002 LSS Pricing Principles rather than leaving it to remain stated in the 2002 LSS Pricing Principles.


case_title: Hatfield v Health Insurance Commission (1987) 15 FCR 487


case_title: HP Mercantile Pty Ltd v Commissioner of Taxation [2005] FCAFC 126 ; (2005) 143 FCR 553


case_title: Maurici v Chief Commissioner of State Revenue [2003] HCA 8 ; (2003) 212 CLR 111


case_text: In support of proposition (a) (that a decision made on the basis of an erroneous methodology, principle of valuation or economic analysis is infected by error of law), Telstra refers to the following cases, which I need not discuss at this stage: Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426 ; Brisbane City Council v The Valuer-General for the State of Queensland [1978] HCA 40 ; (1978) 140 CLR 41 ; Maurici v Chief Commissioner of State Revenue [2003] HCA 8 ; (2003) 212 CLR 111 ; Repatriation Commission v Harrison (1997) 78 FCR 442 ; NSW Coal Compensation Board v Nardell Colliery P/L [2004] NSWCA 35. 243 Optus submits that while an error of principle in arriving at a value may amount to an error of law, the cases in which that has been held to be so have concerned statutory valuation exercises, and in any event the approach should be treated with caution: Optus cites Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5 ; (2008) 233 CLR 259 ( Walker Corporation ) at 269-272. Optus submits that in any event Telstra has failed to identify the "principle" which it says ACCC ignored or misapplied. Optus distinguishes the particular substantive principles considered in Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426 and the related authorities cited by Telstra (see [219] above). In Walker Corporation the High Court (at 270) cautioned against importing into one case general "principles" derived from other cases that arose in different statutory contexts. Optus submits that Telstra has not identified in Pt XIC of the Act or in the common law a source of any "principles" that control the arbitral powers conferred on ACCC by Div 8 of that Part.


case_outcome: followed

case_title: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24

case_text: It is not conceivable that ACCC would come to a different decision if the matter were to be returned to it: cf Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 31 (per Gibbs CJ) and 40 (per Mason J). The reasoning expressed in the 2008 ULLS Pricing Principles and Indicative Terms, to which s 152AQA(6) would require ACCC to have regard, are inconsistent with the 2003 ULLS Model Terms over which they must prevail to the extent of the inconsistency: s 152AQB(10)(b). Severance 119 In the further alternative, Optus also argues that if there was an error by ACCC, it related only to the decision to backdate and so the Optus ULLS FD, in so far as it relates to the period from 18 November 2005 to 30 June 2006, can be severed from the FD in so far as it relates to the period after the latter date. 120 Telstra, on the other hand, argues that it is not possible to identify parts of the Optus ULLS FD or of the Optus ULLS FD Statement of Reasons that can be excised so as to save the remainder, from invalidity. 213 In two important paragraphs, [472] and [473], ACCC stated: [472] The conceptual argument presented by Telstra obviously does not allow for heterogeneity in terms of risk profiles, or requirements as to returns among investors or participants in capital markets. Put another way, the assumption made here is that all investors and by extension financiers in capital markets share a common view as to an appropriate WACC for an investment project. This implies that all investors have similar expected marginal costs and revenues (as this impacts the margin necessary for the project to be considered viable). In addition, it assumes that all potential investors have a homogenous risk profile. [Original emphasis] [473] In the Commission's view these assumptions are unlikely to reflect how investment decisions are actually made in practice. More generally, in the Commission's view, the decision as to whether or not to invest in a specific project can differ among different groups of investors, and over time, is dependant on factors such as the relative risk aversion and the expected returns required on different investments. As these are likely to differ among different investors and institutions, it is unlikely that there will always be a common view among investors and capital markets as to appropriateness of a particular return on capital. Rather investors will have different risk and return profiles for investment projects, and it is precisely the possibility to take advantage of these differences which arguably drive capital markets. For this reason, it is possible to observe in practice a combination of both high risk investments being undertaken at high rates of return, and at the same time, relatively low risk investments with correspondingly lower rates of return. 214 ACCC set out (at [487]) in a table the "resulting WACC values" in respect of the years 2000-01 to 2007-08. The WACC (post-tax vanilla) ranged from a high of 9.66% (in 2000-01) to a low of 8.26% (in 2003-04). The WACC (post-tax vanilla) for the most recent year in the table (2007-08) was 9.25%. 215 In order to estimate the WACC, ACCC used the same standard CAPM that it had used in the past. This was the Sharpe-Lintner CAPM. Telstra submits (at para 3.14) that it is not disputed that this CAPM gives a flat supply schedule (a horizontal straight line) for equity capital. However, Dr Hird and Mr Ockerby say that the CAPM that was used by ACCC can also be derived using homogeneous expectations. 389 I addressed the question of the duty imposed on ACCC by para (b) of s 152DB(1) in the Earlier Reasons at [164]-[166] where I said: I regard s 152DB(1) as a general exhortatory provision: it exhorts ACCC to strive to achieve broad objectives. Some of those broad objectives, at least if regarded in isolation, are antithetical to one another. The notions of "speed", "proper consideration of the dispute", "careful inquiry and investigation", "quick inquiry and investigation", "inquiry into and investigation of ... all matters affecting the merits" (emphasis added) and "fairness" pull in different directions: cf the discussion of ss 420 and 476 of the Migration Act 1958 (Cth) in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Lindgren J, 6 May 1997) at 39-41, and see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [49] per Gleeson CJ and McHugh J. It may be noted in passing that achievement of the objectives depends not only on the diligence, awareness and qualifications of ACCC officers: it also depends on the levels of funding and workload of ACCC as they respectively exist at any particular time and from time to time. I do not imply, however, that these extraneous considerations have the potential to give rise to a fluctuating construction of s 152DB(1)(b). I find it difficult to conceive of circumstances in which a court would find that a failure to achieve the goal of speed or that of carefulness would, without more, provide a ground for the granting of relief in respect of an administrative decision. Surely the person aggrieved would have to show that the failure had had consequences in terms of one of the recognised grounds of judicial review. For example, absence of care (perhaps arising indirectly from excessive speed) could give rise to an overlooking of a relevant consideration or a failure to accord procedural fairness. It is not obvious what ground of judicial review, if any, might arise directly from a failure to act "speedily" or to inquire "quickly". It is another question whether the decision-maker could invoke the requirement of speed "in defence" against the consequences, in terms of grounds of judicial review, of a lack of care, but it is to be doubted. [My emphasis] I see no reason why my comments in the first sentence of [166] of the Earlier Reasons do not apply to the Failure to Inquire Ground.


case_text: Observations made in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 ( Eshetu ) and S20 are, in my view, relevant to both grounds. 259 In Eshetu , at [40], Gleeson CJ and McHugh J stated: Someone who disagrees strongly with someone else's process of reasoning on an issue of fact may express such disagreement by describing the reasoning as "illogical" or "unreasonable", or even "so unreasonable that no reasonable person could adopt it". If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence. 260 In S20 , after referring to Eshetu , Gleeson CJ stated (at [5]) that if it is suggested that there is a legal consequence of illogical, unreasonable or irrational reasoning: [I]t may be necessary to be more precise as to the nature and quality of the error attributed to the decision-maker, and to identify the legal principle or statutory provision that attracts the suggested consequence. 389 I addressed the question of the duty imposed on ACCC by para (b) of s 152DB(1) in the Earlier Reasons at [164]-[166] where I said: I regard s 152DB(1) as a general exhortatory provision: it exhorts ACCC to strive to achieve broad objectives. Some of those broad objectives, at least if regarded in isolation, are antithetical to one another. The notions of "speed", "proper consideration of the dispute", "careful inquiry and investigation", "quick inquiry and investigation", "inquiry into and investigation of ... all matters affecting the merits" (emphasis added) and "fairness" pull in different directions: cf the discussion of ss 420 and 476 of the Migration Act 1958 (Cth) in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Lindgren J, 6 May 1997) at 39-41, and see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [49] per Gleeson CJ and McHugh J. It may be noted in passing that achievement of the objectives depends not only on the diligence, awareness and qualifications of ACCC officers: it also depends on the levels of funding and workload of ACCC as they respectively exist at any particular time and from time to time. I do not imply, however, that these extraneous considerations have the potential to give rise to a fluctuating construction of s 152DB(1)(b). I find it difficult to conceive of circumstances in which a court would find that a failure to achieve the goal of speed or that of carefulness would, without more, provide a ground for the granting of relief in respect of an administrative decision. Surely the person aggrieved would have to show that the failure had had consequences in terms of one of the recognised grounds of judicial review. For example, absence of care (perhaps arising indirectly from excessive speed) could give rise to an overlooking of a relevant consideration or a failure to accord procedural fairness. It is not obvious what ground of judicial review, if any, might arise directly from a failure to act "speedily" or to inquire "quickly". It is another question whether the decision-maker could invoke the requirement of speed "in defence" against the consequences, in terms of grounds of judicial review, of a lack of care, but it is to be doubted. [My emphasis] I see no reason why my comments in the first sentence of [166] of the Earlier Reasons do not apply to the Failure to Inquire Ground.


case_text: Telstra contends that s 152DB(1)(b) had the effect, in the circumstances of the present case, of requiring ACCC to inquire into and investigate a particular matter. Telstra submits that this statutory duty may be no less than the duty developed at common law in connection with Wednesbury unreasonableness, and refers to Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170 per Wilcox J; Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273 ; Minister for Immigration and Citizenship v Le [2007] FCA 1318 ; (2007) 164 FCR 151 at [60] - [79] ; Visa International v Reserve Bank of Australia [2003] FCA 977 ; (2003) 131 FCR 300 at [623] - [627] . That common law rule is that a failure by a decision maker to obtain "centrally relevant" information on a critical issue which the decision maker knows or ought reasonably to know is readily available, may be so unreasonable that no reasonable decision maker would have proceeded to make the decision without making an inquiry with a view to obtaining the information, in default of which the decision will be an invalid exercise of power.


case_title: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 ; [2004] HCA 32

case_text: Telstra submits that the language of s 152DB(1)(b) imposes an obligation on ACCC to investigate, and is not merely facultative (cf Minister for Immigration and Multicultural Affairs v SGLB (2004) 207 ALR 12 ; [2004] HCA 32 at [43] ). In my view, while s 152DB(1)(b) does not expressly impose an obligation to inquire and investigate, it assumes the existence of a "need to carefully and quickly inquire into and investigate the dispute and all matters affecting the merits, and fair settlement, of the dispute". That need is a matter that ACCC is required to take into account when it attempts to discharge the express obligation to act speedily. 394 I therefore accept that s 152DB(1)(b) implicitly requires ACCC, if it is not otherwise so required , "to carefully and quickly inquire into and investigate the dispute and all matters affecting the merits, and fair settlement, of the dispute". 395 Whatever the precise scope of that obligation, I do not think that ACCC was obliged to make any further inquiry in the present case because I am not persuaded that there was anything in Mr Hicks's statement that was "centrally relevant" information on a critical issue that ACCC was required to address. "Proper consideration" of the dispute and careful inquiry into and investigation of the dispute, even without reference to the calls for speed and quickness, did not demand further inquiry and investigation. 396 Even if I did consider that Mr Hicks's statement contained something of the kind described, I doubt that any duty of ACCC to inquire into and investigate it would have been imposed by s 152DB(1)(b), as distinct from by the general law. This is because of the inescapable conflict between "carefully" and "quickly". The general law may have imposed an obligation to inquire and investigate "carefully" but it would not, in the absence of special circumstances in a particular case, impose an obligation to investigate and inquire "quickly". 397 I respectfully suggest that exhortatory provisions of the present kind would be better placed and identified by the drafter as a statement of objectives rather than as substantive legislative provisions. Conclusion in respect of the Failure to Inquire Ground


case_title: Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273


case_title: Mitchell v Scales [1907] HCA 66 ; (1907) 5 CLR 405


case_title: New South Wales Coal Compensation Board v Nardell Colliery Pty Ltd [2004] NSWCA 35


case_title: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155


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


case_title: Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59 ; [2003] HCA 30

case_text: The non-Optus access seekers distinguish the valuation of land cases relied on by Telstra as turning on the terms of particular statutes. They note that Telstra purports to concede (as it must) that illogicality or unreasonableness do not necessarily constitute reviewable error unless there is a legal principle or statutory provision that attracts that consequence: they cite Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20 / 2002 (2003) 198 ALR 59 ; [2003] HCA 30 ( S20 ) at 61 per Gleeson CJ. Whether relying on Wednesbury unreasonableness or "illogicality, unreasonableness and perversity", as in S20 , one must identify a particular statutory provision or other legal principle that has been infringed. The non-Optus access seekers submit that Wednesbury unreasonableness is directed at outcomes, whereas S20 illogicality is directed at processes of reasoning: see S20 [2003] HCA 30 ; 198 ALR 59 at 76 per McHugh, Gummow JJ, 88 per Kirby J. 258 Observations made in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 ( Eshetu ) and S20 are, in my view, relevant to both grounds. 260 In S20 , after referring to Eshetu , Gleeson CJ stated (at [5]) that if it is suggested that there is a legal consequence of illogical, unreasonable or irrational reasoning: [I]t may be necessary to be more precise as to the nature and quality of the error attributed to the decision-maker, and to identify the legal principle or statutory provision that attracts the suggested consequence.


case_title: Repatriation Commission v Harrison (1997) 78 FCR 442


case_outcome: referred to

case_text: I have previously heard and determined three proceedings in which Telstra challenged FDs made by ACCC in relation to access disputes under Div 8: see Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1436 ; (2008) 171 FCR 174 (Earlier Reasons) and Telstra Corporation Ltd v Australian Competition and Consumer Commission and Others (No 2) (2008) 251 ALR 372; [2008] FCA 1640. 498 All 14 applications should be dismissed with costs. I certify that the preceding four hundred and ninety-eight (498) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 17 July 2009 Telstra Corporation Limited v ACCC and Optus Networks Pty Limited (proceeding NSD 717/2008) and XYZed Pty Limited (proceeding NSD 529/2008): Counsel for the Applicant: Dr J E Griffiths SC and Ms M N Allars Solicitors for the Applicant: Mallesons Stephen Jaques Counsel for the First Respondent: Mr J S Hilton SC and Mr M H O'Bryan Solicitor for the First Respondent : Australian Government Solicitor Counsel for the Second Respondents: Mr A Robertson SC and Mr S J Free Solicitors for the second Respondents: Clayton Utz Telstra Corporation Limited v ACCC and Agile Pty Ltd (proceeding NSD 69/2008), Adam Internet Pty Limited (proceeding NSD 70/2008), Primus Telecommunications Pty Limited (proceeding NSD 72/2008), Amcom Pty Ltd (proceeding NSD 73/2008) NetworkTechnology (Aust) Pty Ltd (proceeding NSD 75/2008), Primus Telecommunications Pty Limited (proceeding NSD 78/2008), Macquarie Telecom Pty Limited (proceeding NSD 105/2008, PowerTel Limited (proceeding NSD 531/2008), Request Broadband Pty Ltd (proceeding NSD 533), Chime Communications Pty Ltd (proceeding NSD 718/2008) and Primus Telecommunications Pty Limited (proceeding NSD 719/2008) Counsel for the Applicant: Dr J E Griffiths SC and Ms M N Allars Solicitors for the Applicant: Mallesons Stephen Jaques Counsel for the First Respondent: Mr J S Hilton SC and Mr M H O'Bryan Solicitor for the First Respondent : Australian Government Solicitor Counsel for the Second Respondents: Ms M Sloss SC and Mr M J Hoyne Solicitors for the Second Respondents, except Macquarie Telecom Pty Limited: Herbert Geer Solicitors for Macquarie Telecom Pty Limited: Nicholls Legal Telstra Corporation Limited v ACCC and TPG Internet Pty Ltd (proceeding NSD 77/2008)) Counsel for the Applicant: Dr J E Griffiths SC and Ms M N Allars Solicitors for the Applicant: Mallesons Stephen Jaques Counsel for the First Respondent: Mr J S Hilton SC and Mr M H O'Bryan Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: Mr M J Hoyne Solicitors for the Second Respondent: Nicholls Legal Dates of Hearing: 25, 26, 27 August, 8, 9, 10, 11, 12, 19 September 2008 Date of Judgment: 17 July 2009 ANNEXURE Acronyms and Terms 2002 LSS Pricing Principles Pricing principles made by ACCC pursuant to s 152AQA of the Act in August 2002 (set out in Ch 7 of the LSS Declaration Final Report). 2002 ULLS Pricing Principles Pricing principles for the ULLS that were contained in Chapter 4 of ACCC's final report on pricing methodology for the ULLS that was published in March 2002. 2003 ULLS Model Terms See ULLS Model Terms 2007 LSS Pricing Principles Pricing principles made by ACCC pursuant to s 152AQA of the Act, by an instrument that was dated 24 October 2007, and registered in the Federal Register of Legislative Instruments on 14 December 2007, supported by reasons in Ch 3 of the LSS Declaration Review. 2007 ULLS Pricing Principles Pricing principles for the ULLS determined by ACCC under s 152AQA of the Act on 21 November 2007 in Pricing Principles for the Unconditioned Local Loop Service . 2007 ULLS Pricing Principles Report ACCC's report of November 2007 on pricing principles in relation to the ULLS to be made pursuant to s 152AQA of the Act see 2007 ULLS Pricing Principles. 2008 ULLS Pricing Principles and Indicative Prices Pricing principles and indicative prices for the ULLS determined by ACCC under s 152AQA of the Act in June 2008 in Unconditioned Local Loop Service: Pricing Principles and Indicative Prices . AAAP Amcon, Adam, Agile and Primus, four access seekers who made a joint submission in the ACCC arbitrations. ACCC Australian Competition and Consumer Commission, the first respondent (also referred to as the Commission). Access Dispute Resolution Guidelines ACCC's Resolution of telecommunications access disputes a guide (revised version) made in March 2004, sections 7.4.2 to 7.4.6 of which contained backdating guidelines formulated under s 152DNA(8). Access provider Carrier or carriage service provider that supplies declared services to itself or other persons see s 152AR of the Act. For present purposes the only relevant access provider is Telstra. access seeker A service provider that makes, or proposes to make, a request for access to a declared service under s 152AR of the Act. In each of the present fourteen proceedings, the second respondent is an access seeker. ACIF Australian Communications Industry Forum. Act Trade Practices Act 1974 (Cth). Adam Adam Internet Pty Limited, the second respondent in proceeding NSD 70/2008. ADC Access Deficit Contribution. ADJR Act Administrative Decisions (Judicial Review) Act 1977 (Cth). ADSL Asymmetric Digital Subscriber Line. A compression technology that supports high speed digital services over conventional copper telephone lines. Agile Agile Pty Ltd, the second respondent in proceeding NSD 69/2008. AI Act Acts Interpretation Act 1901 (Cth) Amcom Amcom Pty Ltd, the second respondent in proceeding NSD 73/2008. Annual Access Charges The annual charge payable for access to a declared service, often payable monthly and sometimes referred to as a monthly access charge. Broadband Imprecise, but often used to refer to telecommunications capable of providing multiple channels of data over a single communications medium, typically using some form of frequency or wave division multiplexing. CAN Customer Access Network. The portion of the PSTN which comprises the transmission system connecting customers to an aggregation point within the network (usually a local exchange building). In Australia, that connection is normally achieved by copper wire pairs. CDNO Call Diversion (Number Only). Chime Chime Communications Pty Ltd, the second respondent in proceeding NSD 718/2008. Churn The transfer of a telecommunications customer from one provider to another, such as from Telstra to Request or from Request to Chime or from Adam to Telstra. CRA Customer Relationship Agreement DFD A Draft Final Determination that is provided by ACCC to Telstra and an access seeker in an arbitration under Div 8 of Pt XIC of the Act, on which they are invited to make submissions. DFD Consultation Paper A consultation paper that is provided by ACCC to the parties to an access dispute arbitration, accompanying ACCC's DFD in that arbitration. See DFD. DFD Supplementary Consultation Paper DFD supplementary consultation paper issued by ACCC to the parties to the ADAM LSS arbitration on 7 November 2007. DSL Digital Subscriber Line. DSL services are provided over the high frequency spectrum of a ULL. DSLAM Digital Subscriber Line Access Multiplexer D-ULLS (or DULLS) Diversion ULLS. A species of call diversion that is required in the context of ULLS ordering and provisioning. Earlier Reasons The reasons of the Court in Telstra Corporation Ltd v Australian Competition & Consumer Commission [2008] FCA 1436 ; (2008) 171 FCR 174 End-user A retail customer of a service provider. FD Final Determination. It is the various FDs in the 14 arbitrations under Div 8 of Pt XIC of the Act that are the subject of Telstra's challenge in the 14 proceedings. FD Statement of Reasons A statement of ACCC's reasons supportive of, and accompanying, an FD. Findings or Four Findings The four factual findings made by ACCC in each LSS arbitration, identified as "Findings 1,2,3 and 4" or "the Findings" or "the Four Findings" LI Act Legislative Instruments Act 2003 (Cth) Local loop Line between end-user's premises and a local exchange. LNP Local Number Portability. LSS Line Sharing Service (also known as the High Frequency Unconditioned Local Loop Service). The LSS was defined in the LSS Extension Declaration (the definition appears at [20] in these reasons). LSS Annual Charge Annual charge made or to be made by Telstra to the access seekers for access to the LSS, payable monthly, and sometimes referred to as "LSS monthly charge." LSS Declaration Declaration of the LSS as a declared service under s 152AL of the Act with effect on 16 October 2002. With effect from 3 December 2003, the expiry date of the LSS Declaration was extended to 31 October 2007. By the LSS Extension Declaration, the expiry date of the LSS Declaration was further extended to 31 July 2009 (see LSS Extension Declaration). LSS Declaration Final Report ACCC's Line Sharing Service: Final Decision on whether or not a Line Sharing Service should be declared under Pt XIC of the Trade Practices Act 1974 published in August 2002 following ACCC's inquiry into whether or not an LSS should be declared under Pt XIC of the Act. LSS Declaration Review ACCC's Review of the LSS Declaration published in October 2007 which supported extension of the expiry date of the LSS Declaration resulting in the LSS Extension Declaration, and which contained in chapter 3 ACCC's reasons for the 2007 LSS Pricing Principles. LSS Extension Declaration This declaration of ACCC dated 26 October 2007 and published in the Gazette on 29 October 2007 extended the expiry date of the LSS Declaration from 31 October 2007 to 31 July 2009. LSS Monthly Charge Undertaking Assessment See ULLS and LSS Monthly Charge Undertaking Assessment. LSS Pricing Principles or 2007 LSS Pricing Principles Pricing principles determined by ACCC in relation to the LSS pursuant to s 152AQA of the Act. The 2002 LSS Pricing Principles were set out in Ch 7 of the LSS Declaration Final Report. The 2007 LSS Pricing Principles were determined by an instrument dated 24 October 2007 that was registered in the Federal Register of Legislative Instruments on 14 December 2007 with effect on and from 15 December 2007. LTIE Long-term interests of end-users. The object of Pt XIC of the Act is to promote the LTIE (s 152AB(1)) and the LTIE is a matter that ACCC must take into account in making a final determination in resolution of a dispute over access to a declared service (s 152CR(1)(a)). Macquarie Macquarie Telecom Pty Limited, the second respondent in proceeding NSD 105/2008. MNM Managed Network Migration. A transfer or migration of services that is achieved by a coordinated cancellation and connection of services to be distinguished from "single" disconnections and connections. Narrowband A reference to the low frequency spectrum or voiceband frequency spectrum. Network Network Technology (Aust) Pty Ltd, the second respondent in the proceeding NSD 75/2008. Optus Optus Networks Pty Limited, the second respondent in Proceeding NSD 717/2008. PowerTel PowerTel Limited, the second respondent in proceeding NSD 531/2008. Pooling and Allocation Method A method of arriving at the specific cost component to be included in the Annual Charge for access to the LSS according to which the specific cost of providing access to the LSS is pooled with the specific cost of providing access to the ULLS and Telstra's internal equivalent cost for ADSL, and the pool is allocated across the number of active LSS, ULLS and ADSL lines. Primus Primus Telecommunications Pty Limited, the second respondent in proceedings NSD 72/2008, 78/2008 and 719/2008. PSTN Public Switched Telephone Network. The switched telephone telecommunications network to which public customers can be connected. The infrastructure for basic telecommunications services (including telephones, switches, local and trunk lines, and exchanges), enabling any customer to call and communicate with any other customer. Request Request Broadband Pty Ltd, the second respondent in proceeding NSD 533 of 2008. SAOs Standard access obligations provided for in s 152AR of the Act. Service provider The provider of a service to an end-user. The service provider will previously have been an access seeker in respect of a declared service. SIO Service in operation. Telephony A generic term describing voice telecommunications. Telstra Telstra Corporation Limited, the applicant in each of the 14 proceedings. TPG TPG Internet Pty Ltd, the second respondent in proceeding NSD 77/2008. Tribunal Australian Competition Tribunal TSLRIC Total Service Long-Run Incremental Cost. TSLRIC+ TSLRIC plus a contribution to indirect and overhead costs. TSLRIC++ TSLRIC+ plus an additional amount as an ADC. ULL Unconditioned Local Loop. The bare or unqualified wire between the end-user's premises and the local exchange. The LSS and the ULLS are both provided over the ULL. ULLS Unconditioned Local Loop Service. The ULLS was defined in the ULLS Re-Declaration (the definition appears at [21] of these reasons). ULLS Declaration Declaration of the ULLS as a declared service under s 152AL with effect on 11 August 1999, by an instrument dated 4 August 1999 that was gazetted on 11 August 1999. The description of the ULLS as declared was varied by an instrument dated 18 May 2000 that was gazetted on 24 May 2000 with effect on that date. By an instrument dated 28 July 2006 that was gazetted on 9 August 2006, ACCC re-declared the ULLS as a declared service with effect on 1 August 2006 and expiring on 31 July 2009. ULLS Model Terms (or 2003 ULLS Model Terms) Model terms and conditions relating to the ULLS made by ACCC in October 2003 pursuant to s 152AQB(2) of the Act in Final Determination for Model Price Terms and Conditions of the PSTN, ULLS and LCS Services . ULLS Monthly Charge Undertaking Assessment ACCC's final report of August 2006 assessing Telstra's proferred ULLS monthly charge undertaking. ULLS and LSS Monthly Charge Undertaking Assessment ACCC's final report published in December 2005 on its assessment of Telstra's proffered ULLS and LSS monthly charge undertakings. ULLS Pricing Principles (or 2007 ULLS Pricing Principles) Pricing Principles applicable to the ULLS determined pursuant to s 152AQA of the Act on, and commencing on, 21 November 2007. ULLS Re-Declaration See the last sentence under "ULLS Declaration". ULLS Undertakings Discussion Paper ACCC's March 2005 Telstra's Undertakings for the Unconditioned Local Loop Service . WACC Weighted Average Cost of Capital. A reference to the average cost to Telstra of attracting equity and loan capital investment in its business, determined in accordance with a formula. WLR Wholesale Line Rental service. xDSL The "family" of DSL services, including ADSL services. XYZed XYZed Pty Limited, the second respondent in proceeding NSD 529/2008. AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/757.html


case_text: I have previously heard and determined three proceedings in which Telstra challenged FDs made by ACCC in relation to access disputes under Div 8: see Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1436 ; (2008) 171 FCR 174 (Earlier Reasons) and Telstra Corporation Ltd v Australian Competition and Consumer Commission and Others (No 2) (2008) 251 ALR 372; [2008] FCA 1640. 121 I considered the issue of severance of a backdating provision of an FD in Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2) (2008) 251 ALR 372 ; [2008] FCA 1640 at [4] ff, and concluded (at [48]) that the provisions of the FDs relating to the backdated monthly access charges in those proceedings could be severed, with the result that those FDs remained effective in so far as they resolved all other aspects of the access disputes. The issue of the backdated monthly access charges was remitted to ACCC. 122 If I am wrong in concluding that ACCC did not fail to take into account the ULLS Model Terms, I would conclude that the charges in relation to the year represented in the column headed 2005-06 in Schedule 1 to the Optus ULLS FD (see [91] above) are severable, and adopt what I said in Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2) above, mutatis mutandis , in relation to the severance issue. Conclusion 123 For the above reasons the ULLS Model Terms ground is not made out. C CALL DIVERSION Introduction and Annexure 124 This ground is relied on in three ULLS proceedings. It is Ground 4 in each of the Optus and Chime ULLS proceedings and Ground 1 in the Primus ULLS (Connections) proceeding. It is the only ground relied on in that proceeding.


case_text: ACCC also submits that it is irrelevant, if it be the fact, that call diversion itself could have been declared a "declared service". ACCC points to the breadth of the chapeau to s 152CP(2) and to the examples found in paras (d) and (e) of that subsection. ACCC calls in aid of its construction of s 152CP the special nature of Div 8 arbitrations as exercises that are to take place in the public interest, not just the private interests of Telstra and the access seeker (ACCC refers to Telstra Corporation Ltd v Commonwealth [2008] HCA 7 ; (2008) 234 CLR 210 at [32] ff). Consideration 157 I have concluded that s 152CP(2) authorised ACCC to include the provision for the charge to be paid "in respect of call diversion as part of a ULLS connection" in the Optus, Chime and Primus ULLS (Connections) FDs. 158 First, however, I will briefly refer to s 152CP(1).


case_title: Visa International v Reserve Bank of Australia [2003] FCA 977 ; (2003) 131 FCR 300


case_title: Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5 ; (2008) 242 ALR 383

case_text: Optus submits that while an error of principle in arriving at a value may amount to an error of law, the cases in which that has been held to be so have concerned statutory valuation exercises, and in any event the approach should be treated with caution: Optus cites Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5 ; (2008) 233 CLR 259 ( Walker Corporation ) at 269-272. Optus submits that in any event Telstra has failed to identify the "principle" which it says ACCC ignored or misapplied. Optus distinguishes the particular substantive principles considered in Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426 and the related authorities cited by Telstra (see [219] above). In Walker Corporation the High Court (at 270) cautioned against importing into one case general "principles" derived from other cases that arose in different statutory contexts. Optus submits that Telstra has not identified in Pt XIC of the Act or in the common law a source of any "principles" that control the arbitral powers conferred on ACCC by Div 8 of that Part.


case_title: Ward v Repatriation Commission (1997) 46 ALD 454


case_outcome: considered

case_text: In Abrahams v Comcare [2006] FCA 1829 ; (2006) 93 ALD 147 , Madgwick J recognised that different descriptions can be given of the one injury and said at [18] that ' a broad, generous and practical interpretation ' should be made to recognise the understanding of the lay person making the claim and different levels of medical advice and to understand whether the lay person completing it was asserting a different injury to that notified. The Tribunal said that, in applying the principles in Abrahams , it was satisfied that the proper interpretation of the claim made by Mr Sellick was for ' an injury which caused pain in the upper back, which included, but was not limited to, pain in the area of the right scapula '. Accordingly, the Tribunal determined that although Mr Sellick did not then suffer the effects of the soft tissue injury to the right shoulder, it could proceed to consider whether he continued to suffer the effects of the aggravation of the degenerative condition of his spine and the sprain of the interspinous ligament. Based on the views of Drs Griffith and Cassar, the Tribunal found that his duties are likely to continue to aggravate those conditions and to make the conditions symptomatic. 56 The Tribunal accepted that the effects of the injury to the right shoulder had resolved by the date of its decision. While it did not specify whether it had resolved by the date of the reviewable decision, it is implicit from the reasoning that the Tribunal accepted that it had resolved by that time. The basis for the Tribunal's decision was that the use of the V-sort machine also caused the additional conditions. The effects of the additional conditions continued to be present at the date of the decision and, therefore, necessarily present at the date of the reviewable decision. While the Tribunal noted at [55] that Mr Sellick's description of his symptoms was referable to one or both of the additional conditions, it accepted on the basis of the medical evidence as a whole that he suffered from both injuries (at [59]). Contrary to the submissions of Australia Post, the Tribunal's reasons sufficiently explain why it accepted both diagnoses. 57 No accident report or claim was specifically made for the additional conditions as is required by ss 53 and 54 of the SRC Act. If the additional conditions had not been the subject of a notice of injury under s 53, a claim for compensation under s 54, a determination under s 60, a reviewable decision under s 62 and an application to the Tribunal under s 64 of the SRC Act, the Tribunal had no power or jurisdiction to make the decision that it did. Australia Post accepts that, as the Tribunal noted, the medical certificates provided in support of the shoulder claim referred to complaints referable to the upper back and not related to the shoulder. A medical assessment by Dr Chew of July 2004 noted that Mr Sellick suffered from mid thoracic spine pain in October 2002 with no specific injury to account for the onset of his pain. Dr Chew's diagnosis of his then current condition was of soft tissue injury to his mid thoracic spine while carrying out his postal delivery duties, superimposed on constitutional degenerative changes in his thoracic spine. Australia Post accepts that the reviewable decision addressed whether the problems were due to an underlying constitutional disorder not caused, aggravated or accelerated by his employment. However, a mere reference to the spine in some of the medical certificates is, Australia Post says, insufficient compliance with the SRC Act. 60 There is no explanation given by the Tribunal for the conclusion that the injury of October 2002, described as pain in the right shoulder, caused the additional conditions. Even if the claim were for injury to another part of the body that resulted in right shoulder pain, the Tribunal accepted that the effects of that injury had resolved. Unlike Abrahams where the applicant for review described a wrist injury but did not state the correct diagnosis, the injury to Mr Sellick's shoulder had resolved and different injuries were accepted as a basis for liability. The injuries may have arisen out of Mr Sellick's employment with Australia Post (as accepted at [60]) but the Tribunal has not explained how they arose out of the claimed injury in 2002. It is noteworthy that the medical reports of 2002 summarised by the Tribunal were not the ones referred to as supporting the Tribunal's conclusions. 61 Mr Sellick accepts that the Tribunal characterised the additional conditions as injuries separate to the injury to the right shoulder and that it found three separate injuries, all suffered in 2002. He says that the Tribunal at [66] only accepted that Mr Sellick no longer suffered the effects of the soft tissue injury to the right shoulder but continued to suffer pain, including pain in the right shoulder, arising from the spinal injury and the sprain to the interspinous ligament. If that is the case, the Tribunal's reasoning is far from clear. At [52] the Tribunal expressed itself satisfied that ' at present he does not suffer the effects of ' a soft tissue injury to his shoulder but was satisfied that, at the date of its decision, he ' continues to suffer, pain in the mid-upper back as a result of an aggravation of the condition of degenerative cervical spondylosis and/or a chronic sprained interspinous ligament '. That is, the only ongoing pain as at the date of the Tribunal decision was in the mid-upper back and not in the shoulder. 62 Dr Cassar's report noted that the claimed injury was ' right shoulder girdle injury '. He referred to association with the cervical spine. Changes to a minor degree noted in the upper thoracic spine were, in his view, unrelated to employment but aggravated by ' persisting work necessitating constant above shoulder work...as well as work necessitating repeated lifting of full postal bags weighing in excess of 10kg '. Dr Griffith referred to cervical spondylosis which was not work related with "minimal changes" in the thoracic region and said that it was "likely" that the use of the V-sort ' aggravated the symptoms from which he now suffers '. Dr Griffith's prognosis was of cervical and thoracic spondylosis with periodic exacerbations and remissions ' irrespective of activities in the workplace '. He was also of the view that pre-existing degenerative changes would have been rendered symptomatic by activities in the workplace. While each report linked Mr Sellick's work activities and the pain in the mid-thoracic spine, they did not explain the connection with the claimed injury. 70 In circumstances where all pain resulting from the injury ceased when Mr Sellick ceased duties and the claimed injury causing pain in the right shoulder had resolved, the Tribunal did not give reasons for its conclusion that the additional conditions, which it accepted to be different injuries but work-related, were caused by or connected with the claimed injury. This is not a case, like Abrahams , where the medical diagnoses differently described the same injury as that claimed. The way that Mr Sellick described the pain in his shoulder did not limit the relevant injury only to the right shoulder. However, the claim was for an injury that covered pain in the right shoulder. The Tribunal accepted that both the pain to the shoulder and injury to the shoulder had resolved. The Tribunal did not explain how the additional conditions that continued after the shoulder pain resolved were related to the claimed injury of shoulder pain.


case_text: Australia Post accepts that the Tribunal does not need to cover every aspect of every factual matter. It submits, however, that the Tribunal failed to consider submissions of substance which, if accepted, were capable of affecting the outcome of the case. Such a failure constitutes an error of law, as does the failure to consider a claim or the integer of a claim ( Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 ; (2003) 75 ALD 630 ; Casarotto v Australian Postal Corporation [1989] FCA 116 ; (1989) 86 ALR 399 at 403 per Hill J citing Dennis Willcox Pty Ltd v FCT (1988) 79 ALR 267 at 276 per Jenkinson J). Australia Post relies on the silence of the Tribunal's reasons in respect of the various specific matters raised. A failure to advert to the content of submissions does not of itself necessarily mean that the matter was not considered ( Tobacco Institute of Australia Ltd v National Health and Medical Research Council (1996) 71 FCR 265 at 279 per Finn J). If the particular submission did not go to the substance of the decision or would not have affected the outcome, failure to advert to it in the reasons does not mean that the matter was not considered and does not give rise to error of law.


case_text: A decision made under an enactment is invalid if there is a total absence of evidence to satisfy an essential element of the decision. The question whether there is any evidence of a particular fact is a question of law ( Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-356 per Mason CJ). 92 Section 44(1) of the AAT Act provides that: (1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding. 93 Section 5 of the ADJR Act relevantly provides that: (1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds: (a) that a breach of the rules of natural justice occurred in connection with the making of the decision; ... (e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made; (f) that the decision involved an error of law, whether or not the error appears on the record of the decision; ... 95 Section 5(1)(f) of the ADJR Act contains a stipulation in the word "involved" that the error be material in contributing to the decision so that but for the error, the decision might have been different ( Bond at 353 354 per Mason CJ, East Australia Pipeline Pty Ltd v ACCC [2007] HCA 44 ; (2007) 239 ALR 50 at [71] per Gummow & Hayne JJ). As discussed, the error of the Tribunal in respect of the second reviewable decision is such an error of law. 101 Mr Sellick submits that where an appeal lies under s 44 of the AAT Act, applications brought under s 5 of the ADJR Act should be dismissed unless the subject of the appeal is a decision going to practice and procedure. He relies on Duong v Australian Postal Corporation (2005) 41 AAR 288 at [12] where Edmonds J dismissed an ADJR Act application where the Tribunal decision did not go to practice and procedure. His Honour followed Tuite v Administrative Appeals Tribunal [1993] FCA 71 ; (1993) 40 FCR 483 where Davies J had held that, as s 44 of the AAT Act provides a specific procedure for the granting of relief by the Court in respect of decisions of the AAT, that procedure should be adopted and applications brought under s 5 of the ADJR Act, where an appeal under s 44 of the AAT Act is available, should be dismissed as of course (at 484). Justice Davies expressed the view at 484 that questions of law as provided for in s 44 of the AAT Act encompass grounds enunciated in s 5 of the ADJR Act. Duong was decided prior to Etheridge , a decision of the Full Court and Tuite was decided prior to Birdseye, which discussed the difficulties in the framing of questions of law . Further, the ADJR Act is not only available for matters of practice and procedure ( Bond at 337 per Mason CJ; Griffith University v Tang [2005] HCA 7 ; (2005) 221 CLR 99 at [89] [90] per Gummow, Callinan and Heydon JJ).


case_text: The medical opinion accepted by the Tribunal, given some two years after the claimed injury, was that the additional conditions were aggravated by Mr Sellick's work duties. The Tribunal does not explain how the claimed pain and injury of 2002 which had resolved resulted in the additional conditions which, in turn, were the reason for Mr Sellick's ongoing pain. The 2004 diagnoses were made well after the injury he sustained in 2002. Mr Sellick has not demonstrated how they fulfil the claim requirements of the SRC Act. It is impossible to understand from the Tribunal's reasons the reasoning process that led it to conclude that Australia Post continued to be liable for a claimed injury that had resolved and where the claimed symptoms of that injury had resolved. The Tribunal accepted that the additional conditions were caused by or rendered symptomatic by Mr Sellick's work duties but did not explain the connection with the specific claim. Failure to consider issues critical to the validity of its decision is a failure to address the correct legal question which is an error of law ( Australian Postal Corporation v Barry [2006] 44 AAR 186 at [23] [24]). There is an error of law where the Tribunal's reasoning is impossible to understand ( Lang at [55]). 99 Justice Branson pointed out at [27] and [30] in Etheridge that judicial review under s 5(1) of the ADJR Act is also available for Tribunal decisions under the SRC Act where such an application is made. In Brown v Repatriation Commission [2006] FCA 914 Branson J referred at [8] to the fact that the ADJR Act provided an alternative source of jurisdiction to the AAT Act. In Barry Branson J made orders under s 5 of the ADJR Act for errors of law when it was not clear that the Court's jurisdiction under s 44(1) of the AAT Act was properly invoked. Mr Sellick argues that her Honour's comments in Etheridge and Brown are obiter and that Ms Barry was unrepresented so that no submissions on jurisdiction under the ADJR Act were made.


case_text: In Birdseye , the appeal was brought in reliance on s 44 of the AAT Act. Justices Branson and Stone expressed approval of comments made by Gummow J in TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 at 178 where his Honour pointed out that where an appeal lies "on a question of law" the subject matter of the appeal is the question or questions of law stated ( Birdseye at [11]; cf Etheridge at [13]). Their Honours also approved the comments of Ryan J in Australian Telecommunications Corp v Lambroglou (1990) 12 AAR 515 at 527 namely that ' If the question, properly analysed, is not a question of law no amount of formulary like "erred in law" or "was open as a matter of law" can make it into a question of law ' ( Birdseye at [13] [15]; cf Etheridge at [15]). Accordingly, a mixed question of fact and law is not a question of law within s 44(1) of the AAT Act ( Birdseye at [18]).


case_text: In Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 , Branson J (Spender and Nicholson JJ agreeing) stated at [14] that the legislature, by creating a statutory right of appeal to a party to a proceeding before the Tribunal in the narrow terms of s 44(1) of the AAT Act, ' disclosed an intention to limit the capacity of the Court on an appeal under s 44(1) to review factual findings of the Tribunal '. An appeal under s 44 is therefore different to an appeal by way of rehearing under s 24 of the Federal Court of Australia Act 1976 (Cth). Rather, an appeal under s 44 is of the same character as the subject matter of a reference of a question of law under s 45 of the AAT Act. Justice Branson also summarised (and applied) Birdseye v Australian Securities and Investment Commission [2003] FCAFC 232 ; (2003) 76 ALD 321. 98 In Birdseye , the appeal was brought in reliance on s 44 of the AAT Act. Justices Branson and Stone expressed approval of comments made by Gummow J in TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 at 178 where his Honour pointed out that where an appeal lies "on a question of law" the subject matter of the appeal is the question or questions of law stated ( Birdseye at [11]; cf Etheridge at [13]). Their Honours also approved the comments of Ryan J in Australian Telecommunications Corp v Lambroglou (1990) 12 AAR 515 at 527 namely that ' If the question, properly analysed, is not a question of law no amount of formulary like "erred in law" or "was open as a matter of law" can make it into a question of law ' ( Birdseye at [13] [15]; cf Etheridge at [15]). Accordingly, a mixed question of fact and law is not a question of law within s 44(1) of the AAT Act ( Birdseye at [18]). 101 Mr Sellick submits that where an appeal lies under s 44 of the AAT Act, applications brought under s 5 of the ADJR Act should be dismissed unless the subject of the appeal is a decision going to practice and procedure. He relies on Duong v Australian Postal Corporation (2005) 41 AAR 288 at [12] where Edmonds J dismissed an ADJR Act application where the Tribunal decision did not go to practice and procedure. His Honour followed Tuite v Administrative Appeals Tribunal [1993] FCA 71 ; (1993) 40 FCR 483 where Davies J had held that, as s 44 of the AAT Act provides a specific procedure for the granting of relief by the Court in respect of decisions of the AAT, that procedure should be adopted and applications brought under s 5 of the ADJR Act, where an appeal under s 44 of the AAT Act is available, should be dismissed as of course (at 484). Justice Davies expressed the view at 484 that questions of law as provided for in s 44 of the AAT Act encompass grounds enunciated in s 5 of the ADJR Act. Duong was decided prior to Etheridge , a decision of the Full Court and Tuite was decided prior to Birdseye, which discussed the difficulties in the framing of questions of law . Further, the ADJR Act is not only available for matters of practice and procedure ( Bond at 337 per Mason CJ; Griffith University v Tang [2005] HCA 7 ; (2005) 221 CLR 99 at [89] [90] per Gummow, Callinan and Heydon JJ).


case_text: Justice Branson pointed out at [27] and [30] in Etheridge that judicial review under s 5(1) of the ADJR Act is also available for Tribunal decisions under the SRC Act where such an application is made. In Brown v Repatriation Commission [2006] FCA 914 Branson J referred at [8] to the fact that the ADJR Act provided an alternative source of jurisdiction to the AAT Act. In Barry Branson J made orders under s 5 of the ADJR Act for errors of law when it was not clear that the Court's jurisdiction under s 44(1) of the AAT Act was properly invoked. Mr Sellick argues that her Honour's comments in Etheridge and Brown are obiter and that Ms Barry was unrepresented so that no submissions on jurisdiction under the ADJR Act were made.


case_title: Casarotto v Australian Postal Corporation [1989] FCA 116 ; (1989) 86 ALR 399


case_text: Several decisions of the Court have followed Tuite (eg Peczalski v Comcare (1999) 58 ALD 697 per Finn J ; Chowdhary v Bayne [1999] FCA 41 ; (1999) 29 AAR 100 per Finn J ; Percerep v Minister for Immigration & Multicultural Affairs [1998] FCA 1088 ; (1998) 86 FCR 483 per Weinberg J) but Mr Sellick did not point to any case where that course was taken since Etheridge .


case_text: The failure to consider at all the way in which a party puts its case is an error of law ( Ma v FCT (1992) 37 FCR 225 at 231 per Burchett J). The failure to consider submissions of substance which, if accepted, are capable of affecting the outcome of a case is an error of law ( Comcare Australia v Rowe [2002] FCA 1034 ; (2002) 35 AAR 410 at [12] per Merkel J; Casarotto at 403 per Hill J; Applicant WAEE ).


case_text: In Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 , Branson J (Spender and Nicholson JJ agreeing) stated at [14] that the legislature, by creating a statutory right of appeal to a party to a proceeding before the Tribunal in the narrow terms of s 44(1) of the AAT Act, ' disclosed an intention to limit the capacity of the Court on an appeal under s 44(1) to review factual findings of the Tribunal '. An appeal under s 44 is therefore different to an appeal by way of rehearing under s 24 of the Federal Court of Australia Act 1976 (Cth). Rather, an appeal under s 44 is of the same character as the subject matter of a reference of a question of law under s 45 of the AAT Act. Justice Branson also summarised (and applied) Birdseye v Australian Securities and Investment Commission [2003] FCAFC 232 ; (2003) 76 ALD 321. 98 In Birdseye , the appeal was brought in reliance on s 44 of the AAT Act. Justices Branson and Stone expressed approval of comments made by Gummow J in TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 at 178 where his Honour pointed out that where an appeal lies "on a question of law" the subject matter of the appeal is the question or questions of law stated ( Birdseye at [11]; cf Etheridge at [13]). Their Honours also approved the comments of Ryan J in Australian Telecommunications Corp v Lambroglou (1990) 12 AAR 515 at 527 namely that ' If the question, properly analysed, is not a question of law no amount of formulary like "erred in law" or "was open as a matter of law" can make it into a question of law ' ( Birdseye at [13] [15]; cf Etheridge at [15]). Accordingly, a mixed question of fact and law is not a question of law within s 44(1) of the AAT Act ( Birdseye at [18]). 99 Justice Branson pointed out at [27] and [30] in Etheridge that judicial review under s 5(1) of the ADJR Act is also available for Tribunal decisions under the SRC Act where such an application is made. In Brown v Repatriation Commission [2006] FCA 914 Branson J referred at [8] to the fact that the ADJR Act provided an alternative source of jurisdiction to the AAT Act. In Barry Branson J made orders under s 5 of the ADJR Act for errors of law when it was not clear that the Court's jurisdiction under s 44(1) of the AAT Act was properly invoked. Mr Sellick argues that her Honour's comments in Etheridge and Brown are obiter and that Ms Barry was unrepresented so that no submissions on jurisdiction under the ADJR Act were made. 101 Mr Sellick submits that where an appeal lies under s 44 of the AAT Act, applications brought under s 5 of the ADJR Act should be dismissed unless the subject of the appeal is a decision going to practice and procedure. He relies on Duong v Australian Postal Corporation (2005) 41 AAR 288 at [12] where Edmonds J dismissed an ADJR Act application where the Tribunal decision did not go to practice and procedure. His Honour followed Tuite v Administrative Appeals Tribunal [1993] FCA 71 ; (1993) 40 FCR 483 where Davies J had held that, as s 44 of the AAT Act provides a specific procedure for the granting of relief by the Court in respect of decisions of the AAT, that procedure should be adopted and applications brought under s 5 of the ADJR Act, where an appeal under s 44 of the AAT Act is available, should be dismissed as of course (at 484). Justice Davies expressed the view at 484 that questions of law as provided for in s 44 of the AAT Act encompass grounds enunciated in s 5 of the ADJR Act. Duong was decided prior to Etheridge , a decision of the Full Court and Tuite was decided prior to Birdseye, which discussed the difficulties in the framing of questions of law . Further, the ADJR Act is not only available for matters of practice and procedure ( Bond at 337 per Mason CJ; Griffith University v Tang [2005] HCA 7 ; (2005) 221 CLR 99 at [89] [90] per Gummow, Callinan and Heydon JJ). 102 Several decisions of the Court have followed Tuite (eg Peczalski v Comcare (1999) 58 ALD 697 per Finn J ; Chowdhary v Bayne [1999] FCA 41 ; (1999) 29 AAR 100 per Finn J ; Percerep v Minister for Immigration & Multicultural Affairs [1998] FCA 1088 ; (1998) 86 FCR 483 per Weinberg J) but Mr Sellick did not point to any case where that course was taken since Etheridge . 104 The ADJR Act and s 39B of the Judiciary Act were introduced after the AAT Act. Decisions of the Tribunal have not been excluded by the schedule to the ADJR Act. The question of jurisdiction under those Acts in addition to jurisdiction under the AAT Act was considered by a Full Court in Etheridge . I see no reason to strike out the ADJR Act application as a matter of course. I do not accept Mr Sellick's submission that the applications cannot be advanced and heard simultaneously on similar grounds.


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


case_text: Mr Sellick submits that where an appeal lies under s 44 of the AAT Act, applications brought under s 5 of the ADJR Act should be dismissed unless the subject of the appeal is a decision going to practice and procedure. He relies on Duong v Australian Postal Corporation (2005) 41 AAR 288 at [12] where Edmonds J dismissed an ADJR Act application where the Tribunal decision did not go to practice and procedure. His Honour followed Tuite v Administrative Appeals Tribunal [1993] FCA 71 ; (1993) 40 FCR 483 where Davies J had held that, as s 44 of the AAT Act provides a specific procedure for the granting of relief by the Court in respect of decisions of the AAT, that procedure should be adopted and applications brought under s 5 of the ADJR Act, where an appeal under s 44 of the AAT Act is available, should be dismissed as of course (at 484). Justice Davies expressed the view at 484 that questions of law as provided for in s 44 of the AAT Act encompass grounds enunciated in s 5 of the ADJR Act. Duong was decided prior to Etheridge , a decision of the Full Court and Tuite was decided prior to Birdseye, which discussed the difficulties in the framing of questions of law . Further, the ADJR Act is not only available for matters of practice and procedure ( Bond at 337 per Mason CJ; Griffith University v Tang [2005] HCA 7 ; (2005) 221 CLR 99 at [89] [90] per Gummow, Callinan and Heydon JJ). 103 Australia Post submits that Duong and Tuite should not be followed. It submits that s 10 of the ADJR Act makes it plain that the rights conferred by that Act are in addition to the rights otherwise conferred to review decisions. Mr Sellick submits that, if there is concurrent jurisdiction, the Court should exercise in discretion so that the grounds of review under the ADJR Act are no more extensive than questions of law available under the AAT Act.


case_text: Section 5(1)(f) of the ADJR Act contains a stipulation in the word "involved" that the error be material in contributing to the decision so that but for the error, the decision might have been different ( Bond at 353 354 per Mason CJ, East Australia Pipeline Pty Ltd v ACCC [2007] HCA 44 ; (2007) 239 ALR 50 at [71] per Gummow & Hayne JJ). As discussed, the error of the Tribunal in respect of the second reviewable decision is such an error of law.


case_text: Australia Post contends that the Tribunal forgot or overlooked the fact that Dr Burke and Dr McGill gave oral evidence, did not therefore deal with that evidence and accordingly failed to consider the case put by Australia Post. The evidence was referred to in submissions to the Tribunal. The Tribunal made no reference to the oral evidence of Dr Burke or Dr McGill. Australia Post submits that the Tribunal may have forgotten about the evidence in view of the time that elapsed between the evidence and the decision. Australia Post says that this gives rise to jurisdictional error or denial of natural justice because of the risk that the capacity of the Tribunal for competent evaluation of the evidence was diminished by the timeframe and the delay between the evidence and the decision ( NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77 ; (2005) 228 CLR 470 at [10] - [11] per Gleeson CJ, [106] per Kirby J, [172] per Callinan and Heydon JJ). This would also give rise to an error of law. 101 Mr Sellick submits that where an appeal lies under s 44 of the AAT Act, applications brought under s 5 of the ADJR Act should be dismissed unless the subject of the appeal is a decision going to practice and procedure. He relies on Duong v Australian Postal Corporation (2005) 41 AAR 288 at [12] where Edmonds J dismissed an ADJR Act application where the Tribunal decision did not go to practice and procedure. His Honour followed Tuite v Administrative Appeals Tribunal [1993] FCA 71 ; (1993) 40 FCR 483 where Davies J had held that, as s 44 of the AAT Act provides a specific procedure for the granting of relief by the Court in respect of decisions of the AAT, that procedure should be adopted and applications brought under s 5 of the ADJR Act, where an appeal under s 44 of the AAT Act is available, should be dismissed as of course (at 484). Justice Davies expressed the view at 484 that questions of law as provided for in s 44 of the AAT Act encompass grounds enunciated in s 5 of the ADJR Act. Duong was decided prior to Etheridge , a decision of the Full Court and Tuite was decided prior to Birdseye, which discussed the difficulties in the framing of questions of law . Further, the ADJR Act is not only available for matters of practice and procedure ( Bond at 337 per Mason CJ; Griffith University v Tang [2005] HCA 7 ; (2005) 221 CLR 99 at [89] [90] per Gummow, Callinan and Heydon JJ).


case_text: "Injury" is not defined in the SRC Act in terms of its cause but in terms of an injury suffered by an employee arising out of, or in the course of, the employee's employment. The Tribunal has authority to decide whether there was liability for a particular injury or an aggravation of a disease. The Tribunal is not bound by Australia Post's assessment of what constitutes the injury ( Hannaford v Telstra Corp Ltd (2005) 88 ALD 702). Section 7(4) of the SRC Act relevantly provides that an employee is taken to have sustained an injury, being a disease or an aggravation of a disease, on the day when he or she first sought medical treatment for the disease or aggravation. Mr Sellick does not suggest that anything turns on the difference in time between the date of the injury and the seeking of medical advice. Section 7(6) relevantly provides that incapacity for work or impairment of an employee shall be taken to have resulted from a disease or an aggravation of a disease if, but for that disease or aggravation, the incapacity or impairment would not have occurred or would have commenced at a significantly later time or would have been significantly less in extent. 51 The only claim made by Mr Sellick in the approved claim form in relation to the upper body was for shoulder pain. Mr Sellick described his injury as ' pain in right shoulder '. Australia Post accepted liability for soft tissue injury of the shoulder girdle musculature. The Tribunal considered whether it had jurisdiction to take into account the effects of aggravation of the degenerative condition of the spine and ligamentous strain in deciding whether Mr Sellick had ceased to suffer the effects of the injury suffered in October 2002 and the preceding months. It expressed itself satisfied that the injury in respect of which Mr Sellick claimed compensation was not limited to the soft tissue injury of the right shoulder. It noted at [17] that the medical certificates ' at the time, or very soon after, the claim form was lodged, referred to strained muscles of the right upper back, upper back pain and interscapular stabilizer strain ' (at [63]). 52 The Tribunal also referred to Mr Sellick's history of informing some of the medical practitioners who examined him, including Dr Chew, that he suffered pain in the upper back, including the area of the mid-thoracic spine. The Tribunal concluded at [52] that: ...in the period of several months prior to and including October 2002 Mr Sellick suffered a soft tissue injury to his shoulder but that at present he does not suffer the effect of this injury . [emphasis added]


case_title: Lang v Comcare (2007) 94 ALD 141

case_text: The Tribunal has an obligation to give reasons that make it possible to understand its reasoning process. Failure to do so is an error of law ( Lang v Comcare (2007) 94 ALD 141 at [54]-[55] per Stone J citing TelePacific Pty Ltd v Commissioner of Taxation (2005) 218 ALR 85). This includes an obligation to give reasons for rejecting evidence that is plainly central to a party's claim and crucial to a medical report that supported that claim ( Lang at [54] per Stone J). As was pointed out by Stone J in Lang at [53] [55], the Tribunal is entitled to accept or reject the respective pieces of evidence before it or to accord certain pieces of evidence different weight. It is under no obligation to refer to all of the evidence before it. There is no obligation to make a finding on every question of fact that may be regarded as objectively material. The Tribunal is entitled to refer to all the medical reports, as Mr Sellick says the Tribunal did and to accept and reject evidence as it sees fit. The Tribunal is entitled to reject medical evidence or simply to prefer contrary medical evidence. It is obliged, however, to include in its reasons findings on all material questions of fact. Where a failure to give reasons makes it impossible to understand the Tribunal's reasoning process, that is an error of law. 71 Further, the Tribunal did not explain how Australia Post was liable under the SRC Act. The notice and the claim referred to right shoulder pain which had resolved. The first reviewable decision can, read beneficially to Mr Sellick, be said to have included reference to the additional conditions in that it included a reference to Dr Shroot's and Dr Chew's medical certificates of 2004 that diagnosed some upper back pain and minor soft tissue injury to his thoracic spine. However, those conditions were found to have resulted in pain in a different area to that the subject of the claim, the mid-thoracic spine. The degenerative spinal condition was a pre-existing condition. While injury or disease of the thoracic spine was referred to in the first reviewable decision, it was not the subject of that decision. It was referred to in the context of pre-existing conditions which were not relevant to the claimed injury. In finding liability under the SRC Act for the additional conditions which had not been the subject of a notice of injury (s 53), claim for compensation (s 54), a determination under s 60, the first reviewable decision (s 62) and an application to the Tribunal (s 64), the Tribunal failed to observe the limitations on its jurisdiction flowing from these sections of the SRC Act and the procedural prerequisites to entitlement to compensation under the SRC Act ( Lang at [41] [43]; Lees at [35]). 72 The medical opinion accepted by the Tribunal, given some two years after the claimed injury, was that the additional conditions were aggravated by Mr Sellick's work duties. The Tribunal does not explain how the claimed pain and injury of 2002 which had resolved resulted in the additional conditions which, in turn, were the reason for Mr Sellick's ongoing pain. The 2004 diagnoses were made well after the injury he sustained in 2002. Mr Sellick has not demonstrated how they fulfil the claim requirements of the SRC Act. It is impossible to understand from the Tribunal's reasons the reasoning process that led it to conclude that Australia Post continued to be liable for a claimed injury that had resolved and where the claimed symptoms of that injury had resolved. The Tribunal accepted that the additional conditions were caused by or rendered symptomatic by Mr Sellick's work duties but did not explain the connection with the specific claim. Failure to consider issues critical to the validity of its decision is a failure to address the correct legal question which is an error of law ( Australian Postal Corporation v Barry [2006] 44 AAR 186 at [23] [24]). There is an error of law where the Tribunal's reasoning is impossible to understand ( Lang at [55]). 73 The Tribunal failed to give reasons for its conclusion that Australia Post was liable under the SRC Act. The Tribunal is obliged to give reasons for its decision (s 43(2) of the AAT Act). While not obliged to make a finding on every question of fact that is objectively material to the Court conducting judicial review ( Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at [87] [97] ; Lang at [53]), the Tribunal is obliged to include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based (s 43(2B) of the AAT Act).


case_title: Lees v Comcare (1999) 56 ALD 84

case_text: Section 53(1) of the SRC Act provides that the Act does not apply in relation to an injury unless notice in writing of the injury is given to the relevant authority ( Lees v Comcare (1999) 56 ALD 84 at [35]). Compensation is not payable to a person under the SRC Act unless a claim for compensation is made by or on behalf of the person under s 54 (s 54(1)). Section 54(2) provides that a claim shall be made by giving the relevant authority a written claim in accordance with the form approved by Comcare and by giving a certificate by a legally qualified medical practitioner in accordance with the correct form. 71 Further, the Tribunal did not explain how Australia Post was liable under the SRC Act. The notice and the claim referred to right shoulder pain which had resolved. The first reviewable decision can, read beneficially to Mr Sellick, be said to have included reference to the additional conditions in that it included a reference to Dr Shroot's and Dr Chew's medical certificates of 2004 that diagnosed some upper back pain and minor soft tissue injury to his thoracic spine. However, those conditions were found to have resulted in pain in a different area to that the subject of the claim, the mid-thoracic spine. The degenerative spinal condition was a pre-existing condition. While injury or disease of the thoracic spine was referred to in the first reviewable decision, it was not the subject of that decision. It was referred to in the context of pre-existing conditions which were not relevant to the claimed injury. In finding liability under the SRC Act for the additional conditions which had not been the subject of a notice of injury (s 53), claim for compensation (s 54), a determination under s 60, the first reviewable decision (s 62) and an application to the Tribunal (s 64), the Tribunal failed to observe the limitations on its jurisdiction flowing from these sections of the SRC Act and the procedural prerequisites to entitlement to compensation under the SRC Act ( Lang at [41] [43]; Lees at [35]).


case_text: In Minister for Immigration & Citizenship v Hassani (2007) 94 ALD 378 there was an objection to jurisdiction under the ADJR Act and the Judiciary Act in an appeal under s 44 of the AAT Act. Separate applications were filed. Justice Besanko considered that neither the AAT Act nor the ADJR Act provided the relief sought but made orders under s 39B of the Judiciary Act (at [29] [30]; [32]).


case_text: A Tribunal may be taken to have considered the whole of the evidence although its conclusions are stated shortly ( Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59 at [111] per Gleeson CJ, Repatriation Commission v Gosewinckel [1999] FCA 1273 ; (1999) 59 ALD 690 at [59] per Weinberg J). I am not prepared to conclude that the Tribunal forgot Dr Burke's oral evidence. I accept Mr Sellick's characterisation of the Tribunal's reasons at [50] as referring only to the absence of Dr Burke's oral evidence concerning the shoulder/upper back claim and not the hernia claim.


case_text: The Tribunal failed to give reasons for its conclusion that Australia Post was liable under the SRC Act. The Tribunal is obliged to give reasons for its decision (s 43(2) of the AAT Act). While not obliged to make a finding on every question of fact that is objectively material to the Court conducting judicial review ( Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at [87] [97] ; Lang at [53]), the Tribunal is obliged to include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based (s 43(2B) of the AAT Act).


case_text: Australia Post contends that the Tribunal forgot or overlooked the fact that Dr Burke and Dr McGill gave oral evidence, did not therefore deal with that evidence and accordingly failed to consider the case put by Australia Post. The evidence was referred to in submissions to the Tribunal. The Tribunal made no reference to the oral evidence of Dr Burke or Dr McGill. Australia Post submits that the Tribunal may have forgotten about the evidence in view of the time that elapsed between the evidence and the decision. Australia Post says that this gives rise to jurisdictional error or denial of natural justice because of the risk that the capacity of the Tribunal for competent evaluation of the evidence was diminished by the timeframe and the delay between the evidence and the decision ( NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77 ; (2005) 228 CLR 470 at [10] - [11] per Gleeson CJ, [106] per Kirby J, [172] per Callinan and Heydon JJ). This would also give rise to an error of law.


case_title: Peczalski v Comcare (1999) 58 ALD 697


case_text: Several decisions of the Court have followed Tuite (eg Peczalski v Comcare (1999) 58 ALD 697 per Finn J ; Chowdhary v Bayne [1999] FCA 41 ; (1999) 29 AAR 100 per Finn J ; Percerep v Minister for Immigration & Multicultural Affairs [1998] FCA 1088 ; (1998) 86 FCR 483 per Weinberg J) but Mr Sellick did not point to any case where that course was taken since Etheridge . 105 The grounds advanced by Australia Post which I have found to be made out do not relate to grounds of review that would involve further evidence (as in Percerep ). I am not satisfied that I should strike out the ADJR Act application or exercise the discretion in s 10(2) of the ADJR Act to refuse relief under that Act. The fact that there are errors of law that found relief under the ADJR Act that are identical to the errors of law that found questions of law as set out in the application filed under the AAT Act goes to the practical outcome of the relief, a single remittal to the Tribunal.


case_title: Repatriation Commission v Gosewinckel [1999] FCA 1273 ; (1999) 59 ALD 690


case_text: With respect to the first reviewable decision the Tribunal failed to give reasons for its conclusion that the additional conditions were work-related and were related to the claimed injury and that Australia Post was liable for those additional injuries. That failure constitutes an error of law. In relation to the second reviewable decision the Tribunal failed to consider an aspect of Australia Post's case. Further, the Tribunal made a factual finding which formed the basis for its conclusions for which there was no evidence. Accordingly, the Tribunal's decision is affected by error of law and jurisdictional error. The errors of law are of a kind that support an appeal under s 44 of the AAT Act on a question of law ( Repatriation Commission v Hill [2002] FCAFC 192 ; (2002) 69 ALD 581 at [59] ). 107 The Tribunal decision regarding each of the reviewable decisions should be remitted to the Tribunal to be decided according to law. I will hear the parties as to costs. I certify that the preceding one hundred and seven (107) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 5 March 2008 Counsel for the Applicant: G T Johnson Solicitor for the Applicant: Forner Solicitors Counsel for the First Respondent: D Richards Solicitor for the First Respondent: Slater & Gordon Date of Hearing: 1 June 2007, 2 October 2007 Date of Judgment: 7 March 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/236.html


case_text: The Tribunal has an obligation to give reasons that make it possible to understand its reasoning process. Failure to do so is an error of law ( Lang v Comcare (2007) 94 ALD 141 at [54]-[55] per Stone J citing TelePacific Pty Ltd v Commissioner of Taxation (2005) 218 ALR 85). This includes an obligation to give reasons for rejecting evidence that is plainly central to a party's claim and crucial to a medical report that supported that claim ( Lang at [54] per Stone J). As was pointed out by Stone J in Lang at [53] [55], the Tribunal is entitled to accept or reject the respective pieces of evidence before it or to accord certain pieces of evidence different weight. It is under no obligation to refer to all of the evidence before it. There is no obligation to make a finding on every question of fact that may be regarded as objectively material. The Tribunal is entitled to refer to all the medical reports, as Mr Sellick says the Tribunal did and to accept and reject evidence as it sees fit. The Tribunal is entitled to reject medical evidence or simply to prefer contrary medical evidence. It is obliged, however, to include in its reasons findings on all material questions of fact. Where a failure to give reasons makes it impossible to understand the Tribunal's reasoning process, that is an error of law.


case_text: Australia Post accepts that the Tribunal does not need to cover every aspect of every factual matter. It submits, however, that the Tribunal failed to consider submissions of substance which, if accepted, were capable of affecting the outcome of the case. Such a failure constitutes an error of law, as does the failure to consider a claim or the integer of a claim ( Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 ; (2003) 75 ALD 630 ; Casarotto v Australian Postal Corporation [1989] FCA 116 ; (1989) 86 ALR 399 at 403 per Hill J citing Dennis Willcox Pty Ltd v FCT (1988) 79 ALR 267 at 276 per Jenkinson J). Australia Post relies on the silence of the Tribunal's reasons in respect of the various specific matters raised. A failure to advert to the content of submissions does not of itself necessarily mean that the matter was not considered ( Tobacco Institute of Australia Ltd v National Health and Medical Research Council (1996) 71 FCR 265 at 279 per Finn J). If the particular submission did not go to the substance of the decision or would not have affected the outcome, failure to advert to it in the reasons does not mean that the matter was not considered and does not give rise to error of law.


case_text: In Birdseye , the appeal was brought in reliance on s 44 of the AAT Act. Justices Branson and Stone expressed approval of comments made by Gummow J in TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 at 178 where his Honour pointed out that where an appeal lies "on a question of law" the subject matter of the appeal is the question or questions of law stated ( Birdseye at [11]; cf Etheridge at [13]). Their Honours also approved the comments of Ryan J in Australian Telecommunications Corp v Lambroglou (1990) 12 AAR 515 at 527 namely that ' If the question, properly analysed, is not a question of law no amount of formulary like "erred in law" or "was open as a matter of law" can make it into a question of law ' ( Birdseye at [13] [15]; cf Etheridge at [15]). Accordingly, a mixed question of fact and law is not a question of law within s 44(1) of the AAT Act ( Birdseye at [18]).


case_text: Mr Sellick submits that where an appeal lies under s 44 of the AAT Act, applications brought under s 5 of the ADJR Act should be dismissed unless the subject of the appeal is a decision going to practice and procedure. He relies on Duong v Australian Postal Corporation (2005) 41 AAR 288 at [12] where Edmonds J dismissed an ADJR Act application where the Tribunal decision did not go to practice and procedure. His Honour followed Tuite v Administrative Appeals Tribunal [1993] FCA 71 ; (1993) 40 FCR 483 where Davies J had held that, as s 44 of the AAT Act provides a specific procedure for the granting of relief by the Court in respect of decisions of the AAT, that procedure should be adopted and applications brought under s 5 of the ADJR Act, where an appeal under s 44 of the AAT Act is available, should be dismissed as of course (at 484). Justice Davies expressed the view at 484 that questions of law as provided for in s 44 of the AAT Act encompass grounds enunciated in s 5 of the ADJR Act. Duong was decided prior to Etheridge , a decision of the Full Court and Tuite was decided prior to Birdseye, which discussed the difficulties in the framing of questions of law . Further, the ADJR Act is not only available for matters of practice and procedure ( Bond at 337 per Mason CJ; Griffith University v Tang [2005] HCA 7 ; (2005) 221 CLR 99 at [89] [90] per Gummow, Callinan and Heydon JJ). 102 Several decisions of the Court have followed Tuite (eg Peczalski v Comcare (1999) 58 ALD 697 per Finn J ; Chowdhary v Bayne [1999] FCA 41 ; (1999) 29 AAR 100 per Finn J ; Percerep v Minister for Immigration & Multicultural Affairs [1998] FCA 1088 ; (1998) 86 FCR 483 per Weinberg J) but Mr Sellick did not point to any case where that course was taken since Etheridge . 103 Australia Post submits that Duong and Tuite should not be followed. It submits that s 10 of the ADJR Act makes it plain that the rights conferred by that Act are in addition to the rights otherwise conferred to review decisions. Mr Sellick submits that, if there is concurrent jurisdiction, the Court should exercise in discretion so that the grounds of review under the ADJR Act are no more extensive than questions of law available under the AAT Act.


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