case_outcome: discussed

case_text: In support of her second ground of appeal, the appellant argued that the MRT wrongly failed to have regard to the subjective aspect of the relevant regulation. Counsel cited Biyiksiz v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 814 (" Biyiksiz ") and Xiang . In Biyiksiz , Gray J held (at [20]) that "the words 'cannot reasonably be obtained' must be construed by reference to the reasonableness from the point of view of the person requiring assistance, and not only by reference to the reasonable availability of the assistance from other sources." The appellant submitted that the MRT and the learned Federal Magistrate erred by failing to consider whether other sources of assistance were reasonably available from the point of view of the nominator. 18 First, I reject the appellant's submission that the MRT failed to have regard to the subjective element of the regulation. In particular, fairly read, the MRT's decision is consistent with the reasoning of Gray J in Biyiksiz and the Full Court's decision in Xiang . 19 In Biyiksiz , the nominator was an elderly woman of a Kurdish Alevi background. She spoke no English, speaking Kurdish and a rare dialect of Turkish. The visa applicant had raised the concern that, if her mother was placed in a nursing home, her mother would be unable to communicate with the staff or other residents. The MRT had found that, regardless of these potential difficulties, places were available in nursing home facilities: see Biyiksiz at [14]. 20 Gray J found (at [22]) that the MRT fell into error because it "considered the question whether assistance could reasonably be obtained from welfare, hospital, nursing or community services from the point of view of the availability of assistance from those services, and did not consider whether the assistance was reasonably obtainable by the applicant's mother from those services". His Honour noted (at [17]) that, in Australia health and welfare services are highly developed. As a result, if the mere availability of assistance from those services meant that assistance was reasonably obtainable, then "there would be very few, if any, [special need] visas granted". Accordingly, Gray J held that the MRT should consider not simply whether other sources of assistance were available, but whether it was reasonable for the nominator to obtain such assistance. 21 The facts of this case can be distinguished from those in Biyiksiz and there is nothing in Xiang that would suggest error here. In this case, the MRT focussed on the availability of assistance from other family members. Importantly, the MRT noted that, at the time of application, the nominator was living with one of her other children and other children lived nearby. The appellant did not hold a driver's licence and thus another child transported the nominator by car. Also, one of the nominator's other daughters had recently sponsored him for an aged parent visa. In these circumstances, it was plainly open to the MRT not to be satisfied that the requisite assistance could not reasonably be obtained from one or more of his other children in Australia or public services.


case_outcome: referred to

case_text: The first respondent submitted that, contrary to the appellant's submission, the appellant had to make out both grounds of appeal in order to have the MRT's decision set aside. Referring to Truong v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1035 , the first respondent submitted that it was legitimate for the MRT to take into account evidence of events subsequent to the time of application if that evidence is probative of the relevant facts at the earlier time. The first respondent argued that, even if such evidence were not relevant, the MRT's error would, at most, be an error of fact. The first respondent also submitted that it was open to the MRT to regard the appellant's subsequent employment as relevant to her ability to provide continuing as well as substantial assistance as at the date of application. Further, the first respondent contended that, when regard was had to the context of the contested findings, it was clear that the MRT was referring to the correct date, which was the date of application. 16 With respect to the second ground of appeal, the first respondent submitted that there is no indication that the MRT did not consider the "reasonable obtainability" of assistance by the nominator as opposed to the "reasonable availability" of such assistance. Further, the MRT's conclusion was plainly open to it on the factual findings that it had made. 23 Further, I reject the appellant's submission that the MRT relevantly erred when it relied on her subsequent employment history as probative, as at the date of application, of a need to work and her ability to provide the requisite continuing (and substantial) assistance. There is no reason why subsequent events cannot shed light on the circumstances as they existed at an earlier time. For example, "medical reports, later in time to earlier medical reports concerning the same person, may serve the evidentiary function of establishing the pre-existence of illnesses, disabilities or other physical or metaphysical conditions, for which there may or may not have been symptoms already manifest at the time of earlier reports": Koulaxazov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 75 at [38] per Conti J; also Truong at [40] per Weinberg J. Moreover, a logical error in reasoning does not amount to jurisdictional error: see, e.g., VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286 at [14] - [18] per Kiefel, Marshall and Downes JJ. I find that the MRT made no logical or legal error when it considered subsequent events as probative of earlier facts.


case_text: In order to succeed on this appeal, the appellant must succeed on both the grounds that she advanced. This is because the appellant must satisfy each requirement of the visa to be eligible: see, e.g, Zahid v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 670 at [29] per Sackville J.


case_text: It would be wrong to find error simply because the MRT failed to note explicitly that it was not just considering whether other sources of assistance were available but was directing its attention to whether the nominator could reasonably obtain such assistance. A reviewing court should not read the MRT's decision overly finely with an eye attuned to the perception of error: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272 and 291 per Kirby J. Taking the reasons as a whole, there are no grounds to conclude that the MRT failed to address the correct question when it considered whether other forms of assistance could be reasonably obtained by the nominator. In fact, it is clear that the MRT did address the correct question and made its finding consonant with it.


case_text: Further, I reject the appellant's submission that the MRT relevantly erred when it relied on her subsequent employment history as probative, as at the date of application, of a need to work and her ability to provide the requisite continuing (and substantial) assistance. There is no reason why subsequent events cannot shed light on the circumstances as they existed at an earlier time. For example, "medical reports, later in time to earlier medical reports concerning the same person, may serve the evidentiary function of establishing the pre-existence of illnesses, disabilities or other physical or metaphysical conditions, for which there may or may not have been symptoms already manifest at the time of earlier reports": Koulaxazov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 75 at [38] per Conti J; also Truong at [40] per Weinberg J. Moreover, a logical error in reasoning does not amount to jurisdictional error: see, e.g., VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286 at [14] - [18] per Kiefel, Marshall and Downes JJ. I find that the MRT made no logical or legal error when it considered subsequent events as probative of earlier facts.


case_title: VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286


case_outcome: cited

case_text: was no great disagreement between counsel as to the principles to be applied in this matter. One threshold matter needs to be considered, namely, the operation, if any, of O 33 r 11 of the Federal Court Rules . I was referred to the decision of Graham J in Seven Network Ltd v News Ltd [2005] FCA 864 at [57] [59] in which, in similar circumstances, it was held that O 33 r 11 would apply and doubt was cast upon what I had said in Arrow Pharmaceuticals Ltd v Merck & Co Inc (2004) 210 ALR 593 at [10]. Leave to appeal against the decision of Graham J was granted and, although the appeal was dismissed, the Full Court made clear that O 33 r 11 did not operate at the point of pretrial production of documents, effectively overruling the decision of Graham J in that respect ( Seven Network Ltd v News Ltd [2005] FCAFC 125 ; (2005) 144 FCR 379). As this dispute is essentially about discovery and inspection it is clear, in my opinion, that the question of privilege is to be governed by the common law as defined in Esso Australia Resources Ltd v Commissioner of Taxation (Commonwealth) [1999] HCA 67 ; (1999) 201 CLR 49 rather than by the provisions of the Evidence Act 1995 (Cth). The classic statement of the dominant purpose test, which is now accepted, was that by Barwick CJ in Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 (at 677): 'a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection.' The mere involvement of an internal lawyer in an investigation does not, of itself, establish that seeking legal advice is the dominant purpose of an investigation. Furthermore, in the present case, there has been no attempt to fully explain the precise position of the internal lawyer (cf Arrow at [14]). This is not a case in which it was inevitable that the material would be provided to an external lawyer for advice and was collected only for that purpose. Privilege has not been established for interviews up to preparation of the brief for the internal lawyer. On the other hand, formal signed statements were obtained after the matter was referred to the internal lawyer for preparation of the external brief. It can be inferred that these statements were obtained in aid of the brief for external advice then in preparation. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 19 October 2006 Counsel for the Applicants: Mr RM Goot SC with Mr MJ Heath Solicitor for the Applicants: Minter Ellison Lawyers Counsel for the Respondents: Mr JH Pearce Solicitor for the Respondents: Taylor & Scott Date of Hearing: 4 October 2006 Date of Orders: 6 October 2006 Date of Reasons: 19 October 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1328.html


case_text: given by a person involved in the making of the document is not decisive as to the purpose for which the document came into existence (per Branson J in Sparnon v Apand Pty Ltd (1996) 68 FCR 322 at 328A. That is an objective question ( Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 at 548E). The onus is on the party claiming the privilege to make it out ( Mitsubishi at [11]).


case_outcome: applied

case_text: was no great disagreement between counsel as to the principles to be applied in this matter. One threshold matter needs to be considered, namely, the operation, if any, of O 33 r 11 of the Federal Court Rules . I was referred to the decision of Graham J in Seven Network Ltd v News Ltd [2005] FCA 864 at [57] [59] in which, in similar circumstances, it was held that O 33 r 11 would apply and doubt was cast upon what I had said in Arrow Pharmaceuticals Ltd v Merck & Co Inc (2004) 210 ALR 593 at [10]. Leave to appeal against the decision of Graham J was granted and, although the appeal was dismissed, the Full Court made clear that O 33 r 11 did not operate at the point of pretrial production of documents, effectively overruling the decision of Graham J in that respect ( Seven Network Ltd v News Ltd [2005] FCAFC 125 ; (2005) 144 FCR 379). As this dispute is essentially about discovery and inspection it is clear, in my opinion, that the question of privilege is to be governed by the common law as defined in Esso Australia Resources Ltd v Commissioner of Taxation (Commonwealth) [1999] HCA 67 ; (1999) 201 CLR 49 rather than by the provisions of the Evidence Act 1995 (Cth). The classic statement of the dominant purpose test, which is now accepted, was that by Barwick CJ in Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 (at 677): 'a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection.'


case_text: was no great disagreement between counsel as to the principles to be applied in this matter. One threshold matter needs to be considered, namely, the operation, if any, of O 33 r 11 of the Federal Court Rules . I was referred to the decision of Graham J in Seven Network Ltd v News Ltd [2005] FCA 864 at [57] [59] in which, in similar circumstances, it was held that O 33 r 11 would apply and doubt was cast upon what I had said in Arrow Pharmaceuticals Ltd v Merck & Co Inc (2004) 210 ALR 593 at [10]. Leave to appeal against the decision of Graham J was granted and, although the appeal was dismissed, the Full Court made clear that O 33 r 11 did not operate at the point of pretrial production of documents, effectively overruling the decision of Graham J in that respect ( Seven Network Ltd v News Ltd [2005] FCAFC 125 ; (2005) 144 FCR 379). As this dispute is essentially about discovery and inspection it is clear, in my opinion, that the question of privilege is to be governed by the common law as defined in Esso Australia Resources Ltd v Commissioner of Taxation (Commonwealth) [1999] HCA 67 ; (1999) 201 CLR 49 rather than by the provisions of the Evidence Act 1995 (Cth). The classic statement of the dominant purpose test, which is now accepted, was that by Barwick CJ in Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 (at 677): 'a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection.' There was also a question as to whether or not proceedings should be commenced. That decision involved the obtaining of legal advice and also consideration of the public interest. As an investigation progresses, it is natural that the investigator's views as to the likelihood of proceedings ensuing will develop. It may be accepted that from 10 November 2003 onwards, Alfred was of the view that proceedings were more likely than not. He was, of course, not the decision maker nor at that stage did he have the benefit of any legal advice. For the purposes of argument it may be accepted that litigation was in reasonable prospect by 10 November 2003. Even on that footing, it cannot be concluded that the interviews after 10 November 2003 took place for the dominant purpose of obtaining legal advice about, or assisting in the conduct of, any such litigation rather than completing the task of investigation which had been begun months earlier. Where there is more than one purpose for an action, it is not necessary that either should 'dominate'. In Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59 ; (2002) 4 VR 332, Batt JA (with whom Charles and Callaway JJA agreed) stated (at [10]): 'In its ordinary meaning "dominant" indicates that purpose which was the ruling, prevailing, or most influential purpose. Barwick CJ, whose view in Grant v Downs propounding the test of dominant purpose has now been adopted by the majority decision in Esso Australia Resources , distinguished "dominant" from "primary" and "substantial". Lord Edmund-Davies in Waugh, in adopting the test propounded by Barwick CJ, was of the view that the element of clear paramountcy should be the touchstone. That, as it seems to me, shows the meaning of "dominant".'


case_title: Mitsubishi Electrics Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59 ; (2002) 4 VR 332

case_text: was also a question as to whether or not proceedings should be commenced. That decision involved the obtaining of legal advice and also consideration of the public interest. As an investigation progresses, it is natural that the investigator's views as to the likelihood of proceedings ensuing will develop. It may be accepted that from 10 November 2003 onwards, Alfred was of the view that proceedings were more likely than not. He was, of course, not the decision maker nor at that stage did he have the benefit of any legal advice. For the purposes of argument it may be accepted that litigation was in reasonable prospect by 10 November 2003. Even on that footing, it cannot be concluded that the interviews after 10 November 2003 took place for the dominant purpose of obtaining legal advice about, or assisting in the conduct of, any such litigation rather than completing the task of investigation which had been begun months earlier. Where there is more than one purpose for an action, it is not necessary that either should 'dominate'. In Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59 ; (2002) 4 VR 332, Batt JA (with whom Charles and Callaway JJA agreed) stated (at [10]): 'In its ordinary meaning "dominant" indicates that purpose which was the ruling, prevailing, or most influential purpose. Barwick CJ, whose view in Grant v Downs propounding the test of dominant purpose has now been adopted by the majority decision in Esso Australia Resources , distinguished "dominant" from "primary" and "substantial". Lord Edmund-Davies in Waugh, in adopting the test propounded by Barwick CJ, was of the view that the element of clear paramountcy should be the touchstone. That, as it seems to me, shows the meaning of "dominant".' Evidence given by a person involved in the making of the document is not decisive as to the purpose for which the document came into existence (per Branson J in Sparnon v Apand Pty Ltd (1996) 68 FCR 322 at 328A. That is an objective question ( Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 at 548E). The onus is on the party claiming the privilege to make it out ( Mitsubishi at [11]).


case_outcome: followed

case_title: Seven Network Ltd v News Ltd [2005] FCAFC 125 ; (2005) 144 FCR 379


case_title: Sparnon v Apand Pty Ltd (1996) 68 FCR 322


case_text: Mr Sheahan SC, on behalf of the applicants, recognises that masking for irrelevance is specifically contemplated by the discovery orders. He also recognises that, while an unqualified order for discovery may require a party to produce unmasked copies of all partially relevant documents unless the Court grants relief from the requirement, it was appropriate for Telstra in the present case to mask the truly irrelevant portions of discovered documents: cf Gray v Associated Book Publishers (Aust) Pty Ltd [2002] FCA 1045 , at [9], [14]-[15], per Branson J; Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] FCA 353 , at [12]-[13], per Selway J; Rio Tinto Ltd v Commissioner of Taxation [2005] FCA 1335 , at [16] ff, per Sundberg J, and authorities cited there.


case_title: Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] FCA 353


case_title: Rio Tinto Ltd v Commissioner of Taxation [2005] FCA 1335


case_text: for ThoughtWeb Systems referred me to what Lord Diplock said in Harman v Secretary of State for the Home Department [1983] 1 AC 280 at 300: 'The use of discovery involves an inroad, in the interests of achieving justice, upon the right of the individual to keep his own documents to himself; it is an inroad that calls for safeguards against abuse, and these the English legal system provides, in its own distinctive fashion, through its rules about abuse of process and contempt of court.' Later, in a passage which has subsequently been cited, e.g., see EMI Resources Ltd v Spillane (1986) 1 WLR 967 at 972, his Lordship said (at 304 305): '... An order for production of documents to a solicitor on behalf of a party to civil ligation is made upon the implied undertaking given by the solicitor personally to the court (of which he is an officer) that he himself will not use or allow the documents or copies of them to be used for any collateral or ulterior purpose of his own, his client or anyone else; and any breach of that implied undertaking is a contempt of court by the solicitor himself. Save as respects the gravity of the contempt no distinction is to be drawn between those documents which have and those which have not been admitted in evidence; to make use for some collateral or ulterior purpose of the special advantage obtained by having possession of copies of any of an adverse party's documents obtained upon discovery is, in my view, a contempt of court.' In Re Addstone Pty Ltd (in liq); Ex parte Macks (1998) 30 ACSR 162, Mansfield J, after referring to what Lord Diplock had said in Harman in the first extract in [12] above, said (at 166): 'The duty which is therefore placed upon the recipient of documents procured in the course of discovery arises because, absent the proceedings, there is no entitlement to those documents. They are private. They need not necessarily contain confidential or commercially sensitive material to have that quality. It exists because of the nature of the documents, and the circumstances in which they came to be released to the other party, and not necessarily because of their contents.' More recently, in Moage Limited (in liq) v Jagelman (2002) 43 ACSR 173, Gzell J stated at [10]: 'It is the duty of a party to civil litigation who, in the course of discovery has obtained possession of copies of documents belonging to the other party, to refrain from using the advantage enjoyed by virtue of such possession for some collateral or ulterior purpose not reasonably necessary for the proper conduct of the action: Home Office v Harman [1983] 1 AC 280 at 302; [1982] 1 All ER 532 at 536. As Lee J points out in Bailey v Australian Broadcasting Corp [1995] 1 Qd R 476 at 484 while the basis of a party's obligation to limit the use of discovered documents is expressed in terms of an implied undertaking to the court, its underlying rationale can be traced to broader notions of public policy. In Riddick v Thames Board Mills Ltd [1977] QB 881 at 895; [1977] 3 All ER 677 at 687 Lord Denning MR noted that the reason for compelling discovery lies in the public interest in discovering the truth so that justice may be done between the parties. That public interest is to be put into the scales against the public interest in preserving privacy and protecting confidential information. The balance comes down in the ordinary way in favour of the public interest of discovering the truth that is in making full disclosure. The implied undertaking extends beyond documents produced on discovery to other court documents: see eg Ainsworth v Hanrahan (1991) 25 NSWLR 155 at 166-8, 169-70. The undertaking has been held to apply to witness statements and affidavits: Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509] .'


case_text: for ThoughtWeb Systems referred me to what Lord Diplock said in Harman v Secretary of State for the Home Department [1983] 1 AC 280 at 300: 'The use of discovery involves an inroad, in the interests of achieving justice, upon the right of the individual to keep his own documents to himself; it is an inroad that calls for safeguards against abuse, and these the English legal system provides, in its own distinctive fashion, through its rules about abuse of process and contempt of court.' Later, in a passage which has subsequently been cited, e.g., see EMI Resources Ltd v Spillane (1986) 1 WLR 967 at 972, his Lordship said (at 304 305): '... An order for production of documents to a solicitor on behalf of a party to civil ligation is made upon the implied undertaking given by the solicitor personally to the court (of which he is an officer) that he himself will not use or allow the documents or copies of them to be used for any collateral or ulterior purpose of his own, his client or anyone else; and any breach of that implied undertaking is a contempt of court by the solicitor himself. Save as respects the gravity of the contempt no distinction is to be drawn between those documents which have and those which have not been admitted in evidence; to make use for some collateral or ulterior purpose of the special advantage obtained by having possession of copies of any of an adverse party's documents obtained upon discovery is, in my view, a contempt of court.'


case_text: Re Addstone Pty Ltd (in liq); Ex parte Macks (1998) 30 ACSR 162, Mansfield J, after referring to what Lord Diplock had said in Harman in the first extract in [12] above, said (at 166): 'The duty which is therefore placed upon the recipient of documents procured in the course of discovery arises because, absent the proceedings, there is no entitlement to those documents. They are private. They need not necessarily contain confidential or commercially sensitive material to have that quality. It exists because of the nature of the documents, and the circumstances in which they came to be released to the other party, and not necessarily because of their contents.'


case_text: recently, in Moage Limited (in liq) v Jagelman (2002) 43 ACSR 173, Gzell J stated at [10]: 'It is the duty of a party to civil litigation who, in the course of discovery has obtained possession of copies of documents belonging to the other party, to refrain from using the advantage enjoyed by virtue of such possession for some collateral or ulterior purpose not reasonably necessary for the proper conduct of the action: Home Office v Harman [1983] 1 AC 280 at 302; [1982] 1 All ER 532 at 536. As Lee J points out in Bailey v Australian Broadcasting Corp [1995] 1 Qd R 476 at 484 while the basis of a party's obligation to limit the use of discovered documents is expressed in terms of an implied undertaking to the court, its underlying rationale can be traced to broader notions of public policy. In Riddick v Thames Board Mills Ltd [1977] QB 881 at 895; [1977] 3 All ER 677 at 687 Lord Denning MR noted that the reason for compelling discovery lies in the public interest in discovering the truth so that justice may be done between the parties. That public interest is to be put into the scales against the public interest in preserving privacy and protecting confidential information. The balance comes down in the ordinary way in favour of the public interest of discovering the truth that is in making full disclosure. The implied undertaking extends beyond documents produced on discovery to other court documents: see eg Ainsworth v Hanrahan (1991) 25 NSWLR 155 at 166-8, 169-70. The undertaking has been held to apply to witness statements and affidavits: Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509] .' That conclusion is, with respect, a corollary of the proposition that a court will not release or modify the implied undertaking save in special circumstances and where the release or modification will not occasion injustice to the person providing the documents or information in question: see Crest Homes plc v Marks [ 1987] AC 829 at 860 per Lord Oliver and the authorities referred to by Gzell J in Moage at [15]. The conclusion referred to in [22] supra also informs the obligation of a party applying for a modification or release of the undertaking to specify the documents in respect of which the modification or release is sought. In Australian Securities and Investment Commission v Marshall Bell Hawkins Limited [2003] FCA 833 at [13] , Merkel J stated in this regard: 'The requirements of specificity in respect of the documents to be used and the purpose for which they are to be used is appropriate because the implied undertaking should only be modified or released to the extent that it is in the interests of the administration of justice or in the public interest to do so: see Springfield Nominees at 225 and Moage Ltd (in liq) v Jagelman (2002) 43 ACSR 173 at 176. Thus, the modification or release should be no greater than is necessary or appropriate to meet the interests of the administration of justice or the public interest. Further, in determining whether to exercise its discretion to grant the modification or release sought, it will usually be necessary for the Court to identify with precision the documents to be released and the purpose of that release.' There are no other special circumstances, or at least none which have been identified, which would warrant a grant of leave. There are, however, other reasons which impel one to a conclusion as to why leave should not be granted: 1. The documents "IAM4" to "IAM7" were produced in response to the compulsory processes of the Court; the maintenance of any implied undertaking is all the more stronger in such circumstances: Moage , supra, at 176 per Gzell J. 2. The claim of public interest or policy, [27] supra, is fully answered by what Santow J said in Wilson Marketing Research , supra, at [11]: 'The public interest in bringing insolvent companies to winding up can be pursued by others, in particular, the Australian Securities Commission: see s 459P(1)(f) (and note also s 459P (1)(g)).' 3 . The alternative remedies available to Mr Loughnan to recover his debt other than by recourse to a winding up of ThoughtWeb Systems cannot be ignored. In the circumstances, the motion must be dismissed. While it forms no part of the reasons underlying my conclusion on the issues raised by the motion, at the time of the hearing I formed the preliminary view that the motion was brought as a strategy which, if it succeeded by having ThoughtWeb Systems wound-up, would enable Mr Loughnan to exert greater influence over the ultimate outcome of the mainstream proceedings by way of settlement, compromise or otherwise than he could possibly exert by recourse to the means otherwise available to him. Because I initially thought this might impact on my conclusion, I decided to put consideration of the motion to one side and revisit it at a later date. I have to say that this has not helped; I have not changed the preliminary view I formed at the time of the hearing although, as my conclusion in no way depends on this preliminary view, the delay it has occasioned is to be regretted. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate: Dated: 21 April 2006 Counsel for the Applicant: Mr M Condon Solicitor for the Applicant: Dibbs Abbott Stillman Counsel for the Respondent: Mr J T Johnson Solicitor for the Respondent: Norman Waterhouse Dates of Hearing: 26 October 2005, 1 November 2005 Date of Judgment: 21 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/432.html


case_text: is now well established that the release or modification of the implied undertaking will not be lightly given. In Esso Australia Resources Limited v Plowman [1995] HCA 19 ; (1995) 183 CLR 10 at 37, Brennan J stated: 'That dispensing power is not freely exercised, but it will be exercised when special circumstances appear. In the Federal Court, special circumstances have been held to exist where "there is a special feature of the case which affords a reason for modifying or releasing the undertaking and [the feature] is not usually present." It is unnecessary to consider whether the dispensing power should be so broadly defined. It is relevant to note only that the obligation enforceable as an undertaking to the Court in the case of a curial order is not unqualified.'


case_text: Halcon International Inc v Shell Transport & Trading Co . [1979] RPC 97, Whitford J stated (at 109 110) that: 'However, these authorities to my mind, lead to this conclusion, that the use of a document disclosed in a proceeding in some other context, or even in another proceeding between the same parties in the same jurisdiction, is an abuse of process unless there are very strong grounds for making an exception to the general rule. It does, I think, emerge that some overriding public interest might be a good example, but not the mere furtherance of some private interest even where that private interest arises directly out of or is brought to light as a result of the discovery made.'


case_outcome: considered

case_text: authorities were considered exhaustively by the Full Court of the Supreme Court of Western Australia in Minister for Education v Bailey (2000) 23 WAR 149; [2000] WASCA 377. At [20] , Steytler J, with whom Parker J concurred, stated: 'More recently, in Prudential Assurance Co Limited v Fountain Page Limited [1991] 1 WLR 756 at 775, Hobhouse J, while acknowledging that the Court has the power wholly or partially to release the recipient of discovered documents from the duty, or undertakings, and to permit use to be made of the documents, said that circumstances under which the relaxation would be allowed without the consent of the serving party were "hard to visualise, particularly where there was any risk that the statement might be used directly or indirectly to the prejudice of the serving party" subject to any overriding principle of public policy.' Steytler J then turned to consider a number of Australian authorities. One of those was Holpitt Pty Limited v Varimu Pty Limited (1991) 29 FCR 576 where, at 578, Burchett J stated: 'As far as the expression "special circumstances" is concerned, it is an expression which is liable to be misunderstood unless care is taken to ask and answer the question, special in relation to what? "Special" is one of those words which derive almost all their meaning from the context ... if all that is required is that, among the great number of cases in the court in which documents have been discovered, this one must evince some special feature which affords a reason for releasing or modifying the undertaking, there will be no difficulty. Circumstances in which there is a legitimate reason why documents discovered in one proceeding should be made available in another will, viewed in this way, be rare. In the ordinary course, the ordinary rule should apply, there being no special circumstance to suggest otherwise.' After reviewing that case and others, Steytler J stated at [28]: 'It is against this background that the courts have concluded that the implied undertaking or obligation will only be waived or relaxed when special circumstances are present. While I would not, with great respect, have thought that circumstances of that kind would be quite so hard to visualise as Hobhouse J expressed them to be in Prudential Assurance , the fact remains that it will ordinarily be no easy matter to secure the court's indulgence.'


case_text: Springfield Nominees Pty Limited v Bridgelands Securities Limited (1992) 38 FCR 217, Wilcox J explained what is meant by the term 'special circumstances' in these terms (at 225): 'For "special circumstances" to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court's discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.' If that be right then his case that he needs the use of the documents for which leave is sought to prove that ThoughtWeb Systems is insolvent has a hollow ring about it. Even if that be wrong, I am not persuaded that the documents, in respect of which leave is sought to use in winding up proceedings against ThoughtWeb Systems, are likely to contribute to achieve justice in such proceedings, '... perhaps [the] most important of all [of the special circumstances to be considered]': Wilcox J in Springfield Nominees , supra, at 225.


case_text: conclusion referred to in [22] supra also informs the obligation of a party applying for a modification or release of the undertaking to specify the documents in respect of which the modification or release is sought. In Australian Securities and Investment Commission v Marshall Bell Hawkins Limited [2003] FCA 833 at [13] , Merkel J stated in this regard: 'The requirements of specificity in respect of the documents to be used and the purpose for which they are to be used is appropriate because the implied undertaking should only be modified or released to the extent that it is in the interests of the administration of justice or in the public interest to do so: see Springfield Nominees at 225 and Moage Ltd (in liq) v Jagelman (2002) 43 ACSR 173 at 176. Thus, the modification or release should be no greater than is necessary or appropriate to meet the interests of the administration of justice or the public interest. Further, in determining whether to exercise its discretion to grant the modification or release sought, it will usually be necessary for the Court to identify with precision the documents to be released and the purpose of that release.'


case_text: it is submitted by counsel for ThoughtWeb Systems that Mr Loughnan has a threshold problem that even if he were granted leave to use the documents he seeks to rely on to prove the insolvency of ThoughtWeb Systems, the Court would be reluctant to hear the matter where there is a disputed debt involved. In this regard, I was referred to what was said by Santow J in Wilson Market Research Pty Ltd and the Corporations Law; Roy Morgan Research Centre Pty Ltd v Wilson Market Research Pty Ltd (1996) 39 NSWLR 311, first at [3] at 317, 318: '3. Section 459P of the Corporations Law ... provides that amongst those with standing to apply to have a company wound up are its creditors, even if they be prospective or contingent creditors. Indeed all the predecessors of s 459P , here and in the United Kingdom, similarly so provided. This followed the recommendations to the Board of Trade of the United Kingdom Amendment Committee of 1908: see at par below. By virtue of s 459P , such an applicant is required to establish a debt, in order to have standing to bring the winding up proceedings. However, where there is a bona fide dispute of substance as to the existence of the debt, it cannot be said that the claimant is a creditor who has the right to bring proceedings. Thus Ungoed-Thomas J said, in Mann v Goldstein [1968] 1 WLR 1091 at 1098-1099, in a frequently quoted passage: "... I would prefer to rest the jurisdiction directly on the comparatively simple propositions that a creditor's petition can only be presented by a creditor, that the winding-up jurisdiction is not for the purpose of deciding a disputed debt (that is, disputed on substantial and not insubstantial grounds) since, until a creditor is established as a creditor he is not entitled to present the petition and has no locus standi in the Companies Court; and that, therefore, to invoke the winding-up jurisdiction when the debt is disputed (that is, on substantial grounds) or after it has become clear that it is so disputed is an abuse of process of the court."' And then at [10] and [11] at 319, 320: '10. In CVC Investments Pty Ltd v P & T Aviation Pty Ltd (1989) 18 NSWLR 295, however, Cohen J came to a different conclusion. He did so in a case of some complexity. It appears that the winding up applications were made on the basis of presumed insolvency. However, the question of actual insolvency was also considered (at 299 and 303), though without concluding there was a situation of actual insolvency. Thus his statements of principle were not limited to a context where the only basis of the plaintiff's application was presumed insolvency, though actual insolvency was not found. His Honour concluded (at 302) (agreeing with Smart J in Ron Pritchard Pty Ltd v Horwitz Grahame Pty Ltd (1988) 6 ACLC 258) that: "The authorities seem almost unanimously to agree that where a claimed debt is bona fide disputed on substantial grounds and there is no basis for regarding the claimant as a contingent or prospective creditor then that claimant has no standing to bring proceedings to wind up the company, and if he does so the bringing of those proceedings is an abuse of process. The fact that there is a ground for winding up in existence does not give that claimant any greater standing." His Honour said (at 302) that he did not regard the decision of McPherson J in National Mutual Life Association of Australasia Ltd v Oasis Developments , upon which Young J relied, as establishing that where there is a bona fide dispute as to the whole of the debt and this dispute is based on substantial grounds, then the petitioner can still proceed with the status of a creditor. Importantly, Cohen J goes on to say (at 303) that: "... if it is established that the petitioner or plaintiff has or would have no standing to obtain a winding up order then there is no justification for proceedings being commenced or continued. If the company is insolvent then it is a matter for a creditor, established as such, or one of the other persons designated under s 383 of the Code, to bring the matter to the court. It is necessary for the court to make a careful scrutiny of the evidence in order to establish the genuineness of the alleged dispute and the substance of the defence or cross-claim. If there is a likelihood that the debt may be owing even in part then the question of the solvency of the company may become relevant in the consideration of the court's discretion." 11. ... I prefer the view of Cohen J in CVC Investments. I therefore conclude that an applicant to wind up a company claiming standing as a creditor but who fails to establish that standing, thereby commits an abuse of process of the court, which is not avoided by demonstrating that the company is actually insolvent. The court only has to consider the question of solvency after the initial threshold of standing has been passed. Before that, it is irrelevant. Both in later considering the threshold of standing, and in presently making that choice between conflicting authorities, a powerful factor remains the importance of not giving the trigger for the potentially fatal step of winding up to someone who is unable with sufficient certainty to establish that status of a creditor. As illustrated here, the mere application to wind up can have devastating commercial consequences, reinforcing the need for not making an exception for general insolvency without warrant from the words of the statute. There is the ever-present danger of an unqualified claimant using the winding up procedure as a threat to force concessions from the company concerning a claimed debt. Such a result is quite contrary to the fundamental basis of bankruptcy legislation. This basis denies preference to one creditor over another, a fortiori where the first may not have that status of creditor in reality. The public interest in bringing insolvent companies to winding up can be pursued by others, in particular the Australian Securities Commission: see s 459P(l)(f) (and note also s 459P(1)(g)). The legislature's proper concern with premature triggering is reinforced by the fact that where a contingent or prospective creditor applies, as compared to an ordinary creditor, the application requires leave of the court and that in turn requires a prima facie case of insolvency (s 459P(2) and (3)).' On the evidence before me, I am not satisfied that Mr Loughnan has standing as a creditor of ThoughtWeb Systems sufficient to bring proceedings to wind it up or, if he does have such standing, that that standing would survive disputation on the part of ThoughtWeb Systems.


case_outcome: related

case_text: On 12 June last I made orders under s 447A of the Corporations Act 2001 (Cth) (the Act) in relation to an extension of the "decision period" provided for by s 441A(1)(b) ( Australian Capital Reserve Limited (Administrators Appointed) v High Tower Investments Pty Limited (Administrators Appointed); in the matter of High Tower Investments Pty Limited (Administrators Appointed) [2007] FCA 1028). On 15 June last I made orders extending the convening period for the meeting of creditors required to be held under s 439A of the Act to midnight on 23 July 2007. I reserved consideration of any application to further extend that period indicating that, if a case were made out, I would exercise the power provided for by s 447A to achieve that end. Reasons for that decision were given together with reasons in relation to an extension of the convening period in relation to the related Estate Property group of companies (the Group) ( Hayes, in the matter of Estate Property Group Ltd (Administrators Appointed) [2007] FCA 935). Those various judgments, together with the judgment relating to the Estate Property group of companies to be handed down contemporaneously with these reasons ( Hayes, in the matter of Estate Property Group Limited (Administrators Appointed) [2007] FCA 1329) , explain the background to this application, which need not be repeated here.


case_title: Hayes, in the matter of Estate Property Group Ltd (Administrators Appointed) [2007] FCA 935


case_title: Hayes, in the matter of Estate Property Group Limited (Administrators Appointed) [2007] FCA 1329


case_text: The decision to order security for costs is discretionary and it is well accepted that the Court's discretion in this matter is unfettered. There are however, general principles that guide the Court in the exercise of its discretion. These were set out by Beazley J in KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 and repeated by French J in Carey-Hazell v Getz Bros and Co (Aust) Pty Ltd [2004] FCA 1334 at [28] as follows: "1. Whether the application for security has been brought promptly. 2. The strength and bona fides of the applicant's case. 3. Whether the applicant's impecuniosity was caused by the respondent's conduct the subject of the claim. 4. Whether the respondent's application for security is oppressive in the sense that it is being used merely to deny an impecunious applicant a right to litigate.


case_title: Cowell v Taylor (1885) 31 Ch D 34

case_text: Whether the applicant is in substance a plaintiff or the proceedings are defensive in the sense of directly resisting proceedings already brought or seeking to halt the respondent's self-help procedures." The present circumstances 5 It is common ground between the parties that Horizon's liabilities considerably exceed its assets and that it would be unable to meet a costs order in favour of the respondents. The respondents accept that impecuniosity, of itself, is not a sufficient reason to order security ( Cowell v Taylor (1885) 31 Ch D 34 at 38) however the inability of an applicant to meet the costs of a successful respondent not only "opens the jurisdiction for the giving of security" but is also a significant consideration in the exercise of the Court's discretion: Pearson v Naydler [1977] 1 WLR 899 at 906; Rosenfield Nominees v Bain & Co (1988) 14 ACLR 467 at 470. 6 The respondents submit, however, that there is an additional reason why Horizon's impecuniosity should weigh heavily in the Court's consideration of their application. They allege that it is the result of calculated and deliberate conduct directed towards frustrating the processes of the Court. The respondents submit that statements made by officers of Horizon, indicating an intention to strip the company of its assets so that there would be no assets available to meet claims made by the respondents, invite this conclusion. 7 In support of their application the respondents relied on affidavits made by employees of GlobeCast, namely: Nitish Gawde, Direct to Home Broadcast Manager and Mike Lattin Chief Executive Officer. Both gentlemen gave evidence of comments made by Mr Seymon Pinchuk, a director of Horizon at meetings on 27 April and 19 May 2006, in the course of discussions about the disputed invoices. In response to demands made by GlobeCast for Horizon to pay the amounts in the disputed invoices, Mr Pinchuk is alleged to have threatened to "wind up" or "bankrupt" or "close down" the company so that no one would be paid. They also claimed that Mr Pinchuk referred to Horizon as "just a $2 company" or said that he would "make it" a $2 company.


case_title: KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189


case_title: Pearson v Naydler [1977] 1 WLR 899


case_title: Rosenfield Nominees v Bain & Co (1988) 14 ACLR 467


case_title: Jess v Scott (1986) 12 FCR 187

case_text: It is possible under the rules of court for an extension of that 21 day period to be granted. The rules of court require that a special reason form the basis of any such extension. The leading authority in relation to whether or not to grant an extension is a decision of the Full Court in Jess v Scott (1986) 12 FCR 187. 4 In essence, special reason is intended to distinguish a particular case from the usual course, according to which the time limit is 21 days. Under the rules of court, I have a discretion to exercise, if satisfied that there is a special reason which justifies departure from the general rule in a particular case. I also remind myself that the rules of court are meant to be a servant of justice, rather than a master of justice. An application for extension of time was not lodged in court until 30 November 2007. 5 The Applicant has, by his affidavit, sworn that he did not receive the judgment until 23 October 2007 when he personally got it from the Federal Court Registry in Queens Square. I take it that what is meant by this, is that he did not get a written copy of the Magistrate's decision and reasons until then. That particular statement is not challenged by the Minister. I accept that it was not until 23 October 2007 that the Applicant received the written version of the Court's decision and reasons. Even allowing for that, more than 21 days expired prior to the application for an extension of time.


case_title: Abrahams v Comcare [2006] FCA 1829 , 93 ALD 147

case_text: 14 of the 1988 Act provides that Comcare is liable to pay compensation " in respect of an injury suffered by an employee ... ". Section 53 requires notice to be given " of the injury " and s 54 provides that compensation is not payable " unless a claim for compensation is made ..." that complies with certain requirements set out in that section. Section 54 is a procedural prerequisite to an entitlement to compensation: Lang , supra , at [43]. The claim as made by a claimant is to be given " a broad, generous and practical interpretation ...": Abrahams v Comcare [2006] FCA 1829 at [18] , [2006] FCA 1829 ; 93 ALD 147 at 152; Australian Postal Corporation v Sellick , supra , at [55]. Section 24 provides for the payment of compensation for " permanent impairment " and s 25 provides for the " interim payment of compensation " pending the final determination of a claimant's disability. Section 26 provides that " an amount of compensation payable to an employee under section 24 or 25 ... shall be paid to the employee within 30 days after the date of the assessment of the amount ".


case_title: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 , 75 ALD 630

case_text: requirement that there be " a reference to the evidence or other material on which those findings were based " has received arguably less consideration than other aspects of s 43. It is, however, clear that the requirement that there be " a reference to the evidence " does not impose a requirement that the Tribunal refer to every piece of evidence relevant to a particular finding: cf Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46] , [2003] FCAFC 184 ; 75 ALD 630 at 641 per French, Sackville and Hely JJ. And the requirement to make " a reference to the evidence " is confined to a requirement that there be a reference to the evidence of " those findings ", namely the Tribunal's findings " on material questions of fact ". In Applicant WAEE , their Honours made reference to whether an " issue has at least been identified at some point ". A mere passing reference to evidence, however, may not be sufficient compliance with the requirements imposed by s 43(2B). The mere fact that an administrative tribunal refers to information or evidence does not of itself mean that the tribunal has given that evidence proper consideration: SZGYT v Minister for Immigration and Citizenship [2009] FCA 705 at [24] per Edmonds J. But s 43(2B) does not impose any constraint as to the manner in which the Tribunal is to make " reference " to either evidence or other material upon which it proceeds to " base " its findings. The greater the conflict in the evidence, the greater may be the need for the Tribunal to make " reference " to the conflicting evidence and to set forth that evidence upon which it proceeds to " base " its findings, and to set forth its reasons for rejecting some evidence and accepting other evidence: Copperart Pty Ltd v Commissioner of Taxation [1993] FCA 462 ; (1993) 30 ALD 377 per Hill J. Although there is no necessity for the Tribunal to refer to every piece of evidence adduced before the Tribunal, a failure to advert to relevant evidence may lead to a conclusion that it has been ignored: Waldron v Comcare Australia [1995] FCA 1154 ; (1995) 37 ALD 471 at 477 per Burchett J; Centrelink v Dykstra [2002] FCA 1442 at [20] . As observed by French, Sackville and Hely JJ in Applicant WAEE , supra : [46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact ... and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. ... It is an administrative body and not a court and its reasons are not to be scrutinised "with an eye keenly attuned to error". Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law. A failure to refer to material which is " fundamental " may lead to a conclusion that there has been jurisdictional error: WAFP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 319 at [21] per Lee, Carr and Tamberlin JJ.


case_title: Application by Chime Communications Pty Ltd (No 2) [2009] ACompT 2 , 257 ALR 765

case_text: it is considered, was the Tribunal in its reasons for decision attempting to narrow down its finding to either: the resolution of a claim founded upon a " twisting " movement; or the resolution of the claim as strictly described in the account given by Ms Hughes of the events of 13 January 2006. Paragraph [43] of its reasons unquestionably exposes the fact that the Tribunal was aware of the difference between " abduction " and " adduction ". Indeed, given the expertise of the medical member of the Tribunal, it would be surprising if such a distinction was not well understood. Section 7(2)(b) of the 1975 Act provides for the appointment of persons to the Tribunal who have " experience ... in ... the practice of a profession ... " and such a member is " entitled to use his or her experience in interpreting and weighing the material and in reaching conclusions on technical matters ": cf Application by Chime Communications Pty Ltd (No 2) [2009] ACompT 2 at [7] , 257 ALR 765 at 770. But the reference by the Tribunal to the difference in the nature of the physical movements to which reference had been made in the evidence is not a sufficient basis upon which to conclude that the Tribunal was thereafter confining its attention to the resolution of a claim founded upon that difference alone and to the resolution of a claim for compensation in respect of an injury different to that originally claimed in February 2006 and as identified in the statement of issues as filed by the parties. It should finally be noted that there is not considered to be a clear distinction as between the claim as made by Ms Hughes and her description of the manner in which the accident or injury on 13 January 2006 occurred. Both the claim and the description are but a means of communicating to a decision-maker a description of the injury for which compensation is claimed and how that injury occurred. Either may give content to the other and the two should be read together.


case_title: Australian Postal Corporation v Sellick [2008] FCA 236 , 101 ALD 245

case_text: the extent that the Corporation in the present appeal seeks to raise a contention as to whether or not there was " any evidence " in support of particular findings, it may be noted that in Australian Postal Corporation v Sellick [2008] FCA 236 at [91] , [2008] FCA 236 ; 101 ALD 245 at 264, Bennett J observed that " [a] decision made under an enactment is invalid if there is a total absence of evidence to satisfy an essential element of the decision ". Section 14 of the 1988 Act provides that Comcare is liable to pay compensation " in respect of an injury suffered by an employee ... ". Section 53 requires notice to be given " of the injury " and s 54 provides that compensation is not payable " unless a claim for compensation is made ..." that complies with certain requirements set out in that section. Section 54 is a procedural prerequisite to an entitlement to compensation: Lang , supra , at [43]. The claim as made by a claimant is to be given " a broad, generous and practical interpretation ...": Abrahams v Comcare [2006] FCA 1829 at [18] , [2006] FCA 1829 ; 93 ALD 147 at 152; Australian Postal Corporation v Sellick , supra , at [55]. Section 24 provides for the payment of compensation for " permanent impairment " and s 25 provides for the " interim payment of compensation " pending the final determination of a claimant's disability. Section 26 provides that " an amount of compensation payable to an employee under section 24 or 25 ... shall be paid to the employee within 30 days after the date of the assessment of the amount ". But not every failure to hear and resolve every submission necessarily gives rise to such a question. In Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 at 276 to 277, Jenkinson J expressed the position as follows: There is also the further possibility that the tribunal's failure to mention either the submission or the questions of fact which it raises was the result of a failure, by inadvertence, to consider the submission when the tribunal was engaged in deciding the reference. Not every failure by the Administrative Appeals Tribunal to mention a contention advanced on behalf of a party will amount to a failure to comply with the requirements of s 43(2) of the Administrative Appeals Tribunal Act 1975 , or demonstrate that the contention was not considered in deciding the matter before the tribunal. But this submission concerning the ascertainment of profit was worthy of serious consideration and was seriously advanced to the tribunal. It ought, therefore, to be inferred that the submission was inadvertently overlooked by the tribunal either when the reference was being decided or when the reasons for the decision were being committed to writing (cf Sullivan v Department of Transport (1978) 20 ALR 323 at 353). In either event there has been, in my opinion, an error of law by the tribunal, so that the power of this court which s 44(1) of the Administrative Appeals Tribunal Act 1975 confers to decide the appeal "on a question of law" is available. The failure of the tribunal to carry out the duty to consider and determine each question of law and fact relevant to the determination of the reference to it of the respondent's decision, or the failure to carry out the duty imposed by s 43(2) of that Act, as the case may be, has brought about a miscarriage of justice by preventing this court from affording the parties a determination whether the tribunal's decision was vitiated by error of law: see Pettitt v Dunkley [1971] 1 NSWLR 376. Woodward and Foster JJ agreed. Subsequently, in Australian Postal Corporation v Sellick , supra , at [35], Bennett J also referred to the need to address a submission of " substance " or a submission which would have " affected the outcome ". See also: Zoia v Secretary, Department of Employment and Workplace Relations [2008] FCA 988 at [29] per Siopis J; Defence Force Retirement and Death Benefits Authority v House [2009] FCA 302 at [29] per Collier J. No separate submissions were advanced on behalf of either the Corporation or Ms Hughes as to whether it was appropriate for the Corporation to file both an appeal pursuant to s 44 and also rely upon s 5 of the 1977 Act. No submission, for example, was advanced on behalf of Ms Hughes that applications may not be made pursuant to both s 44 of the 1975 Act and s 5 of the 1977 Act. In other cases such a submission has been advanced: e.g. Australian Postal Corporation v Sellick , supra , at [92] to [95]. Both parties sought costs in the event that they should prevail, the proposition common to both parties being that costs should follow the event. There is no reason why costs should not follow the event in the present proceeding.


case_text: procedures of the Tribunal, it must be recalled, are not adversarial but designed to facilitate the Tribunal making the " correct or preferable " decision in a manner which is " fair, just, economical, informal and quick ": s 2A. The responsibility imposed by s 33(1AA) remains irrespective of whether or not an applicant before the Tribunal is represented or unrepresented. Even prior to the amendments to the 1975 Act which introduced ss 2A and 33(1AA), in Re Beigman and Secretary, Department of Social Security [1992] AATA 377 ; (1992) 29 ALD 332 the Tribunal, comprised of the then President, a Deputy President and a Member, observed: [24] Proceedings before this tribunal are not adversarial but are designed to enable the tribunal to reach the correct or preferable decision in the circumstances of the case. To this end the role of the parties is to assist the tribunal in reaching its decision. The tribunal expects departments and agencies involved in the review process to have an understanding of that role. ... The non-adversarial role of the Tribunal has been repeatedly referred to: Osborne G, "Inquisitorial Procedure in the Administrative Appeals Tribunal A Comparative Perspective" (1982) 13 Fed L Rev 150; Bedford N and Creyke R, "Inquisitorial v Adversarial Processes in Australian Tribunals in Shaping Administrative Law for the Next Generation", in Finn R, Shaping Administrative Law for the Next Generation: Fresh Perspectives (AIAL National Administrative Law Forum, 1999) p 91. The non-adversarial role of the Tribunal is of paramount importance. Indeed, with reference to the distinction between adversarial and inquisitorial procedures, it has been noted that a " perceived dichotomy " exists between " an adjudication of the evidence presented and ... a search for the truth ": Thawley T, "Adversarial and Inquisitorial Procedures in the Administrative Appeals Tribunal" (1997) 4 AJ Admin L 61 at 63. Given these tasks and responsibilities it is not considered appropriate to either confine Ms Hughes' claim or her account of the accident or injury in any artificial manner. The evidence of Dr Fearnside supports the conclusions he reached and his " presumption " — even if that is how his evidence is to be properly characterised — was supported by a " generous and practical interpretation " of both the claim as made and the account of the events that occurred on 13 January 2006.


case_title: Black v Minister for Immigration and Citizenship [2007] FCAFC 189 , 99 ALD 1

case_text: there was also no dispute that reasons provided for an administrative decision are not to be scrutinised in an " over-zealous " manner: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259. In a passage which has often been repeated, Brennan CJ, Toohey, McHugh and Gummow JJ there referred to the earlier decision of the Full Court of this Court which was the subject of the appeal, and continued at 271 to 272 as follows: When the Full Court referred to "beneficial construction", it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic [(1993) 43 FCR 280]. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker [(1993) 43 FCR 280 at 287]. The Court continued [(1993) 43 FCR 280 at 287]: "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error." These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed [See McAuliffe v Secretary, Department of Social Security [1992] FCA 483 ; (1992) 28 ALD 609 at 616]. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. See also: Kirby J at 291 to 293; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [25] , [2007] HCA 26 ; 96 ALD 1 at 9 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; Black v Minister for Immigration and Citizenship [2007] FCAFC 189 at [36] , [2007] FCAFC 189 ; 99 ALD 1 at 9 per Branson, Sundberg and Dowsett JJ.


case_text: jurisdiction being exercised is nevertheless constrained by the requirement that the appeal be " on a question of law ". In Brown v Repatriation Commission [1985] FCA 194 ; (1985) 7 FCR 302 at 304, Bowen CJ, Fisher and Lockhart JJ observed in respect to this constraint: The existence of a question of law is not merely a qualifying condition to ground an appeal from a decision of the Tribunal; rather, it and it alone is the subject matter of the appeal, and the ambit of the appeal is confined to it. In the present proceeding, the Questions of Law as formulated in the Notice of Appeal were identified as follows: (a) Whether the Tribunal failed to comply with its duty to give reasons for its decision. (b) Whether the Tribunal made findings that were not supported by any evidence. (c) Whether the Tribunal failed to consider a submission worthy of serious consideration. Each of these Questions of Law and each of the three Grounds of Appeal was intended to raise for resolution whether or not there was any evidence to support, or whether the reasons provided by the Tribunal adequately explained, how the account of the injury as provided by Ms Hughes gave rise to the injury for which compensation was awarded. In summary form, the Corporation contended that the account of the injury provided by Ms Hughes could not have caused the particular injury as found by the Tribunal. The jurisdiction of this Court to entertain the present " appeal " was not put in question.


case_title: Centrelink v Dykstra [2002] FCA 1442

case_text: s 43(2B) does not impose any constraint as to the manner in which the Tribunal is to make " reference " to either evidence or other material upon which it proceeds to " base " its findings. The greater the conflict in the evidence, the greater may be the need for the Tribunal to make " reference " to the conflicting evidence and to set forth that evidence upon which it proceeds to " base " its findings, and to set forth its reasons for rejecting some evidence and accepting other evidence: Copperart Pty Ltd v Commissioner of Taxation [1993] FCA 462 ; (1993) 30 ALD 377 per Hill J. Although there is no necessity for the Tribunal to refer to every piece of evidence adduced before the Tribunal, a failure to advert to relevant evidence may lead to a conclusion that it has been ignored: Waldron v Comcare Australia [1995] FCA 1154 ; (1995) 37 ALD 471 at 477 per Burchett J; Centrelink v Dykstra [2002] FCA 1442 at [20] . As observed by French, Sackville and Hely JJ in Applicant WAEE , supra : [46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact ... and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. ... It is an administrative body and not a court and its reasons are not to be scrutinised "with an eye keenly attuned to error". Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law. A failure to refer to material which is " fundamental " may lead to a conclusion that there has been jurisdictional error: WAFP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 319 at [21] per Lee, Carr and Tamberlin JJ.


case_text: what must be shown to establish " no evidence " remains unclear. For example, in Comcare Australia v Lees (1997) 151 ALR 647 at 652 to 653, Finkelstein J expressed his views as follows: The first ground alleges that there was no evidence before the tribunal to support its finding that the respondent had suffered an injury that resulted in an impairment to his legs. Generally speaking, a finding of fact is not reviewable by the court. But it has long been established that an insupportable finding of fact may be set aside. This is because the question whether there is any evidence of a particular fact is a question of law. Further, whether a particular inference can be drawn from facts is also a question of law. In the province of judicial review the making of findings and the drawing of inferences in the absence of evidence is an error of law: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 335-6; [1990] HCA 33 ; 94 ALR 11 per Mason CJ. Precisely what must be shown to make out a case of "no evidence" has been the subject of much judicial comment. In a recent decision in the Supreme Court of Victoria, Roads Corp v Dacakis [1995] 2 VR 508 at 520, Batt J said that a finding of fact will only be open to challenge as an error of law if there was no evidence to support it and that such a finding would not be open to challenge merely because it was not reasonably open on the evidence. Batt J went on to say that an inference will be open to challenge if it was not reasonably open on the facts. There is no doubt that the first proposition is correct. It follows directly from what was said by Mason CJ in Bond as well as many other cases in Australia although the position might be different in England. Most of the important cases are collected in the judgment of Phillips JA in Powley v Crimes Compensation Tribunal (CA(Vic), 16 December 1996, unreported). It is not clear whether the second proposition accurately states the law and I notice that Batt J himself had some doubt about it. The difficulty comes about from a passage in the judgment of Mason CJ in Bond at CLR 360 where his Honour said that "an inference will be reviewable on the ground that it was not reasonably open". In my view there is a very real possibility that the use of the word "reasonably" in the passage quoted was not intended to make less onerous the task of challenging, as an error of law, the drawing of an inference. Certainly Phillips JA did not think so in Powley : see his reasons at 12-14. For present purposes, however, it is unnecessary to further clarify what is meant to be conveyed by a submission that there is " no evidence " to support a finding. Irrespective of the precise test to be applied before finding there is " no evidence ", evidence exists to support the Tribunal's findings in the case at hand. The Corporation's first Ground of Appeal focused attention upon the following two paragraphs of the reasons for decision of the Administrative Appeals Tribunal: [43] We accept that both Professor Fearnside and Dr Maxwell accepted that the incident caused the gluteal injury. Ms Hughes' description of events around the injury involved adduction (away from the midline) of her left leg rather than adduction (towards the midline). Both Professor Fearnside and Dr Maxwell considered gluteal tendinopathy to result form [sic] an adduction of the leg rather than abduction. There was some evidence relating to twisting. Professor Fearnside presumed that there had been a twisting from the manner of the fall. Dr Maxwell said in effect that if she [sic] was any twisting at that point that could have caused the injury. ... [45] We find that as at 24 April 2007 Ms Hughes continued to suffer from the effects of the injury to her lower back and left hip joint sustained during the course of her employment on 13 January 2006. She was asymptomatic before the incident on 13 January 2006 and continues to experience symptoms. Australia Post therefore continues to be liable for the effects of the injury pursuant to sections 16 and 19 of the Act.


case_title: Comcare Australia v Mathieson [2004] FCA 212 , 79 ALD 518

case_text: was thus no dispute that " sufficient reasons " must be provided " to make the system of appeals effective and to fulfil its assumptions ": Roncevich v Repatriation Commission [2005] HCA 40 at [62] , [2005] HCA 40 ; 222 CLR 115 at 135 per Kirby J. It must be possible " to discern from the reasons given the actual reasoning process adopted ": Comcare Australia v Mathieson [2004] FCA 212 at [61] , 79 ALD 518 at 531 per Weinberg J. "... [T]he tribunal will have discharged its duty under s 43 if its reasons disclose its findings of fact, the evidence on which they were based and the logical process by which it moved from those findings to the result in the case ": Secretary, Department of Employment and Workplace Relations v Homewood [2006] FCA 779 at [40] , 91 ALD 103 at 111 per French J. See also: Comcare v Davies [2008] FCA 393 at [31] to [33], 173 IR 294 at 302 to 303.


case_title: Comcare v Davies [2008] FCA 393 , 173 IR 294

case_text: was thus no dispute that " sufficient reasons " must be provided " to make the system of appeals effective and to fulfil its assumptions ": Roncevich v Repatriation Commission [2005] HCA 40 at [62] , [2005] HCA 40 ; 222 CLR 115 at 135 per Kirby J. It must be possible " to discern from the reasons given the actual reasoning process adopted ": Comcare Australia v Mathieson [2004] FCA 212 at [61] , 79 ALD 518 at 531 per Weinberg J. "... [T]he tribunal will have discharged its duty under s 43 if its reasons disclose its findings of fact, the evidence on which they were based and the logical process by which it moved from those findings to the result in the case ": Secretary, Department of Employment and Workplace Relations v Homewood [2006] FCA 779 at [40] , 91 ALD 103 at 111 per French J. See also: Comcare v Davies [2008] FCA 393 at [31] to [33], 173 IR 294 at 302 to 303. A Tribunal's compliance with all aspects of s 43(2B) — be it the requirement to set forth its " reasons ", the requirement to include " findings on material questions of fact " or the requirement that there be " a reference to the evidence or other material " — is a matter of substance and not form: Dodds v Comcare Australia (1993) 31 ALD 690 at 691 per Burchett J; Comcare v Davies , supra , at [33]. The statutory requirement, it is to be recalled, has as a principal objective the exposure of the reasoning process of the Tribunal to judicial scrutiny. There must be sufficient compliance with each aspect of s 43 such that judicial scrutiny is not frustrated. But the manner in which the Tribunal discharges its responsibility to comply with s 43(2B) must inevitably depend upon — among other things — the nature of the cases coming before the Tribunal, the nature of the evidence and legal complexity of each case, and the particular style in which Tribunal members choose to express themselves. The less important a particular matter may be to the conclusion reached by the Tribunal, the less the need for the Tribunal to " refer to " or deal in any depth with the evidence relevant to that matter: e.g. Lafu v Minister for Immigration and Citizenship [2009] FCA 733 at [28] to [30] per Jagot J. A failure to refer to evidence of little ultimate significance to the conclusion reached may not permit an inference that such evidence has not been considered.


case_title: Copperart Pty Ltd v Commissioner of Taxation [1993] FCA 462 ; (1993) 30 ALD 377


case_text: not every failure to hear and resolve every submission necessarily gives rise to such a question. In Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 at 276 to 277, Jenkinson J expressed the position as follows: There is also the further possibility that the tribunal's failure to mention either the submission or the questions of fact which it raises was the result of a failure, by inadvertence, to consider the submission when the tribunal was engaged in deciding the reference. Not every failure by the Administrative Appeals Tribunal to mention a contention advanced on behalf of a party will amount to a failure to comply with the requirements of s 43(2) of the Administrative Appeals Tribunal Act 1975 , or demonstrate that the contention was not considered in deciding the matter before the tribunal. But this submission concerning the ascertainment of profit was worthy of serious consideration and was seriously advanced to the tribunal. It ought, therefore, to be inferred that the submission was inadvertently overlooked by the tribunal either when the reference was being decided or when the reasons for the decision were being committed to writing (cf Sullivan v Department of Transport (1978) 20 ALR 323 at 353). In either event there has been, in my opinion, an error of law by the tribunal, so that the power of this court which s 44(1) of the Administrative Appeals Tribunal Act 1975 confers to decide the appeal "on a question of law" is available. The failure of the tribunal to carry out the duty to consider and determine each question of law and fact relevant to the determination of the reference to it of the respondent's decision, or the failure to carry out the duty imposed by s 43(2) of that Act, as the case may be, has brought about a miscarriage of justice by preventing this court from affording the parties a determination whether the tribunal's decision was vitiated by error of law: see Pettitt v Dunkley [1971] 1 NSWLR 376. Woodward and Foster JJ agreed. Subsequently, in Australian Postal Corporation v Sellick , supra , at [35], Bennett J also referred to the need to address a submission of " substance " or a submission which would have " affected the outcome ". See also: Zoia v Secretary, Department of Employment and Workplace Relations [2008] FCA 988 at [29] per Siopis J; Defence Force Retirement and Death Benefits Authority v House [2009] FCA 302 at [29] per Collier J.


case_title: Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267


case_text: Tribunal's compliance with all aspects of s 43(2B) — be it the requirement to set forth its " reasons ", the requirement to include " findings on material questions of fact " or the requirement that there be " a reference to the evidence or other material " — is a matter of substance and not form: Dodds v Comcare Australia (1993) 31 ALD 690 at 691 per Burchett J; Comcare v Davies , supra , at [33]. The statutory requirement, it is to be recalled, has as a principal objective the exposure of the reasoning process of the Tribunal to judicial scrutiny. There must be sufficient compliance with each aspect of s 43 such that judicial scrutiny is not frustrated. But the manner in which the Tribunal discharges its responsibility to comply with s 43(2B) must inevitably depend upon — among other things — the nature of the cases coming before the Tribunal, the nature of the evidence and legal complexity of each case, and the particular style in which Tribunal members choose to express themselves. The less important a particular matter may be to the conclusion reached by the Tribunal, the less the need for the Tribunal to " refer to " or deal in any depth with the evidence relevant to that matter: e.g. Lafu v Minister for Immigration and Citizenship [2009] FCA 733 at [28] to [30] per Jagot J. A failure to refer to evidence of little ultimate significance to the conclusion reached may not permit an inference that such evidence has not been considered.


case_text: s 44(1) employs the language of an " appeal ", the jurisdiction of the Court being exercised is its original jurisdiction and not its appellate jurisdiction: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179 ; (1979) 2 ALD 60 at 61 per Bowen CJ and Deane J.


case_title: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 , 73 ALD 321

case_text: failure on the part of the Tribunal " to respond to a substantial, clearly articulated argument relying upon established facts " may constitute a constructive failure to exercise jurisdiction: cf Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [24] to [25] [2003] HCA 26 ; , 73 ALD 321 at 326 per Gummow and Callinan JJ. The comments there made in respect to a failure on the part of the Refugee Review Tribunal have been applied by the Full Court of this Court in respect to a decision of the Administrative Appeals Tribunal: Industry Research and Development Board v Bridgestone Australia Ltd [2004] FCAFC 56 at [26] , [2004] FCAFC 56 ; 136 FCR 47 at 58.


case_title: Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 , 158 FCR 252

case_text: the absence of any reference in her description of the accident or injury to any " twisting " movement and her description of having done the " splits ", it is perhaps understandable that the Corporation accepted Ms Hughes' account and did not question her as to whether there was any " twisting " movement involved. The Corporation may have wished to confine her account of the events to as narrow a factual description as possible. But the task of the Tribunal, however, was to reach the " correct or preferable " decision. And, in discharging that task, s 33(1AA) of the 1975 Act imposes upon the person who made the decision under review the responsibility of using " his or her best endeavours to assist the Tribunal to make its decision ... ": Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [19] , [2007] FCA 404 ; 158 FCR 252 at 257 per Gyles J. In the present proceeding, the potential significance of a " twisting " movement or " adduction " as opposed to " abduction " was a matter that did not emerge only during the course of the hearing before the Tribunal. It was a matter of significance that had been identified as early as 6 November 2006 in a report provided to the Corporation by another orthopaedic surgeon, Dr Horsley. His report stated in part: The injury as described to me by Ms Hughes is of her doing the "splits". This, if anything, would tend to stretch the adductor tendons. In this position, in fact, the gluteus medius and minimus tendons are relaxed. I find it difficult to understand why there would be mild tendinosis with the type of injury she describes. The distinction having been thus highlighted, it is surprising that there was no further questioning — either in chief or in cross-examination — of Ms Hughes as to the description she had provided. The failure to further question Ms Hughes as to the movement experienced during the accident on 13 January 2006 did little to " assist " the Tribunal.


case_outcome: affirmed

case_text: 13 January 2006 she was injured whilst performing her delivery duties on a motorcycle. A claim was made and ultimately resolved by a decision of the Administrative Appeals Tribunal on 21 April 2009: Hughes v Australian Postal Corporation [2009] AATA 260. The Tribunal concluded that Ms Hughes continued to suffer from the effects of an injury to her lower back and left hip joint. The Tribunal further concluded that Ms Hughes was not entitled to compensation for permanent impairment pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the 1988 Act"). The conclusion of the Tribunal as to permanent impairment is not in issue in this appeal. In the hearing before the Tribunal, Ms Hughes gave evidence. Her claim was sought to be supported by medical evidence from Dr Fearnside (a neurosurgeon) and Dr Ginnane (Ms Hughes' general practitioner). The Corporation relied upon the medical evidence of Dr Maxwell (an orthopaedic and spinal surgeon), Dr Brennan (a neurosurgeon), Dr Dan (a neurosurgeon), Dr Holman (an orthopaedic surgeon), Dr Horsley (an orthopaedic surgeon) and Dr McGee-Collett (a neurosurgeon). The Corporation now appeals to this Court from that part of the Tribunal's decision whereby it concluded that Ms Hughes continues to suffer from the effects of the injury to her lower back and left hip joint and that the Corporation continues to be liable. Reliance is placed by the Corporation upon s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the 1975 Act") and s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the 1977 Act").


case_title: Industry Research and Development Board v Bridgestone Australia Ltd [2004] FCAFC 56


case_title: Lafu v Minister for Immigration and Citizenship [2009] FCA 733


case_title: Lang v Comcare [2007] FCA 47 , 94 ALD 141

case_text: was also no dispute that the requirement to provide " findings on material questions of fact " does not impose a requirement to make findings on all questions of fact; it is a requirement to set out those findings of fact which a tribunal does make and a requirement to refer to the evidence on which those findings were made. When construing a comparable provision to s 43(2B) as found in s 430 of the Migration Act 1958 (Cth), McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 , 206 CLR 323 considered the requirement to set out " the findings on any material question of fact " and concluded (citations omitted, emphasis in original): [68] Section 430 does not expressly impose such an obligation. In its terms, it requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make , and then set out, some findings additional to those which it actually made. In Singh , significance was attached to the use of the word "material" in s 430(1)(c). It was said that "material" in the expression "material questions of fact" must mean "objectively material". Even if that were right, it would by no means follow that the Tribunal was bound to set out findings that it did not make. But it is not right to read "material" as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision. [69] It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution . For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error. The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration. See also: Lang v Comcare [2007] FCA 47 at [53] , 94 ALD 141 at 152. Given a statutory requirement to set out " findings on material questions of fact ", the absence of any reference in the reasons for decision of the Tribunal to those findings of fact material to the decision to be reached may preclude a conclusion that the Tribunal impliedly took various considerations into account: Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 at [27] , [2001] FCA 568 ; 107 FCR 133 at 140. Section 14 of the 1988 Act provides that Comcare is liable to pay compensation " in respect of an injury suffered by an employee ... ". Section 53 requires notice to be given " of the injury " and s 54 provides that compensation is not payable " unless a claim for compensation is made ..." that complies with certain requirements set out in that section. Section 54 is a procedural prerequisite to an entitlement to compensation: Lang , supra , at [43]. The claim as made by a claimant is to be given " a broad, generous and practical interpretation ...": Abrahams v Comcare [2006] FCA 1829 at [18] , [2006] FCA 1829 ; 93 ALD 147 at 152; Australian Postal Corporation v Sellick , supra , at [55]. Section 24 provides for the payment of compensation for " permanent impairment " and s 25 provides for the " interim payment of compensation " pending the final determination of a claimant's disability. Section 26 provides that " an amount of compensation payable to an employee under section 24 or 25 ... shall be paid to the employee within 30 days after the date of the assessment of the amount ".


case_title: Milbourn v Repatriation Commission [2009] FCA 176 , 174 FCR 486

case_text: reference in s 43 to " other material " is a reference to " material " which may not be evidence, including such materials as an agreed statement of facts or policy statements: Milbourn v Repatriation Commission [2009] FCA 176 at [29] , [2009] FCA 176 ; 174 FCR 486 at 492 per Graham J.


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


case_text: was also no dispute that the requirement to provide " findings on material questions of fact " does not impose a requirement to make findings on all questions of fact; it is a requirement to set out those findings of fact which a tribunal does make and a requirement to refer to the evidence on which those findings were made. When construing a comparable provision to s 43(2B) as found in s 430 of the Migration Act 1958 (Cth), McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 , 206 CLR 323 considered the requirement to set out " the findings on any material question of fact " and concluded (citations omitted, emphasis in original): [68] Section 430 does not expressly impose such an obligation. In its terms, it requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make , and then set out, some findings additional to those which it actually made. In Singh , significance was attached to the use of the word "material" in s 430(1)(c). It was said that "material" in the expression "material questions of fact" must mean "objectively material". Even if that were right, it would by no means follow that the Tribunal was bound to set out findings that it did not make. But it is not right to read "material" as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision. [69] It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution . For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error. The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration. See also: Lang v Comcare [2007] FCA 47 at [53] , 94 ALD 141 at 152. Given a statutory requirement to set out " findings on material questions of fact ", the absence of any reference in the reasons for decision of the Tribunal to those findings of fact material to the decision to be reached may preclude a conclusion that the Tribunal impliedly took various considerations into account: Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 at [27] , [2001] FCA 568 ; 107 FCR 133 at 140.


case_title: Roncevich v Repatriation Commission [2005] HCA 40 , 222 CLR 115


case_title: Secretary, Department of Employment and Workplace Relations v Homewood [2006] FCA 779 , 91 ALD 103


case_title: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 , 96 ALD 1


case_text: Applicant WAEE , their Honours made reference to whether an " issue has at least been identified at some point ". A mere passing reference to evidence, however, may not be sufficient compliance with the requirements imposed by s 43(2B). The mere fact that an administrative tribunal refers to information or evidence does not of itself mean that the tribunal has given that evidence proper consideration: SZGYT v Minister for Immigration and Citizenship [2009] FCA 705 at [24] per Edmonds J.