case_text: the authorisation requirement of s 61(1) is not complied with, the non-compliance is fatal to the success of the application: Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [48] ; Strickland at [56]-[57] (approved in WA v Strickland at [77]-[78]); Drury v Western Australia [2000] FCA 132 ; (2000) 97 FCR 169 at [10] ; Daniel v Western Australia (2002) 194 ALR 278 (FCA) at [11]; De Rose FCA/O'Loughlin J at [933]. Authorisation must be by all the persons who constitute the native title claim group in respect of the common or group rights and interests comprising the particular native title claimed: Risk v National Native Title Tribunal [2000] FCA 1589 at [30] ; Dieri People v South Australia [2003] FCA 187 ; (2003) 127 FCR 364 at [55] (' Dieri People '); Tilmouth v Northern Territory [2001] FCA 820 ; (2001) 109 FCR 240 (' Tilmouth '). The Commonwealth submits that irrespective of whether the combined Maduwongga application is an amendment or is a new application, authorisation of the present Maduwongga application on behalf of the Strickland/Nudding group by the original Maduwongga Claim group is still required. The Commonwealth relies on Tilmouth . Ms Tilmouth's application concerned three separate parcels of land, all of which were within or close to the area covered by an application for a determination of native title on behalf of the Larrakia people that was already pending in the Court. Ms Tilmouth was a dissident claimant within that group. Ms Tilmouth made her application on behalf of the Yirra Bandoo, an acknowledged sub-group of the Larrakia people, in competition with that of the Larrakia people. Her application was in respect of Larrakia land in relation to which the Yirra Bandoo had a special interest. O'Loughlin J concluded that Ms Tilmouth's application was incompetent. His Honour relied, not upon any provisions of the NTA or of the FCRs, but on the concept of community defined in certain passages from Mabo (No 2) at 61, and Ward FCAFC at 371-2. In the passage from Mabo (No 2) , Brennan J stated: so long as the people remain an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under traditionally based laws and customs, as currently acknowledged and observed.' O'Loughlin J took his Honour's remarks to indicate that 'community is a composite whole as distinct from subgroups of subsets or clans or divisions within that larger community...' (at 241). He considered that Brennan J's idea of 'community' and 'communal' had also been emphasised by Beaumont and von Doussa JJ in Ward FCAFC at [201] and [204]. O'Loughlin J concluded (at 242) from these passages that the smaller group (the Yirra Bandoo) could not make an application for native title. The circumstances of the present case differ from those in Tilmouth . In that case, the application on behalf of the larger group remained on foot, whereas the Strickland/Nudding group's claim has supplanted that of the Maduwongga people. If the original Maduwongga Claim group actually held the particular native title claimed, its authorisation of the present Maduwongga application (on behalf of the Strickland/Nudding group) would be required by the terms of s 61(1). But I am addressing the present question on the hypothesis that the Maduwongga application has not yet been heard and determined, and that it is not yet known who, if anyone, actually holds the common or group rights constituting the particular native title claimed. In these hypothetical circumstances, s 61(1) does not, in terms, require that the making of the application on behalf of the Strickland/Nudding group be authorised by the original Maduwongga Claim group. Nor do I see any reason why it should be assumed against the Maduwongga applicants for the purpose, that the members of the original Maduwongga Claim group hold the particular native title claimed. The Maduwongga applicants are not pursuing the present application on behalf of that larger group, but on behalf of the smaller Strickland/Nudding group.


case_outcome: cited

case_text: Ward v Western Australia (1998) 159 ALR 483 (FCA) at 79, Lee J stated that the preparation of genealogies, involving the distilling of information from a broad context of ethnographic material, entailed the application of the skill and expertise of anthropologists. The genealogies in evidence incorporate amendments that the anthropologists made in the light of the indigenous testimony. Like his Honour, I am satisfied as to their general reliability. The forms of the various genealogies suggested carefulness in the gathering, assembling and presentation of the data. In any event, I do not understand there to be any issue as to my reliance on them, except as to any specific instances which were the subject of evidence (an example is the controversy on the Maduwongga Claim (see Ch 9) over whether Albert Newland was the son, biological or adopted, of Arthur Newland). (b) Weight of expert historical evidence His Honour regarded the claim in Ward as similar, and referred to what Beaumont and von Doussa JJ said in Ward FCAFC at [160] [161] and [239]. Their Honours there referred to the finding of Lee J at first instance that there was a Miriuwung and Gajerrong community that had an ancestral connection with the Aboriginal community or communities that occupied the claim area at sovereignty. Their Honours addressed the State's submission that every relevant witness had claimed to be either Miriuwung or Gajerrong, and that a great majority of the Miriuwung claimed to have a full array of rights only in an estate area, and disclaimed other estate areas as their 'country'. Their Honours said ([239]) that it was not necessary that each named applicant establish that he or she possessed rights and interests uniformly over the entire determination area. They referred to the primary judge's finding that the two communities (Miriuwung and Gajerrong) once acknowledged and recognised separate territories, but had in more recent times become regarded (amongst themselves) as a composite community with shared interests. They thought that conclusion to be in accordance with the evidence.


case_text: 'The common law concept of "native title" [recognised in Mabo (No 2) ] is incorporated into the definition contained in s 223(1) of the [NTA]': Western Australia v Commonwealth [1995] HCA 47 ; (1995) 183 CLR 373 (' Native Title Act Case') at 452 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ) ('joint judgment'). (4) The rights and interests to which s 223 (1) refers 'may not, and often will not, correspond with rights and interests in land familiar to the Anglo-Australian property lawyer ... [and] will often reflect a different conception of "property" or "belonging" ... [but] none of those considerations denies the normative quality of the laws and customs of indigenous societies': Yorta Yorta (HCA) at [40] (joint judgment). (5) The rights and interests that are presently possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples, to which s 223(1) of the NTA refers, are not newly created by the NTA, but are rights and interests which were possessed under the laws acknowledged and the customs observed by the Aboriginal peoples at the time of sovereignty (for convenience, I will use the expressions 'pre-sovereignty'), and which, as the High Court decided in Mabo (No 2) , survived sovereignty: Yorta Yorta HCA at [75]-[76], [86]-[87] (joint judgment); [180] (Callinan J).


case_text: 26 February 1999 the Wongatha Claim was accepted for registration under the New NTA and entered in the Register of Native Title Claims. On 16 November 1999, however, Carr J ordered that the NT Registrar's decision made on 26 February 1999 be set aside (see Western Australia v Native Title Registrar [1999] FCA 1593). On 10 February 2000, the Wongatha Claim was again accepted for registration (at that time the then current Wongatha Form 1 was dated 1 November 1999). On 12 November 1999, Lee J ordered that native title determination application WG 6005 of 1998 be amended in the form of amended native title determination (claimant) application which had, without leave, been filed on 1 November 1999. The document bore only the number WAG 6005 of 1998. The form of the Wongatha application (Form 1) has been amended several times since. The latest and current Form 1 is a form of further amended application dated 11 April 2003 and filed on 14 April 2003, which is discussed at 2.1 [124] below. On 3 July 1998 Carr J made orders as a result of which proceeding WAG 63/98 was consolidated with WAG 76/97. The consolidated proceeding was to be called 'WG 76 of 1997 and 63 of 1998'. On 17 February 1999, on the motion of the applicants in the consolidated proceeding, RD Nicholson J revoked Carr J's consolidation order and ordered that both WAG 63/98 and WAG 6237/98 be combined with WAG 76/97 and continue in and under WAG 76 of 1997. The form of application in WAG 76/97 was amended accordingly. For convenience, I am calling the combined proceeding (WAG 76/97) 'the Maduwongga Claim', except where it is necessary to distinguish between the various claims bearing the name 'Maduwongga'. It is important to note, however, that whereas the first, second and thirty-third claims listed in Annexure B were expressed to be made on behalf of 'all those persons who are Maduwongga peoples', the Maduwongga application is now made on behalf of only 'Marjorie May Strickland and Anne Joyce Nudding and their biological descendants' ('the Strickland/Nudding group'). Because the Wongatha Claim was asserted to be made on behalf of some individuals who were claimants on the original Cosmo Claim, the Cosmo Claim was doomed to fail the new registration test, as it offended s 190C(3) of the NTA, which had been introduced by the Amending NTA. Accordingly, on 3 May 1999, the NT Registrar decided not to accept for registration the then Cosmo application as amended. However, the decision to register the Wongatha Claim was itself set aside on 16 November 1999 by Carr J, on the ground that the NT Registrar had not observed the requirements of procedural fairness in making that decision. Soon afterwards, on 24 November 1999, the present Cosmo applicant, Harvey Murray, replacing the original 48 named Cosmo applicants, filed a further re-amended native title determination application, which was amended on 26 November 1999 pursuant to Court order, and which included in Schedule A, a provision that 'to avoid any doubt, the claimant group does not include any person who is a claimant in WC 94/98, WAG 6005/98 (The Wongatha Claim)'. The NT Registrar determined that this provision in Schedule A satisfied s 190C(3) of the NTA and the Cosmo Claim was registered on 21 December 1999. Following the order made on 16 November 1999 setting aside the Registrar's decision to register the Wongatha Claim, the Wongatha Form 1 was also amended and the Wongatha Claim was accepted for registration on 10 February 2000. On 3 July 1998, Carr J ordered that the first two Maduwongga applications (WC 94/3 (WAG 63/98) and WC 95/11 (WAG 76/97)) be consolidated and be conducted as one proceeding, having the Court number 'WAG 76 of 1997 and 63 of 1998'. In a statement filed by the applicants in WAG 76/97 on 24 August 1998, pursuant to para 6 of directions made by Carr J on 15 September 1997, the Maduwongga applicants stated that the application was made on behalf of Ms Strickland, Ms Nudding and Albert Newland, the first two as biological descendants of Kitty Bluegum, and Mr Newland as a 'Descendant of Kitty Bluegum (either biological and/or adopted son of Arthur Newland)', together with their (all three's) descendants, and also the descendants of Gertrude Morrison (deceased), as set out in Figure 3.4 of an anthropological report of McDonald Hales and Associates dated August 1998 ('Dr McDonald's report'). Arthur Newland was the biological son of Kitty Bluegum and biological father of Ms Strickland and Ms Nudding. Figure 3.4 showed the descendants of Gertrude Morrison to include Phillip O'Donoghue and Donald Ballinger, and the children and grandchildren of these two men. On 28 January 1999, the Maduwongga applicants filed in WAG 76/97 a notice of motion seeking an order that Maduwonggas 1, 2 and 3 be 'combined' and that the combined application take the form of an Amended Native Title Determination Claimant Application (Form 1) annexed to a supporting affidavit of Dianne Baruffi sworn 28 January 1999. Importantly, that Form 1, while continuing to designate Ms Strickland and Ms Nudding as applicants and stating that the claim was a combination of the claims in WC 94/3 (WAG 63/98), WC 95/11 (WAG 76/97) and WC 98/20 (WAG 6237/98), asserted that the application was now brought on behalf of 'the Strickland/Nudding group', rather than 'the Maduwongga peoples'. Accordingly, the Maduwongga Claim group was to be substantially reduced in scope: This radical reduction in the Maduwongga Claim group from 'the Maduwongga Peoples' to 'the Strickland/Nudding group' was the first change to be made following the enactment of the Amending NTA. The Commonwealth submits that the substitution of the new reduced native title claim group was contrary to the NTA; that the Maduwongga applicants were not authorised to make the new application; and that the present Maduwongga Claim group, the Strickland/Nudding group, having the two Maduwongga applicants themselves as its apical ancestors, is not a group capable of holding native title (see 9.1 below). On 17 February 1999, RD Nicholson J ordered that the consolidation order made by Carr J on 3 July 1998 be revoked and that applications WAG 76/97 and WAG 63/98 be deconsolidated; that application WAG 76/97 be amended so as to be combined with and include applications WAG 63/98 and WAG 6237/98; that those three applications be combined and continue under application WAG 76/97; and that application WAG 76/97 be amended to take the form of Form 1 annexed to Ms Baruffi's affidavit of 28 January 1999 mentioned above. No doubt pursuant to s 64(4) of the NTA, the Registrar of this Court gave a copy of that Form 1 to the NT Registrar. In the NNTT, the combined application (WAG 76/97) was given the number WC 99/9. Leave to amend the Maduwongga Form 1 further was sought by notices of motion dated 18 March 1999 and 6 April 1999. On 13 April 1999 the District Registrar directed that the Maduwongga application be amended to take the form of the Form 1 annexed to a further affidavit of Ms Baruffi, sworn and filed 7 April 1999, and that the Maduwongga applicants file and serve a fresh amended application incorporating all amendments within 14 days. Such a document was filed on 22 April 1999. It is this combined Maduwongga application as subsequently amended that is the Maduwongga Claim now before the Court. The combined Maduwongga Claim again stated that the claim was brought on behalf of the Strickland/Nudding group. Reference to the 'Maduwongga' or 'Maduwongga Peoples' was omitted, and reference was made, for example, to the 'traditional laws and customs of the claim group', now necessarily a reference to the traditional laws and customs of Ms Strickland and Ms Nudding and their biological descendants. For convenience, I continue to use the designation 'Maduwongga' to refer to this Claim, but it must be remembered that as from 17 February 1999, the Maduwongga Claim group is in fact the Strickland/Nudding group. Curiously, in a further statement filed by the Maduwongga applicants on 4 May 1999, pursuant to Carr J's directions of 15 September 1997, the group membership was stated as being exactly the same as it had been in the statement filed on 24 August 1998 (see [236] above), notwithstanding the narrower definition of the Maduwongga group as the Strickland/Nudding group that had intervened in the amended Forms 1 of January/February and April 1999. (a) The Maduwongga Claim group According to Dr McDonald's report, written in August 1998, prior to the reduction in the Maduwongga Claim group of January/February 1999 down to the Strickland/Nudding group, the Maduwongga Claim group comprised 82 living persons, while the narrower Strickland/Nudding group can be seen from that report to have comprised only 20 living persons. The genealogy in the report shows Albert Newland as an adopted brother of Ms Strickland and Ms Nudding. In a Maduwongga LIP dated 24 April 2002 and filed in this present Wongatha proceeding on 26 April 2002, Albert Newland's name no longer appears. This document lists 29 individuals as members of the Maduwongga Claim group, that is to say, of the Strickland/Nudding group. However, they include Albert Nudding, who is the husband of Ms Nudding. He is not a biological descendant even of Kitty Bluegum, and it is not suggested that he is 'Maduwongga'. The 29 individuals also include the two fostered/adopted grandchildren of Ms Nudding. However, they do not include Christine Newland, who is a sibling of Ms Strickland and Ms Nudding, and, on one view, of Albert Newland too. The Maduwongga applicants now say that this document, which is the Maduwongga LIP on which they went to trial, is to be 'ignored'. I discuss the problematical composition of the Maduwongga group further in Ch 9. This Maduwongga LIP divides the 29 persons named in it into two groups according to the basis of their membership of the Maduwongga Claim group. The first basis is: cognatic descent from Kitty Bluegum and her father Johnny; ● conception and birth in Maduwongga country; ● identification as Maduwongga & following the Wonggai way; and ● continuing traditional connection to Maduwongga country.' The second basis is: identification as Maduwongga & following the Wonggai way; and ● continuing traditional connection to Maduwongga country.' I accept that the early records made by European amateur and professional ethnographers are limited by the ethnocentric views of the writers and by the limits on their understanding of the language and culture of those about whom they wrote: see Daniel at [149] where RD Nicholson J recognised this point. Mr Muller Groups 5B/5F make a detailed attack on the qualifications and testimony of Mr Muller. He was cross-examined in relation to his experience. His work in relation to Australian Aboriginal history has been substantially confined to the period since 1997, during most of which he has been employed full time by the GLSC in the preparation of his reports for this proceeding. He had no academic training in Australian history except at high school. The State submits that while there was a good deal of controversy over the completeness of the research of both historians, overall there was significant agreement in their descriptions of the past. I agree. The Cosmo applicant submits that Mr Muller should be preferred to Mr Stronach, especially on the early explorers. Mr Stronach dealt with them only briefly, no doubt because he did not take issue with Mr Muller's account. Mr Muller was criticised by Group 5B/5F for not having examined in any detail material produced by the anthropologists, Daisy Bates, Professors Norman B Tindale and AP Elkin, and Professor RM and Dr CH Berndt. The reason he gave in his report is that '[t]his is not the author's area of expertise, and other experts have examined this material'. In cross-examination, he said he had been instructed, in effect, to 'stand clear' of anthropological material, which, he understood, would be addressed by others retained by the GLSC. The GLSC submission in reply suggest that this was an appropriate stance for a non-anthropologist to take. The MN applicants make two submissions in relation to the meaning of 'connection' in s 223(1)(b) of the NTA, but in my view, for the reasons the evidence does not satisfy s 223(1)(a) of the NTA, it does not show that the MN Claim group, by WDCB laws and customs has a connection with the Wongatha/MN overlap for the purposes of s 223(1)(b) of the NTA. First, they correctly point out that in Ward HCA , the joint judgment does not exclude the possibility that a 'spiritual connection' may suffice ([64]). No submissions were made to the High Court on that issue, and their Honours did not need to express a view on it. In Daniel , after noting this, RD Nicholson J, said ([422]): there is evidence of continuing use and, in the case of the Ngarluma, of physical presence accompanied in each case by an enduring sense of connection which I take to fall within the description of spiritual connection. I take spiritual connection into account along with the evidence of continuing use and physical presence.' It seems to me that para (b) of s 223(1) of the NTA is emphasising the need for a special connection between the claimants and the particular land or waters that are the subject of their claim, different from the connection which all Aboriginal peoples or Torres Strait Islanders may have in relation to land or waters. This does not exclude the possibility of a 'spiritual' connection, but the spiritual connection must be between the claimants and the particular land or waters which they claim, or particular sites, tracks or places there. Second, the MN applicants submit: for the purposes of NTA s 223(1)(b), can be made out by having regard to, amongst other evidence, evidence of activities on, or knowledge about, areas outside the boundaries of the claim areas. This aspect is particularly pertinent in this case, where all four of the GLSC claim groups rely upon a common background of descent from, and membership in, the WDCB which operated in times past, and operates today, in large areas adjacent to, and including, the claim areas before the Court. for example, law business in Warburton or Wiluna involving members of one or more of the GLSC claim groups may, as a matter of law, be very relevant and probative evidence of observance and acknowledgement of relevant laws and customs by, and of connection thereby to the claimed areas on the part of, such members and (accordingly) such claim groups.' If an MN claimant is initiated at Warburton that may show that he is acknowledging and observing a traditional Western Desert law or custom requiring that all males be initiated. The evidence would play its part in establishing (a) that the WDCB society continues, and (b) that the MN Claim group continues to acknowledge and observe WDCB laws and customs. There would be a question of why the person was not initiated within the MN Claim area, but that is another matter.


case_text: The existence and content of native title must be ascertained as a matter of fact and on a case by case basis by reference to the traditional laws acknowledged and the traditional customs observed by the indigenous people who posses the title: Mabo (No 2) at 58 (Brennan J); Wik at 169 (Gummow J); Commonwealth v Yarmirr [1999] FCA 1668 ; (1999) 101 FCR 171 at [16] (Beaumont and von Doussa JJ); Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316 (' Ward FCAFC' ) at [58] (Beaumont and von Doussa JJ).


case_outcome: discussed

case_text: The native title that is recognised and protected by the NTA is the native title as defined in the s 223 (1) of the NTA, and the NTA, and, in particular, that definition, must be the starting point for any consideration of an application for a determination of native title brought under the NTA: Commonwealth v Yarmirr [2001] HCA 56 ; (2001) 208 CLR 1 (' Yarmirr HCA ') at [7] (Gleeson CJ, Gaudron, Gummow and Hayne JJ) ('joint judgment'); Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1 (' Ward HCA ') at [16] (Gleeson CJ, Gaudron, Gummow and Hayne JJ) ('joint judgment'); Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 ; (2002) 214 CLR 422 (' Yorta Yorta HCA ') at [32] (Gleeson CJ, Gummow and Hayne JJ) ('joint judgment').


case_text: 8 June 1999, a delegate of the NT Registrar decided pursuant to s 190A of the NTA, that the Maduwongga Claim should not be accepted for alleged failure to comply with s 190C(3) of the NTA. That decision led to litigation ( Strickland v Native Title Registrar (1999) 168 ALR 242 (FCA)) (' Strickland ') in which French J set aside the decision and directed the NT Registrar to accept the Maduwongga Claim and to include details of it in the Register of Native Title Claims. An appeal by the State was dismissed: Western Australia v Strickland [2000] FCA 652 ; (2000) 99 FCR 33 (' WA v Strickland ').


case_outcome: followed

case_text: my view, the applicable test under s 61(1) is that a pre-Amending NTA application, that was amended after the commencement of the Amending NTA, is 'made' to the Court under Div 1 of Pt 3 of the New NTA if the amended application is properly to be regarded as a 'new application' or a 'fresh application': see Wharton on behalf of the Kooma People v Queensland [2003] FCA 1398 at [25] [27] (Emmett J) (leave to appeal refused: Branfield v Wharton [2004] FCAFC 138) ; Briggs v Minister for Lands (NSW) [2004] FCA 1056 ; (2004) 141 FCR 17 at [28] (Moore J); McKenzie v South Australia (2005) 214 ALR 214 at [31] (Finn J). Against the possibility that the following authorities are properly to be understood as going so far, I should say, with respect, that I do not agree that any post-amending NTA amendment necessarily triggers the authorisation requirement: cf Quall v Risk [2001] FCA 378 (O'Loughlin J) at [63], [65]; Dieri People (Mansfield J) at [18]; Edward Landers v South Australia [2003] FCA 264 ; (2003) 128 FCR 495 (' Edward Landers ') (Mansfield J) at [4], [5].


case_text: The expression 'recognised by the common law of Australia' in s 223(1)(c) of the NTA does not mean 'created by or arising from the common law of Australia', but rather, 'acceptable to and not inconsistent with the common law of Australia'. On this point, see Brennan J in Mabo (No 2) at 43 (recognition or the rights and intents by the common law must not 'fracture a skeletal principle of our legal system') and at 61 (or be 'so repugnant to natural justice, equity and good conscience that judicial sanctions under the new régime must be withheld'). See also Wik Peoples v Queensland [1996] HCA 40 ; (1996) 187 CLR 1 (' Wik ') at 84 (Brennan CJ) and Yarmirr HCA at [42] (joint judgment). In Ward HCA at [21] (joint judgment) it was suggested that there would be a failure to satisfy para (c) if the laws and customs which met the requirements of paras (a) and (b) clashed with 'the general objectives of the common law of the preservation and protection of society as a whole.' Further illustration is that the traditional rights and interests might be of such a nature as not to be amenable to enforcement as common law rights, because, for example, of insufficient precision: Yorta Yorta HCA at [176], [186] (Callinan J). (21) The existence and content of native title must be ascertained as a matter of fact and on a case by case basis by reference to the traditional laws acknowledged and the traditional customs observed by the indigenous people who posses the title: Mabo (No 2) at 58 (Brennan J); Wik at 169 (Gummow J); Commonwealth v Yarmirr [1999] FCA 1668 ; (1999) 101 FCR 171 at [16] (Beaumont and von Doussa JJ); Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316 (' Ward FCAFC' ) at [58] (Beaumont and von Doussa JJ). (23) Novel legal, political and administrative problems were raised by the High Court's decisions in Mabo (No 2) and Wik . The Old NTA was the Parliament's attempt to grapple with the former, and the Amending NTA, with the latter. 'Unless the [NTA] is read with an understanding of the novel legal and administrative problems involved in the statutory recognition of native title, its terms may be misconstrued': North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2 ; (1996) 185 CLR 595 at 614-5 (Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ).


case_outcome: considered

case_text: Later factual exemplars of the application of the discretion described by Megaw LJ in Jefferson Ltd v Bhetcha and of the guidelines set out by Wootten J in McMahon v Gould abound. The most recent of these appears to be a judgment delivered last month by Robson J of the Victorian Supreme Court in Australian Securities and Investments Commission v Flugge [2008] VSC 473. That case is noteworthy for a number of reasons. Firstly, it exemplifies that an exercise of the discretion in question in a civil proceeding may be sought even where related criminal proceedings have not been instituted but are instead "on the cards", i.e. a "reasonable possibility". Secondly, it contains a reflective discussion of whether the guidelines stated in McMahon v Gould should continue to be applied in light of later High Court authority. Thirdly, there is to be found in it consideration of observations made by Finkelstein J of this Court concerning the danger of a civil court's making declaratory judgments or granting injunctive relief if a matter is likely to end up before a criminal court. 26 In Australian Securities and Investments Commission v Flugge , Robson J felt constrained, as had others before him, to suggest that an appellate court may wish to reconsider McMahon v Gould . Insofar as McMahon v Gould recognises the existence of a power which a court has to control proceedings in a civil action by the granting of a stay of those proceedings where the interests of justice so require, I respectfully doubt whether there is any general need for a reconsideration of that case. It is important not to elevate particular factual circumstances calling or not calling for the exercise of that power into statements of principle. It seems to me that Wootten J was not endeavouring to do anything other than to set out guidelines. I do not approach this matter on the basis that the occasions for the exercise of the power are closed. What is required is a balancing of the interests of the applicant and respondent in a civil proceeding having regard to any statutory context relevant to that civil proceeding and to any impending or prospective criminal proceeding. A separate but not unrelated consideration is whether the civil proceeding or at least its then prosecution might be regarded as an abuse of the process of the court. Such considerations will especially loom where the applicant in a civil proceeding is an emanation of the Crown and seeks declaratory relief and the imposition of pecuniary penalties in circumstances where a respondent is or is in jeopardy of facing criminal proceedings in respect of substantially the same conduct. I note that such a prospect particularly influenced Robson J in his suggestion that McMahon v Gould may need to be reconsidered by an appellate court. 38 The present case is nothing like Australian Securities and Investments Commission v Flugge where a conclusion that criminal proceedings against the defendants was a reasonable possibility was readily open having regard to recommendations made in a the report of a recently completed Royal Commission. The audit report does not recommend that a criminal proceeding or even a civil penalty proceeding be instituted. 39 Taking into account all of the considerations which I have mentioned, and balancing all of the public interests at large, it seems to me that, as matters presently stand, the case for even a temporary stay of the proceeding is neither compelling nor even persuasive. That is not to say that the granting of a stay is a remedy forever foreclosed to Burnett Water. Circumstances may change in which case it is at liberty again to bring an application. 40 The application should be dismissed. In the event of that occurrence, the Conservation Council did not seek any order as to costs other than that they be costs in the proceedings. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 12 December 2008 Counsel for the Applicant: Mr McGrath Solicitor for the Applicant: Environmental Defenders Office Counsel for the Respondent: Mr Clothier Solicitor for the Respondent: Allens Arthur Robinson Solicitor for the Intervener: Australian Government Solicitor Date of Hearing: 5 December 2008 Date of Judgment: 12 December 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1900.html


case_text: The judgment of Finkelstein J considered by Robson J was that given by his Honour in Australian Securities and Investments Commission v HLP Financial Planning (Aust) Pty Ltd (2007) 164 FCR 487. As Robson J (at [63]) noted, the following passage (164 FCR 487 at [58]) summarises the conclusion reached by Finkelstein J in relation to the making of a declaratory judgment by a civil court with respect to criminal conduct: The English and Australian authorities that warn of the dangers of a civil court becoming involved in criminal conduct continue to apply in an appropriate company case. The general rule in a company case is that a civil court will usually be the appropriate court to deal with a contravention of the Corporations Act. But the court should be wary of granting relief, including the grant of a declaration or an injunction, if the case is likely to end up before a criminal court. Ordinarily, a civil court should not intervene in those circumstances unless its failure to do so will result in irreparable injury. That strict rule need not be applied if the case involves undisputed facts and the issue raised gives rise to a question of pure law. Then a declaration can be a very useful remedy. As Barwick CJ said in Commonwealth v Sterling Nicholas Duty Free Pty Ltd that is the kind of case "which contributes enormously to the utility of the jurisdiction. (Internal footnote references omitted.) 28 I approach this matter conscious of the warning to which Finkelstein J refers. 29 In the present matter Burnett Water has in the end brought its stay application after filing its defence rather than at the first directions hearing. No criminal or even civil penalty proceedings instituted by or on behalf of the Commonwealth are presently pending against it or any "executive officer" in respect of any of the matters alleged in the statement of claim. Prosecution or civil penalty proceedings are two of the options open to the Minister to consider under the EPBC Act, as his Department's policy and correspondence with Burnett Water recognise. So, too, is the seeking of injunctive relief under s 475 of the EPBC Act by the Minister himself. None of these options has yet been abandoned by the Minister or his Department. Yet other options theoretically open to the Minister to consider are the variation of the conditions of the approval, the suspension of the approval or its revocation: ss 143, 144 and 145 respectively. 34 An "interested person" may initiate proceedings for injunctive relief in circumstances where, for one reason or another, the Minister may be unable or unwilling so to do. Further, a condition precedent to the granting of that relief is the proof of a contravention of the EPBC Act. That formal declarations to this effect have not been sought in the application may therefore in substance be a distinction without a difference. However, the present proceeding is of a quite different type to that which provoked the observation made by Finkelstein J in the passage which I have quoted from Australian Securities and Investments Commission v HLP Financial Planning (Aust) Pty Ltd . 35 The EPBC Act is not unique in providing for the granting of injunctive relief in circumstances which may attract either a civil penalty or a criminal prosecution. Section 80 of the Trade Practices Act 1974 (Cth) has, from the very commencement of that Act well over 30 years ago, permitted either an emanation of the Commonwealth in the form of what is now called the Australian Competition and Consumer Commission (ACCC) or any other person to institute proceedings for injunctive relief grounded in a finding of a contravention of Pt IV or Pt V of that Act. That there exists a theoretical contingency that a respondent's conduct may at the behest of the ACCC attract a civil penalty proceeding or a prosecution has not in the past proved to be a fertile source of precedent in relation to the staying of proceedings for injunctive relief under the Trade Practices Act initiated by a private person. An analogous conclusion is open in respect of the proceedings by private persons for injunctions grounded upon a breach of State fair trading statutes. 36 The EPBC Act does, by Subdivision B of Div 15 of Pt 17 of ch 6 (ss 486A to 486D) make some provision with respect to the relationship between criminal and civil penalty proceedings under that Act. I do not though discern in that Subdivision any implication that a proceeding for an injunction initiated by an "interested person" ought to be stayed even temporarily pending the making of a decision by the Minister as to whether civil penalty or criminal proceedings ought to be initiated in respect of the same conduct. Indeed, the absence of any reference in this Subdivision to a proceeding under s 475 of the EPBC Act is noteworthy.


case_text: Even though it is settled now that the privilege against self incrimination does not apply to corporations: Environmental Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74 ; (1992-1993) 178 CLR 477 , note also s 187 of the Evidence Act 1995 (Cth), it does not follow that Burnett Water is for that reason not entitled to seek a stay of the present proceedings. A prior civil proceeding may still in theory have a potential to embarrass a respondent corporation in relation to its defence of a later civil penalty or criminal proceeding. It is though for that corporation to demonstrate that this is more than an abstract concern. 31 A compliance audit of the dam having regard to the EPBC Act was completed by the Department in January 2008. That identified a "partial non-compliance" with, materially, condition 3 of the Ministerial approval. By October 2008 a revision in respect of the original modelling used to set the parameters of the fishways, a review of the monitoring program in respect of the fishways and the seeking of advice in respect of the possibility of an ameliorating "retrofit" to the fishways were occurring. A report on these subjects was expected to be received within 2 months. It is not yet to hand. After its receipt the Department will give further consideration to the course of action it should take. The prospect of either criminal or civil penalty proceedings is but a bare contingency at the moment. 32 In the meantime, according to preliminary report of 2 December 2008 provided by Professor Jean Ross of Macquarie University who has a research interest in the Australian lungfish, a concern remains about the impact of the dam and the present state of the fishways in relation to the future of that species in the Burnett River. She opines: My principal concern in relation to the possible passage for lungfish over the Paradise Dam is that lungfish are faithful to their spawning sites and need to be able to return to their spawning sites following movement away from those sites, primarily for feeding, following each spawning season. Moreover, due to habitat loss associated with the construction of the Paradise Dam and upstream and downstream water infrastructure, there is a potential for overcrowding at the remaining spawning sites.


case_text: The objects of the EPBC Act (s 3) include the protection of the environment and the promotion of biodiversity. Having regard to the very occasion for the imposition of condition 3 in the Ministerial approval, the evidence of Professor Ross and the objects of the EPBC Act, there are public interests at large in the present proceeding other than a potential embarrassment of Burnett Water and the administration of justice in relation to any civil penalty or criminal proceedings. There is a public interest character in the injunctive relief which may be granted by the Court pursuant to s 475 of the EPBC Act. This was recognised by Black CJ and Finkelstein J in Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116 ; (2006) 154 FCR 425 at 431-432, [19] to [21]: 19 Parliament has determined that it is in the public interest that the enforcement provisions of the EPBC Act should be unusually comprehensive in scope. Section 475 of the EPBC Act and its related provisions form part of a much larger enforcement scheme contained in the 21 divisions of Pt 17. The provisions include the conferral of powers of seizure and forfeiture, powers to board and detain vessels and authority to continue a pursuit on the high seas. 20 It is an important and distinctive feature of Div 14 of Pt 17 of the EPBC Act that, like s 80(4) of the TP Act, the Federal Court is expressly empowered to grant an injunction restraining a person from engaging in conduct whether or not it appears to the Court that the person intends to engage again in conduct of that kind and, even, whether or not there is a significant risk of injury or damage to the environment if the person engages or continues to engage in conduct of that kind: see s 479(1)(a) and (c). 21 The public interest character of the injunction that may be granted under s 475 of the EPBC Act is also emphasised by other elements in Div 14 of Pt 17. Thus, as we have noted, standing is conferred upon 'an interested person' to apply to the Court for an injunction. Likewise, the traditional requirement that an applicant for an interim injunction give an undertaking as to damages as a condition of the grant is negated. Indeed, s 478 provides, expressly, that the Federal Court is not to require such an undertaking. These modifications to the traditional requirements for the grant of injunctions have the evident object of assisting in the enforcement, in the public interest, of the EPBC Act. This does not of course mean that the traditional requirements are irrelevant: see ICI Australia Operations Pty Ltd v TPC at 256-257. (Internal footnote reference omitted; emphasis in original).


case_title: Jefferson Ltd v Bhetca [1979] 1 WLR 898

case_text: That the Court has a general power to control its proceedings and that this includes a power to grant a temporary stay of those proceedings in various circumstances is not in doubt. The authority cited by Burnett Water for this proposition, Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd [1992] FCA 72 ; (1992) 34 FCR 287 at 290 certainly exemplifies this but in the different context of similar proceedings pending in a foreign jurisdiction. More pertinent is a line of authority with regard to this general power which may be traced to the judgement of Megaw LJ (Brandon LJ agreeing) in Jefferson Ltd v Bhetcha [1979] 1 WLR 898 in which (at 904H-905B) his Lordship stated: I should be prepared to accept that the court which is competent to control the proceedings in the civil action ... would have a discretion, under s 41 of the Supreme Court of Judicature (Consolidation) Act 1925, to stay the proceedings if it appeared to the court that justice the balancing of justice between the parties so required, having regard to the concurrent criminal proceedings, and taking into account the principle, which applies in the criminal proceeding itself, of what is sometimes referred to as the 'right of silence' and the reason why that right, under the law as it stands, is a right of a defendant in criminal proceedings. But in the civil court it would be a matter of discretion, and not of right. There is, I say again, in my judgement, no principle of law that a plaintiff in a civil action is to be debarred from pursuing that action in accordance with the normal rules for the conduct of civil actions merely because so to do would, or might, result in the defendant, if he wished to defend the action, having to disclose, by an affidavit under Order 14, or in the pleading of his defence, or by way of discovery or otherwise, what his defence is or may be, in whole or in part, with the result with the result that he might be giving an indication of what his defence was likely to be in the contemporaneous criminal proceedings. The protection which is at present given to one facing a criminal charge the so-called 'right of silence' does not extend to give the defendant as a matter of right the same protection in contemporaneous civil proceedings.


case_title: McMahon v Gould (1982) 7 ACLR 202

case_text: Jefferson Ltd v Bhetcha , its initial Australian reception and the relationship, if any, between the discretion described by Megaw LJ in the passage quoted and the "felonious tort rule" were considered by Wootten J in McMahon v Gould (1982) 7 ACLR 202 in what has proved to be an influential judgment. In that case Mr McMahon, in his capacity as the liquidator of The Dominion Insurance Company of Australia Limited commenced proceedings against the directors of that company, including Mr Gould, for the recovery of sums of money. He alleged that the sums of money in question had been withdrawn from the company's account and misapplied and as a result the directors were guilty of fraud and breach of duty owed to the company. Mr Gould was, at the time already facing criminal proceedings directly related to the sums in question. He applied to the Supreme Court for a general stay of the liquidator's proceedings pending the termination of those criminal proceedings. 21 Against this background, Wootten J (at 206-207) made the following observations: I approach the decision of this matter with the following guidelines: (a) Prima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the court ( Rochfort v John Fairfax & Sons Ltd at 19); (b) It is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper grounds (ibid); (c) The burden is on the defendant in a civil action to show that it is just and convenient that the plaintiff's ordinary rights should be interfered with ( Jefferson v Bhetcha at 905); (d) Neither an accused (ibid) nor the Crown ( Rochfort v John Fairfax & Sons Ltd at 21) are entitled as of right to have a civil proceeding stayed because of a pending or possible criminal proceeding; (e) The court's task is one of "the balancing of justice between the parties" ( Jefferson Ltd v Bhetcha at 904), taking account of all relevant factors (ibid at 905); (f) Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors (ibid at 905); (g) One factor to take into account where there are pending or possible criminal proceedings is what is sometimes referred to as the accused's "right of silence", and the reasons why that right, under the law as it stands, is a right of a defendant in a criminal proceeding (ibid at 904). I return to this subject below; (h) However, the so-called "right of silence" does not extend to give such a defendant as a matter of right the same protection in contemporaneous civil proceedings. The plaintiff in a civil action is not debarred from pursuing action in accordance with the normal rules merely because to do so would, or might, result in the defendant, if he wished to defend the action, having to disclose, in resisting an application for summary judgment, in the pleading of his defence, or by way of discovery or otherwise, what his defence is likely to be in the criminal proceeding (ibid at 904 5); (i) The court should consider whether there is a real and not merely notional danger of injustice in the criminal proceedings (ibid at 905); (j) In this regard factors which may be relevant include: (i) the possibility of publicity that might reach and influence jurors in the civil proceedings (ibid at 905); (ii) the proximity of the criminal hearing (ibid at 905); (iii) the possibility of miscarriage of justice eg by disclosure of a defence enabling the fabrication of evidence by prosecution witnesses, or interference with defence witnesses (ibid at 905); (iv) the burden on the defendant of preparing for both sets of proceedings concurrently ( Beecee Group v Barton ); (v) whether the defendant has already disclosed his defence to the allegations ( Caesar v Somner at 932; Re Saltergate Insurance Co Ltd at 736); (vi) the conduct of the defendant, including his own prior invocation of civil process when it suited him (cf Re S altergate Insurance Co Ltd at 735 6); (k) The effect on the plaintiff must also be considered and weighed against the effect on the defendant. In this connection I suggest below that it may be relevant to consider the nature of the defendant's obligation to the plaintiff; (1) In an appropriate case the proceedings may be allowed to proceed to a certain stage, eg, setting down for trial, and then stayed Beecee Group v Barton ). (Citations of authorities mentioned omitted). 22 The first reported consideration in Queensland of the discretion described by Megaw LJ in Jefferson Ltd v Bhetcha is the judgment of Connolly J in Black & White Cab Co Limited v Kelk [1984] 2 Qd R 484. That case was a civil proceeding in which Mr Kelk was a defendant to a claim for an injunction to restrain the use of allegedly confidential knowledge and damages for an alleged breach of his duty of trust and confidence. Though he had entered an appearance, he had filed no defence. In the meantime an indictment had been presented against him alleging an offence of making improper use as an employee of corporate information to gain an advantage for himself or another person. His Honour (at 485) described the passage which I have quoted above from the judgment of Megaw LJ in Jefferson Ltd v Bhetcha as "highly persuasive" and decided (at 487) to follow it. McMahon v Gould does not appear to have been drawn to his Honour's attention although two earlier New South Wales decisions in which Jefferson Ltd v Bhetcha had been considered and which were in turn considered by Wootten J were. In the result, Connolly J dismissed the stay application, fixed a time for the filing of a defence and counterclaim and permitted the entry of interlocutory judgement for damages to be assessed in default of the delivery of the same. His Honour allowed (at 488) that, if the criminal trial were imminent, it may well be the proper course to postpone the trial of the civil action until after verdict observing that this was a matter which could be resolved when the civil action was closer to trial. 23 Later factual exemplars of the application of the discretion described by Megaw LJ in Jefferson Ltd v Bhetcha and of the guidelines set out by Wootten J in McMahon v Gould abound. The most recent of these appears to be a judgment delivered last month by Robson J of the Victorian Supreme Court in Australian Securities and Investments Commission v Flugge [2008] VSC 473. That case is noteworthy for a number of reasons. Firstly, it exemplifies that an exercise of the discretion in question in a civil proceeding may be sought even where related criminal proceedings have not been instituted but are instead "on the cards", i.e. a "reasonable possibility". Secondly, it contains a reflective discussion of whether the guidelines stated in McMahon v Gould should continue to be applied in light of later High Court authority. Thirdly, there is to be found in it consideration of observations made by Finkelstein J of this Court concerning the danger of a civil court's making declaratory judgments or granting injunctive relief if a matter is likely to end up before a criminal court. 24 As to the second of these noteworthy features, the following passage from the reasons for judgment of Robson J (at [30] to [32]) should be set out: Authority of McMahon v Gould [30] ASIC submits the principles set out above are well established and have been applied in numerous other cases. It submits they should be followed in the present case. There are, however, indications that the principles may require review by an appellate court. In Yuill v Spedley Securities Ltd Kirby P referred to McMahon v Gould as "the existing law." His Honour indicated, however, that one day it may be appropriate for the guidelines referred to by Wootten J in McMahon v Gould to be reconsidered. Kirby P said that the guidelines do not take specifically into account the primacy of the administration of criminal justice in our legal system. In Niven v SS Beazley JA of the New South Wales Court of Appeal said there was force in Kirby's opinion although the case before him was not the case to reconsider McMahon v Gould . In Baker v The Commissioner of Federal Police Gyles J said that in view of Reid v Howard there was some merit in the view that there should be reconsideration of the manner in which the McMahon v Gould line of authorities is now applied so as to decide whether too little weight is given to the practical as well as legal prejudice to the accused and to the primacy of criminal proceedings in our justice system. Gyles J said: The applicants rely upon the decision of the High Court in Reid v Howard to suggest that the line of authority commencing with McMahon v Gould has given insufficient weight to, and has not fully appreciated the extent of, the privilege against self-incrimination. There is no doubt that Reid v Howard does re-affirm the importance of the privilege against self-incrimination, and does not give any encouragement to think that any devaluation of the principle which may apply in the United Kingdom will be applied in Australia. [31] Gyles J said, however, that any such reconsideration would need to be undertaken either by the Full Court of the Federal Court of Australia or the High Court. This approach to McMahon v Gould was also adopted by Gray J in Elliot v APRA . Gray J did hold that the line of authority in McMahon v Gould was not constructed by way of any exception to the privilege against self-incrimination or self-exposure to a penalty. He said: Rather, it represents a means which the courts have developed to deal with the possible conflict between actual pending criminal proceedings and civil proceedings or administrative processes. The approach taken by Gyles J was also adopted by Mansfield J in Guglielmin v Trescowthick (No 3). [32] Nevertheless, in Trade World Enterprises Pty Ltd v DCT Nettle JA (with whom Redlich JA agreed) said the relevant principles applicable to the exercise of discretion on an application for adjournment or stay were conveniently set out by Young CJ in Philippine Airlines v Goldair (Aust) Pty Ltd where Young CJ cited with approval the guidelines in McMahon v Gould . There was no examination of the reservations referred to by Kirby P. (Internal footnote references omitted) 25 In the result, Robson J (at [58]) felt that he was bound to follow what he described as the " McMahon v Gould line of authorities". So do I. Locally in Queensland, Daubney J reached a like conclusion last year in Osric Investments v Probst [2007] QSC 293 at [12]. 26 In Australian Securities and Investments Commission v Flugge , Robson J felt constrained, as had others before him, to suggest that an appellate court may wish to reconsider McMahon v Gould . Insofar as McMahon v Gould recognises the existence of a power which a court has to control proceedings in a civil action by the granting of a stay of those proceedings where the interests of justice so require, I respectfully doubt whether there is any general need for a reconsideration of that case. It is important not to elevate particular factual circumstances calling or not calling for the exercise of that power into statements of principle. It seems to me that Wootten J was not endeavouring to do anything other than to set out guidelines. I do not approach this matter on the basis that the occasions for the exercise of the power are closed. What is required is a balancing of the interests of the applicant and respondent in a civil proceeding having regard to any statutory context relevant to that civil proceeding and to any impending or prospective criminal proceeding. A separate but not unrelated consideration is whether the civil proceeding or at least its then prosecution might be regarded as an abuse of the process of the court. Such considerations will especially loom where the applicant in a civil proceeding is an emanation of the Crown and seeks declaratory relief and the imposition of pecuniary penalties in circumstances where a respondent is or is in jeopardy of facing criminal proceedings in respect of substantially the same conduct. I note that such a prospect particularly influenced Robson J in his suggestion that McMahon v Gould may need to be reconsidered by an appellate court.


case_text: In the result, Robson J (at [58]) felt that he was bound to follow what he described as the " McMahon v Gould line of authorities". So do I. Locally in Queensland, Daubney J reached a like conclusion last year in Osric Investments v Probst [2007] QSC 293 at [12].


case_title: Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd [1992] FCA 72 ; (1992) 34 FCR 287


case_title: Beadle, Re v Director-General of Social Security (1984) 6 ALD 1

case_text: The Tribunal member referred to a number of cases which have considered the meaning of 'special circumstances'. He referred to the decision of the Tribunal in Re Beadle v Director-General of Social Security (1984) 6 ALD 1 where it was said that the circumstances must be unusual, uncommon or exceptional, and the reasons for judgment of Kiefel J in Groth v Secretary, Department of Social Security (1995) 40 ALD 541 where her Honour referred to a circumstance taking the case out of the usual or ordinary case. The Tribunal member also referred to observations of the Full Court of this Court in Riddell v Secretary, Department of Social Security (1993) 30 ALD 31 and of French J in Secretary, Department of Social Security v Hales (supra). I will discuss the relevant authorities later in these reasons. 32 In Ryde v Secretary, Department of Family and Community Services (supra) Branson J considered the provisions of s 1237AAD and in particular whether the Tribunal in that case had erred in concluding that special circumstances meant circumstances which were 'unusual, uncommon or exceptional'. Her Honour referred to the first passage from the reasons for judgment of the Full Court in Beadle set out in [28] above. She also referred to the following passage in Jess v Scott (1986) 12 FCR 187 (at 195): 'What is needed to justify an extension of time is indicated in r 15(2) by the words "for special reasons". It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In that context, the expression "special reasons" is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression "for special reasons" implies something narrower than this.' Although those observations were made in the context of the expression 'for special reasons' in the rules of Court, her Honour considered they were of assistance in the interpretation of the expression 'special circumstances'. Her Honour then said (at [25] and [26]): In my view, the Tribunal probably overstated the significance of the requirement in s 1237AAD(b) for " special circumstances ". The Full Court in Beadle did not endorse the view expressed by the Tribunal in Re Beadle and Director-General of Social Security (1984) 6 ALD 1 at 3 that circumstances are special only if they are " unusual, uncommon or exceptional" . However, the Tribunal concluded that the applicant's circumstances " do not differ from those of many income support recipients" . In the context in which the Tribunal reached this conclusion, it is to be understood as having made a judgment that neither hardship nor unfairness made it desirable to waive all or part of the applicant's debt because the applicant's circumstances were common-place rather than special. While, as French J pointed out in Hales , the evident purpose of s 1237AAD is to enable a flexible response to the wide range of circumstances which could give rise to hardship or unfairness, the statutory requirement for " special circumstances " discloses an intention to proscribe waiver in ordinary cases. The hardship or unfairness to which French J referred must be understood to be hardship or unfairness sufficient to justify departure from the general rule in the particular case.'


case_text: The Tribunal member referred to a number of cases which have considered the meaning of 'special circumstances'. He referred to the decision of the Tribunal in Re Beadle v Director-General of Social Security (1984) 6 ALD 1 where it was said that the circumstances must be unusual, uncommon or exceptional, and the reasons for judgment of Kiefel J in Groth v Secretary, Department of Social Security (1995) 40 ALD 541 where her Honour referred to a circumstance taking the case out of the usual or ordinary case. The Tribunal member also referred to observations of the Full Court of this Court in Riddell v Secretary, Department of Social Security (1993) 30 ALD 31 and of French J in Secretary, Department of Social Security v Hales (supra). I will discuss the relevant authorities later in these reasons. 26 The applicant's first submission is that the Tribunal member applied too stringent a test as to what might constitute special circumstances within s 1237AAD(b). He submits that the Tribunal member said that to constitute special circumstances the circumstances must be 'unusual uncommon and exceptional'. The applicant submits that that was the test formulated by the Tribunal in Re Beadle and Director-General of Social Security (supra) but it was not the test approved on appeal by the Full Court of this Court: Beadle v Director-General of Social Security (1985) 60 ALR 225. Nor, submits the applicant, is the test consistent with other authority of this Court including Dranichnikov v Centrelink (2003) 53 ATR 270 and Ryde v Secretary, Department of Family and Community Services [2005] FCA 866. The applicant submits that the correct test as to what constitutes special circumstances is whether the circumstances take the case out of the ordinary. 29 In Dranichnikov v Centrelink (supra) the Full Court, in considering a similar statutory provision to s 1237AAB said (at [65] and [66]): '65. The decision maker clearly also determined that the circumstances were such that they were not exceptional or unusual so that waiver could not be made as a matter of discretion under s 101. That equates "special circumstances", as that expression is used in the Administration Act with either exceptional circumstances or unusual circumstances. The origin of the test apparently adopted by the Secretary appears to be the decision of the first instance Judge in Beadle v Directory-General of Social Security (1985) 60 ALR 225. That was a decision under previous legislation, the history of which is referred to by French J in Secretary of Department of Social Security v Hales (1998) 82 FCR 154. The Full Court in Beadle comprising Bowen CJ, Fisher and Lockhart JJ, however, was of the view that it was not possible to lay down precise rules as to what constituted special circumstances under the then s 102(1)(a) of the Social Security Act 1947 (Cth). Their Honours point out that the question whether there were special circumstances was one for the decision maker (in that case the Director-General) bearing in mind the purpose for which the power was given. The reference to the first instance decision from which the words "unusual, uncommon or exceptional" come was not actually affirmed by the Full Court. 66. To some extent the question whether there were special circumstances must depend on how it came about that the error occurred. Again that is not a matter to which the decision maker apparently averted. Other cases which have considered analogous words such as "special reasons" has tended to conclude, albeit in different contexts, that what is required will be circumstances which distinguish the case in consideration from the usual case. There will be a requirement that the circumstances are such that takes the case out of the ordinary: Jess v Scott (1986) 12 FCR 187 and the cases in various contexts in the decision which Lockhart, Shepherd and Burchett JJ discuss.'


case_text: The applicant's second submission was put in terms of the Tribunal taking into account irrelevant considerations, namely, the applicant's interest in the Torrensville property and his interest in the preserved superannuation benefits. As I have said, the applicant submits that he has no interest in the Torrensville property or, in the alternative, no immediately realisable interest in the property and no immediately realisable interest in the preserved superannuation benefits. On the face of it, those issues are issues of fact. If there were incorrect findings of fact with respect to those issues, those findings of fact would not be overturned so as to expose a question of law. The appeal to this Court is limited to an appeal on a question of law and there is no right of appeal if a question of law is only exposed if findings of fact are overturned: Copperart Pty Ltd v Federal Commissioner of Taxation (1993) 26 ATR 327. Furthermore, even if a question of law is exposed, this Court does not then have a mandate to review the decision generally: TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1067.


case_text: The applicant's third submission is that the Tribunal member failed to take into account a relevant consideration, namely, that the applicant had changed his position as a result of the respondent's error. The applicant referred to cases dealing with the recovery of money paid to a person by mistake ( Lipkin Gorman (a firm) v Karpnale Ltd [1988] UKHL 12 ; [1991] 2 AC 548; David Securities Pty Ltd v Commonwealth Bank of Australia Ltd [1992] HCA 48 ; (1992) 175 CLR 353). I reject the applicant's submission. The Tribunal member was not obliged to approach the matter in this way. He clearly took into account the respondent's error and the nature of the error. He took into account the financial hardship the applicant might suffer if required to repay the debt. I do not think the fact that the applicant might have spent the moneys which are the subject of the debt on ordinary living expenses is of any particular significance. The significant matter was financial hardship and the applicant's capacity to repay the debt, and, as I have said, those matters were addressed by the Tribunal member.


case_text: The applicant's first submission is that the Tribunal member applied too stringent a test as to what might constitute special circumstances within s 1237AAD(b). He submits that the Tribunal member said that to constitute special circumstances the circumstances must be 'unusual uncommon and exceptional'. The applicant submits that that was the test formulated by the Tribunal in Re Beadle and Director-General of Social Security (supra) but it was not the test approved on appeal by the Full Court of this Court: Beadle v Director-General of Social Security (1985) 60 ALR 225. Nor, submits the applicant, is the test consistent with other authority of this Court including Dranichnikov v Centrelink (2003) 53 ATR 270 and Ryde v Secretary, Department of Family and Community Services [2005] FCA 866. The applicant submits that the correct test as to what constitutes special circumstances is whether the circumstances take the case out of the ordinary. 29 In Dranichnikov v Centrelink (supra) the Full Court, in considering a similar statutory provision to s 1237AAB said (at [65] and [66]): '65. The decision maker clearly also determined that the circumstances were such that they were not exceptional or unusual so that waiver could not be made as a matter of discretion under s 101. That equates "special circumstances", as that expression is used in the Administration Act with either exceptional circumstances or unusual circumstances. The origin of the test apparently adopted by the Secretary appears to be the decision of the first instance Judge in Beadle v Directory-General of Social Security (1985) 60 ALR 225. That was a decision under previous legislation, the history of which is referred to by French J in Secretary of Department of Social Security v Hales (1998) 82 FCR 154. The Full Court in Beadle comprising Bowen CJ, Fisher and Lockhart JJ, however, was of the view that it was not possible to lay down precise rules as to what constituted special circumstances under the then s 102(1)(a) of the Social Security Act 1947 (Cth). Their Honours point out that the question whether there were special circumstances was one for the decision maker (in that case the Director-General) bearing in mind the purpose for which the power was given. The reference to the first instance decision from which the words "unusual, uncommon or exceptional" come was not actually affirmed by the Full Court. 66. To some extent the question whether there were special circumstances must depend on how it came about that the error occurred. Again that is not a matter to which the decision maker apparently averted. Other cases which have considered analogous words such as "special reasons" has tended to conclude, albeit in different contexts, that what is required will be circumstances which distinguish the case in consideration from the usual case. There will be a requirement that the circumstances are such that takes the case out of the ordinary: Jess v Scott (1986) 12 FCR 187 and the cases in various contexts in the decision which Lockhart, Shepherd and Burchett JJ discuss.'


case_text: The Tribunal member referred to a number of cases which have considered the meaning of 'special circumstances'. He referred to the decision of the Tribunal in Re Beadle v Director-General of Social Security (1984) 6 ALD 1 where it was said that the circumstances must be unusual, uncommon or exceptional, and the reasons for judgment of Kiefel J in Groth v Secretary, Department of Social Security (1995) 40 ALD 541 where her Honour referred to a circumstance taking the case out of the usual or ordinary case. The Tribunal member also referred to observations of the Full Court of this Court in Riddell v Secretary, Department of Social Security (1993) 30 ALD 31 and of French J in Secretary, Department of Social Security v Hales (supra). I will discuss the relevant authorities later in these reasons. 34 It is true that in expressing his conclusions the Tribunal member said that there was nothing unusual, uncommon or exceptional about the applicant's case. However, his reasons must be read as a whole and when that is done I do not think that he applied too demanding a test. The first point to note is that contrary to the applicant's submission he did not apply a test of 'unusual, uncommon and exceptional' as distinct from 'unusual, uncommon or exceptional' as submitted by the applicant. Secondly, he referred to the following remarks of Kiefel J in Groth v Secretary, Department of Social Security (supra) as to the meaning of the phrase 'special circumstances': '... would require something to distinguish Mr Groth's case from others, to take it out of the usual or ordinary case. ... It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary. ...'


case_text: On appeal, counsel for the applicant referred me to cases such as Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7 ; (1988) 164 CLR 387, Giumelli v Giumelli [1999] HCA 10 ; (1999) 196 CLR 101 and Plimmer v Wellington Corporation (1884) 9 App Cases 699, and submitted that the Tribunal member should have found that the applicant had no beneficial interest in the Torrensville property, or at least no interest that could be realised in the foreseeable future. In the context of the applicant's preservation benefits, counsel for the applicant made submissions as to the effect of provisions of the Superannuation Industry (Supervision) Act 1993 (Cth).


case_title: Jess v Scott (1986) 12 FCR 187

case_text: In Dranichnikov v Centrelink (supra) the Full Court, in considering a similar statutory provision to s 1237AAB said (at [65] and [66]): '65. The decision maker clearly also determined that the circumstances were such that they were not exceptional or unusual so that waiver could not be made as a matter of discretion under s 101. That equates "special circumstances", as that expression is used in the Administration Act with either exceptional circumstances or unusual circumstances. The origin of the test apparently adopted by the Secretary appears to be the decision of the first instance Judge in Beadle v Directory-General of Social Security (1985) 60 ALR 225. That was a decision under previous legislation, the history of which is referred to by French J in Secretary of Department of Social Security v Hales (1998) 82 FCR 154. The Full Court in Beadle comprising Bowen CJ, Fisher and Lockhart JJ, however, was of the view that it was not possible to lay down precise rules as to what constituted special circumstances under the then s 102(1)(a) of the Social Security Act 1947 (Cth). Their Honours point out that the question whether there were special circumstances was one for the decision maker (in that case the Director-General) bearing in mind the purpose for which the power was given. The reference to the first instance decision from which the words "unusual, uncommon or exceptional" come was not actually affirmed by the Full Court. 66. To some extent the question whether there were special circumstances must depend on how it came about that the error occurred. Again that is not a matter to which the decision maker apparently averted. Other cases which have considered analogous words such as "special reasons" has tended to conclude, albeit in different contexts, that what is required will be circumstances which distinguish the case in consideration from the usual case. There will be a requirement that the circumstances are such that takes the case out of the ordinary: Jess v Scott (1986) 12 FCR 187 and the cases in various contexts in the decision which Lockhart, Shepherd and Burchett JJ discuss.' 32 In Ryde v Secretary, Department of Family and Community Services (supra) Branson J considered the provisions of s 1237AAD and in particular whether the Tribunal in that case had erred in concluding that special circumstances meant circumstances which were 'unusual, uncommon or exceptional'. Her Honour referred to the first passage from the reasons for judgment of the Full Court in Beadle set out in [28] above. She also referred to the following passage in Jess v Scott (1986) 12 FCR 187 (at 195): 'What is needed to justify an extension of time is indicated in r 15(2) by the words "for special reasons". It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In that context, the expression "special reasons" is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression "for special reasons" implies something narrower than this.' Although those observations were made in the context of the expression 'for special reasons' in the rules of Court, her Honour considered they were of assistance in the interpretation of the expression 'special circumstances'. Her Honour then said (at [25] and [26]): In my view, the Tribunal probably overstated the significance of the requirement in s 1237AAD(b) for " special circumstances ". The Full Court in Beadle did not endorse the view expressed by the Tribunal in Re Beadle and Director-General of Social Security (1984) 6 ALD 1 at 3 that circumstances are special only if they are " unusual, uncommon or exceptional" . However, the Tribunal concluded that the applicant's circumstances " do not differ from those of many income support recipients" . In the context in which the Tribunal reached this conclusion, it is to be understood as having made a judgment that neither hardship nor unfairness made it desirable to waive all or part of the applicant's debt because the applicant's circumstances were common-place rather than special. While, as French J pointed out in Hales , the evident purpose of s 1237AAD is to enable a flexible response to the wide range of circumstances which could give rise to hardship or unfairness, the statutory requirement for " special circumstances " discloses an intention to proscribe waiver in ordinary cases. The hardship or unfairness to which French J referred must be understood to be hardship or unfairness sufficient to justify departure from the general rule in the particular case.'


case_title: Lipkin Gorman (a firm) v Karpnale Ltd [1988] UKHL 12 ; [1991] 2 AC 548


case_title: Plimmer v Wellington Corporation (1884) 9 App Cases 699


case_text: The Tribunal member referred to a number of cases which have considered the meaning of 'special circumstances'. He referred to the decision of the Tribunal in Re Beadle v Director-General of Social Security (1984) 6 ALD 1 where it was said that the circumstances must be unusual, uncommon or exceptional, and the reasons for judgment of Kiefel J in Groth v Secretary, Department of Social Security (1995) 40 ALD 541 where her Honour referred to a circumstance taking the case out of the usual or ordinary case. The Tribunal member also referred to observations of the Full Court of this Court in Riddell v Secretary, Department of Social Security (1993) 30 ALD 31 and of French J in Secretary, Department of Social Security v Hales (supra). I will discuss the relevant authorities later in these reasons. 35 Furthermore, the Tribunal member referred to the following remarks of the Full Court of this Court in Riddell v Secretary, Department of Social Security (supra) (at 38): 'Each particular case must be considered on its merits. It is the essential nature of the provision to create a broad discretion to meet the great variety of circumstances which must occur, raising considerations of individual hardship, need, fairness, reasonableness, and whatever else may move an administrator, keeping in mind the scope and purposes of the Act, to make a decision one way or the other.' 36 There is nothing in the reasons of the Tribunal member to suggest that he did not think it appropriate to apply those remarks to the task he was required to undertake. Thirdly, this is not a case where the facts suggested that a precise formulation of the test was necessary or likely to be decisive. It seems to me to be implicit at the very least that the Tribunal member did not consider that there were any features which meant that the case was unusual or out of the ordinary. 37 I reject the applicant's first submission.


case_text: The applicant's first submission is that the Tribunal member applied too stringent a test as to what might constitute special circumstances within s 1237AAD(b). He submits that the Tribunal member said that to constitute special circumstances the circumstances must be 'unusual uncommon and exceptional'. The applicant submits that that was the test formulated by the Tribunal in Re Beadle and Director-General of Social Security (supra) but it was not the test approved on appeal by the Full Court of this Court: Beadle v Director-General of Social Security (1985) 60 ALR 225. Nor, submits the applicant, is the test consistent with other authority of this Court including Dranichnikov v Centrelink (2003) 53 ATR 270 and Ryde v Secretary, Department of Family and Community Services [2005] FCA 866. The applicant submits that the correct test as to what constitutes special circumstances is whether the circumstances take the case out of the ordinary. 32 In Ryde v Secretary, Department of Family and Community Services (supra) Branson J considered the provisions of s 1237AAD and in particular whether the Tribunal in that case had erred in concluding that special circumstances meant circumstances which were 'unusual, uncommon or exceptional'. Her Honour referred to the first passage from the reasons for judgment of the Full Court in Beadle set out in [28] above. She also referred to the following passage in Jess v Scott (1986) 12 FCR 187 (at 195): 'What is needed to justify an extension of time is indicated in r 15(2) by the words "for special reasons". It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In that context, the expression "special reasons" is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression "for special reasons" implies something narrower than this.' Although those observations were made in the context of the expression 'for special reasons' in the rules of Court, her Honour considered they were of assistance in the interpretation of the expression 'special circumstances'. Her Honour then said (at [25] and [26]): In my view, the Tribunal probably overstated the significance of the requirement in s 1237AAD(b) for " special circumstances ". The Full Court in Beadle did not endorse the view expressed by the Tribunal in Re Beadle and Director-General of Social Security (1984) 6 ALD 1 at 3 that circumstances are special only if they are " unusual, uncommon or exceptional" . However, the Tribunal concluded that the applicant's circumstances " do not differ from those of many income support recipients" . In the context in which the Tribunal reached this conclusion, it is to be understood as having made a judgment that neither hardship nor unfairness made it desirable to waive all or part of the applicant's debt because the applicant's circumstances were common-place rather than special. While, as French J pointed out in Hales , the evident purpose of s 1237AAD is to enable a flexible response to the wide range of circumstances which could give rise to hardship or unfairness, the statutory requirement for " special circumstances " discloses an intention to proscribe waiver in ordinary cases. The hardship or unfairness to which French J referred must be understood to be hardship or unfairness sufficient to justify departure from the general rule in the particular case.' 34 It is true that in expressing his conclusions the Tribunal member said that there was nothing unusual, uncommon or exceptional about the applicant's case. However, his reasons must be read as a whole and when that is done I do not think that he applied too demanding a test. The first point to note is that contrary to the applicant's submission he did not apply a test of 'unusual, uncommon and exceptional' as distinct from 'unusual, uncommon or exceptional' as submitted by the applicant. Secondly, he referred to the following remarks of Kiefel J in Groth v Secretary, Department of Social Security (supra) as to the meaning of the phrase 'special circumstances': '... would require something to distinguish Mr Groth's case from others, to take it out of the usual or ordinary case. ... It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary. ...'


case_text: The Tribunal member made no express finding in terms of s 1237AAD(c). He did find that the debt was not capable of being written off under s 1236(1) and (1A) of the Act and there is no challenge to that conclusion. It is not a pre-requisite to the satisfaction of the matter in s 1237AAD(c) that it be appropriate to write off the debt: Secretary, Department of Social Security v Hales (1998) 82 FCR 154 at 163-164 per French J. 6 As I have said, the focus of the applicant's challenge on the appeal was to the Tribunal member's approach and findings with respect to the question of special circumstances. In particular, he submits: 1. That the Tribunal member misconstrued the term 'special circumstances' in s 1237AAD(b) and failed to apply the correct legal test; 2. In considering whether there were special circumstances, the Tribunal member took into account an irrelevant matter, being the applicant's entitlement to certain assets; and 3. In considering whether there were special circumstances, the Tribunal member failed to take into account a relevant matter, namely, that the applicant had changed his position by spending the overpayment which had been caused, primarily at least, by an error of the respondent. 7 The following facts are taken from the reasons of the Tribunal member and are not in dispute. 20 The Tribunal member referred to a number of cases which have considered the meaning of 'special circumstances'. He referred to the decision of the Tribunal in Re Beadle v Director-General of Social Security (1984) 6 ALD 1 where it was said that the circumstances must be unusual, uncommon or exceptional, and the reasons for judgment of Kiefel J in Groth v Secretary, Department of Social Security (1995) 40 ALD 541 where her Honour referred to a circumstance taking the case out of the usual or ordinary case. The Tribunal member also referred to observations of the Full Court of this Court in Riddell v Secretary, Department of Social Security (1993) 30 ALD 31 and of French J in Secretary, Department of Social Security v Hales (supra). I will discuss the relevant authorities later in these reasons. 29 In Dranichnikov v Centrelink (supra) the Full Court, in considering a similar statutory provision to s 1237AAB said (at [65] and [66]): '65. The decision maker clearly also determined that the circumstances were such that they were not exceptional or unusual so that waiver could not be made as a matter of discretion under s 101. That equates "special circumstances", as that expression is used in the Administration Act with either exceptional circumstances or unusual circumstances. The origin of the test apparently adopted by the Secretary appears to be the decision of the first instance Judge in Beadle v Directory-General of Social Security (1985) 60 ALR 225. That was a decision under previous legislation, the history of which is referred to by French J in Secretary of Department of Social Security v Hales (1998) 82 FCR 154. The Full Court in Beadle comprising Bowen CJ, Fisher and Lockhart JJ, however, was of the view that it was not possible to lay down precise rules as to what constituted special circumstances under the then s 102(1)(a) of the Social Security Act 1947 (Cth). Their Honours point out that the question whether there were special circumstances was one for the decision maker (in that case the Director-General) bearing in mind the purpose for which the power was given. The reference to the first instance decision from which the words "unusual, uncommon or exceptional" come was not actually affirmed by the Full Court. 66. To some extent the question whether there were special circumstances must depend on how it came about that the error occurred. Again that is not a matter to which the decision maker apparently averted. Other cases which have considered analogous words such as "special reasons" has tended to conclude, albeit in different contexts, that what is required will be circumstances which distinguish the case in consideration from the usual case. There will be a requirement that the circumstances are such that takes the case out of the ordinary: Jess v Scott (1986) 12 FCR 187 and the cases in various contexts in the decision which Lockhart, Shepherd and Burchett JJ discuss.' 30 In Secretary, Department of Social Security v Hales (supra) French J considered the provisions of s 1237AAD. One particular argument his Honour was required to consider was whether the reference in s 1237AAD(b) to 'other than financial hardship alone' meant that there must be financial hardship before a finding of special circumstances can be made. His Honour rejected that argument and in the course of doing so made some general observations as to the concept of special circumstances. His Honour said (at 162): 'The concept of special circumstances is broad. A constellation of factors, including financial circumstances, may fall within it. The express exclusion of financial hardship alone as a special circumstance is an indicator that it would otherwise be included. This gives some measure of the range of circumstances which will qualify as special. But as a matter of grammar and ordinary logic, the exclusion of financial hardship alone as a special circumstance does not mandate its inclusion in the range of matters constituting such circumstances for the purpose of enlivening the Secretary's discretion. ... The evident purpose of s 1237AAD is to enable a flexible response to the wide range of situations which could give rise to hardship or unfairness in the event of a rigid application of a requirement for recovery of debt. It is inappropriate to constrain that flexibility by imposing a narrow or artificial construction upon the words. It may be that there will be few cases in which the Secretary will be satisfied that there are special circumstances in the absence of financial hardship. It may be that there are few cases in which having found special circumstances to exist, the Secretary would exercise the discretion to waive in the absence of financial hardship. But to anticipate the limits of the categories of possible cases by imposing on the language of the section a fetter upon its application which is not mandated by its words, is to erode its useful purpose.' 31 French J also made the point that the Secretary has a discretion even if the three conditions in s 1237AAD are satisfied. In other words, the Secretary is not obliged to waive the debt even if the three conditions are satisfied.


case_title: TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1067


case_title: Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7 ; (1988) 164 CLR 387


case_text: The Deputy President summarised the legislative provisions and the arguments put to him by both sides, together with the evidence including, in particular, that of Dr Rogers and Dr Cook. He then addressed the meaning of the word 'permanent' in s 24 by reference to dictionaries and to the following passage from the reasons of Woodward J in McDonald v Director General of Social Security (1984) 6 ALD 6 at 13: 'The vital contrast between temporary and permanent incapacity must be based upon an assessment of future prospects at the time the decision is made. It is not inconsistent with the notion of permanent incapacity that the pensioner's position should be reviewed from time to time. Unexpected improvements in the person's condition, advances in medical science, the achievement of fresh skills, or even changes in the labour market, could bring to an end an incapacity which had been thought to be permanent. In my view the true test of a permanent, as distinct from temporary, incapacity is whether in the light of the available evidence, it is more likely than not that the incapacity will persist in the foreseeable future ... This test involves two questions. The first is whether it is more likely than not that the disability will terminate (or fall below 85% in the sense referred to above) at some time in the future. Even if the answer to this question is "yes" I think it would be inaccurate in the context of employment to describe as "temporary" a condition which was likely to last for a number of years. Hence the two elements of degree of likelihood of improvement and time span for that improvement, should be weighed together in determining what is permanent and what is temporary. The greater the likelihood of substantial improvement and the earlier that it is likely to occur, the more accurate will be a "temporary" label. The longer the period and the less probable the improvement, the more appropriate will be a finding of permanent incapacity ...' 11 The Deputy President noted that those observations were made in the context of the Social Security Act 1947 which provided for invalid pensions (payable to workers who were permanently incapacitated), sickness benefits (payable to persons who were temporarily incapacitated) and unemployment benefits (payable to persons who were capable of work but unable to find any). He considered that the Social Security Act required that persons receiving benefits fall into one of these three classes and that 'an incapacity which was not temporary was automatically permanent' . He contrasted that position with that which obtains under ss 24 and 25 of the Act. 12 The observations made by Woodward J may well be applicable for present purposes, subject to two qualifications. Firstly, invalid pensions, sickness benefits and unemployment benefits are not analogous to pensions (including benefits payable pursuant to ss 24 and 25), payable to veterans who suffer from war-caused injuries or diseases. Sickness benefits, the invalid pension and unemployment benefits are properly characterised as social security payments . They do not reflect any particular obligation owed by the Commonwealth to recipients other than the general social duty to ensure the well-being of all citizens, which duty is discharged by provision of the benefits prescribed in the Social Security Act . However a pension payable pursuant to Part 2 of the Act is by way of compensation for injury or disease incurred in, or as the result of, war service. See s 13. In other words, it recognises the special obligation of the Commonwealth to compensate a person who has an injury or disease as the result of war service and any attendant incapacity. A determination pursuant to either s 24 or s 25 is only as to the rate at which the pension is paid. Any applicant for a benefit pursuant to either section will be entitled to a pension under some other provision of Pt 2 of the Act. The second distinction which I would draw between the regime prescribed by ss 24 and 25 and that to which the decision in McDonald related is that Parliament has clearly distinguished between persons who satisfy the requirements of s 24 and those who only satisfy the requirements of s 25. The obligation of the Administrative Appeals Tribunal, and of this Court, is to give effect to that distinction, not to achieve consistency in the interpretation of terms as used in this Act and in other legislation. That was, I think, the point which the Deputy President was making concerning the applicability of the remarks in McDonald to the present case. 13 Whether or not a particular incapacity is permanent is a question of fact. I do not understand Woodward J to have purported to lay down an exhaustive definition of the word "permanent". If the Deputy President misunderstood the question posed for his consideration, then he erred in law. However it is not to the point that he may have considered that words used by Woodward J in an earlier case, concerning other legislation, were inapposite to describe the notion of permanence as it is used in the Act. 14 The Deputy President concluded that the word "permanent", when used in s 24, means 'for a period longer than just a few years hence' . Implicit in that conclusion is the proposition that a demonstrated incapacity for 'a few years' would not, at least in this case, be a basis for a favourable determination under s 24. The Deputy President placed weight upon the fact that in the relevant second reading speech in connection with the Repatriation Legislation Amendment Bill 1985 (Volume H of R 142, 13-31 May 1985, page 2646) the Minister observed that the purpose of the special rate of pension was to provide for severely disabled veterans of a relatively young age 'who could never go back to work and could never hope to support themselves or their families' . Use of the word "never" supports the Deputy President's approach. However, he did not say that s 24 requires that a decision-maker be satisfied that the veteran's incapacity will continue for the rest of his or her life. In this respect his reasons reflect a similar approach to that adopted by Woodward J. 15 In the present case, the Deputy President preferred the evidence of Dr Cook to that of Dr Rogers. In other words, he accepted Dr Cook's evidence that there was a 50 percent chance that the applicant would be able to re-enter the workforce over the next four or five years, although perhaps in a limited or part-time capacity. The limited or part-time capacity was that referred to by Dr Cook in his evidence and certainly exceeded the eight hours per week limit prescribed for the purposes of s 24. The Deputy President's preference for the evidence of Dr Cook over that of Dr Rogers is beyond challenge in these proceedings. Given that view of the evidence, it was open to the Deputy President to conclude that he was not satisfied as to the permanence of the applicant's condition, and therefore to treat his application as falling within s 25 and not s 24. In other words, it cannot be said that as a matter of law the applicant's incapacity, as found by Dr Cook, was permanent for the purposes of the Act. The Deputy President's reasons disclose no error of law. His conclusions were fairly open on his view of the evidence. 16 The appeal must be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 12 April 2006 Counsel for the Applicant: Darin Honchin Solicitor for the Applicant: Purcell Taylor Lawyers Counsel for the Respondent: Madeline Brennan Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 30 March 2006 Date of Judgment: 12 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/395.html