case_text: are three additional matters I should emphasise. First, I have emphasised that it is the review of the Trustee's decision that is of present concern. The present is not a case in which the Trustee was, in substance, deciding a question that was assigned by the Deed itself to an insurer: cf Chammas v Harwood Nominees Pty Ltd [No 1] (1993) 7 ANZ Ins Cas 61-175. Secondly, while both under the general law and under cl 3(1) of the trust deed the Trustee had no duty to give reasons for a determination adverse to Mr Kowalski, a failure to give reasons in circumstances where explanation might be called for is another matter. As Young J observed in Maciejewski v Telstra Super Pty Ltd (1998) 44 NSWLR 601 at 604, in dealing with the suggestion that because a trustee is not bound to give any reasons, therefore the matter is completely unreviewable: Nothing could be further from the truth. Indeed, whilst trustees do not have to give reasons in a case where a plaintiff puts forward a prima facie case that the trustee's discretion has miscarried, the absence of reasons and the absence of any evidence before the Court as to what happened, will tend to make that prima facie case a virtual certainty. This view has been endorsed in many subsequent cases: see Baker v Local Government Superannuation Scheme Pty Ltd ; Hay v Total Risk Management Pty Ltd ; Alcoa of Australia Retirement Plan Pty Ltd v Thompson (2002) 116 FCR 139 at [37]; Flegeltaub v Telstra Super Pty Ltd ; see also Butler LM, "Reviewing Trustees' Decisions: The Right to Reasons" (1999) 7 Aust Property LJ 251. Thirdly, as the Trustee has considered Mr Kowalski's entitlement to a TPD Benefit on a number of occasions and has decided against it, an issue that presently arises is whether, if at all, it is obliged to reconsider that matter and, if so, in what circumstances. These issues have helpfully been considered by the Full Court of Western Australia in Tonkin v Western Mining Corporation Ltd (1998) 10 ANZ Ins Cases 61-397 and in a context not dissimilar from the present. In a judgment endorsed by the other members of the Court, Franklyn J made observations which though lengthy are presently relevant in several respects (at 74,270): In my view, having regard to the terms of the Deed and the relevant definition, there is no obligation on the trustee, on an application for the TPD Benefit supported by evidence inadequate to give rise to the necessary opinion, to seek out, on its own initiative, evidence for its consideration and so strain to obtain evidence relevant to the formation of the necessary opinion, thereby attempting to bring within the definition a member not otherwise within its terms. It may, however, in the exercise of its fiduciary duty and as a matter of discretion, if it considers it appropriate, seek and obtain additional medical evidence. It may also, as a matter of discretion, require medical evidence to be submitted to it for the purposes of its consideration. As trustee, it is not an adversary either for or against an applicant for the benefit. Relevantly, it has a duty only to act in accordance with the trust. If it fails to perform the same, the court will compel it to do so or do so for it. It is not bound by any rules as to how it exercises a discretion conferred on it, save such as it is obliged to comply with by the terms of the Deed, provided always that it must act honestly and in good faith, on an informed view of whether or not to exercise its discretion, and exercise the power with due consideration for the purpose for which it was conferred and for no ulterior purpose. In the case of powers conferred on it and as to whether it should do or refrain from doing something, it must exercise its judgment actively and honestly and act accordingly. The court will not control a trustee in the exercise of its purely discretionary powers unless it is acting mala fide or has misconceived the nature of its discretion and acted upon that misconception. When appointed to exercise a trust according to discretion, a trustee is not bound to state reasons for any conclusion at which it may have arrived and on which it has acted, but again the discretion must be exercised with an absence of indirect motive with honesty of intention and on a fair consideration of the issues. The duty of the court generally is to see that the discretion of the trustee has been exercised in this manner and not to deal with the accuracy of the conclusion at which it may have arrived. See Jacobs' Law of Trusts in Australia , 5 th Ed, p 372-379. In my opinion, it has at all times been open to the appellant to submit further medical evidence, including the reports relied on in para 17.2A to the respondent for its consideration pursuant to the Deed definition in respect of the claim for the TPD Benefit. In such case the respondent is bound to give them proper consideration. No time limit is fixed or imposed by the Deed for making application for the Benefit or for the required consideration of medical evidence. Whether any statutory limitation might apply is not relevant to our consideration as no issue in that respect has been raised. In the event of the respondent, having considered medical evidence before it, failing to form the necessary opinion there is nothing in the Deed or rules to inhibit the appellant from providing, for its further consideration, further medical evidence relevant to the formation of that opinion. There is nothing in the Deed to lead to the conclusion that, once having failed or refused to form the necessary opinion after consideration of the medical evidence then before it, the respondent is under no obligation to consider further medical evidence relevant to the formation of that opinion. Indeed, in my opinion, on the proper construction of the Deed and having regard to the fiduciary nature of the trustee's obligations, the respondent, if requested to do so, is bound to consider such evidence relevant to formation of the opinion as may from time to time be put before it. Consequently, medical evidence, whether coming into existence prior or subsequent to any particular failure or refusal to form the necessary opinion will necessarily have to be considered if made available by or on behalf of the applicant for that purpose. I should note that for present purposes the respondents have conceded that, beyond medical evidence, if other material is provided to a trustee and is of such character as would lead a reasonable trustee to consider whether or not to reconsider its former opinion, that material will have to be considered.


case_outcome: cited

case_title: Maciejewski v Telstra Super Pty Ltd (1998) 44 NSWLR 601


case_title: Alcoa of Australia Retirement Plan Pty Ltd v Thompson (2002) 116 FCR 139


case_outcome: applied

case_text: are three additional matters I should emphasise. First, I have emphasised that it is the review of the Trustee's decision that is of present concern. The present is not a case in which the Trustee was, in substance, deciding a question that was assigned by the Deed itself to an insurer: cf Chammas v Harwood Nominees Pty Ltd [No 1] (1993) 7 ANZ Ins Cas 61-175. Secondly, while both under the general law and under cl 3(1) of the trust deed the Trustee had no duty to give reasons for a determination adverse to Mr Kowalski, a failure to give reasons in circumstances where explanation might be called for is another matter. As Young J observed in Maciejewski v Telstra Super Pty Ltd (1998) 44 NSWLR 601 at 604, in dealing with the suggestion that because a trustee is not bound to give any reasons, therefore the matter is completely unreviewable: Nothing could be further from the truth. Indeed, whilst trustees do not have to give reasons in a case where a plaintiff puts forward a prima facie case that the trustee's discretion has miscarried, the absence of reasons and the absence of any evidence before the Court as to what happened, will tend to make that prima facie case a virtual certainty. This view has been endorsed in many subsequent cases: see Baker v Local Government Superannuation Scheme Pty Ltd ; Hay v Total Risk Management Pty Ltd ; Alcoa of Australia Retirement Plan Pty Ltd v Thompson (2002) 116 FCR 139 at [37]; Flegeltaub v Telstra Super Pty Ltd ; see also Butler LM, "Reviewing Trustees' Decisions: The Right to Reasons" (1999) 7 Aust Property LJ 251. Thirdly, as the Trustee has considered Mr Kowalski's entitlement to a TPD Benefit on a number of occasions and has decided against it, an issue that presently arises is whether, if at all, it is obliged to reconsider that matter and, if so, in what circumstances. These issues have helpfully been considered by the Full Court of Western Australia in Tonkin v Western Mining Corporation Ltd (1998) 10 ANZ Ins Cases 61-397 and in a context not dissimilar from the present. In a judgment endorsed by the other members of the Court, Franklyn J made observations which though lengthy are presently relevant in several respects (at 74,270): In my view, having regard to the terms of the Deed and the relevant definition, there is no obligation on the trustee, on an application for the TPD Benefit supported by evidence inadequate to give rise to the necessary opinion, to seek out, on its own initiative, evidence for its consideration and so strain to obtain evidence relevant to the formation of the necessary opinion, thereby attempting to bring within the definition a member not otherwise within its terms. It may, however, in the exercise of its fiduciary duty and as a matter of discretion, if it considers it appropriate, seek and obtain additional medical evidence. It may also, as a matter of discretion, require medical evidence to be submitted to it for the purposes of its consideration. As trustee, it is not an adversary either for or against an applicant for the benefit. Relevantly, it has a duty only to act in accordance with the trust. If it fails to perform the same, the court will compel it to do so or do so for it. It is not bound by any rules as to how it exercises a discretion conferred on it, save such as it is obliged to comply with by the terms of the Deed, provided always that it must act honestly and in good faith, on an informed view of whether or not to exercise its discretion, and exercise the power with due consideration for the purpose for which it was conferred and for no ulterior purpose. In the case of powers conferred on it and as to whether it should do or refrain from doing something, it must exercise its judgment actively and honestly and act accordingly. The court will not control a trustee in the exercise of its purely discretionary powers unless it is acting mala fide or has misconceived the nature of its discretion and acted upon that misconception. When appointed to exercise a trust according to discretion, a trustee is not bound to state reasons for any conclusion at which it may have arrived and on which it has acted, but again the discretion must be exercised with an absence of indirect motive with honesty of intention and on a fair consideration of the issues. The duty of the court generally is to see that the discretion of the trustee has been exercised in this manner and not to deal with the accuracy of the conclusion at which it may have arrived. See Jacobs' Law of Trusts in Australia , 5 th Ed, p 372-379. In my opinion, it has at all times been open to the appellant to submit further medical evidence, including the reports relied on in para 17.2A to the respondent for its consideration pursuant to the Deed definition in respect of the claim for the TPD Benefit. In such case the respondent is bound to give them proper consideration. No time limit is fixed or imposed by the Deed for making application for the Benefit or for the required consideration of medical evidence. Whether any statutory limitation might apply is not relevant to our consideration as no issue in that respect has been raised. In the event of the respondent, having considered medical evidence before it, failing to form the necessary opinion there is nothing in the Deed or rules to inhibit the appellant from providing, for its further consideration, further medical evidence relevant to the formation of that opinion. There is nothing in the Deed to lead to the conclusion that, once having failed or refused to form the necessary opinion after consideration of the medical evidence then before it, the respondent is under no obligation to consider further medical evidence relevant to the formation of that opinion. Indeed, in my opinion, on the proper construction of the Deed and having regard to the fiduciary nature of the trustee's obligations, the respondent, if requested to do so, is bound to consider such evidence relevant to formation of the opinion as may from time to time be put before it. Consequently, medical evidence, whether coming into existence prior or subsequent to any particular failure or refusal to form the necessary opinion will necessarily have to be considered if made available by or on behalf of the applicant for that purpose. I should note that for present purposes the respondents have conceded that, beyond medical evidence, if other material is provided to a trustee and is of such character as would lead a reasonable trustee to consider whether or not to reconsider its former opinion, that material will have to be considered. Turning now to the 1994 claim in the FASC, several matters seem indisputable. First, no formal application was made of the time of termination for a TPD Benefit. Mr Kowalski does not suggest otherwise. Secondly, the Trustee was unaware that it should consider Mr Kowalski's termination entitlements with such a benefit in mind. It did not inquire into whether there was medical evidence capable of supporting such an entitlement. It had no need, or obligation, to in the circumstances: cf Tonkin , at 74,269. I note that before it could pay a member a TPD Benefit under Rule C7, the Trustee was required to be of the opinion "after consideration of medical evidence satisfactory to them [sic]" that the member is incapacitated to the extent required by the Rule. The Trustee in this matter simply paid a Rule C9 retirement benefit. If the Trustee was later presented with an application for, or medical evidence in support of, a TPD Benefit, the paying of the Rule C9 benefit would not have relieved the Trustee of its obligation to consider that application. This is not to say that the C9 decision was vitiated by some breach of duty on the Trustee's part. Rather, its correctness was examinable because an error may have been made in providing the member with his or her entitlement as a member. Under the Rules of Annex C, the member was entitled to be paid the benefits of the particular Rule which his or her circumstances required. The Trustee may have had to be satisfied that the member met the criteria of a particular rule, but it did not have an unfettered discretion to decide which benefit might be provided to a member. As I will indicate below, the Trustee subsequently considered and rejected Mr Kowalski's claim for a TPD Benefit from the cessation of his employment in 1994. Mr Kowalski's 1994 claim proceeds on two false assumptions. The first, is that the Trustee had, in the circumstances, a duty to consider whether he had an entitlement to a TPD Benefit. I need not repeat what I have said above. The second is that the Trustee was obliged to consider Dr McFarlane's "report" (as the 29 April 1993 interview notes are misdescribed). There is no evidence at all that the Trustee was informed of, or provided with the report, at any time relevant to the determination of Mr Kowalski's 1994 retirement benefit. Mr Kowalski does not contend to the contrary. While it is a trustee's duty to act in the interests of its beneficiaries, absent an express power of dictation, a trustee is not the pawn of a beneficiary. As Tonkin indicates, a beneficiary is entitled to seek the reconsideration of a decision affecting his or her interests unless this is precluded by the nature of the decision itself or by the terms of the trust instrument. But where the decision, as here, requires the Trustee to form a particular opinion and that opinion has previously been formed adversely to the beneficiary, the Trustee is not obliged to reconsider that opinion absent some reason for so doing. Where, as here, what is raised by the beneficiary is matter which the Trustee has previously had raised before it and dealt with, the Trustee is entitled to decline to re-entertain that same matter in the future unless, because of change of circumstances or otherwise, that decision was not one that a reasonable person could then make. Such is not the position here. Accordingly, I am satisfied that having regard to the material underlying Mr Kowalski's 2005 claim, that claim has no reasonable prospects of success. I am conscious that in reaching the conclusions I have, I have made no direct reference to the medical evidence or to issues of causation. As to the medical evidence, I accept that there was material before the Trustee in 2001 which both supported and contradicted Mr Kowalski's position. The Trustee in light of this had to make its own decision. While Mr Kowalski asserts the Trustee's opinion was incorrect, that is not the question with which I am concerned. Not being aware of all of the material that was before the Trustee when it took its decisions in 2001 and 2005, I am left to consider if it can properly be alleged that there was not a real and genuine consideration of the correct question by the Trustee. There is nothing before me reasonably to suggest such was the case and hence should be examined at trial.


case_text: On 16 April 2003, Colonial wrote to Mr Smelt concerning Mr Kowalski and the life insurance policy relating to him. The letter stated in part: We refer to the claim by Mr Kowalski who was a life insured covered under a group life insurance policy ("the policy") issued by the State Government Insurance Commission (SGIC) ("now Colonial") to Mitsubishi Motors Australia Employees' Superannuation Fund. Mr Kowalski made a claim for Total and Permanent ("TPD") benefit on 20 February, 1992 claiming that the Life Insured had been absent from employment since 16 August, 1991 as a result of emotional stress and pathologically intense state of anxiety and that he was TPD. After considering medical evidence available to it, SGIC denied the claim for TPD benefits on 4 August, 1992 on the basis that the evidence supported that the insured was not TPD. We note that Colonial subsequently re-examined Mr Kowalski's claim and affirmed its decision to deny the claim by letter dated 13 June, 2001. We note you subsequently requested that Colonial review the claim on 3 July, 2001 taking into consideration further medical evidence. Colonial reviewed the claim at this time and communicated its decision to you via email correspondence on or about August, 2001. Mr Kowalski however, alleges that Colonial did not re-examine his claim as requested. We deny this allegation. Mr Kowalski has contacted Colonial on a number of occasions regarding his claim including a recent letter dated 14 February, 2003. We note that the policy is between Colonial and the Trustee. Therefore, we are writing to Mr Kowalski informing him that any future questions he has about the policy should be directed to the Trustee and not Colonial. We have examined our file and provide the following summary of the assessment of Mr Kowalski's claim for your information: The insured's claim has been assessed by determining whether he was TPD as at February, 1992. We refer to the policy provisions for an explanation of the assessment of the insured's claim in this way. Under the policy the period of cover ends on the earliest to occur of: - the end of the term of group life policy or its earliest termination, or - the termination of employment, or - cessation of gainful employment by the life insured as reflected in the following provisions of the Group Life Policy. Clause 4 (Duration of Cover) of the Group Life Policy provides: "The insurance cover evidenced by this Policy issued pursuant to the Proposal shall be effective from midnight of the Commencement Date until midnight of the same date of the month as the anniversary in which the contract guarantee period expires." "Contract Guarantee Period" in the Group Life Policy is defined to mean the period from the commencement date to 1 st February, 1992. Clause 5(2) of the policy provides that "Cover in respect of a Life Insured ceases at the earliest of the following events" including: (ii) termination of service with the employer and (v) cessation of gainful employment Accordingly, the insured's claim must be assessed by determining whether he was TPD as at February, 1992 or any earlier date on which the insured's employment was terminated prior to this date or the insured ceased gainful employment prior to this date. If you would like us to reassess the life insured's claim then you should provide us with documents that you consider relevant to whether the life insured was TPD as at February, 1992. We note that we are already in possession of copies of the following documents: Medical Report of Dr Scanlon dated 28 October, 1991 Workers Compensation Medical Certificate dated 23 February 1993 including comments by Dr Jagerman Notes of JA Fountain, solicitor acting for Mitsubishi Motors Australia Ltd attending Dr McFarlane dated 29 April 1993. Please note that we are in possession of several other documents however these are not relevant to the reassessment of the life insured's TPD claim as at February, 1992 and therefore have not been listed. Please provide any additional documents, which you consider are appropriate if you consider that Mr Kowalski's claim should be reassessed. (Emphasis added.) This letter was copied to Mr Kowalski. There is nothing in the material to which I have been taken to suggest that the Trustee sought the reassessment referred to in the last quoted paragraph or that it disputed the insurer's view as to the period of cover. I should add I have emphasised the paragraph where Colonial limited its liability to February 1992. While this may have been the case insofar as concerned Colonial in respect of any TPD Benefit claim, it was not the case for the Trustee. From February 1992 until the termination date in 1994, the Trustee "self insured" in respect of any possible TPD Benefit claim by Mr Kowalski: on insuring benefits see Trust Deed cl 8; see also Halloran v Harwood Nominees Pty Ltd [2007] NSWSC 913. (viii) In mid-2003 Mr Kowalski and others acting on his behalf sought to obtain a copy of Colonial's determination of August 2001. The Trustee's solicitors denied having a copy of it. (ix) In March and April of 2004 the Trustee's solicitors wrote to Mr Kowalski and to his union indicating on instructions that no formal application for a TPD Benefit was made to the Trustee in October 1998. In the letter to Mr Kowalski, the solicitors further observed that, in consequence, no such application was considered or rejected at that time.


case_text: readily acknowledge that the trust device has in practice proved "a disappointing and unreliable instrument" for circumventing the privity doctrine: see Cheshire and Fifoot's Law of Contract , [7.44] (9 th Aust ed, 2008). Nonetheless, in this particular setting both where trust and contract so obviously interact: see Dal Pont and Chalmers, at 727; and where the contracting parties intent was, on the face of the Heads of Agreement, to bring the Trustee within its purview so both to benefit and to burden it, the observations of Deane J in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44 ; (1988) 165 CLR 107 at 147-148 are singularly apposite. His Honour observed that the requisite intention of the contracting parties to constitute a trust of a promise for a third party should be inferred: ... if it clearly appears that it was the intention of the promise that the third party should himself be entitled to insist upon performance of the promise and receipt of the benefit and if trust is, in the circumstances, the appropriate legal mechanism for giving effect to that intention. A fortiori, equity's requirement of an intention to create a trust will be at least prima facie satisfied if the terms of the contract expressly or impliedly manifest that intention as the joint intention of both promisor and promise. ... If the trustee of the promise declines to institute [proceedings for the enforcement of the promise or damages for its breach], the beneficiary can bring proceedings against the promisor in his own name, joining the trustee as defendant. See also Bahr v Nicolay (No 2) [1988] HCA 16 ; (1988) 164 CLR 604 at 618; Ford and Lee, Principles of the Law of Trusts , [17.11010]. It is not necessary that the contracting parties know and understand that they are creating a trust. It is sufficient that they intend to create a relationship which, in equity, conforms to that of a trust: see Twinsectra Ltd v Yardley [2002] 2 AC 164 at [71]; Ford and Lee at [2035].


case_title: Twinsectra Ltd v Yardley [2002] 2 AC 164


case_text: for present purposes, as Gordon J observed in Jefferson Ford at [130] (citations omitted): ... where there is a real issue of fact relevant to a pleaded cause of action, it is unlikely that that part of the proceeding has no prospect of success ... So, for example, if the pleadings, affidavits, and other materials considered in connection with the summary judgment motion, reveal a factual dispute and that factual dispute must be resolved to determine whether or not the claim succeeds, it cannot be said that the claim has "no reasonable prospect of success" ... On the other hand, if the factual contest is unnecessary to the resolution of the cause of action pleaded, then in the absence of other relevant material, there is nothing to prevent the court entering judgment on that claim. Breach of Trust/Fiduciary Duty While it is not strictly necessary that I express a concluded view on this foreshadowed defence, and while I share the view of Fullagar J in Wilson v Darling Island Stevedoring & Lighterage Co Ltd [1956] HCA 8 ; (1956) 95 CLR 43 at 67 that it is "difficult to understand the reluctance which courts have sometimes shown to infer a trust in such cases" a reluctance I acknowledge I am satisfied that having regard not only to the text of the agreement but also to the known surrounding circumstances and the purpose and object of the contract: cf Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 at [22] ; a court would readily infer a trust intention in this matter.


case_text: it is not strictly necessary that I express a concluded view on this foreshadowed defence, and while I share the view of Fullagar J in Wilson v Darling Island Stevedoring & Lighterage Co Ltd [1956] HCA 8 ; (1956) 95 CLR 43 at 67 that it is "difficult to understand the reluctance which courts have sometimes shown to infer a trust in such cases" a reluctance I acknowledge I am satisfied that having regard not only to the text of the agreement but also to the known surrounding circumstances and the purpose and object of the contract: cf Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 at [22] ; a court would readily infer a trust intention in this matter.


case_text: ordinarily MMAL would be a necessary party to the raising of such a defence: see Lidden v Composite Buyers (1996) 67 FCR 560 ; see also Jacobs' Law of Trusts in Australia , [2303] (7 th ed, 2006); the respondents acknowledge were the matter to proceed to trial, MMAL could be joined as a party for the purpose of enforcing the trust. I should add that, while the Trustee did not seek to insist on its rights for the purpose of the 2001 reconsideration and properly so given Mr Smelt's assurance at the time of the mediation agreement that he would raise the TPD claim with Colonial the Trustee has done nothing that could be said (i) to amount to a renunciation of its rights; or (ii) to found an estoppel against it for the future. Given this available defence, I am satisfied it provides a further basis for concluding that Mr Kowalski's application has no reasonable prospects of success.


case_outcome: discussed

case_title: Aston and Secretary, Department of Primary Industry, Re (1985) 8 ALD 366

case_text: In Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 (" Re Aston "), the Tribunal (of which Davies J was the President) considered the correct and preferable decision on the material before it in relation to an allocation of a quota of Southern bluefin tuna under a scheme limiting the taking of tuna adopted pursuant to the Fisheries Act 1952 (Cth). The Tribunal quoted extensively from the reasons for judgment of Brennan J in Drake (No 2) and noted the reasons why, in the circumstances of Re Aston , it was appropriate to place great weight on the policy (at 380): "There being no special circumstances which affected the Astons, this is pre-eminently the type of matter in which the policy adopted by the primary decision-maker ought to be applied by this Tribunal. The policy affected an industry. It was a policy decided upon at the highest level, being resolved upon by the Australian Fisheries Council comprised of the six relevant Ministers of the States and the Federal Minister for Primary Industry and the Federal Minister for Science and Technology. It was a policy which could only be developed in the political arena after consultation with industry. The Tribunal, which is not accountable politically and which cannot proceed by obtaining industry consensus, must give such a policy great weight."


case_title: Becker and Minister for Immigration and Ethnic Affairs, Re (1977) 1 ALD 158

case_text: In an earlier decision, Brennan J, again sitting as the President of the Tribunal and on a review of a Minister's decision to order deportation under s 13(a) of the Migration Act 1958 (Cth) (" Migration Act "), as it then was, drew a distinction between policies made or settled at the political level and policies made or settled at the departmental level: Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158 at 163. Different considerations may apply to the review of each kind of policy and more substantial reasons might need to be shown why policies forged at the political level should be reviewed.


case_title: Dainty and Minister for Immigration and Ethnic Affairs, Re (1987) 6 AAR 259

case_text: The Tribunal member referred to clause 4.5.3 and noted that the primary policy objective underpinning the residency requirement was the development and maintenance of close and continuing ties with Australia. The Tribunal member noted the argument that the first applicant did not receive the same protection from Australian Embassy representatives as his Australian wife. The Tribunal member said that she did not accept that "this argument holds sufficient weight that the usual policy should be ignored". She said that she did not accept that the difficulty faced by the spouse of an Australian citizen in this case was "so significant or exceptional that policy should be ignored". She said: "In the matters of Re Dainty v Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259 and Re Vukaj v Minister for Immigration and Multicultural Affairs [2006] AATA 1075 , citizenship applications were granted even though the guidelines set out in the Instructions were not satisfied. However, those cases are distinguishable from this case. In both those cases, the applicant was living in Australia at the time of the application and had much more substantial contact and association with Australia than Dr Hneidi. In each case, they were married to resident Australian citizens and had significant ongoing connections with Australia." 31 The Tribunal member noted that policy statements were not binding on the Tribunal "but must be brought to account and given appropriate weight". The Tribunal member said that she could not see a sufficient basis to depart from the Instructions. 32 The Tribunal member then turned to consider the application by the second, third and fourth applicants. She noted the relevant provisions of the Instructions and said that, based on the Instructions, the children would not usually be considered for citizenship. The Tribunal member considered whether she needed to address the issue of the best interests of the children by reason of the fact that Australia is a signatory to the United Nations Convention on the Rights of the Child and Article 3 refers to the "best interests of the child". She referred to various authorities and concluded that she must give consideration to the children's best interests in this case as a primary consideration. She considered the submission that the best interests of the children lie in coming to Australia with their family and in being able to travel as a single unit and in the safest way when travelling internationally. The Tribunal member said that she had considered that argument carefully. She said it was really a value judgment to suggest that the children would be better off coming to live in Australia. She noted that the children could come to Australia at any time and reside here as they had visas which entitled them to do so, and the fact that they have not yet done so indicated that their parents were satisfied that their current best interests were served by continuing to reside with them in Beirut. The Tribunal member concluded by saying: "Having considered the best interests of the children and having considered the policy directions and the underlying policy behind the grant of citizenship to children under the age of sixteen years, the Tribunal considers that there is no compelling reason to go behind the policy set out in the Instructions." Questions of law and grounds of appeal 33 The amended notice of appeal identifies two questions of law and three grounds of appeal. The first question of law and the ground of appeal related to it are as follows: Question of law: "Whether the Tribunal, upon a review of the decision by the Minister to not grant a certificate of Australian citizenship under subs. 13(9) of the Act, impermissibly fetters the exercise of its discretion by applying the policy known as the 'Australian citizenship instructions' unless there are cogent reasons not to do so." Ground of appeal: "The Tribunal failed to exercise its own independent judgment in respect of its decision, and give proper, genuine and realistic consideration to the merits of the applicants' cases, in that it: (a) held that it was required to apply the policy known as the 'Australian citizenship instructions' unless there were cogent reasons not to do so; (b) applied the policy in making the decision; and (c) failed to hold that as the policy had not been adopted or approved by the Minister and had not been exposed to parliamentary scrutiny, the existence of the policy was merely a relevant consideration to take into account in the exercise of the discretion under subs. 13(9) of the Act." 34 The second question of law and the grounds of appeal related to it are as follows: Question of law: "Whether, on the proper construction of subs. 13(9) of the Act, the Minister, in determining whether to grant a certificate of Australian citizenship, is bound to take into account whether members of the person's immediate family are Australian citizens." Grounds of appeal: "The Tribunal erred in law in failing to take into account a relevant consideration in the exercise of its power under para 13(9)(c) of the Act in respect of the first applicant, in that it failed to take into account that the first applicant's daughter with his Australian citizen wife was also an Australian citizen. The Tribunal failed to take into account a relevant consideration in the exercise of its power under para 13(9)(a) of the Act in respect of the second to fourth applicants, in that it failed to take into account that their sibling was an Australian citizen." The first question of law and the first ground of appeal 44 In Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259 (" Re Dainty "), Davies J, as President of the Tribunal, reversed the decision of the delegate under s 13(9)(c) of the Act and decided that the Minister's guidelines were not appropriate to the applicant's circumstances.


case_text: The starting point is the decision of the Full Court of this Court in Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179 ; (1979) 24 ALR 577 (" Drake "). In Drake , the relevant power was the power of deportation in s 12 of the Migration Act 1958 (Cth) as it then was. The Minister had issued a policy statement on the question of considerations relating to the deterrence of others. A question which arose was whether the Tribunal had attached such importance to the policy statement as to result in a failure by the Tribunal to exercise its own independent judgment. Bowen CJ and Deane J discussed the general principles relating to the role of policy in administrative decision-making. 37 Their Honours started by stating some general principles as to the role of the Tribunal. Those principles are now well known. They include the fact that the role of the Tribunal is an administrative one and its task is to make the correct or preferable decision on the material before it. There may be cases in which the Tribunal is precluded from having regard to general government policy by the terms of the statutory power and other cases in which, again by the terms of the statutory power, the Tribunal is bound to apply principles laid down in advance. Absent statutory prescriptions of this nature, the Tribunal may take into account a policy and that is particularly so where the statute itself does not specify the criteria which are relevant to the exercise of the statutory power. In the ordinary case, a policy is a relevant factor for the Tribunal to take into account. It is desirable in terms of consistency in decision-making that a policy be taken into account by the Tribunal and that follows from the fact that the original decision-maker has applied or taken into account the particular policy. However, the Tribunal cannot apply a policy in a way which indicates that, in truth, it has abdicated its function to reach the correct or preferable decision on the material before it. The weight to be placed on a policy is a matter for the Tribunal to determine and it will ordinarily do so, balancing the need for consistency in decision-making and the need for justice in the individual case. 38 Bowen CJ and Deane J said the borderline between cases in which a Tribunal has, after an independent assessment, applied a government policy and cases in which a Tribunal has abdicated its function may well be blurred. Their Honours said (at 591): "It is, however, desirable that, in any case where the Tribunal reaches the conclusion that the particular circumstances are such as to make the correct or preferable decision that which results from an application of some government or ministerial policy to the particular facts, the Tribunal makes it clear that it has considered the propriety of the particular policy and expressly indicates the considerations which have led it to that conclusion. This is particularly so in matters such as the review of a deportation order where no two cases will be identical and where personal liberty will commonly be involved."


case_title: Drake and Minister for Immigration and Ethnic Affairs (No 2), Re [1979] 2 ALD 634

case_text: The appeal was allowed in Drake and the matter was remitted to the Tribunal for rehearing. The President of the Tribunal, Brennan J (as his Honour then was), conducted the rehearing: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 2 ALD 634 (" Drake No 2 "). Brennan J referred to the advantages which flowed from the original decision-maker being able to be guided by policy statements, guidelines or standards. The policy must be consistent with the statute and it must not be framed so as to preclude consideration of the merits of the individual case. The Tribunal may apply the policy on a review. Brennan J said (at 643): "If the Tribunal applies ministerial policy, it is because of the assistance which the policy can furnish in arriving at the preferable decision in the circumstances of the case as they appear to the Tribunal. One of the factors to be considered in arriving at the preferable decision in a particular case is its consistency with other decisions in comparable cases, and one of the most useful aids in achieving consistency is a guiding policy." 40 Brennan J went on to explain why it was not convenient for the Tribunal to formulate policy. His Honour said that administrative policies are best formed and amended in a political context. In the course of his discussion, his Honour referred to the chain of responsibility from Minister to government to Parliament and to the fact that the bureaucracy is best placed to advise on broad policy. His Honour reached the following conclusions (at 645): "When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny."


case_text: In Federal Commissioner of Taxation v Swift and Others (1989) 18 ALD 679 , this Court was required to consider a decision of the Tribunal granting the applicant relief under s 5(4) of the Taxation (Unpaid Company Tax) Assessment Act 1982 (Cth). There was a ruling of the Commissioner which specified the circumstances in which relief should be granted. After referring to the particular policy which was in issue in Re Aston , French J (as his Honour then was) said (at 692): "And, as in that case, which involved the exercise of a discretion to limit the terms of fishing licences under a national quota scheme, a policy which is developed in the political arena after consultation with the relevant industry ought generally to be given great weight. Taxation ruling IT 2063 does not appear to be in that category. Nevertheless, the magnitude of the task involved in carrying out original decision-making and supervising and regulating the exercise of delegated authority under the taxation laws, is a powerful indicator that appropriate guidelines are essential for the avoidance of administrative chaos and for the achievement of reasonable consistency. The need to maintain the perception and reality of equal treatment is an important factor in the administration of all laws and not least in those relating to taxation. But such considerations go to the weight to be attributed to policy and that is ultimately a matter for the Tribunal: Nevistic v Minister for Immigration and Ethnic Affairs, supra , at 647 (Deane J); Re Aston, supra , at AAR 78 (Davies J)."


case_text: This is an appeal from a decision of the Administrative Appeals Tribunal: Hneidi v Minister for Immigration and Citizenship (2008) 104 ALD 668. The appeal to this Court is limited to an appeal on a question of law ( Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") s 44(1)). 2 The first applicant holds both Syrian and Lebanese citizenship, and he currently resides in Beirut. He is married to Ms Karina Hneidi, who holds both Australian and Lebanese citizenship, and there are four children of the marriage. One of the applicant's children holds Australian citizenship. 3 On 30 October 2006, the first applicant made an application for Australian citizenship for himself and for the three children who did not hold Australian citizenship. On 1 June 2007, a delegate of the Minister for Immigration and Citizenship refused the application. In his reasons, the delegate did not specifically provide reasons for refusing the applications with respect to the three children. On the application for review to the Tribunal, the Tribunal member said that as the three children had been joined to the first applicant's application then "by implication" the applications by the children had also been refused.


case_outcome: referred to

case_title: Lofthouse and Australian Securities and Investments Commission, Re [2004] AATA 327 ; (2004) 82 ALD 481

case_text: Finally, I mention that I was referred to the Tribunal's decision in Re Lofthouse and Australian Securities and Investments Commission [2004] AATA 327 ; (2004) 82 ALD 481 , a case involving consideration of the weight to be given to a Policy Statement formulated by the Australian Securities and Investments Commission. 47 I turn now to examine the Tribunal's reasons in light of these principles. 48 The Tribunal member did not discuss the source of the Instructions. She did not discuss whether the Instructions had been made by the Minister or by senior officers in the Minister's Department. She appears to have proceeded on the basis that the Instructions were Ministerial Guidelines rather than Departmental Guidelines. She formulated one of the issues before the Tribunal as: "... to what extent can the Tribunal go outside the Ministerial Guidelines (the Guidelines) in exercising its discretion?"


case_outcome: followed

case_text: The reasons of the Tribunal are not to be read with an eye keenly attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259. It was not suggested that the Instructions are unlawful. In any event, I would reject such a contention. Key elements of the Instructions simply reflect important criteria in s 13(1) of the Act which deals with a grant of a certificate of citizenship. The fundamental question is whether the Tribunal member made an independent assessment on the material before her. I think that she did. 58 I reject the first ground of appeal. The second question of law and the second and third grounds of appeal 59 The respondent accepted that when a decision-maker is determining whether to grant a certificate of Australian citizenship under s 13(9) of the Act, he or she is bound to take into account whether members of the person's immediate family are Australian citizens. The applicants submitted that the matter was not taken into account and that that was an error of law. The respondent submitted that this matter was taken into account by the Tribunal both in relation to the first applicant's application and the application of the children.


case_text: In Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639 , the Full Court of this Court considered an appeal from the Tribunal on a question of law. The Tribunal had reviewed a decision of the Minister to deport the applicant under s 12 of the Migration Act as it then was. The Tribunal had taken into account government policy on the deportation of persons involved in growing, importation or distribution of illicit drugs and had decided that the correct and preferable decision in all the circumstances of the case was that the applicant be deported from Australia. The Tribunal said that, absent the policy, its decision may have been different. The Full Court dismissed the appeal and held that the Tribunal was entitled to take the policy into account as a relevant factor and that the weight to be accorded to the policy was a matter for that Tribunal. The Court also said that the Tribunal could not abdicate its function of determining the correct and preferable decision on the material before it by simply applying the policy without conducting an independent assessment. 45 In Federal Commissioner of Taxation v Swift and Others (1989) 18 ALD 679 , this Court was required to consider a decision of the Tribunal granting the applicant relief under s 5(4) of the Taxation (Unpaid Company Tax) Assessment Act 1982 (Cth). There was a ruling of the Commissioner which specified the circumstances in which relief should be granted. After referring to the particular policy which was in issue in Re Aston , French J (as his Honour then was) said (at 692): "And, as in that case, which involved the exercise of a discretion to limit the terms of fishing licences under a national quota scheme, a policy which is developed in the political arena after consultation with the relevant industry ought generally to be given great weight. Taxation ruling IT 2063 does not appear to be in that category. Nevertheless, the magnitude of the task involved in carrying out original decision-making and supervising and regulating the exercise of delegated authority under the taxation laws, is a powerful indicator that appropriate guidelines are essential for the avoidance of administrative chaos and for the achievement of reasonable consistency. The need to maintain the perception and reality of equal treatment is an important factor in the administration of all laws and not least in those relating to taxation. But such considerations go to the weight to be attributed to policy and that is ultimately a matter for the Tribunal: Nevistic v Minister for Immigration and Ethnic Affairs, supra , at 647 (Deane J); Re Aston, supra , at AAR 78 (Davies J)."


case_title: Sadiq and Minister for Immigration and Multicultural and Indigenous Affairs, Re [2006] AATA 75

case_text: Secondly, the applicants submitted that the Tribunal member had not considered the propriety of the Instructions. There are two answers to this submission. First, where a policy is lawful, the Tribunal would not normally consider the propriety of the policy as a policy. It would consider the propriety of applying the policy to the facts of the particular case. I am satisfied that the Tribunal member did that. The second answer is that, by reference to some observations in Re Sadiq and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 75 , the Tribunal member did give consideration to the propriety of the policy as a policy. 56 Thirdly, the applicants submitted that the Tribunal member misdirected herself in law because she referred to two cases, namely: Drake No 2 and Re Dainty , which discussed the relevant principles in the context of ministerial policy, not departmental policy. The answers to this submission are as follows. A fair reading of the Tribunal member's reasons reveals that she did not adopt an incorrect approach to the Instructions as departmental policy. In so far as it might be said that she placed greater weight on the Instructions than was called for, that was a question of weight which was a matter for the Tribunal.


case_text: It may appear from the Tribunal's reasons that a consideration was taken into account even though it is not expressly mentioned ( Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 at 392 per Toohey J). It seems to me that the inference that the matter was taken into account will be more easily drawn if the consideration is one of less significance than other considerations in the case. It seems to me that the fact that Maya is an Australian citizen is of less significance than other considerations in the case. 61 Plainly, the Tribunal was aware and made reference to the fact that Maya was an Australian citizen. I am satisfied that the matter was taken into account because the Tribunal member contrasted the position of Ms Hneidi and Maya with the first applicant and the three children in terms of assistance from the Australian Embassy and ease of international travel. 62 I reject the second and third grounds of appeal. Conclusion


case_text: The notion of "causing" has been said to be one of common sense: Environment Agency (formerly National Rivers Authority) v Empress Car Co. (Abertillery) Ltd [1998] UKHL 5 ; [1999] 2 AC 22 at 29 (per Lord Hoffman). But whatever may be conveyed by the reference to " common sense ", answers to questions of causation will differ according to the purpose for which the question is asked: Travel Compensation Fund v Tambree [2005] HCA 69 ; (2005) 224 CLR 627 at [45] ; Allianz Australia Insurance Limited v GSF Australia Pty Ltd [2005] HCA 26 ; (2005) 221 CLR 568 at [96] - [97] ; Chappel v Hart [1998] HCA 55 ; (1998) 195 CLR 232 at [63] - [64] (per Gummow J) and at [122] (per Hayne J).


case_outcome: distinguished

case_text: Despite the respondent's submissions to the contrary, the decision of Tamberlin J in Repatriation Commission v Towns (2003) 38 AAR 77 does not assist the respondent's case. The decision must be understood having regard to the matters that were in issue in the case. In Towns , there was consensus that there was no relevant SoP and so it was unnecessary to make any analysis of the kind of death met by the veteran: at [28]. It would be wrong, then, to take what was said in that case as supporting or establishing the general proposition that the expression " kind of death " was not concerned with medical causation where the medical cause or causes can be identified. Likewise, the decision of Branson J in Brown v Repatriation Commission [2006] FCA 914 makes plain that the decision in that case was not the occasion to provide general and definitive guidance about the meaning of the expression.


case_text: As the language of s 120(3) makes clear, and as the High Court emphasised in Repatriation Commission v Owens (1996) 70 ALJR 904 at 904, the question whether a reasonable hypothesis is raised is to be determined on a consideration of the whole of the material before the decision-maker: see also Repatriation Commission v Bey (1997) 79 FCR 364 at 367. A reasonable hypothesis within s 120(3) of the VE Act is a hypothesis that is pointed to by the material before the decision-maker, and not merely left open (or not excluded) by that material. A hypothesis that is not pointed to, but is a matter of assertion or is merely left open by the material, is not a reasonable hypothesis: see East v Repatriation Commission (1987) 16 FCR 517 at 532-533. See also Repatriation Commission v Bey (1997) 79 FCR 364 at 366-367, 372-373; Bull v Repatriation Commission (2001) 188 ALR 756 at [18] and [41].


case_text: The threshold question posed by s 120(3) is whether the whole of the material before the decision-maker raises a reasonable hypothesis connecting the veteran's death with the circumstances of his service. If the material does raise such a reasonable hypothesis, the decision-maker proceeds to the question posed by s 120(1) namely, is the decision-maker satisfied beyond reasonable doubt that the facts required to connect the veteran's death with his service were disproved or were displaced by other facts: Byrnes v Repatriation Commission [1993] HCA 51 ; (1993) 177 CLR 564 at 571.


case_text: The respondent contended that the Tribunal's finding of the " kind of death " as death by road accident was a finding of fact which was 'unimpeachable'. That submission should be rejected. For the reasons that follow, it is apparent that in making that finding, the Tribunal erred in the proper construction of ss 120 , 120A (3) and 120A (4) of the VE Act and, in particular, the meaning of the phrase " kind of death " in s 120A(4) of the VE Act . That is an error of law: Collector of Customs v Agfa-Gevaert [1996] HCA 36 ; (1996) 186 CLR 389 at 394-5. 31 The phrase " kind of death met by the person " in s 120A(4) asks a causative question. It is not a question about whether the death was slow, fast or the like. It asks " questions of medical causation" about the cause of death and does so in a particular context the VE Act and, in particular, Part VIII of the VE Act : see also Explanatory Memorandum to the Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 (Cth) pp i-ii.


case_text: Section 120A(3) of the VE Act relevantly provides that a hypothesis connecting the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force a SoP or a determination by the Commission that upholds the hypothesis. The second basis (a determination by the Commission) is not relevant to the circumstances of this case. That is, the hypothesis raised (that is, pointed to) by the material will only be reasonable if the hypothesis is consistent with, or fits the template of, a SoP: see Repatriation Commission v Deledio (1998) 83 FCR 82 at 96, endorsing the observations of Heerey J at first instance: Deledio v Repatriation Commission (1997) 47 ALD 261 at 275.


case_text: However, the Deledio methodology is subject to at least three important qualifications. First, the methodology is not to be applied mechanistically or to operate in substitution for the requirements of the VE Act : Hill v Repatriation Commission (2005) 218 ALR 251 at [35] and [85]; Hardman v Repatriation Commission [2005] FCAFC 83 at [32] and Dunlop v Repatriation Commission [2003] FCAFC 201 at [33] .


case_title: East v Repatriation Commission (1987) 16 FCR 517


case_title: Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1998] UKHL 5 ; [1999] 2 AC 22


case_title: Hardman v Repatriation Commission [2005] FCAFC 83


case_title: Hill v Repatriation Commission (2005) 218 ALR 251


case_text: The Commission contends that the Tribunal's reasons for decision contain two errors of law and therefore, on appeal, raise two questions of law: (1) the proper construction of ss 120 , 120A (3) and 120A (4) of the VE Act and, in particular, the meaning of the phrase " kind of death " in s 120A(4) of the VE Act; (2) even if the Tribunal had properly construed ss 120 , 120A (3) and 120A (4) of the VE Act and, in particular, the meaning of the phrase " kind of death " in s 120A(4) of the VE Act in finding that the kind of death met by the veteran was " death by road accident ", whether the Tribunal erred in failing to determine the application of pension by applying the reasoning of Goldberg J in Repatriation Commission v McKenna (1998) 28 AAR 7 at 15-16 which was endorsed by the Full Court in McKenna v Repatriation Commission [1999] FCA 323 ; (1999) 86 FCR 144 at [20] . (I will describe this as the " McKenna principle"). 44 Even if I am wrong in my view of the proper construction of ss 120 , 120A (3) and 120A (4) of the VE Act and, in particular, the meaning of the phrase " kind of death " in s 120A(4) of the VE Act , it is common ground that the Tribunal proceeded to consider the application for pension contrary to the decision of the Full Court in McKenna v Repatriation Commission [1999] FCA 323 ; (1999) 86 FCR 144 at [20] .


case_title: Repatriation Commission v Bey (1997) 79 FCR 364


case_text: On 30 March 2001, Mrs Codd made a third claim for a war widow's pension under the Repatriation Act. A delegate of the Commission decided that the veteran's death was not war-caused. On 10 October 2002, the VRB affirmed the Commission's decision that the death of the veteran was not war-caused. On 19 December 2002, pursuant to s 175 of the VE Act , Mrs Codd applied to the Tribunal for review of the VRB's decision of 10 October 2002. On 20 August 2004, the Tribunal decided that the death of the veteran was war-caused. On 30 June 2005, the Federal Court allowed an appeal by the Commission from the decision of the Tribunal, on the basis that material before the Tribunal could not support the Tribunal's diagnosis of generalised anxiety disorder ("GAD") and that if the veteran had been suffering from GAD, the Tribunal had failed to consider whether a hypothesis of connection between that disease and the veteran's operational service was upheld by the relevant Statement of Principles ("SoP"): Repatriation Commission v Codd [2005] FCA 888 at [46] - [47] and [49]. The Court remitted the matter to the Tribunal to be heard and determined according to law. 8 On 24 October 2006, the Tribunal decided again, on different grounds, that the death of the veteran was war-caused. On 20 November 2006, the Commission appealed from the Tribunal's decision. It is the Tribunal's decision of 24 October 2006 which is the subject of this appeal. 9 Section 13(1) of the VE Act renders the Commonwealth liable to pay a pension to the dependents of a veteran whose death was war-caused. Section 8(1) of the VE Act sets out the circumstances in which a veteran's death is taken to be war-caused. They include if: "(b) the death of the veteran arose out of, or was attributable to , any eligible war service rendered by the veteran; ... (d) in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service; ..." (Emphasis added.)


case_text: Section 120A(3) of the VE Act relevantly provides that a hypothesis connecting the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force a SoP or a determination by the Commission that upholds the hypothesis. The second basis (a determination by the Commission) is not relevant to the circumstances of this case. That is, the hypothesis raised (that is, pointed to) by the material will only be reasonable if the hypothesis is consistent with, or fits the template of, a SoP: see Repatriation Commission v Deledio (1998) 83 FCR 82 at 96, endorsing the observations of Heerey J at first instance: Deledio v Repatriation Commission (1997) 47 ALD 261 at 275. 19 The method by which ss 120(1) , 120 (3) and 120A (3) are applied was explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98. The Full Court set out the course which the Tribunal is to take in a case such as the present in the following terms: "1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail. 2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail. 3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be 'reasonable' and the claim will fail. 4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved." 45 In McKenna , the Commission had determined that ischaemic heart disease and atherosclerotic peripheral vascular disease suffered by Mr McKenna were each a war-caused disease within the VE Act . The effect of the decision of Goldberg J at first instance was to reach a contrary conclusion. Goldberg J said (28 AAR 7 at 15): "For the purposes of s 120A(3) of the [VE] Act the hypothesis which has to be upheld by a [SoP] is the hypothesis which connects the disease suffered by a veteran with the circumstances of his service. So stated, the hypothesis has to point to a connection which starts with the disease in respect of which the application is made and ends with the service. That connection will comprise a number of links or factors each of which must be upheld by a [SoP] and, if need be, by more than one [SofP]. In the instant case the relevant links are: [diseases listed] When the hypothesis is identified this way it is then necessary, consistently with the course identified by the Full Court in Repatriation Commission v Deledio , to ask and answer the question in accordance with s 120A(3)(a) of the Act is there in force a SoP that upholds the hypothesis, that is to say the hypothesis connecting each of the diseases contracted by the respondent with the circumstances of his operational service? It is therefore necessary to identify whether there is in force a [SoP] which upholds the whole, and not just part, of this hypothesis..". 46 The Full Court endorsed the approach of Goldberg J and said at [20]: "Since the Authority had determined [SoP] in respect of the kinds of diseases suffered by Mr McKenna (s 120A(4)(b)), the next step which the Tribunal was required to take was to form an opinion whether the hypotheses pointed to by the material before the Tribunal were reasonable. It was only entitled to form the opinion that they were reasonable if they were upheld by, in the sense of consistent with, the relevant [SoP]. In our view, for either of the hypotheses to be upheld by a [SoP], as required by s 120A(3) of the Act, each of its sub-hypotheses would have to be so upheld . A complex hypothesis (that is, one comprising more than one element or part) can be no stronger than each of its elements or parts." (Emphasis added.) 47 In the present case, the Tribunal was bound to apply the McKenna principle. It explicitly rejected that approach. That was an error of law. On any view, one of the sub-hypotheses was that the effects of the veteran's "service related alcohol habit ... [had] impaired his concentration and contributed to the fatal collision" . As the Tribunal failed to ask the question about the alcohol related sub-hypothesis, it failed to consider whether there was a SoP which upheld that sub-hypothesis. 48 Mr Green SC, counsel for the respondent, contended that even if the Tribunal had applied the McKenna principle to the SoP, it would have reached the same conclusion on the basis that there was no SoP which covered the hypothesis (and one assumes the sub-hypothesis) that the veteran was a heavy drinker. In particular, Mr Green relied upon the following findings of the Tribunal: "Contrary to submissions of the Respondent, there is evidence of the deceased being drunk on the evening prior to his death and hung over on the following morning... Whilst I am satisfied that on the evening prior to the fatal collision the deceased having regard to the evidence of Mrs Codd had been drinking heavily I am satisfied that he metabolised the alcohol during the period between arriving at home at approximately 10.30pm and the collision at approximately 7.30am. In those circumstances any alcohol residue at the time of the collision would have been so minuscule to safely permit a finding that at the time of the collision the deceased was not under the influence of alcohol."


case_text: Thirdly, as Selway J said in Repatriation Commission v Hancock (2003) 37 AAR 383 at [11], there are at least two additional steps before step one in the Deledio analysis. The steps were described by Selway J in Hancock as being: "First, the AAT was required to determine, on balance of probabilities, whether the pre-conditions other than causation, had been made out... Next, the AAT was required to determine on balance of probabilities what "kind of death" [the veteran] had suffered. This involved the identification, on balance of probabilities, of any and all [SoP] and/or determinations under s 180A(2) of the Act and any other "kinds of death" which were applicable to that death. If one or more SoP were applicable, then the methodology in Deledio is applicable in relation to those "kinds of death"..." 23 In the present matter then, it was necessary: (1) to establish the pre-conditions for the claim other than causation on the balance of probabilities. (For example, in the present case, it was necessary for Mrs Codd to show that her husband was a veteran; that Mr Codd had died and that Mrs Codd was a widow. None of these pre-conditions was in dispute here); and (2) in order to ascertain whether a SoP applies, to determine on the balance of probabilities the " kind of death " suffered by the veteran: s 120A(2) and (4) of the VE Act . 24 It is the second of these additional steps which is the subject of this appeal. It will be necessary to return to consider the phrase " kind of death met by the [veteran] " in s 120A(4) of the VE Act . 25 The Tribunal decided that the death of the veteran was war-caused. The hypothesis of connection between the veteran's death and his operational service was articulated by Dr Epstein in the following terms: "[The veteran's] drinking habits were probably war caused and there is a reasonable hypothesis pointing to the effects of alcohol impairing his concentration and contributing to the collision." 26 The hypothesis was summarised " as the late veteran developing a service related alcohol habit the effects of which impaired his concentration and contributed to the fatal collision." It was that hypothesis the Tribunal accepted as a reasonable hypothesis connecting the veteran's death with the circumstances of his war-service. 27 The Tribunal declared that the " kind of death " met by the veteran was death by road accident. The Commission contends that on a proper construction of ss 120 and 120A of the VE Act , the Tribunal's finding that the kind of death met by the veteran was "death by road accident" was not open to the Tribunal. 28 As a result of the Tribunal's declaration of the " kind of death " as death by road accident, the Tribunal: (1) found that there was no SoP which applied to that kind of death and proceeded on the basis that the application was to be determined by the law prevailing before the introduction of the regime of SoPs; and (2) not being satisfied beyond reasonable doubt that there were sufficient grounds to determine that the death was not war-caused, set aside the decision under review and decided that the death was war-caused.


case_text: The Commission contends that the Tribunal's reasons for decision contain two errors of law and therefore, on appeal, raise two questions of law: (1) the proper construction of ss 120 , 120A (3) and 120A (4) of the VE Act and, in particular, the meaning of the phrase " kind of death " in s 120A(4) of the VE Act; (2) even if the Tribunal had properly construed ss 120 , 120A (3) and 120A (4) of the VE Act and, in particular, the meaning of the phrase " kind of death " in s 120A(4) of the VE Act in finding that the kind of death met by the veteran was " death by road accident ", whether the Tribunal erred in failing to determine the application of pension by applying the reasoning of Goldberg J in Repatriation Commission v McKenna (1998) 28 AAR 7 at 15-16 which was endorsed by the Full Court in McKenna v Repatriation Commission [1999] FCA 323 ; (1999) 86 FCR 144 at [20] . (I will describe this as the " McKenna principle").


case_title: Repatriation Commission v Owens (1996) 70 ALJR 904


case_title: Repatriation Commission v Towns (2003) 38 AAR 77


case_title: Travel Compensation Fund v Tambree [2005] HCA 69 ; (2005) 224 CLR 627


case_text: Section 120A was introduced by the Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth). The intent behind the introduction of s 120A (and s 196B) of the VE Act was explained in the Explanatory Memorandum to the Bill, an extract of which was set out by the Full Court in Woodward v Repatriation Commission [2003] FCAFC 160 ; (2003) 131 FCR 473 at 489, [90] . 15 Sections 120A(3) and (4) of the VE Act provide: "(3) For the purposes of subsection 120(3), a hypothesis connecting ... the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force: (a) a Statement of Principles determined under subsection 196B(2) or (11); or (b) a determination of the Commission under subsection 180A(2); that upholds the hypothesis." (4) Subsection (3) does not apply in relation to a claim in respect of ... the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of: (a) the kind of injury suffered by the person; or (b) the kind of disease contracted by the person; or (c) the kind of death met by the person; as the case may be." 21 Secondly, as was pointed out by the Full Court in Woodward v Repatriation Commission [2003] FCAFC 160 ; (2003) 131 FCR 473 at 483 at [55], the observation at step 2 of the Deledio analysis that if no SoP is in force the application must fail, must be qualified by reference to s 120A(4) of the VE Act which provides that s 120A(3) does not apply in certain circumstances. 49 Mr Green's submission that there is no SoP relevant to the veteran's alcohol habit because there is a difference between 'a heavy drinker' and a person who suffered from 'alcohol abuse' or 'alcohol dependence' as defined in the SoP should be rejected on at least two bases. First, it is well established that a SoP covers the field: see Woodward v Repatriation Commission [2003] FCAFC 160 ; (2003) 131 FCR 473 at [100] and the Explanatory Memorandum to the Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 (Cth) which provided that the RMA will prepare SoPs based on " sound medical-scientific evidence " that will exclusively state what factors related to service must exist to establish a causal connection between particular diseases, injuries or death and service. 50 Secondly, the threshold question posed by s 120(3) is whether the whole of the material before the decision-maker raises a reasonable hypothesis connecting the veteran's death with the circumstances of his service. This branch of the respondent's argument seeks to rely on only part of the material before the Tribunal. 51 The evidence before the Tribunal was that the diagnosis of Dr Epstein was that the veteran was a 'chronic alcoholic'. Dr Epstein's criteria for an alcoholic was " a person whose drinking interfered with their health, with the family life and their working capacity" . Dr Epstein's evidence was that there was " certainly no doubt that [the alcohol habit] interfered with his family life" . That view was consistent with the respondent's own evidence to the Tribunal that there was disharmony in the marriage because of the veteran's alcohol consumption. Having regard to diagnostic criteria A(1) and (4) for alcohol abuse in the SoP for alcohol abuse or alcohol dependence, the whole of the material before the decision-maker would appear to suggest that at least some of the diagnostic criteria were satisfied. That however is a question of fact for the Tribunal.


case_text: In any event, it may be that the statement of principle to which I have referred in SCAR is not correct. A Full Court has pointed out that the statement may not be correct because it is based upon a misconstruction of a decision of Hely J in Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140 ; (2003) 128 FCR 359; see NALQ v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 121 at [34] .


case_text: Branson J preferred the approach adopted by Lindgren and Hely JJ in NAQF and Wu respectively, to that of French and Gray JJ in WAJR and Moradian; see SZBDF at [17]. Bennett J found it unnecessary to decide the question in Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908 at [46] [49].


case_text: An alternative approach to the determination of the content of the Tribunal's obligation to give notice of the rescheduled hearing was suggested by counsel for the Minister. He submitted that its content would be governed by the statutory obligation of the Tribunal under s 425 of the Act to provide a "real and meaningful" invitation to attend the hearing; see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553 (" SCAR") at [37]. 43 In any event, it may be that the statement of principle to which I have referred in SCAR is not correct. A Full Court has pointed out that the statement may not be correct because it is based upon a misconstruction of a decision of Hely J in Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140 ; (2003) 128 FCR 359; see NALQ v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 121 at [34] .


case_text: As Branson J pointed out in SZBDF at [12], there is a division of opinion within the Court as to the ambit of s 422B(1). One view is that the phrase "in relation to the matters it deals with" imports a limitation upon the extent to which Div 4 is to be read as a code and doe not, in effect, completely exclude common law rules of natural justice; see WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 ( WAJR") at [47] [59] and Moradian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1590 ; (2004) 142 FCR 170 (" Moradian") at [35] [37]. 31 Branson J preferred the approach adopted by Lindgren and Hely JJ in NAQF and Wu respectively, to that of French and Gray JJ in WAJR and Moradian; see SZBDF at [17]. Bennett J found it unnecessary to decide the question in Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908 at [46] [49].


case_title: NALQ v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 121


case_text: The other view is that s422B applies to a larger subject matter than the exact text of the requirements stated in Div 4; see NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 356 (" NAQF") at [50] [87] and Wu v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1249 ; (2003) 133 FCR 221 (" Wu") at [21] [23]; see also VXDC v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 1388 ; (2005) 146 FCR 562 ("VXDC") at [30] [31] per Heerey J. 31 Branson J preferred the approach adopted by Lindgren and Hely JJ in NAQF and Wu respectively, to that of French and Gray JJ in WAJR and Moradian; see SZBDF at [17]. Bennett J found it unnecessary to decide the question in Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908 at [46] [49].


case_text: Support for the view that a distinction is to be drawn between the situation where the Tribunal itself reschedules the hearing date and when it does so at the applicant's request is found in the decisions of Sackville J in NBBU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 767 and Barnes FM in SZBAZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 790 (" SZBAZ") . Conti J referred to both of these authorities.


case_text: In VXDC, Heerey J was of the view that an examination of the explanatory statement of the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) and the second reading speech made it plain that the intention of the 2002 amendment was to reverse the effect of the decision of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah [2001] HCA 22 ; (2001) 206 CLR 57; it was also to provide a comprehensive code for procedural fairness which excluded the common law natural justice hearing rule.


case_text: As the appellant was unrepresented, the Federal Magistrate also considered whether any issue arose in relation to s 424A of the Act , in light of the High Court's decision in SAAP v Minister for Immigration, Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162. He concluded that there had been no breach of s 424A. 19 The relevant sections of the Act and the Regulations are as follows:- " Section 425 Tribunal must invite applicant to appear (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. (2) Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or (c) subsection 424C(1) or (2) applies to the applicant. (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal. Section 425A Notice of invitation to appear (1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear. (2) The notice must be given to the applicant: (a) except where paragraph (b) applies--by one of the methods specified in section 441A ; or (b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person. (3) The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period. (4) The notice must contain a statement of the effect of section 426A." 20 Regulation 4.35D, entitled 'Prescribed periods - notice to appear before Tribunal ([Migration] Act , s 425A) ', provides as follows: "For subsection 425A (3) of the Act , the prescribed period: (a) if the applicant is a detainee -- starts when the applicant receives notice of the invitation to appear before the Tribunal and ends at the end of 7 days after the day on which the notice is received; or (b) in any other case -- starts when the applicant receives notice of the invitation to appear before the Tribunal and ends at the end of 14 days after the day on which the notice is received. Note 1 If the Tribunal gives a person a document by a method specified in section 441A of the Act , the person is taken to have received the document at the time specified in section 441C of the Act in respect of the method. Note 2 A document given to a person in immigration detention is given in the manner specified in regulation 5.02."


case_text: Section 422B applies to applications to the Tribunal for review of a decision filed after 4 July 2002; see SZATG v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 596 at [31]; see also SZBDF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1493 (" SZBDF") at [11]. It therefore applies to the present case.


case_text: Support for the view that a distinction is to be drawn between the situation where the Tribunal itself reschedules the hearing date and when it does so at the applicant's request is found in the decisions of Sackville J in NBBU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 767 and Barnes FM in SZBAZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 790 (" SZBAZ") . Conti J referred to both of these authorities. 24 The rationale for the distinction is that where the Tribunal itself reschedules the hearing it may be thought to have issued a fresh invitation. However, where the applicant requests a postponement, s 425A does not apply because the section is limited to the situation where an applicant "is invited to appear before the Tribunal"; see SZBAZ at [28] [29], quoted by Conti J at [21]. 25 The conclusion reached by Conti J that s 425A(3) does not apply where an applicant requests a rescheduling is supported by the language of s 425A. It is also consistent with the detailed statutory provisions of Division 4 of Part 7 of the Act , as was observed by Barnes FM in SZBAZ . 26 It is to be noted that s 426A appears to draw a distinction between an invitation to appear before the Tribunal as required by s 425(1) and the power of the Tribunal to reschedule the hearing; see s 426A(2). This might be thought to provide further support for the view that s 425A is limited to the initial invitation but it does not explain the distinction between a rescheduling by the Tribunal itself rather than at the request of an applicant. 27 The difficulty which seems to me to arise on the approach adopted by Conti J is whether the common law rules of nature justice govern the requirement of notice of a hearing which is rescheduled at the applicant's request. As His Honour correctly observed, this must be subject to the provisions of s 422B which provides that Division 4 of Part 7 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.


case_title: SZBDF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1493

case_text: Section 422B applies to applications to the Tribunal for review of a decision filed after 4 July 2002; see SZATG v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 596 at [31]; see also SZBDF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1493 (" SZBDF") at [11]. It therefore applies to the present case. 29 As Branson J pointed out in SZBDF at [12], there is a division of opinion within the Court as to the ambit of s 422B(1). One view is that the phrase "in relation to the matters it deals with" imports a limitation upon the extent to which Div 4 is to be read as a code and doe not, in effect, completely exclude common law rules of natural justice; see WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 ( WAJR") at [47] [59] and Moradian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1590 ; (2004) 142 FCR 170 (" Moradian") at [35] [37]. 31 Branson J preferred the approach adopted by Lindgren and Hely JJ in NAQF and Wu respectively, to that of French and Gray JJ in WAJR and Moradian; see SZBDF at [17]. Bennett J found it unnecessary to decide the question in Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908 at [46] [49].


case_text: Nicholls FM referred to the decision of Conti J in SZDQO v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 1026 ; (2005) 144 FCR 251 (" SZDQO") which addressed this issue. The learned Federal Magistrate followed SZDQO as authority for the proposition that where the Tribunal reschedules a hearing at the request of an appellant, s 425A(3) does not apply in relation to the notice of the rescheduled hearing. 14 The Federal Magistrate concluded that the appellant was given a reasonable period within the requirements of the law, notwithstanding that it was not the full 14 days required under s 425A. He went on to observe that the Tribunal did not make its decision for some eight days after the rescheduled hearing date, and did not hand down its decision for a month after the rescheduled hearing date. The Magistrate noted that the appellant did nothing to notify the Tribunal of his reason for a failure to attend the rescheduled hearing date, nor to seek any further hearing date. In the circumstances, the Magistrate did not accept the applicant's complaint and found that the ground was not made out. 15 FM Nicholls observed at [15] that even if he had found jurisdictional error, he would have declined to exercise the discretion to grant relief, for two reasons. First, the appellant did not contend that he did not receive the letter notifying him of the rescheduled hearing date and he did not approach the Tribunal to explain his failure to attend. Secondly, there was no evidence put before His Honour to indicate that the appellant wanted to attend the rescheduled hearing, or that the appellant had further evidentiary material he would have wanted to put before the Tribunal. 16 There were six further grounds of review. They were bias, failure to properly conduct a hearing, failure to take into account relevant considerations, failure to apply the correct test, illogicality, and failure to give reasons. 17 The learned Federal Magistrate considered each of these grounds and dismissed them. 22 In SZDQO, Conti J held at [29] that where the Tribunal reschedules a hearing at the request of an applicant, the 14 day notice requirement stipulated in s 425A(3) and Reg 4.35D does not apply to the notice of the rescheduled hearing. His Honour was of the view that, subject to the operation of s 422B of the Act , the requirement of notice of the rescheduled date would be governed by the general law of natural justice. 42 However, there are two difficulties with this approach. First, on the construction of s 425A adopted by Conti J in SZDQO , s 425 would bear the same limitation as s 425A. It would have to be confined to an invitation to attend a hearing and would not extend to a hearing rescheduled at the request of an applicant. 44 In summary, I respectfully agree with the approach to construction of s 425A adopted by Conti J in SZDQO which, for the reasons given above, disposes of the only substantial point in the appeal. At very least, His Honour's decision is not plainly wrong and I would follow it, especially as His Honour was exercising the appellate jurisdiction of the Court. 45 The other grounds of appeal largely refer to the grounds of review in which the appellant failed before the Federal Magistrate. There is no substance in them and they must be dismissed, essentially for the reasons given by the learned Magistrate. There was no apparent error in His Honour's approach. 46 One of the grounds of appeal alleges failure to consider the availability of effective state protection. This ground was not advanced below. I will not give leave to raise it on appeal. 47 Although not raised in the Notice of Appeal, the appellant was not represented and I will consider the question of whether there was jurisdictional error by reason of a contravention of s 424A.


case_title: WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624


case_title: Wu v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1249 ; (2003) 133 FCR 221


case_text: The other view is that s422B applies to a larger subject matter than the exact text of the requirements stated in Div 4; see NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 356 (" NAQF") at [50] [87] and Wu v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1249 ; (2003) 133 FCR 221 (" Wu") at [21] [23]; see also VXDC v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 1388 ; (2005) 146 FCR 562 ("VXDC") at [30] [31] per Heerey J. 32 In VXDC, Heerey J was of the view that an examination of the explanatory statement of the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) and the second reading speech made it plain that the intention of the 2002 amendment was to reverse the effect of the decision of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah [2001] HCA 22 ; (2001) 206 CLR 57; it was also to provide a comprehensive code for procedural fairness which excluded the common law natural justice hearing rule.


case_text: On 28 April 2006 her Honour Judge Simpson of the District Court of South Australia directed the Registrar of that Court to issue a summons against the company JM Properties Pty Ltd (ACN 062 504 590), and Jack Balalis and Marina Balalis in their capacity as its directors and in their personal capacity, to answer a charge of contempt of court in that they failed to comply with the orders of the District Court made on 15 August 2005 and amended on 25 November 2005: see JM Properties v Strata Corporation No 13975 Inc (No 3) [2006] SADC 46. 2 The reason for the present application is that on 16 November 2006 JM Properties was ordered to be wound up in insolvency under the provisions of the Corporations Act 2001 (Cth) ("the Act ") and Nicholas David Cooper was appointed liquidator of the company. Section 471B of the Act provides that while a company is being wound up in insolvency a person cannot begin or proceed with a proceeding in a Court against the company except with the leave of the Court and in accordance with such terms, if any, as the Court imposes. The Registrar has applied under that provision for such leave. 3 The contempt proceedings against JM Properties are proceedings to which s 471B applies. That proceedings, as also parallel proceedings against Mr and Mrs Balalis, were founded on alleged breaches of Mareva orders made against them by Judge Simpson in relation to dealings with a number of the assets of JM Properties and of another company. I need not enlarge upon the orders and their breach as it is clear, as her Honour found (at [78] of her reasons for judgment), that the transactions entered into by Mr and Mrs Balalis in encumbering and otherwise dealing with properties of JM Properties constituted a wilful and therefore contumacious breach of the orders. Mr and Mrs Balalis were directors of the company at the time. 4 The immediate reason for the leave application is occasioned by provisions of the District Court Rules 1987 (SA). Rule 84.21 provides that: "A judgment or order against a body corporate which has been wilfully disobeyed may, by leave of the Court, be enforced by sequestration against the property of the body corporate or by attachment against the directors or other officers thereof or by sequestration of their property."


case_text: The view taken by the Registrar's legal advisers in reliance upon a commentary in Lunn's Civil Procedure on r 84.21 is that no order could be made against Mr and Mrs Balalis as directors of JM Properties unless the applicant could also proceed against JM Properties. Lunn's commentary relies upon the decision of Luxmoore J in Iberian Trust Ltd v Founders Trust and Investment Co Ltd [1932] 2 KB 87 where it was said of a rule in relevantly identical terms, that as the remedy given against the directors was an alternative one, the rule was not applicable unless the party seeking to enforce the order was in a position to pursue the original remedy against the company: at 98. 6 While there may be a question whether the legislative bar to proceedings against a company in insolvency ought be taken to have the consequence suggested by Luxmoore J when a party seeks to rely upon r 84.21, it is unnecessary for me to consider that matter as the Registrar is seeking (even if only as an abundance of caution) to proceed against the company as well as the directors. 7 The Registrar's lawyers wrote to the liquidator, Mr Cooper, on 15 January advising him that they had received instructions to make this leave application. They indicated in that letter that, while the Registrar wished to continue the contempt proceedings against JM Properties, "the principal reason for this is to pursue the Directors, Mr and Mrs Balalis, for attachment pursuant to r 84.21 of the District Court Rules 1987 in relation to the alleged breaches of the Mareva Injunction Order by JM Properties". The letter to Mr Cooper went on to note that "subject to our receiving final instructions, we are likely to give an undertaking to the Federal Court that we will not pursue any financial penalty against JM Properties in relation to the alleged contempt of court". 8 On 19 January 2007 Mr Cooper indicated to the Registrar's lawyers that he had no objection to the application being made and he confirmed he would not be making any submissions in relation to the matter.


case_outcome: related

case_text: On 20 March 2008 I delivered reasons for judgment in this matter ( Tosich v Tasman Investment Management Limited [2008] FCA 377) and stood the matter over in order to consider the orders to be made and to deal with costs. Terms used in these reasons (if otherwise undefined or unexplained) are to be understood by reference to that earlier judgment. A statement of issues agreed and disputed has been provided by parties. The disputed issues requiring some determination are issues 9 15. 2 As to issue 9, whether Tosich is entitled to costs against Tasman Investment and Warne, I can see no proper basis by which the successful plaintiff should be deprived of his costs. Those costs would not include the period when he was not a plaintiff. The fact that Tosich may have been effectively funded by All Saints and the proceeding organised in a way that would enable the cross-claim to be pursued is not to the point. Even if so, that would only put him in the same position as any other plaintiff in such circumstances, including a plaintiff whose case is conducted and funded by an insurer. There is no substance to the argument that the matter should have been settled by payment. Even if that were so, that would not be to the disadvantage of Tosich. As I mention later, in the event, the necessity for litigation was, in one sense, caused by Aon. I cannot see that Aon has any legitimate interest in any orders between All Saints and the defendants at this point. 3 Issue 10, allowance for contingences. It seems to me that paragraph 10(a) is correct. It can be calculated in accordance with paragraph 17of Aon's submissions.