case_text: Recently, in Comcare v Canute [2005] FCAFC 262 ; (2005) 148 FCR 232, the majority of the Full Court (French and Stone JJ) considered both the utility of Treloar's case in construing the SRC Act 's s 4 definition of "disease" and the legislative history of that definition. In dicta, their Honours expressed their own view of what that definition required. Though of some length, their observations need to be set out in full as they are central to this application. 12 French and Stone JJ observed: 63. ... "[The SRC Act ] definition differs from that considered by the Full Court in Treloar . In Treloar , the Full Court was concerned with the antecedent legislation, the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act), which merely required the employment be 'a contributing factor' to the disease without any requirement that the contribution be 'material'. The Full Court, at 323, said that under the test laid down in the 1971 Act: once it is established that an employee in the doing of his work was exposed to 'a state of affairs to which he would otherwise not have been exposed' or to 'some characteristic of or condition in which the work was to be performed' and that such exposure was in truth a 'contributing' factor to the condition in respect of which he seeks compensation then it matters not whether the contribution was of any particular size or degree ... All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or acceleration. They must, in truth, be part of the cause. If they are not, then, they do not 'contribute'. 64. The Full Court, however, went on to comment on the use of the word, 'material' in cases concerned with the exposition of the concept of 'contributing factor' in the 1971 Act. It did so because the trial judge in Treloar had made the following comment: The test propounded by the 1971 Act, like the test propounded by the [SRC Act] requires that there be a contribution of a causal nature and therefore that the contribution be causally significant or, to use another term, material. Australian Telecommunications Commission v Treloar (1989) 11 AAR 69 at 71. Responding to this comment, the Full Court said (at 323): The use of the word 'material' in conjunction with the words 'contributing factor' in the [1971 Act], where it has occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature. It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small. 65. In Suters v Australian Postal Corp (1992) 28 ALD 320, Ryan J, while recognising that Treloar was concerned with legislation in which the word, 'material' did not appear, commented that 'the case nonetheless contains a valuable exposition of the meaning of that word to which courts and tribunals are entitled to have regard when considering legislation containing it'. 66. Insofar as his Honour was of the view that Full Court's comments in Treloar may be helpful in ascertaining the meaning of the term generally, we agree. This does not mean, however, that the comments of the Full Court apply to the use of the term in the definition of disease in s 4 of the SRC Act . Such an approach would fail to have sufficient regard to the legislative history that led to the enactment of the present legislation. The SRC Act , known as the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) when first enacted, repealed the 1971 Act and introduced a new scheme of compensation and rehabilitation. One of the changes from the 1971 Act was the introduction of a requirement that the employee show that their employment contributed 'in a material degree' to the contraction of the disease. In the Second Reading Speech to the Commonwealth Employees' Rehabilitation and Compensation Bill 1988 (Cth), which (with immaterial amendments) became the SRC Act , the Minister for Social Security stated: Under the existing Act an employee was required to establish only that his or her employment was a contributing factor in the contraction of a disease. This test does not adequately reflect the rights and obligations of the Commonwealth and its employees in relation to work-related disease and frequently results in the Commonwealth being liable to pay compensation for diseases which have little, if any, connection with employment. This Bill seeks to remedy that situation by requiring an employee to show that his or her employment contributed in a material degree to the contraction of the disease. The Government believes that this is a test which is firm but fair and which properly reflects the balance between the interests of the Commonwealth as employer and its employees. An employee will not be required to show that his or her employment caused the disease, or even that it was the most important factor in the contraction of the disease. It is intended that the test will require an employee to demonstrate that his or her employment was more than a mere contributing factor in the contraction of the disease. Accordingly, it will be necessary for an employee to show that there is a close connection between the disease and the employment in which he or she was engaged . In determining whether employment contributed in a material degree to the contraction of a disease in a particular case, regard would be had to whether the employment in which the employee was engaged carried an inherent risk of the employee contracting the disease in question and whether some characteristic or feature of the employment tended to cause, aggravate or accelerate the disease. A disease which has been contributed to in a material degree by employment will be deemed to be an injury. Compensation will be payable if that injury results in the death, incapacity or impairment of the employee. (Emphasis added.) Second Reading Speech, Australia, House of Representatives, Debates, 27 April 1988, p 2191. 67. On this basis, the observations of the Full Court in Treloar at 323 that the relevant causal connection must be established on the balance of probabilities and not left in the area of possibility of conjecture are not controversial. Equally, it is plain that the present legislation was not intended to require that an employee demonstrate that their employment caused the disease or that it was the most important factor. It would also appear that the imposition of a 'but for' test remains inappropriate. Having said this, the changes brought about by the enactment of the SRC Act were intended to require that the contribution be 'more than a mere contributing factor' and, as such, the comments of the Court in Treloar must be assessed in this light. Content must be given to the word 'material' contained in the definition of 'disease' in the legislation as it presently stands. The inclusion of this term imposes an evaluative threshold below which a causal connection may be disregarded . However, it is not necessary for present purposes to consider the proper meaning of 'material' and nothing more need to said about this issue": emphasis added. 13 The modern approach to statutory interpretation, as is now well accepted, attributes a greater significance to context and legislative purpose than previously was the case: see CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2 ; (1997) 187 CLR 384, at 408. That approach, in my respectful view, was adopted unexceptionably by French and Stone JJ in Canute in their treatment of the legislative history of the definition of "disease" in the SRC Act . I agree with what their Honours have said and, in particular, in their conclusion that the inclusion of the word "material" imposes an "evaluative threshold" below which a causal connection may be disregarded.


case_outcome: referred to

case_text: There remains the question though, whether any useful purpose would be served in remitting this matter to the Tribunal for redetermination. The caution that should be exercised before concluding that it would be futile to remit is well understood: see Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560-562. Nonetheless, having regard to the Tribunal's findings in light of Dr Hayes' evidence, and the centrality given in that evidence to the employment's contribution to the disease suffered by the respondent, I am satisfied that had the Tribunal applied the correct test the result would not have been different. For this reason, notwithstanding the error of law, I am satisfied that the Tribunal's decision was clearly correct on the material before it having regard to its acceptance of Dr Hayes' evidence. 19 I will order that the appeal be dismissed with costs. 20 Though it is not of relevance in determining this matter, I would simply note that a Bill is currently before the Commonwealth Parliament one purpose of which, according to its Explanatory Memorandum, is to amend the definition of "disease" to strengthen the connection between the disease and the employee's employment: Safety Rehabilitation and Compensation and other Legislation Amendment Bill 2006 (Cth), Sched 1 cl 11, s 5B. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 18 January 2007 Counsel for the Applicant: P Hanks Solicitor for the Applicant: Sparke Helmore Counsel for the Respondent: G Britton Solicitor for the Respondent: Condello & Co Date of Hearing: 29 November 2006 Date of Judgment: 19 January 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/15.html


case_text: What is problematic is identifying where that threshold lies. Treloar's case set its own threshold of sorts for satisfying the 1971 Act's "contributing factor" requirement. It would, for example, exclude a de minimis contribution or one which did not influence the course of events. But once an employment was found to be a contributing factor to the condition in question, it did not matter whether the contribution was of any particular size or degree: Treloar , at 329. It has not been uncommon for courts, in dealing with statutes requiring such a contribution to be found, to describe that contribution as "material": see eg Repatriation Commission v Bendy (1989) 10 AAR 323 at 325. That usage is not how the term "material" in the phrase "in a material degree" is used in the SRC Act . The legislative history of this definition makes this plain. 15 There are, in my view, obvious hazards in allowing finely nuanced differences in dictionary definitions to contrive the answer to this question, given as I have noted, that the word "material" in this context had its legislative meaning set in part by the qualification it imposed on the nature of the contribution required to be demonstrated before the provisions of the SRC Act were engaged. This said I consider that one of the meanings of the word "materially" in the Shorter Oxford English Dictionary probably captures the essence of what the legislature was conveying. That meaning is "4. In a material degree; substantially, considerably." An example given of this usage is that of contributing "materially to the funds required" for a purpose. This usage probably comes closer to what Davies J in Bendy described (at 325) as the "loose sense" of the definition of "material" in the Macquarie dictionary " namely, 'of substantial import or much consequence' [rather than the] legal sense of 'pertinent' or 'likely to influence'". 16 Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition: (i) requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act; (ii) "in a material degree" requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee's employment did or did not contribute materially to the suffering of the ailment, etc, in question ("the threshold evaluation"); (iii) whether this will be so in a given case will be a matter of fact and degree.


case_text: Given the issue in this application it is necessary to set out verbatim the Tribunal's formulation of the issue before it, the approach it took and the conclusion it reached. "49. In this instance it is common ground that the injury from which the applicant suffers is a disease. The issue to determine under the 1988 Act is whether this condition was contributed to or aggravated in a material degree by his employment. 50. To establish a nexus with employment the applicant must establish that the bilateral shoulder condition from which he suffers is either an ailment or an aggravation of an ailment that was contributed to in a material degree by his employment. There has been considerable previous discussion as to what is meant by the concept of 'contributed to in a material degree'. 51. In Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 [' Treloar '] in discussing the use of the word 'material' for the purposes of the Compensation (Commonwealth Employees) Act 1971 (the 1971 Act) the Full Federal Court said at 323: '... the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the conditions complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once a link is established, however, it matters not that the contribution be large or small.' 52. The approach in Treloar's case has been expressly adopted in subsequent cases under the 1988 Act, for instance in Suters v Australian Postal Corporation (1992) 28 ALD 320 at 331 Ryan J commented: '... Although it is true that Treloar's case was expressly limited to a consideration of the 1971 Act, in which the word "material" did not appear, the case none the less contains a valuable exposition of the meaning of that word to which courts and tribunals are entitled to have regard when considering legislation containing it ...' 53. The concept of the employment 'contributing' has also been considered. The employment need not be the sole contributing factor and can be just one of several factors contributing to the contraction of the disease, its acceleration, aggravation or occurrence ( Re Welsford and Commonwealth Banking Corporation (1984) 1 AAR 43). In Treloar the Full Federal Court commented at 323: '... once it is established that an employee in the doing of his work was exposed to "a state of affairs to which he would otherwise not have been exposed" or to "some characteristic of or condition in which the work was to be performed" and that such exposure was in truth a "contributing" factor to the condition in respect of which he seeks compensation then it matters not whether the contribution was of any particular size or degree. ... In all cases the question is whether there has been a "contribution". ...' 54. It is the Tribunal's view that by material contribution the 1988 Act looks to a contribution that is not de minimus, but the contribution need not be the sole or principle (sic) contributor to the disease or the aggravation of it. ... 56. After carefully weighing all medical evidence and taking into account the duties undertaken by the applicant over 30 years, the Tribunal is satisfied, on the balance of probabilities, that the duties of his employment contributed in a material degree to the shoulder condition or to an aggravation of the shoulder condition from which the applicant now suffers. The Tribunal was particularly mindful of the explanation given by Dr Hayes of the patho-physiology and the tenuous blood supply to the supraspinatus tendon of the musculo tendon function and the tendon insertion and how this blood supply could have been compromised by the natures of the duties undertaken by the applicant. 57. The Tribunal accepts that his age and underlying genetic factors are also likely to have been contributing factors. Nevertheless, all that is required is that there is a material contribution from the employment and that is found to exist in this case." 8 It is Comcare's contention that the new definition of "disease" enacted in the SRC Act reflects a deliberate decision by the Parliament to impose a more exacting requirement of "contribution" by an employee's employment to the suffering or aggravation of an ailment before the compensation regime of the SRC Act would be attracted. The employee's employment is now required to contribute "in a material degree" to the suffering, etc of an ailment. 9 The ancestor of the SRC Act was the Compensation (Commonwealth Government Employees) Act 1971 (Cth). Section 29 provided an entitlement to compensation where: "(a) an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and (b) any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence, as the case may be, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment": emphasis added. 10 This definition was considered in Treloar and was held to mean that whilst a causal connection must be established on the probabilities, once that link was established, "it matters not whether the contribution was of any particular size or degree ": (at 323) emphasis added. 12 French and Stone JJ observed: 63. ... "[The SRC Act ] definition differs from that considered by the Full Court in Treloar . In Treloar , the Full Court was concerned with the antecedent legislation, the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act), which merely required the employment be 'a contributing factor' to the disease without any requirement that the contribution be 'material'. The Full Court, at 323, said that under the test laid down in the 1971 Act: once it is established that an employee in the doing of his work was exposed to 'a state of affairs to which he would otherwise not have been exposed' or to 'some characteristic of or condition in which the work was to be performed' and that such exposure was in truth a 'contributing' factor to the condition in respect of which he seeks compensation then it matters not whether the contribution was of any particular size or degree ... All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or acceleration. They must, in truth, be part of the cause. If they are not, then, they do not 'contribute'. 64. The Full Court, however, went on to comment on the use of the word, 'material' in cases concerned with the exposition of the concept of 'contributing factor' in the 1971 Act. It did so because the trial judge in Treloar had made the following comment: The test propounded by the 1971 Act, like the test propounded by the [SRC Act] requires that there be a contribution of a causal nature and therefore that the contribution be causally significant or, to use another term, material. Australian Telecommunications Commission v Treloar (1989) 11 AAR 69 at 71. Responding to this comment, the Full Court said (at 323): The use of the word 'material' in conjunction with the words 'contributing factor' in the [1971 Act], where it has occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature. It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small. 65. In Suters v Australian Postal Corp (1992) 28 ALD 320, Ryan J, while recognising that Treloar was concerned with legislation in which the word, 'material' did not appear, commented that 'the case nonetheless contains a valuable exposition of the meaning of that word to which courts and tribunals are entitled to have regard when considering legislation containing it'. 66. Insofar as his Honour was of the view that Full Court's comments in Treloar may be helpful in ascertaining the meaning of the term generally, we agree. This does not mean, however, that the comments of the Full Court apply to the use of the term in the definition of disease in s 4 of the SRC Act . Such an approach would fail to have sufficient regard to the legislative history that led to the enactment of the present legislation. The SRC Act , known as the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) when first enacted, repealed the 1971 Act and introduced a new scheme of compensation and rehabilitation. One of the changes from the 1971 Act was the introduction of a requirement that the employee show that their employment contributed 'in a material degree' to the contraction of the disease. In the Second Reading Speech to the Commonwealth Employees' Rehabilitation and Compensation Bill 1988 (Cth), which (with immaterial amendments) became the SRC Act , the Minister for Social Security stated: Under the existing Act an employee was required to establish only that his or her employment was a contributing factor in the contraction of a disease. This test does not adequately reflect the rights and obligations of the Commonwealth and its employees in relation to work-related disease and frequently results in the Commonwealth being liable to pay compensation for diseases which have little, if any, connection with employment. This Bill seeks to remedy that situation by requiring an employee to show that his or her employment contributed in a material degree to the contraction of the disease. The Government believes that this is a test which is firm but fair and which properly reflects the balance between the interests of the Commonwealth as employer and its employees. An employee will not be required to show that his or her employment caused the disease, or even that it was the most important factor in the contraction of the disease. It is intended that the test will require an employee to demonstrate that his or her employment was more than a mere contributing factor in the contraction of the disease. Accordingly, it will be necessary for an employee to show that there is a close connection between the disease and the employment in which he or she was engaged . In determining whether employment contributed in a material degree to the contraction of a disease in a particular case, regard would be had to whether the employment in which the employee was engaged carried an inherent risk of the employee contracting the disease in question and whether some characteristic or feature of the employment tended to cause, aggravate or accelerate the disease. A disease which has been contributed to in a material degree by employment will be deemed to be an injury. Compensation will be payable if that injury results in the death, incapacity or impairment of the employee. (Emphasis added.) Second Reading Speech, Australia, House of Representatives, Debates, 27 April 1988, p 2191. 67. On this basis, the observations of the Full Court in Treloar at 323 that the relevant causal connection must be established on the balance of probabilities and not left in the area of possibility of conjecture are not controversial. Equally, it is plain that the present legislation was not intended to require that an employee demonstrate that their employment caused the disease or that it was the most important factor. It would also appear that the imposition of a 'but for' test remains inappropriate. Having said this, the changes brought about by the enactment of the SRC Act were intended to require that the contribution be 'more than a mere contributing factor' and, as such, the comments of the Court in Treloar must be assessed in this light. Content must be given to the word 'material' contained in the definition of 'disease' in the legislation as it presently stands. The inclusion of this term imposes an evaluative threshold below which a causal connection may be disregarded . However, it is not necessary for present purposes to consider the proper meaning of 'material' and nothing more need to said about this issue": emphasis added. 14 What is problematic is identifying where that threshold lies. Treloar's case set its own threshold of sorts for satisfying the 1971 Act's "contributing factor" requirement. It would, for example, exclude a de minimis contribution or one which did not influence the course of events. But once an employment was found to be a contributing factor to the condition in question, it did not matter whether the contribution was of any particular size or degree: Treloar , at 329. It has not been uncommon for courts, in dealing with statutes requiring such a contribution to be found, to describe that contribution as "material": see eg Repatriation Commission v Bendy (1989) 10 AAR 323 at 325. That usage is not how the term "material" in the phrase "in a material degree" is used in the SRC Act . The legislative history of this definition makes this plain. 17 While the Tribunal's treatment of the question of contribution in par 54 of its Reasons could be said to encompass an approach to materiality consistent with what I have said above, given the use it has made of the observations in Treloar and the lack of any obvious consideration of an evaluative threshold beyond a de minimis test, I am not satisfied that it has in fact applied the correct test in this matter. To that extent Comcare must succeed in this appeal.


case_outcome: applied

case_text: the Court is informed that each adult member of the representative group has been advised on an individual basis as to the merits of the claim and has expressly consented to the terms of the proposed settlement, the Court need not look beyond that express consent when considering an application under s 33V: Neil v P & O Cruises Australia Limited [2002] FCA 1325 at [8] - [9] . This is the case in the present application. The trial of the proceedings began on 16 April 2009 and proceeded into the second day on 17 April 2009. After the second day the trial was adjourned and a mediation was conducted on 28 April 2009 by Registrar Moore. At that session an offer was made by the first, second and third respondents (the said respondents) that caused the mediation to be adjourned until 20 May 2009. Following the first session of the mediation, the solicitors for the applicant sought advice from counsel in relation to the settlement offer made by the said respondents. A written advice was provided by counsel and was supplied to all 19 group members. The group members were also given the opportunity to ask questions of and consult with their lawyers regarding the litigation.


case_text: involved parties have gone further to seek to persuade the Court in oral and written submissions by senior counsel for the applicant that, on the merits, the agreement is indeed fair and reasonable: see Williams v FAI Home Security Pty Ltd (No 4) (2000) 180 ALR 459 ; [2000] FCA 1925 at [19] . A number of matters were advanced in support of this conclusion. The first matter was the consent of the group members to the settlement in the circumstances outlined above. Next it was contended that the complexity and potential duration of the litigation made it reasonable to settle. The trial had at least 10 more days to run with the attendant costs. Then, the applicant pointed to the risk of failing to establish liability. Even if liability were established, in relation to quantum there were alternative bases proposed in the applicant's case upon which damages could be assessed. On one measure, taking the difference in capital value as the basis of the assessment of damages, the damages would have amounted to a little over a million dollars. On the alternative basis of assessing the shortfall in return as against the promised return made in the alleged representations, the range of outcomes would have been from around $292,000 to $814,000. The settlement figure falls approximately just under halfway within the range.


case_text: On 11 December 2007, for reasons that it then published, the Tribunal, constituted by Mr Kenny, Member, affirmed the decision under review. 4 Section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) enables an appeal to be brought to this Court from a decision of the Tribunal on a question of law. The questions of law identified in the notice of appeal which has been filed in the court are as follows: (1) whether the Tribunal erred in law by failing to: (a) consider the written statement of the Applicant in evidence before it (exhibit 2); or (b) evaluate the sworn evidence given by the Applicant in his statement (exhibit 2) against that given viva voce when determining whether the applicant experienced "intense fear, helplessness or horror" for the purposes of the diagnosis of post-traumatic stress disorder. (2) whether the Tribunal erred in law by failing to refer in its reasons for decision that the Tribunal had regard to the sworn statement of the Applicant contained in exhibit 2. (3) whether the Tribunal erred in law, and failed to comply with its obligations under section 43 (2B) of the Administrative Appeals Tribunal Act 1975 , by failing to explain how it treated the Applicant's viva voce evidence of his reaction to the alleged stressor as against the description of said reactions given by the Applicant in his sworn statement (exhibit 2). 5 Section 13 of the Veterans' Entitlements Act renders the Commonwealth liable to pay a pension to a veteran where the veteran has become incapacitated from a war-caused injury or disease. The circumstances in which a disease or injury is taken to be war-caused are set out in s 9 , subs (1), of the Veterans' Entitlements Act . 6 The standard of proof to be applied by the Commission and on review by the Veterans' Review Board or the Tribunal to the question of whether a disease is a war-caused disease is provided for in s 120 of the Veterans' Entitlements Act . Section 120 of that Act provides materially: (1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. (2) Where a claim under Part IV: (a) in respect of the incapacity from injury or disease of a member of a Peacekeeping Force or of the death of such a member relates to the peacekeeping service rendered by the member; or (b) in respect of the incapacity from injury or disease of a member of the Forces, or of the death of such a member, relates to the hazardous service rendered by the member; the Commission shall determine that the injury was a defence-caused injury, that the disease was a defence-caused disease or that the death of the member was defence-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. (3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining: (a) that the injury was a war-caused injury or a defence-caused injury; (b) that the disease was a war-caused disease or a defence-caused disease; or (c) that the death was war-caused or defence-caused; as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. (4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV , decide the matter to its reasonable satisfaction. 7 In Fogarty v Repatriation Commission [2003] FCAFC 136 ; (2003) 37 AAR 363 at 373, paragraphs 34 and 35, Kenny J, with the agreement of Spender and Tamberlin JJ, observed the following in relation to s 120 and its impact on the standard of proof to be applied by administrators in respect of the determination of claims or their external review: The authorities establish that, where there is an issue as to whether or not a veteran is suffering from a claimed injury or disease, then the commission (and, on review, the board or the AAT) must decide the issue to its reasonable satisfaction, as required by section 120(4) of the Act: see Benjamin v Repatriation Commission [2001] FCA 1879 ; (2001) 34 AAR 270 at 282 per Moore, Emmett and Allsop JJ, Repatriation Commission v Cooke (1998) 90 FCR 307 at 301-311; 28 AAR 400 at 403-404 per French, Drummond and Carr JJ, Repatriation Commission v Budworth [2001] FCA 1421 ; (2001) 116 FCR 200 at 204-205; [2001] FCA 1421 ; 33 AAR 476 at 480 per Ryan, Marshall and Conti JJ, Repatriation Commission v Hill [2002] FCAFC 192 ; (2002) 69 ALD 581 at 598-599 per Black CJ, Drummond and Kenny JJ, and Repatriation Commission v Gosewanckel [1999] FCA 1273 ; (1999) 59 ALD 690 at 700-702 per Weinberg J. As the Full Court said in Benjamin (at 634; 282): " Section 120(1) of the Act assumes the existence of a relevant injury or disease and provides a standard of proof for the determination of whether that injury or disease was war-caused. When the commission, or the tribunal on review, is required to determine whether a veteran is suffering from a particular injury or disease, that issue must be decided to the reasonable satisfaction of the decision maker, in accordance with section 120(4) of the Act: see Repatriation Commission v Budworth [2001] FCA 1421 ; (2001) 116 FCR 200 at 204 [15] ; [2001] FCA 1421 ; 33 AAR 476 at 480 [15] ," Although the AAT is not bound by the rules of evidence the Full Court held in Repatriation Commission v Smith (1987) 15 FCR 327 at 335; 7 AAR 17 at 26, that the requirement in section 120(4) that the AAT must be "reasonably satisfied" imports the civil standard of proof. 8 This is a case where there was at issue in the proceeding the threshold question as to whether or not the Applicant was suffering from an injury or disease. In particular, that threshold question came to be whether or not he was suffering from post-traumatic stress disorder. Accordingly, the question of whether he was suffering from that condition fell for determination as required by s 120(4) of the Veterans' Entitlements Act according to the reasonable satisfaction of the Tribunal in the way explained in the passage which I have quoted from Fogarty . 19 In the submissions on behalf of the Applicant, much was made of the following passage in Fogarty at para 41: I accept that the AAT was bound to take the report into account in the sense explained by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24 at 39 in deciding whether or not the veteran suffered from a generalised anxiety disorder. Providing it did so, it was for the AAT to determine what weight should attach to the report. There is, however, no mention of the report in the AATs reasons. On account of this, and on account of the AATs failure at the outset to address the diagnosis issue by reference to the evidence, and on account of the "methodological confusion" (as the respondent termed it) in the AATs reasons generally, I will infer that the AAT indeed failed to have regard to the report. In the circumstances of the case this failure constitutes a material error of law. 20 The report in that case was a medical report, but the submission made on behalf of the Applicant was that there was no relevant distinction to be drawn in terms of principle as between the medical report in that case and the written statement to the accuracy of which Mr Drew swore in his oral evidence before the Tribunal. It is true that there is no explicit reference to that statement in the Tribunal's reasons. I was though very helpfully provided, on behalf of the Respondent, with what one might term a "matrix" in which analysis is made of the Tribunal's reasons and corresponding references in the written statement which became part of the evidence before the Tribunal. It is quite plain from that that the Tribunal has had regard to the written statement and, indeed, adopted particular passages from it in its reasons. 21 Assuming, therefore, that the written statement might, in terms of the Peko-Wallsend case, be classified as a relevant consideration, I am quite satisfied that the Tribunal did have regard to it in reaching its decision. 23 His Honour observed: As it is now well understood, any court reviewing a decision of the tribunal cannot turn "a review of the reasons of the decision-maker upon proper principles into a reconsideration for merits of the decision": Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272. Those quite "proper principles" do not allow a doubtful fact finding to be characterised as an error of law. As Kenny J commented in Minister for Immigration and Multicultural Affairs v Rajalingim [1999] FCA 794 ; (1999) 93 FCR 220 at 257, "a tribunal does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis or because it adopts unsound or questionable reasoning." Likewise those "proper principles" do not require that it be shown that all matters raised in the proceeding before the tribunal are dealt with in the reasons. For the purposes of section 43(2B) of the AAT Act, the tribunal is not obliged to give a "line by line refutation" of an applicant's evidence either generally or in those respects where there is evidence contrary to find things that material fact made by the tribunal: Re Minister for Immigration and Multicultural Affairs Ex Parte Durairajasingham (2000) 58 ALD 609 ; 168 ALR 407: see generally, Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 62 ALD 225 ; 180 ALR 1. 24 Though I have, in the manner indicated earlier, some difficulty with the reference by the Tribunal in para 22 of its reasons to the statement of principles, it is tolerably clear from that paragraph that the Tribunal has, against the background of the written statement before it, gained particular assistance from the oral evidence which Mr Drew came to give in addition to that written statement. As it happened, that oral evidence put the Tribunal in the position of not being reasonably satisfied that he suffered from post-traumatic stress disorder. The Tribunal's chain of reasoning on matters of fact appears to have been this. There was a consensus of medical opinion that a diagnosis of post-traumatic stress disorder ought to be made, having regard to criteria in DSM-IV. Those criteria concern matters of primary fact. In particular, one of those primary facts was that described in paragraph (a)(ii) of the DSM-IV publication, and as it happened, the Tribunal, in taking account of all of the evidence before it, and particularly the oral evidence, was not satisfied as a matter of fact that the experience in response of the veteran met the description in (a)(ii). It followed from this that having regard to the medical opinion as to the utility of DSM-IV, no factual foundation for a finding of post-traumatic stress disorder was present. 25 That process of reasoning seems to me to have been both logical and reasonably open on the evidence before the tribunal.


case_outcome: cited

case_text: Only if it were concluded that the veteran was suffering from the claimed condition of post-traumatic stress disorder would the reasonable hypothesis process of reasoning, derived from ss 120(1) and 120 (3) of the Veterans' Entitlements Act , as those provisions are affected by the statement of principles regime, and involving the four steps as elucidated in Repatriation Commission v Deledio (1998) 63 FCR 82 , arise for consideration. 10 The Tribunal had the benefit of evidence from two specialist psychiatrists, Dr Likely and Dr Mulholland. There was a consensus as between those two gentlemen that, in terms of accepted medical practice, a diagnosis as to whether or not a person was suffering from post-traumatic stress disorder ought to be made by reference to a publication known as DSM-IV. Each of those psychiatrists had had regard to the diagnostic criteria in that publication as well as an account of the applicant's service. In the result, Dr Likely had formed the view that the applicant was indeed suffering from post-traumatic stress disorder. He was the treating psychiatrist. Dr Mulholland had a different view. 11 The difference between those gentlemen was not one of the apt diagnostic criteria, but rather one of the application of those criteria to the facts as related and understood by them concerning the applicant's war service. That service, as related by the Tribunal in the Reasons at para 6, was as follows: The applicant was 19 years of age when he joined the RAN and celebrated his 21st birthday on route to Vietnam on HMAS Vampire. During that voyage, he and other young sailors were subjected to story-telling by various experienced sailors about what to expect when they arrived in Vung Tau Harbour. In those stories, the North Vietnamese were credited with controlling vessels (junks), modified to enable them to achieve high speeds and deliver torpedo strikes against Australian vessels. Additionally, they were credited with the capacity to manoeuvre close to Australian vessels and to drop divers armed with mines to damage them. Mr Drew and the others were also told that their time in Vung Tau coincided with the birthday of Ho Chi Minh and that the North Vietnamese were intending to capture Vung Tau Township as part of his birthday celebrations. On hearing these stories, Mr Drew was not greatly concerned but, as the Vampire approached Vietnamese waters, he became apprehensive and the information provided to him "started to get under his skin."


case_text: In Gerzina v Repatriation Commission [2004] FCAFC 96 at 11, a Full Court (Black CJ, Heerey and Bennett JJ) made the following observation in respect of that publication: We agree with the submission of senior counsel for the respondent that the interpretation of the criteria (a)(ii) in DSM-IV in this case did not raise a question of law. There was before the tribunal evidence from appropriately qualified medical specialists, both of whom used DSM-IV as the appropriate framework for making a diagnosis. No other framework or criterion was suggested. It was in this setting that the tribunal had to reach a conclusion about the question of the appellant's diagnosis. This was a question of fact. 16 Neither party in this appeal suggested that DSM-IV had any greater role to play in the proceedings before the tribunal than in providing an accepted framework on the evidence by reference to which a finding of fact might be made. As it transpired, Dr Mulholland had, on the evidence that he had considered, formed the view that post-traumatic stress disorder was not a diagnosis open on the basis that criterion (a)(i) was not met. On the facts before it, the Tribunal reached a different view in relation to that particular criterion. The Tribunal found that, though there were differences or inconsistencies in the medical evidence, the criterion (a)(i) was met. The Tribunal went on to find that it was not satisfied in relation to Mr Drew's response at the time for the purposes of satisfying criterion (a)(ii). 17 The critical paragraph in the Tribunal's reasoning in that regard is paragraph 22, which is in the following terms: The tribunal in Budworth described this as an extremely high level of reaction to extremely traumatic stressors: at para 62. I agree with that description. Dr Likely referred to intense fear and Dr Mulholland referred to panic and fear and this enabled them to conclude that criterion (a)(ii) was met. Clearly, these descriptions of his feelings are what Dr Likely and Dr Mulholland were told by Mr Drew yet that was not the evidence of Mr Drew given on oath at the hearing. He gave that evidence in a calm manner and described himself at the relevant time on Vampire as being "agitated", "concerned about safety", "feeling afraid" and being "relieved" when the ship eventually weighed anchor. Even when he described his feelings on seeing the stricken USS Evans, he said this had no effect on him except to make him think about what might have befallen the Vampire. While Mr Drew's feelings of being afraid, of agitation and of concern are understandable, I am reasonably satisfied that they lack the intensity of response required in the diagnostic criterion (a)(ii) in DSM-IV and the statement of principles. On the evidence that he gave, I am satisfied that his reactions do not constitute a response which involved intense fear, helplessness, or horror.


case_title: Willcocks v Comcare (2001) 66 ALD 119

case_text: There was also criticism made of the Tribunal's reasons in terms of the conclusion reached that the veteran was not suffering post-traumatic stress disorder because, on the facts, that the necessary diagnostic criterion, (a)(ii), was not met. In Willcocks v Comcare (2001) 66 ALD 119 at 120, para 6, Finn J very helpfully summarises the authorities germane to the Tribunal's obligation to give reasons for the findings of fact that it comes to make.


case_text: In order to determine whether the contact was sexual harassment within s 28A , regard must be had to all the circumstances. The test is an objective one that does not take into account the motivation of the perpetrator or the individual ( AB v Adult Multicultural Education Services [2006] VCAT 1862 at [19] ). 49 It is relevant that: • This was an isolated incident. • It took place in a corridor and was a movement in passing. • Relations between Mr Huang and Professor Winder both before and after the alleged incident were confined to educational matters. • No discomfort was apparent on Ms Huang's part in her dealings with Professor Winder after the alleged incident.


case_title: Gauci v Kennedy [2007] FCA 1051

case_text: Federal Magistrate Driver considered the evidence in relation to this allegation and rejected it. His Honour gave reasons for that finding. I see no error in his Honour's conclusion. A claim under s 28A must be analysed on the basis of the nature or quality of the act: see, for example, Gauci v Kennedy [2007] FCA 1051 at [22] . Irrespective of Ms Huang's present belief that the contact between Professor Winder's hand and her hip constituted sexual harassment, she has not shown that his Honour was in error in concluding (at [89]) that ' the contact that occurred between Professor Winder and Ms Huang was accidental and non-sexual as they passed in the corridor '. 51 Federal Magistrate Driver accepted the respondents' submission that there were two allegations of sexual harassment against Dr Markovic. 52 The first allegation, described by His Honour at [92], is that in 1999 when he was training a group of students he raised both his hands ' with lustfully laughing and moved towards Ms Huang with his arms outstretched '. Dr Markovic denied laughing lustfully and denied that he sexually harassed Ms Huang. None of the other students present gave evidence. Federal Magistrate Driver found that Ms Huang embellished this alleged incident over time. During cross-examination she added as part of the description that Dr Markovic said as he raised his hands ' I'll kill you ' or ' I would kill you '. Ms Huang conceded that Dr Markovic did not engage in any conduct that indicated a sexual interest in her. 53 His Honour concluded that whatever was said was intended as a joke and was not sexual in nature and was not conduct within s 28A(1)(a) or (b) of the Sex Discrimination Act . 54 The second allegation was that, at some time in late August or September 2001, Dr Markovic made a remark about Ms Huang's marital status. Dr Markovic denied making that remark. Another student present gave evidence and failed to corroborate the allegation. The Federal Magistrate accepted Dr Markovic's denial that he said anything about a need for sex on Ms Huang's part. On that aspect, Driver FM preferred Dr Markovic's evidence and the documentary evidence to Ms Huang's evidence. His Honour noted that one of the other students present at the time but who was not able to be available for cross-examination as he was overseas provided some support for Ms Huang's allegation that Dr Markovic made a comment about her marital status. His Honour found that, on the balance of probabilities, that Dr Markovic did make a comment about Ms Huang's age and marital status. An internal University investigation supported the allegation and Dr Markovic had been required to undergo counselling. Federal Magistrate Driver concluded that the remark was ' offensive and the remedy appropriate ' (at [101]). 55 However, his Honour accepted that the comment did not constitute sexual harassment within the meaning of s 28A of the Sex Discrimination Act , not being conduct of a sexual nature or pertaining to sexual activity or attraction or relationships. Accordingly, his Honour rejected the allegations of sexual harassment against Dr Markovic. Having rejected the allegations of sexual harassment against Dr Markovic and Professor Winder, Driver FM found at [104] that there was nothing to support any other alleged act of sex discrimination under the Sex Discrimination Act . 56 In her complaint to HREOC Ms Huang said that when Dr Markovic was talking about broken glass ' he raised his both hands and came to me like to catch me, but I stepped back and avoided the contact '. She also said that Dr Markovic sometimes talked about sex in front of male students and that he said on one occasion that she had not been married but needed sex and that she was over 30 near 40, but still had pimples on her face. 57 Ms Huang characterises the second incident as being a ' sexual comment about my marital status, my age and my sexual life that I was not married that I needed sex and I was over 30 but I still had pimples on my face, in which he suggested and induced the male students made sex relationship with me. ' This, she submits, constitutes sexual harassment. 58 Ms Huang raises a number of matters concerning her PhD in her amended notice of appeal under the heading of "sexual harassment". These were not the subject of complaint to HREOC under this heading and it is not clear how they constitute sexual harassment within the meaning of the Sex Discrimination Act . They relate to matters such as the provision of assistance and training, her research and the provision of computers. 59 Ms Huang also says in her amended notice of appeal that Dr Markovic indicated ' that [Dr Markovic] would compel obedience from me or conquer me for his sexual favours to me, his support of my PhD would be conditional upon my provision of sexual favours, he made sexual comments and induced his male students sexually harassed me '. She explains that when he said ' I'll kill you ' it meant that ' he would compel obedience from me or conquer me for his sexual favours to me '. 60 Ms Huang is adamant that Dr Markovic said ' I'll kill you '. Federal Magistrate Driver implicitly accepted at [95] that such a comment may have been made. His Honour noted, and Ms Huang repeats, that Dr Markovic did not engage in sexual harassment but indicated a sexual interest in her. She says in her amended notice of appeal that Dr Markovic ' did not touch me and did not (directly through his mouth) invite me for a social occasion '. 61 His Honour concluded that, in the circumstances, the conduct complained of was more likely to have been intended as a joke rather than being sexual in nature. While his Honour accepted that Dr Markovic laughed, and Ms Huang repeats that it was a ' lustful ' laugh, his Honour did not accept what was clearly a subjective interpretation of the laugh. 62 It is difficult to see how one can accurately describe a laugh as ' lustful ' or how that description by Ms Huang is sufficient to establish sexual harassment within the meaning of the Sex Discrimination Act . 63 Much of the detail raised by Ms Huang in support of her claim of sexual harassment by Dr Markovic involves her reading a sexual connotation into things that he said or wrote. For example, she says that his saying ' I'll kill you ' was a result of ' his playing sexual game with me ' and that ' Dr Markovic was so drunk of his sexual favours to me that he really wanted to 'kill' me, but he could not 'kill' me in front of people, and he would 'kill' me in some time after the talking. He would 'kill' me meant he would compel obedience from me or conquer me for his sexual favours to me, as he had known I was afraid and ran away from his sexual favours to me '. She also characterises any assistance given to her by Dr Markovic in her PhD programme as part of his ' sexual advance for sexual favours to me '. 64 Ms Huang says that any failure on Dr Markovic's part to support her, or any criticism of her work, was due to his sexual interest in her. As part of her case that Dr Markovic had made sexual advances to her, Ms Huang describes a series of reasons why he must have done so. She cites examples when he said to her things such as ' you are too hard on yourself ' and when he provided assistance to her. Suggestions by Dr Markovic that she should ' take it easy ' in her PhD, that she should learn from her mistakes, that she was expected to work under her own guidance and that it was up to her to determine and manage her time were all linked by Ms Huang to the question of provision by her of sexual favours to Dr Markovic.


case_outcome: followed

case_text: Ms Huang does not contend that the Federal Magistrate was in error in his summary of the principles applicable to conduct in breach of s 28A(1)(b). His Honour recognised the breadth of actions that can constitute conduct of a sexual nature and that single incident could constitute a contravention of s 28A. He also considered the distinction, pointed out by Wilcox J in Hall v A & A Sheiban Pty Ltd [1989] FCA 72 ; (1989) 20 FCR 217 at 247, that '[u] nwelcome sexual conduct may be insensitive, even offensive, but it does not necessarily constitute sexual harassment ', the latter suggesting repetition. 37 The allegation of sexual harassment made to HREOC against Professor Winder is that he touched Ms Huang's hip while passing her in a corridor in the second semester of 1999. The allegation against Professor Winder is described by Ms Huang in her documentation in the appeal as ' an upward affectionate stroking motion on hip ' constituting, she says, a sexual advance for sexual favours which in turn constitutes sexual harassment. Ms Huang confirms that the allegation of sexual harassment against Professor Winder consisted of a single incident late in 1999. In her Notice of Appeal, Ms Huang repeatedly describes the incident with Professor Winder and she also demonstrated his alleged action a number of times during her submissions. The description was in terms of touching of the hip with ' an upwards affectionate stroking motion on my hip, for his sexual advance for his sexual favours to me '. 38 Noting (at [82]) that Professor Winder had no recollection of the incident, Driver FM expressed concern about Ms Huang's evidence. Ms Huang waited more than two years before mentioning the incident and his Honour did not accept her explanation for the delay. His Honour also commented that Ms Huang had changed her account of the incident over time. As his Honour recorded at [87]: ... Ms Huang has changed and embellished her account of the incident over time. Her initial allegation in 2002 was that 'one day when I passed the passage from the printing room of the school he touched my hip'. In her 29 October 2004 affidavit she deposed that 'he stretched out his right arm towards me and touched me on the hip'. In her oral evidence Ms Huang said that Professor Winder had caressed her. Her submissions allege 'affectionate stroking' and give further details but such detailed recollection is inconsistent with Ms Huang's oral evidence that she did not see Professor's Winder's hand . 39 Federal Magistrate Driver accepted at [82] that an incident occurred and that there was some physical contact between Professor Winder and Ms Huang as they passed each other in the corridor but found nothing to establish that the incident complained of constituted sexual harassment within the meaning of s 28A of the Sex Discrimination Act . His Honour concluded that ' in all probability, the contact that occurred between Professor Winder and Ms Huang was accidental and non-sexual as they passed in the corridor ': at [89]. His Honour noted that the alleged incident did not apparently affect Ms Huang's dealings with Professor Winder after that time; equally significantly, Ms Huang did not allege that there was ever any other physical contact between her and Professor Winder. 40 Ms Huang alleges a number of consequences arising from the alleged sexual harassment by Professor Winder. Those consequences and the existence of them are dependent upon a finding that the single incident alleged against Professor Winder took place and constituted a breach of the Sex Discrimination Act . 41 Ms Huang alleges that Professor Winder ' made unwelcome sexual advance for sexual favours to me, engaged in unwelcome conduct of sexual nature in relation to me, and discriminated against me of a sexual nature in relation to my sex, his sexual favours to me, and his sexual harassment, that he treated me less favourably than other girls and the male students and that his support of my PhD, my progress of my PhD and the continuance of my PhD re-enrolment were conditional upon my provision of sexual favours '. 42 In the Notice of Appeal Ms Huang asserts that, had it not been for the sexual harassment she would have done certain things, such as change her supervisor from Dr Markovic to Professor Winder or not done certain things, such as sent him emails or given him a bottle of wine. She says that if she had intended to invent Professor Winder's actions, she would have suggested other contact. Ms Huang does not suggest that Professor Winder touched her at any other time. She says that she told Ms Frank that the touching of her hip was sexual harassment because ' he showed his sexual intention in me '.


case_text: The appellant, Ms Huang, appeals from a decision of the Federal Magistrates Court dismissing her application against the first, second and third respondents: Huang v University of New South Wales & Ors [2008] FMCA 11. The amended notice of appeal raises 61 grounds of appeal and extends to some hundreds of pages. Ms Huang has also filed submissions and an 'Issues Paper'. This is in addition to affidavit material filed in the appeal together with the extensive factual material that was before Driver FM. Despite my urging, Ms Huang seemed unable to reduce or simplify her contentions in any meaningful way. There was a lack of focus and much in the way of irrelevant and repetitive material that made it difficult to ascertain matters relevant to this appeal. 2 Federal Magistrate Driver expressed the difficulties he had in identifying the real issues in the mass of material filed and presented by Ms Huang. It is apparent that the case proceeded in the Federal Magistrates Court (as in this Court) in a way which was, as his Honour noted, ' exceptionally protracted, with far more material filed than was necessary or useful ' (at [63]). 3 I referred the matter to a Registrar of the Court for a case management conference in an attempt to isolate the issues in the appeal. By consent the following issues were elucidated: Issue 1 Whether His Honour erred in not giving appropriate weight to the evidence submitted in the proceedings. Issue 2 Whether His Honour erred in not taking into account crucial evidence and took into account submissions that misinterpreted the evidence or were contrary to the relevant facts. Issue 3 Whether His Honour did not give sufficient time for the appellant to complete her cross-examination of the respondents' witnesses. 4 At the hearing of the appeal Ms Huang seemed to have great difficulty in confining herself to or directing her submissions to the issues that had been identified. She appeared in person and made her submissions in English. A Cantonese interpreter was present at all times to assist Ms Huang and to ensure that she understood everything that was being said and that she was able to present her submissions without the difficulty of not being able to think of a word or an expression. 5 Like Driver FM, I have addressed the issues that I have discerned from the material and submissions advanced by Ms Huang; I have also had the advantage of the Federal Magistrate's reasons and summary of the evidence before him. 6 The nature of Ms Huang's complaints and the factual background are well set out in the Federal Magistrate's reasons for judgment. As an introduction and background, His Honour explained: 1. Hong Cui Huang is a former PhD student at the University of New South Wales ("the University"). She did not obtain her degree and holds the University and Dr Boban Markovic (her supervisor) and Professor Chris Winder (her co-supervisor) responsible. Ms Huang has applied to the Court under s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("the HREOC Act ") seeking compensation in relation to asserted sex, racial and disability discrimination which she believes frustrated her studies. The documentation filed by Ms Huang in support of the application is voluminous. Essentially, however, Ms Huang complains of sexual harassment in 1999 by Professor Winder and by Dr Markovic and alleges inappropriate comments by Dr Markovic in 2001. Ms Huang also makes sexual harassment allegations against two other persons who are not the subject of this present proceeding. 2. The application was amended in 2004 in order to add allegations of racial discrimination and disability discrimination in relation to the cancellation of Ms Huang's PhD enrolment. The racial discrimination is said to stem from Ms Huang's limited command of the English language. The disability discrimination is said to be based upon Ms Huang's asserted anxiety and depression. 3. Ms Huang made two relevant complaints to HREOC. The first complaint (of sexual harassment) was terminated by a delegate of the President of HREOC on 28 July 2003 pursuant to s.46PH of the HREOC Act . The complaint of sexual harassment against Dr Markovic was terminated on the basis that there was no reasonable prospect of a successful conciliation in relation to the alleged events in 2001 and in relation to the balance, the complaint was made more than 12 months after the alleged events took place. The complaint of sexual harassment by Professor Winder was terminated on the basis that the events took place more than 12 months before the complaint was made. 4. The second termination was made by a delegate of the President on 26 May 2004. This related to the complaints of racial discrimination and disability discrimination. The notice was issued pursuant to s.46PH of the HREOC Act on the basis that the complaints related to alleged events occurring more than 12 months before the complaints were made. 5. Ms Huang also alleged victimisation as a result of complaining of sexual harassment and also because of her complaints of racial and disability discrimination. [Federal Magistrate Driver] ruled that [he] had no jurisdiction to entertain the application insofar as it was based on the victimisation allegations [Huang v University of New South Wales & Ors (No 2) [2006] FMCA 220 ] . However, [Federal Magistrate Driver] modified that ruling on 5 June 2006 upon the basis that Ms Huang had referred to alleged victimisation in her first complaint to HREOC, and, although HREOC had declined to accept a complaint of victimisation in later correspondence, Ms Huang was free to put a different legal characterisation on her complaint (which was terminated) than had been put on it by HREOC. [Federal Magistrate Driver] confirmed that [he] could not consider allegations of victimisation which post date the termination of the complaint. 6. The respondents deny any sexual harassment and deny any unlawful discrimination or victimisation. 7. Ms Huang gives extremely detailed particulars of her claims in a statement of particulars filed on 29 October 2004. She amended this statement by a statement of amended particulars filed in court by leave on 13 February 2006. Ms Huang relies upon ss.28A , 28F , 106 and 21 (2) of the Sex Discrimination Act 1984 (Cth) ("the SDA") in relation to the sexual harassment allegations. 8. Ms Huang asserts direct sex discrimination contrary to ss.5(1) , 21 (2)(a)(c) and 106 of the SDA by the University and Dr Markovic.


case_text: Federal Magistrate Driver pointed out that victimisation is dealt with in s 94 of the Sex Discrimination Act . By s 94(2) victimisation for the purposes of the section concerns a person being subjected or threatened with detriment on the ground that they made or proposed to make a complaint under that Act or the HREOC Act or took steps in relation to HREOC. One or more of those matters must be a ' substantial and operative ' factor in the detriment to which Ms Huang was subjected or threatened with (see Obieta v New South Wales Department of Education and Training [2007] FCA 86 at [240] ). Ms Huang did not identify to Driver FM the detriment to which she alleged she was subjected or the acts referred to in s 94(2)(a) (g) of the Sex Discrimination Act , or the course that she took or proposed taking, or the knowledge that the first, second or third respondents had concerning those acts, or the connection between any of those acts and the detriment alleged. The Federal Magistrate pointed out at [122] that Ms Huang had not identified evidence of those matters. His Honour found, from the evidence, that Ms Huang first raised her allegations of sexual harassment at her meeting with Miss Nabke-Hatton on 22 March 2002 and that the respondents did not know of her allegations of unlawful discrimination before that date. His Honour found that there was no evidence that Ms Huang ever raised any assertion of unlawful discrimination before that time. By then her supervisors had already told her that they would not be supporting her re-enrolment. 111 Accordingly His Honour found that there was no unlawful victimisation under the Act. 112 Ms Huang's allegations of discrimination and harassment were considered as part of the decision-making process on her appeal against the cancellation of her enrolment. Federal Magistrate Driver found that these allegations did not appear to have been factors bearing on the decisions that were taken. In any event, the appeal resulted in Ms Huang being offered the opportunity to re-enrol. 113 While there were numerous communications between Ms Huang and the respondents prior to her complaint in March 2002, none could reasonably be interpreted as suggesting an intention to make a complaint within the meaning of s 94(2) of the Sex Discrimination Act (or, for that matter, s 27(2) of the Racial Discrimination Act 1975 (Cth) or s 42(2) of the Disability Discrimination Act 1992 (Cth)). Ms Huang raised the issue of sexual discrimination or disability discrimination after the rejection of the second submission of her literature review on 30 November 2001. The comments predicating the decision that Ms Huang not be permitted to remain as a PhD student were made by Dr Markovic on 31 December 2001 and by Professor Winder on 3 January 2002. That is, all relevant actions taken by Dr Markovic and Professor Winder, and through them the University, of which Ms Huang complains were taken prior to any suggestion of a complaint being made to HREOC or otherwise. 114 In her submissions Ms Huang describes as "victimisation" the attitude towards her during the course of her studies and prior to the decision made by the University that she not be permitted to re-enrol. It is clear from her written submissions that her description of 'victimisation' relates to the time before she first made an allegation to Miss Nabke-Hatton or to the University of sexual harassment, sexual discrimination or disability discrimination. She states in her written submissions that she asserted her complaint about the sexual harassment/discrimination prior to the termination of her PhD but there is no evidence supporting that assertion. The fact remains that, on the evidence, Ms Huang has not shown his Honour to have been in error in concluding that the decision to terminate her PhD preceded any allegation in relation to the Sex Discrimination Act , the Racial Discrimination Act or the Disability Discrimination Act . To the extent that Ms Huang refers to events that occurred after she gave notice of her complaints, it is difficult to identify the victimisation to which she says she was subjected. She has some complaint about the University's process in dealing with her PhD position but it is apparent that the University's decision-making process and consideration of her status as a PhD student were affected by the consideration of her capacity as a PhD student. They were not based on or relate to Ms Huang's complaints of sexual discrimination or harassment against Dr Markovic or Professor Winder. 115 Ms Huang has not established any error in Driver FM's conclusion that there was no unlawful victimisation. I reject, as his Honour did, the contention that there was. 116 Ms Huang has not shown that the Federal Magistrate was in error in dismissing her application or that his Honour erred in any legal, factual or procedural respect. She has not established any of her grounds of appeal. The appeal should be dismissed. I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 18 December 2008 The Appellant appeared in person. Counsel for the Respondents: Ms J Oakley Solicitor for the Respondents: University of New South Wales Solicitor Date of Hearing: 9, 10, 13 October 2008 Date of Final Submissions: 23 October 2008 Date of Judgment: 18 December 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1930.html


case_text: The Tribunal was, in my view, under no obligation to put the alleged contradictions to the appellant's wife for the purpose of enabling her to respond. The applicant relied on a decision of Marshall J in SZGSI v Minister for Immigration and Citizenship (2007) 160 FC 506. In that case Marshall J, with whom Moore and Finn JJ agreed on this point, held that s 424A can in certain circumstances require a notice to be sent to a family member where more than one family member is making an application for a protection visa. 30 That case dealt with contradictory evidence where one family member had said something that prejudiced another family member's application and that information was taken into account against the second family member. In that context it was held that a s 424A notice should be issued. That is not the present case. The present case, as has already been observed, was one in which the wife's evidence was simply not believed and was not given any weight by the Tribunal in coming to its decision. It was therefore not brought into account to the detriment of the appellant and was not a reason for affirming the decision under review.


case_text: In relation to the requests for adjournments his Honour found that the method in which they were dealt with did not constitute a failure to provide a hearing under s 425 of the Act but rather fell more within the ambit of a question of apprehended bias which the appellant had not pursued. His Honour stated that the conduct of the Tribunal was not sufficient to give rise to an apprehension of bias. He noted the appellant's evidence that was presented during the hearings. In relation to the appellant's claims that he should have received a s 424A notice in relation to the Tribunal member's findings that some of his claims were inconsistent and the fact that the Tribunal did not accept his wife's evidence, his Honour applied SZBYR v The Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 and held that s 424A did not apply in relation to inconsistencies in evidence or concerns regarding credibility. 17 His Honour also noted that the appellant and his wife were aware of this issue throughout the hearing process and were able to respond as they saw fit. Further, the Federal Magistrate found that the evidence given by each of the parties went to credibility and s 424A did not require the Tribunal to notify the appellant' or the appellant's wife that it had rejected the evidence of the other. 18 The notice of appeal to this court was filed on 12 December 2007. The appellant claimed that the Federal Magistrate failed to consider all of the issues relating to procedural fairness, failed to consider all of the grounds in the appellant's amended application dated 29 March 2007 and erred in making findings in relation to s 424A of the Act . Those findings concerned the issue of whether the date of the appellant's passport went to the appellant's credibility and an asserted requirement that the tribunal send a s 424A notice to the appellant's wife. 19 At the hearing this morning, counsel for the appellant developed three arguments. The first related to alleged breaches of the requirements of s 425 of the Act . The second alleged that there were certain breaches of the requirements of s 424A of the Act and the third was that two of the grounds appearing in the application for review before the Federal Magistrates Court were not dealt with by the Federal Magistrate. 20 I will deal first with the s 425 point. Section 425 of the Act provides that the "Tribunal must invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review". Counsel pointed to three matters which it was said gave rise to a constructive failure on the part of the Tribunal to observe the obligations imposed on it by s 425. The first was the refusal by the Tribunal at the end of the February hearing to accede immediately to an application made on the appellant's behalf for an adjournment of the hearing so that he could confer with his wife and return and give additional evidence if so minded. 31 There was therefore no occasion, in my opinion, under s 424A(1) for the notice to be given. There is another reason why that was not necessary. That reason is provided by the decision of the High Court in SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; 235 ALR 609 to which the learned Federal Magistrate referred, which makes it plain that where issues of credit are involved s 424A(1) is not engaged. 32 The second contravention of s 424A that was relied on was, as I have indicated, a failure to put to the appellant a statement appearing in support of his original application for a protection visa. That statement may have served as an antidote or partial antidote to the Tribunal's opinion that the appellant had given internally contradictory evidence by, on the one hand, asserting, as the Tribunal understood him, that he obtained a passport and a visa to enable him to leave Turkey after there had been a visit to a family home by police officers, which was not accepted because the passport on which the appellant travelled bore a date which indicated that it had been issued before the alleged incident with the police officers in Turkey. 33 For the purposes of s 424A it is first to be observed that there is no reference at all to the statement in the Tribunal's reasons and in any event it was plainly not a piece of information which the Tribunal considered would be the reason or part of the reason for affirming the decision under review. Further, the issue went to credit and for reasons already given, the High Court's decision in SZBYR makes it clear that in such cases no obligation arises under s 424A(1). 34 The final matter that I mention in this context was that the issue concerning the date of the passport was expressly raised in a s 424(A)(1) letter sent to the appellant and a full opportunity was given to the appellant to resolve the apparent inconsistencies. He did not do so. The letter, as it happens, was sent before the High Court decision in SZBYR was handed down and in all probability, had the Tribunal been aware of the High Court's decision, it may well have chosen not to send the notice anyway. The arguments advanced in support of the second ground are therefore rejected. 35 The third ground may shortly be dealt with. It is that grounds four and five in the appellant's amended application to the Federal Magistrates Court were not dealt with by the Magistrate. The two grounds appearing in those paragraphs were grounds dealing with alleged abuse of Kurds in Turkey based on country information, and secondly, an allegation that there was no evidence to support the Tribunal's findings that the applicant did not belong to a particular social group. 36 The Federal Magistrate's reasons record at paragraph 5 that counsel for the appellant submitted that his argument related to two areas. The first was procedural fairness and the second the operation of s 424A. Counsel, who appeared in this Court today and who was the same counsel who has appeared before the learned Federal Magistrate, confirmed that that indeed was what he advised the Court and that he did develop those two issues. Grounds four and five were not referred to in oral argument and an examination of the written submissions advanced by counsel for the appellant before the Federal Magistrate confirms that insofar as the matters raised by these grounds were referred to, they were referred to in the context of developing points under s 424A of the Act and were not pursued as separate arguments.


case_text: In any event, as I say, some issues raised under those grounds were dealt with in the context in which they had been argued and beyond that they did not assume sufficient significance to require attention by the learned Magistrate in his reasons. His failure to mention them and deal with them did not constitute jurisdictional error. In that regard I refer to and rely on the decision of the Full Court of this Court in Kovan Engineering (Aust) Pty Ltd v Gold Peg International Pty Ltd [2006] FCAFC 117 and, in particular to the passages commencing at paragraph [45] of their Honours' reasons. Accordingly, the third ground is also rejected. 39 The appeal should be dismissed with costs. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate: Dated: 18 March 2008 Counsel for the Appellant: T A Fernandez Counsel for the Respondent: M Felman Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 6 March 2008 Date of Judgment: 6 March 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/245.html


case_text: The next question is whether there was any error of law by the Tribunal in concluding that the effects, apparently able to be described as "epileptic" in their nature, of the glioma are also able to be comprehended within the delegate's acceptance of "epilepsy" as a war-caused disease, so that incapacity from the effects of the glioma should, even if the delegate made a factual mistake, be regarded as war-caused. Whatever the correctness of that conclusion, unfortunately for the applicant it does not appear to me to raise a question of law. Whether the Tribunal was factually correct about the distinction between and separateness of the incapacity caused by the glioma and incapacity caused by the accepted disease shortly described by the delegate as epilepsy only raises, in my opinion, a question of fact or, at worst, no more than a mixed question of law and fact, namely: what actually was/were the war-caused disease(s) from which the delegate determined the degree of incapacity of the veteran was over 70% (the first relevant requirement of s 24). Mixed questions of law and fact have been held by the Full Court not to raise a question of law: Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at [16] . 35 It was suggested by the applicant that "[t]he question of law in the present matter is whether the Tribunal had the power to effectively ignore the acceptance of epilepsy as a war-caused condition when considering whether the veteran was eligible to be paid pension at the Special Rate given by section 24 of the Act ." Leaving aside the issue as to whether the Tribunal did so "effectively ignore the acceptance of epilepsy", the formulation does not encourage a conclusion that it is a question of law unmixed with fact. Nor, in substance, is it.


case_text: The Tribunal is said to have erred in law by upsetting a finding of fact favourable to the late veteran and the applicant which had allegedly been made by the primary decision maker. In Fitzmaurice v Repatriation Commission (1989) 19 ALD 297 Wilcox and Foster JJ held that the Tribunal was able to examine both the claim to entitlement and assessment of the rate of pension on a review by the Tribunal of a substituted decision by the Board under s 175(1)(b) (now subs (1)(c)) of the Act . However in Re Cotterell & Repatriation Commission (2000) 31 AAR 184 Blow DP (as Blow J then was) said at [17]: "the structure of s 19 [of the Act ] makes it abundantly clear that, in assessing the rate of pension payable in respect of a war-caused condition, no decision-maker at any level has the freedom to reconsider, ignore or reverse the determination that that condition is war-caused." 24 The applicant sought to distinguish Fitzmaurice 19 ALD 297, arguing that the present was a case not of review of a substituted decision, made by the Tribunal under s 175(1)(c) , but a review of an affirmed decision under s 175(1)(a). Section 175(1) provides: (1) Where a decision made by the Commission has been reviewed by the Board upon a request made under section 135 and affirmed, varied or set aside, then, subject to section 29 of the Administrative Appeals Tribunal Act 1975 , application may be made to the Administrative Appeals Tribunal for a review: ... (c) of the decision made by the Board in substitution for the decision so set aside; 25 The respondent argued that the Tribunal had essentially affirmed the decision under review on the basis that it was not reasonably satisfied "that the [late veteran]'s loss of earnings on his own account was due to war-caused incapacity alone", and this was unquestionably supported by the evidence before the Tribunal. Indeed, the respondent submitted that the Tribunal could not lawfully disregard the diagnosed brain tumour when making an assessment of why the late veteran had been prevented from returning to work: see s 24(1)(c). 26 In any case, the respondent submitted, the applicant was wrong in contending that the Tribunal could not look behind the acceptance of epilepsy as war-caused, because the original decision of the delegate was in fact a decision with respect to whether the late veteran's epilepsy was war-caused and the rate of pension which the late veteran was entitled to receive. The respondent relied on Fitzmaurice 19 ALD 279 and suggested that the construction of the then s 175(1)(b) by Wilcox and Foster JJ offers a clear guide to the construction of the present s 175(1)(a). Adopting this construction, the phrase "the decision of the Commission that was so affirmed" in s 175(1)(a) of the Act means the decision of the Commission in relation to both entitlement and assessment. It may be noted that the phrase used in the current s 175(1)(b) is "the decision of the Commission as so varied", but, in the version of the Act considered in Fitzmaurice 19 ALD 297, the phrase "the decision made by the Board in substitution for the decision so set aside" (which now appears in s 175(1)(c)) , appeared in subs (1)(b). 27 The Tribunal gave an ex tempore decision and noted that its "oral reasons may reflect the inelegance" of such a decision. The transcribed reasons for decision should be reviewed respectfully and, to a degree, charitably. 28 It is first necessary to identify what the Tribunal did decide. In my opinion the respondent's suggested answer to this is correct. 36 In saying this, I assume that Blow DP was correct in Cotterell 31 AAR 184 in saying (at [17]): The structure of the Act is such that any claim to have a medical condition accepted as war-caused must be considered on its merits, free of the fetters of any earlier determination in respect of any related medical condition, whereas the structure of s.19 makes it abundantly clear that, in assessing the rate of pension payable in respect of a war-caused condition, no decision-maker at any level has the freedom to reconsider, ignore or reverse the determination that that condition is war-caused. I am also prepared to assume that Blow DP's categorisation at [19] of Fitzmaurice 19 ALD 297 as "authority for the proposition that, on a review of a decision by [the] Tribunal, the whole of the decision can be reviewed", is correct and that such a conclusion need not detract from Blow DP's primary point in a case such as the present where all that was at issue was the quantum (and type) of pension payable.


case_text: Section 24(1)(c) contains a requirement that incapacity from war-caused injury or war-caused disease, or both, "alone" prevents a veteran from continuing to undertake remunerative work that the veteran was undertaking. In Flentjar v Repatriation Commission (1997) 48 ALD 1 at 5 Branson J (Beaumont and Merkel JJ agreeing) expressed that requirement in the form of a question: ... is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work? 14 Flentjar 48 ALD 1 was followed in Repatriation Commission v Hendy (2002) 76 ALD 47. There, the Full Court held at [37] that: The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the veteran from working. The decision maker is required to take into account any factor that plays a part or contributes to a veteran's being prevented from continuing to engage in remunerative work. (Emphasis in original.) 30 The Board found it convenient to deal with the s 24 issues by answering a series of questions thought in Flentjar 48 ALD 1 to be appropriate. One question the Board considered was: "[i]s the veteran, by reason of war-caused injury or ... disease ... prevented from continuing to undertake [remunerative] work?" In the course of giving an affirmative answer to this question, the Board said: However the event which precipitated his leaving work was not his post traumatic stress disorder (as was contended by his wife in her evidence to the previous Board) but a 'seizure', in April 2002. The following day, on the basis of the history taken from the veteran and his wife, Dr Ell, consultant neurologist considered there had been a 'gelastic seizure'. In Dr Ell's report the doctor recorded that the veteran was not permitted to drive. (On the basis of this diagnosis the Repatriation Commission allowed the veteran's claim for epilepsy which was made on 29 April 2002.) 31 The Board therefore considered the next Flentjar question: was the war-caused injury/disease "the only factor or factors preventing the veteran from continuing to undertake that work?" (Emphasis in original.) The Board answered that question by saying: The Board came to the view that it was more likely than not that the veteran is prevented from continuing to work by both his post traumatic stress disorder and his brain tumour. It cannot therefore be said that it is his accepted disabilities alone that prevent him from being able to continue to work. 32 In the Tribunal's proceedings, the respondent filed a Statement of Facts and Contentions. This made it clear that the respondent was only asserting that the veteran had not satisfied the two "alone" tests posited by s 24.


case_outcome: approved

case_text: The Tribunal is said to have erred in law by upsetting a finding of fact favourable to the late veteran and the applicant which had allegedly been made by the primary decision maker. In Fitzmaurice v Repatriation Commission (1989) 19 ALD 297 Wilcox and Foster JJ held that the Tribunal was able to examine both the claim to entitlement and assessment of the rate of pension on a review by the Tribunal of a substituted decision by the Board under s 175(1)(b) (now subs (1)(c)) of the Act . However in Re Cotterell & Repatriation Commission (2000) 31 AAR 184 Blow DP (as Blow J then was) said at [17]: "the structure of s 19 [of the Act ] makes it abundantly clear that, in assessing the rate of pension payable in respect of a war-caused condition, no decision-maker at any level has the freedom to reconsider, ignore or reverse the determination that that condition is war-caused." 21 In the present case the Tribunal said of Re Cotterell 31 AAR 184: The learned Deputy President in that matter pointed out that when a matter of assessment is before this Tribunal it is not open to the respondent to challenge any prior decision which has determined that a condition is war caused. That is not to say, however, that that takes away from this Tribunal the responsibility to make its own decision standing in the shoes of the decision maker having regard to such medical reports as have been put before it. 22 The applicant submitted that it was not open to the Tribunal, as a matter of power or jurisdiction, to look behind the acceptance of epilepsy as war caused. 23 According to the applicant, the Tribunal was not at liberty to consider the acceptance of epilepsy afresh; the question of epilepsy being war-caused was not part of the "chain of review" before the Board and the Tribunal. All that was under review was the veteran's eligibility for the Special Rate of pension. Had the Tribunal approached the matter in the way suggested by the applicant then it might have concluded that the incapacity suffered by the late veteran could have been characterised as incapacity from war-caused injury or disease alone. 36 In saying this, I assume that Blow DP was correct in Cotterell 31 AAR 184 in saying (at [17]): The structure of the Act is such that any claim to have a medical condition accepted as war-caused must be considered on its merits, free of the fetters of any earlier determination in respect of any related medical condition, whereas the structure of s.19 makes it abundantly clear that, in assessing the rate of pension payable in respect of a war-caused condition, no decision-maker at any level has the freedom to reconsider, ignore or reverse the determination that that condition is war-caused. I am also prepared to assume that Blow DP's categorisation at [19] of Fitzmaurice 19 ALD 297 as "authority for the proposition that, on a review of a decision by [the] Tribunal, the whole of the decision can be reviewed", is correct and that such a conclusion need not detract from Blow DP's primary point in a case such as the present where all that was at issue was the quantum (and type) of pension payable.


case_text: Flentjar 48 ALD 1 was followed in Repatriation Commission v Hendy (2002) 76 ALD 47. There, the Full Court held at [37] that: The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the veteran from working. The decision maker is required to take into account any factor that plays a part or contributes to a veteran's being prevented from continuing to engage in remunerative work. (Emphasis in original.)


case_text: In Boland v Yates Property Corporation Pty Ltd [1999] HCA 64 ; (1999) 167 ALR 575 , 653-54 at [286] [287] Callinan J (although obiter) referred to this method: 286. This court itself has in any event clearly accepted what has been described as the hypothetical development method of valuation. The method was described by Starke J in Australian Provincial Assurance Association Ltd v Commissioner of Land Tax: In the present case the valuation has been made on what has been variously described as the hypothetical building or development basis. The parties agree that the building upon the land does not return the rental that might reasonably be expected from it. So the rental from that building is discarded, and it is assumed that the land is vacant. The erection of a new building on the land is envisaged, providing office accommodation, which is the best method of obtaining the advantages that the land possesses. Accordingly a building is planned to obtain the full benefit of those advantages. Its cost is estimated, the gross annual rentals or receipts from it are estimated, and from these rentals or receipts are deducted various annual outgoings and interest charges which are also estimated to obtain the net receipts. The capital value of the land is then ascertained by capitalising the net receipts at some given rate of interest, and in this case, I may add, the parties were content to work upon a 4.5% basis. The unimproved value of the land is then deduced by deducting from the capital value so obtained the cost of the erection of the building. Adopting this method of ascertaining the unimproved value of the assessed land, I find as a fact that its unimproved value on 30 June 1939, was the sum of [sterling]76,154. 287. The method is neither novel nor especially difficult, and, as with all methods, requires the making of value judgments.


case_text: The methodology was also explained by Roper J (as he then was) in Closer Settlement Ltd v The Minister (1942) 17 LGR (NSW) 62 (at 65): In arriving at the value of land which is suitable for subdivision a familiar and appropriate method ... is to estimate from whatever comparable sales of land in subdivision are available the price which would be realized by the land when sold; then to estimate the costs involved in the subdivision and the length of time that the realization would take, making provision for the payment of rates and for interest on money outstanding; and an estimated net return on the subdivision is obtained. It is of course clear that a person purchasing land in globo for the purpose of subdividing it would not pay the sum of money which is the present equivalent of that estimated return. Many factors in the calculation are speculative: the land in subdivision may not realize the prices which are at present expected, and the subdivision may take longer to realize than is at present anticipated. To compensate for the risk involved in the venture the purchaser would certainly discount the estimated returns. See also Port Stephens Shire Council v Tellamist Pty Ltd (2004) NSWCA 353 at [225] - [229] . 24 However, whichever method is used, it would be necessary for a valuer to use, or at least take account of, market transactions for the purpose of obtaining basic information: (see Alan Hyam, The Law Affecting Valuation of Land in Australia (3 rd ed 2004) by at 126, and the above comments of Roper J (as he then was) in Closer Settlement 17 LGR (NSW) 62). This would include all relevant sales data available to a valuer which could impact on his valuation. 25 In my view, the appropriate way to proceed is to start with the question of whether the valuation complies with s 75-10(3) of the GST Act. To be a compliant valuation it must accord with the Determination. If a valuation complies with the Determination, then the valuation is valid and operative for the purposes of s 75-10(3). However, if the valuation fails to comply with the Determination, then the question will arise as to the consequences of such failure. 38 The Commissioner contended that it appeared to be Mr Nicodimou's view that the relevant valuation principles positively forbade him from considering any information that post-dated 1 July 2000 in order to ascertain the market value of the strata units as at 1 July 2000. I agree that, if Mr Nicodimou held this view, it would be a fundamentally incorrect view: see, eg, McCathie v Federal Commissioner of Taxation [1944] HCA 9 ; (1944) 69 CLR 1 , 16-17; Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426 , 436; and Closer Settlement 17 LGR (NSW) 62.


case_text: Mason J (as he then was, with Gibbs J (as he then was) agreeing) said (at 329): When sub-s (7) directs the Permanent Head to "have regard to" the costs, it requires him to take those costs into account and to give weight to them as a fundamental element in making his determination. The Commissioner also referred to The Queen v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69 ; (1982) 158 CLR 327 , 333 per Gibbs CJ and Faheem Khalid Lodhi v R [2007] NSWCA 360 , at [30] per Spigelman CJ.