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


case_outcome: applied

case_text: applicant did argue before the Tribunal that his underlying condition had been aggravated by his employment in the sense contemplated by the definitions in s 4 of the Act. The argument was not developed much but this does not detract from the fact that the argument was put. The Tribunal was obliged to turn its mind to the argument and to deal with the question of aggravation. It was a significant part of the applicant's case before the Tribunal. The argument was seriously advanced by the applicant and was worthy of serious consideration. Whilst it is true that the Tribunal is not required to consider and address every submission made to it, serious submissions of the type to which I have just alluded must be addressed ( Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 at 276 277 per Jenkinson J). It is an error of law for the Tribunal not to consider such a submission and not to reveal its consideration of that submission in its Reasons for Decision (see Hartnett v Migration Agents Registration Authority [2004] FCA 50 at [50] ; and Australian Postal Corporation v Sellick [2008] FCA 236 ; (2008) 245 ALR 561 at [88] [89] (pp 579 480)). This statement of principle is consistent with the more general statements of principle directed to giving content to the concept of error of law made by the Full Court in Repatriation Commission v Hill [2002] FCAFC 192 ; (2002) 69 ALD 581 at [59] (pp 597 598).


case_outcome: cited

case_text: was submitted on behalf of the applicant that an ailment will be aggravated within the meaning of those expressions in the definitions contained in s 4 of the Act if it becomes more severe or is hastened in some way. The terms aggravation and acceleration in the present context have been given their normal English meanings in judgments of this Court (see Casarotto v Australian Postal Commission [1989] FCA 116 ; (1989) 86 ALR 399 at 404 405 and Martin v Australian Postal Corporation [1999] FCA 655 at [22] [28]).


case_title: Repatriation Commission v Hill [2002] FCAFC 192 ; (2002) 69 ALD 581


case_text: For these reasons, the 'information' concerning the student visa application was not 'part of the reason' for affirming the delegate's decision and therefore did not engage the obligations in s 424A(1): SZCJH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1660 at [23] . Alternatively, the existence of these independent bases for the decision means that a grant of relief would lack utility: cf. SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 at [232] , [233].


case_outcome: considered

case_title: SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2


case_text: Against the legislative background outlined above, the issue is whether the 6 month time limit on exercising the compulsory acquisition power is a condition and restriction "which must be observed" ( Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia [1932] HCA 9 ; (1932) 47 CLR 1 at 7) or a "condition, limitation or direction" which has the effect of "appointing a course to be followed" ( R v Wallis ; Ex parte Employers Association of Wool-Selling Brokers and H V McKay Massey Harris Pty Ltd [1949] HCA 30 ; (1949) 78 CLR 529 at 550), in each case, to the exclusion of the general power in s 1322(4)(d).


case_outcome: referred to

case_text: Mitsui points to further extrinsic material which it submits is also relevant to understanding the policy considerations underpinning Part 6A.2 of the Act . I have set these out below. These were intended to emphasise that, in part, the policy considerations and legislative objective were to remove the potential of minority shareholders from demanding a price for their securities that is above fair value, a practice commonly described as 'greenmailing': Capricorn Diamonds Investments Pty Ltd v Catto [2002] VSC 105 ; (2002) 5 VR 61 at [28] cited with approval by Steytler P in Batoka Pty Ltd v Conocophillips WA-248 Pty Ltd [2006] WASCA 44 at [40] . 56 Hanwha submits that, having regard to the legislative background material and the legislative scheme itself, the intention may be discerned that the 90% holder exercise its compulsory acquisition power, or gift, within the relevant 6 month period or 'lose that right' to echo the words of the Parliamentary Joint Committee. I do not agree. The material to which I have referred does not give paramountcy to the interests of minority shareholders. The legislation is a balancing exercise involving a number of competing considerations. Indeed there is an important national economic perspective discernible particularly in the Explanatory Memorandum. Protection of minority shareholders is but one of a number of objects. For example, one primary object in the legislative scheme identified by Steytler P in Batoka [39] was that shares are acquired at fair value. 57 This intention, Hanwha says, is also manifest in the words "only if" and its location within s 664AA , and that to permit s 1322(4)(d) to override the time limit expressed in such emphatic terms in s 644AA is to deny meaning to the word "only". 58 Hanwha submits that in its context, the word "only" has the role of meaning "not otherwise", rather than that of merely providing a non imperative emphasis to the time limit. There is no basis, it contends, for not giving full force and effect to the meaning of the word "only" in circumstances where a fixed time period is prescribed in emphatic terms in relation to the exercise of a statutory power to expropriate shares.


case_outcome: discussed

case_text: Hanwha contends that s 1322(4)(d) is not a relevant source of power for the Court to extend time under s 664AA(b) of the Act . It points to the context of Part 6A.2 Division 1 of the Act , by which a minority shareholder is at risk of having his or her shares compulsorily acquired by a 90% holder. Hanwha submits that the time limit in s 664AA(b) has the effect that, at the end of the period of 6 months, such a person will know whether his or her shares remain at risk of being compulsorily acquired and, if they do, at what price. This, it says, is a perfectly reasonable requirement in a legislative scheme which seeks to balance conflicting commercial interests of this character. It follows, so Hanwha contends, that a 90% holder, who wishes to avail himself of the power to compulsorily acquire, must act within the time period of 6 months set out in s 664AA: cf BP Australia Ltd v Brown (2003) 58 NSWLR 332 per Spigelman CJ in at [115]. 52 In concluding that s 1322(4)(d) had to yield to the specific provisions of s 1317HD(2), Byrne J followed not only David Grant but also BP Australia Ltd , which was very similar to Newtronics, involving as it did an attempt to rely upon s 1322(4)(d) in order to extend the statutory time limit prescribed by s 588FF(3) of the Act for liquidators bringing an application to the Court for orders with respect to voidable transactions. 59 However, I do not consider the use of the word "only" to be determinative of the question. I respectfully agree with the observations of Spigelman CJ in BP Australia Ltd. There, the Chief Justice, with whose judgment the other members of the Court agreed, considered the significance of the word "only". He said at [88]: The word "only" in a time limitation statutory provision can characterise the provision as a "time so emphatically prescribed". ( Texel Pty Ltd v Commonwealth Bank of Australia [1994] 2 VR 298 at 300; per Hayne J, in a case under s 459G which was a precursor of David Grant v Westpac ) . However, the use of the word "only" is not of itself determinative. (See eg Emanuele ) . Its force is affected by the relevant statutory scheme considered as a whole, as the analysis in David Grant v Westpac shows. 74 Thirdly, in BP Australia Ltd, the Court regarded the recognition in the Harmer Report (General Insolvency Inquiry (ALRC 45)) of the considerable commercial uncertainty and inconvenience of "general delays associated with the winding up of insolvent companies" as the policy behind the abridgement of the period within which a transaction may be avoided, and which led to the introduction of the phase "may only be made" in s 588FF(3): at 343-344. In Gordon v Tolcher , the High Court cited the Harmer Report to the same effect in relation to "inordinate delays in commencing proceeding in respect of voidable transactions" (at [38]). No such consideration applies with respect to s 664AA. 78 Chapter 6 is not, in my opinion, a self contained and complete code for the resolution of disputes involving the statutory process: cf Emanuele at p 56 per Kirby J; BP Australia Ltd per Spigelman CJ at [79].


case_text: It is for the plaintiff to satisfy the Court that the justice of the case requires that the extension sought be granted: Newtronics at [40]; cf Brisbane South Regional Health Authority v Taylor [1996] HCA 25 ; (1996) 186 CLR 541 at 554.


case_text: Mitsui points to further extrinsic material which it submits is also relevant to understanding the policy considerations underpinning Part 6A.2 of the Act . I have set these out below. These were intended to emphasise that, in part, the policy considerations and legislative objective were to remove the potential of minority shareholders from demanding a price for their securities that is above fair value, a practice commonly described as 'greenmailing': Capricorn Diamonds Investments Pty Ltd v Catto [2002] VSC 105 ; (2002) 5 VR 61 at [28] cited with approval by Steytler P in Batoka Pty Ltd v Conocophillips WA-248 Pty Ltd [2006] WASCA 44 at [40] . 79 It is of significance too, in arriving at this conclusion, that wide curative powers are found in s 1325D(1)(a) of the Act which enables the Court to declare, for example, a document not to be invalid merely because a person contravened a provision of Chapter 6, 6A, 6B or 6C. Pt 6A.2 in which s 664AA(b) sits is within Chapter 6A. This was a matter which was also considered to be significant by Mandie J when the offer period under s 650C(1) of the Act and the period for giving notices under s 650D(1)(c)(ii) of the Act were extended pursuant to s 1322(4)(d). In so concluding, David Grant was distinguished: Pinnacle VRB Ltd v Reliable Powerline [2001] VSC 262 at [17] - [20] . A similar approach was taken by Warren J in Capricorn at [260].


case_title: David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43 ; (1995) 184 CLR 265

case_text: A particular application of s 1322(4)(d) was considered by the High Court of Australia in David Grant & Co Pty Ltd v Westpac Banking Corp [1995] HCA 43 ; (1995) 184 CLR 265. In that case the appellant companies had been served with statutory demands but had failed to comply with the demands within 21 days pursuant to s 459E(2)(c). They each also had failed to apply to the Supreme Court of Victoria in accordance with s 459G for an order setting aside the demands. Section 459G(2) provided that an application for such an order "may only be made within 21 days" after review of the demand. The appellants did serve such applications but outside the statutory 21 day period. 44 Gummow J, with whom the other four members of the Court agreed, predicated his reasons by observing that the "difficulty in construction arises, perhaps not so much from the particular text of either s 459G or s 1322 , as from the interrelation between the two provisions in circumstances where the enactment of s 1322 preceded that of s 459G , and the earlier section is general and the later section specific in its operation." 45 So much may also be said about the present case. 50 Importantly, Byrne J observed that the right to apply to the court in David Grant under s 459G(1) and the time limit in subs(2) were each in terms very similar to those contained in s 1317HD(2) with which his Honour was concerned. [15] 51 Byrne J, too, relied upon the presence of the word "only" as pointing in context, to a "severe application of the time limit".[18] His Honour also placed weight on the "surprising" location of the word "only" which might otherwise have been expected to be located immediately before the phrase "within 6 years after". [15] 52 In concluding that s 1322(4)(d) had to yield to the specific provisions of s 1317HD(2), Byrne J followed not only David Grant but also BP Australia Ltd , which was very similar to Newtronics, involving as it did an attempt to rely upon s 1322(4)(d) in order to extend the statutory time limit prescribed by s 588FF(3) of the Act for liquidators bringing an application to the Court for orders with respect to voidable transactions. 54 To adapt what was said by Gummow J in David Grant (p 277) in relation to the time limits in s 459G(2) and (3) of the Act , the issue is whether an integer or element of the power created by s 664A is its exercise by lodging the compulsory acquisition notice for the acquisition with ASIC within the time specified. Again, to adapt what was said by Isaacs J in The Crown v McNeil [1922] HCA 33 ; (1922) 31 CLR 76 at 100-101, referred to by Gummow J in David Grant at p 277, is it a condition of the gift in s 664A that the time period in s 664AA be observed and, unless this is so, the gift can never take effect? 59 However, I do not consider the use of the word "only" to be determinative of the question. I respectfully agree with the observations of Spigelman CJ in BP Australia Ltd. There, the Chief Justice, with whose judgment the other members of the Court agreed, considered the significance of the word "only". He said at [88]: The word "only" in a time limitation statutory provision can characterise the provision as a "time so emphatically prescribed". ( Texel Pty Ltd v Commonwealth Bank of Australia [1994] 2 VR 298 at 300; per Hayne J, in a case under s 459G which was a precursor of David Grant v Westpac ) . However, the use of the word "only" is not of itself determinative. (See eg Emanuele ) . Its force is affected by the relevant statutory scheme considered as a whole, as the analysis in David Grant v Westpac shows. 63 David Grant and the other cases, involving as they did statutory provisions concerning applications to a Court, may be distinguished from cases such as the present, on the basis that conformity with the procedural time limit was a pre-condition to the jurisdiction of the Court from which relief was claimed: David Grant at 276-277; Emanuele at 152 per Kirby J; Newtronics at [25]. 67 I have concluded that s 664AA(b), despite its strong language, does not operate to exclude the operation of s 1322(4)(d). In so finding, I have been mindful that this new provision postdates the commencement of s 1322(4)(a) and the observations in that respect, generally, of the High Court in David Grant at 275-276. 68 However in that case, in addition to the 'jurisdiction' point of difference, it was also of significance to the result that the legislative scheme established by the new Pt 5.4 itself contained specific provisions conferring upon the court an express power to extend time, firstly in relation to the period for compliance with the statutory demand and secondly in relation to the relevant 6 month period. Other aspects within the statutory regime emphasised the importance of s 459G as an integral part of the particular scheme established by Pt 5.4. In particular insurmountable difficulties would have arisen, were an extension of time available under s 1322(4)(d) in relation to the presumption of insolvency under s 459C(2) and the operation of the definition of the 'period for compliance' with the statutory demand set out in s 459F(2): David Grant at pp 277-278. There are no similar difficulties associated with the compulsory acquisition provisions under Pt 6A.2. 69 Section 669, contained in Chapter 6 of the Act , invests ASIC with wide powers to exempt persons from provisions of the Chapter or to declare that the Chapter applies to a person as if specified provisions were omitted, modified or varied. These powers are expressed widely enough to have enabled ASIC in effect to have removed the time limit under s 664AA(b) or to have extended it. They are not however curial remedies. 70 I accept the following further submissions made by Mitsui. First, the issuance of a compulsory acquisition notice depends upon the appointment of an independent expert, from a panel nominated by ASIC, who must prepare a report to be issued simultaneously with the notice. The completion of the report by the independent third party is a necessary predicate to the issuance of the compulsory acquisition notice: s 664C(2)(b)(ii). 79 It is of significance too, in arriving at this conclusion, that wide curative powers are found in s 1325D(1)(a) of the Act which enables the Court to declare, for example, a document not to be invalid merely because a person contravened a provision of Chapter 6, 6A, 6B or 6C. Pt 6A.2 in which s 664AA(b) sits is within Chapter 6A. This was a matter which was also considered to be significant by Mandie J when the offer period under s 650C(1) of the Act and the period for giving notices under s 650D(1)(c)(ii) of the Act were extended pursuant to s 1322(4)(d). In so concluding, David Grant was distinguished: Pinnacle VRB Ltd v Reliable Powerline [2001] VSC 262 at [17] - [20] . A similar approach was taken by Warren J in Capricorn at [260].


case_text: However, I do not consider the use of the word "only" to be determinative of the question. I respectfully agree with the observations of Spigelman CJ in BP Australia Ltd. There, the Chief Justice, with whose judgment the other members of the Court agreed, considered the significance of the word "only". He said at [88]: The word "only" in a time limitation statutory provision can characterise the provision as a "time so emphatically prescribed". ( Texel Pty Ltd v Commonwealth Bank of Australia [1994] 2 VR 298 at 300; per Hayne J, in a case under s 459G which was a precursor of David Grant v Westpac ) . However, the use of the word "only" is not of itself determinative. (See eg Emanuele ) . Its force is affected by the relevant statutory scheme considered as a whole, as the analysis in David Grant v Westpac shows. 60 In Emanuele v Australian Securities Commission [1997] HCA 20 ; (1996) 188 CLR 114 the High Court gave consideration to s 459P of the then Corporations Law which provided that an application by the Commission for a company to be wound up in insolvency "may only" be made with the leave of the Court. 63 David Grant and the other cases, involving as they did statutory provisions concerning applications to a Court, may be distinguished from cases such as the present, on the basis that conformity with the procedural time limit was a pre-condition to the jurisdiction of the Court from which relief was claimed: David Grant at 276-277; Emanuele at 152 per Kirby J; Newtronics at [25]. 65 In Emanuele, Kirby J said at 153: 'In the morass of modern legislation, it is easy enough, even for skilled and diligent legal practitioners (still more lay persons who must conform to the law) to slip in complying with statutory requirements. The Law is a case in point. Its complexity and detail is such that it has necessitated, within a short time of its enactment, the passage of the First Corporate Law Simplification Act 1995 (Cth). A number of further stages of simplification are promised. An undue rigidity in insisting upon strict compliance with all of the procedural requirements of the Law could become a mask for injustice and a shield for wrong-doing. Against that risk, courts generally retain the facility to cure slips and to repair oversights in proceedings before them, in appropriate cases where justice requires it.' 66 Whether s 664AA(b) is such a procedural requirement lies at the heart of the question. 78 Chapter 6 is not, in my opinion, a self contained and complete code for the resolution of disputes involving the statutory process: cf Emanuele at p 56 per Kirby J; BP Australia Ltd per Spigelman CJ at [79].


case_title: Gordon v Tolcher (in his capacity as Liquidator of Senafield Pty Ltd (in Liq)) & Anor [2006] HCA 62 ; (2006) 231 ALR 582

case_text: In Gordon v Tolcher (in his capacity as Liquidator of Senafield Pty Ltd (in liq)) & Anor [2006] HCA 62 ; (2006) 231 ALR 582 at [37] , the High Court saw the relevant distinction, in relation to the time period in s 588FF(3) of the Act , being whether the provision in the section as to time was of the essence of the provision or whether the provision in the section was to be "characterised merely as a time stipulation of a procedural nature". 74 Thirdly, in BP Australia Ltd, the Court regarded the recognition in the Harmer Report (General Insolvency Inquiry (ALRC 45)) of the considerable commercial uncertainty and inconvenience of "general delays associated with the winding up of insolvent companies" as the policy behind the abridgement of the period within which a transaction may be avoided, and which led to the introduction of the phase "may only be made" in s 588FF(3): at 343-344. In Gordon v Tolcher , the High Court cited the Harmer Report to the same effect in relation to "inordinate delays in commencing proceeding in respect of voidable transactions" (at [38]). No such consideration applies with respect to s 664AA. 75 In Gordon v Tolcher , the Court considered the 3 year period within which to bring applications under s 588FF(3) to be immutable by rule of Court, in part because s 588FF(3)(b) specifically provided a judicial power to extend time: at [41]. The existence of a wider regulatory power to modify Chapter 6 is not a reason for discerning an intention to exclude the applicability of the judicial power under s 1322(4)(d). In the context of a complex piece of legislation such as the Act , there is no reason to assume that a role allocated to the regulator should be the foundation for contracting the scope of an otherwise broadly expressed power given to the Court. 76 On the contrary, the whole point of the power under s 669 is to allow a considerable measure of flexibility in the operation of Chapter 6 and such a fundamental legislative intention entirely supports the continued applicability of s 1322(4)(d) under Chapter 6. 77 The decisions, to which I have referred, which have limited the applicability of s 1322(4)(d) in relation to other provisions of the Act concern provisions that have significantly different legislative purposes to relevant provisions of Chapter 6. They do not concern circumstances where the whole of the relevant Part is subject to amendment by ASIC and where the party seeking an extension of time is dependent upon the conduct of others in order to meet the statutory deadlines. They are therefore not decisive of the applicability of s 1322(4)(d) here.


case_text: The preliminary issue has been determined, in effect upholding the Cash Sum Objection ( Mitsui & Co Ltd v Hanwha (HK) Co Ltd [2007] FCA 2070). Mitsui accordingly cannot, without further order of the Court, seek to compulsorily acquire the ordinary shares, as the 6 month period for issuing a notice of compulsory acquisition has ended. The Court now requires to determine Mitsui's application for the Extension of Time Order in this proceeding, to enable it to lodge with ASIC and despatch to Hanwha and Sempurna further compulsory acquisition notices. 20 By consent orders made on 25 October 2007, Mitsui was granted leave to refer to and rely, in this action, on the affidavit of Hirofumi Matsuyama sworn 27 March 2007, the affidavit of Mark Frank Gerus sworn 26 April 2007 and the second affidavit of Hirofumi Matsuyama sworn 9 October 2007, all filed in Federal Court Action No WAD 63 of 2007. In the course of the hearing the third affidavit of Hirofumi Matsuyama sworn 9 November 2007 in the other action was , without objection, also read. 21 Part 6A.2 Division 1 of the Act provides for the compulsory acquisition of minority securities by a 90% holder of securities in the subject entity. The procedure took effect from 13 March 2000. 124 Furthermore, in this case there is no evidence of a blatant disregard by Mitsui of the requirements of the Act : Re Wave Capital Ltd at [29]. Rather, the need for this application is the consequence of the determination of the preliminary issue in the related proceeding, where I found that the Notice did not contain a "cash sum", for which Mitsui, as a 90% holder, proposed to acquire Hanwha's ordinary shares in SAH, as provided in s 664C(2) of the Act : Mitsui & Co Ltd v Hanwha (HK) Co Ltd [2007] FCA 2070.


case_text: In Newtronics Pty Ltd v Gjergja (2007) 63 ACSR 611, Byrne J in the Supreme Court of Victoria held that s 1322(4)(d) could not be called in aid to extend the 6 year time limit imposed by the then Corporations Act s 1317HD(2) for the commencement of proceedings under that section. 49 Section 1317HD(2) was in these terms: '(2) Proceedings under this section may only be begun within 6 years after the contravention.' 52 In concluding that s 1322(4)(d) had to yield to the specific provisions of s 1317HD(2), Byrne J followed not only David Grant but also BP Australia Ltd , which was very similar to Newtronics, involving as it did an attempt to rely upon s 1322(4)(d) in order to extend the statutory time limit prescribed by s 588FF(3) of the Act for liquidators bringing an application to the Court for orders with respect to voidable transactions. 62 Accordingly, the use of the word "only" is but one ingredient in the constructional spectrum: cf Newtronics at [29]. 63 David Grant and the other cases, involving as they did statutory provisions concerning applications to a Court, may be distinguished from cases such as the present, on the basis that conformity with the procedural time limit was a pre-condition to the jurisdiction of the Court from which relief was claimed: David Grant at 276-277; Emanuele at 152 per Kirby J; Newtronics at [25]. 82 It is for the plaintiff to satisfy the Court that the justice of the case requires that the extension sought be granted: Newtronics at [40]; cf Brisbane South Regional Health Authority v Taylor [1996] HCA 25 ; (1996) 186 CLR 541 at 554.


case_text: It is of significance too, in arriving at this conclusion, that wide curative powers are found in s 1325D(1)(a) of the Act which enables the Court to declare, for example, a document not to be invalid merely because a person contravened a provision of Chapter 6, 6A, 6B or 6C. Pt 6A.2 in which s 664AA(b) sits is within Chapter 6A. This was a matter which was also considered to be significant by Mandie J when the offer period under s 650C(1) of the Act and the period for giving notices under s 650D(1)(c)(ii) of the Act were extended pursuant to s 1322(4)(d). In so concluding, David Grant was distinguished: Pinnacle VRB Ltd v Reliable Powerline [2001] VSC 262 at [17] - [20] . A similar approach was taken by Warren J in Capricorn at [260].


case_title: Re Infomedia Pty Ltd (2000) 34 ACSR 682

case_text: However, "although s 1322 has been held to be a very wide provision which is to be construed liberally .... there are limits as to what the court can do under it ...." per Young J in Re Infomedia Pty Ltd (2000) 34 ACSR 682 at [9].


case_text: The majority were not persuaded, despite the strength of that language that the failure to comply with the relevant time limit should be rigidly applied. An order nunc pro tunc was made. Re Testro Bros Consolidated Ltd [1965] VR 18 is another case where despite emphatic statutory language: "Except by leave of the Court ... no action or proceeding shall be proceeded with or commenced ...", a nunc pro tunc order was made.


case_title: Re Wave Capital Ltd [2003] FCA 969

case_text: It has been said in a number of cases that s 1322(4) is a remedial provision to be construed liberally: Winpar Holdings Ltd v Goldfields Kalgoorlie Ltd [2001] NSWCA 427 at [74] ; Re Wave Capital Ltd [2003] FCA 969 at [29] . 83 In relation to the discretion afforded to the Court under s 1322 , French J said in Re Wave Capital Ltd at [29] that: 'Each application for the exercise of the court's relieving power will require consideration of all circumstances of the case to ensure that the indulgence sought is appropriate and does not undermine the requirements of the Act . ... the power conferred by s 1322 must be exercised having regard to the requirements of the purposes of the Corporations Act ... It must also be exercised having regard to the interests of all parties affected and the public interest in ensuring compliance with statute law and company constitutions. Evidence of a blatant disregard of the provisions of the Act or the constitution of the company may lead to refusal of relief ...' 84 I will now consider the events which occurred from the time of acquisition by Mitsui of the securities in SAH through to September 2007. These events bear on the question of the exercise of the Court's discretion. 85 On 31 July 2006, Mitsui and Mitsui Australia acquired their aggregate 94.2% interest in the ordinary shares of SAH (and the A class shares of SAH). By operation of s 664AA(b) of the Act , Mitsui had until 31 January 2007 to lodge compulsory acquisition notices with ASIC concerning Hanwha and Sempurna's ordinary (and A class) shares in SAH. 124 Furthermore, in this case there is no evidence of a blatant disregard by Mitsui of the requirements of the Act : Re Wave Capital Ltd at [29]. Rather, the need for this application is the consequence of the determination of the preliminary issue in the related proceeding, where I found that the Notice did not contain a "cash sum", for which Mitsui, as a 90% holder, proposed to acquire Hanwha's ordinary shares in SAH, as provided in s 664C(2) of the Act : Mitsui & Co Ltd v Hanwha (HK) Co Ltd [2007] FCA 2070.


case_title: R v Wallis ; Ex parte Employers Association of Wool-Selling Brokers and H V McKay Massey Harris Pty Ltd [1949] HCA 30 ; (1949) 78 CLR 529


case_text: Section 1322(4)(d) was found to have no application. The s 459G time limit was held to "define the jurisdiction of the court in respect of an application to set aside a statutory demand" (p 276) and "... attach a limitation or condition upon the authority of the court to set aside the demand" (p 277). The force of the term "may only" was: 'to define the jurisdiction of the court by imposing a requirement as to time as an essential condition of the new right conferred by s 459G. An integer or element of the right created by s 459G is its exercise by application made within the time specified. To adapt what was said by Isaacs J in The Crown v McNeil [1922] HCA 33 ; (1922) 31 CLR 76 at 100-1, it is a condition of the gift in subs (1) of s 459G that subs (2) be observed and, unless this is so, the gift can never take effect. The same is true of subs 3.' 47 It was also germane to the High Court's decision that the statutory scheme within Pt 5.4 contained its own powers and procedures for the Court to extend time, thereby introducing a degree of flexibility to mitigate hardship or unfairness which otherwise might flow from the strict application of s 459G. 54 To adapt what was said by Gummow J in David Grant (p 277) in relation to the time limits in s 459G(2) and (3) of the Act , the issue is whether an integer or element of the power created by s 664A is its exercise by lodging the compulsory acquisition notice for the acquisition with ASIC within the time specified. Again, to adapt what was said by Isaacs J in The Crown v McNeil [1922] HCA 33 ; (1922) 31 CLR 76 at 100-101, referred to by Gummow J in David Grant at p 277, is it a condition of the gift in s 664A that the time period in s 664AA be observed and, unless this is so, the gift can never take effect?


case_text: It has been said in a number of cases that s 1322(4) is a remedial provision to be construed liberally: Winpar Holdings Ltd v Goldfields Kalgoorlie Ltd [2001] NSWCA 427 at [74] ; Re Wave Capital Ltd [2003] FCA 969 at [29] .


case_title: Kelly v Fitzpatrick [2007] FCA 1080

case_text: The parties are agreed that, generally speaking, the matters which might be relevant in cases of this kind were summarised by Mowbray FM in Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 , adopted by Tracey J in Kelly v Fitzpatrick [2007] FCA 1080. The parties have put the submissions on that basis.


case_title: Mason v Harrington Corporation Pty Ltd [2007] FMCA 7


case_text: for the plaintiffs has pointed out that there is an apparent division of opinion in the authorities upon the critical question. The decisions of Austin J in Dean-Willcocks v ACG Engineering Pty Ltd (in liq) (2003) 45 ACSR 290; (2003) 21 ACLC 1226; [2003] NSWSC 353 and Campbell J in Sports Mondial favour the conclusion that the fund is held on trust for the deed creditors. After those decisions, Finkelstein J, in Commonwealth of Australia v Rocklea Spinning Mills Pty Ltd [2005] FCA 902 ; (2005) 145 FCR 220, drew attention to the possibility of an inconsistency between them and the earlier decision of Davies J in Federal Commissioner of Taxation v All Suburbs Car Repairs Pty Ltd (1994) 14 ACSR 753; (1994) 94 ATC 4712; (1994) 29 ATR 329. Davies J held that payments to the administrator were payments to him in his capacity as the agent of the company and consequently the sums received were the property of that company.


case_title: Federal Commissioner of Taxation v All Suburbs Car Repairs Pty Ltd (1994) 14 ACSR 753; (1994) 94 ATC 4712; (1994) 29 ATR 329


case_text: of the proceeding has been given to the interested creditors and none appears to oppose the grant of relief. However, there are no other parties to the proceedings. In particular, there are no parties representing the different interests involved. There is no contradictor. In my opinion, the proceeding is not constituted appropriately for the making of a declaration of right. The limits of the exercise of that jurisdiction in circumstances such as the present have been explained in Mentha v GE Capital Limited (1997) 154 ALR 565 at 571 575 (cf Gidley Re Aliance Motor Body Pty Ltd [2006] FCA 102 ; (2006) 150 FCR 345 at 347; Shepard v Sports Mondial of Australia Pty Ltd (in liq) (2005) 53 ACSR 746, [2005] NSWSC 432 at [18] [19]). However, those authorities establish that it is appropriate that the liquidators be given directions pursuant to s 511 of the Act as to the manner in which they can act in relation to the Administration Fund.


case_outcome: followed

case_text: J needed to consider the differences in the reasoning in those authorities in Lombe v Wagga Leagues Club Ltd (2006) 56 ACSR 387; (2006) 24 ACLC 298; [2006] NSWSC 3 at [53] [77]. In circumstances which I cannot distinguish in substance from the present facts, Barrett J in a careful and reasoned decision applied the reasoning of Davies J. It is appropriate to follow the decision of Barrett J unless I am satisfied that it is clearly wrong. Consistency of decision in relation to the Act is desirable. As I am not satisfied that the decision of Barrett J is clearly wrong, I propose to follow it and give directions accordingly. It is unnecessary for me to independently consider the alternative ground of the decision in Lombe , namely, the effect of termination of the deed of company arrangement. It was held that immediately after termination of the deed of company arrangement, the fund in question was the property of the Club no longer affected by any provision of that deed. It was, accordingly, applicable by the liquidator in the due course of winding up of the Club. The application is properly brought by the plaintiffs as liquidators. They should have their costs out of the assets of the company as an expense of the winding up but on the basis that this proceeding has been heard together with two others. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 8 September 2006 Counsel for the Plaintiffs: Ms V Whittaker Solicitor for the Plaintiffs: Kemp Strang Date of Hearing: 21 August 2006 Date of Judgment: 8 September 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1222.html


case_title: Mentha v GE Capital Limited (1997) 154 ALR 565


case_text: In this case, the submission of the applicant is that the damage caused to the applicant was in the form of hurt feelings, humiliation and embarrassment suffered as a result of the unlawful discriminatory behaviour on the part of the respondent. Both Mr O'Gorman SC and Mr Murdoch have referred me in this respect to comments of May LJ in Alexander v Home Office [1988] 2 All ER 118 at 122. Although the comments of his Lordship in that case were referable to a claim for racial discrimination, nonetheless they are in my view of assistance in the case before me: "As with any other awards of damages, the objective of an award for unlawful racial discrimination is restitution. Where the discrimination has caused actual pecuniary loss such as the refusal of a job, then the damages referable to this can be readily calculated. For the injury to feelings, however, for the humiliation, for the insult, it is impossible to say what is restitution and the answer must depend on the experience and good sense of the judge and his assessors. Awards should not be minimal, because this would tend to trivialise or diminish respect for the public policy to which the [Act] gives effect. On the other hand, just because it is impossible to assess the monetary value of injured feelings, awards should be restrained. To award sums which are generally felt to be excessive does almost as much harm to the policy and the results which it seeks to achieve as do nominal awards. Further injury to feelings, which is likely to be of a relatively short duration, is less serious than physical injury to the body or the mind which may persist for months, and in many cases for life."


case_text: Clearly each case turns on its own facts, and Counsel acknowledged that damages awarded in other cases are of limited use only. Indeed, a review of cases where damages have been awarded in respect of discriminatory conduct reveal a considerable variance in the sums awarded. Relevant cases include the following: • in Clarke 202 ALR 340 a deaf child who had been refused enrolment at a religious school thereby removing him from his primary school peers and friends at the time of his transition to high school was awarded damages of $20,000 plus interest. Madgwick J was of the view that the child would have been distressed and confused by the events, and viewed the respondent's conduct as hurtful, but that the harm to the child was likely to have been transient and not extreme. The sum of $20,000 was described by Sackville and Stone JJ on appeal as "relatively modest": Catholic Education Office v Clarke [2004] FCAFC 197 ; (2004) 138 FCR 121 at 149 • in Commonwealth of Australia v Evans [2004] FCA 654 an intelligence analyst who was transferred to a position with lesser responsibilities because she was perceived as showing insufficient commitment to her work because she took time off to care for her sick child was awarded damages of $12,000 • in Leslie v Graham [2002] FCA 32 where the applicant was subject to extreme sexual advances by her employer in the middle of the night and subsequently suffered emotional trauma, the court awarded her $16,000 • in Sheehan [2002] FMCA 95 , a member of a club who was prevented from entering the club with an assistance dog not on a lead was awarded $1,500 damages • in Grovenor [2000] FCA 1574 a woman with a guide dog who was the subject of verbal abuse by the owner of a furniture store, and who subsequently suffered a skin rash related to her distress, was awarded $1,000 damages • in Haar v Maldon Nominees (2000) 184 ALR 83 a woman with a guide dog who sat in the "party area" of McDonalds, and was told by a member of the staff that it would be better if she sat elsewhere in the restaurant because of the presence of her dog, was awarded $3,000 damages in circumstances where the Federal Magistrate was satisfied that the incident had caused the applicant to have diminished self-worth which continued three years after the incident.


case_text: The submissions of the applicant in relation to these outstanding issues may be summarised as follows: 1. The courts have ordered apologies to be made in appropriate circumstances. 2. Damages should be compensatory and not punitive. Damages in this case should be decided in a manner akin to general principles laid down in Haines v Bendall [1991] HCA 15 ; (1991) 172 CLR 60 and Hall v Sheiban Pty Ltd (1989) 20 FCR 217. 3. In particular, the Court may order a respondent to pay damages by way of compensation for hurt feelings, humiliation and embarrassment suffered by the applicant as a result of unlawful discriminatory behaviour on the part of the respondent. In assessing the damages payable, in this case it is of relevance that: a. the applicant has a psychiatric disability b. the applicant was unable to access the respondent's health services on a number of occasions, something that would obviously cause distress to a person with the applicant's medical condition and needs c. the discrimination on the part of the respondent resulted in the applicant being unable to utilise the assistance of his dogs when he wished to access the respondent's services, even though the dogs assisted the applicant to alleviate the effects of his disability d. there was wilful disregard of the applicant's rights by the respondent e. the respondent is a State government, and therefore should exhibit exemplary behaviour f. the applicant had little option but to accept the behaviour/treatment dealt out to him by the respondent g. the hurt suffered by the applicant continues almost three years after the events in question. 4. Although each case turns on its own facts, a case such as Clarke v Catholic Education Offic e (2003) 202 ALR 340 is of some guidance. 15 There is no dispute that damages which can be awarded in these circumstances are compensatory, not punitive: Hall v Sheiban 20 FCR 217 at 282, Clarke 202 ALR 340 at 360. As Lockhart J pointed out in Hall v Sheiban at 239 damages awarded should be based on a comparison of the position that the applicant would have been in if he had not been subjected to the discriminatory acts of the respondent, with the position he is in as a result of those acts. 17 Clearly each case turns on its own facts, and Counsel acknowledged that damages awarded in other cases are of limited use only. Indeed, a review of cases where damages have been awarded in respect of discriminatory conduct reveal a considerable variance in the sums awarded. Relevant cases include the following: • in Clarke 202 ALR 340 a deaf child who had been refused enrolment at a religious school thereby removing him from his primary school peers and friends at the time of his transition to high school was awarded damages of $20,000 plus interest. Madgwick J was of the view that the child would have been distressed and confused by the events, and viewed the respondent's conduct as hurtful, but that the harm to the child was likely to have been transient and not extreme. The sum of $20,000 was described by Sackville and Stone JJ on appeal as "relatively modest": Catholic Education Office v Clarke [2004] FCAFC 197 ; (2004) 138 FCR 121 at 149 • in Commonwealth of Australia v Evans [2004] FCA 654 an intelligence analyst who was transferred to a position with lesser responsibilities because she was perceived as showing insufficient commitment to her work because she took time off to care for her sick child was awarded damages of $12,000 • in Leslie v Graham [2002] FCA 32 where the applicant was subject to extreme sexual advances by her employer in the middle of the night and subsequently suffered emotional trauma, the court awarded her $16,000 • in Sheehan [2002] FMCA 95 , a member of a club who was prevented from entering the club with an assistance dog not on a lead was awarded $1,500 damages • in Grovenor [2000] FCA 1574 a woman with a guide dog who was the subject of verbal abuse by the owner of a furniture store, and who subsequently suffered a skin rash related to her distress, was awarded $1,000 damages • in Haar v Maldon Nominees (2000) 184 ALR 83 a woman with a guide dog who sat in the "party area" of McDonalds, and was told by a member of the staff that it would be better if she sat elsewhere in the restaurant because of the presence of her dog, was awarded $3,000 damages in circumstances where the Federal Magistrate was satisfied that the incident had caused the applicant to have diminished self-worth which continued three years after the incident. 21 In my view the effects of this incident on the applicant cannot be compared with, for example, serious interruption to education ( Clarke 202 ALR 340) or emotional trauma and career impact as a result of sexual harassment ( Leslie [2002] FCA 32). However, in my view the public humiliation and embarrassment occasioned to the applicant was clearly more patent than in either Grovenor [2000] FCA 95 or Haar 184 ALR 83. I consider the sum of $5,000 appropriate compensation, and order that interest at the annual rate of 5% be payable on this sum pursuant to s 51A(1)(a) Federal Court of Australia Act 1976 (Cth) to be calculated from 16 November 2004 when the cause of action arose.


case_title: Commonwealth of Australia v Evans [2004] FCA 654


case_text: While courts in human rights cases have sometimes ordered that apologies be made (for example, De Simone v Bevacqua (unreported, Supreme Court of Victoria, McDonald J, 15 September 1994), Zheng v Beamish [2004] FMCA 61 , Oberoi v Human Rights and Equal Opportunity Commission [2001] FMCA 34) , like many other judges before me, I consider that a court-ordered apology serves little purpose: Jones on behalf of the Executive Council of Australian Jewry v The Bible Believers' Church [2007] FCA 55 at [65] , Rawcliffe v Northern Sydney Central Coast Area Health Service [2007] FMCA 931 at [101] , Jones v Toben [2002] FCA 1150 at [106] , Jones v Scully [2001] FCA 879 ; (2001) 113 FCR 343.


case_title: Grovenor v Eldridge [2000] FCA 1574

case_text: The submissions of the respondent in relation to these outstanding issues may be summarised as follows: 1. It is pointless forcing an apology, hence no order should be made in this respect. 2. With respect to an order for damages, the following issues are relevant: a. on 16 November 2004 the applicant was not seeking to access "health services", but rather was seeking to collect a document he had previously requested b. on only one of the five occasions that are the subject of the complaint concerning Smithfield Community Health Centre did the applicant leave the Centre without receiving dental treatment. Accordingly, it is not the case that he was unable to access health services or was denied such access c. the real issue for the applicant was that he was denied something he perceived to be his right d. there is no basis to submit that there was a wilful disregard of the applicant's rights by the respondent e. there is no evidence that the applicant continues to feel hurt f. it does not follow that the respondent did not act in an exemplary fashion. 3. The authorities relied on by the applicant do not support the award of an amount as high as $40,000, and the majority of the cases relied upon by the applicant can be distinguished because, for example, in this case there is no suggestion of any personal injury, nor was the respondent's conduct malicious. Relevant comparators are Sheehan v Tin Can Bay Country Club [2002] FMCA 95 , Grovenor v Eldridge [2000] FCA 1574 and McNamara v Golonaise Pty Ltd [2006] QADT 7. 4. The evidence does not support a finding that the applicant was "publicly humiliated", particularly in relation to events at Smithfield Community Health Centre. 5. Given the bona fides of the respondent, the comparatively minimal impact upon the applicant and the number and nature of the events that comprise the complaints, general damages should be in the amount of $5,000 in total. 17 Clearly each case turns on its own facts, and Counsel acknowledged that damages awarded in other cases are of limited use only. Indeed, a review of cases where damages have been awarded in respect of discriminatory conduct reveal a considerable variance in the sums awarded. Relevant cases include the following: • in Clarke 202 ALR 340 a deaf child who had been refused enrolment at a religious school thereby removing him from his primary school peers and friends at the time of his transition to high school was awarded damages of $20,000 plus interest. Madgwick J was of the view that the child would have been distressed and confused by the events, and viewed the respondent's conduct as hurtful, but that the harm to the child was likely to have been transient and not extreme. The sum of $20,000 was described by Sackville and Stone JJ on appeal as "relatively modest": Catholic Education Office v Clarke [2004] FCAFC 197 ; (2004) 138 FCR 121 at 149 • in Commonwealth of Australia v Evans [2004] FCA 654 an intelligence analyst who was transferred to a position with lesser responsibilities because she was perceived as showing insufficient commitment to her work because she took time off to care for her sick child was awarded damages of $12,000 • in Leslie v Graham [2002] FCA 32 where the applicant was subject to extreme sexual advances by her employer in the middle of the night and subsequently suffered emotional trauma, the court awarded her $16,000 • in Sheehan [2002] FMCA 95 , a member of a club who was prevented from entering the club with an assistance dog not on a lead was awarded $1,500 damages • in Grovenor [2000] FCA 1574 a woman with a guide dog who was the subject of verbal abuse by the owner of a furniture store, and who subsequently suffered a skin rash related to her distress, was awarded $1,000 damages • in Haar v Maldon Nominees (2000) 184 ALR 83 a woman with a guide dog who sat in the "party area" of McDonalds, and was told by a member of the staff that it would be better if she sat elsewhere in the restaurant because of the presence of her dog, was awarded $3,000 damages in circumstances where the Federal Magistrate was satisfied that the incident had caused the applicant to have diminished self-worth which continued three years after the incident. 21 In my view the effects of this incident on the applicant cannot be compared with, for example, serious interruption to education ( Clarke 202 ALR 340) or emotional trauma and career impact as a result of sexual harassment ( Leslie [2002] FCA 32). However, in my view the public humiliation and embarrassment occasioned to the applicant was clearly more patent than in either Grovenor [2000] FCA 95 or Haar 184 ALR 83. I consider the sum of $5,000 appropriate compensation, and order that interest at the annual rate of 5% be payable on this sum pursuant to s 51A(1)(a) Federal Court of Australia Act 1976 (Cth) to be calculated from 16 November 2004 when the cause of action arose. 25 In my view the damage to the applicant as a result of the five incidents at Smithfield Community Health Centre is at the lower end of the scale, comparable to the circumstances in Grovenor [2000] FCA 95 and Haar 184 ALR 83. I consider that the sum of $3,000 is proper compensation in these circumstances. Further, in light of the proximity in time of the occurrence of the five incidents the subject of complaint, I order that interest at the annual rate of 5% be payable on this sum pursuant to s 51A(1)(a) Federal Court of Australia Act 1976 (Cth) to be calculated from 19 November 2004 when the cause of action first arose in these proceedings. THE COURT ORDERS THAT: In respect of QUD324/2005: 1. The respondent is to pay the applicant damages in the sum of $5,000. 2. The respondent is to pay interest on damages of $5,000 at an annual rate of 5% to be calculated from 16 November 2004 pursuant to s 51A(1)(a) Federal Court of Australia Act 1976 (Cth). In respect of QUD522/2005: 1. The respondent is to pay the applicant damages in the sum of $3,000. 2. The respondent is to pay interest on damages of $3,000 at an annual rate of 5% to be calculated from 19 November 2004 pursuant to s 51A(1)(a) Federal Court of Australia Act 1976 (Cth). In respect of QUD324/2005, QUD522/2005 and QUD211/2006 1. The respondent is to pay the applicant's costs in QUD324 of 2005 and QUD522 of 2005 other than the applicant's costs associated with the Notice of Motion to exclude the evidence of Dr Unwin, to be taxed if not agreed. 2. The applicant is to pay the respondent's costs of the Notice of Motion to exclude the evidence of Dr Unwin, to be taxed if not agreed. 3. The applicant is to pay the respondent's costs that relate solely to the respondent's costs in QUD211 of 2006, to be taxed if not agreed. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 14 August 2007 Counsel for the Applicant: D O'Gorman SC Solicitor for the Applicant: Miller Harris Counsel for the Respondent: C Murdoch Solicitor for the Respondent: Minter Ellison Date of Hearing: 9 August 2007 Date of Judgment: 14 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1236.html


case_text: Clearly each case turns on its own facts, and Counsel acknowledged that damages awarded in other cases are of limited use only. Indeed, a review of cases where damages have been awarded in respect of discriminatory conduct reveal a considerable variance in the sums awarded. Relevant cases include the following: • in Clarke 202 ALR 340 a deaf child who had been refused enrolment at a religious school thereby removing him from his primary school peers and friends at the time of his transition to high school was awarded damages of $20,000 plus interest. Madgwick J was of the view that the child would have been distressed and confused by the events, and viewed the respondent's conduct as hurtful, but that the harm to the child was likely to have been transient and not extreme. The sum of $20,000 was described by Sackville and Stone JJ on appeal as "relatively modest": Catholic Education Office v Clarke [2004] FCAFC 197 ; (2004) 138 FCR 121 at 149 • in Commonwealth of Australia v Evans [2004] FCA 654 an intelligence analyst who was transferred to a position with lesser responsibilities because she was perceived as showing insufficient commitment to her work because she took time off to care for her sick child was awarded damages of $12,000 • in Leslie v Graham [2002] FCA 32 where the applicant was subject to extreme sexual advances by her employer in the middle of the night and subsequently suffered emotional trauma, the court awarded her $16,000 • in Sheehan [2002] FMCA 95 , a member of a club who was prevented from entering the club with an assistance dog not on a lead was awarded $1,500 damages • in Grovenor [2000] FCA 1574 a woman with a guide dog who was the subject of verbal abuse by the owner of a furniture store, and who subsequently suffered a skin rash related to her distress, was awarded $1,000 damages • in Haar v Maldon Nominees (2000) 184 ALR 83 a woman with a guide dog who sat in the "party area" of McDonalds, and was told by a member of the staff that it would be better if she sat elsewhere in the restaurant because of the presence of her dog, was awarded $3,000 damages in circumstances where the Federal Magistrate was satisfied that the incident had caused the applicant to have diminished self-worth which continued three years after the incident. 21 In my view the effects of this incident on the applicant cannot be compared with, for example, serious interruption to education ( Clarke 202 ALR 340) or emotional trauma and career impact as a result of sexual harassment ( Leslie [2002] FCA 32). However, in my view the public humiliation and embarrassment occasioned to the applicant was clearly more patent than in either Grovenor [2000] FCA 95 or Haar 184 ALR 83. I consider the sum of $5,000 appropriate compensation, and order that interest at the annual rate of 5% be payable on this sum pursuant to s 51A(1)(a) Federal Court of Australia Act 1976 (Cth) to be calculated from 16 November 2004 when the cause of action arose. 25 In my view the damage to the applicant as a result of the five incidents at Smithfield Community Health Centre is at the lower end of the scale, comparable to the circumstances in Grovenor [2000] FCA 95 and Haar 184 ALR 83. I consider that the sum of $3,000 is proper compensation in these circumstances. Further, in light of the proximity in time of the occurrence of the five incidents the subject of complaint, I order that interest at the annual rate of 5% be payable on this sum pursuant to s 51A(1)(a) Federal Court of Australia Act 1976 (Cth) to be calculated from 19 November 2004 when the cause of action first arose in these proceedings. THE COURT ORDERS THAT: In respect of QUD324/2005: 1. The respondent is to pay the applicant damages in the sum of $5,000. 2. The respondent is to pay interest on damages of $5,000 at an annual rate of 5% to be calculated from 16 November 2004 pursuant to s 51A(1)(a) Federal Court of Australia Act 1976 (Cth). In respect of QUD522/2005: 1. The respondent is to pay the applicant damages in the sum of $3,000. 2. The respondent is to pay interest on damages of $3,000 at an annual rate of 5% to be calculated from 19 November 2004 pursuant to s 51A(1)(a) Federal Court of Australia Act 1976 (Cth). In respect of QUD324/2005, QUD522/2005 and QUD211/2006 1. The respondent is to pay the applicant's costs in QUD324 of 2005 and QUD522 of 2005 other than the applicant's costs associated with the Notice of Motion to exclude the evidence of Dr Unwin, to be taxed if not agreed. 2. The applicant is to pay the respondent's costs of the Notice of Motion to exclude the evidence of Dr Unwin, to be taxed if not agreed. 3. The applicant is to pay the respondent's costs that relate solely to the respondent's costs in QUD211 of 2006, to be taxed if not agreed. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 14 August 2007 Counsel for the Applicant: D O'Gorman SC Solicitor for the Applicant: Miller Harris Counsel for the Respondent: C Murdoch Solicitor for the Respondent: Minter Ellison Date of Hearing: 9 August 2007 Date of Judgment: 14 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1236.html


case_text: The submissions of the applicant in relation to these outstanding issues may be summarised as follows: 1. The courts have ordered apologies to be made in appropriate circumstances. 2. Damages should be compensatory and not punitive. Damages in this case should be decided in a manner akin to general principles laid down in Haines v Bendall [1991] HCA 15 ; (1991) 172 CLR 60 and Hall v Sheiban Pty Ltd (1989) 20 FCR 217. 3. In particular, the Court may order a respondent to pay damages by way of compensation for hurt feelings, humiliation and embarrassment suffered by the applicant as a result of unlawful discriminatory behaviour on the part of the respondent. In assessing the damages payable, in this case it is of relevance that: a. the applicant has a psychiatric disability b. the applicant was unable to access the respondent's health services on a number of occasions, something that would obviously cause distress to a person with the applicant's medical condition and needs c. the discrimination on the part of the respondent resulted in the applicant being unable to utilise the assistance of his dogs when he wished to access the respondent's services, even though the dogs assisted the applicant to alleviate the effects of his disability d. there was wilful disregard of the applicant's rights by the respondent e. the respondent is a State government, and therefore should exhibit exemplary behaviour f. the applicant had little option but to accept the behaviour/treatment dealt out to him by the respondent g. the hurt suffered by the applicant continues almost three years after the events in question. 4. Although each case turns on its own facts, a case such as Clarke v Catholic Education Offic e (2003) 202 ALR 340 is of some guidance.


case_text: The submissions of the applicant in relation to these outstanding issues may be summarised as follows: 1. The courts have ordered apologies to be made in appropriate circumstances. 2. Damages should be compensatory and not punitive. Damages in this case should be decided in a manner akin to general principles laid down in Haines v Bendall [1991] HCA 15 ; (1991) 172 CLR 60 and Hall v Sheiban Pty Ltd (1989) 20 FCR 217. 3. In particular, the Court may order a respondent to pay damages by way of compensation for hurt feelings, humiliation and embarrassment suffered by the applicant as a result of unlawful discriminatory behaviour on the part of the respondent. In assessing the damages payable, in this case it is of relevance that: a. the applicant has a psychiatric disability b. the applicant was unable to access the respondent's health services on a number of occasions, something that would obviously cause distress to a person with the applicant's medical condition and needs c. the discrimination on the part of the respondent resulted in the applicant being unable to utilise the assistance of his dogs when he wished to access the respondent's services, even though the dogs assisted the applicant to alleviate the effects of his disability d. there was wilful disregard of the applicant's rights by the respondent e. the respondent is a State government, and therefore should exhibit exemplary behaviour f. the applicant had little option but to accept the behaviour/treatment dealt out to him by the respondent g. the hurt suffered by the applicant continues almost three years after the events in question. 4. Although each case turns on its own facts, a case such as Clarke v Catholic Education Offic e (2003) 202 ALR 340 is of some guidance. 15 There is no dispute that damages which can be awarded in these circumstances are compensatory, not punitive: Hall v Sheiban 20 FCR 217 at 282, Clarke 202 ALR 340 at 360. As Lockhart J pointed out in Hall v Sheiban at 239 damages awarded should be based on a comparison of the position that the applicant would have been in if he had not been subjected to the discriminatory acts of the respondent, with the position he is in as a result of those acts.


case_title: Jones v Toben [2002] FCA 1150


case_title: Jones on behalf of the Executive Council of Australian Jewry v The Bible Believers' Church [2007] FCA 55


case_title: Leslie v Graham [2002] FCA 32

case_text: Clearly each case turns on its own facts, and Counsel acknowledged that damages awarded in other cases are of limited use only. Indeed, a review of cases where damages have been awarded in respect of discriminatory conduct reveal a considerable variance in the sums awarded. Relevant cases include the following: • in Clarke 202 ALR 340 a deaf child who had been refused enrolment at a religious school thereby removing him from his primary school peers and friends at the time of his transition to high school was awarded damages of $20,000 plus interest. Madgwick J was of the view that the child would have been distressed and confused by the events, and viewed the respondent's conduct as hurtful, but that the harm to the child was likely to have been transient and not extreme. The sum of $20,000 was described by Sackville and Stone JJ on appeal as "relatively modest": Catholic Education Office v Clarke [2004] FCAFC 197 ; (2004) 138 FCR 121 at 149 • in Commonwealth of Australia v Evans [2004] FCA 654 an intelligence analyst who was transferred to a position with lesser responsibilities because she was perceived as showing insufficient commitment to her work because she took time off to care for her sick child was awarded damages of $12,000 • in Leslie v Graham [2002] FCA 32 where the applicant was subject to extreme sexual advances by her employer in the middle of the night and subsequently suffered emotional trauma, the court awarded her $16,000 • in Sheehan [2002] FMCA 95 , a member of a club who was prevented from entering the club with an assistance dog not on a lead was awarded $1,500 damages • in Grovenor [2000] FCA 1574 a woman with a guide dog who was the subject of verbal abuse by the owner of a furniture store, and who subsequently suffered a skin rash related to her distress, was awarded $1,000 damages • in Haar v Maldon Nominees (2000) 184 ALR 83 a woman with a guide dog who sat in the "party area" of McDonalds, and was told by a member of the staff that it would be better if she sat elsewhere in the restaurant because of the presence of her dog, was awarded $3,000 damages in circumstances where the Federal Magistrate was satisfied that the incident had caused the applicant to have diminished self-worth which continued three years after the incident. 21 In my view the effects of this incident on the applicant cannot be compared with, for example, serious interruption to education ( Clarke 202 ALR 340) or emotional trauma and career impact as a result of sexual harassment ( Leslie [2002] FCA 32). However, in my view the public humiliation and embarrassment occasioned to the applicant was clearly more patent than in either Grovenor [2000] FCA 95 or Haar 184 ALR 83. I consider the sum of $5,000 appropriate compensation, and order that interest at the annual rate of 5% be payable on this sum pursuant to s 51A(1)(a) Federal Court of Australia Act 1976 (Cth) to be calculated from 16 November 2004 when the cause of action arose.


case_text: The submissions of the respondent in relation to these outstanding issues may be summarised as follows: 1. It is pointless forcing an apology, hence no order should be made in this respect. 2. With respect to an order for damages, the following issues are relevant: a. on 16 November 2004 the applicant was not seeking to access "health services", but rather was seeking to collect a document he had previously requested b. on only one of the five occasions that are the subject of the complaint concerning Smithfield Community Health Centre did the applicant leave the Centre without receiving dental treatment. Accordingly, it is not the case that he was unable to access health services or was denied such access c. the real issue for the applicant was that he was denied something he perceived to be his right d. there is no basis to submit that there was a wilful disregard of the applicant's rights by the respondent e. there is no evidence that the applicant continues to feel hurt f. it does not follow that the respondent did not act in an exemplary fashion. 3. The authorities relied on by the applicant do not support the award of an amount as high as $40,000, and the majority of the cases relied upon by the applicant can be distinguished because, for example, in this case there is no suggestion of any personal injury, nor was the respondent's conduct malicious. Relevant comparators are Sheehan v Tin Can Bay Country Club [2002] FMCA 95 , Grovenor v Eldridge [2000] FCA 1574 and McNamara v Golonaise Pty Ltd [2006] QADT 7. 4. The evidence does not support a finding that the applicant was "publicly humiliated", particularly in relation to events at Smithfield Community Health Centre. 5. Given the bona fides of the respondent, the comparatively minimal impact upon the applicant and the number and nature of the events that comprise the complaints, general damages should be in the amount of $5,000 in total.


case_title: Oberoi v Human Rights and Equal Opportunity Commission [2001] FMCA 34


case_title: Rawcliffe v Northern Sydney Central Coast Area Health Service [2007] FMCA 931


case_text: The submissions of the respondent in relation to these outstanding issues may be summarised as follows: 1. It is pointless forcing an apology, hence no order should be made in this respect. 2. With respect to an order for damages, the following issues are relevant: a. on 16 November 2004 the applicant was not seeking to access "health services", but rather was seeking to collect a document he had previously requested b. on only one of the five occasions that are the subject of the complaint concerning Smithfield Community Health Centre did the applicant leave the Centre without receiving dental treatment. Accordingly, it is not the case that he was unable to access health services or was denied such access c. the real issue for the applicant was that he was denied something he perceived to be his right d. there is no basis to submit that there was a wilful disregard of the applicant's rights by the respondent e. there is no evidence that the applicant continues to feel hurt f. it does not follow that the respondent did not act in an exemplary fashion. 3. The authorities relied on by the applicant do not support the award of an amount as high as $40,000, and the majority of the cases relied upon by the applicant can be distinguished because, for example, in this case there is no suggestion of any personal injury, nor was the respondent's conduct malicious. Relevant comparators are Sheehan v Tin Can Bay Country Club [2002] FMCA 95 , Grovenor v Eldridge [2000] FCA 1574 and McNamara v Golonaise Pty Ltd [2006] QADT 7. 4. The evidence does not support a finding that the applicant was "publicly humiliated", particularly in relation to events at Smithfield Community Health Centre. 5. Given the bona fides of the respondent, the comparatively minimal impact upon the applicant and the number and nature of the events that comprise the complaints, general damages should be in the amount of $5,000 in total. 17 Clearly each case turns on its own facts, and Counsel acknowledged that damages awarded in other cases are of limited use only. Indeed, a review of cases where damages have been awarded in respect of discriminatory conduct reveal a considerable variance in the sums awarded. Relevant cases include the following: • in Clarke 202 ALR 340 a deaf child who had been refused enrolment at a religious school thereby removing him from his primary school peers and friends at the time of his transition to high school was awarded damages of $20,000 plus interest. Madgwick J was of the view that the child would have been distressed and confused by the events, and viewed the respondent's conduct as hurtful, but that the harm to the child was likely to have been transient and not extreme. The sum of $20,000 was described by Sackville and Stone JJ on appeal as "relatively modest": Catholic Education Office v Clarke [2004] FCAFC 197 ; (2004) 138 FCR 121 at 149 • in Commonwealth of Australia v Evans [2004] FCA 654 an intelligence analyst who was transferred to a position with lesser responsibilities because she was perceived as showing insufficient commitment to her work because she took time off to care for her sick child was awarded damages of $12,000 • in Leslie v Graham [2002] FCA 32 where the applicant was subject to extreme sexual advances by her employer in the middle of the night and subsequently suffered emotional trauma, the court awarded her $16,000 • in Sheehan [2002] FMCA 95 , a member of a club who was prevented from entering the club with an assistance dog not on a lead was awarded $1,500 damages • in Grovenor [2000] FCA 1574 a woman with a guide dog who was the subject of verbal abuse by the owner of a furniture store, and who subsequently suffered a skin rash related to her distress, was awarded $1,000 damages • in Haar v Maldon Nominees (2000) 184 ALR 83 a woman with a guide dog who sat in the "party area" of McDonalds, and was told by a member of the staff that it would be better if she sat elsewhere in the restaurant because of the presence of her dog, was awarded $3,000 damages in circumstances where the Federal Magistrate was satisfied that the incident had caused the applicant to have diminished self-worth which continued three years after the incident.


case_title: Zheng v Beamish [2004] FMCA 61


case_text: Counsel for the appellants referred to the line of authority of which Farajvand v Minister for Immigration and Multicultural Affairs [2001] FCA 795 and Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 (2003) 216 CLR 473 are part. In effect, counsel for the appellants argued that the need, or perceived need, to be seen to restrict activities can itself amount to serious harm. That is not the basis on which those authorities turn. It is abundantly clear, particularly from the passages in [29] and [33] of Allsop J's reasons for judgment in Farajvand , as well as from the judgments in S395 itself, that a person will only be seen to have a well-founded fear of persecution if there is a need, or a perceived need, to curtail activities in order to avoid persecution. Given that s 91R of the Migration Act equates serious harm with persecution for this purpose, it will be necessary to show that a person must adopt, or perceives the need to adopt, restrictions on that person's activities in order to avoid serious harm. The imposition of restrictions on activities simply to avoid threats, or simply to avoid harm that does not amount to serious harm, will not itself become a form of serious harm. This position is confirmed by the very recent judgment of Dowsett J in SZDTM v Minister for Immigration and Citizenship [2008] FCA 1258 , especially at 74.


case_title: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 (2003) 216 CLR 473


case_title: SZDTM v Minister for Immigration and Citizenship [2008] FCA 1258


case_outcome: distinguished

case_text: The applicants resist giving any further particulars as requested by the respondent on the ground that the whole of the article is defamatory and no further particulars need be given. The applicants contended that where a party asserts that the whole of an article is claimed to be defamatory of a plaintiff, the plaintiff need not give any further particulars of the words relied on for any imputation pleaded. The applicants relied upon a decision of Menhennett J in A v Ipec Australia Ltd & Crew [1973] VR 39. In my opinion, that was a special case and does not indicate the usual rule as to pleading an imputation arising out of an article where the whole of the article is clearly not defamatory of the plaintiff.


case_text: As I have said, paragraph 46 identifies the imputations which are said to arise in both the natural and ordinary meaning of the words, and by way of a true innuendo. It is necessary to give particulars of the facts and circumstances which are said to support a claim of libel which relies upon the true innuendo. The applicants have given particulars of those facts and circumstances, and there is no complaint about those particulars. There was no obligation at common law to plead particular imputations where the cause of action relies upon the natural and ordinary meaning of the words. However, in New South Wales there was an obligation to plead such imputations under the Defamation Act (1974) (NSW): s 9(2). More recently, it has become the practice in this State and other States in Australia to plead the imputations which are said to arise out of publication, even if those imputations are said to arise in the natural and ordinary meaning of the words: Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181. 49 In response to the respondent's request, the applicants provided a schedule which identified the particular documents in each of the paragraphs either for the plea that the imputation arises in the natural and ordinary meaning of the words or for the plea that the imputation arises by way of innuendo.


case_text: The usual rule is that the respondent is entitled to particulars which require the applicants to identify the part or parts of the article which are alleged to be defamatory and which support the imputation pleaded: DDSA Pharmaceuticals Ltd v Times Newspapers Ltd [1973] 1 QB 21 at 26. In that case Lord Denning MR said: In the second place, the pleading is defective because it throws--and I use that word deliberately--on to the defendants a long article without picking out the parts said to be defamatory. Some of the article is not defamatory of anyone at all. It describes only the method of importing drugs. Other parts of the article are defamatory of some unnamed chemists, but not of the plaintiffs at all. Yet other parts may be defamatory of the plaintiffs. To throw an article of that kind at the defendants and indeed at the court, without picking out the particular passages, is high embarrassing. Master Bickford Smith put it very sensibly: "It is tremendously embarrassing to claim the whole of the article as a libel. There is a tremendous amount of the article which is not defamatory of your clients. You must pick out the particular bits and rely on the rest as extrinsic or surrounding facts giving a defamatory meaning to the words." That ruling is in accord with the practice as it has been known for many years. The plaintiffs must specify the particular parts defamatory of them. For instance, in this particular case there is a reference to a "London-based operation." If the plaintiffs say that it means the plaintiffs, they should say so. They should insert "(meaning thereby the plaintiffs)." There is a reference to "the largest single network operating from a London suburb." Do they say that means the plaintiffs? If they do, they should put in "(meaning thereby the plaintiffs)." Such an exercise will be a great advantage to the plaintiffs themselves. It will make them clear their minds: and it will help the defendants too.


case_text: However, the applicants should be required to give particulars of the constructive knowledge which it is claimed the respondent had: Fox v H Wood (Harrow) Ltd [1963] 2 QB 601. 75 The claim that a party ought to have known something must depend upon objective facts and circumstances from which it may be concluded that the party should have acquired the knowledge alleged. The allegation that a party ought to have known something carries with it the claim that, notwithstanding the proven facts and circumstances, the party did not acquire that knowledge. A claim such as is made in this pleading that the respondent knew or ought to have known that the imputations were false means that the respondent either knew that the imputations were false or, by reason of the surrounding facts and circumstances, should have known that the imputations were false. 76 There will be an order therefore that the applicants give particulars of the facts and circumstances which allow it to be said that the respondent ought to have known that the imputations referred to in paragraph 46 of the statement of claim were untrue. 1.13 paragraph 43.1.3 (paragraph 49.1.3): the Applicants identify the actual words, and/or sentences of the defamatory statements, on which they base their stated allegation.


case_text: Indeed, so much was recognised by Menhennett J in a later decision in Kerney v Optimus Holdings Pty Ltd [1976] VR 399 at 401. 55 For the reasons which follow, in my opinion, the respondent is entitled to further particulars in respect to the plea in paragraph 46.1 but not of the plea in paragraph 46.2. 56 Six imputations are said to arise out of the publications in paragraphs 20 and 22. One of these imputations consists of four parts. It is not clear whether the pleader means that that imputation consists of all four parts or those parts are alternatives. But that is not an issue at present. The point is that six separate imputations are said to arise out of the 17 separate publications in paragraph 18 (which are incorporated into paragraph 20) and the three separate publications in paragraph 22. The 17 separate publications in paragraph 20 total 52 pages. The three separate publications in paragraph 22 consist of three pages. The Court and the respondent, at present, have to trawl through 55 pages of material to identify the six discrete imputations pleaded in paragraph 46.1.


case_text: As to the first part of the request for particulars seeking further particularity of the contracts, this request should be refused for three reasons. First, because paragraph 33 identifies the contracts with sufficient particularity, being those contracts which the respondent referred to in his email to the solicitors for the applicants on 15 February 2006. The respondent must know to which contracts he was referring when he sent that email. This is one of those circumstances that the party's own knowledge means that the request for particulars should be refused: Lawson v Perpetual Trustee Co Ltd (1959) 76 WN (NSW) 367. Secondly, the contracts are in fact identified in paragraph 7 of the statement of claim. Thirdly, the contracts which are referred to in the email of 15 February 2006 apparently have not been discovered by the respondent. In that case, the respondent cannot seek further particularity of documents to which he referred in his email and which he has neglected to discover in this proceeding. His failure to discover the documents makes it impossible for the applicants to better identify them. 28 As to the request for particularity of the respondent's knowledge, that request must also be refused. Order 12 rule 3 provides: 3(1) A party pleading any condition of mind shall give particulars of the facts on which he relies. (2) In subrule (1) "condition of mind" includes any disorder or disability of mind, any malice and any fraudulent intention, but does not include knowledge. 29 The plea in paragraph 33 is confined to actual knowledge. There is no obligation on the applicants to give particulars of the actual knowledge of the respondent. That is because the respondent either did or did not have the knowledge. If as alleged he had that knowledge then, that must be proved by admissible evidence. Particulars are not required. 1.7 paragraphs 30, 30.1 and 30.2 (paragraph 36): the Applicants identify the actual written words and/or sentences on which they rely in respect of their stated allegation of solicitation, by the Respondent, of the Applicants customers and suppliers for documents embodying trading terms to which such customers and suppliers have contractually agreed to the prohibition of publication of said documents.


case_text: A pleading must be as brief as the nature of the case allows and contain only a statement of the material facts on which the party relies: O 11 r 3 and O 11 r 2 of the Federal Court Rules (the Rules). It should not contain the evidence by which those material facts are to be proved: O 11 r 2. A party, however, must include in the pleading or in some other document the particulars of the party's claim or defence: O 12 r 1. The object of requiring a party to give particulars is to limit the generality of the pleadings so as to inform the party's opponent of the nature of the case which he or she has to meet and to prevent the opponent from being taken by surprise at the trial: Spedding v Fitzpatrick (1887) 38 Ch D 410. The provision of appropriate particulars should mean that unnecessary expense to the parties will be avoided. Particulars, like material facts, should not include the evidence which the party intends to prove his or her case. Nor should particulars be used as statements of material fact because particulars are not pleaded to by the opposing party: Pinson v Lloyds and National Provincial Foreign Bank Limited [1941] 2 KB 72.


case_text: In Scott v Fourth Estate Newspapers Ltd [1986] 1 NZLR 336, Williamson J said at 339-340: After considering the authorities referred to, my view is that it must be a rare case where a plaintiff can plead a whole article without particularising the passages in the article that he complains of. It may be appropriate to plead the whole article in order to claim that certain passages or libellous statements take their meaning from the article as a whole, but in order to focus the dispute it is important that the allegedly defamatory passages be sufficiently identified.


case_title: Spedding v Fitzpatrick (1887) 38 Ch D 410


case_text: The applicant Mr David Patterson claims that his condition of hypertension arose out of, or was attributable to, his eligible war service in Vietnam, within the meaning of s 9(1)(b) of the Veterans' Entitlement Act 1986 (Cth) (the Act). The rejection of his claim by the respondent Repatriation Commission and the Veterans' Review Board was affirmed by the Administrative Appeals Tribunal: Patterson and Repatriation Commission [2005] AATA 758. Mr Patterson now appeals to this Court. 2 The relevant Statement of Principles (SoP) concerning hypertension for the purposes of s 120A(3) of the Act, No 35 of 2003, provides by cl 4 that at least one of the factors in cl 5 "must be related to any relevant service rendered". The factors in cl 5 include: "(a) being obese at the time of the clinical onset of hypertension; or (b) consuming an average of at least 200 g per week of alcohol which cannot be decreased to less than an average of 200 g per week at the time of the clinical onset of hypertension; or (c) ingesting at least 12 g of salt supplements per day on average for a continuous period of at least six months immediately before the clinical onset of hypertension." 3 Mr Patterson served as a gunner in the Australian Army in Vietnam from 4 February until 30 October 1971. His clinical onset of hypertension occurred in 1978.


case_text: The Tribunal then quoted the four-step process from the judgment of the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 as follows (emphasis added): "1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage . If no such hypothesis arises, the application must fail. 2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail. 3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be 'reasonable' and the claim will fail. 4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it . In so doing, no question of onus of proof or the application of any presumption will be involved." 30 The Tribunal found in respect of the first Deledio step that the material "point(ed) to a hypothesis connecting the hypertension to the circumstances of the particular service rendered by (Mr Patterson)". Although not explicitly stated at this stage, it would seem that the Tribunal had in mind the obesity hypothesis. 31 In relation to the second step the Tribunal noted there was no dispute that the SoP concerning hypertension was in force.


case_text: The third Deledio step does not require or permit fact finding, an exercise which is confined to the fourth step. Yet it is clear this is what the Tribunal did at [43] and [44]. The reference to Dr English's criticism of "lack of dietary intake data" suggests not only fact finding but the imposition of an onus of proof on Mr Patterson, something excluded by s 120(6). The Tribunal reached a conclusion as to what in fact Mr Patterson's alcohol consumption was rather than enquiring whether his hypothesis was consistent with the SoP. I said at first instance in Deledio v Repatriation Commission (1997) 47 ALD 261 at 275, in a passage approved by the Full Court at 83 FCR 96, "...the SoP has no function in relation to the proof or disproof (under s 120(1) of the particular facts of a veteran's case. The SoP's function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent so that the SoP can 'uphold' the hypothesis... ... The particular claim then has to fit the template laid down in the SoP. The Byrnes [ v Repatriation Commission [1993] HCA 51 ; (1993) 177 CLR 564] methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is: (i) contrary to proved or known scientific facts, (ii) obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or (iii) (since 1994) inconsistent with (not upheld by) an applicable SoP. If the hypothesis is reasonable the claim will succeed unless: (iv) one or more facts necessary to support it are disproved beyond reasonable doubt; or (v) the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt. At no stage is there an onus of proof on the claimant. If one of the disputed facts happens to be a component of an SoP then the Commission must disprove that fact beyond reasonable doubt, just like any other relevant fact." 39 The Tribunal failed to follow the process mandated by the Act. The Tribunal in the present case has made essentially the same error as the Tribunal in Deledio when it said (quoted in 47 ALD at 272): "If a particular fact is not found to exist, or is not found to be related to the veteran's service, on the balance of probabilities, then the SoP does not uphold the hypothesis and, according to s 120A(3) of the Act, the hypothesis cannot be reasonable." At 275 I said: "... the SoP system does not have the effect that some of the facts relevant to a claim, viz those facts which coincide with factors set out in an SoP, have to be proved by the claimant." 40 Much the same thing happened with the salt hypothesis. The Tribunal made a qualitative assessment of Mr Patterson's evidence and accepted criticism of it as "speculative", "unreliable" and "inaccurate". This is the discourse of fact finding.


case_text: If the Act, like most statutes conferring pensions and similar benefits, simply required Mr Patterson to establish that his hypertension was due to war service, then the Tribunal's approach would disclose no error of law. However, for the historical and political reasons which underlie repatriation legislation in Australia, as discussed in Deledio and East v Repatriation Commission (1987) 16 FCR 517, the Act mandates a unique decision-making process. The Tribunal failed to apply that process. 42 The Commission filed a notice of contention which in substance argued that the material before the Tribunal was incapable of raising the required reasonable hypothesis connecting Mr Patterson's hypertension with the circumstances of his war service. In an appeal limited to questions of law ( Administrative Appeals Tribunal Act 1975 (Cth ) s 44(1)) it would not be appropriate to conduct in effect a rehearing of the case before the Tribunal. Mr Patterson was entitled to have his claim considered on its merits by the Tribunal in accordance with the Act. 43 The appeal will be allowed. The determination of the Tribunal made on 9 August 2005 is set aside. Mr Patterson's claim is remitted for consideration by the Tribunal differently constituted. The Commission is to pay Mr Patterson's costs of the appeal, including reserved costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey . Associate: Dated: 12 May 2006 Counsel for the Applicant: Mr G Chancellor Solicitors for the Applicant: Williams Winter Counsel for the Respondent: Ms J Mac Donnell Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 26 April 2006 Date of Judgment: 12 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/538.html