case_title: SZICU v Minister for Immigration & Citizenship [2008] FCAFC 1 , 100 ALD 1

case_text: At best, it is a contention that the Appellant was entitled to be informed of the findings as proposed to be made by the Tribunal and to be afforded a further opportunity to be heard. The Appellant was not entitled to any such further opportunity. Concurrence is expressed with the reliance by the Federal Magistrate upon SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18] , [2007] FCA 26 ; 235 ALR 609 at 616 and his Honour's conclusion that such findings do not fall within s 424A(1)(a). In SZBYR , Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ held: [18] ... if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of para (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [[2004] FCAFC 123 , 206 ALR 471 at 477] that the word "information". does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc. If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself. See also: SZICU v Minister for Immigration & Citizenship [2008] FCAFC 1 at [24] [25], 100 ALD 1 at 6 7 per Tamberlin, Finn and Besanko JJ; SZLBA v Minister for Immigration & Citizenship [2008] FCA 484 at [23] [24] per Cowdroy J.


case_outcome: followed

case_text: At best, it is a contention that the Appellant was entitled to be informed of the findings as proposed to be made by the Tribunal and to be afforded a further opportunity to be heard. The Appellant was not entitled to any such further opportunity. Concurrence is expressed with the reliance by the Federal Magistrate upon SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18] , [2007] FCA 26 ; 235 ALR 609 at 616 and his Honour's conclusion that such findings do not fall within s 424A(1)(a). In SZBYR , Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ held: [18] ... if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of para (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [[2004] FCAFC 123 , 206 ALR 471 at 477] that the word "information". does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc. If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself. See also: SZICU v Minister for Immigration & Citizenship [2008] FCAFC 1 at [24] [25], 100 ALD 1 at 6 7 per Tamberlin, Finn and Besanko JJ; SZLBA v Minister for Immigration & Citizenship [2008] FCA 484 at [23] [24] per Cowdroy J. 25 Assuming that the written submissions constituted a previously unexpressed application for leave to amend the Notice of Appeal , the granting of such leave was opposed by the solicitor appearing for the Respondent Minister. Two principal contentions advanced on behalf of the Minister were that: (a) none of the grounds had been advanced before the Federal Magistrates Court; and (b) none of the grounds were formulated in such a manner as to be able to be properly understood. Further, and more specifically, submissions focussed upon the fact that s 91R initially had been raised as a ground before the Federal Magistrates Court and an alternative ground expressly " substituted " in lieu. A party, of course, is generally not entitled to raise new grounds which were deliberately or by inadvertence not put to the court from which an appeal is brought: SZIBR v Minister for Immigration & Citizenship [2008] FCA 502 at [38] per Lander J. The contention that there was a failure to " assess information " is simply denied by the very task undertaken by the Tribunal. That, and other grounds, it was submitted were thus without substance, nor was there any specification as to which of the " findings " of the Tribunal were said to have been made without sufficient evidentiary foundation.


case_text: To entertain the written submissions filed by the Appellant, leave to amend the Notice of Appeal would necessarily have been required. That leave was refused. The submissions as advanced on behalf of the Respondent Minister should be accepted. None of the grounds, it is considered, have merit: VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158. That, it should be noted, was the decision communicated to the Appellant during the course of the hearing of the appeal. 27 The orders of the Court are: 1. The Appeal be dismissed. 2. The Appellant to pay the costs of the First Respondent of and incidental to the appeal. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 28 May 2008 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: A Nanson (Australian Government Solicitor) Date of Hearing: 21 May 2008 Date of Judgment: 28 May 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/778.html


case_outcome: referred to

case_text: The courts have recognised that employment can extend beyond the mere fulfilment of daily duties: see Favelle Mort Ltd v Murray; Henderson v The Commissioner of Railways (Western Australia) [1937] HCA 67 ; (1937) 58 CLR 281 ; Commonwealth v Oliver [1962] HCA 38 ; (1962) 107 CLR 353; Hatzimanolis v ANI Corporation Ltd [1992] HCA 21 ; (1992) 173 CLR 473; Humphrey Earl Ltd v Speechley [1951] HCA 75 ; (1951) 84 CLR 126. Particularly with respect to employment in the armed forces, the courts have recognised that employment entails more than simply those duties which are the subject of commands and orders, and includes matters ancillary or incidental to those duties: see Comcare v Mather and Anor (1995) 37 ALD 463; Roncevich ; Commonwealth of Australia v Carter .


case_text: The applicant submits that the Tribunal should properly have considered that living in barracks was itself an authorised or expected activity, despite the fact that the applicant was not required to live there. The applicant submits that performance of duties as service personnel includes a wider range of matters than for civilian employment, and extends to ancillary duties or matters incidental to the employment: see Military Rehabilitation & Compensation Commission v Wall [2005] FCAFC 127 at [20] [29]; Commonwealth of Australia v Carter (1965) 7 FLR 223 at 227; Commonwealth v Wright [1956] HCA 79 ; (1956) 96 CLR 536 per Dixon CJ at 546; McTiernan J at 547-8; Webb J at 550-1. 22 The courts have recognised that employment can extend beyond the mere fulfilment of daily duties: see Favelle Mort Ltd v Murray; Henderson v The Commissioner of Railways (Western Australia) [1937] HCA 67 ; (1937) 58 CLR 281 ; Commonwealth v Oliver [1962] HCA 38 ; (1962) 107 CLR 353; Hatzimanolis v ANI Corporation Ltd [1992] HCA 21 ; (1992) 173 CLR 473; Humphrey Earl Ltd v Speechley [1951] HCA 75 ; (1951) 84 CLR 126. Particularly with respect to employment in the armed forces, the courts have recognised that employment entails more than simply those duties which are the subject of commands and orders, and includes matters ancillary or incidental to those duties: see Comcare v Mather and Anor (1995) 37 ALD 463; Roncevich ; Commonwealth of Australia v Carter .


case_title: Commonwealth v Oliver [1962] HCA 38 ; (1962) 107 CLR 353


case_text: The applicant submits that the Tribunal should properly have considered that living in barracks was itself an authorised or expected activity, despite the fact that the applicant was not required to live there. The applicant submits that performance of duties as service personnel includes a wider range of matters than for civilian employment, and extends to ancillary duties or matters incidental to the employment: see Military Rehabilitation & Compensation Commission v Wall [2005] FCAFC 127 at [20] [29]; Commonwealth of Australia v Carter (1965) 7 FLR 223 at 227; Commonwealth v Wright [1956] HCA 79 ; (1956) 96 CLR 536 per Dixon CJ at 546; McTiernan J at 547-8; Webb J at 550-1.


case_text: In relation to its second submission, the applicant says that the Tribunal should have considered the cause as a question of exposure: see Favelle Mort Ltd v Murray [1976] HCA 13 ; (1976) 133 CLR 580 at 584, 601; Re Tully and Comcare (unreported, Administrative Appeals Tribunal, 4 October 1996). 22 The courts have recognised that employment can extend beyond the mere fulfilment of daily duties: see Favelle Mort Ltd v Murray; Henderson v The Commissioner of Railways (Western Australia) [1937] HCA 67 ; (1937) 58 CLR 281 ; Commonwealth v Oliver [1962] HCA 38 ; (1962) 107 CLR 353; Hatzimanolis v ANI Corporation Ltd [1992] HCA 21 ; (1992) 173 CLR 473; Humphrey Earl Ltd v Speechley [1951] HCA 75 ; (1951) 84 CLR 126. Particularly with respect to employment in the armed forces, the courts have recognised that employment entails more than simply those duties which are the subject of commands and orders, and includes matters ancillary or incidental to those duties: see Comcare v Mather and Anor (1995) 37 ALD 463; Roncevich ; Commonwealth of Australia v Carter .


case_title: Hatzimanolis v ANI Corporation Ltd [1992] HCA 21 ; (1992) 173 CLR 473


case_title: Henderson v The Commissioner of Railways (Western Australia) [1937] HCA 67 ; (1937) 58 CLR 281


case_title: Humphrey Earl Ltd v Speechley [1951] HCA 75 ; (1951) 84 CLR 126


case_text: In Military Rehabilitation and Compensation Commission v Wall , a recent decision of the Full Court of the Federal Court of Australia, the question to be determined was whether the respondent's employment in the armed forces contributed to the development of his smoking habit (which in turn contributed to his medical condition). The majority upheld the decision of the Tribunal, adopting the reasoning of Hely J at first instance. The finding of the Tribunal was based upon a factual finding that the respondent had commenced smoking in part because of the circumstances of his employment. Hely J rejected the submission that there was a necessary distinction between incidents of life in the military and the performance of duties as a member of the Defence Force: see the judgment of Hely J in Military Compensation and Rehabilitation Commission v Wall [2004] FCA 1711 at [47] - [48] .


case_text: The applicant submits that the Tribunal should properly have considered that living in barracks was itself an authorised or expected activity, despite the fact that the applicant was not required to live there. The applicant submits that performance of duties as service personnel includes a wider range of matters than for civilian employment, and extends to ancillary duties or matters incidental to the employment: see Military Rehabilitation & Compensation Commission v Wall [2005] FCAFC 127 at [20] [29]; Commonwealth of Australia v Carter (1965) 7 FLR 223 at 227; Commonwealth v Wright [1956] HCA 79 ; (1956) 96 CLR 536 per Dixon CJ at 546; McTiernan J at 547-8; Webb J at 550-1. 23 However, diseases may be contracted by an employee during the period of his service in a temporal sense which are not contributed to by employment. To establish an entitlement to compensation under the SRC Act there must be a causal connection between the employment and the disease or injury sustained by the employee: see Re Tully and Comcare; Military Rehabilitation & Compensation Commission v Wall; Roncevich ; Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323.


case_text: In relation to its second submission, the applicant says that the Tribunal should have considered the cause as a question of exposure: see Favelle Mort Ltd v Murray [1976] HCA 13 ; (1976) 133 CLR 580 at 584, 601; Re Tully and Comcare (unreported, Administrative Appeals Tribunal, 4 October 1996). 23 However, diseases may be contracted by an employee during the period of his service in a temporal sense which are not contributed to by employment. To establish an entitlement to compensation under the SRC Act there must be a causal connection between the employment and the disease or injury sustained by the employee: see Re Tully and Comcare; Military Rehabilitation & Compensation Commission v Wall; Roncevich ; Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323.


case_text: The applicant further submits that the Tribunal did not apply the correct interpretation of ' performance of duties ' as referred to in s 7 of the 1971 Act. The applicant states that the correct test was that enunciated by the High Court in Roncevich v Repatriation Commission [2005] HCA 40 at [23] (set out at [24] below). 22 The courts have recognised that employment can extend beyond the mere fulfilment of daily duties: see Favelle Mort Ltd v Murray; Henderson v The Commissioner of Railways (Western Australia) [1937] HCA 67 ; (1937) 58 CLR 281 ; Commonwealth v Oliver [1962] HCA 38 ; (1962) 107 CLR 353; Hatzimanolis v ANI Corporation Ltd [1992] HCA 21 ; (1992) 173 CLR 473; Humphrey Earl Ltd v Speechley [1951] HCA 75 ; (1951) 84 CLR 126. Particularly with respect to employment in the armed forces, the courts have recognised that employment entails more than simply those duties which are the subject of commands and orders, and includes matters ancillary or incidental to those duties: see Comcare v Mather and Anor (1995) 37 ALD 463; Roncevich ; Commonwealth of Australia v Carter . 24 The High Court in Roncevich considered the question of the activities which constituted employment in the defence force. In Roncevich the applicant had become intoxicated whilst at a military function and had subsequently fallen and injured himself. There was evidence that attendance at the function had been expected but not compulsory. In deciding that the injury arose from the applicant's employment, McHugh, Gummow, Callinan and Heydon JJ said at [23]: '... whether an event arises in the course of an activity, or as here, out of "an activity", depends upon such matters as the nature of the person's employment, the circumstances in which it is undertaken, and what, in consequence, the person is required or expected to do to carry out the actual duties. ' [original emphasis] 26 A definition of employment which rests solely on a temporal distinction between periods on-duty and periods off-duty is likely to be inconsistent with the authorities outlined above. As was the case in Roncevich , there may be periods when a person is officially off-duty and yet is engaged in activities which, as a matter of practicality, form part of their employment. In Wall the Court also accepted that employment in the military may contribute to an injury if it places a person in circumstances which lead to an injury, even where the injurious activity is not specifically required or expected by the employment. I note that in the passage of Roncevich quoted above, the High Court referred to the need to take into consideration the circumstances in which employment is undertaken. This is consistent with previous authority to the effect that matters ancillary or incidental to employment form part of employment: see [22] above. 27 Following the above authorities, I consider that the appropriate approach is to consider the nature of the activity being undertaken at the time the injury is received or the disease is contracted, and the circumstances in which that activity is being undertaken. If the activity is the cause of the injury or disease, and that activity is something which is required or expected as part of the person's duties, then clearly the employment contributes to the injury or disease: see Roncevich . 28 However, even where the specific activity which leads to injury or disease is not itself required or expected as part of the person's duties, where the injury or disease flows from the circumstances in which that activity is undertaken, and those circumstances result from the employment, it may be concluded that the injury or disease was contributed to by the employment: for example, where an injury results from drinking contaminated water from a tap at barracks. Similarly, when the activity is undertaken solely or party because of the circumstances of the employment (as was the case in Wall ), the employment may be found to have contributed to the injury or disease. 29 As the Full Court noted in Wall , causation is a question of fact, and it may be difficult to establish that an injurious activity was engaged in as a result of the circumstances in which a person was placed by their employment: see Wall at [35]. In summary, I consider that an injury or disease may be contributed to by a person's employment if caused by an activity which forms part of that employment or if caused by the circumstances in which the employment is undertaken. 31 The Tribunal's findings with respect to the limits of the applicant's employment were set out relatively briefly although it is clear that the Tribunal had considered the decision of Roncevich when making its findings. The Tribunal adopted the correct approach, except for one aspect. It appears to me that in defining the scope of employment to be applied, the Tribunal may have excluded from its consideration the circumstances in which the employment was undertaken as a contributing factor to the development of injury or disease. However, for the reasons which follow, I do not consider that it was material in this case. 32 The principle that emerges from the above analysis is that in order to demonstrate that employment has contributed to an injury or disease, an applicant must be able to indicate, at least in a general sense, some activity which gave rise to the injury or disease. However in the present case, the applicant has been unable to identify the activity or circumstance which was the cause or likely cause of the infection which led to his reactive arthritis. The medical evidence demonstrates that there are two broad types of infection which might cause reactive arthritis: a gastro-enteric infection or a sexually transmitted disease. Which one of these in fact caused the arthritis is a material factor in determining whether it was more likely that the applicant contracted the infection as a result of his employment or as a result of an extraneous cause. 33 Whilst it is true that his infection may have been contributed to his employment, the Tribunal had no evidence to support the applicant's claim that this was the case. The fact that the applicant spent more time in employment than not in the four months leading up to the arthritis does not establish that the employment contributed to the infection. Whether it was more likely for the applicant to have contracted the infection while working depends entirely on the source of the infection. In the absence of any evidence relating to this issue, the Tribunal was right to reject the time-based probabilistic analysis urged by the applicant. 34 This finding does not mean that a person claiming compensation would always need to demonstrate the exact event which caused an illness to occur, or be able to show with certainty which activity was the cause. If, for example, the applicant in this case had demonstrated that an epidemic of gastro-enteric infections had been experienced at the barracks during the four-month period preceding the onset of his symptoms, the Tribunal may have been able to conclude that it was most likely to have been a gastro-enteric infection contracted in the course of employment which was the cause of his reactive arthritis. However, there is no evidence in the present case which allows the Tribunal to determine that the infection was most likely to have arisen from the applicant's employment. 35 I agree with the Tribunal's finding that the applicant's claim is speculative. There is simply no factual evidence enabling the Court to find that the employment by the respondent contributed to the applicant's disease. The fact that the respondent cannot disprove that the infection was contracted as a result of employment is not a reason to accept that the infection was contracted during employment. Accordingly, I consider the appeal must fail. 36 The delegate of the respondent who originally made the decision in this matter determined that the applicant had suffered a sprain of his left sacro-iliac joint in September 2004, but that the Commonwealth was not liable to pay compensation on and from 31 October 1972 as the condition had resolved within a month. The parties agreed before the Tribunal that this finding should be overturned, and an alternative finding should be made that liability was accepted, but that the applicant suffered no ongoing incapacity from his injury, as the delegate did not have the power to make an original decision in such terms. 37 In affirming the decision under review, the Tribunal failed to overturn the finding of the delegate as sought by both parties, presumably by oversight. The applicant therefore sought an order in this Court overturning that part of the Tribunal's decision which affirmed the delegate's finding with respect to that injury. The respondent has consented to this course before this Court. 38 The applicant says that until receipt of the respondent's submissions in this application, he was not aware that the respondent consented to the applicant's order in respect of the sacro-iliac joint. The applicant therefore claims costs of preparing its case concerning this issue in this Court. 39 I am not satisfied that the applicant should be entitled to its costs on this issue. The applicant was aware that the respondent had not objected to this course before the Tribunal, and therefore was likely to agree to the order sought. Although it may have been helpful for the respondent to have contacted the applicant at an earlier stage, in the absence of such contact the applicant could have sought clarification of the respondent's position before any costs were incurred. There is no evidence that the applicant sought clarification from the respondent at any time before the hearing.


case_text: However, diseases may be contracted by an employee during the period of his service in a temporal sense which are not contributed to by employment. To establish an entitlement to compensation under the SRC Act there must be a causal connection between the employment and the disease or injury sustained by the employee: see Re Tully and Comcare; Military Rehabilitation & Compensation Commission v Wall; Roncevich ; Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323.


case_outcome: applied

case_text: The Magistrate first considered whether as a condition of the no-case submission the respondent should be put to its election to call no evidence. His Honour referred to Protean (Holdings) Ltd v American Home Assurance Co [1985] VR 187 at 238 ( Protean ), where Tadgell J, with whom the other members of the Full Court agreed, said: "In deciding which course to follow the Judge will be guided by the nature of the case, the stage it has reached, the particular issues involved and the evidence that has been given. The imposition of a requirement that the moving party make an election before the Judge entertains the submission, or before he rules on it will depend on the just and convenient disposition of the litigation." 24 As to the "nature of the case" the Magistrate said: "28. ... the nature of the case involves what I regard as [the] serious allegation of unlawful discrimination against a Respondent, which, it is relevant to note, is the operator of a child care centre. To allege that a child care centre has unlawfully discriminated against a disabled child, in my view, is a serious and grave allegation. 29. It is particularly serious when the allegation is based not simply on a failure to provide an item of equipment or a means of access but is directed to what might be described as the day-to-day care of a child and/or the misuse of appropriate Commonwealth funding which in part is designed to optimise, in consultation with appropriate specialists, the use by the child of his right side 30. Hence, in my view, in considering the nature of the case, I am satisfied that these are significant, serious and grave allegations." 25 In considering the "particular issues involved" the Magistrate repeated what he had said about the nature of the case. As to the stage the case had reached, he said that it was at the close of the appellant's case in a hearing that had commenced in March 2006 and had been adjourned to other dates primarily for the convenience of the next friend. His Honour concluded that this was not a case where the respondent should be put to its election. 26 The Magistrate rejected the respondent's submission that there was no evidence that the respondent was an educational authority for the purposes of s 22 of the DDA. 27 The Magistrate then considered the no-case submission in the "broader sense", that is to say on the basis that the respondent was an educational authority. He examined in detail the evidence of Associate Professor Ochiltree, whose expertise in the area of child care he accepted. At the conclusion of this examination the Magistrate said that despite his misgivings about the lack of specifics the Professor provided in relation to certain documents, her untested evidence in chief "would go some way to supporting" the appellant's case. His Honour continued: "52. After the cross-examination of Professor Ochiltree, however, it is my conclusion that she accepted that when further materials concerning plans and like matters of the Respondent were brought to her attention she was satisfied overall that the Respondent's plans and arrangements for Applicant N were appropriate." 28 At the conclusion of a lengthy examination of the detail of the cross-examination of Professor Ochiltree his Honour said: "58. Those extracts ... reveal what I would describe as strong evidence, not in support of the Applicant's claim but rather in support of the Respondent's defence." 29 After quoting passages from the witness's re-examination the Magistrate said: "61. That evidence of Professor Ochiltree, in my view, directly addresses what I regard as the core issues of the claim set out in the extracts from the Statement of Claim earlier in this judgment and addressed relevantly in other evidence of the next friend ... and another supporting witness. 62. The evidence, as I have indicated, in my view, is evidence which goes not to support the Applicant's claim but rather, effectively and ultimately, to support the Respondent's defence. It does so in what I regard as a clear and concise manner and it is perhaps not surprising given that, in the circumstances, when the witness had completed her affidavit earlier this year, I am satisfied she was not in possession of what might be regarded as relevant documents." 30 The Magistrate then considered the appellant's father's evidence, and said that it "reveals what could only be described as a somewhat limited opportunity to make any or any adequate assessment of the reality of the Respondent's premises." The father had said in his evidence in chief that it was open to him to inspect what was happening with his son's special needs program, but he had no reason to suspect that there was anything wrong, and would rarely spend any time at the centre other than picking the son up and dropping him off. 31 The Magistrate examined the evidence of Brian Hoare, an occupational therapist. This witness spoke about the improvement in the appellant's handskills over the period 2002 to 2005. The following exchange occurred in the course of his cross-examination: "What I'm asking you, as an occupational therapist, is very simply this: this child could not have made significant progress that you observed over the previous four years, going back from March 2005 if the place where he spent most of his time was not implementing appropriate therapies on his right hand. It follows, doesn't it?---It does make some sense, yes. Of course, it does. It's an absolute inevitable conclusion, isn't it, Mr Hoare? Do you agree with that?---Yes in terms of his development, he did improve quite a lot over those four years. No that's not the question. I'm saying it's an inevitable conclusion that the crèche provided the appropriate therapy to his right hand. That's the only way he could have made significant progress?---I can't answer that because I wasn't at the crèche." 32 The Magistrate concluded that neither the father's nor Mr Hoare's evidence: "assist the applicant's case in any meaningful sense or would enable this court to make findings in favour of the applicant." 33 The Magistrate concluded his reasons as follows: "72. On my analysis of the material it is evident and leads to a strong conclusion that in applying the relevant principles, which I am bound to apply, set out in Protean the no-case submission should be upheld. I conclude that the evidence for and on behalf of the Applicant is not sufficient to de-bar the Respondent from obtaining judgment without having to answer the evidence adduced against it. In my view, the evidence against the Respondent is so unsatisfactory and/or unreliable that it should not be acted upon. ... 74. I am satisfied that the key expert witness, Professor Ochiltree, gave her evidence in what I describe as a fair and genuinely independent manner. She gave answers, however, which I have indicated earlier, effectively support the Respondent's defence rather than the Applicant's claim. My assessment of the evidence ... is based not on the Briginshaw test but rather on the normal balance of probabilities standard of proof. I have done that, out of an abundance of caution, in order to give the greatest advantage that I may to the Applicant when considering this 'no case' application." 39 In my view there is no obligation on a judge determining a no-case submission to view an applicant's case "at its highest". Over 20 years ago this kind of submission was rejected by the Full Court of the Supreme Court of Victoria in Protean , a decision that has been followed on numerous occasions in this and other Courts. The submission made in Protean is recorded at [1985] VR at 218: "The learned Judge, in deciding the no case submission, embarked upon the wrong exercise, in that he 'finally decided the issues'. The question he should have posed himself, it was said, was not 'should I find the critical result in the defendant's favour, but would it be open to me to do so if the trial went on'. It was submitted that 'the learned Judge misconceived his function in deciding on the no-case submission, because it reads as a final judgment on the facts, as a final resolution of the issues, with inferences drawn and applied as if he were deciding at the end of the whole case. His true function was very special, to decide whether the evidence before him (treating it in the most favourable way to the defendant) permitted the inferences to be drawn in favour of the affirmative defences, and not to decide whether his Honour should draw these inferences." 40 In an oft quoted passage, Tadgell J said at [1985] VR at 239 that in dealing with a no-case submission a judge sitting alone "must be entitled ... to assess the quality of the evidence. Were it otherwise the Judge, being the tribunal of fact, would be placed in an impossible position: he would have to assess the validity of the case for the respondent party without being able to assess the worth or weight of the evidence led in support of it .... If it falls to the Judge to decide whether he could find for the respondent party on the evidence so far led, it is quite unrealistic to expect him to do so without being able to consider all questions which bear on the sufficiency of the evidence and without power to draw or to decline to draw all inferences from the evidence given on which the respondent party might seek to rely." 41 The same submission that was thus rejected in Protean was put to the Full Court of this Court in Rasomen . The submission is recorded at 75 FCR at 227. It was rejected in reliance on what had been said in Protean . At 228 the Full Court said: "the function to be performed by a trial judge sitting without a jury ... is no different from that which has to be performed by a judge who has heard all the evidence of the parties in the ordinary way and who has to give final judgment. In both situations, the judge must make findings of fact, after assessing the quality of the evidence." See also Amcor 169 ALR 344 at [76] per Sackville J and Tru Floor Service Pty Ltd v Jenkins (No 2) (2006) 232 ALR 532 at [36] to [40] per Sundberg J ( Trufloor ). Accordingly this ground of appeal has no substance. 43 Next the appellant attacks the Magistrate's "failure" to put the respondent to its election. As appears from [23] to [25], the Magistrate took into account the matters adverted to in Protean [1985] VR at 238. 44 As the Magistrate said, the appellant alleged that the respondent had engaged in unlawful conduct. Both ss 22(2) and 24(1) of the DDA begin with the words "It is unlawful ...". Furthermore, the broad complaint was that the respondent, a child care centre operator, had discriminated against a child with a disability. In addition, a particular complaint was that the respondent had misused Commonwealth funding that was intended to benefit the child. The Magistrate was clearly entitled to take into account, in the exercise of his discretion not to require the respondent to elect, the seriousness of the allegations made by the appellant. 79 The appellant then relied on the observation of Tadgell J in Protean [1985] VR at 238-239 that in deciding whether or not the general rule as to election should be followed, the Judge "will sometimes be assisted to know the basis on which the moving party seeks to rest his submission of no case". His Honour went on to distinguish three situations: • where the submission is that there is no evidence at all in support of the applicant's case • where although there is some evidence in support of the case, the Judge should not act on it because it is so unsatisfactory or inherently unreliable or equivocal that he should find that the burden of proof has not been discharged • a combination of the above. 80 The appellant's contention was that the respondent had not made this "delineation" and accordingly had denied him procedural fairness. Tadgell J did not posit any requirement that the respondent's counsel state his position. As appears above, his Honour merely said that "sometimes" the Judge will be assisted to know how the case is put. In any event, the transcript shows that counsel put the matter squarely on the first basis. There was no denial of procedural fairness. 81 Then it was said the respondent relied on untendered affidavit material. Nothing turns on this, because the Magistrate made clear at that the material was not before him for the purposes of the no-case submission. This related submission must be rejected. 82 The final complaint under this head relates to the documents Professor Ochiltree was shown in cross-examination. They were marked for identification, but did not go into evidence because of the no-case submission. The Magistrate made clear in the course of the submission that the respondent's documents did not form part of the material on the basis of which he was to rule on the submission. The Magistrate made clear in his reasons that the documents did not go into evidence. However, as he said, this did not preclude his reliance on Professor Ochiltree's evidence in which she referred to those documents. The appellant's complaint that it is not clear whether the documents were part of the evidence on which the no-case submission was decided is rejected.


case_text: In Rasomen Pty Ltd v Shell Co of Australia Ltd (1997) 75 FCR 216 at 223 (' Rasomen ') the Full Court held that s 79 of the Judiciary Act 1903 (Cth) enables the Federal Court to deal with a no-case submission. In Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1 at 6 Finkelstein J referred to both sources of power (Order 35 r 1 and s 79). The Federal Magistrates Court is a s 79 Court. 41 The same submission that was thus rejected in Protean was put to the Full Court of this Court in Rasomen . The submission is recorded at 75 FCR at 227. It was rejected in reliance on what had been said in Protean . At 228 the Full Court said: "the function to be performed by a trial judge sitting without a jury ... is no different from that which has to be performed by a judge who has heard all the evidence of the parties in the ordinary way and who has to give final judgment. In both situations, the judge must make findings of fact, after assessing the quality of the evidence." See also Amcor 169 ALR 344 at [76] per Sackville J and Tru Floor Service Pty Ltd v Jenkins (No 2) (2006) 232 ALR 532 at [36] to [40] per Sundberg J ( Trufloor ). Accordingly this ground of appeal has no substance.


case_text: In Rasomen Pty Ltd v Shell Co of Australia Ltd (1997) 75 FCR 216 at 223 (' Rasomen ') the Full Court held that s 79 of the Judiciary Act 1903 (Cth) enables the Federal Court to deal with a no-case submission. In Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1 at 6 Finkelstein J referred to both sources of power (Order 35 r 1 and s 79). The Federal Magistrates Court is a s 79 Court.


case_outcome: cited

case_text: The appellant contends that the Federal Magistrates Court Rules "do not permit the bringing of a no-case application except insofar as may be permitted by Rule 13.09 (as it then was) ....". In Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 Sackville J was of the view that Order 35 r 1 of the Federal Court Rules authorises the Court to entertain and rule on a no-case submission. That rule gives the Court power at any stage of the proceedings, on the application of any party, to pronounce such judgment or make such orders as the nature of the case requires. Rule 16.01 of the Federal Magistrates Court Rules is to the same effect. 41 The same submission that was thus rejected in Protean was put to the Full Court of this Court in Rasomen . The submission is recorded at 75 FCR at 227. It was rejected in reliance on what had been said in Protean . At 228 the Full Court said: "the function to be performed by a trial judge sitting without a jury ... is no different from that which has to be performed by a judge who has heard all the evidence of the parties in the ordinary way and who has to give final judgment. In both situations, the judge must make findings of fact, after assessing the quality of the evidence." See also Amcor 169 ALR 344 at [76] per Sackville J and Tru Floor Service Pty Ltd v Jenkins (No 2) (2006) 232 ALR 532 at [36] to [40] per Sundberg J ( Trufloor ). Accordingly this ground of appeal has no substance. 46 Amcor was not a fraud case. The allegation was that Amcor had made an arrangement containing an exclusionary provision, in contravention of s 45(2)(a)(i) of the Trade Practices Act 1974 (Cth). Sackville J at 169 ALR at [68] considered that allegation analogous to one of fraud because it was a very serious allegation. 47 The other matters the Magistrate took into account were appropriate: the probable saving of time and expense ( Amcor , Trufloor ), and his obvious, though not expressly articulated view, that the no-case submission was strongly arguable ( Amcor , Puddy and Trufloor ). Further, this was not a case where it was necessary for the Magistrate to assess the credit of any of the witnesses ( Amcor ). This ground of appeal must be rejected.


case_text: The same submission that was thus rejected in Protean was put to the Full Court of this Court in Rasomen . The submission is recorded at 75 FCR at 227. It was rejected in reliance on what had been said in Protean . At 228 the Full Court said: "the function to be performed by a trial judge sitting without a jury ... is no different from that which has to be performed by a judge who has heard all the evidence of the parties in the ordinary way and who has to give final judgment. In both situations, the judge must make findings of fact, after assessing the quality of the evidence." See also Amcor 169 ALR 344 at [76] per Sackville J and Tru Floor Service Pty Ltd v Jenkins (No 2) (2006) 232 ALR 532 at [36] to [40] per Sundberg J ( Trufloor ). Accordingly this ground of appeal has no substance.


case_text: Many of the cases in which no election has been required have involved allegations of fraud. In one of them, Union Bank of Australia Ltd v Puddy [1949] VLR 242 at 246 (' Puddy ), Fullagar J said: "where, as in the case before me, fraud is alleged, it may often be wrong to suggest that a party should submit himself to cross-examination before it is seen that there is really some evidence against him." See also Trufloor 232 ALR at [27] to [29]. 47 The other matters the Magistrate took into account were appropriate: the probable saving of time and expense ( Amcor , Trufloor ), and his obvious, though not expressly articulated view, that the no-case submission was strongly arguable ( Amcor , Puddy and Trufloor ). Further, this was not a case where it was necessary for the Magistrate to assess the credit of any of the witnesses ( Amcor ). This ground of appeal must be rejected.


case_title: TNT Management Pty Ltd v Brooks (1979) 23 ALR 345

case_text: In TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267 at 269 the High Court approved of the following passage from an earlier case which said that in civil cases "you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture .... But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise." 62 The appellant relies on ten matters in support of the claimed inference. The first is the respondent's failure to offer evidence of a program of specialised assistance. This is an example of the appellant's refusal to acknowledge the nature of a no-case submission. What the respondent's evidence was is simply not relevant. 63 Then the appellant says that such evidence of assistance as was offered by the respondent was at best sporadic, piecemeal and ad hoc, reflecting the fact that he was treated like any other child at the Centre. This ignores the evidence of Professor Ochiltree and Mr Hoare, which the Magistrate understandably preferred to the appellant's assertions about the nature of the assistance. As the Magistrate said, the father's attendance at the Centre was such that he could not say anything useful about the service provided to his son.


case_outcome: distinguished

case_text: A related submission was that the appellant was denied natural justice because the Court permitted the respondent to proceed with its no-case submission where the respondent's grounds for such application were unclear. This was said to be the case because the respondent submitted that the evidence was "against" the allegations in pars 21 and 24 of the statement of claim, "while the relevant test required 'no evidence' for the case to be unarguable". Reliance was placed on the observations of Dixon J in Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91-92. His Honour was there concerned with an application in the inherent jurisdiction of the Court to stop the abuse of its process when it is employed for groundless claims. The case did not involve a no-case submission, and nothing was said by his Honour about that procedure. All that was said was that a case must be "very clear indeed" to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner. I can find no reference in the judgment to "no evidence", and it has no application to the present case. 78 Then it was said that the respondent submitted to the Magistrate both that there was no evidence to support the appellant's propositions about SNSS funding and that the evidence was against relevant allegations about the funding. This is said to have rendered unclear the way the no-case submission was put. The transcript discloses that the respondent's counsel initially submitted that there was no evidence to support the allegations in the central parts of the statement of claim. Later he said the evidence was clearly against the allegations in pars 15 and 18 (described at [9] and [12] respectively). Later still he said it was overwhelmingly against those in par 18. Putting his submission in this manner did not make its basis unclear. In this case the word "against" and the expression "overwhelmingly against" were not mere barristerial hyperbole. Nor were they only emphatic ways of submitting that there was no evidence to support those particular allegations. The terms of the SNSS Guidelines and Professor Ochiltree's evidence made this a case where in relation to those allegations there really was a difference between "no evidence" to support them and the evidence being "against" them.


case_outcome: considered

case_text: This is an application for leave to appeal against orders made by Scarlett FM on 3 March 2008: SZLPH v Minister for Immigration and Citizenship [2008] FMCA 342. Pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) ("the FMC Rules "), his Honour dismissed an application for review of a decision of the Refugee Review Tribunal ("the RRT") delivered on 11 October 2007. 2 The requirement for leave arises under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act "). Under section 24(1)(d) , the Federal Court has jurisdiction to hear and determine appeals from judgments of the Federal Magistrates Court exercising original jurisdiction under a law of the Commonwealth, such as the Migration Act 1958 (Cth) ("the Act "). However, an appeal shall not be brought from such a judgment if it is interlocutory unless the Federal Court or a Judge gives leave to appeal: s 24(1A) of the Federal Court Act . 3 The applicant also seeks an order dispensing with compliance with O 52 r 5(2) of the Federal Court Rules 1979 (Cth) ("the Federal Court Rules").


case_text: Rule 44.12(2) of the FMC Rules expressly provides that, to avoid doubt, a dismissal of an application for relief by the Federal Magistrates Court under r 44.12(1)(a) is interlocutory. The FMC Rules bind Federal Magistrates but cannot bind this Court. See SZHUS v Minister for Immigration and Multicultural Affairs [2007] FCA 64 at [2] although compare the reliance placed upon the provisions of the FMC Rules in SZHVP v Minister for Immigration and Multicultural Affairs [2006] FCA 1360 at [3] and NBLH v Minister for Immigration and Citizenship [2007] FCA 209 at [1] .


case_title: SZHVP v Minister for Immigration and Multicultural Affairs [2006] FCA 1360


case_title: NBLH v Minister for Immigration and Citizenship [2007] FCA 209


case_text: However, the application of general principles concerning the nature of interlocutory judgments establishes that dismissal pursuant to r 44.12(2) is interlocutory in nature. See Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 and Rana v University of South Australia [2004] FCA 559 ; (2004) 136 FCR 344 , as cited in SZKCV v Minister for Immigration and Citizenship [2007] FCA 1201 per Jessup J at [3]. The test whether an order is interlocutory or final is whether the order made finally determines the legal rights of the parties in the principal proceeding before the Court: Bienstein v Bienstein [2003] HCA 7 ; (2003) 195 ALR 225. Regard must be had to the legal, as distinct from the practical, effect of the judgment: SZDGN v Minister for Immigration and Multicultural Affairs [2004] FCA 1543 at [3] per Lindgren J. It is clear, in my view, that Scarlett FM's decision to dismiss the application on the basis that it disclosed no arguable case for the relief sought must be regarded, as the authorities stand, as interlocutory.


case_title: Rana v University of South Australia [2004] FCA 559 ; (2004) 136 FCR 344


case_title: SZKCV v Minister for Immigration and Citizenship [2007] FCA 1201


case_title: Bienstein v Bienstein [2003] HCA 7 ; (2003) 195 ALR 225


case_title: SZDGN v Minister for Immigration and Multicultural Affairs [2004] FCA 1543


case_text: In Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 , the Full Court held that leave to appeal from an interlocutory judgment required the applicant to show that there was sufficient doubt as to the correctness of the judgment below to warrant reconsideration and, further, that if that judgment was assumed to be wrong, substantial injustice would be suffered by the applicant were leave to be refused. 15 Rule 44.12 of the FMC Rules deals with the conduct of a show cause hearing. That rule provides that at such a hearing the Federal Magistrates Court may, if it is not satisfied that the applicant has raised an arguable case for relief, summarily dismiss the application. 16 In the present application for leave, the Minister submitted that the applicant had failed to show any doubt as to the correctness of the judgment below and had also failed to show that he would suffer substantial injustice if leave to appeal were refused.


case_text: In any event, the Minister submitted, it would not be in the interests of justice for this new ground to be entertained now because it had no prospect of success: see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 at [26] - [27] ; O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at 319; and Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7. The Minister submitted that the proposed ground contained nothing more than an unparticularised assertion that the RRT had "totally ignored the requirements of s 36(2) read with s 422B". Such a complaint was meaningless given that neither of these provisions imposed any mandatory obligations upon the RRT.


case_title: O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310


case_title: Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1


case_text: The Minister submitted that the RRT was not able to be satisfied that the applicant met the s 36(2) criteria for the grant of a protection visa. Therefore it had no option but to refuse to grant him such a visa: SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] . 22 The Minister added that to the extent that this ground was intended to allege a failure by the RRT to comply with one or more of its statutory obligations under Div 4 of Pt 7 of the Act (s 422B of which provides represents an exhaustive statement of the natural justice hearing rule), the RRT had complied with those obligations, including those pursuant to ss 425 and 425A of the Act . 23 Ground 2 is in the following terms: "That the decision of the RRT says that the applicant satisfies the criterion for refugee visain [sic] conclusion of the statement of decision, the RRT remitted back the case to the department. After a few weeks times the appellant was notified by another decision which is quite different to the decision made on 11/10/2007, which really requires the judicial inference [sic] of this honourable Court to meet the ends of justice." 24 The Minister submitted that no arguable jurisdictional error arose by reason of the fact that the RRT's decision record, as initially sent to the applicant on 11 October 2007, contained a clerical error, and the Federal Magistrate was correct in so finding. 25 The Minister further submitted that the RRT's obligation to send the applicant a copy of the decision was not one which could impact upon the validity of the decision itself. That was because the decision had already been made.


case_text: In SZFLM v Minister for Immigration and Citizenship [2007] FCA 863 (recently applied in SZJHM v Minister for Immigration and Citizenship [2007] FMCA 1847 and SZKTR v Minister for Immigration and Citizenship [2007] FCA 1767) , Madgwick J considered whether the RRT's failure to send the appellant a complete copy of its reasons for decision, in breach of s 430B(6) of the Act , amounted to a reviewable error. The copy of the decision sent to the appellant was missing page five, which set out the RRT's reasons. The incomplete decision record was therefore sufficient to notify the appellant of what decision had been made but not why.


case_title: SZJHM v Minister for Immigration and Citizenship [2007] FMCA 1847


case_title: SZKTR v Minister for Immigration and Citizenship [2007] FCA 1767


case_text: The authorities dealing with errors of a typographical nature are also relevant. In particular, the Minister drew my attention to the observations of Marshall J in Foroghi v Minister for Immigration and Multicultural Affairs [2001] FCA 1875 where his Honour stated (at [48]): "Occasionally the RRT, like other decision-makers, delivers reasons for decision without 100% proof reading. Occasionally mistakes are not discovered even when the best proof readers have examined draft reasons. The existence of typographical error is best acknowledged rather than attempted to be exploited; see CCC v Minister for Immigration and Multicultural Affairs [2001] FCA 682." 30 In Foroghi , the RRT wrongly referred to the applicant (rather than another person) as being dead. In CCC v Minister for Immigration and Multicultural Affairs [2001] FCA 682 , a judgment also delivered by Marshall J, the RRT had made a typographical error in omitting the word 'not' from its finding as follows: "...the Tribunal is satisfied that there is a real chance that [CCC] faces persecution for reason of her race, should she return to Sri Lanka."


case_text: The authorities dealing with errors of a typographical nature are also relevant. In particular, the Minister drew my attention to the observations of Marshall J in Foroghi v Minister for Immigration and Multicultural Affairs [2001] FCA 1875 where his Honour stated (at [48]): "Occasionally the RRT, like other decision-makers, delivers reasons for decision without 100% proof reading. Occasionally mistakes are not discovered even when the best proof readers have examined draft reasons. The existence of typographical error is best acknowledged rather than attempted to be exploited; see CCC v Minister for Immigration and Multicultural Affairs [2001] FCA 682." 30 In Foroghi , the RRT wrongly referred to the applicant (rather than another person) as being dead. In CCC v Minister for Immigration and Multicultural Affairs [2001] FCA 682 , a judgment also delivered by Marshall J, the RRT had made a typographical error in omitting the word 'not' from its finding as follows: "...the Tribunal is satisfied that there is a real chance that [CCC] faces persecution for reason of her race, should she return to Sri Lanka." 31 Marshall J said in CCC , at [29]: "I see no reason to defy commonsense by not observing that a typographical error was made. I would read in the word 'not' prior to the word 'satisfied' in the sentence quoted above." 32 These observations are relevant to the present application. No arguable jurisdictional error arose out of the clerical error which the RRT made. That error was not capable of affecting the exercise of its jurisdiction. 33 Ground 3 is in the following terms: "That the Respondents have failed to assess the claims made by the appellant as per the refugee law as laid down by the hand book of the UNHCR. The real threat to the life of the Appellant was not considered in the instant case."


case_title: Australian Competition and Consumer Commission v Info 4PC.Com Pty Ltd [2002] FCA 949 ; (2002) 121 FCR 24

case_text: In Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 149 FCR 494 at 501-502, Merkel J identified the following considerations as being relevant to the determination of an appropriate penalty for contempt of Court: • The contemnor's personal circumstances; • The nature and circumstances of the contempt; • The effect of the contempt on the administration of justice; • The contemnor's culpability; • The need to deter the contemnor and others from repeating contempt; • The absence or presence of a prior conviction for contempt; • The contemnor's financial means; • Whether the contemnor has exhibited general contrition and made a full and ample apology; • Whether the conduct falls within the most serious category of criminal contempt cases such as to warrant the imposition of a term of imprisonment; and • Whether or not imprisonment is a "last resort" penalty in the circumstances of the case. See also Australian Competition and Consumer Commission v Info4PC.Com Pty Ltd [2002] FCA 949 ; (2002) 121 FCR 24 at 54; Australian Competition and Consumer Commission v World Netsafe Pty Ltd [2003] FCA 1501 ; (2003) 204 ALR 537 at 540.


case_title: Australian Competition and Consumer Commission v World Netsafe Pty Ltd [2003] FCA 1501 ; (2003) 204 ALR 537


case_text: The following passage from Merkel J's sentencing remarks in Siminton (No 3) is relevant for present purposes: "The court has a broad discretion as to penalty. Having regard to the factors set out above [those noted at [15] of these reasons] and the matters put forward by counsel on behalf of Siminton, the appropriate term of imprisonment for the disposal contempt is 10 weeks. I would add that had there been any prior contempt convictions, the penalty would have been significantly greater. I am not prepared to accede to Siminton's submission that any sentence of imprisonment should be suspended." See Australian Prudential Regulation Authority v Siminton (No 3) [2006] FCA 397 ; (2006) 230 ALR 528 at 532.


case_text: On 7 November 2007 I found that Mr Siminton had committed eight contempts of Court involving contraventions of an order made by Gray J on 10 January 2006: see Australian Prudential Regulation Authority v Siminton (No 7) [2007] FCA 1609. These reasons should be read in conjunction with those in Siminton (No 7) . 2 Gray J's order restrained Mr Siminton from dealing with, withdrawing or disposing of moneys held in various accounts. The contempts were committed when Mr Siminton either caused the funds to be transferred from such accounts into an account held by a Mr & Mrs Holzheimer in the Bank of Adelaide or he withdrew transferred funds from the Holzheimer's account. Mrs Holzheimer had obtained a Visa card which she provided to Mr Siminton. The card enabled Mr Siminton to draw on the account at automatic teller machines and, by presenting the card, to undertake credit card transactions with merchants. He used the card for these purposes. 3 Charges 1.1 to 1.5 related to transfers into the Holzheimer's account from a Mobile EFT Pty Ltd account controlled by Mr Siminton. The dates on which the transfers occurred and the amounts involved were as follows: • Charge 1.1: 2 May 2006 - $5,760.30. • Charge 1.2: 3 May 2006 - $3,125.88. • Charge 1.3: 4 May 2006 - $228.84. • Charge 1.4: 8 May 2006 - $781.28. • Charge 1.5: 16 May 2006 - $4,608.50. 4 Charge 1.7 related to the use, by Mr Siminton, of moneys transferred into the Holzheimer's account. Between 2 May and 16 August 2006 over $33,000 was withdrawn from the Holzheimer's account by Mr Siminton and applied by him for various purposes including the payment of legal fees. 7 On 30 March 2006 Mr Siminton had been found guilty of various contempts. On 10 April 2006 Merkel J sentenced him to imprisonment for a period of 10 weeks for transferring over $600,000 from one account to another and attempting to withdraw $500,000 from the account into which the money had been transferred. This conduct constituted a breach of an order made by Sundberg J which was in substantially the same terms as the order of Gray J which Mr Siminton subsequently contravened. Mr Siminton was also fined $5,000 for failing to comply with orders made by Sundberg J that he post notices on two websites. 8 APRA contends, and I accept, that Mr Siminton's conduct, in each case, was "deliberate, calculated and disguised." He was well aware of the orders made by Gray J and the constraints which those orders imposed on him. Nonetheless, he continued to draw on funds which he knew were the subject of his Honour's orders. On 11 April 2006, the day after Merkel J sentenced Mr Siminton for having breached orders made by Sundberg J, Mrs Holzheimer reported to the Adelaide Bank that her Visa credit card had been lost. A replacement card was issued to her on the same day. It was that card which Mr Siminton used to make the withdrawals or incur the expenses which are the subject of Charges 1.7 and 1.11. The arrangements with the Holzheimer's, pursuant to which Mr Siminton was able to obtain a card to operate their account and was able to transfer funds into it and withdraw funds from it, was designed to mask the fact that Mr Siminton was, as he well knew, acting in breach of Gray J's orders. 9 The only evidence called by Mr Siminton in mitigation of his conduct was provided by Mr Peter Dodson and his sister Miss Susan Dodson. They testified to what they regarded as his "honesty". Miss Dodson also described him as "trustworthy" and "decent". She was prepared to concede that an honest person would not deliberately flout an order of the Court. Mr Dodson was not prepared to make that concession. Neither witness had a clear appreciation of Mr Siminton's conduct. Neither had read my reasons for decision in Siminton (No. 7) . 10 One of the defences raised by Mr Siminton, when he was dealing with the charges, was that Gray J's order lacked clarity. I dealt with this aspect of his defence in Siminton (No. 7) at [43]-[51]. I noted that, on the authorities there cited, it would be a relevant factor, in sentencing Mr Siminton for any contempt which he might be found to have committed, that he had a bona fide misunderstanding of Gray J's order. Mr Siminton gave no evidence at the penalty hearing. He did not, therefore, make any attempt to suggest that, in fact, he laboured under any misunderstanding of Gray J's order when engaging in the impugned conduct. 11 Despite numerous opportunities to do so Mr Siminton has failed to provide evidence of his personal and financial circumstances. What is known is that, since 2001, he has been an undischarged bankrupt and that he has failed to provide a statement of affairs in accordance with the requirements of the Bankruptcy Act 1966 (Cth). Counsel for Mr Siminton advised the Court, on instructions, that his client is impecunious. He also advised that a friend of Mr Siminton's might be disposed to provide money to meet any fine imposed by the Court. No indication was given of the maximum amount which the friend might be minded to advance for this purpose. 12 It is also notable that Mr Siminton did not apologise, express regret or in any other way seek to purge his contempt. 14 I have concluded that Mr Siminton's conduct constituted wilful disobedience and contumacious disregard of Gray J's orders. His multiple contraventions are rendered all the more serious by reason of the fact that he had, by the time at which they were committed, been found guilty of a number of contempts constituted by breaches of orders which related to the same funds which are the subject of the present charges. Each of the contraventions constituted a criminal contempt. 16 It cannot be gainsaid that the contempts presently under consideration fall into the most serious category. Having given careful attention to the various considerations referred to in para [15] above, I have concluded that there is no alternative but to sentence Mr Siminton to a period of imprisonment. The eight contempts formed part of a scheme, devised and implemented by Mr Siminton, to contravene Gray J's orders in a way that, he no doubt hoped, would not be detected. Although it is appropriate that a particular penalty be attached to each contempt, those penalties should, therefore, be served concurrently. 18 The copy of the orders, made by Gray J on 10 January 2006, which was first served on Mr Siminton, did not contain the endorsement required by O 37 r 2 of the Federal Court Rules . Once this deficiency was recognised by APRA, an endorsed copy of orders was served on Mr Siminton. This occurred on 9 May 2006. In Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118 ; (2006) 152 FCR 129 at 145-147 the Full Court held that, in the absence of an endorsement or a dispensation granted by the Court, the Court could not order the contemnor to be imprisoned. The Court held that a dispensation might be given, inter alia, where the contemnor had been in Court at the time at which the orders were pronounced or where there was evidence that the contemnor had knowledge of the need to obey the order: see at 147. 19 Mr Siminton was present in Court on 10 January 2006 when Gray J made his orders. On 29 December 2005, 4 January 2006 and 19 January 2006 APRA had filed notices of motion and statements of charge seeking orders that Mr Siminton be punished for contempt of the orders made by Sundberg J on 15 December 2005. The relevant part of Sundberg J's orders was in substantially the same terms as the relevant part of Gray J's orders. Those charges were heard before Merkel J on 29 and 30 March 2006. On 10 April 2006 Merkel J ordered that Mr Siminton be imprisoned for contempt of Sundberg J's orders. It may, therefore, readily be inferred that Mr Siminton was well aware, before 2 May 2006, of the need for him to obey Gray J's orders and of the potential consequences if he failed to do so. In my view this is an appropriate case in which to grant a dispensation under Order 37 r 2(6) and I do so. 20 Although the amounts of money involved in the various contempts varied between $228.84 and over $33,000, I treat them all as warranting the imposition of the same term of imprisonment. I do so because the larger sums involved in Charges 1.7 and 1.11 are, in each case, aggregations of the sums involved in numerous smaller transactions. The money which was transferred from Austria and is the subject of Charge 1.9 was used to facilitate many of the smaller transactions which were dealt with in Charge 1.11. 21 I have determined that the appropriate penalty for each offence is a sentence of imprisonment for 12 months, with each sentence to be served concurrently with each other sentence. 22 APRA seeks an order that Mr Siminton pay its costs on a solicitor-client basis. It does so because it has expended public funds in seeking to protect the interests of members of the public who have contributed to the funds which were subject to Gray J's order and in seeking to vindicate the authority of the Court. Such an order is, in my view, appropriate in the circumstances. APRA should not have to bear the costs incurred by it in prosecuting the contested contempt charges. 23 Counsel for Mr Siminton advised the Court that Mr Siminton proposes to file an appeal against my contempt findings and any penalties which I might impose. I will, therefore, hear the parties as to whether or not the warrant for the committal of Mr Siminton to prison should lie in the Registry of the Court until his proposed appeal has been heard and determined. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate: Dated: 28 November 2007 Counsel for the Applicant: Ms D Mortimer S.C & Mr S Hibble Solicitor for the Applicant: Australian Prudential Regulation Authority Counsel for the Respondent: Mr D Sharp Solicitor for the Respondent: Erhardt & Associates Date of Hearing: 15 November 2007 Date of Judgment: 28 November 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1814.html


case_title: Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 149 FCR 494


case_title: Clifford v Middleton [1974] VR 737

case_text: I do not consider that a distinction should be drawn between the four charges that relate to events which occurred before 9 May 2006 and the other four which occurred after that date. The purpose of the endorsement provided for in Order 37 r 2 of the Federal Court Rules is to alert the person, to whom the orders are directed, that he or she stands in jeopardy of imprisonment if he or she fails to comply with the orders. Given that the liberty of the subject is at stake the Court will not lightly exercise its power under Order 37 r 2(6) and dispense with the requirement of service of a properly endorsed order. It will not do so unless "the evidence shows that the requirements of and the purpose of a particular rule have been fulfilled in a manner otherwise than in the form provided": see Clifford v Middleton [1974] VR 737 at 741, a passage which was quoted with approval by the Full Court in Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118 ; (2006) 152 FCR 129 at 147.


case_text: Electrolux Home Products Pty Ltd v Australian Workers' Union [2001] FCA 1600 (' Electrolux No. 1 ') the Court considered whether a claim that the employer contribute the equivalent of 1.5 per cent of an employee's weekly wage for a scheme to protect long service leave and other entitlements in an external trust deed pertained to the relationship of employer and employee. Justice Merkel at [21] conveniently summarised the relevant principles as follows: The general approach to be adopted in determining the characterisation of an industrial claim is to look at the substance of the demand and to identify the aspect that is central to the claim, or a critical part of it, having regard to the context in which the claim is made: see Re The Amalgamated Metal Workers Union of Australia; Ex parte Shell Co. of Australia Ltd [1992] HCA 38 ; (1992) 174 CLR 345 (" Shell ") at 358-359. The claim is not to be construed as if it were a document creating legal rights and obligations: see Shell at 359. Finally, a claim can be properly characterised as pertaining to the relationship of an employer and its employees notwithstanding that parts of a claim that are machinery provisions giving effect to the claim (see Shell at 359), or ancillary aspects of it (see R v Portus; Ex parte Australia and New Zealand Banking Group Ltd [1972] HCA 57 ; (1972) 127 CLR 353 (" Portus ") at 372), may not pertain to that relationship. If a claim pertains to the requisite relationship in accordance with the above principles it is because it is in respect of a matter that pertains to that relationship.


case_text: High Court in Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40 ; (2004) 221 CLR 309 (' Electrolux No. 2 ') confirmed that the principles discussed in the preceding paragraphs apply to the Act. Gleeson CJ said at [10]: The Court [in Portus at 359, 362] approved statements in R v Kelly; Ex parte Victoria to the effect that "the relations of employers and employees" refers to the industrial relationship, and not to matters having an indirect, consequential and remote effect on that relationship. [Footnote omitted].


case_title: Re Manufacturing Grocers' Employees Federation of Australia and Another; Ex parte The Australian Chamber of Manufacturers and Another [1986] HCA 23 ; (1986) 160 CLR 341

case_text: the union submits that the payments made by the employer to the insurer for income protection insurance should simply be seen as a reward for services, in the same way that a salary is a reward for services. The union relies upon the judgment of Steven J in Portus at 371 where his Honour said: The necessary quality of a subject matter demanded which is concerned with reward for work performed is, I think, that it be, of itself, inherently associated with the relationship of employer and employee and not with some other type of relationship. Reward by way of remuneration of course conforms most clearly to such a test; the payment of wages or salary is inherent in the relevant relationship. Likewise demands for, for instance, paid annual holidays or retirement benefits... would, I think, satisfy this requirement... As evidence that payments are merely another form of reward for services, the union emphasises the fact that the clause requires payments of premiums to be made by the corporation to the insurer only whilst the Maritime Officer is in the employ of the corporation, adopting the reasoning of the High Court in Re Manufacturing Grocers' Employees Federation of Australia and Another; Ex parte The Australian Chamber of Manufactures and Another [1986] HCA 23 ; (1986) 160 CLR 341 (' the Superannuation Case ') at 356.


case_text: The Queen v Hamilton Knight and Others; Ex parte Commonwealth Steamship Owners Association [1952] HCA 38 ; (1952) 86 CLR 283 the High Court recognised that a causal connection between the employment and the injury was a vital consideration in determining whether workers compensation benefits could be found to be directly connected with the relationship between the employer and employee: see Dixon CJ at 296; Kitto J at 329. In the present case there is no necessity that there be a causal connection between the employment and the injury which triggers income protection insurance benefits, since the event giving rise to the insurance benefit may be unconnected with the employment. Immediately before the passage of Steven J in Portus cited at [15] of this judgment, his Honour said: Not every demand for reward for work performed will render the subject matter of the demand an industrial matter. The matter demanded must always pertain to the employer-employee relationship... It follows that the mere assertion by the union that such payments of insurance premiums are a reward for services does not, without more, establish the necessary nexus to the employment relationship. The union's reliance on the High Court in the Superannuation Case at 356 where it said ' the obligation of the employer to make payments ends with the relationship between him and his employee ' is insufficient to establish that nexus. This particular passage was used in the context of distinguishing superannuation from pensions, which had been found in Hamilton Knight to not pertain to the relationship between employer and employee, rather than to provide a reason why superannuation could be considered to pertain to the relationship between employer and employee.


case_text: union relies on the decision of the High Court of Australia in The Queen v Portus and Another; Ex parte Australia and New Zealand Banking Group Limited and Others [1972] HCA 57 ; (1973) 127 CLR 353 and subsequent decisions of the High Court and Federal Court of Australia considered hereunder which concern the relationship of employer and employee in support of its submission that income insurance protection arises out of the relationship between employer and employee. Further, the union submits that the payments made by the employer to the insurer for income protection insurance should simply be seen as a reward for services, in the same way that a salary is a reward for services. The union relies upon the judgment of Steven J in Portus at 371 where his Honour said: The necessary quality of a subject matter demanded which is concerned with reward for work performed is, I think, that it be, of itself, inherently associated with the relationship of employer and employee and not with some other type of relationship. Reward by way of remuneration of course conforms most clearly to such a test; the payment of wages or salary is inherent in the relevant relationship. Likewise demands for, for instance, paid annual holidays or retirement benefits... would, I think, satisfy this requirement... As evidence that payments are merely another form of reward for services, the union emphasises the fact that the clause requires payments of premiums to be made by the corporation to the insurer only whilst the Maritime Officer is in the employ of the corporation, adopting the reasoning of the High Court in Re Manufacturing Grocers' Employees Federation of Australia and Another; Ex parte The Australian Chamber of Manufactures and Another [1986] HCA 23 ; (1986) 160 CLR 341 (' the Superannuation Case ') at 356. In Portus the High Court considered whether an attempt to impose an obligation on banks to pay union dues out of monies earned by employees in accordance with authorities given by such employees gave rise to an ' industrial matter ' as defined in s 4 of the Conciliation and Arbitration Act. The High Court in Portus found that the dispute arising out of such demand did not constitute an ' industrial matter ' as defined in s 4 since the payments for union dues were to be made by the employer only after income had been earned by the employee. Menzies J at 360 observed that the pivotal question was whether the imposition upon an employer of an obligation to make deductions for the purpose of making the subject payment ' affects the industrial relationship of employers and employees '. Having observed that the payment was to be made out of ' earned salaries ' his Honour at 360 said: In my opinion, the relationship that would be affected by such an obligation is a financial relationship of debtor and creditor arising from the earning of salary, not the industrial relationship in which the salary has been earned and has become payable. What is sought, in reality, is to make the employer the financial agent of the employee for the benefit of the association... In my opinion, the facts before the Court disclose a dispute which is not an industrial dispute. It is, in truth, a dispute between the association and the banks about whether or not the banks should perform for the association a dues-collecting service. See also Walsh J at 363 and Steven J at 371. In the Superannuation Case the High Court found that a demand that employers contribute to a superannuation scheme related to an ' industrial matter ' within the meaning of s 4 of the Conciliation and Arbitration Act. At 356-357 their Honours said: First, it was said that the claims are for payments in respect of which employees will have no entitlement until the relationship of employer and employee has ceased to exist. The answer was made that the employee will receive a vested interest in the money paid, albeit not in possession, when the contributions are made by the employer to the fund. Whether or not this be so, the fact that there is no immediate benefit to employees from the payments to be made by employers, at any rate in any tangible form, does not in our view mean that those payments cannot pertain to the relations of an employee with his employer... payments do not cease to be remuneration for service during the relationship merely because the benefit from them is deferred until after the service has been finally performed and the relationship has ended. The obligation of the employer to make payments ends with the relationship between him and his employee unlike the obligation of an employer to pay a pension, which necessarily extends beyond the period of employment. It is in our view of no significance that an employee receives no immediate benefit, other than such interest as he might have in the superannuation fund, from the payment of contributions to the fund by his employer... Next, it was submitted that, since the payments claimed are to be made to the trustees of superannuation funds who are third parties, they involve relationships which are not those of employers and employees. It is obvious that the relationship between an employer and the trustee of a superannuation fund is not that of employer and employee, but that is hardly to the point. As the decision in Reg. v. Portus; Ex parte A.N.Z. Banking Group Ltd . shows, the identity of the payee is ordinarily not of significance in determining whether payments made by an employer to a person other than his employee constitute an industrial matter. But the opposite is the case where the payments are to a superannuation fund, because the character of the payee and the capacity in which he receives the payments provides the very connexion with the relationship between the employer and employee which is necessary if those payments are to be an industrial matter. Because the payments are to a superannuation fund, they form, to use the words of Menzies J., an incident of the employment... There is no reason why those payments should be seen in any other way than as contributions by an employer to a fund for the benefit of an employee. No doubt the payments represent money earned in an industrial relationship, but they do not represent money to which an employee is himself presently entitled... [Footnotes omitted]. In Electrolux Home Products Pty Ltd v Australian Workers' Union [2001] FCA 1600 (' Electrolux No. 1 ') the Court considered whether a claim that the employer contribute the equivalent of 1.5 per cent of an employee's weekly wage for a scheme to protect long service leave and other entitlements in an external trust deed pertained to the relationship of employer and employee. Justice Merkel at [21] conveniently summarised the relevant principles as follows: The general approach to be adopted in determining the characterisation of an industrial claim is to look at the substance of the demand and to identify the aspect that is central to the claim, or a critical part of it, having regard to the context in which the claim is made: see Re The Amalgamated Metal Workers Union of Australia; Ex parte Shell Co. of Australia Ltd [1992] HCA 38 ; (1992) 174 CLR 345 (" Shell ") at 358-359. The claim is not to be construed as if it were a document creating legal rights and obligations: see Shell at 359. Finally, a claim can be properly characterised as pertaining to the relationship of an employer and its employees notwithstanding that parts of a claim that are machinery provisions giving effect to the claim (see Shell at 359), or ancillary aspects of it (see R v Portus; Ex parte Australia and New Zealand Banking Group Ltd [1972] HCA 57 ; (1972) 127 CLR 353 (" Portus ") at 372), may not pertain to that relationship. If a claim pertains to the requisite relationship in accordance with the above principles it is because it is in respect of a matter that pertains to that relationship. The High Court in Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40 ; (2004) 221 CLR 309 (' Electrolux No. 2 ') confirmed that the principles discussed in the preceding paragraphs apply to the Act. Gleeson CJ said at [10]: The Court [in Portus at 359, 362] approved statements in R v Kelly; Ex parte Victoria to the effect that "the relations of employers and employees" refers to the industrial relationship, and not to matters having an indirect, consequential and remote effect on that relationship. [Footnote omitted]. When considering whether the clause is connected with the relationship between an employer in its capacity as an employer and an employee in its capacity as an employee, the relationship had to be ' direct and not merely consequential ' in order to be the subject of an industrial dispute under the Conciliation and Arbitration Act: see the Superannuation Case at 353; see also Gleeson CJ's statement at [10] in Electrolux No. 2 . That is, the obligation imposed upon the corporation must arise inherently from the relationship of employer and employee. The union sought to equate the income protection insurance scheme with superannuation contributions as considered in the Superannuation Case . Superannuation contributions have been recognised as a form of payment in lieu of remuneration: see the Superannuation Case at 354; see also 355-356 wherein the Court referred to the fact that superannuation payments were commonly regarded as an aspect of the terms and conditions of employment. However, the benefit to be obtained under the clause and the circumstances in which it becomes payable are very different to a superannuation entitlement, for the reasons explained below. Firstly, the quantum of the benefit which accrues under superannuation entitlements is directly connected with the service performed by the employee. This is demonstrated by the fact that generally the greater the size of the employee's salary and the greater the length of time worked, the greater the superannuation benefit that accrues, even though receipt of such benefit is postponed until an event such as retirement occurs, and even though the exact dollar amount of the eventual benefit is unlikely to be the same as what was contributed by the employer. This was recognised by the High Court in the Superannuation Case when it said at 354: ... the superannuation schemes which are envisaged are to provide benefits either upon the accumulation principle so that the extent of those benefits will depend on the level of the contribution to the particular scheme, or as defined benefits which will be fixed... it is said that an employee will have a vested interest in the fund and thus in the contributions when they are made, although his interest will not fall into possession until he retires or otherwise establishes his entitlement. In its judgment, the Full Bench in Exel quoted in full paragraph [22] of Merkel J's judgment in Electrolux No. 1 , as set out at [21] in this judgment, and then continued at [41]: The payee in this case is an insurer which has issued a policy over the income of the employee. Does such a payment relate to "an incident of the employment"? We have no doubt that a scheme for income protection insurance, in which the employer pays the premium, pertains. In this case, there is an income protection insurance scheme which allows that if premiums rise the employer and the employee are to pay a share of the premium. In those circumstances at least, a provision for the employee's share of the premium to be deducted by the employer from the employee's wages and remitted to the insurer also pertains. We think that such a payment relates to an incident of the employment in the sense in which Menzies J. used that expression in Portus . For that reason cl.19.4 is a matter that pertains to the relevant relationship. Immediately before the passage of Steven J in Portus cited at [15] of this judgment, his Honour said: Not every demand for reward for work performed will render the subject matter of the demand an industrial matter. The matter demanded must always pertain to the employer-employee relationship... It follows that the mere assertion by the union that such payments of insurance premiums are a reward for services does not, without more, establish the necessary nexus to the employment relationship. The union's reliance on the High Court in the Superannuation Case at 356 where it said ' the obligation of the employer to make payments ends with the relationship between him and his employee ' is insufficient to establish that nexus. This particular passage was used in the context of distinguishing superannuation from pensions, which had been found in Hamilton Knight to not pertain to the relationship between employer and employee, rather than to provide a reason why superannuation could be considered to pertain to the relationship between employer and employee. As Steven J said in the passage cited above, the subject matter must still pertain to the relationship between the employer and employee. In the Superannuation Case payments were found to be in lieu of remuneration, thus providing a necessary link to the employer and employee relationship. This was also the case in Electrolux No. 1 and Exel . In the absence of similar evidence that the payments of insurance premiums by the employer were a reward for services and in view of the Court's finding that the benefits do not pertain to the relationship between employee and employer, the claim that such payments are merely a reward for services cannot be sustained. Can the clause be read down?


case_text: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 the High Court considered the task of the Tribunal where an applicant claimed persecution on the basis of membership of a particular social group. The majority (Gummow, Hayne and Callinan JJ) said that the task of the Tribunal involved a number of steps, namely: In this case it appears that the Tribunal gave consideration to whether the appellants, in particular the male appellant, was a member of a particular social group. In particular, I note the following passage from the reasons for decision of the Tribunal including: The Tribunal has not accepted that the applicant has been in any way harmed or targeted in the past. Looking to the reasonably foreseeable future, the Tribunal finds to be remote the chance that the applicant would suffer abduction or other serious harm for reason of being a member of the particular social group constituted by wealthy, middle class persons or wealthy middle class businessmen . The Tribunal finds this to be the case in spite of his past associations with Tamil people and military officers. For similar reasons, the Tribunal finds to be remote the chance that the applicant wife would suffer abduction or persecution for reason of membership of such a group .(emphasis added) Elsewhere in its reasons, the Tribunal also observed: Submissions to the Tribunal have attached emphasis to the risk of abduction of wealthy middle class citizens or businessmen. The Tribunal is willing to accept for the purposes of this decision that such people constitute a particular social group . Nevertheless, it finds to be remote the chance that the applicant would suffer abduction or any other harm for reason of the membership of such a group if he were to return to Sri Lanka. (emphasis added) At the hearing before me, Ms McWilliam for the appellants strongly contended that the decision of the Tribunal was fatally attended by jurisdictional error because, notwithstanding these statements in the Tribunal's reasons, the Tribunal also obviously considered a relevant issue to be the ethnicity of the appellants, specifically the fact that they are Sinhalese and the impact this had on the likelihood of abduction. The appellants' submissions stressed the irrelevancy of the ethnicity of the appellants as a factor in the determination by the Tribunal as to whether the appellants had a well-founded fear of persecution for reasons of their membership of their particular social group, which was wealthy, middle class businessmen. In particular, the appellants note that, after the second passage I quoted from the reasons for decision of the Tribunal, the Tribunal continued: In making this finding, the Tribunal has carefully considered all of the evidence, including the written statements and other witness evidence provided to the Tribunal. For reasons set out above, the Tribunal does not accept that the applicant has in the past in any way suffered harm at the hands of the Karuna group or any other group accused of involvement in abductions. As the Tribunal has put to the applicants, the available independent country information indicates that it is primarily Tamils and other minority groups who have been the victims of abduction. Indeed, the reports submitted by the applicants refer largely to Tamils and also Muslims as victims of such harm. The Tribunal has been provided with articles indicating that Sinhalese account for 9.1% of those killed in Sri Lanka and for 3% of abductions (to the extent that the ethnicity of victims is known). The appellants submitted that this approach is contrary to Dranichnikov [2003] HCA 26 ; (2003) 197 ALR 389. However relevantly in MZXDQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1632 Finkelstein J observed: [18] The Appellant contended before this Court that this was an impermissible line of reasoning. He argued that the steps outlined in Dranichnikov must be followed even if the Tribunal is of the view that the Applicant's fear is unrelated to the membership of any such group. This is plainly incorrect. Courts will frequently skip over more difficult questions if the main issue can be determined from the answer to a simpler later question: in the law of negligence, there is no need to ask whether there is a duty of care if it is obvious that there has been no damage. In this case, moving to the last step in Dranichnikov was quite proper. ... [25] It is entirely proper to avoid identifying the appropriate "particular social group" if it is unnecessary to do so. Dranichnikov does not demand otherwise. Ms Wheatley for the first respondent also directed my attention to recent comments of Besanko J in SZJRU v Minister for Immigration and Citizenship [2009] FCA 315 at [50] where, after referring to Dranichnikov [2003] HCA 26 ; (2003) 197 ALR 389 , his Honour said: Notwithstanding these principles, it is not necessarily an error for the Tribunal not to begin with (or even to deal with) the question of whether there is a particular social group ... If the serious harm results from the application of a law of general application and there is no discrimination and therefore no persecution, the claim must fail ...


case_title: Minister for Immigration v Khawar [2002] HCA 14 ; (2002) 210 CLR 1


case_text: appellants submitted that this approach is contrary to Dranichnikov [2003] HCA 26 ; (2003) 197 ALR 389. However relevantly in MZXDQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1632 Finkelstein J observed: [18] The Appellant contended before this Court that this was an impermissible line of reasoning. He argued that the steps outlined in Dranichnikov must be followed even if the Tribunal is of the view that the Applicant's fear is unrelated to the membership of any such group. This is plainly incorrect. Courts will frequently skip over more difficult questions if the main issue can be determined from the answer to a simpler later question: in the law of negligence, there is no need to ask whether there is a duty of care if it is obvious that there has been no damage. In this case, moving to the last step in Dranichnikov was quite proper. ... [25] It is entirely proper to avoid identifying the appropriate "particular social group" if it is unnecessary to do so. Dranichnikov does not demand otherwise.