case_text: 17 December 2008, I made an order that the application of the respondents for an order transferring this proceeding to the Victoria District Registry be refused. I further ordered that the costs of the respondents' notice of motion be reserved to the next directions hearing ( Rafferty v Time 2000 West Pty Ltd [2008] FCA 1925). On the same day, I decided that it was appropriate to make the freezing orders sought by the applicants ( Rafferty v Time 2000 West Pty Ltd (No 2) [2008] FCA 1931) and those orders were made on 19 December 2008.


case_outcome: discussed

case_title: Robins v Goldingham (1872) 13 LR Eq 440

case_text: exercise of the jurisdiction depends on a number of considerations. The principal one appears to be whether it was the client who terminated the retainer or the solicitor who terminated his retainer. In Robins v Goldingham (1872) 13 LR Eq 440, Malins V-C said (at 442): "Now it is well settled that where a solicitor is discharged by the client he has a lien for his costs upon the papers in his hands, and can retain them till he is satisfied; but it is different where the discharge is by the solicitor. There is no blame to be imputed to Mr. Suckling for declining to go on with the suit; but it is clear that a solicitor is not entitled to stop litigation, because he cannot obtain funds to enable him to carry it on. There is no injustice in this view, because when the papers are in the hands of the new solicitor, Mr. Suckling will retain any lien to which he is entitled." The question of determining the party who terminated the retainer is approached as a matter of substance, not form. In other words, it may be that, although it is the client who has formally terminated the retainer of his solicitor, he has been compelled to do so by the solicitor's misconduct. In that case, a court will have regard to the solicitor's misconduct and not confine itself to the fact, as a matter of form, that the client terminated the retainer. Assuming no misconduct by the solicitor, the general rule is that, where the client terminates the retainer of his solicitor then the Court will not exercise the power to order that the solicitor produce his client's papers. The interest in the client having his papers for the purpose of conducting an existing proceeding is outweighed by the unfairness to the solicitor (or possibly a number of solicitors) in having to give up his lien in circumstances where, without any just or reasonable cause, the client has terminated his instructions and retained a new firm of solicitors.


case_outcome: referred to

case_text: addition to the authorities which I have mentioned, I refer to Spotwire Pty Ltd v Visa International Service Association (No 2) [2004] FCA 571 at [103] - [109] per Bennett J; IO Group Inc v Prestige Club Australasia Pty Ltd [2008] FCA 1147 at [20] - [25] per Flick J; McKellar v Container Terminal Management Services Ltd [1999] FCA 1639 at [13] - [20] , [24], [41] per Weinberg J; Australian Securities and Investments Commission v Mining Projects Group Ltd (No 3) [2008] FCA 952 at [24] per Gordon J; and Jianshe Southern Pty Ltd v Cooktown Pty Ltd (No 2) [2007] FCA 903 at [35] .


case_title: Starke v Dennett [2008] 2 Qd R 72

case_text: refer also to the discussion of the general principles by Drummond J in In the Matter of an Application by Weedman (unreported, Drummond J, 17 December 1996) and by Keane JA in Stark v Dennett [2008] 2 Qd R 72.


case_text: applicant applied for leave to appeal from the freezing orders that I made. The application for leave to appeal was heard by Lander J, who, on 4 March 2009, refused the application ( Time 2000 Systems (Australia) Pty Ltd ACN 127 853 614 v Rafferty [2009] FCA 216). I held a directions hearing on 20 May 2009. On that occasion, I made the following orders, relevantly: "1. Each party is to file the affidavits containing the evidence in chief on which it or he intends to rely at the trial on or before 4pm on Wednesday, 17 June 2009. 2. The trial be set down for Monday, 6 July 2009 at 10am (5 days set aside)." The respondents issued a notice of motion on 17 June 2009, seeking a number of orders. First, they sought an order that they have leave to file an amended defence and a cross-claim against the applicants. There was no existing cross-claim against the applicants. Secondly, they sought an order that Madgwicks (a firm) be joined as an additional cross-respondent to the proceeding and that they have leave to issue and serve a cross-claim against Madgwicks. Thirdly, they sought an order that Madgwicks produce the papers which the firm holds. The precise terms of the order sought against Madgwicks are set out in [26] below. Fourthly, they sought an order that the time within which they were permitted to file the evidence in chief on which they intend to rely at the trial be extended. Finally, they sought an order that the trial date be vacated.


case_text: party referred me to a number of cases which discuss the relevant principles. The respondents emphasised statements to the effect that the Court's power to order that the costs of an interlocutory proceeding be paid forthwith is exercised only in very special circumstances ( Vasyli v AOL International Pty Ltd (unreported, Lehane J, 2 September 1996)). The applicants referred to statements in the authorities to the effect that the power to order that the costs of an interlocutory proceeding be paid forthwith should be used less sparingly than it has in the past ( Airservices Australia v Jeppesen Sanderson Inc [2006] FCA 906 at [31] per Graham J).


case_outcome: followed

case_text: In relation to the third ground of appeal, the first respondent submits that there was no error in the Federal Magistrate's decision, as the appellants were provided with a s 424A letter. The first respondent submits that, in any case, on a joint application such as this one, information provided by one joint applicant need not be provided to other joint applicants: Applicant M47/2004 v Minister for Immigration and Multicultural Affairs [2006] FCA 176 ; SZHTL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1052. 31 Finally, in relation to ground 3, I accept that although it is unnecessary for the evidence of one appellant to be put to another when two appellants submit a joint application for review to the Tribunal (ss 424A(1) and (3)(b); Applicant M47/2004 [2006] FCA 176 ; SZHTL [2006] FCA 1052) , that in any event, the Tribunal put any inconsistencies between the appellants' evidence that it relied upon to the appellants in the letter it sent to them on 20 October 2005. I have identified the matters contained in the letter earlier in these reasons. This third ground of appeal also fails.


case_text: The first respondent contends that leave is required for the appellants to raise the first ground of appeal: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at [166] . He further contends that, in any event, as the Tribunal made no relocation finding, no issue arises in connection with whether the Tribunal assessed the issue of relocation properly. 27 With respect to the second ground of appeal, the first respondent submits that the decision to refuse the adjournment application by the Federal Magistrate was made in the exercise of his discretion as trial judge. It was contended that the decision was open to the Federal Magistrate. 29 The first respondent is correct in contending the first ground of appeal was not raised before the Federal Magistrate and, therefore, the appellants require leave: NAJT [2005] FCAFC 134 ; 147 FCR 51. No explanation has been given for the failure to raise this matter in the Federal Magistrates Court. The appellant, of course, was unrepresented both before the Federal Magistrates Court and this Court. In order to determine whether leave should be granted to the appellants to raise this ground on appeal, I shall shortly consider the merits of the ground. As the first respondent asserts, in order to attack any finding of the Tribunal on issues of relocation, there must first be a finding. There was no finding because the question of relocation never arose. It would only have arisen if the appellant had made out his primary contention that the applicant had a well-founded fear of persecution if he were to return to India. I accept, as the first respondent contends, that because the Tribunal made no relocation finding this ground raises no relevant issues on appeal. Leave must be refused. 30 In relation to the second ground of appeal, although it is desirable that applicants in these cases be represented where possible, it is not a matter of right. The Federal Magistrate refused the adjournment application on the grounds that no satisfactory explanation was provided for the late request for the adjournment and that the lack of merits in the case did not warrant any further delay in the matter. No error has been shown in the Federal Magistrate's exercise of discretion. For that reason, this ground also fails. The decision of SZFDE [2007] HCA 35 is not relevant to this ground.


case_title: SZHTL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1052


case_outcome: cited

case_text: But, before dismissing this aspect of the proceedings entirely, if I were otherwise minded to accede to Intel's arguments, I am of opinion that I should give Unwired one further opportunity to set out in its pleadings the necessary material facts. I do that because it seems to me that this area of the law is one which is undergoing development. As Allsop P observed, it is not the function of single judges or full or appellate courts to depart from decisions of the High Court. However, in O'Dea v Allstates Leasing Systems (WA) Pty Ltd [1983] HCA 3 ; (1983) 152 CLR 359 the High Court overruled its earlier decision in Lamson Store Service Co Ltd v Russell Wilkins & Sons Ltd [1906] HCA 87 ; (1906) 4 CLR 672. That had been recently applied by the Court in IAC (Leasing) Ltd v Humphrey [1972] HCA 1 ; (1972) 126 CLR 131. The reformulation of the law as to penalties which commenced with O'Dea 152 CLR 349 and continued with AMEV-UDC Finance Ltd v Austin [1986] HCA 63 ; (1986) 162 CLR 170 may not yet be at an end, albeit it that, as Allsop P noted, it may not be at the stage that Brereton J had suggested. 76 Recently, in Gumland Property Holdings Pty Ltd v Duffy Bros Fruit Market (Campbelltown) Pty Ltd [2008] HCA 10 ; (2008) 244 ALR 1 , Gleeson CJ, Kirby, Heydon, Crennan and Kiefel JJ discussed the issue of relief against penalties and forfeiture in a cognate way. They referred to AMEV [1986] HCA 63 ; 162 CLR 170 and discussed the interplay which that and subsequent decisions had identified as developing between penalties and forfeitures.


case_text: The purpose of case management and the docket system adopted by this Court is to enable both the parties and the Court to be informed, from the outset of the case each of the parties intends to advance and to identify the real issues in dispute. This is so that directions can be crafted to enable the efficient management of the litigation, with a view to focusing on and allowing those issues to be tried, and, at the same time, eliminating irrelevant matters quickly and efficiently: White v Overland [2001] FCA 1333 at [3] - [4] per Allsop J (applied by Heydon JA in Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 at 128-129 [28]-[32], Mason P and Young CJ in Eq agreeing); Visible Results Properties Inc v Sushi Train (Australia) Pty Ltd [2005] FCA 1159 at [29] per Allsop J; Snowy Mountains Organic Dairy Products Pty Ltd v Wholefoods Pty [2006] FCA 1361 at [15] per myself; Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243 at [160] - [162] per Allsop P, with whom Beazley and Campbell JJA agreed.


case_text: It is not so obvious that it goes without saying, that the redemption premium amount would not be payable to Intel or a note holder if an irremediable event of default had occurred but Unwrited still remained ready, willing and able to continue the WiMAX roll out. And that term is capable of being construed as contradicting the express terms of the deed poll which express no qualification to Unwired's obligation to pay the redemption premium amount under cll 6.2, 6.3 and 9.4 if an irremediable event of default occurrs (such as the de-listing of Unwired as a consequence of a successful takeover offer): BP Refinery Westernport Pty Limited v Shire of Hastings [1977] HCA 40 ; (1977) 180 CLR 266 at 282-283. 36 Accordingly, I am of opinion that Unwired's contentions in pars 43, 50(e) and 54 of its amended defence, that terms should be implied or construed qualifying Intel's entitlement to call for payment of the redemption premium amount, are untenable and have no reasonable prospect of success. 37 Unwired's next group of implied terms or construction arguments sought to interpolate into the deed poll or overall transaction an obligation of Intel to act reasonably and in good faith when exercising its contractual rights to seek payment of the redemption premium amount, in the event of a change in control of Unwired, when Unwired remained ready, willing and able to implement the WiMAX roll out (Amended Defence pars 44, 50(f)).


case_text: In GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50 ; (2003) 128 FCR 1 at 208-209 [920] Finn J, himself an advocate of the implication or importation into all contracts of a duty of good faith and fair dealing, recognised that there was no consensus in Australian law as to whether such a term, or duty, should be included in all contracts. The High Court left that question open in Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5 ; (2002) 186 ALR 289 at 301 [40] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.


case_text: Recently, in Gumland Property Holdings Pty Ltd v Duffy Bros Fruit Market (Campbelltown) Pty Ltd [2008] HCA 10 ; (2008) 244 ALR 1 , Gleeson CJ, Kirby, Heydon, Crennan and Kiefel JJ discussed the issue of relief against penalties and forfeiture in a cognate way. They referred to AMEV [1986] HCA 63 ; 162 CLR 170 and discussed the interplay which that and subsequent decisions had identified as developing between penalties and forfeitures.


case_text: But, before dismissing this aspect of the proceedings entirely, if I were otherwise minded to accede to Intel's arguments, I am of opinion that I should give Unwired one further opportunity to set out in its pleadings the necessary material facts. I do that because it seems to me that this area of the law is one which is undergoing development. As Allsop P observed, it is not the function of single judges or full or appellate courts to depart from decisions of the High Court. However, in O'Dea v Allstates Leasing Systems (WA) Pty Ltd [1983] HCA 3 ; (1983) 152 CLR 359 the High Court overruled its earlier decision in Lamson Store Service Co Ltd v Russell Wilkins & Sons Ltd [1906] HCA 87 ; (1906) 4 CLR 672. That had been recently applied by the Court in IAC (Leasing) Ltd v Humphrey [1972] HCA 1 ; (1972) 126 CLR 131. The reformulation of the law as to penalties which commenced with O'Dea 152 CLR 349 and continued with AMEV-UDC Finance Ltd v Austin [1986] HCA 63 ; (1986) 162 CLR 170 may not yet be at an end, albeit it that, as Allsop P noted, it may not be at the stage that Brereton J had suggested.


case_outcome: considered

case_text: Lastly, the parties are at issue as to the plea in pars 74 and 75 of the amended defence, that Unwired's obligation to pay the redemption premium amount is a penalty. In argument, Unwired accepted that it was seeking to rely on a novel argument that the occurrence of an event, namely, the change of control or de-listing, although not a breach of contract for which it was responsible, could still operate as a penalty. It sought to rely upon a recent, but even more recently, reversed, decision of Brereton J in the Supreme Court of New South Wales in Integral Home Loans Pty Ltd v Interstar Wholesale Finance Pty Ltd [2007] NSWSC 406. That was reversed in Interstar Wholesale Finance Pty Ltd v Integral Home Loans Pty Ltd [2008] NSWCA 310. 68 After an extensive examination of the authorities, Brereton J concluded that a penalty was a contractual obligation to pay, forfeit or suffer the retention of a sum of money or property, agreed in advance to be payable, forfeited or retainable by one party to the other upon or in default of the occurrence of an event, which could be seen as a matter of substance to have been treated by the parties as lying within the area of obligation of the first party (in the sense that it was the first party's responsibility to see to it that the event did not happen) and where the stipulated payment is out of proportion or unrelated to the damage which might be sustained by the other party by reason of a particular occurrence of default: Integral [2007] NSWSC 406 at [74] . 69 Allsop P, with whom Giles and Ipp JJA agreed, apparently in obiter dicta, concluded that Brereton J's "thoughtful" reasons highlighted a potential tension between different approaches in the field, but that the weight of existing authority limited the doctrine of penalties within narrow and clear boundaries. Allsop P said that it was the function of the High Court, and not the Court of Appeal of the Supreme Court of New South Wales or a judge at first instance, to expand that field: Interstar [2008] NSWCA 310 at [159] - [160] .


case_text: Lastly, the parties are at issue as to the plea in pars 74 and 75 of the amended defence, that Unwired's obligation to pay the redemption premium amount is a penalty. In argument, Unwired accepted that it was seeking to rely on a novel argument that the occurrence of an event, namely, the change of control or de-listing, although not a breach of contract for which it was responsible, could still operate as a penalty. It sought to rely upon a recent, but even more recently, reversed, decision of Brereton J in the Supreme Court of New South Wales in Integral Home Loans Pty Ltd v Interstar Wholesale Finance Pty Ltd [2007] NSWSC 406. That was reversed in Interstar Wholesale Finance Pty Ltd v Integral Home Loans Pty Ltd [2008] NSWCA 310. 69 Allsop P, with whom Giles and Ipp JJA agreed, apparently in obiter dicta, concluded that Brereton J's "thoughtful" reasons highlighted a potential tension between different approaches in the field, but that the weight of existing authority limited the doctrine of penalties within narrow and clear boundaries. Allsop P said that it was the function of the High Court, and not the Court of Appeal of the Supreme Court of New South Wales or a judge at first instance, to expand that field: Interstar [2008] NSWCA 310 at [159] - [160] .


case_text: In Maniotis v JH Lever & Co Pty Ltd [2006] FCAFC 7 at [72] , Finn, Emmett and Bennett JJ said: "In the efficient and proper conduct of civil litigation, even civil litigation hard fought between parties, it should always be recognised that, in the propounding of issues for trial, the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are. Quietly leaving footprints in correspondence or directions hearings to be uncovered some time later in an attempt to reveal that a matter was always in issue is a practice that must be firmly discouraged. Where it is evident, or indeed suspected, that the other side is proceeding on the basis of a misconception or has not appreciated something, common sense will, as a general rule, mandate that a party ensure that the other is not proceeding on a misconception or that the other does appreciate something that has been said. No one's interests are advanced by litigation proceeding on assumptions which are seen or suspected to be false. The only consequence of keeping issues hidden or not clearly identifying them is to disrupt the business of the court leading to the waste of valuable public resources and to lead to the incurring of unnecessary costs by the parties, costs which ultimately have to be borne by someone: see White v Overland [2001] FCA 1333 at [4] ." (emphasis in original)


case_title: Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116


case_text: I am of opinion that Unwired's allegations as to what the markets are, have been pleaded so as, at least, to reflect the economy of expression, with which the High Court was able to deal with allegations of market in NT Power Generation v Power Water Authority [2004] HCA 48 ; (2004) 219 CLR 90 at 112 [58] . The nature of a finance market and the width of possible markets which are raised by the letter of 23 August 2005 and Unwired's explanatory memorandum to its shareholders in explanation of this transaction will require close and careful attention, including in relation to issues of markets and market definition. It will be necessary to revisit carefully the further pleadings on these points. 66 However, Unwired's allegations of a contravention of s 46 are arguable and I am not satisfied that they should be dismissed at this time. But, I have real concerns as to their long-term sustainability, having regard to what is written in the letter of 23 August 2005 and the explanatory memorandum. For the moment, I think that the best course is to strike out pars 117-129 with leave to re-plead, so that Unwired can give some clarity to the overall nature of the contravention on which it relies. This is even though, as I have said, it may be perfectly legitimate for it to have pleaded some of those allegations in the form currently expressed. However, the whole pleading of this part of the amended defence should receive attention in a cognate way.


case_title: O'Dea v Allstates Leasing Systems (WA) Pty Ltd [1983] HCA 3 ; (1983) 152 CLR 359


case_title: Ringrow Pty Limited v BP Australia Pty Limited [2005] HCA 71 ; (2005) 224 CLR 656

case_text: In Ringrow Pty Ltd v BP Australia Pty Ltd [2005] HCA 71 ; (2005) 224 CLR 656 at 666 [22] , Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ said that in assessing extravagance and oppressiveness, it is necessary to be able to compare the price to be paid, and the value of what is to be transferred as a result of the claimed penalty having become payable. I do not think that Unwired's pleading does articulate, in that way, a clear basis for asserting that a penalty would be incurred by it. I am of opinion that it is necessary to plead more than the merely formulaic words contained in par 74 of Unwired's amended defence. 73 If this point is to be articulated, even in circumstances where ultimately it might have to be struck out, it should be done in a pleading that clearly raises whatever is the triable issue which Unwired ultimately seeks to use to defend itself from liability to pay this amount as a penalty. For these reasons, pars 74 and 75 are not sufficient, in themselves, to bring out the novel claim that Unwired wishes to make and should be struck out. 74 I am concerned that the caution expressed by Allsop P should not be ignored. On the other hand, courts have to be mindful that when a party wishes to raise a test case, at least the elements for the test should be stated clearly in the pleadings. In this way, ultimately, it will be possible to apply the test, as to whether the redemption premium amount is a penalty, assessed on the conventional basis which, as a judge at first instance, I would ordinarily be obliged to apply, or by using some other test to determine whether the proceedings should be dismissed under s 31A , or otherwise stuck out as untenable. The arguments which Intel has put are significant. They carry the weight not only of the previous understanding of the common law of contract but also the operation of the document penalties.


case_title: Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5 ; (2002) 186 ALR 289


case_title: Snowy Mountains Organic Dairy Products Pty Ltd v Wholefoods Pty [2006] FCA 1361


case_title: Toll (FCGT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165

case_text: The deed poll is not, in itself, a contract between legal persons. But it is a commercial document intended to be the foundation of a contractual relationship embodied in the notes when issued. The ordinary principles of construction of contracts should be applied to the provisions of the deed poll, as well as to the transaction overall. These principles require the rights of the parties to be determined objectively, without reference to their subjective beliefs or understandings about what rights or liabilities would govern their relationship. What matters is what each party, by words and conduct, would have led a reasonable person in the position of the other party to believe. In this context, the role of the Court is to ascertain the common intention of the parties in the commercial matrix in which they contracted. This process involves discerning, in context, what a reasonable person would understand from the language in which the parties expressed their agreement, having regard to the objective surrounding circumstances with the purpose and the object of a transaction: Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165 at 179 [40] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ. The commercial purpose of a contract is, in essence, the purpose attributable to a reasonable person in the position of the parties who is aware of what was known at the time to both of them about the genesis of the transaction, its background, context and the market in which they were operating.


case_title: Visible Results Properties Inc v Sushi Train (Australia) Pty Ltd [2005] FCA 1159


case_title: White v Overland [2001] FCA 1333

case_text: The purpose of case management and the docket system adopted by this Court is to enable both the parties and the Court to be informed, from the outset of the case each of the parties intends to advance and to identify the real issues in dispute. This is so that directions can be crafted to enable the efficient management of the litigation, with a view to focusing on and allowing those issues to be tried, and, at the same time, eliminating irrelevant matters quickly and efficiently: White v Overland [2001] FCA 1333 at [3] - [4] per Allsop J (applied by Heydon JA in Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 at 128-129 [28]-[32], Mason P and Young CJ in Eq agreeing); Visible Results Properties Inc v Sushi Train (Australia) Pty Ltd [2005] FCA 1159 at [29] per Allsop J; Snowy Mountains Organic Dairy Products Pty Ltd v Wholefoods Pty [2006] FCA 1361 at [15] per myself; Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243 at [160] - [162] per Allsop P, with whom Beazley and Campbell JJA agreed. 64 In Maniotis v JH Lever & Co Pty Ltd [2006] FCAFC 7 at [72] , Finn, Emmett and Bennett JJ said: "In the efficient and proper conduct of civil litigation, even civil litigation hard fought between parties, it should always be recognised that, in the propounding of issues for trial, the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are. Quietly leaving footprints in correspondence or directions hearings to be uncovered some time later in an attempt to reveal that a matter was always in issue is a practice that must be firmly discouraged. Where it is evident, or indeed suspected, that the other side is proceeding on the basis of a misconception or has not appreciated something, common sense will, as a general rule, mandate that a party ensure that the other is not proceeding on a misconception or that the other does appreciate something that has been said. No one's interests are advanced by litigation proceeding on assumptions which are seen or suspected to be false. The only consequence of keeping issues hidden or not clearly identifying them is to disrupt the business of the court leading to the waste of valuable public resources and to lead to the incurring of unnecessary costs by the parties, costs which ultimately have to be borne by someone: see White v Overland [2001] FCA 1333 at [4] ." (emphasis in original)


case_text: But, in construing a deed poll, just as with any contract, it is important to avoid it making commercial nonsense or working commercial inconvenience. This approach enables the court to give a construction to the deed poll and other transaction documents which a reasonable person in the position of the parties would have understood them to have intended by the words they chose in the context in which they engaged: Zhu v Treasurer of New South Wales [2004] HCA 56 ; (2004) 218 CLR 530 at 559 [82] per Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ. The circumstances known to both Unwired and Intel at the time the deed poll was made and the overall transaction was entered into, included an awareness that each had conflicting aims and had made compromises which were expressed in the executed documents. 34 As the letter of 23 August 2005 recognised, the final form of the documents involved counterbalancing the possibilities of the note holder earning the various potential rates of return in different circumstances, all of which were, at that time, uncertain future events. I am of opinion that it is not reasonable or necessary to imply any term of the kind asserted by Unwired to give business efficacy to the deed poll or transaction.


case_outcome: related

case_text: is an application for an extension of time to file and serve a notice of appeal from a decision of Emmett FM, who had dismissed an application for relief in relation to a decision of the Refugee Review Tribunal affirming a decision not to grant a protection visa to the present applicant ( SZGSR v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2006] FMCA 882). The first matter to be dealt with is the explanation for delay in appealing. The explanation which is given is that the applicant had lost a key to a post box and thus did not receive the copy of the reasons for judgment, although he had been present when judgment was handed down. That is hardly a satisfactory explanation for delay. The second issue is whether or not there is, in any event, an arguable ground of appeal. The only ground in the draft notice of appeal is that the applicant claims he was deprived of receiving procedural fairness as the Tribunal was influenced by the contradictory information and that the 'Honourable trial judge erred in considering this issue'. That, of course, isolates no ground in any real sense. In what he has said to me today, the only matter of substance that he puts forward is that the learned federal magistrate did not accept the facts as he presented them in relation to his claims which were rejected by the Tribunal.


case_text: Section 75(1) obliges the Minister to decide whether an action is a controlled action and, if it is, which provisions of Part 3 are the controlling provisions. The applicant rightly points out that the language of s 75 requires the Minister to recognise his jurisdiction and that it does not follow that the Minister is to determine the issue subjectively. It is relevant that s 75 contains no reference to the Minister's mental state by the use of words such as "opinion", "belief" or "satisfaction" which often signify that the decision is not a jurisdictional fact. While the presence of such terms would almost invariably indicate that the determination of fact is not jurisdictional (see for instance, Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6 ; (1999) 46 NSWLR 78 at 90-91), their absence is not decisive; see Timbarra at 64. See also Beyazkilinc v Baxter Immigration Reception and Processing Centre [2006] FCA 1368 ; (2006) 155 FCR 465 at 475-8 per Besanko J.


case_text: The applicant supports the assertion that the impact of actions should be assessed in the context of the impact of other potential actions by referring to Booth v Bosworth [2001] FCA 1453 ; (2001) 114 FCR 39, Minister for Environment and Heritage v Greentree [2004] FCA 741 ; (2004) 138 FCR 198, Greentree v Minister for Environment and Heritage [2005] FCAFC 128 ; (2005) 144 FCR 388, and Brown v Forestry Tasmania and Others (No 4) [2006] FCA 1729 ; (2006) 157 FCR 1. In my view none of these cases supports the applicant's argument.


case_title: Brown v Forestry Tasmania and Others (No 4) [2006] FCA 1729 ; (2006) 157 FCR 1


case_title: Greentree v Minister for Environment and Heritage [2005] FCAFC 128 ; (2005) 144 FCR 388


case_text: The applicant's submission draws on the comments made by McHugh J in Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459 at 490 where his Honour was discussing the common law concept of causation: The common law concept of causation recognises that conduct that infringes a legal norm may be causally connected with the sustaining of loss or damage even though other factors may have contributed to the loss or damage. ... The common law has avoided the technical controversies inherent in the logic of causation. Unlike science and philosophy, the common law is not concerned to discover universal connections between phenomena so as to enable predictions to be made. The common law concept of causation looks backward because its function is to determine whether a person should be held responsible for some past act or omission. Out of the many conditions that combine to produce loss or damage to a person, the common law is concerned with determining only whether some breach of a legal norm was so significant that, as a matter of common sense, it should be regarded as a cause of damage. 34 As his Honour's submissions make clear, the common law concept of causation is concerned not only with determining cause and effect but also with attributing legal responsibility. This injects an evaluative element into the enquiry. The Minister's task under s 75 is a factual enquiry about the impact of an action. Although there is an element of indeterminacy injected by the requirement that the action has, will have or be likely to have a significant impact, it is quite different from an enquiry into legal causation.


case_outcome: applied

case_text: The applicant supports the assertion that the impact of actions should be assessed in the context of the impact of other potential actions by referring to Booth v Bosworth [2001] FCA 1453 ; (2001) 114 FCR 39, Minister for Environment and Heritage v Greentree [2004] FCA 741 ; (2004) 138 FCR 198, Greentree v Minister for Environment and Heritage [2005] FCAFC 128 ; (2005) 144 FCR 388, and Brown v Forestry Tasmania and Others (No 4) [2006] FCA 1729 ; (2006) 157 FCR 1. In my view none of these cases supports the applicant's argument. 44 Whether or not, in terms of greenhouse gas emissions, this approach would materially alter the assessment of the Anvil Hill Project, I have difficulty in conceiving how one would go about assessing a proposed action in the context of hypothetical/potential actions. Be that as it may, however, the Act does not prescribe the frame of reference by which the Minister is to assess the significance or substantiality of an impact upon a protected matter. It contains no requirement that such assessment be confined to a comparison with other, hypothetical, proposed actions. The assessment of whether an impact is or is not significant is a question of fact; Minister for Environment and Heritage v Greentree [2004] FCA 741 ; (2004) 138 FCR 198 at [192] . As such, the delegate was entitled to assess the significance and substantiality of the impact of the proposal as a whole rather than merely in comparison with other potential actions. The applicant's assertion must be rejected. 45 The applicant alleges that in assessing the impact of the proposed mine, the delegate failed to take a relevant consideration into account in that: the delegate failed to consider that the greenhouse gas emissions that will result from the action will contribute to "loss of climatic habitat caused by anthropogenic emissions of greenhouse gas" which is a key threatening process included in the list under s 183 of the EPBC Act. A process is a key threatening process if it satisfies the criteria established in s 188(3) and (4): (3) A process is a threatening process if it threatens, or may threaten, the survival, abundance or evolutionary development of a native species or ecological community. (4) A threatening process is eligible to be treated as a key threatening process if: (a) it could cause a native species or an ecological community to become eligible for listing in any category, other than conservation dependent; or (b) it could cause a listed threatened species or a listed threatened ecological community to become eligible to be listed in another category representing a higher degree of endangerment; or (c) it adversely affects 2 or more listed threatened species (other than conservation dependent species) or 2 or more listed threatened ecological communities. 46 Listing a process as a key threatening process under s 183 authorises the establishment of a threat abatement plan under Part 13 Div 5 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth). A threat abatement plan must provide for the research, management and other actions necessary to reduce the process to a level that maximises the chances of the survival of affected species and communities.


case_text: While there is no authority directly in point the approach of the Full Court in Minister for Environment and Heritage v Queensland Conservation Council Inc [2004] FCAFC 190 ; (2004) 139 FCR 24 impliedly accepted that the Minister's determination was not subject to merits review by the Court. The Full Court stated at [53] of its reasons: Provided that the concept [of impact] is understood and applied correctly ... it is a question of fact for the Environment Minister whether a particular adverse effect is an "impact" of a proposed action. 73 There is, of course, much more that could be said for and against the proposition for which the applicant contends. I am satisfied, however, that for the reasons given the contention of jurisdictional fact cannot be supported. 74 For this and all the reasons given above, it is my view that the application must be dismissed with costs. It follows that the question reserved on 25 July 2007 (see [30] above) does not arise. I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate: Dated: 20 September 2007 Counsel for the Applicant: L McCallum SC, C McGrath Solicitor for the Applicant: Environmental Defenders Office Counsel for the First Respondent: S Gageler SC, S Lloyd, A Mitchelmore Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: MJ Leeming SC Solicitor for the Second Respondent: Blake Dawson Waldron Date of Hearing: 21 and 22 August 2007 Date of Judgment: 20 September 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1480.html


case_text: The applicant alleges that the delegate's decision that the second respondent's proposed action was not a controlled action was not authorised by the Act and that she did not have jurisdiction to make it. The delegate's decision was based on the factual finding that the proposed mine will not have and is not likely to have a significant impact on a matter protected under Part 3 of the Act. The applicant submits that this fact is a jurisdictional fact. By this it means that the existence of this fact is a precondition to the Minister making a valid decision. In other words, if the Minister's factual finding on this point is in error then he or she has no jurisdiction to decide that the proposed action is not a controlled action. A better way of stating the jurisdictional fact proposition is that to say that the Minister's determination of the fact is not conclusive and that Court has power to review the finding on the basis of evidence as to the existence or non-existence of the fact. As Spigelman CJ pointed out in Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8 ; (1999) 46 NSWLR 55 at 71: ... facts, even where they are described as "objective", do not have an existence independent of their identification by some process of human agency. An administrative decision-maker often has to determine jurisdictional facts, but does not do so conclusively. This has been recognised as long ago as Bunbury v Fuller (1853) 9 Ex 111at 140; 156 ER 47 at 60 60 Ultimately the question whether a particular finding of fact is jurisdictional depends on the proper construction of the relevant statute. The consequence of characterising a fact as jurisdictional is that the finding of fact can be reviewed on the merits and the court's opinion may be substituted for that of the administrative decision-maker. 61 The concept of jurisdictional fact was explained most lucidly by Spigelman CJ in Timbarra at 64: The parliament can make any fact a jurisdictional fact, in the relevant sense: that it must exist in fact (objectivity) and that the legislature intends that the absence or presence of the fact will invalidate action under the statute (essentiality) ... ... Any statutory formulation which contains a factual reference must be construed so as to determine the meaning of the words chosen by parliament, having regard to the context of that statutory formulation and the purpose or object underlying the legislation. There is nothing special about the task of statutory construction with regard to the determination of the issue whether the factual reference is a jurisdictional fact. All the normal rules of statutory construction apply. ... Where the process of construction leads to the conclusion that parliament intended that the factual reference can only be satisfied by the actual existence (or non-existence) of the fact or facts, then the rule of law requires a court with a judicial review jurisdiction to give effect to that intention by inquiry into the existence of the fact or facts. 62 In support of the submission that the fact that the proposed mine will not have, or is unlikely to have, a significant impact on matters protected under Part 3 is a jurisdictional fact, the applicant makes four points: (a) the construction for which it contends would best promote the declared objects of the Act; (b) in applying the civil offence provisions or deciding whether to grant an injunction under s 475, the Court must construe the same language, as must the State and Territory courts for the purpose of applying the criminal offence provisions. It would be inconsistent for the Act to provide for the Minister's determination under s 75 to be conclusive when the Court has to determine the same issue under the prohibition sections of Part 3; (c) there is no reference to the Minister's state of mind in s 75 whereas there is in closely related provisions of the Act; (d) the definition of "controlled action" in s 67 and the reference to such actions in s 82 do not refer to the decision of the Minister. 63 Section 75(1) obliges the Minister to decide whether an action is a controlled action and, if it is, which provisions of Part 3 are the controlling provisions. The applicant rightly points out that the language of s 75 requires the Minister to recognise his jurisdiction and that it does not follow that the Minister is to determine the issue subjectively. It is relevant that s 75 contains no reference to the Minister's mental state by the use of words such as "opinion", "belief" or "satisfaction" which often signify that the decision is not a jurisdictional fact. While the presence of such terms would almost invariably indicate that the determination of fact is not jurisdictional (see for instance, Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6 ; (1999) 46 NSWLR 78 at 90-91), their absence is not decisive; see Timbarra at 64. See also Beyazkilinc v Baxter Immigration Reception and Processing Centre [2006] FCA 1368 ; (2006) 155 FCR 465 at 475-8 per Besanko J.


case_title: Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6 ; (1999) 46 NSWLR 78


case_title: Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for Environment and Heritage (2006) 232 ALR 510

case_text: A submission similar to the applicant's was rejected by Dowsett J in Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for the Environment and Heritage (2006) 232 ALR 510. It was submitted to his Honour that the purpose of the enquiry under s 75 of the Act was "to attribute legal responsibility for impacts to matters protected by Pt 3 of the EPBC Act in light of the subject, scope and objects of the Act" . In response to this submission, at [57] of his reasons, observed: I am not sure that the purpose of Part 3 is to attribute legal responsibility for the causation of adverse impacts. To my mind the purpose of the Act is to prevent or minimise such adverse impact. ... Causation is, of course, not mentioned in s 12 or the other analogous sections in Pt 3. However, it was submitted that there is necessarily a causal relationship between an action and any relevant impact. That is probably so, but I see no reason to introduce notions of causation into the process prescribed by s 75. It is not necessary to go beyond the language of the relevant sections. 36 His Honour noted that the decision-maker in that matter had accepted the possibility that the coal might be burnt, thereby producing additional greenhouse gases which might cause climate change and said that "The point at which he disagreed with the applicant was as to the likelihood of any adverse impact upon a protected matter and the extent thereof". In my view that is precisely the position here. 37 As the written submissions for the Minister point out, it is the link between future conduct and its potential impact that the delegate must investigate. The term "impact" was not defined in the Act until the introduction of s 527E on 19 February 2007, which is the date of the delegate's decision. Given the date of the section's commencement the definition applies to the delegate's decision, although it may be that the decision was made without recourse to the definition. There is, however, nothing in her reasons to indicate that she gave a meaning to the term different to that in the definition. 38 Section 527E(1)(a) of the Act states that an event or circumstance is an "impact" of an action if it is a direct consequence of the action. An indirect consequence of an action is also an "impact" if, (subject to s 527E(2) which is not relevant here) the action is "a substantial cause of that event or circumstance"; s 527E(1)(b). As outlined in [26]-[27] above, the delegate accepted that greenhouse gases in the atmosphere are affecting global climate but, although not expressed in these words, she clearly found that the emissions from the proposed mine would not be a substantial cause of climate change affecting matters protected under Part 3 of the Act. 39 The submission here is not distinguishable from that considered by Dowsett J in the Wildlife Preservation Society case and it should be dismissed for the reasons his Honour gave. The applicant attempted to distinguish the earlier case on the basis that in this case, unlike in the proceedings before Dowsett J, the delegate was provided with an estimate of the amount of greenhouse gas emissions likely to be produced each year; see [25] above. In my view that is not a ground of distinction. The question is not whether there is an impact but whether that impact is, will be or is likely to be significant. In my view Dowsett J was correct to reject introducing notions of causation into the process described by s 75. 40 The applicant criticises the delegate for "attempting to attribute a specific, identifiable and measurable rise in global temperatures or other greenhouse impacts from the mine". I do not accept that this criticism is warranted. It may be that if the delegate had been able to detect such a link she could have reached a positive conclusion that an indirect consequence of the proposed action, namely the construction and operation of a coal mine, was likely to be a substantial and significant cause of harm to matters protected under Part 3. In the absence of such a link, however, the relatively small contribution of the proposed emissions to total global emissions could not be seen as having a significant impact. That is a conclusion that was open to her on the findings she had made. 41 Ground 2 of the application for review contains a claim that the delegate ought to have asked, "whether the proposed action is likely to have an impact on a matter protected by Part 3 of the EPBC Act that is important, notable or of consequence having regard to its context or intensity". Paragraph 56 of the applicant's written submissions expands on this argument: The proper approach required the delegate to ask whether the contribution of this proposal to those impacts which climate change is likely to bring to the matters protected by Part 3 of the EPBC Act is important, notable or of consequence having regard to its context not only in the total Australian and global emissions of greenhouse gases but in comparison to other actions that might reasonably be assessed under the EPBC Act . [emphasis added]


case_text: The applicant to pay the costs of the first respondent and the State of Queensland, to be taxed if not otherwise agreed. 3 In my view the orders I made this morning are interlocutory orders as they do not finally determine all rights of the parties in issue. (An order upholding an objection to competency on the basis that a decision is not reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act') is an interlocutory decision: Meredith v Commissioner of Taxation [2002] FCAFC 271 ; (2002) 125 FCR 308. Similarly an order rejecting an application for an extension of time to commence proceedings under the ADJR Act is an interlocutory order: Barrett v The Minister of State for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 129.)


case_text: The principles applicable to granting leave to appeal from interlocutory orders are reasonably well settled. It is necessary to show that the order in respect of which leave to appeal is sought is attended with sufficient doubt to warrant it being reconsidered, and that substantial injustice would result if leave to appeal were refused: Federal Commissioner of Taxation v Hydrocarbon Products Pty Ltd (1987) 72 ALR 391, Telstra Corporation Ltd v AAPT Ltd (1997) 38 IPR 539. 8 I am very conscious that there are concurrent criminal proceedings in the Magistrates Court at Brisbane in respect of the applicant. The proceedings in the Magistrates Court are part-heard and are scheduled for further hearing on 22-24 January 2007. I am concerned that this Court may be being used to prevent those criminal proceedings in the Magistrates Court continuing as scheduled. Further, I note that the next scheduled Full Court hearings in this Court, which could hear an appeal by the applicant from the orders I made this morning, are not until February 2007. However, in applying the principles in Hydrocarbon Products and Telstra Corporation , I am satisfied that the orders in respect of which leave to appeal is sought are attended by sufficient doubt to warrant reconsideration in the sense that: • the orders raise important issues of law and the jurisdiction of the Federal Court under the ADJR Act, particularly in respect of s 9A, and • it is appropriate that these issues receive consideration by the Full Court.


case_title: Meredith v Commissioner of Taxation [2002] FCAFC 271 ; (2002) 125 FCR 308


case_title: Telstra Corporation Ltd v AAPT Ltd (1997) 38 IPR 539


case_text: The basis for the Tribunal's reasons for its July 2007 decision appears from the following summary: (a) "there were two parts to the benefit payable as a result of the death of a member ... being the minimum employer benefit and the balance of the employer benefit"; (b) under rule 40(4) the balance of the employer benefit is only payable, in the case of a member who was absent without leave, where there are sufficient mitigating circumstances; (c) in such a case the balance is only payable if and when the Board, or the Tribunal standing in its stead, determines that mitigating circumstances exist; (d) the determination in (c) is an "ancillary decision" that was required to be made before the balance of the employer benefit became payable; (e) Military Superannuation and Benefits Board of Trustees No 1 v Batt [2005] FCA 1865 ; (2005) 149 FCR 448 ( Batt ) is indistinguishable from the present case and the Tribunal must follow that decision; (f) consequently the Tribunal was treating the applicant's complaint as withdrawn under s 22(3)(b) on the ground that it was misconceived. 8 The applicant seeks review of the Tribunal's decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). She also appeals to the Court under s 46 of the Act. The appeal is on a question of law. 9 Under rule 40(1)(a) a deceased member's employer benefit is payable to his or her spouse as a lump sum. Subrule (3) provides: An employer [benefit] payable under subrule (1) is calculated as if, on the date of the death of the deceased member, he or she had become entitled to invalidity benefits under Division 2 of Part 3 and had been classified as Class A under rule 22. Subrule (4) provides: Subrule (3) does not apply where: (a) a member dies and, at the time of his or her death, he or she was absent without leave and had been so absent for a period that exceeds 21 consecutive days; and (b) ...; unless the Board is satisfied that the absence of the member was due to sufficiently mitigating circumstances. 15 The Board's case turns largely on its submission, which the Tribunal accepted, that Batt covers the present case and the Tribunal was bound to follow it. It is necessary therefore to ascertain what that case decides. 16 In Batt the Tribunal determined that Mr Batt be reclassified for pension entitlements and that the Board pay him interest on the difference between his original (B class) and reclassified (A class) pension amount for a specified period. The Board's appeal from this decision as to interest was upheld by Kenny J on the ground that the decision under review by the Tribunal was that of the Incapacity Classification Committee, and that body did not have power to approve an increase, by an amount of interest, in the rate of pension payable. Accordingly the Tribunal had exceeded its powers in making an award that was not within the power of the original decision maker: see [45]. 17 Justice Kenny went on to say that if, contrary to her opinion, the Tribunal did have power to award interest, she would not have been satisfied that the requirements of rule 69(2) were satisfied. The crux of her Honour's reasoning is contained in [50] to [51]: Rule 69(2) permits an approval of an award of interest in the rate of the pension to a pensioner for such period as the decision-maker determines if two conditions are satisfied. The first is that a pension is payable and the second is that the commencement of the payment of that pension is delayed. .... Under rule 26, a person who is classified as Class A or Class B under rule 22 ... is entitled to invalidity benefits in accordance with Subdiv B of Div 2 of Pt 3 of the Rules. An invalidity pension, as defined in the Rules, is a pension payable under rule 27 or 28 (which appear in Subdiv B of Div 2 of Pt 3). A pension, as defined in the Rules, is a pension payable under the Rules. It is plain enough from this that the pension payable to a person on a Class A classification is not payable to the person until the person is classified as Class A under rule 22. Mr Batt was not classified as Class A until the Tribunal made its decision on 31 October 2001. It follows that, under the Rules, it is only on and from this date that it is possible to say that a pension is payable to Mr Batt on a Class A classification. 18 At [55] her Honour set aside the Tribunal's determination "for the reasons stated", and declared that there was "no power in the Tribunal" to approve an increase, by an amount of interest, in the rate of pension payable. The natural reading of this paragraph is that it is a reference back to her Honour's holding at [45] that the Tribunal had no power to award interest under rule 69(2). Conformably with this, the headnote in the Federal Court Reports records only this holding. 21 The applicant contended that the only reason was that given by Kenny J at [45] of Batt . The Board asserted that she gave two reasons. If two, the Tribunal was right to say that it "must follow" Batt . If the only true reason for decision was that recorded at [45] of Batt , the Tribunal should still have followed her Honour's considered opinion on the interest point. There was no other authority available on that question. In Brunner v Greenslade [1971] Ch 993 at 1002-1003 Megarry J said: A mere passing remark or a statement or assumption on a matter that has not been argued is one thing, a considered judgment on a point fully argued is another, especially where, had the facts been otherwise, it would have formed part of the ratio. Such judicial dicta, standing in authority somewhere between a ratio decidendi and an obiter dictum, seem to me to have a weight nearer to the former than the latter. Writing of "varying degrees of authority of dicta", Cross and Harris say: It is a truism upon which there is no need to enlarge that dicta are of various degrees of persuasiveness. At one end of the scale we have the considered opinion of all members of the House of Lords who sat to hear a case. At the other end of the scale we have broad observations made on the spur of the moment such as the remark which prompted Lord Abinger to say 'It was not only an obiter dictum, but a wide divaricating dictum. Dicta of the highest degree of persuasiveness may often, for all practical purposes, be indistinguishable from pronouncements which must be treated as ratio decidendi .... Precedent in English Law 4 th ed (1991) at 77. 22 I deal at [24] with the applicant's submission that Batt was wrongly decided. Assuming for the present that it was not, the question for me is whether the Tribunal erred in following Batt . In my view it did not, whether what Kenny J said about interest was one of the reasons (rationes) for her decision or was strictly obiter. It is not necessary to decide whether her Honour gave one or two reasons for her decision. 23 I do not accept the applicant's submission that the Tribunal was not bound to follow Batt because, not being a court, it is not bound by the doctrine of precedent. In the use of its own precedents the Tribunal is in a different position from a court. A court may be bound by the rules of precedent to decide a case in accordance with an earlier decision, whether or not the result accords with the court's own opinion. But an administrative body which acts in that way in deference to an earlier decision of its own may thereby commit reviewable error. It is not allowed to pursue consistency at the expense of the merits of individual cases. Cf Wade and Forsyth, Administrative Law 9 th ed (2004) at 325, 931. However, that principle has no application to the Tribunal's obligation to follow decisions of this Court, whose decisions under ss 39 and 46 of the Act provide the Tribunal with authoritative guidance as to the law. See Cross and Harris, op cit, at 124, citing Chief Supplementary Benefit Officer v Leary [1985] 1 WLR 84 at 89. If the applicant's submission were correct, the Tribunal could, without committing correctible error, decline to follow this Court's decision on a question referred to it by the Tribunal under s 39, or indeed a unanimous decision of the High Court. In my view the observations of Megarry J quoted at [21] have added weight in relation to an administrative body such as the Tribunal. 24 In counsel's written submissions it was asserted that Batt was wrongly decided. When asked whether the real point was whether Batt was distinguishable, counsel replied that she did not withdraw the submission that Batt was wrong, but that the principal contention was that it was distinguishable. I do not consider the claim that Batt was wrongly decided is an available submission. A judge should follow an earlier decision of another judge of this Court unless satisfied it is plainly or clearly wrong. In BHP Billiton Iron Ore Pty Ltd v National Competition Council (2007) 162 FCR 234 at [83] to [84] Greenwood J, with whom I agreed, said: The circumstances in which a judge in the exercise of the Court's original jurisdiction might find a decision of a single judge of the Court to be 'plainly wrong' should be approached with real and deliberative caution and would generally involve that class of case where for one reason or another there is transparent error such as the consideration of an incorrect statutory instrument in the resolution of the controversy; consideration of a provision of a statute in a form not enacted at the relevant date of the events or a failure to consider a provision of an Act relevant to the disposition of the cause, thus causing the analysis to fall into error; a failure to apply having regard to the issues raised by the controversy, a binding decision of a Full Court of this Court or the High Court; a failure to apply a decision of a Full Court of this Court, an intermediate Court of Appeal of another jurisdiction or an authority of the High Court expressing a clear persuasive emphasis of opinion in favour of a particular conclusion (particularly concerning legislation of the Commonwealth Parliament); or some other circumstance that has caused a dispositive adjudication of the controversy to miscarry. That minds might differ on a question is not a foundation for a conclusion that a decision supported by exposed reasons for judgment after full argument, is plainly wrong. 25 Nothing was put to me that suggested that Batt was plainly wrong in any of the respects instanced by Greenwood J, or in any other respect. 26 The applicant contends that Batt is distinguishable because there the entitlement to a benefit arose only upon classification. In the present case, it is said that entitlement arose on the deceased's death leaving a spouse. I do not think Batt is distinguishable. As from the deceased's death the applicant was entitled to his employer benefit. The amount of the benefit was to be calculated under rule 40(3) unless the deceased had been absent without leave for a period exceeding 21 consecutive days: rule 40(4). The deceased had been so absent. However, if the Board was satisfied that the absence was due to sufficiently mitigating circumstances, the benefit was to be calculated under s 40(3). In order for the more favourable benefit to be payable there had to be a determination by the Board, or by the Tribunal standing in its place, that the deceased's absence was due to sufficiently mitigating circumstances. I can see no difference between the need for that determination to be made before the larger benefit became payable and the need for classification to be made in Batt before the more generous pension became payable. 27 Section 41(3) of the Act provides that a decision by the Tribunal in substitution for a decision of a trustee is taken to be a decision of a trustee which, on the coming into operation of the Tribunal's decision, has effect on and from the day on which the original decision has or had effect. In Batt at [53] and [54], referring to s 41(3), Kenny J said: The fact that pursuant to statute a decision of the Tribunal would ordinarily take effect at a date prior to its decision on classification does not alter the fact that the pension at the reclassified rate is payable only from the date of the decision of the Tribunal. Further, the fact that the reclassification is to take effect from a date prior to a reclassification does not entail the consequence that the commencement of the payment of the pension at the reclassified rate is 'delayed' for the purpose of rule 69(2). In order for there to be a relevant delay in the commencement of the payment of the pension that is payable, there must be a classification or reclassification decision that makes the pension payable and delay between the date of this decision and the first payment of the pension in accordance with the Rules (and the decision). The period between the date of reclassification and the date on which, in the ... Act or under the Rules, the reclassification takes effect is not a period of delay in respect of any instalment of the pension within rule 69(4). This is because no right to receive the pension at the reclassified rate arises before the decision on classification or reclassification is made. Those observations are applicable to the Tribunal's decision in October 2005 that the deceased's absence was due to sufficiently mitigating circumstances. 28 The applicant's oral argument was not directed to the numerous grounds of appeal. I have thus far dealt with the argument in the manner in which it was put to me. In the following paragraphs I will deal, as briefly as I can, with the various grounds. 29 I have taken into account that a decision summarily to terminate a proceeding should be made only in a clear case. However, having regard to Batt , the Tribunal was entitled to conclude that the applicant's complaint was misconceived. The course it took was authorised by s 22(3)(b). 30 I refer to what I have said about ground 1. 31 In a case where the Board is satisfied that a member's absence was due to sufficiently mitigating circumstances, or where at the date of the member's death the member was not absent without leave, the spouse would be entitled to one payment calculated under rule 40(3). There would be no occasion to separate it into its component parts. But here, the Board was not relevantly satisfied, and its decision was successfully challenged before the Tribunal. The applicant was then entitled to be paid the difference between the benefit she received on 4 May 2004 and the total employer benefit under s 40(3). As a matter of fact, in the events that happened, the applicant was entitled to two payments. It is irrelevant that, had the Board been relevantly satisfied, the applicant would only have received one payment. The obligation to make the second payment did not arise until 1 November 2005, when the Tribunal's determination was received by the Board. That is the date from which any delay in payment is to be measured.


case_text: In Jacobs v London County Council [1950] AC 361 at 369 Lord Simonds said: There is in my opinion no justification for regarding as obiter dictum a reason given by a judge for his decision because he has given another reason also. In Commissioners of Taxation (NSW) v Palmer [1907] AC 179 at 184 Lord Macnaghten for the Privy Council said: It is impossible to treat a proposition which a court declares to be a distinct and sufficient ground for its decision as a mere dictum, simply because there is another ground stated upon which, standing alone, the case might have been determined.


case_title: Commissioners of Taxation (NSW) v Palmer [1907] AC 179


case_text: In McBride v Monzie Pty Ltd [2007] FCA 1947 Finkelstein J said at [6]: The ratio of a case is the ruling on a point of law upon which the judge acts to reach his (or her) conclusion: Cross & Harris, Precedent in English Law (4th ed, 1990) at 72. If a judge gives two or more alternative reasons for reaching his (or her) decision each reason is part of the ratio ... Bristol-Meyers Squibb Co v F H Faulding & Co Ltd [2000] FCA 316 ; (2000) 97 FCR 524 , 570-571. There may be some cases where the judge gives additional reasons but indicates that he does not wish them to be part of the ratio and is merely wanting to have his views recorded for the benefit of those who may later be required to consider the point. In that event, what the judge says is not part of the ratio: Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1, 25.


case_title: Brunner v Greenslade [1971] Ch 993

case_text: The applicant contended that the only reason was that given by Kenny J at [45] of Batt . The Board asserted that she gave two reasons. If two, the Tribunal was right to say that it "must follow" Batt . If the only true reason for decision was that recorded at [45] of Batt , the Tribunal should still have followed her Honour's considered opinion on the interest point. There was no other authority available on that question. In Brunner v Greenslade [1971] Ch 993 at 1002-1003 Megarry J said: A mere passing remark or a statement or assumption on a matter that has not been argued is one thing, a considered judgment on a point fully argued is another, especially where, had the facts been otherwise, it would have formed part of the ratio. Such judicial dicta, standing in authority somewhere between a ratio decidendi and an obiter dictum, seem to me to have a weight nearer to the former than the latter. Writing of "varying degrees of authority of dicta", Cross and Harris say: It is a truism upon which there is no need to enlarge that dicta are of various degrees of persuasiveness. At one end of the scale we have the considered opinion of all members of the House of Lords who sat to hear a case. At the other end of the scale we have broad observations made on the spur of the moment such as the remark which prompted Lord Abinger to say 'It was not only an obiter dictum, but a wide divaricating dictum. Dicta of the highest degree of persuasiveness may often, for all practical purposes, be indistinguishable from pronouncements which must be treated as ratio decidendi .... Precedent in English Law 4 th ed (1991) at 77.


case_text: I do not accept the applicant's submission that the Tribunal was not bound to follow Batt because, not being a court, it is not bound by the doctrine of precedent. In the use of its own precedents the Tribunal is in a different position from a court. A court may be bound by the rules of precedent to decide a case in accordance with an earlier decision, whether or not the result accords with the court's own opinion. But an administrative body which acts in that way in deference to an earlier decision of its own may thereby commit reviewable error. It is not allowed to pursue consistency at the expense of the merits of individual cases. Cf Wade and Forsyth, Administrative Law 9 th ed (2004) at 325, 931. However, that principle has no application to the Tribunal's obligation to follow decisions of this Court, whose decisions under ss 39 and 46 of the Act provide the Tribunal with authoritative guidance as to the law. See Cross and Harris, op cit, at 124, citing Chief Supplementary Benefit Officer v Leary [1985] 1 WLR 84 at 89. If the applicant's submission were correct, the Tribunal could, without committing correctible error, decline to follow this Court's decision on a question referred to it by the Tribunal under s 39, or indeed a unanimous decision of the High Court. In my view the observations of Megarry J quoted at [21] have added weight in relation to an administrative body such as the Tribunal.


case_text: In counsel's written submissions it was asserted that Batt was wrongly decided. When asked whether the real point was whether Batt was distinguishable, counsel replied that she did not withdraw the submission that Batt was wrong, but that the principal contention was that it was distinguishable. I do not consider the claim that Batt was wrongly decided is an available submission. A judge should follow an earlier decision of another judge of this Court unless satisfied it is plainly or clearly wrong. In BHP Billiton Iron Ore Pty Ltd v National Competition Council (2007) 162 FCR 234 at [83] to [84] Greenwood J, with whom I agreed, said: The circumstances in which a judge in the exercise of the Court's original jurisdiction might find a decision of a single judge of the Court to be 'plainly wrong' should be approached with real and deliberative caution and would generally involve that class of case where for one reason or another there is transparent error such as the consideration of an incorrect statutory instrument in the resolution of the controversy; consideration of a provision of a statute in a form not enacted at the relevant date of the events or a failure to consider a provision of an Act relevant to the disposition of the cause, thus causing the analysis to fall into error; a failure to apply having regard to the issues raised by the controversy, a binding decision of a Full Court of this Court or the High Court; a failure to apply a decision of a Full Court of this Court, an intermediate Court of Appeal of another jurisdiction or an authority of the High Court expressing a clear persuasive emphasis of opinion in favour of a particular conclusion (particularly concerning legislation of the Commonwealth Parliament); or some other circumstance that has caused a dispositive adjudication of the controversy to miscarry. That minds might differ on a question is not a foundation for a conclusion that a decision supported by exposed reasons for judgment after full argument, is plainly wrong.


case_title: Minister for Immigration and Ethnics Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259

case_text: The first respondent submitted that the appellant's contentions were based on merits review of the Tribunal's findings of fact, and did not support a claim of error of law or jurisdictional error: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272.


case_text: Connolly FM held that the issue of whether the appellant was shot at, or was or was not an ordinary supporter of the UNP, were clearly matters of fact for the Tribunal and were based on findings of credibility. Further, his Honour noted, contrary to the appellant's assertion, that the Tribunal did not require the appellant to cease his political activities in order to avoid harm. The relevant comments were made in the context of a finding about 'generalised' election violence. The Tribunal said that the appellant could minimise the 'remote' risk of harm by avoiding violent hot spots and 'the fact that political parties engage in violence from time to time does not mean there is persecution within the meaning of the Convention': see Rodrigo v Minister for Immigration and Multicultural Affairs [2001] FCA 1027 (" Rodrigo "). 13 Before Connolly FM, the appellant conceded that the earlier application which he instituted in the High Court was remitted to this Court, and that it was dismissed on 12 July 2004 by Merkel J for non-appearance. His Honour held that this amounted to an abuse of process because the correct procedure was for the appellant to seek to reinstate that application, rather than commencing further proceedings. 14 Finally, Connolly FM held that the delay between the date of the Tribunal's decision and the filing of the application for review was excessively lengthy and unexplained, and that in itself would be sufficient for his Honour to decline to exercise his discretion in the appellant's favour. 15 The appellant filed a notice of appeal on 10 October 2005 setting out the following grounds of appeal: "There was an error of law in the [Federal Magistrate's] decision constituting jurisdictional error. The Federal Magistrate should have found that both these findings did not have the necessary evidentiary basis and as a consequence the decision of the RRT was without jurisdiction. The Federal Magistrate erred in finding that the errors in the fact finding process of the RRT did not amount to failure to exercise jurisdiction and/or that other findings in the decision overcame the decision's shortcomings. The Federal Magistrate should have found that the Refugee Review Tribunal made an error going to jurisdiction or failed to exercise jurisdiction." 16 In contentions of fact and law filed on 17 November 2005, the appellant asserted that he was a strong supporter of the UNP, that he was involved in campaigning at a number of elections and that he has close influential political contacts. He submitted that he was assaulted prior to the general elections in 1999 and was forced to go to his sister's house for treatment, because he was likely to be attacked again if he went to hospital. The appellant asserted that he was very active during the elections in October 2000 and he was the target of a shooting attempt. He asserted that he was the subject of anonymous threats, including a threat to kidnap his daughter, and he was the target of a further shooting attempt in May 2001. The appellant rejected the Tribunal's finding that he was merely an ordinary supporter of the UNP. He submitted that he was a well-known business man with a number of family connections to high profile members of the UNP. He submitted that the Tribunal's finding that he could minimise the remote likelihood of violence by avoiding dangerous situations is a restriction on his right to participate in the democratic process that amounts to persecution. 17 The first respondent contended that Connolly FM was plainly correct in finding that the Tribunal's comments regarding the appellant's role in the UNP and the violence he suffered as a result were matters of fact for the Tribunal and were based on findings as to credibility. Additionally, the first respondent submitted that it is well-established that the mere fact that political parties engage in violence is not persecution, and no error arises from this finding. Finally, the first respondent asserted that the findings by both the Tribunal and Connolly FM in relation to minimising the remote risk of harm were free from error. 21 In my opinion, the notice of appeal and the appellant's submissions, both written and oral, do not disclose any error in the decision of Connolly FM, or for that matter in the decision of the Tribunal. I agree with the view expressed in Rodrigo that the fact that political parties engage in violence from time to time does not mean that there is persecution within the meaning of the Convention. This was the context in which the Tribunal referred to generalised election violence, and the steps that the appellant could take to minimise the risk of being assaulted as a result of such violence. I agree with Connolly FM's conclusion in this regard that the Tribunal did not, as asserted by the appellant, require the appellant to cease his political activities in order to avoid harm arising out of persecution within the meaning of the Convention. 22 Connolly FM held that no error had been established on the basis of the material placed before him and dismissed the appellant's application for review. I agree with his Honour's conclusions and the reasons which he furnished in support thereof. It is not necessary for me to consider the abuse of process point or the delay point. 23 I dismiss the appeal and order that the appellant pay the respondents' costs. 24 In oral submissions, counsel for the first respondent sought leave to amend the name of the first respondent in the title of the proceedings to 'Minister for Immigration and Multicultural Affairs' by removing the words 'and Indigenous'. I will grant leave accordingly. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Young. Associate: Dated: 9 March 2006 Counsel for the Appellant: Appeared in person with interpreter Counsel for the First Respondent: Mr S. Hay Solicitors for the First Respondent: Clayton Utz Date of Hearing: 16 February 2006 Date of Judgment: 9 March 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/173.html


case_text: The first respondent made two additional submissions that it said justify the decision of Connolly FM. First, it was submitted that the appellant failed to make any submission justifying his decision to start a new proceeding after the orders made by Merkel J on 12 July 2004, despite ample opportunity to do so: see MZWHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 201 at [13] . Secondly, the first respondent submitted that the appellant has failed to explain the delay between the Tribunal's decision being handed down and his application for review being filed: see Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491.


case_title: Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491


case_text: As Kenny J observed in Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558 at [4] , on an appeal conducted by way of re-hearing, such as an appeal from a judgment of the Federal Magistrates Court, 'the powers of an appellate court are exercisable only if the appellant can demonstrate that, having regard to the evidence before the appellate court, the judgment under appeal is a consequence of some legal, factual or discretionary error'. The appellant has failed to point to any error in the decisions of the Tribunal and Connolly FM.


case_text: Mr Fenner first claimed a disability pension under the Act as a result of those conditions, or of one or other of them, on 30 April 2001. Both the Repatriation Commission in August 2001 and then the Veterans' Review Board in September 2002 rejected the claim. In April 2004, the Administrative Appeals Tribunal (the AAT) affirmed that decision. However, on 2 February 2005, the AAT decision was set aside and the matter remitted to the AAT for rehearing: Fenner v Repatriation Commission (2005) 218 ALR 122. 4 The AAT, differently constituted, on 8 September 2006, after the rehearing, again affirmed the decision to refuse to grant a disability pension to Mr Fenner. 5 This is an application by way of appeal from that decision. It is confined to errors of law on the part of the AAT: Administrative Appeals Tribunal Act 1975 (Cth) s 44. Moreover, the application concerns only the AAT's decision with respect to Mr Fenner's condition of alcohol abuse. The AAT also rejected his claim based upon the condition of PTSD, but Mr Fenner does not contend that its decision in that regard involved any errors of law. 6 Section 13(1) of the Act renders the Commonwealth liable to pay a disability pension to a veteran who has become incapacitated from a war-caused injury or disease. 7 Section 9(1) prescribes the circumstances in which an injury or disease is taken to be war-caused. Relevantly, those circumstances include where the injury or disease resulted from an occurrence on "operational service". Mr Fenner's trips to Vietnam on HMAS Sydney constituted operational service. Consequently, s 120(1) of the Act was enlivened. It provides: (1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. It obliged the Commission, and on review the Tribunal, to determine that Mr Fenner's injuries or diseases were war-caused unless the decision-maker was satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. 48 It was first contended that the AAT had failed to apply s 119(1)(h) in its consideration of the claim. I discussed a similar contention in Roncevich v Repatriation Commission [2002] FCA 1458 at [29] - [31] and in Fenner v Repatriation Commission [2005] FCA 27 at [26] - [29] . Section 119(1)(h) informs the AAT as to how it should proceed in applying the central provisions of the Act, relevantly s 120.


case_text: The operation of ss 120, 120A and 120B was explained in an oft-quoted passage in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98 ( Deledio ). The provisions require four steps, of which only the fourth is presently relevant. That is because the Tribunal was satisfied of the first three steps. It accepted that the material pointed to an hypothesis connecting Mr Fenner's condition with his operational service (the first step), that there was a relevant SoP, namely the AA SoP (the second step), and that applying the AA SoP it considered that the hypothesis was a reasonable one because it fitted the "template" of the AA SoP (the third step). The application therefore raises the issue as to whether the Tribunal, in addressing those provisions at the point of the fourth step in Deledio erred in law. 13 In Deledio , the fourth step was explained as follows at 97-98: The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved. 14 The Tribunal's first step was to identify the condition or conditions from which Mr Fenner was suffering. 15 There was no issue about Mr Fenner suffering from alcohol abuse or alcohol dependence. 16 The Tribunal then proceeded to determine whether that condition was war-caused by addressing the four step process described in Deledio . 17 Clause 5(b) of the AA SoP required the experiencing of a severe stressor within two years of the clinical onset of alcohol abuse. The definition of "experiencing a severe stressor" is also set out above. The severe stressors ultimately relied upon, as described by the Tribunal, were the "scare charges" and the "full steam ahead incident". 18 The "scare charges" severe stressor was identified as occasions that HMAS Sydney was in port in Vietnam when small explosive devices were detonated in the water adjacent to the vessel to deter potential underwater saboteurs. Mr Fenner, as a stoker in the boiler room, was working below the waterline on those occasions and said the explosions were extremely loud and caused the hull to vibrate, and caused him intense fear and helplessness because he did not know whether they were merely scare charges, so he did not know if the vessel was in danger and might be sunk. He particularly described an incident when HMAS Sydney was moored in Vung Tau Harbour during the Tet Offensive. 21 It then asked, as it was required to do by the fourth Deledio step, whether it was satisfied beyond reasonable doubt that Mr Fenner did not in fact experience a severe stressor within that two year period, and so would be satisfied beyond reasonable doubt that Mr Fenner's condition of alcohol abuse did not arise from a war caused injury. 22 That, as the Tribunal addressed the matter, required its consideration of Mr Fenner's reliability as a witness. 23 It concluded, to its reasonable satisfaction (see s 120(4) of the Act) that Mr Fenner suffers from the condition known as antisocial personality disorder. It noted that deceit and manipulation are "central features" of that disorder, so there was a heightened need to consider the history provided by Mr Fenner by reference, where possible, to collateral sources. 27 On the last matter, the AAT concluded: For reasons that we will set out more fully we do not accept the evidence that Mr Fenner has given on this aspect of the matter. We are not satisfied, on the balance of probabilities, that the traumatic events claimed by Mr Fenner involved a threat of death or serious injury nor are we satisfied that Mr Fenner had a response that involved intense fear, helplessness or horror. Our reasons for reaching that conclusion are set out below when we discuss the fourth Deledio step in the context of alcohol abuse. Hence, it was not satisfied that Mr Fenner suffered from post traumatic stress disorder. 28 In addressing the fourth Deledio step in relation to the claim based upon the condition of alcohol abuse, the AAT first remarked upon Mr Fenner's credibility. It said that Mr Fenner was a "most unsatisfactory witness." It reached that view based on contemporary materials, objectively established facts and the apparent "logic of events", and not on "any particular perception of his demeanour". The factors particularly relied upon were as follows: (1) that his anti-social personality disorder has deceit and manipulation as central features; (2) that there is no record of Mr Fenner having reported the scare charges or the full steam ahead incident during 1970 and 1971 when he was (apparently) seen by psychiatrists, psychologists, a social work student, and by parole officers, nor is any reference made in the papers in connection with his discharge; (3) that Mr Fenner falsely claimed to a Dr Kenny in August 2005 that he requested a discharge from the Navy on return from his first visit to Vietnam in April 1967, whereas when he applied for a discharge in March 1969 he is recorded as saying that he had not previously applied for discharge; and (4) that there are "numerous variations and inconsistencies" in the accounts (apparently) given by him from time to time, and the "sheer illogicality of much of what he says." 29 The Tribunal went on to explain that last observation by reference to the claimed traumatic events. 30 It accepted that scare charges were used by HMAS Sydney in Vietnam, and sometimes detonated closer to the vessel than they should have been, causing more noise and shock than expected. However, it said that "[w]hat is in issue is Mr Fenner's claimed response to them." 47 Counsel for Mr Fenner contended that there were seven errors of law in the AAT's reasons. They were: (i) a failure to apply the provisions of s.119(1) of the Act to the facts of the case; (ii) a failure to take into account all of the evidence in examining whether the hypotheses raised had been disproved beyond any reasonable doubt; (iii) a failure to recognise that the lack of credibility accorded by the AAT to Mr Fenner was not sufficient in itself to displace the factors upon which the hypotheses of connection were based. (iv) a failure to appreciate that the effect of the overall evidence pointed to the reasonableness of the hypotheses raised rather than the conclusion reached by the AAT that it disproved the hypotheses beyond reasonable doubt; (v) adopting the wrong methodology in determining whether Step 4 of Deledio had been satisfied; (vi) adopting the wrong interpretation of what constituted a "severe stressor" in the Statement of Principles; (vii) failing to provide adequate and sufficient reasons for its determination. 58 Grounds two to four of the grounds of appeal all challenge the AAT's ultimate finding on the fourth Deledio step. I have come to the conclusion that the AAT erred in law in concluding that it was satisfied beyond reasonable doubt that Mr Fenner was not in fact affected by the severe stressors which he experienced, because he personally did not react to them at all. My reasons for that conclusion involve a combination of matters which reach across those grounds of appeal, so I shall not address them severally. 67 The fifth and sixth grounds of appeal seem to suggest that, somehow, the AAT erred in its understanding of the way in which it should have gone about making its decision in the light of Deledio . In my view, it has not been shown that the AAT misunderstood the nature of the decision-making process or failed to follow it appropriately. 68 In my judgment, the only error of law which its decision exposes is the failure to properly apply s 120(1) in the manner I have referred to above. For that reason, I set aside the decision of the AAT and remit the application to the AAT for reconsideration, limited to Mr Fenner's claim in respect of his condition of alcohol abuse. I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 22 March 2007 Counsel for the Applicant: D De Marchi Solicitor for the Applicant: Pipers Barristers & Solicitors Counsel for the Respondent: S Maharaj QC with A Schatz Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 8 December 2006 Date of Judgment: 22 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/406.html


case_text: It was first contended that the AAT had failed to apply s 119(1)(h) in its consideration of the claim. I discussed a similar contention in Roncevich v Repatriation Commission [2002] FCA 1458 at [29] - [31] and in Fenner v Repatriation Commission [2005] FCA 27 at [26] - [29] . Section 119(1)(h) informs the AAT as to how it should proceed in applying the central provisions of the Act, relevantly s 120.


case_text: I do not therefore need to address the contention on behalf of the respondent that s 119(1)(h) provides merely an exhortatory direction to the decision-makers, in this instance the AAT, so that its contravention does not amount to an error of law on the part of the AAT where it has complied otherwise with the decision-making requirements of the Act: see Hill v Repatriation Commission (2005) 218 ALR 251 at 266, at [75], although it may be noted that the position of s 119 in the Act provides a point of distinction from the decision in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 concerning s 420 of the Migration Act 1958 (Cth).


case_title: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611


case_text: I can deal with the seventh contention shortly. I do not consider that the AAT failed to provide adequate and sufficient reasons for its determination. The nature of that obligation under s 43(2B) of the AAT Act is explained in Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620; Commonwealth v Smith (1989) 18 ALD 224 at 225. The AAT's reasons demonstrate the process by which it came to its decision. They demonstrate the findings of fact which it made and why it made them. They sufficiently expose its reasons for decision to enable it to be determined whether it has fallen into legal error in reaching the conclusions which it did. It is not incumbent upon the AAT to refer to all pieces of evidence on every topic, or to give a refutation of evidence to which it has not attributed any weight.


case_title: Commonwealth v Smith (1989) 18 ALD 224


case_text: I have expressed in [33]-[40] my view that, in part at least, the reasons for the AAT's conclusion that Mr Fenner's evidence had inconsistencies was illogical. It drew conclusions which I do not think were logically available to it. However, want of logic in fact finding, of itself, does not constitute error of law: see per Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 356; SZEEO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 546 per Tamberlin J, at [14]-[17] and the cases cited at [14].


case_title: SZEEO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 546


case_text: The conclusion of the AAT that, on the balance of probabilities, Mr Fenner did not suffer from PTSD reflects the approach approved by Gray J in Mines v Repatriation Commission (2004) 86 ALD 62 at 74, at [48]. 64 Given the findings of the AAT about Mr Fenner's exposure to the scare charges and to the full steam ahead incident, it is instructive to note the conclusions of the psychiatrist whose evidence the AAT accepted about the connection between Mr Fenner's disease of alcohol abuse and his operational service. Professor Goldney said: It is a reasonable hypothesis that Mr Fenner's alcohol abuse is related to the stressors he alleges ... it is pertinent that often alcohol dependence is associated with anti-social personality disorders, and it is not necessary to invoke the specific stressors to explain Mr Fenner's alcohol dependence. Nevertheless, if in fact the alleged stressors did occur, then one could state it is a reasonable hypothesis that they, at the very least, contributed to his alcohol abuse. 65 As that evidence shows, those or many of those who experienced scare charges had the concern that the ship may have been under attack and so felt frightened. In my view that evidence was relevant not just to whether the scare charges and the full ahead incident were severe stressors, but also to whether the AAT was satisfied beyond reasonable doubt that Mr Fenner uniquely, or almost uniquely, did not in fact react as would have been expected and as others did. It also shows that the medical evidence preferred by the AAT also recognised the potential role of the stressors in Mr Fenner's disease. The AAT has not referred to that evidence. Senior counsel for the Commission contended that it was unnecessary that it should do so. But I think, in the circumstances, the absence of any reference to that material demonstrates more than illogicality upon the part of the AAT in the respects I have mentioned. I think it demonstrates that the AAT has equated a satisfaction beyond reasonable doubt that Mr Fenner was not a reliable witness and that no weight could be placed on his own evidence with a conclusion beyond reasonable doubt that he was not in fact scared by the two stressors. In my view that amounts to an error of law on the part of the AAT. I conclude that it has therefore erred in law by failing to apply the clear direction of s 120(1) to the facts. The absence of reference to relevant evidence on that topic tends to confirm that conclusion.