Question:
<citphrase id="cp0.0">cited from="[2007] FCAFC 164">administrative law</citphrase>
<citphrase id="cp0.1">cited from="[2007] FCAFC 164">termination of service in the australian defence force</citphrase>
<citphrase id="cp0.2">cited from="[2007] FCAFC 164">judicial review of termination decision</citphrase>
<citphrase id="cp0.3">cited from="[2007] FCAFC 164">termination decision made without prior notice of refusal of extension of time to submit additional material in opposition</citphrase>
<citphrase id="cp0.4">cited from="[2007] FCAFC 164">no breach of natural justice shown  administrative law</citphrase>
<citphrase id="cp0.5">cited from="[2007] FCAFC 164">judicial review of termination decision</citphrase>
<citphrase id="cp0.6">cited from="[2007] FCAFC 164">relevant consideration</citphrase>
<citphrase id="cp0.7">cited from="[2007] FCAFC 164">failure to consider an investigator's report into soldier's service with battalion</citphrase>
<citphrase id="cp0.8">cited from="[2007] FCAFC 164">failure to comply with defence instructions</citphrase>
<citphrase id="cp0.9">cited from="[2007] FCAFC 164">investigator's report made after notice of proposed termination and before termination decision</citphrase>
<citphrase id="cp0.10">cited from="[2007] FCAFC 164">change in circumstances</citphrase>
<citphrase id="cp0.11">cited from="[2007] FCAFC 164">relevant consideration not so insignificant that could not have materially affected the termination decision</citphrase>
<citphrase id="cp1.0">cited from="[2007] FCA 157">migration</citphrase>
<citphrase id="cp1.1">cited from="[2007] FCA 157">no point of principle</citphrase>
<citphrase id="cp3.0">cited from="[1996] HCA 6">immigration</citphrase>
<citphrase id="cp3.1">cited from="[1996] HCA 6">refugees</citphrase>
<citphrase id="cp3.2">cited from="[1996] HCA 6">application to review decisions of minister's delegates refusing claim for refugee status</citphrase>
<citphrase id="cp3.3">cited from="[1996] HCA 6">application of chan v minister for immigration and ethnic affairs [1989] hca 62 ; (1989) 169 clr 379</citphrase>
<citphrase id="cp3.4">cited from="[1996] HCA 6">'real chance' of persecution test</citphrase>
<citphrase id="cp3.5">cited from="[1996] HCA 6">whether delegates failed properly to consider real chance of persecution.   administrative law</citphrase>
<citphrase id="cp3.6">cited from="[1996] HCA 6">judicial review</citphrase>
<citphrase id="cp3.7">cited from="[1996] HCA 6">decisions as to 'refugee status'</citphrase>
<citphrase id="cp3.8">cited from="[1996] HCA 6">proper role of reviewing court.</citphrase>
<citphrase id="cp4.0">cited from="[1990] HCA 21">administrative law</citphrase>
<citphrase id="cp4.1">cited from="[1990] HCA 21">natural justice</citphrase>
<citphrase id="cp4.2">cited from="[1990] HCA 21">appointment of judicial officers</citphrase>
<citphrase id="cp4.3">cited from="[1990] HCA 21">abolition of one set of inferior courts and substitution of another</citphrase>
<citphrase id="cp4.4">cited from="[1990] HCA 21">policy to appoint stipendiary magistrates of former courts as magistrates of new courts unless unfit for judicial office</citphrase>
<citphrase id="cp4.5">cited from="[1990] HCA 21">decision not to appoint former stipendiary magistrate set aside for failure to accord natural justice</citphrase>
<citphrase id="cp4.6">cited from="[1990] HCA 21">reconsideration of case</citphrase>
<citphrase id="cp4.7">cited from="[1990] HCA 21">change of appointment policy</citphrase>
<citphrase id="cp4.8">cited from="[1990] HCA 21">applicants to be judged on merit</citphrase>
<citphrase id="cp4.9">cited from="[1990] HCA 21">whether former stipendiary magistrate entitled to reconsideration of application on basis of former or current policy</citphrase>
<citphrase id="cp4.10">cited from="[1990] HCA 21">local courts act 1982 (n.s.w.), s. 12.</citphrase>
<citphrase id="cp5.0">cited from="[1985] HCA 81">immigration and aliens</citphrase>
<citphrase id="cp5.1">cited from="[1985] HCA 81">deportation</citphrase>
<citphrase id="cp5.2">cited from="[1985] HCA 81">power of minister</citphrase>
<citphrase id="cp5.3">cited from="[1985] HCA 81">principles of natural justice</citphrase>
<citphrase id="cp5.4">cited from="[1985] HCA 81">whether applicable</citphrase>
<citphrase id="cp5.5">cited from="[1985] HCA 81">standing as australian citizen of infant daughter of aliens</citphrase>
<citphrase id="cp5.6">cited from="[1985] HCA 81">intended deportation order</citphrase>
<citphrase id="cp5.7">cited from="[1985] HCA 81">whether notice required</citphrase>
<citphrase id="cp5.8">cited from="[1985] HCA 81">migration act 1958 (cth), ss. 6 , 6a, 7 , 18 .  administrative law</citphrase>
<citphrase id="cp5.9">cited from="[1985] HCA 81">decision</citphrase>
<citphrase id="cp5.10">cited from="[1985] HCA 81">natural justice</citphrase>
<citphrase id="cp5.11">cited from="[1985] HCA 81">procedural fairness</citphrase>
<citphrase id="cp5.12">cited from="[1985] HCA 81">order for deportation of aliens</citphrase>
<citphrase id="cp5.13">cited from="[1985] HCA 81">review of decision</citphrase>
<citphrase id="cp5.14">cited from="[1985] HCA 81">administrative decisions (judicial review) act 1977 (cth), ss. 5 , 13 .</citphrase>
<citphrase id="cp6.0">cited from="[1985] HCA 40">defence</citphrase>
<citphrase id="cp6.1">cited from="[1985] HCA 40">military forces</citphrase>
<citphrase id="cp6.2">cited from="[1985] HCA 40">royal australian air force</citphrase>
<citphrase id="cp6.3">cited from="[1985] HCA 40">termination of officer's appointment by executive council</citphrase>
<citphrase id="cp6.4">cited from="[1985] HCA 40">no action for wrongful dismissal</citphrase>
<citphrase id="cp6.5">cited from="[1985] HCA 40">air force regulations (cth), regs. 72(1), 628(1).  constitutional law</citphrase>
<citphrase id="cp6.6">cited from="[1985] HCA 40">crown</citphrase>
<citphrase id="cp6.7">cited from="[1985] HCA 40">office held at pleasure</citphrase>
<citphrase id="cp6.8">cited from="[1985] HCA 40">immaterial whether cause be shown on termination.  administrative law</citphrase>
<citphrase id="cp6.9">cited from="[1985] HCA 40">decision of executive council</citphrase>
<citphrase id="cp6.10">cited from="[1985] HCA 40">dismissal of officer from office held at pleasure</citphrase>
<citphrase id="cp6.11">cited from="[1985] HCA 40">whether examinable by court</citphrase>
<citphrase id="cp6.12">cited from="[1985] HCA 40">crown immunity.</citphrase>
<citphrase id="cp7.0">cited from="[1978] HCA 60">prohibition</citphrase>
<citphrase id="cp7.1">cited from="[1978] HCA 60">federal court</citphrase>
<citphrase id="cp7.2">cited from="[1978] HCA 60">jurisdiction</citphrase>
<citphrase id="cp7.3">cited from="[1978] HCA 60">locus standi of prosecutor</citphrase>
<citphrase id="cp7.4">cited from="[1978] HCA 60">jurisdiction conferred by statute</citphrase>
<citphrase id="cp7.5">cited from="[1978] HCA 60">interpretation</citphrase>
<citphrase id="cp7.6">cited from="[1978] HCA 60">the constitution (63  64 vict., c. 12), s. 75 (v.).  trade practices</citphrase>
<citphrase id="cp7.7">cited from="[1978] HCA 60">consumer protection</citphrase>
<citphrase id="cp7.8">cited from="[1978] HCA 60">false representations</citphrase>
<citphrase id="cp7.9">cited from="[1978] HCA 60">right of action</citphrase>
<citphrase id="cp7.10">cited from="[1978] HCA 60">injunction</citphrase>
<citphrase id="cp7.11">cited from="[1978] HCA 60">damages</citphrase>
<citphrase id="cp7.12">cited from="[1978] HCA 60">applicant</citphrase>
<citphrase id="cp7.13">cited from="[1978] HCA 60">"any other person"</citphrase>
<citphrase id="cp7.14">cited from="[1978] HCA 60">whether trade competitor may sue</citphrase>
<citphrase id="cp7.15">cited from="[1978] HCA 60">trade practices act 1974 (cth), ss. 52 (1)*, 53 *, 80 *.</citphrase>
<citphrase id="cp8.0">cited from="[1976] HCA 24">constitutional law (cth)</citphrase>
<citphrase id="cp8.1">cited from="[1976] HCA 24">freedom of interstate trade</citphrase>
<citphrase id="cp8.2">cited from="[1976] HCA 24">prohibition of sale of potatoes by unregistered grower</citphrase>
<citphrase id="cp8.3">cited from="[1976] HCA 24">whether prohibition valid against unregistered grower who sells potatoes interstate</citphrase>
<citphrase id="cp8.4">cited from="[1976] HCA 24">whether registration provisions regulatory</citphrase>
<citphrase id="cp8.5">cited from="[1976] HCA 24">provision for exaction of contributions from registered growers</citphrase>
<citphrase id="cp8.6">cited from="[1976] HCA 24">whether burden on interstate trade</citphrase>
<citphrase id="cp8.7">cited from="[1976] HCA 24">whether valid</citphrase>
<citphrase id="cp8.8">cited from="[1976] HCA 24">effect upon validity of requirements for registration</citphrase>
<citphrase id="cp8.9">cited from="[1976] HCA 24">the constitution (63  64 vict. c. 12) s. 92</citphrase>
<citphrase id="cp8.10">cited from="[1976] HCA 24">potato marketing act, 1948-1973 (s.a.), ss. 12, 18</citphrase>
<citphrase id="cp8.11">cited from="[1976] HCA 24">acts interpretation act, 1915 (s.a.), as amended, s. 22a.</citphrase>
<citphrase id="cp9.0">cited from="[1964] HCA 45">defence</citphrase>
<citphrase id="cp9.1">cited from="[1964] HCA 45">military forces</citphrase>
<citphrase id="cp9.2">cited from="[1964] HCA 45">officer</citphrase>
<citphrase id="cp9.3">cited from="[1964] HCA 45">resignation of commission</citphrase>
<citphrase id="cp9.4">cited from="[1964] HCA 45">whether effective without assent by governor-general</citphrase>
<citphrase id="cp9.5">cited from="[1964] HCA 45">whether governor-general under duty to assent</citphrase>
<citphrase id="cp9.6">cited from="[1964] HCA 45">defence act 1903-1956 (cth), s. 17.  constitutional law</citphrase>
<citphrase id="cp9.7">cited from="[1964] HCA 45">crown</citphrase>
<citphrase id="cp9.8">cited from="[1964] HCA 45">position of in relation to the service of subjects</citphrase>
<citphrase id="cp9.9">cited from="[1964] HCA 45">offices under crown held at pleasure.</citphrase>
<citphrase id="cp10.0">cited from="[1952] HCA 2">master and servant</citphrase>
<citphrase id="cp10.1">cited from="[1952] HCA 2">action per quod servitium amisit</citphrase>
<citphrase id="cp10.2">cited from="[1952] HCA 2">injury to member of police force</citphrase>
<citphrase id="cp10.3">cited from="[1952] HCA 2">crown</citphrase>
<citphrase id="cp10.4">cited from="[1952] HCA 2">relation between crown and its servants</citphrase>
<citphrase id="cp10.5">cited from="[1952] HCA 2">number of police force</citphrase>
<citphrase id="cp10.6">cited from="[1952] HCA 2">nature of action</citphrase>
<citphrase id="cp10.7">cited from="[1952] HCA 2">damages</citphrase>
<citphrase id="cp10.8">cited from="[1952] HCA 2">police regulation act 1899-1947 (n.s.w.) (no. 20 of 1899</citphrase>
<citphrase id="cp10.9">cited from="[1952] HCA 2">no. 19 of 1947), ss. 4, 6, 9, 10, 12, 14</citphrase>
<citphrase id="cp10.10">cited from="[1952] HCA 2">police regulation (superannuation) act 1906-1944 (n.s.w.) (no. 28 of 1906</citphrase>
<citphrase id="cp10.11">cited from="[1952] HCA 2">no. 1 of 1944)</citphrase>
<citphrase id="cp10.12">cited from="[1952] HCA 2">industrial arbitration act 1940-1951 (n.s.w.) (no. 2 of 1940</citphrase>
<citphrase id="cp10.13">cited from="[1952] HCA 2">no. 10 of 1951)</citphrase>
<citphrase id="cp10.14">cited from="[1952] HCA 2">crown employees appeal board act 1944 (n.s.w.) (no. 15 of 1944).</citphrase>
<citphrase id="cp13.0">citing from="[2010] AATA 581">defence</citphrase>
<citphrase id="cp13.1">citing from="[2010] AATA 581">defence home ownership assistance scheme</citphrase>
<citphrase id="cp13.2">citing from="[2010] AATA 581">application for subsidy certificate</citphrase>
<citphrase id="cp13.3">citing from="[2010] AATA 581">whether the applicant as a member of the army reserve is a member of the defence force</citphrase>
<citphrase id="cp13.4">citing from="[2010] AATA 581">applicant held to be a member of the defence force</citphrase>
<citphrase id="cp13.5">citing from="[2010] AATA 581">decision under review remitted.</citphrase>
</citphrases>
<citances>
<sentence from="[2010] AATA 581" id="cs0">In evidence is a Discharge or Transfer Certificate that was issued on 19 March 2008 [7] . That certificate is evidence of the transfer of the applicant to the Reserves under regulation 56 of the Defence (Personnel) Regulations 2002 ; the certificate provides for the transfer to be effected on 7 July 2008. That regulation provides that a member may apply to the Chief of the member's Service for permission to transfer from the Permanent Force of that Service to a category of the Reserves for that Service. The certificate is evidence of the approval of the transfer of the applicant to the Reserves. The applicant has also given evidence that he has transferred to the inactive Reserves. There is certainly no evidence before me that the service of the applicant has been terminated under Defence (Personnel) Regulations [8] . Having regard to the evidence before me, I find that the applicant when he made his application on 30 October 2009 was a member of the Defence Force. </sentence>
</citances>
<legistitles>
<title id="l0">ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 </title>
<title id="l1">ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 - SECT 5 Applications for review of decisions</title>
<title id="l2">COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT </title>
<title id="l3">COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 30 Qualification of electors</title>
<title id="l4">COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 51 Legislative powers of the Parliament [see Notes 10 and 11]</title>
<title id="l5">COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 63 Provisions referring to Governor-General</title>
<title id="l6">COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 68 Command of naval and military forces</title>
<title id="l7">COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 75 Original jurisdiction of High Court</title>
<title id="l8">DEFENCE ACT 1903 </title>
<title id="l9">DEFENCE ACT 1903 - SECT 8 Powers of Minister in relation to Defence Force</title>
<title id="l10">DEFENCE ACT 1903 - SECT 9 Command of Defence Force and arms of Defence Force</title>
<title id="l11">DEFENCE ACT 1903 - SECT 30 Defence Force</title>
<title id="l12">DEFENCE ACT 1903 - SECT 31 Australian Army</title>
<title id="l13">DEFENCE FORCE DISCIPLINE ACT 1982 </title>
<title id="l14">DEFENCE FORCE DISCIPLINE ACT 1982 - SECT 20 Mutiny</title>
<title id="l15">AUSTRALIAN MILITARY REGULATIONS 1927 </title>
<title id="l16">DEFENCE (PERSONNEL) REGULATIONS 2002 </title>
<title id="l17">FEDERAL COURT RULES </title>
</legistitles>
</case>


Question:
<citphrase id="cp0.0">cited from="[2005] HCA 24">saap  anor v minister for immigration and multicultural and indigenous affairs  immigration</citphrase>
<citphrase id="cp0.1">cited from="[2005] HCA 24">refugees</citphrase>
<citphrase id="cp0.2">cited from="[2005] HCA 24">decision of refugee review tribunal ("tribunal")</citphrase>
<citphrase id="cp0.3">cited from="[2005] HCA 24">tribunal invited the first appellant to appear to give evidence and present arguments under migration act 1958 (cth), s 425</citphrase>
<citphrase id="cp0.4">cited from="[2005] HCA 24">evidence was later taken from first appellant's daughter in absence of first appellant</citphrase>
<citphrase id="cp0.5">cited from="[2005] HCA 24">tribunal affirmed decision under review by relying on information obtained from first appellant's daughter</citphrase>
<citphrase id="cp0.6">cited from="[2005] HCA 24">tribunal failed to give the first appellant particulars in writing of information</citphrase>
<citphrase id="cp0.7">cited from="[2005] HCA 24">tribunal failed to invite the first appellant in writing to comment on information</citphrase>
<citphrase id="cp0.8">cited from="[2005] HCA 24">whether tribunal breached migration act , s 424a.  immigration</citphrase>
<citphrase id="cp0.9">cited from="[2005] HCA 24">construction of migration act , s 424a</citphrase>
<citphrase id="cp0.10">cited from="[2005] HCA 24">whether the provisions of pt 7 div 4 have sequential or ambulatory operation</citphrase>
<citphrase id="cp0.11">cited from="[2005] HCA 24">relevance of refugee convention in case of ambiguity.  immigration</citphrase>
<citphrase id="cp0.12">cited from="[2005] HCA 24">jurisdictional error</citphrase>
<citphrase id="cp0.13">cited from="[2005] HCA 24">whether a breach of migration act , s 424a amounts to jurisdictional error that invalidates the decision.  immigration</citphrase>
<citphrase id="cp0.14">cited from="[2005] HCA 24">procedural fairness</citphrase>
<citphrase id="cp0.15">cited from="[2005] HCA 24">general law</citphrase>
<citphrase id="cp0.16">cited from="[2005] HCA 24">whether tribunal breached rules of procedural fairness.  administrative law (cth)</citphrase>
<citphrase id="cp0.17">cited from="[2005] HCA 24">certiorari</citphrase>
<citphrase id="cp0.18">cited from="[2005] HCA 24">mandamus</citphrase>
<citphrase id="cp0.19">cited from="[2005] HCA 24">jurisdictional error</citphrase>
<citphrase id="cp0.20">cited from="[2005] HCA 24">whether grant of relief should be withheld on discretionary grounds</citphrase>
<citphrase id="cp0.21">cited from="[2005] HCA 24">relevant factors</citphrase>
<citphrase id="cp0.22">cited from="[2005] HCA 24">judiciary act 1903 (cth), s 39b.  practice</citphrase>
<citphrase id="cp0.23">cited from="[2005] HCA 24">joinder of party</citphrase>
<citphrase id="cp0.24">cited from="[2005] HCA 24">tribunal was not named as a party for the relief sought under judiciary act , s 39b</citphrase>
<citphrase id="cp0.25">cited from="[2005] HCA 24">whether the tribunal was a necessary party to the proceedings</citphrase>
<citphrase id="cp0.26">cited from="[2005] HCA 24">"officer or officers of the commonwealth"</citphrase>
<citphrase id="cp0.27">cited from="[2005] HCA 24">judiciary act , s 39b.</citphrase>
</citphrases>
<citances>
</citances>
<legistitles>
<title id="l0">MIGRATION ACT 1958 </title>
<title id="l1">MIGRATION ACT 1958 - SECT 426A Failure of applicant to appear before Tribunal</title>
<title id="l2">FEDERAL COURT RULES </title>
</legistitles>
</case>


Question:
<citphrase id="cp1.0">cited from="[1992] FCA 483">administrative law</citphrase>
<citphrase id="cp1.1">cited from="[1992] FCA 483">unemployment benefit</citphrase>
<citphrase id="cp1.2">cited from="[1992] FCA 483">eligibility for benefit</citphrase>
<citphrase id="cp1.3">cited from="[1992] FCA 483">meaning of "unemployed"</citphrase>
<citphrase id="cp1.4">cited from="[1992] FCA 483">whether the statement of reasons sufficiently exposed the reasoning of the administrative appeals tribunal</citphrase>
<citphrase id="cp1.5">cited from="[1992] FCA 483">whether they included its findings of fact and a reference to the evidence or other material on which those findings were based</citphrase>
<citphrase id="cp1.6">cited from="[1992] FCA 483">whether the learned primary judge erred in refusing to allow the appeal notwithstanding his finding of deficiencies in the reasoning of the tribunal.</citphrase>
<citphrase id="cp2.0">cited from="[1991] FCA 268">administrative law</citphrase>
<citphrase id="cp2.1">cited from="[1991] FCA 268">unemployment benefit</citphrase>
<citphrase id="cp2.2">cited from="[1991] FCA 268">eligibility for benefit</citphrase>
<citphrase id="cp2.3">cited from="[1991] FCA 268">meaning of "unemployed"</citphrase>
<citphrase id="cp2.4">cited from="[1991] FCA 268">whether the statement of reasons sufficiently exposed the reasoning of the administrative appeals tribunal</citphrase>
<citphrase id="cp2.5">cited from="[1991] FCA 268">whether mere citation of other decisions a sufficient statement of the relevant law</citphrase>
<citphrase id="cp2.6">cited from="[1991] FCA 268">whether the statement of reasons included findings on material questions of fact</citphrase>
<citphrase id="cp2.7">cited from="[1991] FCA 268">whether failure to give a sufficient statement of reasons requires that the decision be set aside.</citphrase>
<citphrase id="cp3.0">citing from="[2010] AATA 1027">social security</citphrase>
<citphrase id="cp3.1">citing from="[2010] AATA 1027">newstart allowance</citphrase>
<citphrase id="cp3.2">citing from="[2010] AATA 1027">whether applicant unemployed</citphrase>
<citphrase id="cp3.3">citing from="[2010] AATA 1027">applicant operating a business and not unemployed during relevant period</citphrase>
<citphrase id="cp3.4">citing from="[2010] AATA 1027">whether grounds to waive or write off debt</citphrase>
<citphrase id="cp3.5">citing from="[2010] AATA 1027">no grounds to waive debt</citphrase>
<citphrase id="cp3.6">citing from="[2010] AATA 1027">but applicant currently has no capacity to repay debt</citphrase>
<citphrase id="cp3.7">citing from="[2010] AATA 1027">balance of debt should be written off</citphrase>
<citphrase id="cp3.8">citing from="[2010] AATA 1027">decision under review varied.</citphrase>
<citphrase id="cp4.0">citing from="[2010] AATA 776">social welfare</citphrase>
<citphrase id="cp4.1">citing from="[2010] AATA 776">pensions, payments and allowances</citphrase>
<citphrase id="cp4.2">citing from="[2010] AATA 776">cancellation of newstart allowance</citphrase>
<citphrase id="cp4.3">citing from="[2010] AATA 776">interpretation of "unemployed"</citphrase>
<citphrase id="cp4.4">citing from="[2010] AATA 776">applicant not "unemployed" in relevant period</citphrase>
<citphrase id="cp4.5">citing from="[2010] AATA 776">nature of full time employment engaged in by applicant not type of employment that ought be disregarded</citphrase>
<citphrase id="cp4.6">citing from="[2010] AATA 776">no basis to exercise discretion in s 595 of the social security act 1991 (cth)</citphrase>
<citphrase id="cp4.7">citing from="[2010] AATA 776">decision of 2 november 2009 varied by substituting 11 september 2009 for 7 september 2009</citphrase>
<citphrase id="cp4.8">citing from="[2010] AATA 776">decisions under review otherwise affirmed</citphrase>
<citphrase id="cp5.0">citing from="[2010] AATA 720">social security</citphrase>
<citphrase id="cp5.1">citing from="[2010] AATA 720">newstart allowance</citphrase>
<citphrase id="cp5.2">citing from="[2010] AATA 720">meaning of "unemployed"</citphrase>
<citphrase id="cp5.3">citing from="[2010] AATA 720">failure of one business but continuation of another</citphrase>
<citphrase id="cp5.4">citing from="[2010] AATA 720">underemployed but not unemployed.    practice and procedure</citphrase>
<citphrase id="cp5.5">citing from="[2010] AATA 720">application dismissed for applicant's failure to appear at a proceeding</citphrase>
<citphrase id="cp5.6">citing from="[2010] AATA 720">reinstated</citphrase>
<citphrase id="cp5.7">citing from="[2010] AATA 720">effect of reinstatement</citphrase>
<citphrase id="cp5.8">citing from="[2010] AATA 720">continuation of application.    practice and procedure</citphrase>
<citphrase id="cp5.9">citing from="[2010] AATA 720">applicant bankrupt after dismissal but before reinstatement</citphrase>
<citphrase id="cp5.10">citing from="[2010] AATA 720">effect of bankruptcy on application</citphrase>
<citphrase id="cp5.11">citing from="[2010] AATA 720">considerations differ according to whether bankrupt before or after application commenced</citphrase>
<citphrase id="cp5.12">citing from="[2010] AATA 720">application not stayed by bankruptcy.</citphrase>
<citphrase id="cp6.0">citing from="[2010] AATA 587">social security</citphrase>
<citphrase id="cp6.1">citing from="[2010] AATA 587">claim for newstart allowance rejected. applicant was not unemployed and did not satisfy the activity test. decision under review affirmed.</citphrase>
<citphrase id="cp7.0">citing from="[2009] FCA 1134">administrative law</citphrase>
<citphrase id="cp7.1">citing from="[2009] FCA 1134">appeal from decision of administrative appeals tribunal rejecting applicant's claim to newstart allowance under social security act 1991 (cth)</citphrase>
<citphrase id="cp7.2">citing from="[2009] FCA 1134">where tribunal found that applicant was not unemployed for purposes of s 593(1) of social security act 1991 (cth)</citphrase>
<citphrase id="cp7.3">citing from="[2009] FCA 1134">where applicant purchased, repaired and then sold motor vehicles at a profit</citphrase>
<citphrase id="cp7.4">citing from="[2009] FCA 1134">where tribunal rejected applicant's evidence as to time he spent on vehicle-related activities</citphrase>
<citphrase id="cp7.5">citing from="[2009] FCA 1134">whether tribunal committed error of law by failing to set out findings on material questions of fact or by failing to refer to evidence or other material which supported its findings as required by s 43(2b) of the administrative appeals act 1975 (cth)</citphrase>
<citphrase id="cp7.6">citing from="[2009] FCA 1134">whether tribunal committed error of law by denying applicant procedural fairness or because there was no probative material to support its findings of fact or because it was biased in taking into account the applicant's previous acts of dishonesty   held: appeal dismissed</citphrase>
<citphrase id="cp7.7">citing from="[2009] FCA 1134">tribunal set out findings as to level or intensity of applicant's vehicle-related activities and referred to evidence that applicant had been dishonest in support of its rejection of the applicant's evidence</citphrase>
<citphrase id="cp8.0">citing from="[2008] AATA 1104">social security</citphrase>
<citphrase id="cp8.1">citing from="[2008] AATA 1104">newstart allowance</citphrase>
<citphrase id="cp8.2">citing from="[2008] AATA 1104">overpayment</citphrase>
<citphrase id="cp8.3">citing from="[2008] AATA 1104">respondent granted newstart allowance in 1997</citphrase>
<citphrase id="cp8.4">citing from="[2008] AATA 1104">respondent engaged in purchasing, repairing and reselling motor vehicles</citphrase>
<citphrase id="cp8.5">citing from="[2008] AATA 1104">intensity of activities</citphrase>
<citphrase id="cp8.6">citing from="[2008] AATA 1104">whether respondent satisfied activity test</citphrase>
<citphrase id="cp8.7">citing from="[2008] AATA 1104">whether newsart allowance was correctly cancelled</citphrase>
<citphrase id="cp8.8">citing from="[2008] AATA 1104">whether special circumstances</citphrase>
<citphrase id="cp8.9">citing from="[2008] AATA 1104">decision under review set aside</citphrase>
<citphrase id="cp8.10">citing from="[2008] AATA 1104">debt raised for portion of benefits paid to respondent</citphrase>
<citphrase id="cp8.11">citing from="[2008] AATA 1104">cancellation of newstart allowance and later application for newstart allowance remitted to applicant for reconsideration</citphrase>
<citphrase id="cp9.0">citing from="[2008] AATA 221">social security</citphrase>
<citphrase id="cp9.1">citing from="[2008] AATA 221">newstart allowance</citphrase>
<citphrase id="cp9.2">citing from="[2008] AATA 221">disability support pension</citphrase>
<citphrase id="cp9.3">citing from="[2008] AATA 221">overpayment</citphrase>
<citphrase id="cp9.4">citing from="[2008] AATA 221">first respondent re-established business of dealing in opal</citphrase>
<citphrase id="cp9.5">citing from="[2008] AATA 221">consideration of date when he ceased to be unemployed</citphrase>
<citphrase id="cp9.6">citing from="[2008] AATA 221">consideration of rate of income of first respondent</citphrase>
<citphrase id="cp9.7">citing from="[2008] AATA 221">conflicting accounting evidence</citphrase>
<citphrase id="cp9.8">citing from="[2008] AATA 221">no onus of proof</citphrase>
<citphrase id="cp9.9">citing from="[2008] AATA 221">consideration of briginshaw test of quality of evidence adduced</citphrase>
<citphrase id="cp9.10">citing from="[2008] AATA 221">failure by first respondent to keep proper business records</citphrase>
<citphrase id="cp9.11">citing from="[2008] AATA 221">meaning of income "on a yearly basis"</citphrase>
<citphrase id="cp9.12">citing from="[2008] AATA 221">second respondent advised by centrelink to remain on benefits</citphrase>
<citphrase id="cp9.13">citing from="[2008] AATA 221">overpayment in subsequent year not solely the result of administrative error</citphrase>
<citphrase id="cp9.14">citing from="[2008] AATA 221">special circumstances</citphrase>
<citphrase id="cp9.15">citing from="[2008] AATA 221">failure to notify changed circumstances is relevant to exercise of discretion to waive debt</citphrase>
<citphrase id="cp9.16">citing from="[2008] AATA 221">decisions under review set aside.   practice and procedure</citphrase>
<citphrase id="cp9.17">citing from="[2008] AATA 221">newstart allowance</citphrase>
<citphrase id="cp9.18">citing from="[2008] AATA 221">disability support pension</citphrase>
<citphrase id="cp9.19">citing from="[2008] AATA 221">overpayment</citphrase>
<citphrase id="cp9.20">citing from="[2008] AATA 221">consideration of rate of income of first respondent</citphrase>
<citphrase id="cp9.21">citing from="[2008] AATA 221">conflicting accounting evidence</citphrase>
<citphrase id="cp9.22">citing from="[2008] AATA 221">no onus of proof</citphrase>
<citphrase id="cp9.23">citing from="[2008] AATA 221">consideration of bringshaw test of quality of evidence adduced</citphrase>
<citphrase id="cp9.24">citing from="[2008] AATA 221">relevance of failure by first respondent to keep proper business records.</citphrase>
<citphrase id="cp10.0">citing from="[2007] AATA 1856">social security debt</citphrase>
<citphrase id="cp10.1">citing from="[2007] AATA 1856">whether respondent unemployed while receiving newstart allowance</citphrase>
<citphrase id="cp10.2">citing from="[2007] AATA 1856">wife's parenting payment debt</citphrase>
<citphrase id="cp10.3">citing from="[2007] AATA 1856">whether special circumstances</citphrase>
<citphrase id="cp10.4">citing from="[2007] AATA 1856">decision of ssat finding special circumstances to waive the debt set aside.    social security act 1991</citphrase>
<citphrase id="cp10.5">citing from="[2007] AATA 1856">ss 1068a , 1223 (1), 1236 (1), 1237 (1)  1237aad</citphrase>
<citphrase id="cp11.0">citing from="[2007] AATA 1447">social security</citphrase>
<citphrase id="cp11.1">citing from="[2007] AATA 1447">payments and allowances</citphrase>
<citphrase id="cp11.2">citing from="[2007] AATA 1447">unemployment allowances</citphrase>
<citphrase id="cp11.3">citing from="[2007] AATA 1447">qualification</citphrase>
<citphrase id="cp11.4">citing from="[2007] AATA 1447">applicant was self-employed and running own business even though financially unsuccessful</citphrase>
<citphrase id="cp11.5">citing from="[2007] AATA 1447">applicant was not unemployed</citphrase>
<citphrase id="cp11.6">citing from="[2007] AATA 1447">activity test not satisfied</citphrase>
<citphrase id="cp11.7">citing from="[2007] AATA 1447">decision under review affirmed    social security act 1991</citphrase>
<citphrase id="cp11.8">citing from="[2007] AATA 1447">ss 593(1) , 595 (1), 601</citphrase>
<citphrase id="cp12.0">citing from="[2006] AATA 897">social security</citphrase>
<citphrase id="cp12.1">citing from="[2006] AATA 897">pensions, benefits and allowances</citphrase>
<citphrase id="cp12.2">citing from="[2006] AATA 897">newstart allowance</citphrase>
<citphrase id="cp12.3">citing from="[2006] AATA 897">overpayment raised</citphrase>
<citphrase id="cp12.4">citing from="[2006] AATA 897">"unemployed"</citphrase>
<citphrase id="cp12.5">citing from="[2006] AATA 897">was the respondent unemployed during the relevant period</citphrase>
<citphrase id="cp12.6">citing from="[2006] AATA 897">adverse inference drawn from failure of respondent to call witnesses</citphrase>
<citphrase id="cp12.7">citing from="[2006] AATA 897">false documents provided by respondent to ssat</citphrase>
<citphrase id="cp12.8">citing from="[2006] AATA 897">impossible to ascertain how much work respondent was doing during the relevant period</citphrase>
<citphrase id="cp12.9">citing from="[2006] AATA 897">sufficient evidence to establish he was not unemployed</citphrase>
<citphrase id="cp12.10">citing from="[2006] AATA 897">decision set aside</citphrase>
</citphrases>
<citances>
<sentence from="[2010] AATA 1027" id="cs0">The meaning of the term "unemployed" in this context has also been considered in a number of Federal Court and Tribunal decisions. The most relevant recent Federal Court decision in which the meaning of the term "unemployed" in this context has been considered is Secretary, Department of Employment and Workplace Relations v Joss [2006] FCA 884 ; (2006) 152 FCR 541. In Re Secretary, Department of Education, Employment and Workplace Relations and Skarzynski [2008] AATA 1104 , Deputy President Jarvis conveniently summarised the effect of Graham J's decision in Joss as follows:

 "36 ... His Honour reviewed a number of earlier decisions of the Federal Court and of this tribunal. The following principles that have relevance to the issues arising in the present proceedings are stated in effect in, or may be deduced from, Graham J's judgment or the authorities to which he referred.</sentence>
<sentence from="[2010] AATA 776" id="cs1">The term "unemployed" is not otherwise defined in the legislation. The Secretary's submissions drew attention to the discussion of the term by Graham J in Secretary, Department of Employment and Workplace Relations v Joss [2] where his Honour said:
 " [12] In the Macquarie Dictionary (A Delbridge et al (eds), Revised 3rd Ed, The Macquarie Library Pty Ltd, Macquarie University, 2003, p 619) 'unemployed' is defined as:
 1. out of work, especially temporarily and involuntarily; without work or employment. 2. not employed; not in use; not kept busy or at work. 3. not in productive or profitable use.</sentence>
<sentence from="[2010] AATA 720" id="cs2">" [146]

(4) " It may well be that viewed as a question of fact and degree and having regard to the intensity with which a person applies him or herself to a particular enterprise, one may conclude that a person is not self-employed at all. But, once it be found that the person is self-employed it seems to me impossible to conclude that such a person was, at the same time, unemployed. " [147]

  Other situations which must be considered are those of the self-employed whether they be engaged in endeavours on their own account or as members of a partnership or of a joint venture. One might say that if a person is carrying on business or engaged in work with a view of profit, that person could not be considered to be unemployed. " [146]

(4) " It may well be that viewed as a question of fact and degree and having regard to the intensity with which a person applies him or herself to a particular enterprise, one may conclude that a person is not self-employed at all. But, once it be found that the person is self-employed it seems to me impossible to conclude that such a person was, at the same time, unemployed. " [147]

  124. In Secretary, Department of Employment and Workplace Relations v Joss , [143] Justice Graham considered the meaning of " unemployed " as it is used in s 593(1). The following principles can be drawn from his Honour's judgment and those on which he relied:

(1) " ... [T] he word 'unemployed' bears its colloquial or popular meaning of not being engaged in work of a [potentially] remunerative nature. This meaning must ... be modified to allow for those special cases where a person is not engaged in work of a remunerative nature but whose commitment to some activity ... demonstrates a preference for that activity rather than employment ... "; [144]

(2) " The question whether the appellant was 'unemployed' during the whole or part of the period was essentially a question of fact and degree to be decided having regard to the above principles. In Secretary, Department of Employment and Workplace Relations v Joss , [143] Justice Graham considered the meaning of " unemployed " as it is used in s 593(1). The following principles can be drawn from his Honour's judgment and those on which he relied:

(1) " ... [T] he word 'unemployed' bears its colloquial or popular meaning of not being engaged in work of a [potentially] remunerative nature. This meaning must ... be modified to allow for those special cases where a person is not engaged in work of a remunerative nature but whose commitment to some activity ... demonstrates a preference for that activity rather than employment ... "; [144]

(2) " The question whether the appellant was 'unemployed' during the whole or part of the period was essentially a question of fact and degree to be decided having regard to the above principles. " [145]

(3) " In addressing the question of whether or not a person is 'unemployed' for the purpose of s 593 of the Act it is not sufficient to confine one's consideration to the question of whether or not a contract of employment existed between the person claiming to be unemployed and a third party. Other situations which must be considered are those of the self-employed whether they be engaged in endeavours on their own account or as members of a partnership or of a joint venture.</sentence>
<sentence from="[2010] AATA 587" id="cs3">It seems to me that during this particular period, the Applicant was not unemployed, but was under-employed. In Secretary, Department of Employment and Workplace Relations v Joss (2006) FCA 884 , it was held that a person will be unemployed within the meaning of subsection 593(1) of the SSA if the person is without work or employment and that situation is both temporary and involuntary. If a person is carrying on a business or is engaged in work with a view to a profit, such a person cannot be considered to be unemployed for the purposes of subsection 593(1). </sentence>
<sentence from="[2009] FCA 1134" id="cs4">The Tribunal set out the legal principles relevant to a determination of whether the applicant was "unemployed" within the meaning of that term in s 593(1) of the Act. He referred to the decision of Graham J in Secretary, Department of Employment and Workplace Relations v Joss [2006] FCA 884 ; (2006) 152 FCR 541. One of the principles the Tribunal formulated was that the question of whether a person is unemployed is a question of fact and degree, and regard should be had to the intensity with which the person applies himself or herself to particular work or a particular enterprise. There is no doubt that the question of whether a person is unemployed is essentially one of fact and degree to be decided having regard to the relevant principles: McAuliffe v Secretary, Department of Social Security [1992] FCA 483 ; (1992) 28 ALD 609. It was not suggested on the appeal that the Tribunal had applied the wrong legal test. </sentence>
<sentence from="[2008] AATA 1104" id="cs5">In Secretary, Department of Employment and Workplace Relations v Joss [2006] FCA 884 ; (2006) 152 FCR 541 , Graham J considered the meaning of "unemployed" for the purposes of s 593(1) of the SS Act. His Honour reviewed a number of earlier decisions of the Federal Court and of this tribunal. The following principles that have relevance to the issues arising in the present proceedings are stated in effect in, or may be deduced from, Graham J's judgment or the authorities to which he referred.
(a) The word "unemployed" bears its colloquial or popular meaning of not being engaged in work of a remunerative nature. (b) This meaning must, however, be modified to some extent in that the income test provisions of the SS Act recognise that some income may be earned by a person in receipt of newstart allowance resulting in the diminution of the allowance, but not rendering the person ineligible for it. (c) Work of a remunerative nature encompasses not only the normal employer-employee relationship but also a person who is self-employed. (d) A person may be employed even though his activities do not produce an income or profit. (e) The question of whether a person is unemployed is a question of fact and degree, and regard should be had to the intensity with which the person applies himself or herself to particular work or a particular enterprise.

 </sentence>
<sentence from="[2008] AATA 221" id="cs6">In Secretary, Department of Employment and Workplace Relations v Joss [2006] FCA 884 ; (2006) 152 FCR 541 , Graham J considered the meaning of "unemployed" for the purposes of s 593(1) of the SS Act. His Honour reviewed a number of earlier decisions of the Federal Court and of this tribunal. The following principles that have relevance to the issues arising in the present proceedings are stated in effect in, or may be deduced from, Graham J's judgment or the authorities to which he referred.
(a) The word "unemployed" bears its colloquial or popular meaning of not being engaged in work of a remunerative nature. (b) This meaning must, however, be modified to some extent in that the income test provisions of the SS Act recognise that some income may be earned by a person in receipt of Newstart allowance resulting in the diminution of the allowance, but not rendering the person ineligible for it. (c) Work of a remunerative nature encompasses not only the normal employer-employee relationship but also a person who is self-employed. (d) A person may be employed even though his activities do not produce an income or profit. (e) The question of whether a person is unemployed is a question of fact and degree, and regard should be had to the intensity with which the person applies himself or herself to particular work or a particular enterprise.

 </sentence>
<sentence from="[2007] AATA 1856" id="cs7">The above statements from the cases of McKenna and McAuliffe were endorsed by the Federal Court in the recent case of Secretary Department of Employment and Workplace Relations v Joss [2006] FCA 884 ; (2006) 92 ALD 60. </sentence>
<sentence from="[2007] AATA 1447" id="cs8">Additionally it is my view that Ms De Gregorio was, in the relevant periods, not unemployed as that expression is used in s 593(1)(a)(i) and thus not capable of satisfying that requirement for qualification for Newstart allowance. The intensity with which she applied herself to employment in her own business, commendable as that may be, means that it is impossible to regard her as being unemployed during that period. In that regard I refer to the discussion by Graham J of the dichotomy between self-employment and unemployment in Secretary, Department of Employment and Workplace Relations v Joss [1] where his Honour said:
"It may well be that viewed as a question of fact and degree and having regard to the intensity with which a person applies him or herself to a particular enterprise, one may conclude that a person is not self-employed at all. But, once it be found that the person is self-employed it seems to me impossible to conclude that such a person was, at the same time, unemployed. "
 </sentence>
<sentence from="[2007] ACTAAT 3" id="cs9">23. In Secretary, Department of Employment  Workplace Relations v Joss [2006] FCA 884 , the respondent Mr Joss had been refused the NSA because the Department of Social Security considered that he was not unemployed (by virtue of his engaging in certain activities for which he received expenses) and therefore was not entitled to the allowance. Following a comprehensive review of relevant decisions of the Commonwealth Administrative Appeals Tribunal and the legislative provisions governing the NSA, Graham J held that:
 A person will be `unemployed' within the meaning of s 593(1) of the [Social Security] Act if that person is without work or employment and that situation is both temporary and involuntary. If a person is carrying on a business or engaged in work with a view to profit, such a person could not be considered to be unemployed for the purposes of s 593(1 ). </sentence>
<sentence from="[2006] AATA 897" id="cs10">The Full Federal Court in the case of Secretary, Department of Employment and Workplace Relations v Joss [2006] FCA 884 recently considered the concept of "unemployed" as set out in the Act.</sentence>
</citances>
<legistitles>
<title id="l0">ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 </title>
<title id="l1">ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 - SECT 43 Tribunal's decision on review</title>
<title id="l2">SOCIAL SECURITY ACT 1991 </title>
<title id="l3">SOCIAL SECURITY ACT 1991 - SECT 593 Qualification for newstart allowance</title>
<title id="l4">SOCIAL SECURITY ACT 1991 - SECT 595 Persons may be treated as unemployed</title>
<title id="l5">SOCIAL SECURITY ACT 1991 - SECT 596 Unemployment due to industrial action</title>
<title id="l6">SOCIAL SECURITY ACT 1991 - SECT 596A Assurance of support</title>
<title id="l7">SOCIAL SECURITY ACT 1991 - SECT 598 Liquid assets test waiting period</title>
<title id="l8">SOCIAL SECURITY ACT 1991 - SECT 601 Activity test</title>
<title id="l9">SOCIAL SECURITY ACT 1991 No. 46, 1991 - SECT 594 Work test</title>
<title id="l10">SOCIAL SECURITY ACT 1991 No. 46, 1991 - SECT 597 Relief from work test - long-term beneficiaries in short-term vocational courses</title>
<title id="l11">SOCIAL SECURITY ACT 1991 No. 46, 1991 - SECT 635 Instalments for period less than a fortnight</title>
<title id="l12">FEDERAL COURT RULES 1979 </title>
<title id="l13">INDUSTRIAL RELATIONS ACT 1996 </title>
<title id="l14">INDUSTRIAL RELATIONS ACT 1996 - SECT 105 Definitions</title>
<title id="l15">INDUSTRIAL RELATIONS ACT 1996 - SECT 106 Power of Commission to declare contracts void or varied</title>
</legistitles>
</case>


Question:
<citphrase id="cp0.0">cited from="[2007] FMCA 1934">human rights</citphrase>
<citphrase id="cp0.1">cited from="[2007] FMCA 1934">complaints of discrimination, sexual harassment and victimisation in the course of federal court proceedings</citphrase>
<citphrase id="cp0.2">cited from="[2007] FMCA 1934">no factual foundation for any complaint</citphrase>
<citphrase id="cp0.3">cited from="[2007] FMCA 1934">application dismissed.</citphrase>
<citphrase id="cp1.0">cited from="[2007] FCA 1524">appeals</citphrase>
<citphrase id="cp1.1">cited from="[2007] FCA 1524">appealing interlocutory decisions</citphrase>
<citphrase id="cp1.2">cited from="[2007] FCA 1524">whether rulings on the admissibility of evidence are judgments or orders subject to appeal</citphrase>
<citphrase id="cp1.3">cited from="[2007] FCA 1524">rulings on evidence made in advance of, or in the course of, a trial are not usually interlocutory judgments or orders</citphrase>
<citphrase id="cp2.0">cited from="[2007] FCA 1556">practice and procedure</citphrase>
<citphrase id="cp2.1">cited from="[2007] FCA 1556">where appeal pending in relation to substantive orders and costs orders of a single judge</citphrase>
<citphrase id="cp2.2">cited from="[2007] FCA 1556">application for access to transcript for purposes of appeal</citphrase>
<citphrase id="cp2.3">cited from="[2007] FCA 1556">leave limited to viva voce evidence to facilitate preparation of the appeal by all parties</citphrase>
<citphrase id="cp2.4">cited from="[2007] FCA 1556">application for leave to stay costs orders pending determination of appeal</citphrase>
<citphrase id="cp2.5">cited from="[2007] FCA 1556">application for removal of respondents' legal representatives from participation in appeal</citphrase>
<citphrase id="cp2.6">cited from="[2007] FCA 1556">application for leave to initiate contempt proceedings where leave previously denied</citphrase>
<citphrase id="cp2.7">cited from="[2007] FCA 1556">where nature of requests scandalous and vexatious</citphrase>
<citphrase id="cp3.0">cited from="[2007] FCA 1377">practice and procedure</citphrase>
<citphrase id="cp3.1">cited from="[2007] FCA 1377">stay of orders of trial judge pending appeal</citphrase>
<citphrase id="cp3.2">cited from="[2007] FCA 1377">stay pursuant to o 52 r 17(1) of federal court rules</citphrase>
<citphrase id="cp4.0">cited from="[2007] FMCA 1408">human rights</citphrase>
<citphrase id="cp4.1">cited from="[2007] FMCA 1408">practice</citphrase>
<citphrase id="cp4.2">cited from="[2007] FMCA 1408">admissibility and rejection of irrelevant and embarrassing evidence</citphrase>
<citphrase id="cp4.3">cited from="[2007] FMCA 1408">refusal to allow amendment in relation to alleged guardianship order.</citphrase>
<citphrase id="cp5.0">cited from="[2006] FMCA 1792">human rights</citphrase>
<citphrase id="cp5.1">cited from="[2006] FMCA 1792">jurisdiction in an application to the court</citphrase>
<citphrase id="cp5.2">cited from="[2006] FMCA 1792">identification of the respondents to the terminated complaint</citphrase>
<citphrase id="cp5.3">cited from="[2006] FMCA 1792">application to join additional respondents</citphrase>
<citphrase id="cp5.4">cited from="[2006] FMCA 1792">examination of complaints made to hreoc</citphrase>
<citphrase id="cp5.5">cited from="[2006] FMCA 1792">joinder refused.human rights</citphrase>
<citphrase id="cp5.6">cited from="[2006] FMCA 1792">practice</citphrase>
<citphrase id="cp5.7">cited from="[2006] FMCA 1792">anonymity order sought to avoid embarrassment and distress</citphrase>
<citphrase id="cp5.8">cited from="[2006] FMCA 1792">whether necessary to prevent prejudice to the administration of justice</citphrase>
<citphrase id="cp5.9">cited from="[2006] FMCA 1792">anonymity refused.</citphrase>
<citphrase id="cp6.0">cited from="[2006] FCA 1336">practice and procedure</citphrase>
<citphrase id="cp6.1">cited from="[2006] FCA 1336">appeal</citphrase>
<citphrase id="cp6.2">cited from="[2006] FCA 1336">application for security for costs</citphrase>
<citphrase id="cp6.3">cited from="[2006] FCA 1336">discretionary nature</citphrase>
<citphrase id="cp6.4">cited from="[2006] FCA 1336">consideration of relevant factors</citphrase>
<citphrase id="cp6.5">cited from="[2006] FCA 1336">promptness of application</citphrase>
<citphrase id="cp6.6">cited from="[2006] FCA 1336">stifling of appeal</citphrase>
<citphrase id="cp6.7">cited from="[2006] FCA 1336">prospects of success of appeal</citphrase>
<citphrase id="cp7.0">cited from="[2005] FCA 219">practice and procedure</citphrase>
<citphrase id="cp7.1">cited from="[2005] FCA 219">security for costs</citphrase>
<citphrase id="cp7.2">cited from="[2005] FCA 219">additional security</citphrase>
<citphrase id="cp7.3">cited from="[2005] FCA 219">application for pre-action discovery</citphrase>
<citphrase id="cp7.4">cited from="[2005] FCA 219">application by off-shore company</citphrase>
<citphrase id="cp7.5">cited from="[2005] FCA 219">no assets in australia</citphrase>
<citphrase id="cp7.6">cited from="[2005] FCA 219">company based in peoples republic of china</citphrase>
<citphrase id="cp7.7">cited from="[2005] FCA 219">application involving some legal and factual complexity</citphrase>
<citphrase id="cp7.8">cited from="[2005] FCA 219">assessment of amount of additional security</citphrase>
<citphrase id="cp7.9">cited from="[2005] FCA 219">risk management exercise</citphrase>
<citphrase id="cp7.10">cited from="[2005] FCA 219">additional security ordered</citphrase>
<citphrase id="cp8.0">cited from="[2005] FCA 764">costs</citphrase>
<citphrase id="cp8.1">cited from="[2005] FCA 764">security for</citphrase>
<citphrase id="cp8.2">cited from="[2005] FCA 764">applicant a natural person</citphrase>
<citphrase id="cp8.3">cited from="[2005] FCA 764">predisposition against ordering provision of security by an impecunious applicant</citphrase>
<citphrase id="cp8.4">cited from="[2005] FCA 764">discretionary factors</citphrase>
<citphrase id="cp8.5">cited from="[2005] FCA 764">question of weakness of applicant's case on pleadings</citphrase>
<citphrase id="cp8.6">cited from="[2005] FCA 764">effect of cross claim raising same facts</citphrase>
<citphrase id="cp8.7">cited from="[2005] FCA 764">changes of applicant's name and address.</citphrase>
<citphrase id="cp9.0">cited from="[2004] FCA 601">practice and procedure</citphrase>
<citphrase id="cp9.1">cited from="[2004] FCA 601">application for security for costs</citphrase>
<citphrase id="cp9.2">cited from="[2004] FCA 601">relevant considerations in deciding whether security for costs should be awarded</citphrase>
<citphrase id="cp9.3">cited from="[2004] FCA 601">context of extensive litigation between the parties</citphrase>
<citphrase id="cp9.4">cited from="[2004] FCA 601">ten previous unsatisfied costs orders</citphrase>
<citphrase id="cp13.0">cited from="[1995] FCA 76">security for costs</citphrase>
<citphrase id="cp13.1">cited from="[1995] FCA 76">factors relevant to exercise of court's discretion</citphrase>
<citphrase id="cp13.2">cited from="[1995] FCA 76">whether proceedings properly characterised as defensive</citphrase>
<citphrase id="cp13.3">cited from="[1995] FCA 76">whether applicant was forced into position of plaintiff to halt "self-help" measures taken by the respondent</citphrase>
<citphrase id="cp13.4">cited from="[1995] FCA 76">appropriate order where applicant's claim is partly defensive and partly offensive</citphrase>
<citphrase id="cp13.5">cited from="[1995] FCA 76">effect of willingness to give undertaking or guarantee by principals of the company.   costs</citphrase>
<citphrase id="cp13.6">cited from="[1995] FCA 76">application for costs of application that notice of motion be struck out as applicant on motion in contempt of court</citphrase>
<citphrase id="cp13.7">cited from="[1995] FCA 76">principle that a party in breach of the courts orders should be prevented from obtaining relief</citphrase>
<citphrase id="cp13.8">cited from="[1995] FCA 76">whether principle requires a formal finding of guilt after contempt proceedings</citphrase>
<citphrase id="cp13.9">cited from="[1995] FCA 76">whether rule discretionary.</citphrase>
<citphrase id="cp15.0">citing from="[2011] WASCA 32">practice and procedure</citphrase>
<citphrase id="cp15.1">citing from="[2011] WASCA 32">application for security for costs</citphrase>
<citphrase id="cp15.2">citing from="[2011] WASCA 32">discretionary decision</citphrase>
<citphrase id="cp15.3">citing from="[2011] WASCA 32">court's discretion unfettered</citphrase>
<citphrase id="cp15.4">citing from="[2011] WASCA 32">need to show error</citphrase>
<citphrase id="cp16.0">citing from="[2010] FCA 796">practice and procedure</citphrase>
<citphrase id="cp16.1">citing from="[2010] FCA 796">application for security for costs</citphrase>
<citphrase id="cp16.2">citing from="[2010] FCA 796">broad power</citphrase>
<citphrase id="cp16.3">citing from="[2010] FCA 796">unfettered discretion</citphrase>
<citphrase id="cp16.4">citing from="[2010] FCA 796">rules do not confine discretion</citphrase>
<citphrase id="cp16.5">citing from="[2010] FCA 796">application made month before hearing of appeal</citphrase>
<citphrase id="cp16.6">citing from="[2010] FCA 796">security granted in reduced amount</citphrase>
<citphrase id="cp17.0">citing from="[2008] FMCA 1340">human rights</citphrase>
<citphrase id="cp17.1">citing from="[2008] FMCA 1340">no reasonable prospect of success</citphrase>
<citphrase id="cp17.2">citing from="[2008] FMCA 1340">abuse of process vexatious proceeding in this and the other courts</citphrase>
<citphrase id="cp17.3">citing from="[2008] FMCA 1340">costs matter</citphrase>
<citphrase id="cp17.4">citing from="[2008] FMCA 1340">raise issue of public interest</citphrase>
<citphrase id="cp17.5">citing from="[2008] FMCA 1340">seeking orders of person benefit costs against unsuccessful applicant.</citphrase>
<citphrase id="cp18.0">citing from="[2008] FCA 1060">practice and procedure</citphrase>
<citphrase id="cp18.1">citing from="[2008] FCA 1060">order previously made requiring security for costs</citphrase>
<citphrase id="cp18.2">citing from="[2008] FCA 1060">non-compliance with order</citphrase>
<citphrase id="cp18.3">citing from="[2008] FCA 1060">no explanation for non-compliance</citphrase>
<citphrase id="cp18.4">citing from="[2008] FCA 1060">no prospects of compliance</citphrase>
<citphrase id="cp18.5">citing from="[2008] FCA 1060">dismissal of proceeding</citphrase>
</citphrases>
<citances>
<sentence from="[2011] WASCA 32" id="cs0">14 The respondents said that this principle arises out of a consideration of the difference between the appellant who has lost at trial, but who 'has had his day in court', and a plaintiff prior to trial. The respondents, in this regard, referred principally to Tait v Bindal People [2002] FCA 322 [2] - [4], although reference is also made to Dranichnikov v Centrelink [2002] FCA 1622 [8] - [9] and [25]; Carey-Hazell v Getz Bros  Co (Aust) Pty Ltd [2004] FCA 1334 [29] - [35]; Lawrance v Commonwealth [2008] FCA 417 [41] - [48]; 33 South Pty Ltd v Fitzgerald [2008] FCA 1960 [5] - [7]; and Clack v Collins (No 1) [2010] FCA 513 [8] - [12] and [28] - [31]. The respondents also referred, in support of their proposition, to cases involving applications for security for costs at first instance under the relevant corporations legislation: Westralian Gold Mines Ltd v Westralian Minerals  Drilling Pty Ltd (in liq) (1986) 4 ACLC 167 ; and SAS Global Forrestdale Pty Ltd v Samsera Pty Ltd [2010] WASC 309 [52] - [55].</sentence>
<sentence from="[2010] FCA 796" id="cs1">This factor is related to the next, namely: Whether there are any persons standing behind the company who are likely to benefit from the litigation and who are willing to provide the necessary security: ... An issue related to the last guideline is whether persons standing behind the company have offered any personal undertaking to be liable for the costs and if so, the form of any such undertaking: ... Security will only ordinarily be ordered against a party who is in substance a plaintiff, and an order ought not to be made against parties who are defending themselves and thus forced to litigate: ... (citations omitted)

See also: Mijac Investments Pty Ltd v Graham [2008] FCA 1251 at [9] per Kenny J. The need for an application for security to be made promptly is a factor repeatedly referred to and endorsed: e.g., Crypta Fuels Pty Ltd v Svelte Corporation Pty Ltd (1995) 19 ACSR 68 at 71 per Lehane J. See also: Lawrance v Commonwealth [2008] FCA 417 at [14] . Delay is an " important consideration ": Acohs Pty Ltd v Ucorp Pty Ltd [2006] FCA 1279 at [56] , [2006] FCA 1279 ; 155 FCR 181 at 202 per Jessup J. </sentence>
<sentence from="[2008] FMCA 1340" id="cs2">" His Honour then considered all the alleged incidents and found that the applicant had " not established any basis for the grant of relief under the Human Rights and Equal Opportunities Commission Act" sic;
" Human Rights and Equal Opportunity Act" . The application was dismissed in relation to all respondents. The applicant has appealed against that decision but on 4 April 2007 was ordered by Justice Flick to provide security for costs in respect of all respondents Lawrance v Commonwealth [2008] FCA 417. (See Affidavit of Mee (supra) at paragraph 14). The Court notes that the conduct complained of in SYG 2015 of 2006 was substantially the same as in matters SYG 2109 of 2006 and
SYG 655 of 2007. The actual costs expended by the State of NSW were in excess of $38,000. The applicant appealed and sought a stay of costs. On 4 April 2008 Justice Flick dismissed the application for a stay of the order for costs and ordered security of costs for all respondents Lawrance v Commonwealth [2008] FCA 417 (see Affidavit of Mee, paragraph 14). At paragraph 12 Justice Flick stated: "... Second, the order as made by the Federal Magistrate is an order that would normally be expected to be made given the given dismissal by the Court of her application" Security of costs for $10,000 was ordered for the first and third to thirteenth respondents (which include the Commonwealth, DFaCSIA, CRS and AGS); security for costs of $12,000 was ordered for the second respondent (the State of NSW). In the Affidavit of Mee at paragraph 28, she states the State of NSW has incurred costs of $113,000 in responding to the applications by the applicant, and at paragraph 29 that the Guardianship Tribunal's costs exceed $37,000.</sentence>
<sentence from="[2008] FCA 1060" id="cs3">1 Orders were previously made in this proceeding on 4 April 2008 requiring the Appellant to provide security for costs: Lawrance v Commonwealth [2008] FCA 417. Those orders required security to be provided at two stages -- the first stage required 50% of the security to be provided within 21 days of those orders being made; the second stage required the balance of the security to be provided 21 days prior to the hearing of the appeal to this Court from a decision of the Federal Magistrates Court: Lawrance v Commonwealth (No 5) [2007] FMCA 1934.  8 Today the Appellant has frankly -- and quite properly -- conceded that she remains unable to meet any order requiring security to be provided. Her position is that the present proceeding should remain stayed as she may ultimately prevail in a number of other proceedings she is pursuing in the Federal Magistrates Court. If ultimately successful in those other proceedings, she contends that it would be unjust to have the present proceeding in this Court dismissed. Whatever success the Appellant may or may not have in those other proceedings, however, is a matter to be resolved in those other proceedings. Appropriate orders will be made by the Federal Magistrates Court to resolve those proceedings. They have no relevance to the present proceeding, other than to possibly support a submission advanced by the Respondents that the continued pursuit of the present proceeding is either vexatious or an abuse of process. It is, however, unnecessary to resolve those submissions. For present purposes it is sufficient to note that in the reasons for decision as published on 4 April 2008 it was then concluded that none of the grounds of appeal sought to be pursued in this Court had " any real prospects of success ": [2008] FCA 417 at [26] . There is no reason to revisit that conclusion or vary it -- even if it were permissible to do so. </sentence>
</citances>
<legistitles>
<title id="l0">DISABILITY DISCRIMINATION ACT 1992 </title>
<title id="l1">DISABILITY DISCRIMINATION ACT 1992 - SECT 5 Direct disability discrimination</title>
<title id="l2">DISABILITY DISCRIMINATION ACT 1992 - SECT 24 Goods, services and facilities</title>
<title id="l3">FEDERAL COURT OF AUSTRALIA ACT 1976 </title>
<title id="l4">FEDERAL COURT OF AUSTRALIA ACT 1976 - SECT 29 Stay of proceedings and suspension of orders</title>
<title id="l5">FEDERAL COURT OF AUSTRALIA ACT 1976 - SECT 56 Security</title>
<title id="l6">EVIDENCE ACT </title>
</legistitles>
</case>


Question:
<citphrase id="cp0.0">cited from="[2006] FCA 571">the case concerns a document entitled 'cole inquiry</citphrase>
<citphrase id="cp0.1">cited from="[2006] FCA 571">draft statement of contrition</citphrase>
<citphrase id="cp0.2">cited from="[2006] FCA 571">andrew lindberg.' the document became exhibit 665 in the commission of inquiry which is being conducted by commissioner cole ('the inquiry') under the royal commissions act 1902 ('rca').</citphrase>
<citphrase id="cp1.0">cited from="[2006] FCA 174">practice and procedure</citphrase>
<citphrase id="cp1.1">cited from="[2006] FCA 174">notice to produce</citphrase>
<citphrase id="cp1.2">cited from="[2006] FCA 174">whether documents sought satisfy the test of apparent relevance</citphrase>
<citphrase id="cp2.0">cited from="[2005] FCA 1247">practice and procedure</citphrase>
<citphrase id="cp2.1">cited from="[2005] FCA 1247">application for access pursuant to s 263 of the income tax assessment act 1936 (cth)</citphrase>
<citphrase id="cp2.2">cited from="[2005] FCA 1247">matter remitted from a full court of the federal court of australia</citphrase>
<citphrase id="cp2.3">cited from="[2005] FCA 1247">documents prepared by non-agent third party on the client's instructions</citphrase>
<citphrase id="cp2.4">cited from="[2005] FCA 1247">whether documents prepared for the dominant purpose of obtaining legal advice</citphrase>
<citphrase id="cp2.5">cited from="[2005] FCA 1247">whether certain documents privileged in whole or in part on the ground that the nature of legal advice sought or given might be inferred</citphrase>
<citphrase id="cp3.0">cited from="[2002] NSWSC 855">procedure</citphrase>
<citphrase id="cp3.1">cited from="[2002] NSWSC 855">evidence</citphrase>
<citphrase id="cp3.2">cited from="[2002] NSWSC 855">access to documents produced</citphrase>
<citphrase id="cp3.3">cited from="[2002] NSWSC 855">claim for client legal privilege</citphrase>
<citphrase id="cp3.4">cited from="[2002] NSWSC 855">who is "client"</citphrase>
<citphrase id="cp3.5">cited from="[2002] NSWSC 855">confidential communications concerning litigation funding</citphrase>
<citphrase id="cp4.0">cited from="[1999] HCA 66">mann v carnell  practice and procedure</citphrase>
<citphrase id="cp4.1">cited from="[1999] HCA 66">preliminary discovery</citphrase>
<citphrase id="cp4.2">cited from="[1999] HCA 66">legal professional privilege</citphrase>
<citphrase id="cp4.3">cited from="[1999] HCA 66">loss of privilege</citphrase>
<citphrase id="cp4.4">cited from="[1999] HCA 66">waiver by disclosure to third party.  australian capital territory</citphrase>
<citphrase id="cp4.5">cited from="[1999] HCA 66">separation of powers</citphrase>
<citphrase id="cp4.6">cited from="[1999] HCA 66">representative government</citphrase>
<citphrase id="cp4.7">cited from="[1999] HCA 66">nature of relationship between the act legislative assembly and the act executive.</citphrase>
<citphrase id="cp5.0">cited from="[1976] HCA 63">practice</citphrase>
<citphrase id="cp5.1">cited from="[1976] HCA 63">discovery</citphrase>
<citphrase id="cp5.2">cited from="[1976] HCA 63">production of document for inspection</citphrase>
<citphrase id="cp5.3">cited from="[1976] HCA 63">privilege</citphrase>
<citphrase id="cp5.4">cited from="[1976] HCA 63">legal professional privilege</citphrase>
<citphrase id="cp5.5">cited from="[1976] HCA 63">report to department of public health on injury received by inmate of psychiatric centre</citphrase>
<citphrase id="cp5.6">cited from="[1976] HCA 63">report obtained inter alia with intention of forwarding it to legal adviser if proceedings instituted against commission for damages for default.</citphrase>
<citphrase id="cp6.0">citing from="[2011] VSC 269">evidence</citphrase>
<citphrase id="cp6.1">citing from="[2011] VSC 269">legal professional privilege</citphrase>
<citphrase id="cp6.2">citing from="[2011] VSC 269">ss 118 , 119 , 120 of the evidence act 2008 (vic)</citphrase>
<citphrase id="cp6.3">citing from="[2011] VSC 269">whether privilege attached to document waived by delivery to 3 rd party</citphrase>
<citphrase id="cp6.4">citing from="[2011] VSC 269">failure to object to document of which privilege is claimed in opening submissions</citphrase>
<citphrase id="cp6.5">citing from="[2011] VSC 269">whether acted in a manner inconsistent with the maintenance of confidentiality retained in document per s 117 of the evidence act 2008 (vic)</citphrase>
<citphrase id="cp6.6">citing from="[2011] VSC 269">whether document can be adduced in evidence</citphrase>
<citphrase id="cp6.7">citing from="[2011] VSC 269">held privilege retained</citphrase>
<citphrase id="cp6.8">citing from="[2011] VSC 269">burden of proof</citphrase>
<citphrase id="cp6.9">citing from="[2011] VSC 269">whether burden of proof lies with the party asserting the privilege pursuant to s 122 of the evidence act 2008 (vic)</citphrase>
<citphrase id="cp6.10">citing from="[2011] VSC 269">whether burden of proof shifts pursuant to s 122(5) of the evidence act 2008 (vic)</citphrase>
<citphrase id="cp6.11">citing from="[2011] VSC 269">judge : vickery j where held : melbourne date of hearing : 15-16 june 2011 date of ruling : 16 june 2011 case may be cited as : hodgson v amcor ltd; amcor ltd v barnes (no. 4) medium neutral citation : [2011] vsc 269</citphrase>
<citphrase id="cp6.12">citing from="[2011] VSC 269">evidence</citphrase>
<citphrase id="cp6.13">citing from="[2011] VSC 269">legal professional privilege</citphrase>
<citphrase id="cp6.14">citing from="[2011] VSC 269">ss 118 , 119 , 120 of the evidence act 2008 (vic)</citphrase>
<citphrase id="cp6.15">citing from="[2011] VSC 269">whether privilege attached to document waived by delivery to 3 rd party</citphrase>
<citphrase id="cp6.16">citing from="[2011] VSC 269">failure to object to document of which privilege is claimed in opening submissions</citphrase>
<citphrase id="cp6.17">citing from="[2011] VSC 269">whether acted in a manner inconsistent with the maintenance of confidentiality retained in document per s 117 of the evidence act 2008 (vic)</citphrase>
<citphrase id="cp6.18">citing from="[2011] VSC 269">whether document can be adduced in evidence</citphrase>
<citphrase id="cp6.19">citing from="[2011] VSC 269">held privilege retained</citphrase>
<citphrase id="cp6.20">citing from="[2011] VSC 269">burden of proof</citphrase>
<citphrase id="cp6.21">citing from="[2011] VSC 269">whether burden of proof lies with the party asserting the privilege pursuant to s 122 of the evidence act 2008 (vic)</citphrase>
<citphrase id="cp6.22">citing from="[2011] VSC 269">whether burden of proof shifts pursuant to s 122(5) of the evidence act 2008 (vic)  practice and procedure</citphrase>
<citphrase id="cp6.23">citing from="[2011] VSC 269">orders 42, 42a of the supreme court (general civil procedure) rules 2005 (vic)</citphrase>
<citphrase id="cp6.24">citing from="[2011] VSC 269">failure to provide subpoenaed documents directly to the court by solicitor</citphrase>
<citphrase id="cp6.25">citing from="[2011] VSC 269">whether subpoenaed documents must be provided to the court</citphrase>
<citphrase id="cp6.26">citing from="[2011] VSC 269">purpose of providing subpoenaed documents to court prior to review</citphrase>
<citphrase id="cp6.27">citing from="[2011] VSC 269">subpoenaed documents received by practitioner referred to in an affidavit of documents</citphrase>
<citphrase id="cp6.28">citing from="[2011] VSC 269">conduct of the solicitor improper.</citphrase>
</citphrases>
<citances>
<sentence from="[2011] VSC 269" id="cs0">14 Although the thrust of authority to which I have referred places the burden of proof squarely upon the party asserting that the privilege has been lost pursuant to s 122(2) of the Evidence Act , it is to be noted that a different approach appears to have been taken by Sundberg J in Rio Tinto Ltd v Commissioner of Taxation [6] where his Honour noted:

 Where a document which is privileged, or alleged to be privileged, in the hands of the client for whom it was prepared, is then provided to a third party, the party claiming privilege bears the burden of proving that the provision of that document to the third party did not waive privilege. That burden will be discharged by showing that the circumstances of the provision of the document to the third party were not such as to constitute "inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege.

His Honour then referred to Mann v Carnell , [7] being the judgment of Gleeson CJ, and Gaudron, Gummow and Callinan JJ. However, with respect to the observation of Sundberg J, the High Court, did not here analyse the burden of proof. His Honour cites no authority for the position that where the document in question passes to a third party the burden of proof shifts to the claimant of the privilege under s 122 or at common law. For these reasons I decline to follow Sundberg J's approach in Rio Tinto but prefer the approach taken in the cases referred to by Rein AJ in Sharjade Pty Ltd v RAAF Landings to which I have already referred.</sentence>
</citances>
<legistitles>
<title id="l0">EVIDENCE ACT 1995 </title>
<title id="l1">EVIDENCE ACT 1995 - SECT 117 Definitions</title>
<title id="l2">EVIDENCE ACT 1995 - SECT 118 Legal advice</title>
<title id="l3">FEDERAL COURT RULES 1979 </title>
</legistitles>
</case>


Question:
</citphrases>
<citances>
</citances>
<legistitles>
<title id="l0">CORPORATIONS ACT 2001 </title>
<title id="l1">CORPORATIONS ACT 2001 - SECT 1335 Costs</title>
<title id="l2">FEDERAL COURT OF AUSTRALIA ACT 1976 </title>
<title id="l3">FEDERAL COURT OF AUSTRALIA ACT 1976 - SECT 56 Security</title>
<title id="l4">FEDERAL COURT RULES </title>
</legistitles>
</case>