Question:
<citphrase id="cp0.0">cited from="[2008] FCAFC 69">human rights</citphrase>
<citphrase id="cp0.1">cited from="[2008] FCAFC 69">race and disability discrimination in employment</citphrase>
<citphrase id="cp0.2">cited from="[2008] FCAFC 69">approach to fact finding</citphrase>
<citphrase id="cp0.3">cited from="[2008] FCAFC 69">inferences</citphrase>
<citphrase id="cp0.4">cited from="[2008] FCAFC 69">whether adverse inferences not adequately based in evidence</citphrase>
<citphrase id="cp0.5">cited from="[2008] FCAFC 69">whether reversal of onus of proof</citphrase>
<citphrase id="cp0.6">cited from="[2008] FCAFC 69">whether inappropriate application of briginshaw test</citphrase>
<citphrase id="cp0.7">cited from="[2008] FCAFC 69">disability discrimination</citphrase>
<citphrase id="cp0.8">cited from="[2008] FCAFC 69">whether relevant disability identified</citphrase>
<citphrase id="cp0.9">cited from="[2008] FCAFC 69">damages assessment</citphrase>
<citphrase id="cp0.10">cited from="[2008] FCAFC 69">whether error in principle</citphrase>
<citphrase id="cp0.11">cited from="[2008] FCAFC 69">whether tortious measure appropriate</citphrase>
<citphrase id="cp0.12">cited from="[2008] FCAFC 69">compensatory character of damages</citphrase>
<citphrase id="cp0.13">cited from="[2008] FCAFC 69">appeal allowed in part for failure to identify disability</citphrase>
<citphrase id="cp0.14">cited from="[2008] FCAFC 69">appeal otherwise dismissed</citphrase>
<citphrase id="cp0.15">cited from="[2008] FCAFC 69">cross-appeal dismissed</citphrase>
<citphrase id="cp1.0">cited from="[2007] FCA 1384">industrial law</citphrase>
<citphrase id="cp1.1">cited from="[2007] FCA 1384">australian workplace agreements</citphrase>
<citphrase id="cp1.2">cited from="[2007] FCA 1384">employees entitled to award conditions including penalty rates</citphrase>
<citphrase id="cp1.3">cited from="[2007] FCA 1384">proposed awa providing for flexible hourly rate very similar to award rate, but no penalty rates</citphrase>
<citphrase id="cp1.4">cited from="[2007] FCA 1384">employees threatened with loss of overtime shifts if they did not sign awa</citphrase>
<citphrase id="cp1.5">cited from="[2007] FCA 1384">changing of rosters pursuant to threats</citphrase>
<citphrase id="cp1.6">cited from="[2007] FCA 1384">admission of liability for applying duress and injuring employees in their employment for a prohibited reason.</citphrase>
<citphrase id="cp2.0">cited from="[2007] FMCA 904">industrial law</citphrase>
<citphrase id="cp2.1">cited from="[2007] FMCA 904">alleged application of duress on casual employee in connection with employee's desire to enter into an australian workplace agreement</citphrase>
<citphrase id="cp2.2">cited from="[2007] FMCA 904">nature of duress</citphrase>
<citphrase id="cp2.3">cited from="[2007] FMCA 904">duress established in respect of all three respondents.</citphrase>
<citphrase id="cp3.0">cited from="[2006] FCAFC 117">contract</citphrase>
<citphrase id="cp3.1">cited from="[2006] FCAFC 117">agreement in 1992 for production of industrial cookers between respondent inventor and appellant manufacturer</citphrase>
<citphrase id="cp3.2">cited from="[2006] FCAFC 117">dispute as to intellectual property rights in drawings subsequently prepared by appellant in connection with manufacture of 26 cookers over ten years</citphrase>
<citphrase id="cp3.3">cited from="[2006] FCAFC 117">alleged misrepresentation by appellant as to ownership of respondent's business</citphrase>
<citphrase id="cp4.0">cited from="[2004] FCAFC 189">courts and judicial system</citphrase>
<citphrase id="cp5.0">cited from="[2004] NSWCA 58">practice and procedure</citphrase>
<citphrase id="cp5.1">cited from="[2004] NSWCA 58">pleading referring to s 51a of the trade practices act 1974 (cth)</citphrase>
<citphrase id="cp5.2">cited from="[2004] NSWCA 58">particulars giving specificity to the alleged representation</citphrase>
<citphrase id="cp5.3">cited from="[2004] NSWCA 58">utility of trial judge's finding where proceeded on an incorrect assumption</citphrase>
<citphrase id="cp5.4">cited from="[2004] NSWCA 58">question of fact involving credibility findings</citphrase>
<citphrase id="cp5.5">cited from="[2004] NSWCA 58">where credibility findings made, reliance not to be determined on a gould v vaggelas [1985] hca 85 ; (1983) 157 clr 215 presumptive basis</citphrase>
<citphrase id="cp5.6">cited from="[2004] NSWCA 58">lack of authority must be pleaded to prevent surprise</citphrase>
<citphrase id="cp5.7">cited from="[2004] NSWCA 58">trade practices</citphrase>
<citphrase id="cp5.8">cited from="[2004] NSWCA 58">whether representation with respect to a future matter</citphrase>
<citphrase id="cp5.9">cited from="[2004] NSWCA 58">approach in miba pty ltd v nescor industries group pty ltd (1966) 141 alr 525 not adopted</citphrase>
<citphrase id="cp5.10">cited from="[2004] NSWCA 58">relevance of expression of belief</citphrase>
<citphrase id="cp5.11">cited from="[2004] NSWCA 58">proper approach to s 51a of the trade practices act 1974 (cth)</citphrase>
<citphrase id="cp5.12">cited from="[2004] NSWCA 58">whether representation was misleading and deceptive</citphrase>
<citphrase id="cp5.13">cited from="[2004] NSWCA 58">where no evidence of reasonable grounds for the representation</citphrase>
<citphrase id="cp5.14">cited from="[2004] NSWCA 58">whether parties had relied on the representation</citphrase>
<citphrase id="cp5.15">cited from="[2004] NSWCA 58">indirect causation under s 82(1) of the trade practices act 1974 (cth)</citphrase>
<citphrase id="cp5.16">cited from="[2004] NSWCA 58">relief under s 82 of the trade practices act 1974 (cth)</citphrase>
<citphrase id="cp5.17">cited from="[2004] NSWCA 58">taxation and revenue</citphrase>
<citphrase id="cp5.18">cited from="[2004] NSWCA 58">whether liable for withholding tax</citphrase>
<citphrase id="cp5.19">cited from="[2004] NSWCA 58">definition of royalty</citphrase>
<citphrase id="cp5.20">cited from="[2004] NSWCA 58">courts and judicial system</citphrase>
<citphrase id="cp5.21">cited from="[2004] NSWCA 58">lengthy judgments</citphrase>
<citphrase id="cp5.22">cited from="[2004] NSWCA 58">importance of confining judgment to essential submissions and reasoning. d</citphrase>
<citphrase id="cp6.0">cited from="[2003] HCA 48">whisprun pty ltd v dixon  negligence</citphrase>
<citphrase id="cp6.1">cited from="[2003] HCA 48">damage</citphrase>
<citphrase id="cp6.2">cited from="[2003] HCA 48">respondent contracted q fever while working in an abattoir</citphrase>
<citphrase id="cp6.3">cited from="[2003] HCA 48">whether respondent suffered chronic fatigue syndrome.  appeal</citphrase>
<citphrase id="cp6.4">cited from="[2003] HCA 48">issue not raised at trial</citphrase>
<citphrase id="cp6.5">cited from="[2003] HCA 48">case on which respondent succeeded on appeal was not argued by respondent at trial or on appeal</citphrase>
<citphrase id="cp6.6">cited from="[2003] HCA 48">whether respondent should succeed on the basis of a new case on appeal.  appeal</citphrase>
<citphrase id="cp6.7">cited from="[2003] HCA 48">powers of appellate court</citphrase>
<citphrase id="cp6.8">cited from="[2003] HCA 48">whether trial judge had properly considered the respondent's case</citphrase>
<citphrase id="cp6.9">cited from="[2003] HCA 48">whether there was objective evidence that respondent suffered chronic fatigue syndrome</citphrase>
<citphrase id="cp6.10">cited from="[2003] HCA 48">whether respondent's case depended entirely upon the credibility of her account of subjective symptoms.  evidence</citphrase>
<citphrase id="cp6.11">cited from="[2003] HCA 48">medical reports</citphrase>
<citphrase id="cp6.12">cited from="[2003] HCA 48">whether medical reports had independent evidentiary value</citphrase>
<citphrase id="cp6.13">cited from="[2003] HCA 48">whether evidentiary value of medical reports depended on the respondent's credibility</citphrase>
<citphrase id="cp6.14">cited from="[2003] HCA 48">whether trial judge erred in not considering medical reports as independent evidence that the respondent suffered from chronic fatigue syndrome.</citphrase>
<citphrase id="cp7.0">cited from="[2003] HCA 22">fox v percy  appeal</citphrase>
<citphrase id="cp7.1">cited from="[2003] HCA 22">rehearing</citphrase>
<citphrase id="cp7.2">cited from="[2003] HCA 22">review of findings of fact based on trial judge's assessment of credibility of witnesses</citphrase>
<citphrase id="cp7.3">cited from="[2003] HCA 22">whether findings inconsistent with incontrovertibly established facts</citphrase>
<citphrase id="cp7.4">cited from="[2003] HCA 22">power of appellate court to set aside findings.  appeal</citphrase>
<citphrase id="cp7.5">cited from="[2003] HCA 22">issue not raised at trial</citphrase>
<citphrase id="cp7.6">cited from="[2003] HCA 22">where argued that expert report based on matters not proved or supported by the evidence</citphrase>
<citphrase id="cp7.7">cited from="[2003] HCA 22">whether re-examination of facts by appellate court appropriate.  appeal</citphrase>
<citphrase id="cp7.8">cited from="[2003] HCA 22">rehearing</citphrase>
<citphrase id="cp7.9">cited from="[2003] HCA 22">substitution of judgment of appellate court for that of trial judge</citphrase>
<citphrase id="cp7.10">cited from="[2003] HCA 22">whether re-trial an appropriate remedy.</citphrase>
<citphrase id="cp13.0">cited from="[1980] HCA 16">local government (n.s.w.)</citphrase>
<citphrase id="cp13.1">cited from="[1980] HCA 16">rating</citphrase>
<citphrase id="cp13.2">cited from="[1980] HCA 16">rural land</citphrase>
<citphrase id="cp13.3">cited from="[1980] HCA 16">land used for the business of grazing</citphrase>
<citphrase id="cp13.4">cited from="[1980] HCA 16">land used for agistment of cattle and horses</citphrase>
<citphrase id="cp13.5">cited from="[1980] HCA 16">case stated</citphrase>
<citphrase id="cp13.6">cited from="[1980] HCA 16">question of law</citphrase>
<citphrase id="cp13.7">cited from="[1980] HCA 16">mixed question of law and fact</citphrase>
<citphrase id="cp13.8">cited from="[1980] HCA 16">local government act, 1919 (n.s.w.), s. 118 (1) "rural land", land valuation court act, 1921 (n.s.w.), s. 17.*</citphrase>
<citphrase id="cp14.0">cited from="[1965] HCA 46">evidence</citphrase>
<citphrase id="cp14.1">cited from="[1965] HCA 46">civil proceedings</citphrase>
<citphrase id="cp14.2">cited from="[1965] HCA 46">standard of proof</citphrase>
<citphrase id="cp14.3">cited from="[1965] HCA 46">facts amounting to commission of a crime</citphrase>
<citphrase id="cp14.4">cited from="[1965] HCA 46">proof upon a balance of probabilities.</citphrase>
<citphrase id="cp16.0">citing from="[2010] FMCA 172">human rights</citphrase>
<citphrase id="cp16.1">citing from="[2010] FMCA 172">whether sufficient detail for respondent to ascertain the claim against it</citphrase>
<citphrase id="cp16.2">citing from="[2010] FMCA 172">further and better particulars.</citphrase>
<citphrase id="cp17.0">citing from="[2010] FMCA 7">practice and procedure</citphrase>
<citphrase id="cp17.1">citing from="[2010] FMCA 7">application to strike out statement of claim</citphrase>
<citphrase id="cp17.2">citing from="[2010] FMCA 7">principles</citphrase>
<citphrase id="cp17.3">citing from="[2010] FMCA 7">principles applied to pleadings in proceedings in federal magistrates court.  trade practices</citphrase>
<citphrase id="cp17.4">citing from="[2010] FMCA 7">misleading and deceptive conduct</citphrase>
<citphrase id="cp17.5">citing from="[2010] FMCA 7">franchise agreements.  contract</citphrase>
<citphrase id="cp17.6">citing from="[2010] FMCA 7">whether duty of good faith an implied term of the contract.  tort</citphrase>
<citphrase id="cp17.7">citing from="[2010] FMCA 7">whether negligent misrepresentations</citphrase>
<citphrase id="cp17.8">citing from="[2010] FMCA 7">whether reliance on misrepresentations pleaded.</citphrase>
<citphrase id="cp18.0">citing from="[2009] FMCA 1288">practice and procedure</citphrase>
<citphrase id="cp18.1">citing from="[2009] FMCA 1288">application to substitute statement of claim</citphrase>
<citphrase id="cp18.2">citing from="[2009] FMCA 1288">where no affidavit filed in support</citphrase>
<citphrase id="cp18.3">citing from="[2009] FMCA 1288">whether affidavit necessary where statement of claim filed.  practice and procedure</citphrase>
<citphrase id="cp18.4">citing from="[2009] FMCA 1288">application to strike out substituted statement of claim</citphrase>
<citphrase id="cp18.5">citing from="[2009] FMCA 1288">purpose and requirements of pleadings in federal magistrates court</citphrase>
<citphrase id="cp18.6">citing from="[2009] FMCA 1288">rules and principles governing strike out application.  practice and procedure</citphrase>
<citphrase id="cp18.7">citing from="[2009] FMCA 1288">where parts of substituted statement of claim struck out</citphrase>
<citphrase id="cp18.8">citing from="[2009] FMCA 1288">whether leave to re-plead ought be granted.  trade practices</citphrase>
<citphrase id="cp18.9">citing from="[2009] FMCA 1288">misleading and deceptive conduct.</citphrase>
<citphrase id="cp19.0">citing from="[2009] FMCA 632">industrial law</citphrase>
<citphrase id="cp19.1">citing from="[2009] FMCA 632">application for declarations and civil penalty</citphrase>
<citphrase id="cp19.2">citing from="[2009] FMCA 632">workplace agreements</citphrase>
<citphrase id="cp19.3">citing from="[2009] FMCA 632">duress</citphrase>
<citphrase id="cp19.4">citing from="[2009] FMCA 632">breaches admitted</citphrase>
<citphrase id="cp19.5">citing from="[2009] FMCA 632">considerations as to penalty.</citphrase>
<citphrase id="cp20.0">citing from="[2009] FMCAfam 557">family law</citphrase>
<citphrase id="cp20.1">citing from="[2009] FMCAfam 557">property dispute</citphrase>
<citphrase id="cp20.2">citing from="[2009] FMCAfam 557">extraordinary facts</citphrase>
<citphrase id="cp20.3">citing from="[2009] FMCAfam 557">immigration sham</citphrase>
<citphrase id="cp20.4">citing from="[2009] FMCAfam 557">neither party's version credible</citphrase>
<citphrase id="cp20.5">citing from="[2009] FMCAfam 557">impossibility of affirmative factual findings</citphrase>
<citphrase id="cp20.6">citing from="[2009] FMCAfam 557">unusual outcome.</citphrase>
<citphrase id="cp21.0">citing from="[2009] FMCA 255">trade practices</citphrase>
<citphrase id="cp21.1">citing from="[2009] FMCA 255">misleading and deceptive conduct</citphrase>
<citphrase id="cp21.2">citing from="[2009] FMCA 255">sale and purchase of business</citphrase>
<citphrase id="cp21.3">citing from="[2009] FMCA 255">entry into licence agreement</citphrase>
<citphrase id="cp21.4">citing from="[2009] FMCA 255">alleged franchise agreement.  practice  procedure</citphrase>
<citphrase id="cp21.5">citing from="[2009] FMCA 255">application to strike out statement of claim.</citphrase>
<citphrase id="cp22.0">citing from="[2009] FCA 52">industrial law</citphrase>
<citphrase id="cp22.1">citing from="[2009] FCA 52">meetings between union officer and construction company in relation to a construction project</citphrase>
<citphrase id="cp22.2">citing from="[2009] FCA 52">union officer told crane crew to shut down crane and leave the construction site</citphrase>
<citphrase id="cp22.3">citing from="[2009] FCA 52">whether union officer contravened s 43 of the building and construction industry improvement act 2005 (cth) by making threats or taking action with intent to coerce the construction company for a proscribed reason</citphrase>
<citphrase id="cp22.4">citing from="[2009] FCA 52">contraventions made out</citphrase>
<citphrase id="cp22.5">citing from="[2009] FCA 52">union contravened s 43 by virtue of union officer's actions   industrial law</citphrase>
<citphrase id="cp22.6">citing from="[2009] FCA 52">whether union officer discouraged other crane companies from attending the construction site</citphrase>
<citphrase id="cp22.7">citing from="[2009] FCA 52">whether union officer threatened to organise, or organised, a picket line</citphrase>
<citphrase id="cp22.8">citing from="[2009] FCA 52">alleged contraventions of ss 38 and 43 of the building and construction industry improvement act not made out</citphrase>
<citphrase id="cp23.0">citing from="[2009] FMCA 21">industrial law</citphrase>
<citphrase id="cp23.1">citing from="[2009] FMCA 21">breach of a notional agreement preserving state awards</citphrase>
<citphrase id="cp23.2">citing from="[2009] FMCA 21">claim of underpayment of wages</citphrase>
<citphrase id="cp23.3">citing from="[2009] FMCA 21">claim of duress in connection with awa</citphrase>
<citphrase id="cp23.4">citing from="[2009] FMCA 21">breach of freedom of association provisions.</citphrase>
<citphrase id="cp24.0">citing from="[2008] FMCA 1212">migration</citphrase>
<citphrase id="cp24.1">citing from="[2008] FMCA 1212">partner visa</citphrase>
<citphrase id="cp24.2">citing from="[2008] FMCA 1212">whether still in spousal relationship with previous partner</citphrase>
<citphrase id="cp24.3">citing from="[2008] FMCA 1212">applicant married at time of application</citphrase>
<citphrase id="cp24.4">citing from="[2008] FMCA 1212">being a spouse requires a mutual commitment to a shared life ...to the exclusion of all others</citphrase>
<citphrase id="cp24.5">citing from="[2008] FMCA 1212">applicant and sponsor not have a mutual commitment to a shared life as husband and wife</citphrase>
<citphrase id="cp24.6">citing from="[2008] FMCA 1212">relationship contrived for migration purposes</citphrase>
<citphrase id="cp24.7">citing from="[2008] FMCA 1212">applicant not spouse of sponsor.</citphrase>
<citphrase id="cp25.0">citing from="[2008] FMCA 832">human rights</citphrase>
<citphrase id="cp25.1">citing from="[2008] FMCA 832">disability discrimination</citphrase>
<citphrase id="cp25.2">citing from="[2008] FMCA 832">where applicant claimed discrimination in the course of her employment</citphrase>
<citphrase id="cp25.3">citing from="[2008] FMCA 832">where applicant alleged discrimination on the basis of displacement from position</citphrase>
<citphrase id="cp25.4">citing from="[2008] FMCA 832">whether applicant being required to explain her disability constituted discrimination</citphrase>
<citphrase id="cp25.5">citing from="[2008] FMCA 832">where applicant volunteered such information</citphrase>
<citphrase id="cp25.6">citing from="[2008] FMCA 832">whether conduct "because of" applicant's disability</citphrase>
<citphrase id="cp25.7">citing from="[2008] FMCA 832">where applicant alleged harassment by members of staff</citphrase>
<citphrase id="cp25.8">citing from="[2008] FMCA 832">whether single incident could amount to harassment</citphrase>
<citphrase id="cp25.9">citing from="[2008] FMCA 832">where applicant claimed she was denied promotion opportunities on the grounds of her disability</citphrase>
<citphrase id="cp25.10">citing from="[2008] FMCA 832">whether applicant treated less favourably</citphrase>
<citphrase id="cp25.11">citing from="[2008] FMCA 832">whether conduct "because of" applicant's disability</citphrase>
<citphrase id="cp25.12">citing from="[2008] FMCA 832">where applicant alleged bullying by members of staff and management</citphrase>
<citphrase id="cp25.13">citing from="[2008] FMCA 832">whether state vicariously liable for discrimination</citphrase>
<citphrase id="cp25.14">citing from="[2008] FMCA 832">whether reasonable precautions taken by employer</citphrase>
<citphrase id="cp25.15">citing from="[2008] FMCA 832">whether making suggestion of taking a voluntary redundancy amounted to discrimination</citphrase>
<citphrase id="cp25.16">citing from="[2008] FMCA 832">indirect discrimination</citphrase>
<citphrase id="cp25.17">citing from="[2008] FMCA 832">whether requirement to attend formal and stressful interviews was discriminatory</citphrase>
<citphrase id="cp25.18">citing from="[2008] FMCA 832">no comparator group or base group identified</citphrase>
<citphrase id="cp25.19">citing from="[2008] FMCA 832">whether treatment by manager amounted to indirect discrimination.  human rights</citphrase>
<citphrase id="cp25.20">citing from="[2008] FMCA 832">disability discrimination</citphrase>
<citphrase id="cp25.21">citing from="[2008] FMCA 832">victimisation</citphrase>
<citphrase id="cp25.22">citing from="[2008] FMCA 832">where applicant alleged employee annexed a file note to an affidavit which was later passed off as a contemporaneous file note</citphrase>
<citphrase id="cp25.23">citing from="[2008] FMCA 832">where no detriment suffered by applicant</citphrase>
<citphrase id="cp25.24">citing from="[2008] FMCA 832">where applicant alleged the refusal to implement a return to work program, transfer the applicant to another agency or offer suitable duties to the applicant was in breach of s.42 disability discrimination act 1992 (cth).</citphrase>
<citphrase id="cp26.0">citing from="[2008] FMCA 794">industrial law</citphrase>
<citphrase id="cp26.1">citing from="[2008] FMCA 794">interlocutory orders</citphrase>
<citphrase id="cp26.2">citing from="[2008] FMCA 794">joinder of party.</citphrase>
<citphrase id="cp27.0">citing from="[2008] FCA 702">employment law</citphrase>
<citphrase id="cp27.1">citing from="[2008] FCA 702">maternity leave</citphrase>
<citphrase id="cp27.2">citing from="[2008] FCA 702">failure to reinstate</citphrase>
<citphrase id="cp27.3">citing from="[2008] FCA 702">breach of the workplace relations act</citphrase>
<citphrase id="cp27.4">citing from="[2008] FCA 702">imposition of the maximum penalty</citphrase>
<citphrase id="cp27.5">citing from="[2008] FCA 702">whether penalty is manifestly excessive discrimination law</citphrase>
<citphrase id="cp27.6">citing from="[2008] FCA 702">discrimination on grounds of sex, maternity leave or family responsibilities</citphrase>
<citphrase id="cp27.7">citing from="[2008] FCA 702">applying a comparator</citphrase>
</citphrases>
<citances>
<sentence from="[2011] NSWADTAP 25" id="cs0">It is doubtful whether Briginshaw needs to be incanted as ritually as it is in anti-discrimination law. See generally de Plevitz, 'The Briginshaw 'Standard of Proof' in Anti-Discrimination Law: 'Pointing with a Wavering Finger', (2003) 27 Melb Uni LR 308. See also the recent decisions, Qantas Airways Limited v Gama [2008] FCAFC 69 esp per Branson J at [123] ff; and Granada Tavern v Smith [2008] FCA 646 at [88] - [90]. 137 To find a broadcaster guilty of vilification, whether racial, religious or homosexual, is, we accept, a serious matter with possible consequences for the public standing and reputation of the broadcaster. It does not sit as high in the spectrum of gravity, we think, as an adverse finding of adultery against a wife in public court proceedings in the 1930s.</sentence>
<sentence from="[2011] NSWADT 67" id="cs1">The standard of proof is the balance of probabilities. The Appeal Panel in Burns v Laws (EOD) [2008] NSWADTAP 32 said the following in relation to the standard of proof that applies in discrimination matters:

136 Briginshaw is a case about the standard of evidence required to meet the burden of proof. It is doubtful whether Briginshaw needs to be incanted as ritually as it is in anti-discrimination law. See generally de Plevitz, 'The Briginshaw 'Standard of Proof' in Anti-Discrimination Law: 'Pointing with a Wavering Finger', (2003) 27 Melb Uni LR 308. See also the recent decisions, Qantas Airways Limited v Gama [2008] FCAFC 69 esp per Branson J at [123] ff; and Granada Tavern v Smith [2008] FCA 646 at [88] - [90]. </sentence>
<sentence from="[2010] NSWADT 120" id="cs2">21. The Appeal Panel in Burns v Laws (EOD) [2008] NSWADTAP 32 said the following in relation to the standard of proof that applies in discrimination matters:

 136 Briginshaw is a case about the standard of evidence required to meet the burden of proof. It is doubtful whether Briginshaw needs to be incanted as ritually as it is in anti-discrimination law. See generally de Plevitz, 'The Briginshaw 'Standard of Proof' in Anti-Discrimination Law: 'Pointing with a Wavering Finger', (2003) 27 Melb Uni LR 308. See also the recent decisions, Qantas Airways Limited v Gama [2008] FCAFC 69 esp per Branson J at [123] ff; and Granada Tavern v Smith [2008] FCA 646 at [88] - [90]. </sentence>
<sentence from="[2010] FMCA 172" id="cs3">Mr Perkins referred next to the judgment in Granada Tavern v Smith [2008] FCA 646 where Justice Heerey referred to ss.3 and 42 of the Act. The decision adds nothing to what is covered in the cases above.
The Court finds nothing in the above decisions to say that an order for further and better particulars should be denied. </sentence>
<sentence from="[2010] FMCA 7" id="cs4">In Iliff it was alleged that an issue determined by this Court was not raised by the pleadings, evidence or submissions. [23] The Federal Court (on an appeal heard by a single Judge) said as follows: 21. In considering this ground of appeal, "the philosophy of the Federal Magistrates Act and the intention of the Attorney-General at the time of the introduction of the Federal Magistrates Bill" in establishing the Federal Magistrates Court cannot be ignored (per Lander J in Rana v University of South Australia (2004) 136 FCR 344 at [34]): see also Granada Tavern v Smith [2008] FCA 646 ; (2008) 173 IR 328 at [106] . As Lander J stated in Rana at [37]: The Federal Magistrates Court has abandoned pleadings in favour of affidavits. In doing so, it has recognised that the Court has been created to offer relatively inexpensive and expeditious justice.</sentence>
<sentence from="[2009] FMCA 1288" id="cs5">In Iliff it was alleged that an issue determined by this Court was not raised by the pleadings, evidence or submissions. [25] The Federal Court (on an appeal heard by a single Judge) said as follows: 21. In considering this ground of appeal, "the philosophy of the Federal Magistrates Act and the intention of the Attorney-General at the time of the introduction of the Federal Magistrates Bill" in establishing the Federal Magistrates Court cannot be ignored (per Lander J in Rana v University of South Australia [2004] FCA 559 ; (2004) 136 FCR 344 at [34] ): see also Granada Tavern v Smith [2008] FCA 646 ; (2008) 173 IR 328 at [106] . As Lander J stated in Rana at [37]: The Federal Magistrates Court has abandoned pleadings in favour of affidavits. In doing so, it has recognised that the Court has been created to offer relatively inexpensive and expeditious justice.</sentence>
<sentence from="[2009] NSWADT 279" id="cs6">25. The Appeal Panel in Burns v Laws (EOD) [2008] NSWADTAP 32 said the following in relation to the standard of proof that applies in discrimination matters:

 136 Briginshaw is a case about the standard of evidence required to meet the burden of proof. It is doubtful whether Briginshaw needs to be incanted as ritually as it is in anti-discrimination law. See generally de Plevitz, 'The Briginshaw 'Standard of Proof' in Anti-Discrimination Law: 'Pointing with a Wavering Finger', (2003) 27 Melb Uni LR 308. See also the recent decisions, Qantas Airways Limited v Gama [2008] FCAFC 69 esp per Branson J at [123] ff; and Granada Tavern v Smith [2008] FCA 646 at [88] - [90]. </sentence>
<sentence from="[2009] NSWADTAP 58" id="cs7">37 Seriousness of the allegations . Not every case involves issues of importance and gravity in the Briginshaw sense: State of Victoria v Macedonian Teachers Association of Victoria [1999] FCA 1287 ; (1999) 91 FCR 47 citing G v H [1994] HCA 48 ; (1994) 181 CLR 387 per Deane, Dawson and Gaudron JJ at 399). In State of Victoria the Full Federal Court said that "[t]he mere finding that a government has contravened a provision of an anti-discrimination statute without considering the circumstances in which the contravention occurred is not, in our view, sufficient to attract the Briginshaw test". The correct approach in these circumstances was elucidated by Heerey J in Granada Tavern v Smith [2008] FCA 646 ; (2008) 173 IR 328 ; at [95]. His Honour was hearing an appeal against a decision of the Federal Magistrate's Court that an employer had applied duress to an employee in connection with an Australian Workplace Agreement (AWA) contrary to s 400(5) of the Workplace Relations Act 1996 (Cth):

 In the light of the Full Court's decision in Gama one does not say: "Contravention of s 400(5) is a serious matter; therefore the Briginshaw standard applies". Rather, the fact finder must look at the particular factual allegations. They can vary infinitely. Before reaching a finding which accepts those allegations as true (the onus of course being on the applicant), the fact finder must, amongst other things, take into account the gravity of the particular allegations: s 140(2)(c). </sentence>
<sentence from="[2009] NSWADT 234" id="cs8">32 The Appeal Panel in Burns v Laws (EOD) [2008] NSWADTAP 32 said the following in relation to the standard of proof that applies in discrimination matters:

 136 Briginshaw is a case about the standard of evidence required to meet the burden of proof. It is doubtful whether Briginshaw needs to be incanted as ritually as it is in anti-discrimination law. See generally de Plevitz, 'The Briginshaw 'Standard of Proof' in Anti-Discrimination Law: 'Pointing with a Wavering Finger', (2003) 27 Melb Uni LR 308. See also the recent decisions, Qantas Airways Limited v Gama [2008] FCAFC 69 esp per Branson J at [123] ff; and Granada Tavern v Smith [2008] FCA 646 at [88] - [90]. </sentence>
<sentence from="[2009] FMCA 632" id="cs9">What is illegitimate is a question of fact to be decided in the circumstances of the particular case: Canturi v Sita Coaches Pty Ltd (supra) at 43. Illegitimate pressure including unlawful threats or pressure amount to unconscionable conduct. It can also include unlawful conduct in relevant circumstances: Maritime Union of Australia v Geraldton Port Authorities (1999) 93 FCR 34 at [367]. The requirement to enter into an AWA does not need to be an issue for duress to arise: Bishop v Ropolo Services Pty Ltd [2006] FCA 592 ; (2006) 153 FCR 357 at [21] . Neither is it an essential element for a contravention of s.400(5), for the will of the employee to be actually overborne: Granada Tavern v Smith [2008] FCA 646 at 75. </sentence>
<sentence from="[2009] FMCAfam 557" id="cs10">While it is of course clear that the applicant has made substantial payments in respect of the deposit, interim mortgage payments and the utilities in respect of the matrimonial home, what I am not able to say is how much of those funds expended by him flow directly from contributions made by the respondent. The applicant's submissions simply fail to grapple with the vital consideration. I note that while the written submissions of the applicant traverse in some detail the line of authorities stemming from Briginshaw v Briginshaw (1938) 60 CLR 336 , those authorities must now be approached more particularly in the light of s.140 of the Evidence Act (see Granada Tavern v Smith [2008] FCA 646 per Heerey J). I accept the force of what Hutley J said in Andrews v John Fairfax  Sons Ltd [1980] NSWLR 225 at paragraph [247]: "What was said in Howe v Teefey to the assessment of damages in contract, namely, that "a jury is not relieved from the duty of assessing the loss merely because the calculation is a difficult one or because the circumstances do not admit of the damages being assessed with certainty", applies equally to damages in tort. " Nonetheless, the assertion advanced in paragraph 54 of the applicant's submissions that: "Unlike the Plaintiffs / Appellants in Jones  Andrews, the husband's financial contributions towards the acquisition and conservation of the Property W property are clearly supported by direct and undisputed documentary evidence although your Honour could not make a conclusive finding on the wife's alleged financial contributions"
is in my view misconceived and wrong.</sentence>
<sentence from="[2009] FMCA 255" id="cs11">In Iliff it was alleged that an issue determined by this Court was not raised by the pleadings, evidence or submissions before it. [12] The Federal Court (on an appeal heard by a single Judge) said as follows: 21. In considering this ground of appeal, "the philosophy of the Federal Magistrates Act and the intention of the Attorney-General at the time of the introduction of the Federal Magistrates Bill" in establishing the Federal Magistrates Court cannot be ignored (per Lander J in Rana v University of South Australia [2004] FCA 559 ; (2004) 136 FCR 344 at [34] ): see also Granada Tavern v Smith [2008] FCA 646 ; (2008) 173 IR 328 at [106]. As Lander J stated in Rana at [37]: The Federal Magistrates Court has abandoned pleadings in favour of affidavits. In doing so, it has recognised that the Court has been created to offer relatively inexpensive and expeditious justice.</sentence>
<sentence from="[2009] FCA 52" id="cs12">In summary, having regard to s 140 of the Evidence Act and the evidence before me, I reject as unproven Mr Cahill's further allegations that: (1) Mr Mates telephoned the Union's offices or a representative of the Union to instruct Mr Hill to ring Sergi Cranes and other crane operators to warn them off working at the Mount Street site; and (2) Mr Mates arranged for Mr Tadic and/or Mr Hill to contact Independent Cranes to ensure that the crane left the Mount Street site and did not return. See generally Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 ; (1992) 110 ALR 449 and Granada Tavern v Smith (2008) 173 IR 328 , [2008] FCA 646 at [85] and following. </sentence>
<sentence from="[2009] FMCA 21" id="cs13">There are a number of cases where an employee has been told that if you do not sign the AWA, their job is at risk: Australian Services Union v Electrix Pty Ltd [1999] FCA 211 ; (1999) 93 IR 43 ; Canturi v Sita Coaches Pty Ltd; Napoli v Sita Coaches Pty Ltd (supra); Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899 ; (1999) 93 FCR 34 ; Schanka v Employment National (Administration) Pty Ltd (1999) 92 IR 464 ; Bishop v Ropolo Services Pty Ltd (2006) 153 FCR 357 ; Brobbel v Darrell Lea Chocolate Shops Pty Ltd [2008] FMCA 714 ; Jordan v Mornington Inn Pty Ltd 166 IR 33 ; Granada Tavern v Smith [2008] FCA 646.  What is illegitimate is a question of fact to be decided in the circumstances of the particular case: Canturi v Sita Coaches Pty Ltd; Napoli v Sita Coaches Pty Ltd (supra) at [43]. Illegitimate pressure including unlawful threats or pressure amount to unconscionable conduct. It can also include unlawful conduct in relevant circumstances: Maritime Union of Australia v Geraldton Port Authorities [1999] FCA 899 ; [1999] FCA 899 ; (1999) 93 FCR 34 at [367] . The issue is whether the conduct is unconscionable, not whether it was unlawful other than in the circumstances of a breach in relation to s.400(5). The requirement to enter into an AWA does not need to be an issue for duress to arise: Bishop v Ropolo Services Pty Ltd [2006] FCA 592 ; (2006) 153 FCR 357 at [21] . Neither is it an essential element for a contravention of s.400(5), for the will of the employee to be actually overborne: Granada Tavern v Smith [2008] FCA 646 at [75] . </sentence>
<sentence from="[2008] FMCA 1212" id="cs14">The Tribunal did not have to deal specifically with all issues in detail in its decision. As stated by Justice Heerey in Granada Tavern v Smith [2008] FCA 646: "...Perhaps his Honour did not record and deal with every argument advanced on behalf of the appellants, but he was not obliged to do so. In Kovan Engineering (Aust) Pty Ltd v Gold Peg International Pty ltd [2006] FCAFC 117 ; (2006) 234 ALR 241 an issue arose as to the adequacy of the reasons of the trial judge. Weinberg J and I said: 44 As to the second matter, the obligations of the trial judge to give adequate reasons, on the appeal Kovan relied strongly on what was said by Nettle JA (with whom Batt and Vincent JJA agreed) in Hunter v Transport Accident Commission [2005] VSCA 1 ; (2005) 43 MVR 130 at [21] .</sentence>
<sentence from="[2008] FMCA 832" id="cs15">Gama was most recently applied in Granada Tavern v Smith [2008] FCA 646 by Heerey J in the context of a contravention of s.400(5) of the Workplace Relations Act 1996 (Cth) involving the application of duress in connection with an Australian Workplace Agreement.</sentence>
<sentence from="[2008] FMCA 794" id="cs16">I note, not completely in passing, but interestingly, a very recent case decided by the Federal Court of Australia in Grenada Tavern v Smith . [2] That was an appeal from a decision of the Federal Magistrates Court in relation to an industrial and workplace agreement. Heerey J emphasised the importance of s.42 of the Federal Magistrates Court Act in proceeding without undue formality and the responsibility of this Court endeavouring to ensure that the proceedings are not protracted. Certainly the context and circumstances of that case are rather different to the present, but nonetheless it was in an industrial matter and a very recent decision focusing upon the importance of section 42 of the Act. </sentence>
<sentence from="[2008] FCA 702" id="cs17">19 In support of these contentions, Sterling Commerce contended that if the issue had been a live issue at trial, it would have led evidence before Burchardt FM to show that Ms Iliff's sex was not the reason, or a reason, that Sterling Commerce required Ms Iliff to sign a deed of release. 20 This ground of appeal also fails. 21 In considering this ground of appeal, "the philosophy of the Federal Magistrates Act and the intention of the Attorney-General at the time of the introduction of the Federal Magistrates Bill" in establishing the Federal Magistrates Court cannot be ignored (per Lander J in Rana v University of South Australia [2004] FCA 559 ; (2004) 136 FCR 344 at [34] ): see also Granada Tavern v Smith [2008] FCA 646 at [106] . As Lander J stated in Rana at [37]:
 The Federal Magistrates Court has abandoned pleadings in favour of affidavits. In doing so, it has recognised that the Court has been created to offer relatively inexpensive and expeditious justice.</sentence>
<sentence from="[2008] NSWADTAP 32" id="cs18">136 Briginshaw is a case about the standard of evidence required to meet the burden of proof. It is doubtful whether Briginshaw needs to be incanted as ritually as it is in anti-discrimination law. See generally de Plevitz, 'The Briginshaw 'Standard of Proof' in Anti-Discrimination Law: 'Pointing with a Wavering Finger', (2003) 27 Melb Uni LR 308. See also the recent decisions, Qantas Airways Limited v Gama [2008] FCAFC 69 esp per Branson J at [123] ff; and Granada Tavern v Smith [2008] FCA 646 at [88] - [90]. </sentence>
</citances>
<legistitles>
<title id="l0">EVIDENCE ACT 1995 </title>
<title id="l1">EVIDENCE ACT 1995 - SECT 140 Civil proceedings: standard of proof</title>
<title id="l2">FEDERAL MAGISTRATES ACT 1999 </title>
<title id="l3">FEDERAL MAGISTRATES ACT 1999 - SECT 3 Objects</title>
<title id="l4">FEDERAL MAGISTRATES ACT 1999 - SECT 42 Federal Magistrates Court to operate informally</title>
<title id="l5">FEDERAL COURT RULES </title>
<title id="l6">EVIDENCE ACT </title>
</legistitles>
</case>


Question:
<citphrase id="cp0.0">cited from="[2006] HCA 43">central bayside general practice association limited v commissioner of state revenue  taxation</citphrase>
<citphrase id="cp0.1">cited from="[2006] HCA 43">charities</citphrase>
<citphrase id="cp0.2">cited from="[2006] HCA 43">pay-roll tax exemption</citphrase>
<citphrase id="cp0.3">cited from="[2006] HCA 43">meaning of "charitable body"</citphrase>
<citphrase id="cp0.4">cited from="[2006] HCA 43">whether privately-established non-profit organisation is a "charitable body" for purposes of pay-roll tax exemption</citphrase>
<citphrase id="cp0.5">cited from="[2006] HCA 43">whether organisation precluded from being characterised as "charitable body" because of its relationship with commonwealth government</citphrase>
<citphrase id="cp0.6">cited from="[2006] HCA 43">whether involvement in implementation of government policy precludes organisation from being characterised as "charitable body".</citphrase>
<citphrase id="cp1.0">cited from="[1981] FCA 147">immigration</citphrase>
<citphrase id="cp1.1">cited from="[1981] FCA 147">deportation</citphrase>
<citphrase id="cp1.2">cited from="[1981] FCA 147">question whether weight is to be given to the fact of the minister's decision as distinct from reasons for it</citphrase>
<citphrase id="cp1.3">cited from="[1981] FCA 147">relevance of government policy.  appeal</citphrase>
<citphrase id="cp1.4">cited from="[1981] FCA 147">administrative appeals tribunal</citphrase>
<citphrase id="cp1.5">cited from="[1981] FCA 147">weight of evidence in tribunal  migration act, 1973(cth) s.13(a)  administrative appeals tribunal act 1975 (cth) s.37(1) , s. 44 (1)  immigration and aliens</citphrase>
<citphrase id="cp1.6">cited from="[1981] FCA 147">deportation</citphrase>
<citphrase id="cp1.7">cited from="[1981] FCA 147">review of decision by administrative appeals tribunal</citphrase>
<citphrase id="cp1.8">cited from="[1981] FCA 147">whether weight is to be given to fact of minister's decision as distinct from reasons for it</citphrase>
<citphrase id="cp1.9">cited from="[1981] FCA 147">relevance of government policy</citphrase>
<citphrase id="cp1.10">cited from="[1981] FCA 147">migration act 1958 cth), s. 13 (a)</citphrase>
<citphrase id="cp1.11">cited from="[1981] FCA 147">administrative appeals tribunal act 1975 (cth), ss. 37 (1), 44 (1).  appeal</citphrase>
<citphrase id="cp1.12">cited from="[1981] FCA 147">administrative appeals tribunal</citphrase>
<citphrase id="cp1.13">cited from="[1981] FCA 147">appeal based on weight of evidence before tribunal</citphrase>
<citphrase id="cp1.14">cited from="[1981] FCA 147">administrative appeals tribunal act 1975 (cth), ss. 37 (1), 44 (1). on an appeal from a decision of the administrative appeals tribunal affirming a deportation order made by the minister for immigration the appellant argued that: (1) the decision of the tribunal was against the evidence or the weight of the evidence, and that the decison was unreasonable in all the circumstances; and (2) that the tribunal erred in giving weight to an irrelevant decision.</citphrase>
<citphrase id="cp2.0">cited from="[1978] HCA 58">local government (n.s.w.)</citphrase>
<citphrase id="cp2.1">cited from="[1978] HCA 58">rating</citphrase>
<citphrase id="cp2.2">cited from="[1978] HCA 58">exemption</citphrase>
<citphrase id="cp2.3">cited from="[1978] HCA 58">land vested in university used or occupied by it solely for its purposes</citphrase>
<citphrase id="cp2.4">cited from="[1978] HCA 58">land used or occupied by charity for its purposes</citphrase>
<citphrase id="cp2.5">cited from="[1978] HCA 58">building in university grounds let to shopkeepers</citphrase>
<citphrase id="cp2.6">cited from="[1978] HCA 58">convenience to staff and students of university</citphrase>
<citphrase id="cp2.7">cited from="[1978] HCA 58">whether building used by university or by charity</citphrase>
<citphrase id="cp2.8">cited from="[1978] HCA 58">whether use solely for the purposes of university</citphrase>
<citphrase id="cp2.9">cited from="[1978] HCA 58">local government act, 1919 (n.s.w.), s. 132.</citphrase>
<citphrase id="cp3.0">cited from="[1952] HCA 4">local government</citphrase>
<citphrase id="cp3.1">cited from="[1952] HCA 4">rating</citphrase>
<citphrase id="cp3.2">cited from="[1952] HCA 4">exemption</citphrase>
<citphrase id="cp3.3">cited from="[1952] HCA 4">land used exclusively for charitable purposes</citphrase>
<citphrase id="cp3.4">cited from="[1952] HCA 4">"exclusively"</citphrase>
<citphrase id="cp3.5">cited from="[1952] HCA 4">"charitable"</citphrase>
<citphrase id="cp3.6">cited from="[1952] HCA 4">local government act 1946 (no. 5203) (vict.), s. 249 (1) (b) (ix).</citphrase>
<citphrase id="cp8.0">citing from="[2010] FCAFC 126">income tax</citphrase>
<citphrase id="cp8.1">citing from="[2010] FCAFC 126">entitlement to be endorsed as exempt from income tax under subdiv 50-b of income tax assessment act 1997 (cth)</citphrase>
<citphrase id="cp8.2">citing from="[2010] FCAFC 126">having regard to the application of the fund as a whole, whether the fund was applied for the purposes for which it was established</citphrase>
<citphrase id="cp8.3">citing from="[2010] FCAFC 126">whether the fund was applied for the purposes for which it was established within s 50-52 and s 50-60</citphrase>
<citphrase id="cp8.4">citing from="[2010] FCAFC 126">the decision of the trial judge to set aside the tribunal's decision was correct</citphrase>
<citphrase id="cp8.5">citing from="[2010] FCAFC 126">the matter be remitted to the tribunal for further consideration</citphrase>
<citphrase id="cp8.6">citing from="[2010] FCAFC 126">appeal allowed.</citphrase>
<citphrase id="cp9.0">citing from="[2008] AATA 275">income tax</citphrase>
<citphrase id="cp9.1">citing from="[2008] AATA 275">exemptions</citphrase>
<citphrase id="cp9.2">citing from="[2008] AATA 275">trust seeking endorsement as a charitable institution</citphrase>
<citphrase id="cp9.3">citing from="[2008] AATA 275">whether trust satisfied sole purpose test</citphrase>
<citphrase id="cp9.4">citing from="[2008] AATA 275">proof of application for purpose for which established</citphrase>
<citphrase id="cp9.5">citing from="[2008] AATA 275">debit balances</citphrase>
<citphrase id="cp9.6">citing from="[2008] AATA 275">use of fund in interest offset transaction</citphrase>
<citphrase id="cp9.7">citing from="[2008] AATA 275">overpayment to trustees</citphrase>
<citphrase id="cp9.8">citing from="[2008] AATA 275">uncommercial loans</citphrase>
<citphrase id="cp9.9">citing from="[2008] AATA 275">distribution to individuals</citphrase>
<citphrase id="cp9.10">citing from="[2008] AATA 275">jurisdictional issues</citphrase>
<citphrase id="cp9.11">citing from="[2008] AATA 275">effective date of endorsement</citphrase>
<citphrase id="cp9.12">citing from="[2008] AATA 275">decision under review is set aside.</citphrase>
</citphrases>
<citances>
<sentence from="[2010] FCAFC 126" id="cs0">The [Fund] relies in these proceedings upon the grounds stated in its Notice of Objection dated 16 May 2005. These review proceedings relate to the Decision at large, not merely to the Decision as it operated on up until 9 September 2005. See Commissioner of Taxation v Word Investments Ltd [2006] FCA 1414 at [65] . Consequently, the Tribunal is obliged to consider evidence of the [Fund's] activities both before and after 9 September 2005. See Word Investments at [66]-[67].</sentence>
<sentence from="[2008] AATA 275" id="cs1">The Federal Court said the ITAA97 s 50-50(a) condition that required a charitable or religious institution to pursue "its objectives principally in Australia" was concerned with the nature of the institution's own actual conduct, The Court held that Word's only relevant conduct was the payments it made to Wycliffe. Those payments were made in Australia, and were in pursuit of its objectives. They therefore satisfied the endorsement entitlement condition. This was so irrespective of the place where Wycliffe might itself spend the money Word paid: [2006] FCA 1414 at [31] and [52].  The Commissioner's contention appeared to proceed on the basis that TACT's endorsement application, and thus both the Commissioner and the Tribunal's powers related only to the closed period between the effective date of the application and the refusal decision. However, as all the judges in the two Word decisions pointed out, the Commissioner's statutory power was to grant the application with effect from a date the Commissioner determined: [2006] FCA 1414 at [64] - [66] per Sundberg J; [2007] FCAFC 171 at [62] - [63] per Allsop J and [105] per Jessup J. Furthermore, once an endorsement decision was made, it continued to operate until the Commissioner withdrew the endorsement under ITAA97. In these circumstances it was open to the Commissioner, in the circumstances of the present case, to have granted the application on 9 September 2005 and if granted on that date, it would have continued to operate thereafter. The Tribunal's power is no more restricted.
  The Commissioner contends that these donations preclude TACT from satisfying the requirement of ITAA97 s50-60(a) that it "pursued its charitable purposes solely in Australia". The Federal Court of Australia's decisions in Commissioner of Taxation v Word Investments Ltd [2007] FCAFC 171 and [2006] FCA 1414 apparently contradict the contention, but they were concerned with the endorsement entitlement of a religious or charitable institution under ITAA97 s 50-50(a). The Commissioner says the decisions do not apply to the differently worded endorsement entitlement condition in ITAA97 s50-60(a).  The endorsement applicant in Commissioner of Taxation v Word Investments Ltd [2007] FCAFC 171 and [2006] FCA 1414 was a company incorporated by Wycliffe Bible Translators (International). Wycliffe was itself an endorsed income exempt entity under ITAA97 subdivision 50B. Word Investments Ltd distributed the majority of its income to Wycliffe. Wycliffe conducted its activities, almost exclusively, outside Australia. The Federal Court recognised that the question of whether Word's payments were made pursuant to its charitable purposes did require some examination of the nature of Wycliffe's activities outside Australia. But it was not necessary to determine the actual way in which Wycliffe used the money it received from Word. The payments to Wycliffe were made pursuant to Word's charitable objectives if they were made in the belief that Wycliffe would use the money for relevant charitable purposes: [2006] FCA 1414 at [31] . The Federal Court applied similar reasoning to that which had been accepted by the English Court of Appeal in IRC v Helen Slater Charitable Trust Ltd [1981] Ch 79 ; [1982] Ch 49 - a case which also involved distributions made by one charitable organisation to another.  The endorsement applicant in Commissioner of Taxation v Word Investments Ltd [2007] FCAFC 171 and [2006] FCA 1414 was a company incorporated by Wycliffe Bible Translators (International). Wycliffe was itself an endorsed income exempt entity under ITAA97 subdivision 50B. Word Investments Ltd distributed the majority of its income to Wycliffe. Wycliffe conducted its activities, almost exclusively, outside Australia. The Federal Court recognised that the question of whether Word's payments were made pursuant to its charitable purposes did require some examination of the nature of Wycliffe's activities outside Australia. But it was not necessary to determine the actual way in which Wycliffe used the money it received from Word. The payments to Wycliffe were made pursuant to Word's charitable objectives if they were made in the belief that Wycliffe would use the money for relevant charitable purposes: [2006] FCA 1414 at [31] . The Federal Court applied similar reasoning to that which had been accepted by the English Court of Appeal in IRC v Helen Slater Charitable Trust Ltd [1981] Ch 79 ; [1982] Ch 49 - a case which also involved distributions made by one charitable organisation to another. </sentence>
<sentence from="[2007] FCA 345" id="cs2">They certainly have no place when the appeal, or review, is of proceedings of an administrative tribunal which is not bound by the rules of evidence and which, subject to the obligation to observe the requirements of natural justice, can inform itself as it chooses: see s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 . An appellant who attacks a conclusion of the Tribunal because of deficiency of proof said to amount to error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based.

 (see also, Blackwood Hodge (Aust) Pty Ltd v Collector of Customs (NSW) [1980] FCA 96 ; (1980) 47 FLR 131 at 144---5, Deniz v Minister for Immigration and Ethnic Affairs (1983) 51 ALR 645 at 650, Repatriation Commission v Thompson 82 ALR at 358, Swift at 5,113, McAuliffe v Comcare [2002] FCA 769 at [51] , Commissioner of Taxation v Word Investments Ltd [2006] FCA 1414 at [32] ) </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">INCOME TAX ASSESSMENT ACT 1997 </title>
<title id="l3">INCOME TAX ASSESSMENT ACT 1997 - SECT 10.5 List of provisions about assessable income</title>
<title id="l4">FEDERAL COURT RULES 1979 </title>
</legistitles>
</case>


Question:
<citphrase id="cp1.0">cited from="[2007] AATA 1829">compensation</citphrase>
<citphrase id="cp1.1">cited from="[2007] AATA 1829">commonwealth employees</citphrase>
<citphrase id="cp1.2">cited from="[2007] AATA 1829">anxiety and depression</citphrase>
<citphrase id="cp1.3">cited from="[2007] AATA 1829">incapacity</citphrase>
<citphrase id="cp1.4">cited from="[2007] AATA 1829">suitable employment</citphrase>
<citphrase id="cp1.5">cited from="[2007] AATA 1829">failure to accept offer of employment</citphrase>
<citphrase id="cp1.6">cited from="[2007] AATA 1829">whether offer of employment suitable under section 19</citphrase>
<citphrase id="cp2.0">cited from="[2007] FCA 405">workers' compensation</citphrase>
<citphrase id="cp2.1">cited from="[2007] FCA 405">commonwealth government employees' compensation</citphrase>
<citphrase id="cp2.2">cited from="[2007] FCA 405">appeal from administrative appeals tribunal</citphrase>
<citphrase id="cp2.3">cited from="[2007] FCA 405">whether costs of therapeutic treatment reasonable in circumstances</citphrase>
<citphrase id="cp3.0">cited from="[2005] FCA 1389">migration</citphrase>
<citphrase id="cp3.1">cited from="[2005] FCA 1389">protection visa</citphrase>
<citphrase id="cp3.2">cited from="[2005] FCA 1389">appeal from federal magistrates court of australia which dismissed appellant's application for review of decision of refugee review tribunal</citphrase>
<citphrase id="cp3.3">cited from="[2005] FCA 1389">whether tribunal failed to have regard to a relevant consideration</citphrase>
<citphrase id="cp3.4">cited from="[2005] FCA 1389">tribunal had invited appellant to comment on certain matters pursuant to s 424a of migration act 1958 (cth)</citphrase>
<citphrase id="cp3.5">cited from="[2005] FCA 1389">letter conveyed member's concern as to whether the appellant, a bangladeshi muslim, had married a hindu woman as he claimed, and whether mixed marriages in bangladesh led to persecution as he claimed</citphrase>
<citphrase id="cp3.6">cited from="[2005] FCA 1389">appellant responded by supplying, relevantly, five letters, three from university academics, one from general secretary of a bangladeshi association in australia, and one from the editor of a bengali newspaper in australia</citphrase>
<citphrase id="cp3.7">cited from="[2005] FCA 1389">whether tribunal had failed to have regard to the letters</citphrase>
<citphrase id="cp3.8">cited from="[2005] FCA 1389">failure to mention them or their contents specifically. practice and procedure</citphrase>
<citphrase id="cp3.9">cited from="[2005] FCA 1389">appeal from federal magistrates court of australia which dismissed appellant's application for review of decision of refugee review tribunal</citphrase>
<citphrase id="cp3.10">cited from="[2005] FCA 1389">application for leave to raise new ground of appeal not reflected in grounds on which application had been made to federal magistrates court for review of tribunal decision</citphrase>
<citphrase id="cp3.11">cited from="[2005] FCA 1389">principles governing application for leave to raise new ground of appeal, where no associated application for leave to lead further evidence on the appeal.</citphrase>
<citphrase id="cp4.0">cited from="[2005] HCA 40">roncevich v repatriation commission  repatriation pension</citphrase>
<citphrase id="cp4.1">cited from="[2005] HCA 40">whether injury arose out of or was attributable to defence service</citphrase>
<citphrase id="cp4.2">cited from="[2005] HCA 40">whether attendance at mess function compulsory</citphrase>
<citphrase id="cp4.3">cited from="[2005] HCA 40">whether attendance at mess function constituted defence service</citphrase>
<citphrase id="cp4.4">cited from="[2005] HCA 40">applicant injured as a result of falling from window due to intoxication.  administrative law</citphrase>
<citphrase id="cp4.5">cited from="[2005] HCA 40">tribunal of the commonwealth</citphrase>
<citphrase id="cp4.6">cited from="[2005] HCA 40">whether administrative appeals tribunal gave reasons which conformed to law</citphrase>
<citphrase id="cp4.7">cited from="[2005] HCA 40">sufficiency of reasons</citphrase>
<citphrase id="cp4.8">cited from="[2005] HCA 40">whether perverse findings of fact constitute an error of law</citphrase>
<citphrase id="cp4.9">cited from="[2005] HCA 40">jurisdiction of federal court to disturb perverse findings of fact</citphrase>
<citphrase id="cp4.10">cited from="[2005] HCA 40">whether returning matter to the administrative appeals tribunal would be futile</citphrase>
<citphrase id="cp4.11">cited from="[2005] HCA 40">whether high court should substitute a finding on the facts.  statutes</citphrase>
<citphrase id="cp4.12">cited from="[2005] HCA 40">construction</citphrase>
<citphrase id="cp4.13">cited from="[2005] HCA 40">interpretation of beneficial provisions.</citphrase>
<citphrase id="cp5.0">cited from="[2005] FCAFC 30">migration</citphrase>
<citphrase id="cp5.1">cited from="[2005] FCAFC 30">decision of migration review tribunal refusing partner visa</citphrase>
<citphrase id="cp5.2">cited from="[2005] FCAFC 30">decision of primary judge affirming the decision of the tribunal</citphrase>
<citphrase id="cp5.3">cited from="[2005] FCAFC 30">whether tribunal erred in failing to have regard to the social aspects of the relationship as required by reg 1.15a(3)(c) of migration regulations 1994</citphrase>
<citphrase id="cp5.4">cited from="[2005] FCAFC 30">role of appellate court in cases where decision appealed from involves an inference as to whether tribunal had overlooked a material issue</citphrase>
<citphrase id="cp7.0">cited from="[2001] AATA 548">compensation</citphrase>
<citphrase id="cp7.1">cited from="[2001] AATA 548">ae factor</citphrase>
<citphrase id="cp7.2">cited from="[2001] AATA 548">suitable employment</citphrase>
<citphrase id="cp7.3">cited from="[2001] AATA 548">whether applicant able to work as driving instructor</citphrase>
<citphrase id="cp7.4">cited from="[2001] AATA 548">ability to earn</citphrase>
<citphrase id="cp7.5">cited from="[2001] AATA 548">out of time application</citphrase>
<citphrase id="cp9.0">cited from="[1996] HCA 6">immigration</citphrase>
<citphrase id="cp9.1">cited from="[1996] HCA 6">refugees</citphrase>
<citphrase id="cp9.2">cited from="[1996] HCA 6">application to review decisions of minister's delegates refusing claim for refugee status</citphrase>
<citphrase id="cp9.3">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="cp9.4">cited from="[1996] HCA 6">'real chance' of persecution test</citphrase>
<citphrase id="cp9.5">cited from="[1996] HCA 6">whether delegates failed properly to consider real chance of persecution.   administrative law</citphrase>
<citphrase id="cp9.6">cited from="[1996] HCA 6">judicial review</citphrase>
<citphrase id="cp9.7">cited from="[1996] HCA 6">decisions as to 'refugee status'</citphrase>
<citphrase id="cp9.8">cited from="[1996] HCA 6">proper role of reviewing court.</citphrase>
<citphrase id="cp10.0">cited from="[1991] FCA 268">administrative law</citphrase>
<citphrase id="cp10.1">cited from="[1991] FCA 268">unemployment benefit</citphrase>
<citphrase id="cp10.2">cited from="[1991] FCA 268">eligibility for benefit</citphrase>
<citphrase id="cp10.3">cited from="[1991] FCA 268">meaning of "unemployed"</citphrase>
<citphrase id="cp10.4">cited from="[1991] FCA 268">whether the statement of reasons sufficiently exposed the reasoning of the administrative appeals tribunal</citphrase>
<citphrase id="cp10.5">cited from="[1991] FCA 268">whether mere citation of other decisions a sufficient statement of the relevant law</citphrase>
<citphrase id="cp10.6">cited from="[1991] FCA 268">whether the statement of reasons included findings on material questions of fact</citphrase>
<citphrase id="cp10.7">cited from="[1991] FCA 268">whether failure to give a sufficient statement of reasons requires that the decision be set aside.</citphrase>
<citphrase id="cp11.0">cited from="[1989] FCA 381">income tax</citphrase>
<citphrase id="cp11.1">cited from="[1989] FCA 381">whether an amount was assessable income of the taxpayer under s. 25 (1) of the income tax assessment act 1936</citphrase>
<citphrase id="cp11.2">cited from="[1989] FCA 381">whether the amount was received by the taxpayer as officer of a company or as his own personal moneys</citphrase>
<citphrase id="cp11.3">cited from="[1989] FCA 381">observations on the onus of proof under s. 190 of the income tax assessment act 1936 .  administrative law</citphrase>
<citphrase id="cp11.4">cited from="[1989] FCA 381">whether an "appeal" from the administrative appeals tribunal involved a "question of law"</citphrase>
<citphrase id="cp11.5">cited from="[1989] FCA 381">administrative appeals tribunal act 1975 , sub-s. 44 (1)</citphrase>
<citphrase id="cp11.6">cited from="[1989] FCA 381">whether moneys were received by the taxpayer as officer of a company or as his own personal moneys</citphrase>
<citphrase id="cp11.7">cited from="[1989] FCA 381">findings by the aat as to the credit of the taxpayer.</citphrase>
<citphrase id="cp12.0">cited from="[1983] HCA 37">workers' compensation (n.s.w.)</citphrase>
<citphrase id="cp12.1">cited from="[1983] HCA 37">injury to worker</citphrase>
<citphrase id="cp12.2">cited from="[1983] HCA 37">partial incapacity</citphrase>
<citphrase id="cp12.3">cited from="[1983] HCA 37">computation of amount</citphrase>
<citphrase id="cp12.4">cited from="[1983] HCA 37">weekly payment</citphrase>
<citphrase id="cp12.5">cited from="[1983] HCA 37">no evidence of amount of actual earnings during incapacity</citphrase>
<citphrase id="cp12.6">cited from="[1983] HCA 37">mode of determining amount worker "able to earn"</citphrase>
<citphrase id="cp12.7">cited from="[1983] HCA 37">workers' compensation act 1926 (n.s.w.), s. 11(1)(a).</citphrase>
<citphrase id="cp13.0">cited from="[1981] FCA 66">immigration</citphrase>
<citphrase id="cp13.1">cited from="[1981] FCA 66">deportation</citphrase>
<citphrase id="cp13.2">cited from="[1981] FCA 66">whether the immigrant status of the proposed deportee need be decided. appeal</citphrase>
<citphrase id="cp13.3">cited from="[1981] FCA 66">administrative appeals tribunal</citphrase>
<citphrase id="cp13.4">cited from="[1981] FCA 66">immigrant status of proposed deportee assumed before tribunal</citphrase>
<citphrase id="cp13.5">cited from="[1981] FCA 66">whether an error of law by tribunal in not deciding the question.  migration act 1958 , s.13 , sub-s.14(2).  administrative appeals tribunal act 1975 , ss.43 , 44 .  immigration and aliens</citphrase>
<citphrase id="cp13.6">cited from="[1981] FCA 66">deportation</citphrase>
<citphrase id="cp13.7">cited from="[1981] FCA 66">appeal from deportation order of minister to administrative appeals tribunal</citphrase>
<citphrase id="cp13.8">cited from="[1981] FCA 66">whether immigrant status of proposed deportee need be decided</citphrase>
<citphrase id="cp13.9">cited from="[1981] FCA 66">whether not deciding status error of law</citphrase>
<citphrase id="cp13.10">cited from="[1981] FCA 66">migration act 1958 (cth), s. 13</citphrase>
<citphrase id="cp13.11">cited from="[1981] FCA 66">administrative appeals tribunal act 1975 (cth), ss. 43 , 44 . the respondent minister for immigration had decided under s. 13 of the migration act 1958 that the applicant was to be deported from australia. the applicant appealed to the administrative appeals tribunal, which affirmed the decision. the applicant then appealed to the federal court on a question of law, namely whether the administrative appeals tribunal should have determined as an initial question whether the applicant was an immigrant for the purposes of s. 13. the tribunal had not determined that question.</citphrase>
<citphrase id="cp15.0">cited from="[1972] HCA 12">workers' compensation (n.s.w.)</citphrase>
<citphrase id="cp15.1">cited from="[1972] HCA 12">injury to worker</citphrase>
<citphrase id="cp15.2">cited from="[1972] HCA 12">partial incapacity</citphrase>
<citphrase id="cp15.3">cited from="[1972] HCA 12">weekly payment</citphrase>
<citphrase id="cp15.4">cited from="[1972] HCA 12">entitlement</citphrase>
<citphrase id="cp15.5">cited from="[1972] HCA 12">computation of amount</citphrase>
<citphrase id="cp15.6">cited from="[1972] HCA 12">onus of proof</citphrase>
<citphrase id="cp15.7">cited from="[1972] HCA 12">workers' compensation act, 1926 (n.s.w.), as amended, ss. 6 (5) (a) 9, 11, (1) (a).</citphrase>
<citphrase id="cp16.0">cited from="[1948] HCA 16">appeal</citphrase>
<citphrase id="cp16.1">cited from="[1948] HCA 16">new trial</citphrase>
<citphrase id="cp16.2">cited from="[1948] HCA 16">discovery of fresh evidence</citphrase>
<citphrase id="cp16.3">cited from="[1948] HCA 16">availability and character of evidence</citphrase>
<citphrase id="cp16.4">cited from="[1948] HCA 16">courts</citphrase>
<citphrase id="cp16.5">cited from="[1948] HCA 16">appeal</citphrase>
<citphrase id="cp16.6">cited from="[1948] HCA 16">appeal allowed</citphrase>
<citphrase id="cp16.7">cited from="[1948] HCA 16">order for new trial</citphrase>
<citphrase id="cp16.8">cited from="[1948] HCA 16">question of costs adjourned</citphrase>
<citphrase id="cp16.9">cited from="[1948] HCA 16">death of judge</citphrase>
<citphrase id="cp16.10">cited from="[1948] HCA 16">order as to costs by court differently constituted</citphrase>
<citphrase id="cp16.11">cited from="[1948] HCA 16">inquiries before trial</citphrase>
<citphrase id="cp16.12">cited from="[1948] HCA 16">diligence</citphrase>
<citphrase id="cp16.13">cited from="[1948] HCA 16">credibility</citphrase>
<citphrase id="cp16.14">cited from="[1948] HCA 16">influence on result.</citphrase>
<citphrase id="cp17.0">citing from="[2011] AATA 259">workers' compensation</citphrase>
<citphrase id="cp17.1">citing from="[2011] AATA 259">accepted physical and psychological injuries</citphrase>
<citphrase id="cp17.2">citing from="[2011] AATA 259">whether the applicant failed to seek suitable employment</citphrase>
<citphrase id="cp17.3">citing from="[2011] AATA 259">whether the applicant had the capacity to work 20 hours per week</citphrase>
<citphrase id="cp17.4">citing from="[2011] AATA 259">whether the applicant had an ability earn</citphrase>
<citphrase id="cp17.5">citing from="[2011] AATA 259">where only suitable employment is self employment, ability to earn is to be based on amount actually earned</citphrase>
<citphrase id="cp17.6">citing from="[2011] AATA 259">decision set aside and remitted to comcare for calculation.</citphrase>
<citphrase id="cp18.0">citing from="[2010] FCAFC 52">superannuation</citphrase>
<citphrase id="cp18.1">citing from="[2010] FCAFC 52">superannuation guarantee scheme</citphrase>
<citphrase id="cp18.2">citing from="[2010] FCAFC 52">liability for superannuation guarantee charge</citphrase>
<citphrase id="cp18.3">citing from="[2010] FCAFC 52">s 12(1) and s 12(3) superannuation guarantee (administration) act 1992 (cth) definition of employee</citphrase>
<citphrase id="cp18.4">citing from="[2010] FCAFC 52">whether interviewers employees or independent contractors  constitutional law</citphrase>
<citphrase id="cp18.5">citing from="[2010] FCAFC 52">powers of commonwealth parliament</citphrase>
<citphrase id="cp18.6">citing from="[2010] FCAFC 52">s 51(ii) taxation power</citphrase>
<citphrase id="cp18.7">citing from="[2010] FCAFC 52">whether superannuation guarantee charge act 1992 (cth) a law with respect to taxation</citphrase>
<citphrase id="cp18.8">citing from="[2010] FCAFC 52">severability of superannuation guarantee charge act 1992 (cth) and part 8 superannuation guarantee (administration) act 1992 (cth)</citphrase>
<citphrase id="cp18.9">citing from="[2010] FCAFC 52">s 51(xxiii) invalid and old-age pensions power</citphrase>
<citphrase id="cp18.10">citing from="[2010] FCAFC 52">whether part 8 superannuation guarantee (administration) act 1992 (cth) a law with respect to invalid and old age pensions</citphrase>
<citphrase id="cp19.0">citing from="[2009] AATA 988">customs</citphrase>
<citphrase id="cp19.1">citing from="[2009] AATA 988">tariff concession orders</citphrase>
<citphrase id="cp19.2">citing from="[2009] AATA 988">applications for revocation</citphrase>
<citphrase id="cp19.3">citing from="[2009] AATA 988">whether persons requesting revocation producers of substitutable goods</citphrase>
<citphrase id="cp19.4">citing from="[2009] AATA 988">whether goods put or capable of being put to a use that corresponds with a use to which the goods the subject of the relevant tcos can be put</citphrase>
<citphrase id="cp19.5">citing from="[2009] AATA 988">whether goods meet local content test</citphrase>
<citphrase id="cp19.6">citing from="[2009] AATA 988">whether goods meet substantial process test</citphrase>
<citphrase id="cp19.7">citing from="[2009] AATA 988">whether core criteria would have been met if tcos not in force on days and an application for them had been lodged</citphrase>
<citphrase id="cp19.8">citing from="[2009] AATA 988">decisions set aside.    practice and procedure</citphrase>
<citphrase id="cp19.9">citing from="[2009] AATA 988">summons</citphrase>
<citphrase id="cp19.10">citing from="[2009] AATA 988">grounds on which may be refused.    practice and procedure</citphrase>
<citphrase id="cp19.11">citing from="[2009] AATA 988">whether tribunal required to pursue all relevant material</citphrase>
<citphrase id="cp19.12">citing from="[2009] AATA 988">whether parties required to produce all relevant material in their custody, possession or control.    practice and procedure</citphrase>
<citphrase id="cp19.13">citing from="[2009] AATA 988">role of party joined</citphrase>
<citphrase id="cp19.14">citing from="[2009] AATA 988">whether required to lodge material in support of the argument it wishes to make.</citphrase>
<citphrase id="cp20.0">citing from="[2009] FCA 1057">administrative law</citphrase>
<citphrase id="cp20.1">citing from="[2009] FCA 1057">adequacy of reasons</citphrase>
<citphrase id="cp20.2">citing from="[2009] FCA 1057">a reference to the evidence or other materials</citphrase>
<citphrase id="cp20.3">citing from="[2009] FCA 1057">no evidence</citphrase>
<citphrase id="cp20.4">citing from="[2009] FCA 1057">inquisitorial procedure</citphrase>
<citphrase id="cp20.5">citing from="[2009] FCA 1057">duty to assist the administrative appeals tribunal   compensation</citphrase>
<citphrase id="cp20.6">citing from="[2009] FCA 1057">the injury for which compensation was claimed</citphrase>
<citphrase id="cp20.7">citing from="[2009] FCA 1057">nature of injury</citphrase>
<citphrase id="cp20.8">citing from="[2009] FCA 1057">evidence in support</citphrase>
<citphrase id="cp21.0">citing from="[2008] FCAFC 128">administrative law</citphrase>
<citphrase id="cp21.1">citing from="[2008] FCAFC 128">appeal from a decision of the administrative appeals tribunal affirming decisions to cancel australian passport and issue adverse security assessment in relation to applicant under australian security intelligence organisation act 1979 (cth)</citphrase>
<citphrase id="cp21.2">citing from="[2008] FCAFC 128">whether in conducting review of decisions the tribunal erred in law in preventing applicant's legal representatives from having access to all of the evidence and submissions made by the respondents in reliance on security certificates issued by the attorney-general under ss 36 , 39a and 39b of the administrative appeals tribunal act 1975 (cth) where no issue was taken before the tribunal as to the validity of the certificates</citphrase>
<citphrase id="cp21.3">citing from="[2008] FCAFC 128">no error in law in tribunal failing to disregard certificates</citphrase>
<citphrase id="cp21.4">citing from="[2008] FCAFC 128">any challenge to validity of certificates could not give rise to a question of law amenable to resolution by the court under s 44(1) of the administrative appeals tribunal act 1975 (cth)</citphrase>
<citphrase id="cp21.5">citing from="[2008] FCAFC 128">abandonment of ground of appeal due to failure of applicant's legal representatives to require tribunal to send all documents before it to the court under s 46(1) of the administrative appeals tribunal act 1975 (cth)</citphrase>
<citphrase id="cp21.6">citing from="[2008] FCAFC 128">failure of the applicant's legal representative to challenge the attorney-general's decision to issue the certificates under the administrative decisions (judicial review) act 1977 (cth), s 39b of the judiciary act 1903 (cth), or s 75(v) of the commonwealth constitution  constitutional law</citphrase>
<citphrase id="cp21.7">citing from="[2008] FCAFC 128">challenge to constitutional validity of ss 39a and 39b of the administrative appeals tribunal act 1975 (cth) where tribunal presided over by ch iii judge</citphrase>
<citphrase id="cp21.8">citing from="[2008] FCAFC 128">whether mandated procedures are incompatible with powers and functions of a ch iii judge</citphrase>
<citphrase id="cp21.9">citing from="[2008] FCAFC 128">tribunal's powers and functions</citphrase>
<citphrase id="cp21.10">citing from="[2008] FCAFC 128">administrative not judicial</citphrase>
<citphrase id="cp21.11">citing from="[2008] FCAFC 128">nature of appointment</citphrase>
<citphrase id="cp21.12">citing from="[2008] FCAFC 128">persona designate with consent</citphrase>
<citphrase id="cp21.13">citing from="[2008] FCAFC 128">no incompatibility in the present case</citphrase>
<citphrase id="cp21.14">citing from="[2008] FCAFC 128">whether security certificates invalid on their face</citphrase>
<citphrase id="cp21.15">citing from="[2008] FCAFC 128">no condition of validity beyond attorney-general's certification of his opinion.</citphrase>
<citphrase id="cp22.0">citing from="[2008] AATA 567">compensation</citphrase>
<citphrase id="cp22.1">citing from="[2008] AATA 567">administration of the act</citphrase>
<citphrase id="cp22.2">citing from="[2008] AATA 567">normal weekly earnings</citphrase>
<citphrase id="cp22.3">citing from="[2008] AATA 567">whether the claim for the amount of overtime as part of the applicant's normal weekly earnings is to be included in the consideration of the decision under review</citphrase>
<citphrase id="cp22.4">citing from="[2008] AATA 567">whether a previous determination, in relation to the elements of the formula under s19 (3) of the safety rehabilitation and compensation act 1988 , is correct</citphrase>
<citphrase id="cp22.5">citing from="[2008] AATA 567">decision under review set aside.</citphrase>
<citphrase id="cp23.0">citing from="[2008] FCA 566">practice and procedure</citphrase>
<citphrase id="cp23.1">citing from="[2008] FCA 566">federal court rules 1979 (cth) o 35(7)(1)</citphrase>
<citphrase id="cp23.2">citing from="[2008] FCA 566">liberty to apply</citphrase>
<citphrase id="cp23.3">citing from="[2008] FCA 566">variation of orders not entered</citphrase>
</citphrases>
<citances>
<sentence from="[2011] AATA 259" id="cs0">The calculation of Ms Shanley's ability to earn in the periods covered by the decisions under review is to be taken from the figures provided in her income tax returns, in conjunction with the business records of Generating Business Solutions Pty Ltd, and the Profit and Loss Statements for Ms Shanley trading as Kiku Arts. The calculation is not to equate ' operating loss with ability to earn' . [5] The relevant periods covered by both sets of documents do not correspond with any financial year and will need to be estimated by Comcare.
 Whether Ms Shanley failed to seek 'suitable employment'?
 </sentence>
<sentence from="[2010] FCAFC 52" id="cs1">61 It is not clear in what sense his Honour used the word "acquiesces". If in the sense of an estoppel, a difficulty may be created by the fact that conduct on the part of the Commissioner cannot operate as an estoppel against the operation of the tax legislation: see Federal Commissioner of Taxation v Wade [1951] HCA 66 ; (1951) 84 CLR 105 at 117. However we need not pursue this matter, which was not the subject of submissions. We do not know what evidence was available to Meagher JA as to the conduct of the couriers and of the Commissioner that gave rise to an acquiescence on the part of the latter. There was no evidence before the Tribunal of the dealings between the interviewers and the Commissioner in this respect. In its absence we would be unable to determine whether the latter has relevantly acquiesced, and if so, what flows from it in terms of the Commissioner's ability or otherwise to levy SGC on Roy Morgan. More importantly, the present argument was not propounded before the Tribunal. Accordingly, the Tribunal did not err in law in failing to deal with the far-reaching consequences contention: Hussain at [38]-[39]; Comcare v Davies [2008] FCA 393 at [21] ; Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901 ; (2000) 106 FCR 157 at [88] - [90].
 </sentence>
<sentence from="[2009] AATA 988" id="cs2">This question was considered by Flick J in Comcare v Davies [173] when he said:

" A Statement of Facts and Contentions should obviously not be construed with the constraints appropriate to a pleading in a Superior Court. " [174]

170.</sentence>
<sentence from="[2009] FCA 1057" id="cs3">There was thus no dispute that " sufficient reasons " must be provided " to make the system of appeals effective and to fulfil its assumptions ": Roncevich v Repatriation Commission [2005] HCA 40 at [62] , 222 CLR 115 at 135 per Kirby J. It must be possible " to discern from the reasons given the actual reasoning process adopted ": Comcare Australia v Mathieson [2004] FCA 212 at [61] , [2004] FCA 212 ; 79 ALD 518 at 531 per Weinberg J. "... [T]he tribunal will have discharged its duty under s 43 if its reasons disclose its findings of fact, the evidence on which they were based and the logical process by which it moved from those findings to the result in the case ": Secretary, Department of Employment and Workplace Relations v Homewood [2006] FCA 779 at [40] , [2006] FCA 779 ; 91 ALD 103 at 111 per French J. See also: Comcare v Davies [2008] FCA 393 at [31] to [33], 173 IR 294 at 302 to 303. </sentence>
<sentence from="[2008] FCAFC 128" id="cs4">38 Mr Gageler relied on an observation by Flick J in Comcare v Davies [2008] FCA 393 at [21] to the effect that no question of law arose in circumstances where the Tribunal did not resolve an issue or did not make findings of fact and where no such contention was advanced before it. His Honour referred to Federal Commissioner of Taxation v Raptis [1989] FCA 381 ; (1989) 19 ALD 726 at 728, where Gummow J said that "some difficulty" must arise "in finding an 'error of law' in the failure in the Tribunal to make a finding first urged in this Court". See also Chen v Minister for Immigration  Multicultural Affairs [(2000) [2000] FCA 1901 ; 106 FCR 157 at 175---6 per Carr J.</sentence>
<sentence from="[2008] AATA 567" id="cs5">Mr Warnock submitted that my decision in Robinson v Military Rehabilitation and Compensation Commission [11] supports the position of Senior Member Beddoe in Hooper v Comcare [12] . He also says Hooper is at odds with paragraph 37of the Federal Court of Australia decision of Flick J in Comcare v Davies [13] ; and Comcare v Davies (No. 2) [14] . In Davies, His Honour differentiated the High Court case of Timbers v Nelson (supra) from the subsequent High Court decision in Cage Developments v Schubert [15] . Mr Dube referred me to Woodbridge v Comcare [6] where Hill J said that consideration of sections 19(4)(a) to (f) are not exclusive considerations and section 19(4)(g) may reveal other relevant or intervening circumstances. But some technical distinctions should be made. I was also referred to the decision of the High Court in J  H Timbers Pty Ltd v Nelson [7] which was cited in Comcare v Davies [8] . There, the High Court of Australia said "the earning capacity of a man as a worker is measured by the remuneration that is the fruit of his labour, his wages or their equivalent. It is not to be measured by the profits he derives by embarking his capital in a business or by his usual capital equipment in earning money". The relevance of capital invested and return on capital was also referred to by the respondent and the decision of Cage Developments Pty Ltd v Schubert [9] is informative where the High Court held that it was correct to assess compensation "by considering what services the worker actually performed in the business and what those services would have been worth if, instead of serving himself, he had been serving an employer, or, put another way, what he would have had to pay another for those services". That approach was confirmed in Comcare Australia v Leslie Bruce Woodbridge [10] .  The point of distinction was that actual earnings might in some circumstances be regarded as being the same as "ability to earn". That was said to be where the business involved "personal services .....(e.g. the business of a sole plumber or casual gardener) and no significant investment of capital is involved" [16] . Robinson and Hooper also emphasise the point that in self employment, actual net profit may conceal expenditure which might not otherwise be regarded as business expenditure and therefore, net profit is not necessarily the best measure of ability to earn. Those decisions are not inconsistent with the applicant's present position managing his small business in establishing a farm.</sentence>
<sentence from="[2008] FCA 566" id="cs6">

1 In this matter on 27 March 2008 reasons for decision were published allowing an appeal from the decision of the Administrative Appeals Tribunal given on 3 October 2007: Comcare v Davies [2008] FCA 393.</sentence>
</citances>
<legistitles>
<title id="l0">ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 </title>
<title id="l1">ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 - SECT 2A Tribunal's objective</title>
<title id="l2">ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 - SECT 33 Procedure of Tribunal</title>
<title id="l3">ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 - SECT 39 Opportunity to make submissions concerning evidence</title>
<title id="l4">ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 - SECT 43 Tribunal's decision on review</title>
<title id="l5">SAFETY, REHABILITATION AND COMPENSATION ACT 1988 </title>
<title id="l6">SAFETY, REHABILITATION AND COMPENSATION ACT 1988 - SECT 19 Compensation for injuries resulting in incapacity</title>
<title id="l7">FEDERAL COURT RULES </title>
</legistitles>
</case>