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Reviews of judgments

Every Issue

Cite as: (2008) 82(9) LIJ, p. 54

Federal Court Judgments

Cite as: (2008) 82(9) LIJ, p. 54

By Thomas Hurley

Income tax

Deferral of losses from non-commercial activity

In Watson v C of T [2008] FCA 1173 (8 August 2008) Mansfield J considered the benefits received by a financial planner who ran his business on the proceeds of disability insurance while partially disabled were not assessable as income as this would result in assessable income from a business activity. He also considered when losses from non-commercial business activity could be deferred.

Industrial law

Whether failure of employer to dismiss employees a breach of award

In Unsworth v Tristar Steering and Suspension Australia Ltd [2008] FCA 1224 (13 August 2008) Gyles J considered that the failure of an employer whose business had substantially ceased to dismiss employees and thus improve the benefits to which they were entitled did not constitute a breach of s792 of the Workplace Relations Act 1996 (Cth).


Review – decisions reviewable by the Federal Court – notice of intention to make a decision

In Fernando v MIC [No 2] [2008] FCA 1216 (13 August 2008) Siopis J concluded the “decision” to give notice that consideration could be given to cancelling a visa under s501 of the Migration Act was conduct that was within the definition in s474(3) and
in the absence of evidence that the activity was engaged in by the Minister personally the Federal Court had no jurisdiction over it.


Interpretation – foreign treaties – Designs Act 1906 (Cth) – exception for design exhibited at certain exhibitions

In Chiropedic Bedding Pty Ltd v Radburg Pty Ltd [2008] FCAFC 142 (14 August 2008) the primary judge had concluded that the exception from the priority date for goods exhibited at certain international exhibitions in s47 of the Designs Act 1906 (Cth) was to be interpreted to give effect to the Paris Convention of 1883. The Full Court concluded this was in error. It held the Convention was only part of the context that underlay the Act but the words did not have this meaning. Consideration of the role of extrinsic material in interpreting legislation.

Trade practices

Market power – “market” – whether a national market for sterile fluids and PD fluids

In ACCC v Baxter Healthcare Pty Ltd [2008] FCAFC 141 (11 August 2008) a Full Court considered, on remitter from the High Court (see ACCC v Baxter Healthcare (2006) 81 ALJR 1622), whether a national corporation had abused its market position in negotiating contracts to supply products to various state health authorities. Consideration of how “purpose” was determined for the Trade Practices Act ss46(1) and whether conduct had the purpose or effect of lessening competition for s47.

THOMAS HURLEY is a Victorian barrister. The full version of these judgments can be found at

Supreme Court Judgments

Cite as: (2008) 82(10) LIJ, p. 55

By Greg Reinhardt

Review of proceedings by VCAT of professional disciplinary tribunal

Towie v Medical Practitioners Board of Victoria [2008] VSCA 157 (unreported, 26 August 2008, No 3752/2007, Redlich and Weinberg JJA and Mandie AJA).

The appellant, a medical practitioner, sought a review before VCAT of a decision of the respondent that the appellant had engaged in professional misconduct of a serious nature.

Directions were given, among others, that the appellant file, within a certain time period, witness statements and any further material on which he sought to rely.

It was conceded by the parties that the review was to take place by way of rehearing de novo. The Court of Appeal noted:

“ . . . in circumstances where the alleged breach of those directions in main part gave rise to the order now appealed against, we should indicate that, in our view, the usual directions given at VCAT would not generally be appropriate where an applicant seeks to review disciplinary proceedings and is a person who is or may be exposed to a penalty. A party may, in such cases, be required to file written grounds and an outline of argument which identifies in broad terms what is in issue on the application for review. But it will not ordinarily be appropriate that directions be given which require the applicant for review to provide an outline of argument, or any other written material, which contains a positive assertion or denial of facts or requires an election by the applicant as to whether he or she intends to go into evidence or requires any proposed evidence the applicant intends to call to be the subject of a witness statement which must be produced and served on the other side, before the case advanced against the applicant has been completed”. [9]

The Court referred to decisions in which it had been held that where pecuniary penalties were sought, it was inappropriate for the person against whom such relief was sought to provide a statement of the evidence which he or she proposed to give before the other party’s case had closed. It noted that there was nothing in the directions given in the case before it which precluded the appellant from advancing his case by argument or without giving evidence, but if he chose to give evidence, he might run the risk, in light of the directions, that he would not obtain leave to adduce such evidence.

The appellant’s review had been struck out for failure to comply with the directions. VCAT made the following findings:

“(1) The appellant had shown disregard of the Tribunal’s procedures in failing to attend three previous directions hearings: ‘In my view, [the appellant’s] claim to have been unaware of the Directions Hearings at which the matter was previously struck out, and his claim that previous delay was all the fault of his solicitor, are not plausible. It is an excuse for his past inaction’.

(2) The appellant had disregarded the orders . . . to file and serve witness statements: ‘I find it implausible that he would not have been firmly told by each of those lawyers that he would need to file witness statements setting out the matters on which he relied well before the hearing date’.

(3) The appellant had conducted himself in an extremely aggressive and intimidating way: ‘I record that in 11 years on the Bench I have rarely experienced such aggression and intimidatory behaviour from a litigant’. The Tribunal said that such conduct would not of itself have been sufficient for the proceeding to be dismissed under s78 but it showed that the appellant was ‘not willing to address any of the compliance issues raised by the Respondent in any sensible way, nor produce evidence sufficient to identify the grounds for the application so as to give the Respondent the opportunity to properly prepare to defend this application’.” [29]

The Court of Appeal was of the view that it could not be concluded that the directions had not been complied with. The directions required the appellant to file witness statements and other evidence on which he might seek to rely. This did not require him to file his own witness statement or, if it did, it did not require the appellant to finally decide to give evidence before he had heard the case against him. These matters had not been addressed on the strike out application.

Moreover, the Court of Appeal was not satisfied that the appellant had been accorded procedural fairness.

The appeal was allowed.

[The case illustrates the tension which can exist in a tribunal (or a court) between the need to manage a proceeding and the need to accord natural justice. Tribunals and courts have often to walk a tightrope in achieving a satisfactory balance.]

PROFESSOR GREG REINHARDT is executive director of the Australasian Institute of Judicial Administration and a member of the Faculty of Law at Monash University. The numbers in square brackets in the text refer to the paragraph numbers in the judgment. The full version of this judgment can be found at


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