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Kemp v K and S Freighters Pty Ltd

Kemp v K and S Freighters Pty Ltd

Case [2012] FMCA 15 13 January 2012

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

KEMP v K & S FREIGHTERS PTY LTD

[2012] FMCA 15

ADMINISTRATIVE LAW – Appeal from Administrative Appeals Tribunal – questions of law – no questions of law stated in notice of appeal – no jurisdiction – application dismissed.

ADMINISTRATIVE LAW – Appeal from Administrative Appeals Tribunal – questions of law – no questions of law stated in notice of appeal – questions formulated in written submissions and argument.

ADMINISTRATIVE LAW – Appeal from Administrative Appeals Tribunal – whether AAT was required to disregard s.6(3) of the Safety, Rehabilitation and Compensation Act 1988 where claimed injury was within the definition of injury in s.5A of that Act – question not answered because no discernable effect upon outcome.

ADMINISTRATIVE LAW – Appeal from Administrative Appeals Tribunal – “no evidence” grounds – consideration of evidence before AAT.

Administrative Appeals Tribunal Act 1975, ss.44(1), 45(1)
Administrative Decisions (Judicial Review) Act 1977, ss.5(1)(e), 5(1)(f), 5(1)(h), 5(1)(j), 5(2)(a), 5(2)(b)
Safety, Rehabilitation and Compensation Act 1988, ss.5A, 6(1), 6(3), 14, 14(3)

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515
Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321
Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Comcare v Etheridge (2006) 149 FCR 522
Commissioner of Taxation (Cth) v Broken Hill South Ltd (1941) 65 CLR 150
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Rana v Repatriation Commission [2011] FCAFC 124
Re Minister for Immigration & Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473
Sharp Corp (Aust) Pty Ltd v Collector of Customs (1995) 59 FCR 6
TNT Skypak International (Aust) Pty Ltd v FCT (1988) 82 ALR 175
Walterscheid Australia Pty Ltd v Collector of Customs (1988) 7 AAR 555

Applicant:

MICHAEL ROBERT KEMP

Respondent:

K & S FREIGHTERS PTY LTD

File Number:

BRG 644 of 2011

Judgment of:

Jarrett FM

Hearing date:

7 October, 2011

Date of Last Submission:

7 October, 2011

Delivered at:

Brisbane

Delivered on:

13 January, 2012

REPRESENTATION

Counsel for the Applicant:

Mr Arnold

Solicitors for the Applicant:

Rees R & Sydney Jones

Counsel for the Respondent:

Mr Berger

Solicitors for the Respondent:

Clarke Legal, Solicitors

ORDERS

The Notice of Appeal filed on 14 June, 2011 is dismissed.
The applicant pay the respondent’s costs of and incidental to the application to be assessed according to the Federal Court Rules 2011 up to and including 15 July, 2011 and thereafter according to schedule 1 of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 644 of 2011

MICHAEL ROBERT KEMP

Applicant

And

K & S FREIGHTERS PTY LTD

Respondent

REASONS FOR JUDGMENT

By his Notice of Appeal filed on 14 June, 2011 in the Federal Court of Australia Michael Kemp appeals, pursuant to s.44(1) of the Administrative Appeals Tribunal Act 1975, a decision of the Administrative…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kemp v K and S Freighters Pty Ltd

Details

AGLC: Kemp v K and S Freighters Pty Ltd [2012] FMCA 15
Case: [2012] FMCA 15
Decision Date: 13 January, 2012

CaseChat Overview and Summary

In the case of Kemp v K and S Freighters Pty Ltd, the applicant, Kemp, appealed against a decision of the Administrative Appeals Tribunal (AAT). The dispute involved the interpretation and application of sections 5A and 6(3) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in relation to a claim for workers' compensation. The court had to determine whether the AAT was required to disregard section 6(3) of the Act when the claimed injury fell within the definition of injury in section 5A.

The legal issues before the court included whether the notice of appeal contained questions of law and whether the AAT was required to disregard section 6(3) of the Act when the claimed injury was within the definition of injury in section 5A. Additionally, the court needed to consider whether the appeal could be dismissed due to the absence of questions of law stated in the notice of appeal and whether the questions formulated in the written submissions and argument could be entertained.

The court held that the notice of appeal did not contain questions of law, and therefore, the court did not have jurisdiction to hear the appeal. Despite the absence of questions of law in the notice, the court considered the questions formulated in the written submissions and argument. However, the court found that the question of whether the AAT was required to disregard section 6(3) of the Act when the claimed injury fell within the definition of injury in section 5A did not have a discernable effect on the outcome. The court concluded that even if the question had been answered in the affirmative, it would not have affected the result. Therefore, the appeal was dismissed, and the applicant was ordered to pay the respondent's costs.

Orders

Orders of the court

The Notice of Appeal filed on 14 June, 2011 is dismissed.

The applicant pay the respondent’s costs of and incidental to the application to be assessed according to the Federal Court Rules 2011 up to and including 15 July, 2011 and thereafter according to schedule 1 of the

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Kemp v K and S Freighters Pty Ltd [2012] FMCA 15

Cases Citing This Decision

No citing cases yet.

Cases Cited

Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd [2020] HCA 2
Citation 1 (Para 13)

…ill South Ltd (1941) 65 CLR 150 at 155, 157 and 160; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; Sharp Corp (Aust) Pty Ltd v Collector of Customs (1995) 59 FCR 6. In any event, therefore, even if the Tribunal’s finding that the risk of injury to which Mr Kemp voluntarily and unreasonably submitted was “abno…
Rana v Repatriation Commission [2011] FCAFC 124
Citation 2 (Para 3)

…proach to an appeal under s.44(1) of the AAT Act is to be found in the Full Court of the Federal Court’s decision in Rana v Repatriation Commission [2011] FCAFC 124. In that case Kenny, Stone and Logan JJ said: [11] The right of appeal conferred by s 44 of the AAT Act is a right to appeal to this court "on a questi…
Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd [2005] FCAFC 131
Citation 3 (Para 2)

…the Federal Court Act. An appeal under s 24 is an appeal by way of rehearing (see Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd (2005) 220 ALR 211 at [35]‑[47]). The subject matter of an appeal under s 44(1) of the AAT Act is (shorn of the requirement to determine what, if any, entitlement to relief flows fro…
Birdseye v Australian Securities and Investments Commission [2003] FCAFC 265
Citation 4 (Para 1)

…e v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 581; TNT Skypak International (Aust) Pty Ltd v FCT (1988) 82 ALR 175 at 178; Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at [1].…
Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCA 763
Citation 5 (Para 3)

…ts Commission (2003) 76 ALD 321 at 324-325 ( Birdseye ); Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 at 300-302 and Comcare v Etheridge (2006) 149 FCR 522 at 526-527. The need for a notice of appeal to specify a question of law is not just a matter of…
Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen [2001] HCA 10
Citation 6 (Para 13)

…to whether they do or do not is one of fact rather than a question of law: Re Minister for Immigration & Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 at [36]; Commissioner of Taxation (Cth) v Broken Hill South Ltd (1941) 65 CLR 150 at 155, 157 and 160; Collector of Customs v Pozzolanic Enterprises Pty Lt…
Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456
Citation 7 (Para 13)

…issioner of Taxation (Cth) v Broken Hill South Ltd (1941) 65 CLR 150 at 155, 157 and 160; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; Sharp Corp (Aust) Pty Ltd v Collector of Customs (1995) 59 FCR 6. In any event, therefore, even if the Tribunal’s finding that the risk of injury to which…
Australian Telecommunications Corporation v Lambroglou [1990] FCA 689
Citation 8 (Para 2)

…law to the Court made under s 45 of the AAT Act. 15 In Birdseye Stone J and I also expressed approval of the observation of Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 527 that: ‘If the question, properly analysed, is not a question of law no amount of formulary like “erred in law” or “was open as a matter of law” can…
Australian Broadcasting Tribunal v Bond [1990] HCA 33
Citation 9

…Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 F…
TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 198
Citation 10 (Para 1)

…iction of this Court: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 581; TNT Skypak International (Aust) Pty Ltd v FCT (1988) 82 ALR 175 at 178; Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at [1].…
Waterford v the Commonwealth [1987] HCA 25
Citation 11 (Para 2)

…CLR 473, at pp 481, 483. 88. But it is said that "(t)here is no error of law simply in making a wrong finding of fact": Waterford v. The Commonwealth [1987] HCA 25; (1987) 163 CLR 54, per Brennan J. at p 77. Similarly, Menzies J. observed in Reg. v. The District Court; Ex parte White [1966] HCA 69; (1966) 116 CL…
Hope v Bathurst City Council [1980] HCA 16
Citation 12 (Para 2)

…articular inference can be drawn from facts found or agreed is a question of law: Australian Gas Light , at pp 137-138; Hope v. Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1, at pp 8-9. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admit…
Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 39
Citation 13 (Para 1)

…some senses misleading. These proceedings are within the original jurisdiction of this Court: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 581; TNT Skypak International (Aust) Pty Ltd v FCT (1988) 82 ALR 175 at 178; Birdseye v Australian Securities and Investments Commission (2003) 76 ALD…
Sinclair v Maryborough Mining Warden [1975] HCA 17
Citation 14 (Para 2)

…cepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: Sinclair v. Maryborough Mining Warden [1975] HCA 17; [1975] HCA 17; (1975) 132 CLR 473, at pp 481, 483. 88. But it is said that "(t)here is no error of law simply in making a wrong finding of fact": Wa…
Reg v The District Court; ex parte White [1966] HCA 69
Citation 15 (Para 2)

…e Commonwealth [1987] HCA 25; (1987) 163 CLR 54, per Brennan J. at p 77. Similarly, Menzies J. observed in Reg. v. The District Court; Ex parte White [1966] HCA 69; (1966) 116 CLR 644, at p 654: "Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amou…
Federal Commissioner of Taxation v Broken Hill South Ltd [1941] HCA 33
Citation 16 (Para 2)

…the preliminary question whether the evidence reasonably admits of different conclusions: Federal Commissioner of Taxation v. Broken Hill South Ltd . [1941] HCA 33; (1941) 65 CLR 150, at pp 155, 157, 160. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of i…
[2003] FCAFC 244 [2003] FCAFC 244
Citation 17 (Para 8)

…ll amount to a question of law for the purposes of an appeal pursuant to s.44(1) of the AAT Act: Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 at [61]-[62]; Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524; Birdseye v Australian Securities and Investments Commi…
Mr Jacobs relied are concerned with appeals under other statutes and may be distinguished. Comcare v Etheridge [2006] FCAFC 27
Citation 18 (Para 2)

…the AAT Act does not permit a reconsideration of the merits of the decision under review. The appeal is on a question of law. In Comcare v Etheridge (2006) 149 FCR 522, Branson J (with whom Spender and Nicholson JJ agreed) summarised the nature of the right conferred by s.44(1) in the following terms: 13 The nature…
Pty Ltd v Federal Commissioner of Taxation 381 US 479
Citation 19 (Para 2)

…by Stone J and me particularly at [10]‑[18]. We expressed our approval of the observation made by Gummow J in TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178 that an appeal ‘on a question of law’ is narrower than an appeal that merely involves a question of law. As his Honour pointed out, where…
McPhee v S Bennett Ltd (1934) 52 WN 8
Citation 20 (Para 2)

…In support of the submission that the grounds raise a question of law Mr Kemp placed reliance upon a passage from the judgment of the High Court of Australia in the Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (the Bond Media Case ): 87. The question whether there is any evidence of a …
Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143
Citation 21 (Para 8)

…important to point out that not every error of law will amount to a question of law for the purposes of an appeal pursuant to s.44(1) of the AAT Act: Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 at [61]-[62]; Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524; Birdseye v Australian Securities and Invest…
[2003] FCAFC 232 [2003] FCAFC 232
Citation 22 (Para 2)

…following terms: 13 The nature of an appeal under s 44(1) of the AAT Act was considered in Birdseye v Australian Securities and Investment Commission [2003] FCAFC 232; 76 ALD 321 (‘ Birdseye’ ) by Stone J and me particularly at [10]‑[18]. We expressed our approval of the observation made by Gummow J in TNT Skypack…

Legislation Cited

Administrative Decisions (Judicial Review) Act 1977 (Cth) 5(1)(e), 5(1)(f), 5(1)(h), 5(1)(j), 5(2)...
7 mentions (from Para 3)
Safety, Rehabilitation and Compensation Act 1988 (Cth) 14, 14(3), 5A, 6(1), 6(3)
6 mentions (from Para 2)
Administrative Appeals Tribunal Act 1975 (Cth) 44(1), 45(1)
3 mentions (from Para 1)
Compensation Act 1988 (Cth)
1 mention (from Para 1)
Federal Court Rules 2011 (Cth)
1 mention (from Para 2)
Federal Magistrates Court Rules 2001 (Cth)
1 mention (from Para 2)