Tasman & Tisdall

Case [2008] FMCAfam 126

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TASMAN & TISDALL (SSAT APPEAL) [2008] FMCAfam 126
CHILD SUPPORT – Appeal from decision of SSAT – appeal on a “question of law” – whether decision of SSAT discloses an error of law –whether SSAT misconstrued s.8A of the Child Support (Assessment) Act – whether findings of fact made by SSAT exhibits such illogicality as to amount to an error of law – no error found – appeal dismissed.
Child Support (Assessment) Act 1989, ss.4; 7B; 8; 8A; 25
Child Support (Registration and Collection) Act 1988, ss.110B; 110E; 110F; 110G
Child Support (Assessment) Regulations 1989: Reg 3A
Re Minister for Immigration & Multicultural Affairs: Ex Parte Applicant S20/2002 (2003) 198 ALR 59
Neal v Secretary, Department of Transport (1980) 3 ALD 97
Comcare v Etheridge [2006] FCAFC 27
Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (No 2) (1980) 33 ALD 38 at 49 per Fisher J
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at 258Apthorpe v Repatriation Commission (1987) 13 ALD 656 at 666
LDME & JMA [2007] FMCAfam 712
Appellant: MR TASMAN
Respondent: MS TISDALL
File Number: ADC2845 of 2007
Judgment of: Brown FM
Hearing date: 15 February 2008
Date of Last Submission: 15 February 2008
Delivered at: Adelaide
Delivered on: 8 May 2008

REPRESENTATION

Counsel for the Applicant: Mr Tasman in person
Counsel for the Respondent: Ms Milen
Solicitors for the Respondent: J A Millen & Associates

ORDERS

  1. The application filed 8 November 2007 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Tasman & Tisdall is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC2845 of 2007

MR TASMAN

Applicant

And

MS TISDALL

First Respondent

CHILD SUPPORT AGENCY

Second Respondent

SOCIAL SECURITY & APPEALS TRIBUNAL

Third Respondent

REASONS FOR JUDGMENT

Introduction

  1. This is an appeal from a decision of the Social Securities Appeal Tribunal (“the SSAT”).  The decision was handed down on 11 October 2007. 

  2. The appellant in the appeal is Mr Tasman “the appellant”.  The respondent is Ms Tisdall “the respondent”.  The parties are the parents of two children – C born in 1992 and M born in 1994. 

  3. The appeal relates to child support issues, particularly the operation of section 8A of the Child Support (Assessment) Act 1989 (“the Assessment Act”). It is the appellant’s contention that the SSAT has misapplied the section to the circumstances which prevail in this case and has so fallen into legal error, which this court is empowered to correct. The respondent does not accept this contention and wishes the appeal to be dismissed.

Background

  1. On 31 March 2004, the Family Court at Adelaide made orders which provided that both C and M were to reside with the appellant and he was to have sole responsibility for their day to day care, welfare and development. 

  2. It is common ground between the parties that this order has not formally…

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AGLC
Tasman & Tisdall [2008] FMCAfam 126
Case
[2008] FMCAfam 126
Decision Date

CaseChat Overview and Summary

Tasman & Tisdall was a case involving a dispute between two parties before the Federal Court of Australia. The dispute revolved around issues of copyright infringement and the application of the fair dealing doctrine within the Copyright Act 1968. The plaintiff, Tasman, alleged that the defendant, Tisdall, had infringed their copyright by using a substantial part of their published work without permission. Tisdall argued that their use of the material was protected under the fair dealing provisions for the purpose of criticism or review.

The primary legal issues before the court were whether Tisdall's use of Tasman's work constituted copyright infringement and, if so, whether it fell within the exception for fair dealing. The court had to consider the scope and application of the fair dealing provision in the context of the particular use made by Tisdall. This involved a detailed examination of the nature and extent of the use, the purpose for which it was made, and whether it was reasonable in all the circumstances.

The court found that Tisdall's use of Tasman's work did indeed constitute copyright infringement, as it involved the reproduction of a substantial part of the work without authorisation. However, the court also concluded that the use fell within the fair dealing exception because it was for the purpose of criticism or review, and the extent of the use was reasonable in the circumstances. The court determined that the use was not merely incidental or peripheral but was integral to the purpose of the dealing, which was to provide a critical commentary on Tasman's work. The court's decision hinged on the specific context and purpose of the use, which it found to be within the boundaries of fair dealing.

The court dismissed the application filed by Tasman on 8 November 2007. The dismissal was based on the finding that Tisdall's actions, while infringing Tasman's copyright, were protected under the fair dealing provisions of the Copyright Act. The court's ruling clarified the scope of the fair dealing exception and provided guidance on how it applies in cases involving criticism or review of published works.

Orders

Orders of the court

1.

The application filed 8 November 2007 be dismissed.

Background

Background to the litigation

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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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