Federal Court. In relation to Direction 79, can it be said that "the requirement to ‘generally’ give greater weight to the primary considerations means that there must be some matter specific to the circumstances of the case for giving one of the other considerations greater weight than any of the primary considerations before that can occur"? If so, must the whole case under consideration must be out of the ordinary or unusual? Can it be said that "the precise circumstances which led to the issue of materiality not being in issue may be relevant to whether the Court can proceed on the basis that there is no issue as to materiality"?
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: In relation to Direction 79, can it be said that "the requirement to ‘generally’ give greater weight to the primary considerations means that there must be some matter specific to the circumstances of the case for giving one of the other considerations greater weight than any of the primary considerations before that can occur"?
Question 2: If the answer to Question 1 is 'yes', is it the case that "the whole case under consideration must be out of the ordinary or indeed that there must be some respect in which matters relevant to the particular consideration might themselves be said to be unusual or out of the ordinary before one of the other considerations can be given greater weight than one or more of the primary considerations"?
Question 3: Did Direction 79 require that "generally the primary considerations are to be given the same weight"?
Question 4: Can it be said that "the precise circumstances which led to the issue of materiality not being in issue may be relevant to whether the Court can proceed on the basis that there is no issue as to materiality"?
The FCAFC answered those questions as follows: