case_text: I would, though, make the following additional comment. The applicant's characterisation of the resultant state of the evidence, the Tribunal having not accepted his and Mrs Vu's account of the provenance of the moneys in the deposits, is inaccurate. The matter put in issue by Mr Vu and his wife was not the identity of the holder of bank accounts but the alleged particular source of the deposits in those accounts, i.e. transfers of Mrs Duy's monies from Vietnam. That positive case failed. Its failure, though, did not authorise or require the Tribunal to infer or to presume that the monies deposited were Mrs Duy's. The Tribunal had not accepted that the moneys had the provenance both Mr Vu and Mrs Duy advanced. The Tribunal's reasons betray an understandable scepticism concerning the actions and statements of the couple. In this setting, where positive proof of the provenance of the moneys in the account was necessary, if Mr Vu was to show his assessments were excessive, there could be no possible place for a presumption such as is now advanced. Equally, in light of the Tribunal's reasoning and finding, the inference proposed could not properly be said to be the most probable and reasonable deduction from the established facts: cf Holloway v McFeeters [1956] HCA 25 ; (1956) 94 CLR 470 at 477. The applicant's failure to discharge the burden cast on him was not an advantage to him. Rather it left unestablished what was needed to be established if he was to succeed before the Tribunal. No process of inference could overcome that disadvantage. 28 I will order that the application be dismissed with costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 12 July 2006 Counsel for the Applicant: Mr O'Loughlin Solicitor for the Applicant: Brian F Jacomb & Associates Counsel for the Respondent: Mr Sievers Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 3 July 2006 Date of Judgment: 12 July 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/889.html


case_outcome: cited

case_text: The Federal Magistrate considered that this may well have been what he called a mistake of a jurisdictional fact because of a decision of Tamberlin J in NBCY v Minister for Immigration (2004) 83 ALD 518. The Federal Magistrate did not apparently consider that this was an error of the kind referred to by the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473. 11 In any event, the learned Federal Magistrate went on to point out that the finding was an unnecessary one because the Tribunal had already come to the view that the appellant's claims should be rejected on credibility grounds. The Federal Magistrate observed that the RRT had independent grounds for believing that there was no well-founded fear of persecution if the appellant should return to Sri Lanka. Accordingly the Federal Magistrate did not consider that the RRT fell into jurisdictional error.


case_outcome: referred to

case_text: The appellant's notice of appeal raises four grounds of appeal. One of them is reliance upon the decision of the High Court in Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601. However, there is no substance in this ground of appeal because as a Full Court observed in NADR of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 293 ; (2002) 124 FCR 465 at [24] [28], the decision in Muin turns upon the question of whether the necessary factual basis is established. There was no such factual basis in the present case nor was there any admission of the necessary factual underpinnings that occurred in the High Court in Muin .


case_outcome: followed

case_title: NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 293 ; (2002) 124 FCR 465


case_text: The decision of a Full Court in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24] in the joint judgment of Finn and Stone JJ contains a useful summary of the meaning of the term "information" in s 424A(1). It is plain that the appellant does not point to any information of the kind set out in the joint judgment. The effect of the appellant's submission is that the RRT was bound to provide him with an opportunity to comment upon its subjective thought processes before arriving at a decision. That is contrary to well established authority; see VAF at [24(iii)]. See also the decision in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576.


case_title: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576


case_outcome: applied

case_text: The respondents served the notice to produce to obtain production of documents said to be discoverable, but which the applicant has not discovered. This is not a legitimate use of a notice to produce. In Commissioner for Railways v Small (1938) 38 SR (NSW) 564, 574 Jordan CJ said: "[I]t is not legitimate to use a writ of subpoena duces tecum as a substitute for an application for discovery of documents, or as an alternative to an application for further and better discovery." See also Australian Competition & Consumer Commission v Shell Co of Australia Ltd (1999) 161 ALR 686, 695-696. It is equally illegitimate to use a notice to produce for that purpose.


case_text: In-house counsel are not automatically denied access to an opponent's confidential information: R R Donnelley & Sons Co v Quark Inc 2007 US Dist Lexis 424. But if in-house counsel is involved in "competitive decision-making" a protective order is often made. It has been said that involvement in competitive decision-making is the "crucial" or "decisive" or determinative factor in denying in-house counsel access to confidential information: Brown Bag Software v Symantec Corp (1960 F.2d 1465, 1470 (9 th Cir, 1992)); Glaxo Inc v Genpharm Pharmaceuticals Inc 796 F.Supp 872, 874 (ED NC, 1992); Carpenter Technology Corp v Armco Inc 132 FRD 24, 27 (ED Pa, 1991).


case_title: Carpenter Technology Corp v Armco Inc 132 FRD 24, 27 (ED Pa, 1991)


case_title: Commissioner for Railways v Small (1938) 38 SR (NSW) 564


case_title: Ford v Hopkins (1701) 90 ER 964

case_text: The second issue concerns a notice to produce that has been served by the respondents. To understand the purpose of such a notice it is necessary to refer to what became known as the best evidence rule. The earliest statement of the best evidence rule is by Holt CJ in Ford v Hopkins (1701) 90 ER 964. He said "[T]he best proof that the nature of the thing will afford is only required". It soon became the single most important rule in the law of evidence. This did not prevent its abolition in federal courts and tribunals by s 51 of the Evidence Act 1995 (Cth).


case_title: Glaxo Inc v Genpharm Pharmaceuticals Inc 796 F.Supp 872, 874 (ED NC, 1992)


case_text: Two issues have come up in discovery. Before dealing with them I should say a word or two about the topic. Discovery has several purposes in civil litigation. Although litigation is adversarial the principal object of discovery is to enable the judge to resolve contested issues with a full, or near full, understanding of the true facts. Discovery has several subsidiary purposes: it removes the risk of surprise at the trial; it narrows and clarifies the issues in dispute; it encourages the early settlement of litigation. On the other hand, discovery has the potential to cause harm. Information obtained on discovery may, if it is used for purposes unrelated to the suit, result in damage to a party's reputation or commercial interests. There is a rule, often but wrongly attributed to Harman v Secretary of State for the Home Department [1983] AC 280, that a party is not entitled to use information obtained on discovery for a purpose other than that of the action. Breach of the rule is a contempt of court. Sometimes the protection provided by the rule is inadequate. Then the party is entitled to additional protection. 2 The first issue, here, is whether the respondents are entitled to special protection for some of their discovered documents. The relevant circumstances are these. The applicant (a United States corporation) and the respondents (respectively a Canadian university and a Canadian corporation) are in competition. They compete in the design for manufacturing purposes of medical devices. One such device is a stent for the delivery of paclitaxel, a drug that is used in the treatment of peripheral artery disease. The device is sold around the world. 3 The respondents are the proprietors in Australia of patents for a stent the validity of which are being challenged in this action by the applicant. The applicant has a stent that it wishes to sell in Australia which the respondents say will infringe one or other of their patents. There is a cross-claim dealing with that claim. The action has some way to go before it is ready for trial. But there has been discovery. Each side claims that many of its discovered documents are confidential and that they would suffer serious harm if the contents were made known to the other side. The respective claims for confidentiality are not challenged. Indeed, the parties have put in place a regime to ensure that access to sensitive information is restricted to a select group of people (mostly lawyers and experts) each of whom has given an undertaking not to divulge what they learn, especially to their respective clients.


case_text: The leading Australian case is Mobil Oil Australia Ltd v Guina Developments Pty Ltd (1995) 33 IPR 82. Roads Corporation, sometimes known as VicRoads, a statutory corporation, had called for expressions of interest for the development of a service centre. Mobil was the successful tenderer. Guina Developments sued VicRoads for a declaration that its choice of Mobil was invalid. The parties were required to make discovery. VicRoads objected to the production of documents that disclosed trade secrets (rates of return) that had been provided to it by Mobil, which was then joined to the action to protect its interests. The judge ordered the documents be disclosed. Mobil successfully appealed. The judgment of the Court of Appeal was delivered by Hayne JA (as he then was). He said first (33 IPR at 87) that merely because documents contained confidential information that did not ordinarily constitute a sufficient reason to deny inspection. In most cases in his opinion the rule that the information could not be used except for the purposes of the litigation was a sufficient measure of protection. But Hayne JA said that disclosure of confidential information to a trade rival fell into a different category. The reason was that "Once the documents are inspected by the principals of the trade rival the information which is revealed is known to the trade rival and cannot be forgotten." (33 IPR at 87). There was also the problem that the party whose information has been disclosed will likely never know when and how the information has been used. Hayne JA went on to say (33 IPR at 88) that the problem facing the court was "one of balancing the needs of a party to the litigation and the legitimate concern of a trade rival to retain secrecy of commercially sensitive information". That would justify distinguishing between a party and its advisers making it permissible, in an appropriate case, to deny inspection to a party but not to its lawyers and experts. He said (33 IPR at 89) that it was not possible to frame a rule that covered all cases but "each case will fall for determination, according to its own facts. In particular the nature and the content of the disputed documents is a matter that will usually, if not invariably, be of great importance in forming a conclusion and, if that is so, it will be appropriate for the judge to inspect the documents concerned." 12 As is apparent from a review of the cases, the problem that confronts the court is the risk of inadvertent or accidental disclosure. The risk is two-fold. First, it involves the unconscious use of confidential information. That is to say, information which once in a person's possession cannot be distinguished from other information in the person's possession. The other kind of inadvertent use is when it is impossible to ignore the confidential information once it is known. That is the kind of inadvertent disclosure, I think, Hayne JA had in mind in Mobil . 13 There is another risk to guard against in the case of disclosure of extremely potent information to in-house counsel, although the risk is not confined to in-house counsel. Providing confidential information to in-house counsel could produce a conflict between his duty of loyalty to his principal and his duty to keep the confidential information to himself. This could place in-house counsel in a position of great difficulty. Proper advice may not be forthcoming. Counsel's hands may be tied in the further conduct of the litigation. It may make it impossible to avoid unwitting disclosure in a prolonged working relationship. These are all dangers that, in some cases, need to be fended against. 14 Returning to the case at hand, it has not been possible for me to do more than examine a few of the respondents' confidential documents. The case was conducted on the basis that this would be sufficient for me to arrive at a decision. My examination of the documents satisfies me that some parts are confidential. What is not clear is how the information might be used by the applicant to disadvantage the respondents. For present purposes, however, I propose to act on the basis that this is a real possibility.


case_text: The best evidence of the contents of a document is the original document. A party, though, was not always in the position of being able to produce the original of a document. If the original was in the possession of the opposite party, that party could be served with a notice to produce and if the original was not produced, secondary evidence of its contents could be given: Morgan v Babcock & Wilcox Ltd [1929] HCA 25 ; (1929) 43 CLR 163. If the first party still wanted the original the proper course was to serve a subpoena duces tecum . By the rules of the Federal Court (O 33 r 12) a notice to produce has been given a two fold function. First, if the notice was not answered it permitted the party serving it to give secondary evidence of the contents of a document. Second, it served the same function as a subpoena duces tecum requiring production of the original document.


case_text: I should also refer to Roussel Uclaf Imperial Chemical Industries plc [1990] RPC 45 a case which followed Warner-Lambert Co v Glaxo Laboratories Ltd. The question there was whether trade secrets should be disclosed to two patent attorneys employed by the plaintiff. Both worked in the plaintiff's Paris office and were responsible for both the litigation in England and parallel litigation in France. The patent attorneys were permitted access to the confidential information but on terms that the plaintiff undertook that the attorneys "should not be concerned in any way with the French proceedings" and that the plaintiff would "pay to the defendants any sum that the court shall decide the defendants may have suffered by any wrongful disclosure of the secret process". The first condition was imposed to "minimise the chance that the confidential information [would] be used in [the French] litigation". The second condition was imposed because of the difficulty faced by the defendants in obtaining satisfactory compensation in the French courts if the confidential information was leaked.


case_title: R R Donnelley & Sons Co v Quark Inc 2007 US Dist Lexis 424


case_title: U.S. Steel Corp v United States 730 F2d 1465 (Fed Cir, 1984)

case_text: To allay any concern that she might make improper use of confidential information that will come into her possession if she has access to the confidential documents, Ms Vinitskaya has sworn that she does not "participate in competitive decision-making" in her role as associate general counsel. In the United States a reference to "competitive decision-making" by in-house counsel means making company decisions that affect contracts, marketing, employment, pricing, product design, or "any or all of the client's decisions ... made in light of similar or corresponding information about a competitor." U.S. Steel Corp v United States 730 F2d 1465, 1468 (Fed Cir, 1984). The concept was developed in applications for protective orders restricting access to confidential trade information produced during discovery. 7 When deciding whether or not to make a protective order to protect trade secrets United States courts strike a balance between, on the one hand, the need for full and open discovery and, on the other, the need to protect parties from a misuse of trade secrets by competitors. Striking the right balance will present difficulties in the case of in-house counsel.


case_text: The position under Anglo-Australian law is similar. In England the leading case is Warner-Lambert Co v Glaxo Laboratories Ltd [1975] RPC 354. This was a patent infringement action. The question that arose was the extent to which the defendant was required to disclose its trade secrets to representatives of the plaintiff, a US corporation that happened to be one of its main competitors. The trade secrets had been disclosed to plaintiff's counsel, solicitor, patent attorney and an expert on undertakings not to use the information except for the purposes of the action. The plaintiff sought disclosure to its chief executive, general counsel, patent counsel and an Italian scientist employed by a subsidiary company. The judge allowed disclosure on certain conditions to the chief executive and general counsel but not to the others. Both sides appealed. Buckley LJ delivered the leading judgment in the Court of Appeal. He said ([1975] RPC at 356) the case presented "a balance or conflict of expedients". On one side, the plaintiff was entitled to protection against infringements of its patents. On the other, the defendant was entitled to have its secrets protected. The question for the court then was how could justice be done and, at the same time, effect be given to the rights of each party to the greatest possible extent. Buckley LJ decided that the chief executive should have access to the trade secrets, notwithstanding the risk involved. He reasoned ([1975] RPC at 360-361) that the plaintiff's agents "are not authorised to make any major decisions on the company's behalf, such as, for instance, a decision whether to continue or abandon the action. Such a decision should be made by the company, not by its legal advisers, and still less by its scientific advisers." Buckley LJ considered that disclosure should not be made to anyone else, including to the General Counsel. As regards counsel, he considered ([1975] RPC at 361) that the legal issues in question were issues of English law and that the plaintiff had English legal advisors of "the highest calibre". By contrast, the plaintiff's General Counsel and patent counsel in the United States were not qualified experts in the field of United Kingdom patent law. 10 I should also refer to Roussel Uclaf Imperial Chemical Industries plc [1990] RPC 45 a case which followed Warner-Lambert Co v Glaxo Laboratories Ltd. The question there was whether trade secrets should be disclosed to two patent attorneys employed by the plaintiff. Both worked in the plaintiff's Paris office and were responsible for both the litigation in England and parallel litigation in France. The patent attorneys were permitted access to the confidential information but on terms that the plaintiff undertook that the attorneys "should not be concerned in any way with the French proceedings" and that the plaintiff would "pay to the defendants any sum that the court shall decide the defendants may have suffered by any wrongful disclosure of the secret process". The first condition was imposed to "minimise the chance that the confidential information [would] be used in [the French] litigation". The second condition was imposed because of the difficulty faced by the defendants in obtaining satisfactory compensation in the French courts if the confidential information was leaked.


case_text: The meaning and implications of the statutory notion of 'decision', where used in the ADJR Act, was comprehensively explained by the High Court in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321. It was emphasised by Mason CJ at 335 (with whose reasons Brennan J agreed, as did Deane J other than in relation to a particular matter not here material) that such meaning must be determined by reference to the text, scope and purpose of the legislation, and further that the remedial nature of the ADJR Act indicates that no narrow view is to be taken of the notion of 'decision' in that statutory context. Moreover his Honour pointed out at 336 that the concept of 'a reviewable decision is a decision which a statute requires or authorises, rather than merely a step taken in the course of reasoning on the way to the making of the ultimate decision', and further that 'the examples of a decision listed in the extended definition contained in s 3(2) [of the ADJR Act] are also indicative of a decision having the character or quality of finality, [being] an outcome reflecting something in the nature of a determination of an application, inquiry or dispute ...'. Section 3(3) of the ADJR Act, which extends the statutory definition of 'decision' to '... the making of a report or recommendation before a decision is made in the exercise of a power ', was said by his Honour to operate to '... qualif[y] the characteristic of finality'. Moreover the Chief Justice explained that '... acts done preparatory to the making of a "decision" are not to be regarded as constituting "decisions" for, if they were, there would be little, if any, point in providing for judicial review of "conduct" as well as of a "decision".' 28 In the further course of his reasons for judgment in Bond at 337, Mason CJ pointed out that '... a reviewable "decision" is one for which provision is made by or under a statute', which '... will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration', so long of course '... that it be a substantive determination', as opposed to 'procedural determinations'. 29 The applicants focused those explanations and expositions of the Chief Justice upon s 111 of the Act, which refers to power conferred upon the Authority inter alia to revoke or vary any condition of a licence which it may have previously imposed, and submitted that so much did not mean that a refusal to exercise any such positive power on the part of the Authority did not constitute a decision made under s 111. It was pointed out in that regard, in my opinion rightly, that there are many statutes in which the decision-making power is expressed only in terms of a positive discretion, without express reference to the power to make a decision of a negative character, yet in such cases it is necessarily implicit that a negative decision would also be made under that provision. Otherwise, so it was further emphasised by the present applicants, paras (a), (b) and (g) of s 3(2) of the ADJR Act would be otiose. Those subsections read as follows (the emphasis appearing in non-italics is mine): 's 3(2) In this Act, a reference to the making of a decision includes a reference to: (a) making, suspending, revoking or refusing to make an order, award or determination; (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission; ... (g) doing or refusing to do any other act or thing...' 31 The Authority sought to deny any conclusion as to the existence of a justiciable decision by characterising its first decision as declining to even consider the exercise of any discretion under s 111 of the Act. In the applicants' submission that purported characterisation was misconceived, and must be rejected, for the following reasons: (i) the decision not to exercise its power under s 111 to vary a condition of the licence was indeed final, operative and determinative, in the practical sense described in Bond and in Right to Life [cedilla] of AusCoast's ability to continue to broadcast under the auspices of the 1620 licence from the current site at Tingalpa; (ii) any such characterisation sits at least uncomfortably with the terms of the Authority's letter of 30 June 2005, containing as it does the assertion '[a]s a result the [Authority] will not exercise its discretionary power under section 111 of the [Act] and vary licence conditions in the terms proposed by [WAL]'; (iii) the decision not to exercise the power was one which was authorised by and therefore made under s 111 of the Act, since s 111 confers a discretionary power, and hence contemplates that a decision whether or not to exercise that discretion could be made, there being no other source of power for such a decision. I think that there is force in each of the foregoing submissions of the applicants. 48 Ryan J found that the Minister there had not received advice from a local Aboriginal community in accordance with s 21D(1), and thus the issue of relevance was whether or not the Minister's decision not to determine[e] on his...own motion that a temporary declaration of preservation should be made was a reviewable decision for the purposes of s 5(1) of the ADJR Act. The Minister had informed the applicants in writing that he would 'consider' their request for a determination on his own motion, but later told the applicants that he would not do so pending the resolution of another proceeding before this Court involving the same artefacts. His Honour found that the Minister's decision was a decision to decline to determine[e]...on his own motion and was thus made 'preparatory' to the making of a decision to determine to make a temporary declaration. Alternatively, his Honour characterised the decision declining to so determine[e] as 'a conclusion reached as a step on the way to an ultimate decision', which is not reviewable, for that reason also, thereby referring to dicta to like effect at 337 of Mason CJ's reasons for judgment in Bond . 59 Thus by way of reflection of the dictum I have cited from Bond , the communications of the Authority as evidenced from the outset by its faxed response of 16 August 2004 to the applicants' application of 6 August 2004 and thereafter, inclusive of its critical communication to WAL of 30 June 1995, the Authority indicated to the applicants the position which it had adopted or taken as inherently and essentially indicative of decision-making on its part, the same having for instance the 'character or quality of finality', and constituting and involving 'an outcome reflecting something in the nature of a determination of an application' within the scope of that dictum of Mason CJ in Bond I have earlier cited. That communication of the Authority constituted or involved a decision 'at least in a practical sense, of the issue of fact falling for consideration'. It was 'a substantive determination' as opposed to a 'procedural determination', to adopt the Chief Justice's further dictum in Bond .


case_text: In that context of the applicants' discussion of general principles and their operation, I was then referred to the decision of a Full Federal Court in Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50, where it was held by Lockhart and Beaumont JJ that a decision by the Secretary not to direct that clinical trials of a drug be stopped was a reviewable decision for the purposes of the ADJR Act. The provision in issue was item 3(e) of Schedule 5A of the Therapeutic Goods Regulations 1990 (Cth), that item being one of a number of conditions to be satisfied for exemption of the drug from the operation of Part 3 of the Therapeutic Goods Act 1989 (Cth), which condition read as follows: '(e) the Secretary must not, at any time: (i) have become aware that to conduct or continue the trial would be contrary to the public interest; and (ii) have directed that the trial not be conducted, or be stopped ...'. The appellant Association had requested the Secretary to stop the trials on the ground that they amounted to a breach of NSW and Victorian criminal law, and were thus ' contrary to the public interest '. The Secretary had then notified the appellant Association and advised that on the evidence available, 'nothing would warrant my acting to stop the trials'. At 62, Lockhart J observed in relation to that notification as follows: 'If the Secretary has reached the opposite conclusion, namely, that to continue the trials would be contrary to the public interest and that a direction should be given to stop them, and thereupon gave that direction, surely that must be a reviewable decision under the ADJR Act. The sponsor [of the trial] would clearly be a person aggrieved and would in my view be entitled to such a review of the decision under the ADJR Act. Why should the position be different if the Secretary reaches the opposite conclusion, as he did in this case ... It was a decision which had "the character or quality of finality"; it was an ultimate or operative decision ...' Beaumont J, who reached the same decision as Lockhart J, pointed out at 80 that '... the definition of "decision" in s 3(1) of the ADJR Act is not confined to those cases where a duty to make a decision is imposed ...'. Although he reached a different outcome to the majority, Gummow J's observations at 88 are I think also apposite for consideration in the present circumstances: 'It was submitted for the Secretary that s 5(1) of the ADJR Act would be attracted only if conferral of the power to give the direction carried with it a duty upon the Secretary. It was then submitted that in the case of condition (e) there was no such duty ... The submission, in essence, would limit the operation of s 5 of the ADJR Act to decisions in respect of which there was a public duty, performance of which might be required by a writ of mandamus ... This would be contrary to the scheme of the legislation ...' 31 The Authority sought to deny any conclusion as to the existence of a justiciable decision by characterising its first decision as declining to even consider the exercise of any discretion under s 111 of the Act. In the applicants' submission that purported characterisation was misconceived, and must be rejected, for the following reasons: (i) the decision not to exercise its power under s 111 to vary a condition of the licence was indeed final, operative and determinative, in the practical sense described in Bond and in Right to Life [cedilla] of AusCoast's ability to continue to broadcast under the auspices of the 1620 licence from the current site at Tingalpa; (ii) any such characterisation sits at least uncomfortably with the terms of the Authority's letter of 30 June 2005, containing as it does the assertion '[a]s a result the [Authority] will not exercise its discretionary power under section 111 of the [Act] and vary licence conditions in the terms proposed by [WAL]'; (iii) the decision not to exercise the power was one which was authorised by and therefore made under s 111 of the Act, since s 111 confers a discretionary power, and hence contemplates that a decision whether or not to exercise that discretion could be made, there being no other source of power for such a decision. I think that there is force in each of the foregoing submissions of the applicants. 32 The Authority did not dispute that a refusal to exercise a power may constitute a decision...made...under an enactment , for the purposes of the ADJR Act. Nevertheless it sought to distinguish Right to Life on the basis that in the circumstances of that case, as opposed to the present case, the decision-maker had purported to consider 'the full gamut...of all the relevant issues'. The Authority's contention was that its officer in this instance had in effect 'terminated the request [made by WAL for a variation in the site condition of the 1620 licence] at the first hurdle', without considering all of the issues that the Authority would normally take into account in assessing a variation. I am not persuaded that such contention of the Authority is sound, and that there is in any event any viable difference between the circumstances relevantly in Right to Life and those here prevailing. In both instances the decision-maker received a request for a decision to be made to a certain effect, and in both instances there was no provision made under the relevant legislation for such requests to be made by formal application. Moreover in both cases, detailed reasons for that request were given by the entity in favour of the decision it sought to be made. Most importantly for the outcome of this objection to competency, it was put by the applicants that the refusal of the Authority to make a decision in the terms requested by WAL had the practical effect of constituting an ultimate or operative decision, and hence one which bore the character of finality. 33 It becomes necessary to consider next the implications of the Authority's so-called 'second decision', being that said by the applicants to have been made on 18 August 2005 not to reconsider its first decision of 30 June 2005, to the effect that it would not exercise its discretionary statutory power to alter the condition on the 1620 licence so as to change the site of the licence. The Authority's objection to the Court's competency to review the second decision rested however on its objection to competency of review of the first decision, and was therefore said by the applicants to encounter the same or similar difficulties which I have already described in relation to the first decision. The applicants contended that '[t]he plain words of para 285(g) [of the Act] also tell against the [Authority]'. 34 The opening words to s 285, which I have of course already extracted, but nevertheless merit further emphasis, are that ' [a]n application may be made to [the Authority] for reconsideration of any of the following decisions ', the notion of reconsideration being of wide import. Moreover the ensuing language of sub-paragraph (g) includes the word concerning , which was also said by the applicants to be of wide import, such that there could be no contextual reason to construe s 285(g) narrowly. Hence the applicants contended on that basis that the Authority's decision not to vary the site condition at the centre of the disputation was clearly a decision concerning the conditions of the 1620 licence, that licence being of course an apparatus licence . 43 Again I am unable to obtain sufficient assistance from resort to authorities involving the application and operation of the Migration Act , which in the case of Bedlington explicitly stipulated that ' the Minister does not have a duty to consider whether to exercise the [power] ... in any ... circumstances '. The Full Court emphasised at 78 of its reasons for judgment that the particular language of subsection 48B(6) was the sole basis for their decision that the Minister was under no duty in any circumstances to exercise the relevant power under s 48B(1). The critical issue arising was whether the Departmental Secretary was under a duty to bring the application made for the exercise of the power under s 48B(1) to the Minister's attention in order that the Minister could personally determine whether or not to exercise that power. Their Honours held that the use of policy guidelines by the Secretary as the basis for refusing to bring the application to the Minister's attention, where such guidelines were specifically intended to identify those cases in which the Minister might consider the exercise of his or her power was valid. I have considerable difficulty in discerning the availability of assistance from that further authority, given that it relevantly involved a power that the provision required be exercised personally by the Minister, and concerned only the proposition that the Minister had no statutory obligation to make a decision, and again did not occur in an ADJR Act context. Moreover there is no express provision in the Act (ie the legislation the subject of the present proceedings) to the effect that the Authority need not make any relevant decision. All that discourse put forward by the Authority here in relation to migration cases, in any event, ultimately still begs the question as to whether a decision not to make a decision in a particular context nevertheless constitutes a decision ... made... under an enactment within s 5 of the ADJR Act. Taken to their logical conclusion, the Authority's submissions appear moreover to run contrary to the warning issued by Gummow J in Right to Life , which I have extracted above, to the effect that limiting the scope of the ADJR Act to decisions in respect of which there was a duty, performance of which might be required by a writ of mandamus would be contrary to the scheme of the ADJR Act. In that latter regard, I would refer again to the text of s 3(2) of the ADJR Act earlier extracted. 45 It is important to bear in mind, in any event, that the applicants have applied for review of the Authority's decision here under s 5(1) of the ADJR Act, and not under s 7 thereof, so that the only question with which I am presently concerned is whether or not the subject decision fulfilled the requirements of s 3(1) of the ADJR Act. In that context I would observe what Lockhart J said at 62 of his reasons for judgment in Right to Life concerning Brownsville Nominees : 'We were referred by counsel for the Secretary to the judgment of Northrop J in [ Brownsville Nominees ] as authority for the proposition that there was no "decision" within the meaning of s 5 of the ADJR Act because there was no duty imposed on the Secretary to make such a decision. Brownsville is not authority for that proposition...His Honour's decision was based squarely upon the duties imposed upon the Commissioner under the Assessment Act.' In similarly rejecting the application of Brownsville Nominees in the manner sought by the Secretary, Beaumont J concluded at 80 of his reasons for judgment that: 'I have difficulty accepting the submission. In the first place, as has been noted, the definition of "decision" in s 3(1) of the ADJR Act is not confined to those cases where a duty to make a decision is imposed, although such decisions are also picked up...'. Moreover at 88 of his reasons for judgment, Gummow J expressed his agreement with: '...what [was] said in the reasons for judgment of the other members of the Court as to the inadequacy of [ Brownsville Nominees ] as authority for the proposition that in the present case there could be no decision attracting the ADJR Act unless the Secretary was under a duty to act.' I need add nothing further as to the absence of any assistance of Brownsville to the Authority. 60 Moreover by way of reflection of dicta I have cited from Right to Life , and in particular from that of Lockhart J at 62, I would characterise the Authority's conduct culminating in its faxed response of 30 June 2005 as similarly indicative of a conclusion having been reached by the Authority in or to the effect of the first decision postulated in the applicants' amended application filed in Court on 25 August 2005. The Authority made thereby a decision under s 111 not to effect a variation to one of the conditions it had imposed on the 1620 licence pursuant to s 107(1)(g) of the Act, namely the condition stipulating the transmission site. The Authority's communication of 30 June 2005 constituted or involved moreover the very opposite or antithesis of the decision which the applicants had been seeking from the Authority, commencing from WAL's application of 6 August 2004 made to the Authority, being a decision the implications and consequences whereof clearly and in substance affected rights and obligations of the applicants concerning the 1620 licence.


case_outcome: discussed

case_text: It is convenient to consider immediately whether either of those authorities do exemplify or otherwise lend support to that contention of the Authority. WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 227 was concerned with the operation of s 427(1)(d) of the Migration Act , which provided that the Refugee Review Tribunal ('RRT') '... may require the Secretary to arrange for the making of any investigation ... that the Tribunal thinks necessary with respect to the review .' The Full Court in WAGJ (Heerey, RD Nicholson and Mansfield JJ) held that s 427(1)(d) did not impose a duty upon the RRT to consider whether to exercise that power to order an investigation, their Honours placing emphasis upon such statutory words may and Tribunal thinks necessary . I would observe that the Court in WAGJ did not purport to lay down any general principle or rule, their Honours' decision apparently being predicated on the above emphasised words in s 427(1)(d) , and the prevailing legislative context. The issue arising relevantly in the second of those decisions relied upon by the Authority, being WAJQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 79 , was not concerned with any particular provision of the Migration Act at all, the appellant in that litigation contending that the Tribunal had erred by failing to enquire into the veracity of certain documents and correspondence provided by the appellant in support of his application for a protection visa. It is not apparent that the appellant in WAJQ formulated his case by reference to the operation of s 427(1)(d) of that legislation. The Full Court cited WAGJ as authority for the wider proposition that there is no duty on the RRT to make inquiries, the failure to carry out whereof would give rise to judicial review. 41 I am unable to obtain sufficient assistance from resort to authorities arising in the context of the Migration Act , which has its own terms and conditions for administrative review far removed from those contained in the ADJR Act. Leaving aside contextual statutory differences, WAGJ and WAJQ do not purport to lay down any principle of general application to the effect that the existence of a discretionary power does not impute a duty to consider whether or not to exercise it. Nor was either of WAGJ or WAJQ concerned with the meaning of ' decision ... made ... under an enactment ', as that expression appears in the ADJR Act, or otherwise.


case_title: WAJQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 79


case_outcome: distinguished

case_title: Bedlington v Chong (1998) 87 FCR 75

case_text: It was the Authority's further contention that its officers paid due regard to policy formulated by the Authority concerning the location of MF NAS transmitters, and took the view, as they were said by the Authority to be entitled to do, that the proposed relocation advanced by the applicants did not meet the policy requirements apparent in the so-called '30/160 rule', or the 'make it a better rule' apparent in the NAS PIP policy, and that as a consequence, it was decided by the Authority that the applicants' proposal should not be further entertained. The circumstances of the present case were said by the Authority in that context to be 'broadly analogous' to those considered in a joint judgment of a Full Federal Court (comprising Black CJ, Kiefel and Emmett JJ) in Bedlington v Chong (1998) 87 FCR 75, which was concerned with the operation of ss 48A and 48B of the Migration Act . The Authority relied upon Bedlington for the proposition that it is open to a decision-maker, who is under no duty to consider exercising a discretionary power, to draft a policy which identifies the types of cases in which the exercise of that discretion might be exercised. 43 Again I am unable to obtain sufficient assistance from resort to authorities involving the application and operation of the Migration Act , which in the case of Bedlington explicitly stipulated that ' the Minister does not have a duty to consider whether to exercise the [power] ... in any ... circumstances '. The Full Court emphasised at 78 of its reasons for judgment that the particular language of subsection 48B(6) was the sole basis for their decision that the Minister was under no duty in any circumstances to exercise the relevant power under s 48B(1). The critical issue arising was whether the Departmental Secretary was under a duty to bring the application made for the exercise of the power under s 48B(1) to the Minister's attention in order that the Minister could personally determine whether or not to exercise that power. Their Honours held that the use of policy guidelines by the Secretary as the basis for refusing to bring the application to the Minister's attention, where such guidelines were specifically intended to identify those cases in which the Minister might consider the exercise of his or her power was valid. I have considerable difficulty in discerning the availability of assistance from that further authority, given that it relevantly involved a power that the provision required be exercised personally by the Minister, and concerned only the proposition that the Minister had no statutory obligation to make a decision, and again did not occur in an ADJR Act context. Moreover there is no express provision in the Act (ie the legislation the subject of the present proceedings) to the effect that the Authority need not make any relevant decision. All that discourse put forward by the Authority here in relation to migration cases, in any event, ultimately still begs the question as to whether a decision not to make a decision in a particular context nevertheless constitutes a decision ... made... under an enactment within s 5 of the ADJR Act. Taken to their logical conclusion, the Authority's submissions appear moreover to run contrary to the warning issued by Gummow J in Right to Life , which I have extracted above, to the effect that limiting the scope of the ADJR Act to decisions in respect of which there was a duty, performance of which might be required by a writ of mandamus would be contrary to the scheme of the ADJR Act. In that latter regard, I would refer again to the text of s 3(2) of the ADJR Act earlier extracted. 61 It follows in my opinion that the Authority's objection to competency must fail, at least for the reason that such objection is founded on the erroneous proposition that no decision has been relevantly made under an enactment, pursuant to s 3(1) of the ADJR Act. Whilst that conclusion renders unnecessary any conclusion to be reached as to whether a matter relevantly arose under any law made by the Parliament for the purpose of the operation of s 39B(1A) of the Judiciary Act , I am unable to identify any viable basis in favour of a negative response to that latter proposition of the applicants as well. It is moreover not accurate for the Authority to contend that its refusal was a decision made pursuant to a policy as opposed to an enactment, any resemblance here to the factual situation prevailing in Bedlington being merely chimerical, for the reasons that I have indicated above. 62 It follows from my foregoing conclusions that the Authority's refusal to vary the 1620 licence site condition involves a matter arising under a law made by Parliament of the Commonwealth, the legislative authority to make that decision being conferred by s 111 of the Act. Accordingly I would further find that the purported ground of objection pleaded by the Authority in the alternative, namely that '... there is no proper basis upon which to grant relief to the applicant', must also fail, owing to the availability at least of declaratory relief to the applicants for the reasons I have earlier explained. 63 Accordingly the application for review of the first decision sought by the applicants' amended application filed in Court on 25 August 2005 must proceed to a final hearing. 64 It follows moreover, in the light of all of my foregoing findings, that the further applications to review the Authority's decision of 18 August 2005 not to reconsider its prior principal decision of 30 June 2005, and also the Authority's yet further decision made at the same time to refuse WAL's request for a statement of reasons in respect of the first decision, must also proceed to a final hearing, the first decision not being one excluded from the operation of s 13 of the ADJR Act. 65 I should add for completeness that the further concluding contention raised by the Authority in any event to the effect that since AusCoast presently broadcasts from premises at Tingalpa which are not the premises specified in the conditions of the 1620 licence, being conduct asserted by the Authority to be 'unlawful and improper', the Court should as a matter of discretion refuse that relief. That subject must be a question for another day, and is irrelevant to the issue of competency per se for the reasons I have already indicated. Doubtless on that further occasion, the applicants would seek to pursue in more detail the circumstances and implications of the conduct of the Authority relating to the variation of the site condition on the 1611 licence to the Bracken Ridge Reservoir transmission site, being a conceivable issue apparently to be raised by the applicants from which I would necessarily withhold from further comment at this interlocutory stage of the proceedings. Whether that subject is in any event a matter for legitimate consideration in the context of the administrative relief sought by the applicants would be a matter for submission at that further hearing.


case_text: In further support of the contention that a decision by an officer to the effect that a request does not fall within an established policy as to which decisions will or will not be entertained, is not a decision...made...under an enactment , the Authority referred me to two additional decisions of this Court. The first was Brownsville Nominees Pty Ltd v Commissioner of Taxation (1988) 19 FCR 169, where Northrop J held that the Commissioner's refusal to issue an amended assessment under s 170 of the Income Tax Assessment Act 1936 (Cth) was not subject to review under s 7 of the ADJR Act. Section 7(1) of the ADJR Act provides for the making of applications for review of the failure of a decision-maker to make a decision where, inter alia , that decision-maker has a duty to make a decision to which [the ADJR Act] applies . Northrop J held at 173 of his reasons for judgment that s 170 did not impose any duty on the Commissioner to make an amended assessment of income tax upon the request of a taxpayer, and thus the application for review of the Commissioner's refusal to issue the amended assessment was not competent. I would observe that the Commissioner's refusal to issue an amended assessment was expressed to the taxpayer in that case in the following terms (at 171): '...In the circumstances your request to have the subject assessments amended should remain in abeyance pending resolution of the appeal...'. Of course the issue thus arising fell for consideration in the context of the complexity of the code of that legislation as to the circumstances where an amendment to an assessment may be made. Brownsville Nominees did not involve the situation of a successful challenge to an assessment of tax by the Australian Tax Office made by a taxpayer, whether formally or informally. The Authority contended nevertheless that there was no practical difference between that situation and the present, the Authority simply deciding here not to consider the request for a variation at all. 45 It is important to bear in mind, in any event, that the applicants have applied for review of the Authority's decision here under s 5(1) of the ADJR Act, and not under s 7 thereof, so that the only question with which I am presently concerned is whether or not the subject decision fulfilled the requirements of s 3(1) of the ADJR Act. In that context I would observe what Lockhart J said at 62 of his reasons for judgment in Right to Life concerning Brownsville Nominees : 'We were referred by counsel for the Secretary to the judgment of Northrop J in [ Brownsville Nominees ] as authority for the proposition that there was no "decision" within the meaning of s 5 of the ADJR Act because there was no duty imposed on the Secretary to make such a decision. Brownsville is not authority for that proposition...His Honour's decision was based squarely upon the duties imposed upon the Commissioner under the Assessment Act.' In similarly rejecting the application of Brownsville Nominees in the manner sought by the Secretary, Beaumont J concluded at 80 of his reasons for judgment that: 'I have difficulty accepting the submission. In the first place, as has been noted, the definition of "decision" in s 3(1) of the ADJR Act is not confined to those cases where a duty to make a decision is imposed, although such decisions are also picked up...'. Moreover at 88 of his reasons for judgment, Gummow J expressed his agreement with: '...what [was] said in the reasons for judgment of the other members of the Court as to the inadequacy of [ Brownsville Nominees ] as authority for the proposition that in the present case there could be no decision attracting the ADJR Act unless the Secretary was under a duty to act.' I need add nothing further as to the absence of any assistance of Brownsville to the Authority.


case_text: A further authority referred to by counsel for the Authority in the course of argument was Carter v Minister for Aboriginal Affairs [2005] FCA 667. In that case, Ryan J held, inter alia , that the Minister's refusal to exercise his power under s 21D(2) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) to make a temporary declaration of preservation was not a decision for the purposes of s 3(1) of the ADJR Act. 47 Subsections 21D(1) and (2) of that particular legislation were in the following terms: '(1) If a local Aboriginal community decides, whether after an application is made to it or on its own motion, that: (a) a place or object in the community area is an Aboriginal place or Aboriginal object; and (b) that place or object is under threat of injury or desecration; the community may advise the Minister that it considers a temporary declaration of preservation should be made. (2) On receiving advice under subsection (1) or determining on his or her own motion that a temporary declaration of preservation should be made, the Minister: (a) shall, within 14 days, cause notice of the advice or determination to be given to any person who is likely to be affected by the making of a declaration; and (b) shall give any such person an opportunity to be heard.' 48 Ryan J found that the Minister there had not received advice from a local Aboriginal community in accordance with s 21D(1), and thus the issue of relevance was whether or not the Minister's decision not to determine[e] on his...own motion that a temporary declaration of preservation should be made was a reviewable decision for the purposes of s 5(1) of the ADJR Act. The Minister had informed the applicants in writing that he would 'consider' their request for a determination on his own motion, but later told the applicants that he would not do so pending the resolution of another proceeding before this Court involving the same artefacts. His Honour found that the Minister's decision was a decision to decline to determine[e]...on his own motion and was thus made 'preparatory' to the making of a decision to determine to make a temporary declaration. Alternatively, his Honour characterised the decision declining to so determine[e] as 'a conclusion reached as a step on the way to an ultimate decision', which is not reviewable, for that reason also, thereby referring to dicta to like effect at 337 of Mason CJ's reasons for judgment in Bond . 49 The applicants submitted, in my opinion correctly, that the particular statutory framework addressed in Carter featured a 'staged process of decision-making' whereby before making the ultimate decision of imposing a temporary declaration of preservation , the Minister may make a decision to proceed with such a determination on his or her own motion, such a decision being clearly 'a step along the way'. By contrast the present legislation (ie the Radiocommunications Act ) features no such stepped or staged decision-making, the power to make the ultimate or operative decision being conferred in its terms by s 111 and relevantly, s 111(1)(c). On that basis at least, Carter is distinguishable from the present case. 58 It will have been appreciated from observations that I have made in the course of my outline of these reasons for judgment that I would reject the contention of the Authority that its decision-making of 30 June 2005 merely constituted a withholding from consideration of a request of either or both of the applicants to change the site condition of the 1620 licence, whether pursuant to an exercise of a discretionary function or power generally or at large on the Authority's part, or otherwise, and in particular whether by way of exercise of a discretionary power conferred under s 111 of the Act, or otherwise. The applicants, or at least WAL on behalf of both of them, in substance and in reality, applied unambiguously to the Authority on 6 August 2004 to change the site condition for the subject apparatus licence being a change which the Authority was empowered to implement pursuant to s 111 of the Act. A statutory decision-maker does not avoid the operation of the review provisions of the ADJR Act by purporting to create, whether explicitly or implicitly, a standpoint or position involving a decliner of entry upon statutory decision-making, or for that matter of consideration of decision-making unless the statutory scheme for decision-making so provides (cf Carter ). So much however is in reality the position or standpoint which the Authority has seemingly endeavoured to adopt and maintain.


case_text: The Authority submitted next that a similar conclusion to that which it advocated here was reached by an application of the principles stated by the High Court in Griffith University v Tang [2005] HCA 7 ; (2005) 213 ALR 724. The issue there arising was whether the decision of a university to exclude a candidate for a doctorate of philosophy on account of academic misconduct was made under an enactment. In a majority finding to the contrary of that candidate's complaint, the following appears at [89] in the joint reasons for judgment of Gummow, Callinan and Heydon JJ to the negative of that proposition (their Honours' emphasis appears in non-italics): 'The determination of whether a decision is "made... under an enactment" involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be "made... under an enactment" if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice.' Purportedly in the light of that dicta , the Authority contended that its '... decision not to entertain [WAL's] request, however it be characterised, did not confer, alter or otherwise affect legal rights', but '... left them precisely as they were before the applicants requested the [Authority] to exercise its non-compellable discretionary power'. Even if that analysis of the Authority be correct in terms of the present circumstances of either one or both of the applicants, notwithstanding implications flowing historically from their enjoyment of transmission from the Tingalpa site, it is an analysis which in any event appears to fall short of the foregoing dicta in Griffith University that '... it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise'. I would add that counsel for the Authority conceded during the hearing that Griffith University would be of no assistance to him if I were to find that the Authority had in fact exercised its power under s 111 , as opposed to merely declining to do so. At least the Authority's communications with the applicants in 2004 point to the former of those propositions as being the case, as do the Authority's file notes of the same year, as is I think sufficiently apparent from what I have earlier extracted therefrom. 51 The submissions of the respondent Authority sought to conclude that '[f]or all of these reasons, the decision of the [Authority's] officers was not a decision under an enactment', and was '... not, therefore, a decision to which the [ADJR Act] applies ... [and] [s]imilarly, the lawfulness of the decision is not a matter arising under a law of the Parliament if it were made under a non-legislative policy'. The Authority did not elaborate on that latter submission. However it is clear that it was predicated on the Authority's construction of its decision that was contended by the applicants to be 'highly technical' and 'prefer[ring] form over substance, contrary to the remedial character of the ADJR Act'. In essence, as I have foreshadowed already, the respondent Authority contended that the 'decision' was nothing more than the refusal of its own officers to consider whether to exercise the Authority's power under s 111 of the Act, that determination having been made by the relevant officers by reference to the policies of the Authority encapsulated in NAS PIP and NAS BOP.


case_text: The Authority accepted that '... this Court has jurisdiction under s 39B(1A)(c) of the Judiciary Act to determine whether the [Authority] was under a duty to consider the applicants' request to vary [AusCoast's] licence condition', but asserted that '[n]onetheless, if this Court accepts that the [Authority] was not under such a duty (and remains free from such a duty), the Court would be unable to make an order in the nature of mandamus'. Absent such an order, so the Authority further submitted, there was no proper basis for any of the relief sought by the applicants', thereby citing Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicants S134/2002 (2003) 211 CLR 411 at [44]-[48] (Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ) and at [98]-[100] (Gaudron and Kirby JJ), in each such instance containing observations relating to the operation of s 417(1) of the Migration Act , whereby the Minister is empowered to substitute for the RRT's decision a decision more favourable to an applicant for relief, if ' ... the Minister thinks it is in the public interest to do so '. Once again I have difficulty in identifying any sufficiency of assistance of authority from a context involving quite different legislation; indeed s 417(7) of the Migration Act at least then explicitly stipulated that ' [t]he Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.' In any event, as the applicants rightly pointed out, whether or not mandamus might be available against the Authority in relation to the operation of s 111 of the Act, relief pursuant to s 39B(1A) of the Judiciary Act for declaratory relief was sought by the applicants' amended application which Jacobson J accepted for filing in Court on 25 August 2005. I have of course earlier referred to the applicants' case for relief being framed on that basis by way of additional or alternative relief to that afforded by the ADJR Act. 53 As to what the Authority referred to as its 'related alternative motion', the Authority contended that since AusCoast is currently broadcasting from premises which are not the premises specified on the conditions of its licence, such conduct was unlawful and improper. Accordingly, in case the Court was otherwise minded to entertain a grant of relief following a substantive hearing, it was submitted that relief should be refused as a matter of discretion; since the applicants here seek to protect and validate unlawful and improper conduct, and thereby attract the operation of the maxim of equity 'he who comes into equity must come with clean hands', discussed in R Meagher, D Heydon and M Leeming, Meagher, Gummow and Lehane's Equity Doctrines & Remedies , (4 th ed) at [3-110]. The relief presently sought by the applicants is however in the nature of administrative and not equitable relief, the applicants having not purportedly founded any case on equitable estoppel. In any event I am of course presently concerned with the Authority's notice of objection to competency. The relevance of any such matters so raised by the Authority is limited to the Court's determination of final relief, should the Authority's objection to competency fail wholly or in part. 54 I should add for completeness that in a short supplementary submission, the Authority repeated the essence of its earlier submissions, and submitted further in the alternative as follows ( inter alia ): 'If the court accepts that there is no duty [for the Authority to consider a request made for a variation of an apparatus licence under s 111] but considers that, nonetheless, the Authority made a decision under s 111, the matter would need to go to a substantive hearing. There would then be an argument about whether a reviewable error was made in that legislative context. There would also be a discretionary issue too.' It is sufficient for me to respond to that supplementary submission at the present stage of the proceedings by referring to the interlocutory decision upon which I have arrived below in the light of the respective submissions of the parties, which have been addressed on the basis of the Authority's objection to competency.


case_title: Telecommunications Products Case , Cour de Cassation (France), 2 April 2008

case_text: The oral character of the contract(s) apart, two further factors have complicated the resolution of this matter. The first is the real uncertainty as to the legal context in which the question of characterisation of the parties' relationship is to be addressed. If the matter is properly to be regarded as one of sale and resale, the vendor-purchaser relationship between TVO and Farmlink would be subject to the Sale of Goods Act 1895 (SA) and the resale relationship between Farmlink and Freshmart, but not Mak, probably to the Sale of Goods (Vienna Convention) Act 1986 (SA). This latter matter, though, has not been addressed by the parties and has not been the subject of evidence to the extent that it might raise questions as to the law of Singapore and Hong Kong respectively: see United Nations Convention on Contracts for the International Sale of Goods , Art 1 ("CISG"). Singapore has ratified the CISG and it is in force in that country. Though the CISG was in force in China, but not in Hong Kong, at the time of the "hand over" to China, China has apparently not taken the necessary steps to have the CISG apply to Hong Kong. The Cour de Cassation in France has, in consequence, recently concluded that the CISG was not applicable to Hong Kong: see Telecommunications Products Case , Cour de Cassation, 2 April 2008; and see generally Schroeter UG, "The Status of Hong Kong and Macao under the United Nations Convention on Contracts for the International Sale of Goods" (2004) 16 Pace International Law Review 307. If, on the other hand, the relationship of TVO and Farmlink is that of principal and agent, TVO's relationship with Freshmart, but not with Mak, was subject probably to the provisions of the Sale of Goods (Vienna Convention) Act . I mention this for the following reason. The CISG, but not the domestic Sale of Goods Act , has a developed regime for a buyer (i) to notify a seller of lack of conformity with the quality required by the contract: see CISG Arts 35, 39 and 44 and see Schlechtriem and Schwenzer (eds), Commentary on the UN Convention on International Sale of Goods at 411 ff and 460 ff (2 nd English ed, 2005); and (ii) to effect a price reduction for non-conformity: CISG Art 50 and Schlechtriem and Schwenger at 596 ff. I note this because both Farmlink and Mak effected price reductions. The evidence on whether they were negotiated or not is controversial. 6 The second complicating factor relates to those price reductions. It is clear from the evidence that, at presently relevant times, quality problems of varying severity were prevalent in both the domestic and overseas sales of cherries generally and that, in respect of overseas sales, exporters routinely passed on price reductions to Australian suppliers in response to this phenomenon. The evidence both of TVO's dealings with other exporters, and of its dealings with Farmlink since the 2000/2001 cherry season, illustrate this practice. The significance, if any, of it in the characterisation of the parties' relationship and in the terms of it has been vigorously debated before me. 7 I have in the event concluded that Farmlink was not TVO's agent. It was a purchaser for resale. The individual purchases in respect of each consignment to Singapore and Hong Kong were for agreed prices. Because quality defects were a recurrent concern and because Freshmart and Mak effected price reductions (whether or not, at least in Freshmart's case, in reliance upon Art 50 of the CISG), the individual sales by TVO took place in a context in which reductions in the "purchase price" payable by Freshmart and Mak were to be anticipated in some degree for quality defects. I am not satisfied, though, that in passing on price reductions Farmlink had any contractual right so to do. Formally it may have had rights against TVO under the Sale of Goods Act (eg s 14 and s 52) for which it may have been entitled to claim damages for breach of warranty in respect of particular individual contracts or to set off such a breach in diminution or extinction of the price.


case_text: Mr Hannaford's routine acceptance of reductions (at least those said to be made for quality reasons) in the purchase price owing to him was, in my view, a reasonable and sensible business response to a recurrent phenomenon in an ongoing business relationship in a market for perishables. As I observed in GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50 ; (2003) 128 FCR 1 at [230] : ... notwithstanding their contract, parties in an ongoing business relationship ... commonly "regulate their relationships in accordance with what they consider is fair and reasonable or commercially necessary at particular points in time rather than by reference to a priori rights and duties arising under a contract": Integrated Computer Services Pty Ltd [v Digital Equipment Corporation (Aust) Pty Ltd (1988) 5 BPR 11, 110] at 11,117. Such "mutual accommodation" may, or may not, over time evidence a contract variation. In the present case as pleaded it did not. Mr Hannaford was not obliged to accept whatever price reduction Farmlink had accepted from, or perhaps even agreed with, Freshmart and Mak. He retained his right to renegotiate his contract with Farmlink and was entitled to insist that price reductions ascribed to quality defects were reasonable and legitimate, ie were in fact made for reasons of quality and were ones for which he bore the responsibility. 9 (i) Anthony Hannaford. Mr Hannaford is, apparently, the biggest cherry grower in South Australia. He commenced his own business in 1985 and registered the business name Torrens Valley Orchards several years later. During the 2003/2004 cherry season he owned and he still owns three orchards in the Adelaide Hills. After an early dealing with Mr Plummer in the late 1980s, he recommenced dealings with Mr Plummer and Ms Churchill in the mid-nineties about which time, or perhaps a little later, he commenced supplying them with cherries. 10 (ii) Heather Churchill. Ms Churchill has been involved in the export industry since the mid to late 1980s. She moved to South Australia in 1993 and took up a position as export coordinator with an apple exporter, South Australian Horticultural Export Co. While working in that position she met Mr Plummer who, in 1999, offered her a position with Australian Farmlink Pty Ltd, a new business which he was involved in starting up. As export manager, her responsibilities were to find market sales for produce, to arrange for its export and delivery and to discharge all the associated accounting and administrative functions. She was responsible to the directors of Farmlink. The overseas markets with which she had dealings included Singapore, Malaysia, Thailand, Taiwan, Hong Kong, the UK and some Pacific islands. Her evidence was that although Farmlink dealt with a variety of products for export, during the cherry season she concentrated 100 per cent on cherries. Ms Churchill remained the export manager of Farmlink until 2006.


case_text: I am quite conscious of the foundation that both a prior course of dealing between parties and practices and usages thereby established between them can provide (a) for the drawing of inferences as to the actual terms on which the parties have contracted and (b) for the imputation of implied terms in their contract: for the difference between inference and imputation, see Hawkins v Clayton [1988] HCA 15 ; (1988) 164 CLR 539 at 570-571 and 573. This is evidenced both in the provisions of international instruments such as the CISG Art 9: see Schlechtriem and Schwenzer at 141 ff; see also Unidroit Principles of International Commercial Contracts 2004 , Arts 1.9 and 5.1.2; and in the domestic laws of common law countries: see eg Uniform Commercial Code , SS1-303; Restatement of Contracts , Second , SS223; Farnsworth on Contracts , SS7.13 (3 rd ed, 2004); Furmston (ed), The Law of Contract at [3.18] (2 nd ed, 2003); Cheshire and Fifoot, Law of Contract at [10.18] and [10.29] (9 th Aust ed, 2008). I equally accept that it may well have been the case, as I will later suggest, that some at least of the terms upon which TVO and Farmlink actually intended to contract in the 2003/2004 season were to be inferred from their prior course of dealings. But that is not the question on which I must rule. 44 The amendment sought to be made at such a late stage is not one which I consider should be permitted. It is yet another variant on the term initially proposed the variation seemingly being a response to accommodate questioning during final submissions. It is of such a character that it ought to have been the subject of evidence both of Ms Churchill and of Mr Hannaford. It raises quite a spectrum of different issues to those raised by what had been pleaded by the respondents. And it embodies an exception the provenance of which relates only to evidence in the 2003/2004 season and not to "past dealings". It is simply far too late in the day to permit this amendment to be made, the more so because I consider the proposal itself to be uncertain in scope and ambiguous in content. 45 I will in any event later suggest both that the term itself attributes a character and a consequence to past dealings which I do not consider is reasonably suggested by them and that important aspects of Ms Churchill's decisions in 2003/2004 in relation to purchase discounts had no reflection at all in the prior course of dealing.


case_text: Notwithstanding that the relationships of principal and agent and seller and buyer are mutually exclusive, the one being a fiduciary relationship, the other a "commercially adverse relationship": Bowstead & Reynolds on Agency at [1-032] (18 th ed, 2006); the distinction between them in cases where sales or purchases have been effectuated by an intermediary can be a fine one not easy to draw: see Atiyah, The Sale of Goods at 28 (10 th ed, 2001). Unsurprisingly, courts have emphasised that decided cases are for the most part of limited assistance given the quite fact (and agreement) specific nature of the inquiry to be made: see eg Fraser-Ramsay (New Zealand) Ltd v De Renzy (1912) 32 NZLR 553 at 575; see generally, Dal Pont, Law of Agency at [2.3] (2 nd ed, 2008); the more so when, as in the present matter, the contract in question (whether of agency or sale) is an oral one: cf Mercantile International Group plc v Chuan Soon Huat Industrial Group Ltd [2002] EWCA Civ 288 at [30] - [31] .


case_outcome: considered

case_text: Notwithstanding that the relationships of principal and agent and seller and buyer are mutually exclusive, the one being a fiduciary relationship, the other a "commercially adverse relationship": Bowstead & Reynolds on Agency at [1-032] (18 th ed, 2006); the distinction between them in cases where sales or purchases have been effectuated by an intermediary can be a fine one not easy to draw: see Atiyah, The Sale of Goods at 28 (10 th ed, 2001). Unsurprisingly, courts have emphasised that decided cases are for the most part of limited assistance given the quite fact (and agreement) specific nature of the inquiry to be made: see eg Fraser-Ramsay (New Zealand) Ltd v De Renzy (1912) 32 NZLR 553 at 575; see generally, Dal Pont, Law of Agency at [2.3] (2 nd ed, 2008); the more so when, as in the present matter, the contract in question (whether of agency or sale) is an oral one: cf Mercantile International Group plc v Chuan Soon Huat Industrial Group Ltd [2002] EWCA Civ 288 at [30] - [31] . 51 (i) As an agent for sale ordinarily acts on behalf of its principal: but cf in relation to a broker selling in its own name: Bailey & Co Ltd v Balholm Securities Ltd [1973] 2 Lloyd's Rep 404 at 408; Jackson Securities Ltd v Cheesman (1986) 4 NSWLR 484 at 489-490; is it apparent from the facts that the seller has actually conferred on the intermediary an authority to negotiate and/or to sell on the seller's behalf thus bringing into existence direct contracts between the seller and the third party buyer: Mercantile International Group plc at [30]-[34]? 52 (ii) Often interlocking factors of some significance are (a) by whom is the sale price to the third party set? and (b) how is the intermediary remunerated/rewarded for the sale to the third party? If the intermediary is remunerated by commission pre-arranged with the seller this will ordinarily indicate an agency relationship: eg Weiner v Harris [1910] 1 KB 285; although in exceptional circumstances a buyer for resale may be paid what is described, or is misdescribed, as a commission: eg Gannow Engineering Co Ltd v Richardson [1930] NZLR 361 ; Jackson v Royal Bank of Scotland [2000] EWCA Civ 203 at [17] - [18] . In the absence of fully informed consent, it would be a breach of fiduciary duty for an agent to profit on the sale of its principal's property by, for example, marking up the principal's stipulated sale price and retaining the difference. That an intermediary so acts may itself be indicative that the parties relationship was that of seller and buyer for resale and not agency for sale: Ex parte White; In re Nevill (1870) LR 6 Ch App 397. Nonetheless, a principal may agree to an agent deriving its remuneration from a mark-up on the price the principal stipulates it is to receive from the sale: eg Ex parte Bright; In re Smith (1879) 10 Ch D 566. In Mercantile International Group plc in circumstances in which the agreements between the parties pointed unambiguously to an agency relationship, it was held that that conclusion was unaffected by the circumstances that the principal knew that the intermediary charged more to purchasers than it confirmed to the principal; the principal did not mind nor care to know the detail of the matter, but was satisfied to get the price it stipulated; and the principal was content that the intermediary should keep for itself an undefined margin, it obtaining no remuneration by way of commission or otherwise from the principal: at [5] and [36]. 185 The evidence, in my view, simply cannot sustain a conclusion that Farmlink acted on TVO's behalf in a "representative": cf Bowstead & Reynolds at [1-001]; Colonial Mutual Life Assurance Society at 48-50; or "fiduciary": cf Restatement of Agency , Second , SS1.01; capacity in selling its cherries. Farmlink was a purchaser buying for the purposes of resale. It is significant in this that (i) the parties agreed in advance the prices at which TVO would sell its cherries they were not simply indicative prices (I will refer below to the significance in this of purchase discounts); (ii) while the consignments were into markets with which TVO had some, albeit rudimentary knowledge, they were simply two of the overseas markets into which TVO cherries were consigned by exporters in the 2003/2004 season; (iii) Farmlink, in contrast, was knowledgeable about, and experienced in, those two markets at that time: cf Witt at 18-19; (iv) TVO did not assume responsibility for the export or the costs associated with the export this was at Farmlink's expense: cf Witt at 18-19 and Farmlink, not TVO, bore responsibility for misadventures happening to the cherries after delivery to it; (v) TVO was not in a position to exercise practical control over Farmlink (other than by refusing orders); (vi) TVO was unaware of Farmlink's price; (vii) while Mr Hannaford doubtless understood that Farmlink would obtain its own return on the sales (howsoever this was done), there was nothing unusual about his having no interest in that matter as his relationship with Farmlink did not otherwise point to an agency relationship: cf Mercantile International Group plc at [5] and [36]; and (ix) TVO happened to know the Singapore buyer was a company with which Mr Koh was associated but did not know the identity of the Hong Kong buyer. In short, having regard to the context in which they dealt with each other, the relationship they formed in the making and filling of orders was that of seller and buyer for resale. The contrary inference that TVO appointed Farmlink its agent for sale is neither a reasonable, nor the most probable, deduction from the known facts.


case_text: Before identifying those factors which have been found to be of varying significance as indicators of, variously, agency or sale, it is appropriate, first, to refer generally to a number of relatively uncontroversial propositions of agency law. In so doing, I repeat for convenience in part what I said in South Sydney District Rugby League Football Club Ltd v News Ltd (2000) 177 ALR 611 at [131] ff. (1) Those definitions of agency that take the principal and agent relationship itself as their particular focus: contrast International Harvester Co of Australia Pty Ltd v Carrigan's Hazeldene Pastoral Co [1958] HCA 16 ; (1958) 100 CLR 644 at 652; emphasise that that relationship "can only be established by the consent of the principal and the agent": Garnac Grain Co Inc v HMF Faure & Fairclough Ltd [1968] AC 1130 at 1137; see, for example, Bowstead & Reynolds at [1-001]; Restatement of Agency, Third , SS1.01; 3 Am Jur 2d, "Agency", SS15. (2) The consents so given need not necessarily be to a relationship that the parties understand, or even accept, to be that of principal and agent: Branwhite v Worcester Works Finance Ltd [1969] 1 AC 552 at 587. It is sufficient if "they have agreed to what amounts in law to such a relationship": Garnac Grain Co Inc at 1137; Nichols v Arthur Murray Inc 56 Cal Rptr 728 (1967) at 730-731; Restatement of Agency, Second, SS1 comment. (3) Though there is no uniformly agreed definition of agency: see the discussion in Fisher, Agency Law at 8-11 (2000); the two whose authoritative character has resulted in their wide citation are those of the Restatement of Agency, Third, SS1.01 and of Bowstead & Reynolds at [1-001] (the latter being based upon the Restatement provision). The Restatement's definition is that: SS1.01 Agency is the fiduciary relationship that arises when one person (a "principal") manifests assent to another person (an "agent") that the agent shall act on the principal's behalf and subject to the principal's control, and the agent manifests assent or otherwise consents so to act. Bowstead & Reynolds' definition is that: [1-001] Agency is the fiduciary relationship which exists between two persons, one of whom expressly or impliedly manifests assent that the other should act on his behalf so as to affect his relations with third parties, and the other of whom similarly manifests assent so to act or so acts pursuant to the manifestation. The necessary consents apart, the required characteristic of the relationship is that one party acts on behalf of, and is authorised to act on behalf of, the other. This "representative" characteristic must be able to be discerned in the factual relation of the parties: Colonial Mutual Life Assurance Society Ltd v The Producers and Citizens Co-operative Assurance Co of Australia Ltd [1931] HCA 53 ; (1931) 46 CLR 41 at 48-50. (4) Though the characteristic of "control" is accentuated in the Restatement's definition: see comment f to SS1.01; its significance is far more muted in Anglo-Australian law: see South Sydney District Rugby League Football Club at [136]. Thus, it is commented in Bowstead & Reynolds (at [1-017]) that: It might seem therefore that control is not a significant feature of the internal relationship, except in so far as the relationship by definition posits a person, the principal, giving authority, and the agent's duty to obey instructions if he wishes to continue as agent. Nevertheless, if the principal gives up all control of his supposed agent the relationship is only doubtfully one of agency. I will return to the significance of the presence or absence of control later in these reasons.


case_text: Before identifying those factors which have been found to be of varying significance as indicators of, variously, agency or sale, it is appropriate, first, to refer generally to a number of relatively uncontroversial propositions of agency law. In so doing, I repeat for convenience in part what I said in South Sydney District Rugby League Football Club Ltd v News Ltd (2000) 177 ALR 611 at [131] ff. (1) Those definitions of agency that take the principal and agent relationship itself as their particular focus: contrast International Harvester Co of Australia Pty Ltd v Carrigan's Hazeldene Pastoral Co [1958] HCA 16 ; (1958) 100 CLR 644 at 652; emphasise that that relationship "can only be established by the consent of the principal and the agent": Garnac Grain Co Inc v HMF Faure & Fairclough Ltd [1968] AC 1130 at 1137; see, for example, Bowstead & Reynolds at [1-001]; Restatement of Agency, Third , SS1.01; 3 Am Jur 2d, "Agency", SS15. (2) The consents so given need not necessarily be to a relationship that the parties understand, or even accept, to be that of principal and agent: Branwhite v Worcester Works Finance Ltd [1969] 1 AC 552 at 587. It is sufficient if "they have agreed to what amounts in law to such a relationship": Garnac Grain Co Inc at 1137; Nichols v Arthur Murray Inc 56 Cal Rptr 728 (1967) at 730-731; Restatement of Agency, Second, SS1 comment. (3) Though there is no uniformly agreed definition of agency: see the discussion in Fisher, Agency Law at 8-11 (2000); the two whose authoritative character has resulted in their wide citation are those of the Restatement of Agency, Third, SS1.01 and of Bowstead & Reynolds at [1-001] (the latter being based upon the Restatement provision). The Restatement's definition is that: SS1.01 Agency is the fiduciary relationship that arises when one person (a "principal") manifests assent to another person (an "agent") that the agent shall act on the principal's behalf and subject to the principal's control, and the agent manifests assent or otherwise consents so to act. Bowstead & Reynolds' definition is that: [1-001] Agency is the fiduciary relationship which exists between two persons, one of whom expressly or impliedly manifests assent that the other should act on his behalf so as to affect his relations with third parties, and the other of whom similarly manifests assent so to act or so acts pursuant to the manifestation. The necessary consents apart, the required characteristic of the relationship is that one party acts on behalf of, and is authorised to act on behalf of, the other. This "representative" characteristic must be able to be discerned in the factual relation of the parties: Colonial Mutual Life Assurance Society Ltd v The Producers and Citizens Co-operative Assurance Co of Australia Ltd [1931] HCA 53 ; (1931) 46 CLR 41 at 48-50. (4) Though the characteristic of "control" is accentuated in the Restatement's definition: see comment f to SS1.01; its significance is far more muted in Anglo-Australian law: see South Sydney District Rugby League Football Club at [136]. Thus, it is commented in Bowstead & Reynolds (at [1-017]) that: It might seem therefore that control is not a significant feature of the internal relationship, except in so far as the relationship by definition posits a person, the principal, giving authority, and the agent's duty to obey instructions if he wishes to continue as agent. Nevertheless, if the principal gives up all control of his supposed agent the relationship is only doubtfully one of agency. I will return to the significance of the presence or absence of control later in these reasons. 53 (iii) It may be apparent from the circumstances and context of the supplier's and intermediary's dealing, that, on sales to a third party buyer it was reasonably to be expected that the intermediary was to answer to that buyer for the quality of the goods sold: cf International Harvester Co ; Bowstead & Reynolds at [1-032]. 54 (iv) Two duties stemming from a finding of agency are that the agent (a) must keep its principal's property separate from its own; and (b) must keep an accurate account of all transactions entered into on its principal's behalf: see generally Bowstead & Reynolds at [6-088] ff; Dal Pont, Ch 13. It has been suggested on occasion that these consequences may be indicative of an agency (at least if they have been expressly or impliedly agreed by the parties): cf Benjamin's Sale of Goods at [1-049] (7 th ed, 2006). For present purposes I merely note those agency obligations. I will make further reference to them after having outlined how Farmlink actually dealt with TVO in relation to the proceeds of sale received from the Singaporean and Hong Kong buyers and in relation to keeping accounts of the sales made by Farmlink. 179 Under the shadow of the principles to which I earlier referred and of the decisions of International Harvester Co , Ex parte White; In re Neville and Witt in particular, the factual matters upon which TVO relies primarily for this conclusion are: (i) the transaction between TVO and Farmlink was at a firm price; (ii) the documentation all reflected a sale from TVO to Farmlink; (iii) Farmlink set the price for the overseas sale and kept its sale price and margin a secret; (iv) Farmlink engaged all the freight forwarders and paid the freight costs itself; (v) Farmlink never accounted to TVO in a way which showed the total amount received, its margin and amounts paid for freight, etc; (vi) Farmlink issued invoices to its overseas customers; (vii) Farmlink alone knew the identity and location of its overseas customers; (viii) Farmlink identified itself as the shipper on the bills of lading and airway bills; (ix) Farmlink negotiated the changes in price without checking or obtaining instructions from TVO or Mr Hannaford; and (x) significantly in the year that there was insurance, the insured was Farmlink, the consignee's interest was noted, but there was no recording of TVO having any interest in the cherries.


case_title: Branwhite v Worcester Works Finance Ltd [1969] 1 AC 552


case_title: Garnac Grain Co Inc v HMF Faure & Fairclough Ltd [1968] AC 1130


case_title: Nichols v Arthur Murray Inc 56 Cal Rptr 728 (1967)


case_text: Before identifying those factors which have been found to be of varying significance as indicators of, variously, agency or sale, it is appropriate, first, to refer generally to a number of relatively uncontroversial propositions of agency law. In so doing, I repeat for convenience in part what I said in South Sydney District Rugby League Football Club Ltd v News Ltd (2000) 177 ALR 611 at [131] ff. (1) Those definitions of agency that take the principal and agent relationship itself as their particular focus: contrast International Harvester Co of Australia Pty Ltd v Carrigan's Hazeldene Pastoral Co [1958] HCA 16 ; (1958) 100 CLR 644 at 652; emphasise that that relationship "can only be established by the consent of the principal and the agent": Garnac Grain Co Inc v HMF Faure & Fairclough Ltd [1968] AC 1130 at 1137; see, for example, Bowstead & Reynolds at [1-001]; Restatement of Agency, Third , SS1.01; 3 Am Jur 2d, "Agency", SS15. (2) The consents so given need not necessarily be to a relationship that the parties understand, or even accept, to be that of principal and agent: Branwhite v Worcester Works Finance Ltd [1969] 1 AC 552 at 587. It is sufficient if "they have agreed to what amounts in law to such a relationship": Garnac Grain Co Inc at 1137; Nichols v Arthur Murray Inc 56 Cal Rptr 728 (1967) at 730-731; Restatement of Agency, Second, SS1 comment. (3) Though there is no uniformly agreed definition of agency: see the discussion in Fisher, Agency Law at 8-11 (2000); the two whose authoritative character has resulted in their wide citation are those of the Restatement of Agency, Third, SS1.01 and of Bowstead & Reynolds at [1-001] (the latter being based upon the Restatement provision). The Restatement's definition is that: SS1.01 Agency is the fiduciary relationship that arises when one person (a "principal") manifests assent to another person (an "agent") that the agent shall act on the principal's behalf and subject to the principal's control, and the agent manifests assent or otherwise consents so to act. Bowstead & Reynolds' definition is that: [1-001] Agency is the fiduciary relationship which exists between two persons, one of whom expressly or impliedly manifests assent that the other should act on his behalf so as to affect his relations with third parties, and the other of whom similarly manifests assent so to act or so acts pursuant to the manifestation. The necessary consents apart, the required characteristic of the relationship is that one party acts on behalf of, and is authorised to act on behalf of, the other. This "representative" characteristic must be able to be discerned in the factual relation of the parties: Colonial Mutual Life Assurance Society Ltd v The Producers and Citizens Co-operative Assurance Co of Australia Ltd [1931] HCA 53 ; (1931) 46 CLR 41 at 48-50. (4) Though the characteristic of "control" is accentuated in the Restatement's definition: see comment f to SS1.01; its significance is far more muted in Anglo-Australian law: see South Sydney District Rugby League Football Club at [136]. Thus, it is commented in Bowstead & Reynolds (at [1-017]) that: It might seem therefore that control is not a significant feature of the internal relationship, except in so far as the relationship by definition posits a person, the principal, giving authority, and the agent's duty to obey instructions if he wishes to continue as agent. Nevertheless, if the principal gives up all control of his supposed agent the relationship is only doubtfully one of agency. I will return to the significance of the presence or absence of control later in these reasons. 185 The evidence, in my view, simply cannot sustain a conclusion that Farmlink acted on TVO's behalf in a "representative": cf Bowstead & Reynolds at [1-001]; Colonial Mutual Life Assurance Society at 48-50; or "fiduciary": cf Restatement of Agency , Second , SS1.01; capacity in selling its cherries. Farmlink was a purchaser buying for the purposes of resale. It is significant in this that (i) the parties agreed in advance the prices at which TVO would sell its cherries they were not simply indicative prices (I will refer below to the significance in this of purchase discounts); (ii) while the consignments were into markets with which TVO had some, albeit rudimentary knowledge, they were simply two of the overseas markets into which TVO cherries were consigned by exporters in the 2003/2004 season; (iii) Farmlink, in contrast, was knowledgeable about, and experienced in, those two markets at that time: cf Witt at 18-19; (iv) TVO did not assume responsibility for the export or the costs associated with the export this was at Farmlink's expense: cf Witt at 18-19 and Farmlink, not TVO, bore responsibility for misadventures happening to the cherries after delivery to it; (v) TVO was not in a position to exercise practical control over Farmlink (other than by refusing orders); (vi) TVO was unaware of Farmlink's price; (vii) while Mr Hannaford doubtless understood that Farmlink would obtain its own return on the sales (howsoever this was done), there was nothing unusual about his having no interest in that matter as his relationship with Farmlink did not otherwise point to an agency relationship: cf Mercantile International Group plc at [5] and [36]; and (ix) TVO happened to know the Singapore buyer was a company with which Mr Koh was associated but did not know the identity of the Hong Kong buyer. In short, having regard to the context in which they dealt with each other, the relationship they formed in the making and filling of orders was that of seller and buyer for resale. The contrary inference that TVO appointed Farmlink its agent for sale is neither a reasonable, nor the most probable, deduction from the known facts.


case_text: (i) As an agent for sale ordinarily acts on behalf of its principal: but cf in relation to a broker selling in its own name: Bailey & Co Ltd v Balholm Securities Ltd [1973] 2 Lloyd's Rep 404 at 408; Jackson Securities Ltd v Cheesman (1986) 4 NSWLR 484 at 489-490; is it apparent from the facts that the seller has actually conferred on the intermediary an authority to negotiate and/or to sell on the seller's behalf thus bringing into existence direct contracts between the seller and the third party buyer: Mercantile International Group plc at [30]-[34]?


case_title: Jackson Securities Ltd v Cheesman (1986) 4 NSWLR 484