case_text: applicant relies upon the decision of the Full Court of the Supreme Court of South Australia in Dimella Constructions Pty. Ltd v Stocker and Stocker (1976) 14 SASR 215 in which the Court at 221-222 considered the meaning of the word 'contravention'. Additionally, the applicant submits that the principle of interpretation that Parliament is not taken to deprive persons of property rights without expressing its intention in unmistakable and unambiguous terms applies: see Coco v R (1994) 179 CLR 427 at 437-438. The applicant relies upon the decision of Dimella Constructions , in which the Court was asked whether s 21(5) of the Builder's Licensing Act 1967 (SA) would apply to a builder even if a charge under ss 21(2) or (11) could be defended by the common law defence of honest and reasonable mistake of fact. Section 21(5) stated that: Where a person has carried out or undertaken, or submitted a bid or tender, to carry out any building work in contravention of this section, he shall not be entitled to claim, or recover in any court, the amount of any fee or charge for any building work... Section 21(2) imposed a penalty on a person who held himself or herself out as having a building licence without having a licence and s 21(11) imposed a penalty for constructing a building for a fee without a licence. The conduct of the charged party satisfied the descriptions of such offences, but the Court found that he was adequately protected by the defence of honest and reasonable mistake of fact because he believed himself to be licensed. Bray CJ (with other judges agreeing) found at page 221 that: I think a man does not transgress a law if he is legally innocent of breaking it and entitled to acquittal if charged with a breach of it, nor, in such circumstances, does he go counter to it or come into conflict with it. At 222, Bray CJ concluded: If it is a characteristic of any contravention that it could result in a penalty after conviction for a punishable offence, then e converso when there can be no penalty, because there can be no convention because there is no punishable offence, there is no contravention. The meaning of the word 'contravention' is critical for the present proceedings. The word has been defined in cases other than Dimella to mean ' a failure to obey a statutory command...by doing something that a statute says must not be done ': see Re Centennial Coal Co Ltd (2006) 226 ALR 341 at 346 per Barrett J; ' an infringement or violation of a rule or standard or norm ': see Re Venice Nominees at 242 per Miles CJ; '" infringe (law); (of things) conflict with"' per Owen J in Elkington v Vockbay Pty Ltd; Vockbay Pty Ltd v Elkington (1993) 10 ACSR 785 at 803; and ' an act or omission which is blameworthy and may lead to civil or criminal consequences ' per Young J in NRMA Ltd v Gould and Others (1995) 18 ACSR 290 at 293. The word has been defined in various UK statues as ' failure to comply ': see, for example, ss 5(1) and 37(1) Misuse of Drugs Act 1971 (UK); s 53(1) Food and Safety Act 1990 (UK). In view of the applicant's further submissions, the decision in Dimella Constructions and the preceding discussion, the Court finds itself unable to ignore the judicial findings which have had the result that all those charged with offences under the Migration Act have been acquitted. Contravention may not always equate to a criminal offence. However, due to the structure of the Criminal Code it must follow that a failure to find criminal responsibility must also lead to finding that a contravention of the relevant provisions of the Migration Act creating offences does not exist. The defence upon which the acquittals or discontinuances of the charges against the applicant and others was based, namely sudden or extraordinary emergency as provided by s 10.3 of the Criminal Code , applies equally to any offence with which the applicant or any other person on board the ship could be charged. As has been stated, the relevant question is whether the Court is satisfied to a high degree of probability that a contravention of the Migration Act has occurred. The Court can no longer be so satisfied that contraventions have occurred in respect of any offences under the Migration Act . Contravention of s 42 of the Migration Act


case_outcome: referred to

case_text: meaning of the word 'contravention' is critical for the present proceedings. The word has been defined in cases other than Dimella to mean ' a failure to obey a statutory command...by doing something that a statute says must not be done ': see Re Centennial Coal Co Ltd (2006) 226 ALR 341 at 346 per Barrett J; ' an infringement or violation of a rule or standard or norm ': see Re Venice Nominees at 242 per Miles CJ; '" infringe (law); (of things) conflict with"' per Owen J in Elkington v Vockbay Pty Ltd; Vockbay Pty Ltd v Elkington (1993) 10 ACSR 785 at 803; and ' an act or omission which is blameworthy and may lead to civil or criminal consequences ' per Young J in NRMA Ltd v Gould and Others (1995) 18 ACSR 290 at 293. The word has been defined in various UK statues as ' failure to comply ': see, for example, ss 5(1) and 37(1) Misuse of Drugs Act 1971 (UK); s 53(1) Food and Safety Act 1990 (UK).


case_text: common law defence of necessity, from which the defence of sudden or extraordinary emergency in s 10.3 of the Criminal Code has its origins, has been seen as a defence both of excuse and of justification: see, for example, R v Loughnan [1981] VR 443 which proceeded upon the assumption that such defence was an excuse and In Re A (children) (conjoined twins: surgical separation) [2000] EWCA Civ 254 ; [2001] 2 WLR 480 in which Lord Brooke treated the defence of necessity as a justification. Unfortunately the history of the defence provides little firm guidance so resort must be had to the Criminal Code itself to discern whether one will still contravene an offence provision even if a defence is available.


case_outcome: followed

case_text: view of such authority, there can be no scope for the Court to reconsider the questions it has already answered unless it is found by the Court that ' it is incontestable that the earlier decision is wrong ': see McMullin and Another v ICI Australia Operations Pty Ltd and Others (No 7) [1999] FCA 1814 ; (1999) 169 ALR 227 at [20] . While such authority refers to a basis for reviewing an earlier decision where the Court, still possessing jurisdiction in a proceeding, later considers its decision to be erroneous, this Court considers that the principle referred to in Autodesk and McMullin applies generally and should guide this Court in the present circumstances. Is forfeiture dependent upon conviction or commission of a criminal offence?


case_outcome: cited

case_text: the reasons in Tran No. 1 at [50]-[54] the Court reiterates that no compensation is payable since s 51(xxxi) of the Constitution does not operate in respect of the forfeiture. The ship was validly forfeited. No question of payment of compensation arises where the forfeiture results from the incidental exercise of power under the Migration Act since s 51(xxxi) ' applies only to acquisitions of a kind that permit of just terms ': see Newcrest Mining (WA) Limited and Another v The Commonwealth of Australia and Another [1997] HCA 38 ; (1997) 190 CLR 513 per Gummow J at 595; see authorities referred to in Tran No. 1 at [51]-[53]; see also Mutual Pools & Staff Pty. Limited v The Commonwealth of Australia [1994] HCA 9 ; (1994) 179 CLR 155 per Brennan J at 177; The Commonwealth of Australia v WMC Resources Limited [1998] HCA 8 ; (1998) 194 CLR 1 per Brennan CJ at [10]-[13]; Gaudron J at [75]-[79]. The concept that compensation might be payable in circumstances where forfeiture has resulted from a contravention of a Commonwealth statute is incongruous: see Theophanous v The Commonwealth [2006] HCA 18 ; (2006) 225 CLR 101 at [55] - [61] ; Re Director of Public Prosecutions; Ex parte Lawler and Another [1994] HCA 10 ; (1994) 179 CLR 270 at 289.


case_outcome: discussed

case_text: was submitted by the applicant that by virtue of Australia being a signatory to the Refugee Convention and following from the judgment of Kirby J in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another [2005] HCA 6 ; (2005) 222 CLR 161 at [89] , the Court ought to read s 261A in a way which conforms with Australia's international obligations and should not be read to punish refugees. There are two primary problems with this submission. As the Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ found (at [15]) in NAGV , ...the Convention is an example of a treaty which qualifies what under classical international law theory was the freedom of States in the treatment of their nationals; but the Convention does not have the effect of conferring upon the refugees to which it applies international legal personality with capacity to act outside municipal legal systems. [footnotes omitted] Crucially, their Honours said at [17], ...Gibbs CJ and Brennan J in Mayer and Stephen J in Simsek v Macphee pointed out that the determination of the status of refugee is a function left by the Convention to the competent authorities of the Contracting States which may select such procedures as they see fit for that purpose. [footnotes omitted] It follows that the legal concept of 'refugee' is a status which is not conferred upon a person merely by the existence of circumstances sufficient to support such a claim. This status must positively be found, and it must be found according to the standards set by the particular state, in this case, Australia. Such concept is consistent with international law only having effect within Australia by virtue of its positive adoption into municipal law. Accordingly, the passengers on the ship were not refugees until such time as they were granted that status from the Australian authorities pursuant to s 36 of the Migration Act (dealing with protection visas), and that was not until well after the facts giving rise to the contravention had occurred. At their time of entry into Australia (and thus the time when the forfeiture occurred) the ship's passengers were no more than unlawful non-citizens by force of s 14 of the Migration Act . Therefore it could not be said that forfeiture of the ship would punish the applicant as a refugee, because at the relevant time he was not a refugee, and nor was anyone else on the ship. After the fact events such as the granting of refugee status cannot affect the validity of the forfeiture. Secondly, the passage relied upon by the applicants at [89] of NAGV states, ' where the words of a statute are susceptible to an interpretation that is consistent with international law, that construction should prevail over one that is not .' The key word is ' susceptible '. Section 36 is clearly intended to operate subsequently to s 261A because s 261A will occur automatically the moment a vessel enters Australia. There is nothing in s 261A that suggests that it should be limited in its operation by s 36 of the Migration Act so that it has no application to people to whom s 36 applies. Whether s 36 applies to an unlawful non-citizen may not be known until years after a vessel's entry in Australia, and s 261A is phrased as to operate instantaneously. Reading s 261A in the way the applicant submits completely ignores the wording of the section. It must therefore be concluded that it is not a provision which can be said to be ' susceptible ' in the manner discussed by Kirby J. Compensation


case_title: Newcrest Mining (WA) Limited and Another v The Commonwealth of Australia and Another [1997] HCA 38 ; (1997) 190 CLR 513


case_title: NRMA Ltd v Gould and Others (1995) 18 ACSR 290


case_text: appeal (see Olbers Co Ltd v Commonwealth and Another [2004] FCAFC 262 ; (2004) 143 FCR 449) the Full Court explicitly adopted the findings of French J that forfeiture under s 106A of the FMA took place without conviction for any offence. As to the condemnation procedure provided by s 106B to s 106G of the FMA, the Full Court in Olbers [2004] FCAFC 262 ; 143 FCR 449 , adopting the reasoning in Whim Creek Consolidated NL v Colgan [1991] FCA 467 ; (1991) 31 FCR 469 at 477-478, determined that such provision enabled the recording of the forfeiture having already occured: see Olbers [2004] FCAFC 262 ; 143 FCR 449 at [16] - [17] ; Tran No. 1 at [43].


case_text: Olbers Co Ltd v Commonwealth of Australia and Another [2004] FCA 229 ; (2004) 136 FCR 67 at 79, French J, referring to s 106A of the Fisheries Management Act 1991 (Cth) ('the FMA'), addressed the question whether a conviction for an offence was necessary before forfeiture could occur under the provisions of that section. Such section provides for the forfeiture to the Commonwealth of boats, traps and other things used in offences against various provisions of that Act. His Honour said at [79]: It was contended for the applicants that before s 106A could operate to effect forfeiture of a boat or its equipment or catch it was necessary that there be a conviction for one or more of the offences upon which such forfeiture was said to arise. As a matter of construction this proposition cannot be sustained. Where there has been a conviction for an offence forfeiture can be ordered by the convicting court under s 106. Section 106A does not require any judicial determination to give effect to the forfeiture for which it provides albeit a judicial determination may be made if the occurrence of the forfeiture is contested in later proceedings. In such proceedings a civil court may make a finding whether the boat has been used in one of the specified offences. Absent the institution of such proceedings within 30 days of a notice of seizure under s 106C the asserted forfeiture will be put beyond question by operation of s 106E. That process requires no conviction to have been recorded. I reject the contention that s 106A depends for its application upon a conviction for one or more of the offences mentioned in it.


case_outcome: distinguished

case_text: applicant drew the Court's attention to Perpetual Trustee Co Ltd v Valuer General (No 2); Trust Co of Australia Ltd and Another v Valuer General (No 2) [2007] SASC 340 ; (2007) 99 SASR 251 as supporting its proposition that the findings in Tran No. 1 could be reconsidered. In that decision Debelle J found that such principle that findings cannot be reconsidered should not ' apply to an interlocutory judgment determining a question of statutory construction ' where no evidence had been led and where the assumptions upon which the preliminary questions were argued were later found to be erroneous.


case_title: R v Ampi Hungan [2000] NTSC 84

case_text: this conclusion, the Migration Act has nevertheless been contravened by the applicant because of a breach of s 42 of the Migration Act , as was found in Tran No. 1 at [48]. In Rutu and Another v Dalla Costa (1997) 139 FLR 265 Angel J said at 270: They intended to so enter without a visa. Thus they intended to enter in contravention of the Migration Act , not in the sense of being in breach of an express provision to do so I note s 42 relates to travelling to Australia without a visa rather than entering Australia without a visa but in the sense of disregarding the visa requirements of the Act. The Sri Lankans did not in fact commit any offence created by the Act, nor did they intend to commit any offence created by the Act. They nonetheless intended to contravene the Act in the sense I have mentioned, that is, to enter in disregard of the visa requirements of the Act. Angel ACJ expressly refused to follow one aspect of Rutu in R v Ampi Hungan [2000] NTSC 84 , however, that aspect of Rutu is irrelevant for current purposes. His Honour's finding in relation to s 42 is unambiguous and the Court respectfully follows the finding of Angel J. As has been stated, s 261A does not require a section of the Migration Act creating an offence to have been contravened for forfeiture to occur. All that it requires is that the Migration Act be contravened in such a way as to satisfy s 261A(1)(a). Travelling to Australia without a visa is a contravention of s 42 of the Migration Act , and such act in the circumstances constituted a convention sufficient to satisfy s 261A(1)(a). Pursuant to the text of s 4A of the Migration Act the defences under the Criminal Code only apply to offences under the Migration Act , and thus cannot apply to a contravention of s 42 which is not framed as an offence.


case_text: can be no doubt that the Criminal Code was intended to provide a principled and logical analytical regime for Commonwealth criminal law and thus substantially remove inconsistencies found in the common law. For example, the defence of necessity at common law did not apply to murder: see R v Dudley and Stephens (1884) 14 QBD 273. However, the defence of sudden or extraordinary emergency is not so limited in the Criminal Code and it applies to all Commonwealth offences. The Criminal Code codified a basis for criminal responsibility distinct from that at common law as discussed in R v Oblach [2005] NSWCCA 440 ; (2005) 65 NSWLR 75. Spigelman CJ said of the structure of the Criminal Code (at [28]): Criminal responsibility under the Code arises from the combined effect of the presence of the elements in Pt 2.2 [General Principles of Criminal Responsibility] and the absence or failure of the elements in Pt 2.3 [Circumstances in which there is no Criminal Responsibility]. This structure differs from the position at common law in which it is appropriate to treat certain matters as "defences", for example, self defence is "exculpatory". ( Zecevic (at 658-659)). [Emphasis added] In an article published in Judicial Review entitled ' The Commonwealth Criminal Code : An Introduction to the General Principle s' the author Ian Leader-Elliot wrote:- Proof of the necessary physical and fault elements does not, of itself, establish guilt. Though all elements of an offence are established against a defendant, guilt may be defeated by reliance on a defence. Chapter 2 [of the Criminal Code ] adopts a binary structure in which "responsibility" is a compound resulting from proof of all elements of the offence, combined with disproof or failure of all defences that are open on the evidence... There are, it should be said, significant departures from the common law in the articulation of a number of offences. [(2002) 5 Judicial Review 4 at 301] On such analysis, if the requirements of s 10.3 are satisfied it must follow that there can be no criminal responsibility and therefore no offence.


case_title: R v Loughnan [1981] VR 443


case_outcome: considered


case_text: meaning of the word 'contravention' is critical for the present proceedings. The word has been defined in cases other than Dimella to mean ' a failure to obey a statutory command...by doing something that a statute says must not be done ': see Re Centennial Coal Co Ltd (2006) 226 ALR 341 at 346 per Barrett J; ' an infringement or violation of a rule or standard or norm ': see Re Venice Nominees at 242 per Miles CJ; '" infringe (law); (of things) conflict with"' per Owen J in Elkington v Vockbay Pty Ltd; Vockbay Pty Ltd v Elkington (1993) 10 ACSR 785 at 803; and ' an act or omission which is blameworthy and may lead to civil or criminal consequences ' per Young J in NRMA Ltd v Gould and Others (1995) 18 ACSR 290 at 293. The word has been defined in various UK statues as ' failure to comply ': see, for example, ss 5(1) and 37(1) Misuse of Drugs Act 1971 (UK); s 53(1) Food and Safety Act 1990 (UK). Generally, authorities show that in ascertaining the meaning of the word the most important consideration is the statutory framework within which the word operates. For example, in Centennial Coal , Barrett J defined contravention as conventionally meaning that which was mentioned above, but went on to say: In the present context, however, "contravention" must be accepted as having a wider meaning. Section 1322(4)(a) is a remedial provision and the word "contravention" must, therefore, "be read in a very wide sense"... Can one contravene an offence section if a defence is available?


case_title: Re Director of Public Prosecutions; Ex parte Lawler and Another [1994] HCA 10 ; (1994) 179 CLR 270 at 289


case_text: word 'contravention' may mean a breach of the law, but 'contravention' ' does not necessarily involve the commission of an offence unless the Act or law otherwise makes it so ': see Re Venice Nominees Pty Ltd (Receiver and Manager appointed) (In liquidation) (1992) 108 FLR 237 at 242 referred to in Tran No. 1 at [28]. Conduct may be proscribed by Parliament, and the finding that such conduct has occurred may lead to the conclusion that a contravention of the law has occurred without an offence having been committed. However, facts may exist to satisfy a court that conduct constitutes not only a contravention, but simultaneously an offence. The text of the relevant statute must be considered in order to decide whether contravention means merely a breach of its provisions or commission of an offence. The applicant invites the Court to find that because the word 'offences' is used in the heading of s 261A, the conclusion must be reached that the word 'contravention' used in s 261A should be limited only to a contravention of those sections of the Migration Act which create offences. Pursuant to s 15AB(1)(b) of the Acts Interpretation Act extrinsic material can be considered as an aid to interpretation where the text of the provision itself is ' ambiguous or obscure '. By s 13(3) the heading to a section does not form part of the statute. However, by s 15AB(2)(a) of the Acts Interpretation Act the headings to sections comprise extrinsic material. Therefore, the pivotal consideration is whether the text of s 261A is ambiguous or obscure, so as to enable the Court to refer to the heading of s 261A when interpreting that section. The meaning of the word 'contravention' is critical for the present proceedings. The word has been defined in cases other than Dimella to mean ' a failure to obey a statutory command...by doing something that a statute says must not be done ': see Re Centennial Coal Co Ltd (2006) 226 ALR 341 at 346 per Barrett J; ' an infringement or violation of a rule or standard or norm ': see Re Venice Nominees at 242 per Miles CJ; '" infringe (law); (of things) conflict with"' per Owen J in Elkington v Vockbay Pty Ltd; Vockbay Pty Ltd v Elkington (1993) 10 ACSR 785 at 803; and ' an act or omission which is blameworthy and may lead to civil or criminal consequences ' per Young J in NRMA Ltd v Gould and Others (1995) 18 ACSR 290 at 293. The word has been defined in various UK statues as ' failure to comply ': see, for example, ss 5(1) and 37(1) Misuse of Drugs Act 1971 (UK); s 53(1) Food and Safety Act 1990 (UK).


case_title: Rutu and Another v Dalla Costa (1997) 139 FLR 265


case_text: considerations apply to the heading of Division 13A of Part 2 of the Migration Act which also contains the word 'offences.' Pursuant to s 13(1) of the Acts Interpretation Act a heading of a Division is part of the Act. In Silk Bros. Proprietary Limited v State Electricity Commission of Victoria [1943] HCA 2 ; (1943) 67 CLR 1 , Latham CJ said at 16: The headings in a statute...can be taken into consideration in determining the meaning of a provision where that provision is ambiguous, and may sometimes be of service in determining the scope of a provision... "But where the enacting words are clear and unambiguous, the title, or headings, must give way, and the full effect must be given to the enactment" ( Bennett v. Minister for Public Works (N.S.W.) [1908] HCA 50 ; (1908) 7 C.L.R. 372 at 383). The Court finds that there is no ambiguity in the text of s 261A. The section speaks of the contravention of the Migration Act as a whole. Ambiguity might arise when that section is read with the heading to the Division, but as observed by Latham CJ, the headings may provide guidance only when the provision itself is ambiguous. Following from the finding that the provision is unambiguous the text of the heading must give way. It may be assumed that if Parliament had intended automatic forfeiture to occur only where 'offences' existed, it would have been a simple matter for the draftsperson to have so provided, taking into consideration the choice of the word 'offences' in the heading of Division 13A of Part 2. It follows that the operation of the automatic forfeiture provision in s 261A of the Migration Act is not limited only to contraventions of the offence provisions of that Act nor is it dependent upon a conviction for an offence. The Court reiterates its finding at [31] of Tran No 1 . Has there been a contravention of the Migration Act ? As has been outlined in [18]-[20] of this judgment, ordinarily the Court cannot revisit a previous judgment that it has made. In Tran No. 1 at [31] the Court found that the Migration Act had been contravened by the applicant. However, a reading of that paragraph also records that the Court provided such answer within the context of a submission by the applicant that 'contravention' in s 261A should be made to be equated with 'offence' in order to enliven an automatic forfeiture. This Court, as stated at [33] of this judgment, finds that the word 'contravention' in s 261A means contravention of the Migration Act generally and not only of the offence provisions, and that contravention is not to be interpreted as being confined to conviction for an offence. The applicant has made a different submission at the subsequent hearing. The applicant now submits that, as a consequence of the acquittals or discontinuance of actions against the applicant, Mr Lai and Mr Nguyen, the automatic forfeiture never took place because the facts giving rise to automatic forfeiture under s 261A , namely contravention of the Migration Act , were never present. Such a submission does not depend on contravention being equated to an offence, nor to conviction of an offence. As was stated at [30]-[31] of Tran No. 1 , following the decision of French J in Olbers , for the automatic forfeiture to arise the Court ' must be satisfied to a high degree of probability ' that contraventions of the Migration Act exist. In Tran No. 1 the Court stated that it was so satisfied but only in the narrow context of that which was submitted relating to the meaning of the word contravention. The new submissions justify the Court considering the new submissions separately to the decision already made even though a different interpretation of the same facts may result in a conclusion incompatible to the answers already given in Tran No. 1 .


case_title: The Commonwealth of Australia v WMC Resources Limited [1998] HCA 8 ; (1998) 194 CLR 1


case_title: Theophanous v The Commonwealth [2006] HCA 18 ; (2006) 225 CLR 101


case_text: 16 June 2008 the Court delivered its findings in respect of specific questions which were asked of it pursuant to O 29 r 2 of the Federal Court Rules (Cth): see Tran v The Commonwealth [2008] FCA 901 ; (2008) 103 ALD 290 (' Tran No. 1 '). Since the facts and legislation are set out in that decision, the present decision should be read in conjunction with Tran No. 1 . In Tran No. 1 the Court found that s 261A of the Migration Act 1958 (Cth) ('the Migration Act ') operated to effect an automatic forfeiture of the ship Hao Kiet BL91693TS ('the ship') on or about 1 July 2003 when the ship entered Australia carrying persons who held no valid Australian visas. To answer the specific questions the Court was provided with an agreed statement of facts. The determination of such questions did not finally resolve the rights of the parties since an automatic forfeiture brought about by s 261A of the Migration Act remains contestable: see Tran No. 1 at [45]. The continuation of the hearing in respect of which this judgment is now delivered provided the applicant with the opportunity to provide any evidence upon which he relied to dispute that forfeiture of the ship had occurred. In Tran No. 1 the Court referred to the automatic forfeiture as ' the purported forfeiture ' (at [49]), only as a means of indicating that in these proceedings the applicant could challenge the forfeiture under the mechanism explained in that decision, that is, through the condemnation process. On 9 September 2008 the applicant filed a Further Amended Application seeking a declaration that the ship is not forfeited, or, in the alternative, a declaration that any forfeiture ' including under s 261A of the Migration Act , is revoked ' and further declarations relating to the right of the applicant to possession of the ship. The Further Amended Application also seeks declarations relating to claims for damages arising from the alleged unauthorised destruction and/or loss of possession of the ship. A Further Amended Statement of Claim was also filed on 9 September 2008. The Further Amended Statement of Claim raised the following claim (at [4]): At all material times the Applicant was responding to a sudden and extraordinary emergency and believed that each of the Vietnamese citizens who so fled from Vietnam to Australia were entitled to receive protection from Australia by virtue of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugee ['the Refugee Convention ']. For these reasons the applicant submits that there is no relevant contravention of the Migration Act , and that in the absence thereof there has been no forfeiture and accordingly the Court should not confirm the automatic forfeiture. The applicant invites the Court to revisit its findings in Tran No. 1 in light of its further submissions. The applicant claims that there has been a trespass to his property or intentional or negligent interference with his property and that just terms are payable under the Customs Act 1901 (Cth) in respect of the loss of the ship. The claim for damages is itemised in the amount of $307,274.85.


case_text: considering the substance of the applicant's claims, it is to be observed that ordinarily the Court cannot revisit its findings. In Wentworth v Woollahra Municipal Council and Others [1982] HCA 41 ; (1982) 149 CLR 672 at 684 Mason ACJ, Wilson and Brennan JJ said:- ...the circumstances in which this Court will reopen a judgment which it has pronounced are extremely rare. The public interest in maintaining the finality of litigation necessarily means that the power to reopen to enable a rehearing must be exercised with great caution. Generally speaking, it will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard. Similarly, Mason CJ in Autodesk Inc. and Another v Dyason and Others (No. 2) [1993] HCA 6 ; (1993) 176 CLR 300 at 303 said that the power of the Court to reconsider judgments would not be exercised for the purpose of ' re-agitating arguments already considered by the Court ', nor ' because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put '.


case_title: Whim Creek Consolidated NL v Colgan [1991] FCA 467 ; (1991) 31 FCR 469


case_title: Zecevic v Director of Public Prosecutions (Victoria) [1987] HCA 26 ; (1987) 162 CLR 645

case_text: Zecevic v Director of Public Prosecutions (Vict.) [1987] HCA 26 ; (1987) 162 CLR 645 Wilson, Dawson and Toohey JJ discussed the origins of the modern law of self defence. They observed that such defence arose out of a context in which two kinds of defence to homicide, a defence of 'justification' and one of 'excuse', were available. The consequences of each defence were distinct, as their Honours considered at 657-658: Justifiable homicide carried with it commendation rather than blame and accordingly entitled the accused to total acquittal, entailing no forfeiture and requiring no pardon... Excusable homicide, on the other hand, was not entirely without blame and merely excused rather than acquitted, requiring, at first, a pardon and involving, for a somewhat longer period, forfeiture. Such distinctions no longer exist, but this context led their honours to find (at 658) that self defence, ' as we now know it, was essentially exculpatory in origin '. The difference between the defences considered above demonstrates that, at the common law at least, one might be said to a have contravened the law even if a defence to a charge were available. There can be no doubt that the Criminal Code was intended to provide a principled and logical analytical regime for Commonwealth criminal law and thus substantially remove inconsistencies found in the common law. For example, the defence of necessity at common law did not apply to murder: see R v Dudley and Stephens (1884) 14 QBD 273. However, the defence of sudden or extraordinary emergency is not so limited in the Criminal Code and it applies to all Commonwealth offences. The Criminal Code codified a basis for criminal responsibility distinct from that at common law as discussed in R v Oblach [2005] NSWCCA 440 ; (2005) 65 NSWLR 75. Spigelman CJ said of the structure of the Criminal Code (at [28]): Criminal responsibility under the Code arises from the combined effect of the presence of the elements in Pt 2.2 [General Principles of Criminal Responsibility] and the absence or failure of the elements in Pt 2.3 [Circumstances in which there is no Criminal Responsibility]. This structure differs from the position at common law in which it is appropriate to treat certain matters as "defences", for example, self defence is "exculpatory". ( Zecevic (at 658-659)). [Emphasis added] In an article published in Judicial Review entitled ' The Commonwealth Criminal Code : An Introduction to the General Principle s' the author Ian Leader-Elliot wrote:- Proof of the necessary physical and fault elements does not, of itself, establish guilt. Though all elements of an offence are established against a defendant, guilt may be defeated by reliance on a defence. Chapter 2 [of the Criminal Code ] adopts a binary structure in which "responsibility" is a compound resulting from proof of all elements of the offence, combined with disproof or failure of all defences that are open on the evidence... There are, it should be said, significant departures from the common law in the articulation of a number of offences. [(2002) 5 Judicial Review 4 at 301] On such analysis, if the requirements of s 10.3 are satisfied it must follow that there can be no criminal responsibility and therefore no offence.


case_text: delivering judgment in the principal proceeding in which I dismissed Mr Duncan's application: see Duncan v Chief Executive Officer, Centrelink [2008] FCA 56 ; (2008) 100 ALD 292 ; I ventured to suggest that this may be an appropriate matter in which to make no order as to costs. Nonetheless I invited submissions on costs. Needless to say each party sought a costs order. Mr Duncan relies upon what he contends was Centrelink's demonstrated "disdain for the law" although, as the costs of his pro bono counsel are not being sought, any costs order in his favour would in any event be limited to out-of-pocket expenses: see Cachia v Hanes [1994] HCA 14 ; (1994) 179 CLR 403 ; and see generally Dal Pont, Law of Costs (2003) [7.24] ff. Centrelink's claimed entitlement to a costs award was founded upon the principle that, ordinarily, costs follow the event. It contends that it did not unreasonably provoke the litigation: cf Cummings v Lewis (unreported, Wilcox J, 29 May 1992); the defensive postures it took, though unsuccessful in some degree, were not unreasonable: Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166 at 169; and the applicant was wholly unsuccessful.


case_title: Cummings v Lewis (unreported, Wilcox J, 29 May 1992)


case_title: Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166


case_title: Cretazzo v Lombardi (1975) 13 SASR 4

case_text: principles that inform the exercise of the Court's discretion to award costs under s 43 of the Federal Court of Australia Act 1976 (Cth) are well accepted. That discretion is absolute and unfettered but must be exercised judicially and cannot be exercised on grounds unconnected with the litigation: see Cretazzo v Lombardi (1975) 13 SASR 4 at 11; Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727 at 732. Neither can the power to award costs be used to punish either a successful or an unsuccessful party: cf Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 at 566-567.


case_title: Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727


case_title: Ruddock v Vadarlis (2001) 115 FCR 229

case_text: well accepted are the principles informing the proper exercise of the s 43 discretion. These are: (i) ordinarily costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order; (ii) where a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed; and (iii) a successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other parties' costs of them. In this sense 'issue' does not mean a precise issue in the technical pleading sense but any disputed question of fact or law. Ruddock v Vadarlis (2001) 115 FCR 229 at [11] approving Hughes v Western Australian Cricket Association (Inc) (1986) 69 ALR 660 ; ATPR 40-748 at 48,136. See generally Dal Pont, Laws of Cost (2003) ch 8. Only the first of these is presently relevant.


case_title: Hughes v Western Australian Cricket Association (Inc) (1986) 69 ALR 660


case_text: the ordinary principle of costs following the event, there are two considerations of potentially present relevance of which account properly can be taken in justification of a departure from that principle. These are the reasonableness of the applicant in bringing the application and where the respondent, as in this case, is a public authority, the general importance both of the clarification of the law for such an authority and of securing proper compliance with it: see eg Perrett v Commissioner for Superannuation (1991) 29 FCR 581 at 594; see also Wilderness Society Inc v Hon Malcolm Turnbull, Minister for Environment and Water Resources [2008] FCAFC 19 at [7] .


case_title: Wilderness Society Inc v Hon Malcolm Turnbull, Minister for Environment and Water Resources [2008] FCAFC 19


case_outcome: applied

case_text: Only the first two of these causes of action are relied upon by the Applicants in a claim for interlocutory injunctive relief against the Respondents. The Respondents have sought to meet that claim for interlocutory injunctive relief not by the giving of particular undertakings but rather by submitting that, having regard to the principles which attend the granting of interlocutory injunctive relief, no claim for such relief is made out. Those principles are not in doubt. In Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at 81-82, [65], Gummow and Hayne JJ, with whom Gleeson CJ and Crennan J agreed in this regard (at 68, [19]) stated: "The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618. This court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued: 'The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to a relief ... The second inquiry is ... whether the inconvenience or injury which is the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.' By using the phrase 'prima facie case', their Honours did not mean that the plaintiff must show it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial." 10 Whether or not to grant an interlocutory injunction requires the exercise of a discretion informed by the application of these principles to the circumstances of the case as revealed by the material before the court at the time of the application. 11 The Applicants' claim for infringement of copyright is not, in my opinion, a strong one on present materials.


case_text: The elements of a claim in equity for the protection of confidential information are well settled. A person seeking such protection must be able to prove the following: • precisely what constitutes the information sought to be protected; • that a necessary quality of confidentiality reposes in that information; • that the information was received by the person against whom equitable relief is sought in such circumstances as to impart a duty of confidence; and • that there is an actual or a threatened breach of that duty of confidence in respect of the information. See Coco v A.N. Clark (Engineers) Limited [1969] RPC 41 at 48; Corrs Pavey Whiting & Byrne v Collector of Customs (1987) 14 FCR 434 at 443.


case_text: The elements of a claim in equity for the protection of confidential information are well settled. A person seeking such protection must be able to prove the following: • precisely what constitutes the information sought to be protected; • that a necessary quality of confidentiality reposes in that information; • that the information was received by the person against whom equitable relief is sought in such circumstances as to impart a duty of confidence; and • that there is an actual or a threatened breach of that duty of confidence in respect of the information. See Coco v A.N. Clark (Engineers) Limited [1969] RPC 41 at 48; Corrs Pavey Whiting & Byrne v Collector of Customs (1987) 14 FCR 434 at 443. 26 Corrs Pavey Whiting & Byrne v Collector of Customs (1987) 14 FCR 434 is also pertinent for the reminder given by Gummow J (at 443) as to the need in relation to a claim like the present for a plaintiff to be able to identify with precision, rather than in global terms, that which is said to be the confidential information. 27 Copies of certain drawings were exhibited to affidavits on behalf of the Applicants. An inspection of these discloses title blocks in which Linmac's name and ownership is stated. There is though, no overt claim of confidentiality or even copyright on the face of the drawings. Neither is there evidence of any written confidentiality agreement ever used at any stage by an alleged owner of the drawings in dealings with third parties. 28 There is evidence of a practice adopted by Linmac of allowing third parties to have copies of such drawings of its plans as where necessary in order to effect repairs. At best, it might perhaps be inferred that, as a matter of business practice, it was mutually understood as between Linmac or its alleged successive assignees and third parties that the drawings contained at least some confidential information.


case_text: Even assuming this is in favour of the Applicants, it is still necessary that there be some evidence of a misuse of the information. In Liberty Financial Limited v Scott (No 2) [2005] VSC 26 at [7] , Arthur J cited with approval an observation made by Whitford J in Reinforced Plastics Applications (Swansea) v Swansea Plastics and Engineering Co Limited (1979) FSR 182 at 182: "It is not really to be contemplated that proceedings of this kind should be allowed to go forward on nothing more than a speculative basis; and unless the plaintiff can show that he has some basis for a reasonable belief in his assertion that the defendants are making use of his confidential information, then the action can only be characterised as speculative and fishing, and ought not, in my judgment, to be allowed to proceed. It must be something more than a mere assertion."


case_title: Reinforced Plastics Applications (Swansea) v Swansea Plastics and Engineering Co Limited (1979) FSR 182


case_text: Another cautionary note was sounded by Laddie J in Ocular Sciences Limited v Aspec Vision Care Limited [1997] RPC 289 at 359: ".. it is well recognised that breach of confidence actions can be used to oppress and harass competitors and ex-employees. The Courts are therefore careful to ensure that the plaintiff gives full and proper particulars of all the confidential information upon which he intends to rely in the proceedings. If the plaintiff fails to do this the Court may infer that the purpose of the litigation is harassment rather than the protection of the plaintiff's rights and may strike out the action as an abuse of process." . 31 The Respondents do not seek that the proceedings be struck out. That is not to say that the sentiments voiced in the passages just quoted are irrelevant. The First Respondent is certainly embarked upon a path that may see it come to be a competitor of the Applicants. It is a serious thing to allege that persons have breached a duty of confidence in respect of confidential information. There is force, in my opinion, in the Respondents' submission that there is no evidence that any of them have misused or are going to misuse any confidential information of the Applicants. It must be observed as well that similar difficulties to those which I have highlighted in relation to the breach of copyright claim attend the proof of the Applicants' ownership of the allegedly confidential information. Further, just what is said to constitute the information having the necessary quality of confidence is not identified with precision on the present state of the evidence. That in itself is telling as a person to whom injunctive relief is granted ought not be put in a position of doubt as to what is enjoined. 32 In short then it seems to me that, on the present state of the materials, the basis for there being a serious question to be tried is at least weak but better regarded as wanting.


case_text: There is an interplay so far as the grant of interlocutory relief is concerned between the strength an applicant's claim that there exists a serious question to be tried and the balance of convenience: see for example Sabre Corporation Pty Ltd v Laboratories Pharm-a-Care (1995) 31 IPR 445 at 455. That interplay does not, in my opinion, tell in favour in the Applicants. 37 For these reasons, I decline the application for interlocutory injunctive relief. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 15 February 2008 Counsel for the Applicants: Mr A Franklin SC Solicitor for the Applicants: Bennett & Philp Solicitors Counsel for the Respondents: Mr DM Logan Solicitor for the Respondents: Clifford Gouldson Lawyers Date of Hearing: 5 February 2008 Date of Judgment: 15 February 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/76.html


case_text: At the hearing, the parties referred to the debate, recorded in various decisions of this Court, as to the appropriate approach that the Court should take to the question of reviewing a taxing officer's decision under O 62 r 44 of the Rules. The debate is well described in the decision of Hely J in Cachia v Westpac Financial Services Limited [2003] FCA 817 ('Cachia') . On one view, an applicant is entitled to a review de novo by the Court. On the other view, the Court is to apply the approach set out in the observations of Jordan CJ in the case of Schweppes' Ltd v Archer (1934) 34 SR (NSW) 178 at 183. Under that approach, the Court is reluctant to interfere unless the applicant shows that there was an error of principle by the taxing officer or, in respect of a matter involving the taxing officer's discretion, it appears that the taxing officer has not exercised his or her discretion at all or exercised it in a manner which is manifestly wrong; and where the question is one of amount only, the Court will only interfere in extreme cases.


case_title: Schweppes' Ltd v Archer (1934) 34 SR (NSW) 178


case_text: By order made herein dated 7 November 2007 I appointed Mr Colin Nicol as receiver to deal with certain funds which had been held in the names of the respondent, the Terra Nova Cache and the Principality of Camside. The circumstances in which the receiver came to be appointed are explained in my judgment in Australian Prudential Regulation Authority v Siminton (No 6) [2007] FCA 1608. Mr Nicol entered on his task promptly. He has discovered various funds which are additional to those which are identified in Schedule A of the order made on 7 November 2007. He has also identified a large number of persons who claim to have made deposits in the Terra Nova Cache. He has sought the co-operation and assistance of the respondent in identifying depositors and the whereabouts of moneys contributed by them. He has received very little assistance from the respondent in response to these requests. 2 By an Amended Notice of Motion dated 4 February 2008 Mr Nicol seeks various orders to assist him in the performance of his duties. I heard argument on the Amended Notice of Motion on 6 February 2008. Following argument I indicated that I would make orders in the terms of paragraphs 1, 2 and 3 of the Amended Notice of Motion and would publish reasons for doing so at a later date. I reserved judgment on whether orders in the terms proposed in paragraphs 4, 5 and 6 of the Amended Notice of Motion should be made. What follows are my reasons for making orders 1 to 3 and my reasons, following further consideration, for determining that orders in the terms proposed in paragraphs 5 and 6 (with some minor variations) should be made. 3 The first order sought by Mr Nicol is the addition of a number of funds to those identified in Schedule A of the order which I made on 7 November 2007. The evidence established, in each case, a reasonable basis for the conclusion that the source of the moneys in those funds was contributions made to the Terra Nova Cache or the Principality of Camside. Counsel for the respondent did not direct any specific argument to the question of whether order 1 should or should not be made. It is appropriate that the order should be made. 13 Counsel for the receiver argued that these orders should be made because the respondent had, during the period of the receivership, failed to respond to requests made by the receiver that he provide relevant documents to the receiver. In particular the receiver relied on the failure of the respondent to comply with paragraph five of the orders made on 7 November 2007 which required the respondent to provide to the receiver "all bank statements, books of accounts, receipts, invoices, correspondence or other documents in his possession, custody, power or control relating to monies received from members of the public for deposit in the Terra Nova Cache." The receiver's solicitor had written on numerous occasions to the respondent requesting that he comply with the Court's order. The respondent had not done so. He had, through his solicitors, made general claims that he could not be required to produce any documents because of the protection afforded him by the privilege against self incrimination. In one letter the respondent acknowledged that he had three documents (bank statements) which fell within the terms of the order. He also provided the receiver with a copy of documentary evidence tendered in the course of the trial of the principal proceeding in which the order appointing the receiver was made: see Australian Prudential Regulation Authority v Siminton (No 6) [2007] FCA 1608. The respondent has failed to advise the receiver whether there are additional documents, which although not in his possession, are within his power or control. 14 Counsel for the respondent opposed the making of the proposed orders. He made what he described as "an in limine objection" to the making of any order that would require the respondent to swear an affidavit of documents or discover any documents on the ground that to do so would infringe his right to protection against self incrimination. 15 In making the in limine objection counsel for the respondent relied on an affidavit, sworn by the respondent, in which he deposed that: "3. It has been alleged that with respect to the Principality of Camside and Terra Nova Cache, I am in breach if the Banking Act , sections 7 and 66 , which are respectively an indictable offence and an offence. Such allegations have already been tried herein and found proven on a civil basis, and it has been maintained by APRA, a Commonwealth instrumentality, that the right to bring criminal charges against me with respect of the alleged breaches of the relevant sections remains extant. 4. The documents requested clearly relate to the alleged breaches of the Act and, accordingly, I object to producing the same pursuant to the right against self incrimination." It is noted that the respondent makes an in limine objection to production. He does not identify the documents for which a privilege claim is made. He does not explain why their production would tend to incriminate him. Moreover he offers no reason why he should not be required to swear an affidavit of documents. 19 As already noted counsel for the respondent sought to argue that the circumstances which confronted the respondent in this case were such as to bring it within the exceptional category which Deane J referred to in Refrigerated Express. I invited counsel to articulate with precision the rare and exceptional circumstances which rendered the present case one which fell within the exception to the ordinary rule. He submitted that his client had been found, in Siminton (No 6) , to have contravened ss 7 and 66 of the Banking Act . These findings had been made on the civil standard. His client apprehended that he might, at some time in the future, be charged with having committed criminal offences by contravening those provisions. He contended that the mere acknowledgement by the respondent that he had in his possession, custody or control documents of the character referred to in the proposed order could be used in evidence against him in such a criminal proceeding.


case_title: Refrigerated Express Lines (A/sia) Pty Ltd v Australian Meat and Live-stock Corporation (1979) 42 FLR 204

case_text: Counsel acknowledged that the circumstances in which an in limine objection to making an affidavit of documents, in a case such as the present, might be upheld are extremely rare. He contended that the circumstances of the present case brought it within the rare exception, the existence of which was recognised by Deane J in Refrigerated Express Lines (A/asia) Pty Ltd v Australian Meat and Live Stock Corporation (1979) 42 FLR 204. In Refrigerated Express Deane J held that, in a criminal proceeding or a proceeding in which the imposition of a pecuniary penalty was sought, a Court should not order a respondent to give discovery or produce documents for inspection. In other forms of proceeding his Honour recognised that the general rule was that a party ought not to be excused, in limine , from giving discovery on the ground that production might tend to expose him to a penalty. His Honour held that there might exist "exceptional" cases in which "the only means of protecting the right against self incrimination ... [would be] to excuse a party in limine from discovery ..." (at 211) (Emphasis added). His Honour said that such cases would be "rare indeed." He said (at 211) that: "The cases where the making of an order for discovery or interrogatories will, in itself, involve exposing a party to self incrimination ... must, however, be rare indeed in view of the fact that the party will remain entitled to refuse to answer questions asked or produce documents discovered if the answers or production might tend to incriminate him or expose him to a penalty." Deane J's judgment was referred to in the joint judgment of Mason A.C.J., Wilson and Dawson JJ in Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9 ; (1983) 152 CLR 328 at 336. Their Honours noted that: "There [in Refrigerated Express] his Honour drew a distinction between discovery in a mere action for a penalty and discovery in an action which was not for a penalty the result of which might be used to establish a party's liability to a penalty in other proceedings (50). In the first situation, the court should, in the absence of statutory provision to the contrary, refuse to make any order for discovery, production of documents or the provision of information for the reason that an intended consequence of the discovery, production of documents or provision of information is the imposition of the penalty, this being the object of the action ... But in the second situation the order will be made and the party against whom the order is made may object to the production of particular documents or to the provision of particular information on the ground that it may tend to expose him to a penalty." 17 In Microsoft Corporation v CX Computer Pty Ltd [2002] FCA 3 ; (2002) 116 FCR 372 Lindgren J reviewed a series of cases in which Deane J's decision in Refrigerated Express had been applied or followed. He summarised his conclusions as follows (at 388): "Although the course of authority since Refrigerated Express is not all one way, there has been a strong disposition in a proceeding not itself concerned with the imposition of a penalty for an offence or a civil penalty, in favour of ordering discovery, reserving the issue of self incrimination to the stage of production for inspection, and also reserving liberty to apply in relation to the degree of specificity with which a document is to be described in the individual's list of documents." 19 As already noted counsel for the respondent sought to argue that the circumstances which confronted the respondent in this case were such as to bring it within the exceptional category which Deane J referred to in Refrigerated Express. I invited counsel to articulate with precision the rare and exceptional circumstances which rendered the present case one which fell within the exception to the ordinary rule. He submitted that his client had been found, in Siminton (No 6) , to have contravened ss 7 and 66 of the Banking Act . These findings had been made on the civil standard. His client apprehended that he might, at some time in the future, be charged with having committed criminal offences by contravening those provisions. He contended that the mere acknowledgement by the respondent that he had in his possession, custody or control documents of the character referred to in the proposed order could be used in evidence against him in such a criminal proceeding.


case_text: Counsel acknowledged that the circumstances in which an in limine objection to making an affidavit of documents, in a case such as the present, might be upheld are extremely rare. He contended that the circumstances of the present case brought it within the rare exception, the existence of which was recognised by Deane J in Refrigerated Express Lines (A/asia) Pty Ltd v Australian Meat and Live Stock Corporation (1979) 42 FLR 204. In Refrigerated Express Deane J held that, in a criminal proceeding or a proceeding in which the imposition of a pecuniary penalty was sought, a Court should not order a respondent to give discovery or produce documents for inspection. In other forms of proceeding his Honour recognised that the general rule was that a party ought not to be excused, in limine , from giving discovery on the ground that production might tend to expose him to a penalty. His Honour held that there might exist "exceptional" cases in which "the only means of protecting the right against self incrimination ... [would be] to excuse a party in limine from discovery ..." (at 211) (Emphasis added). His Honour said that such cases would be "rare indeed." He said (at 211) that: "The cases where the making of an order for discovery or interrogatories will, in itself, involve exposing a party to self incrimination ... must, however, be rare indeed in view of the fact that the party will remain entitled to refuse to answer questions asked or produce documents discovered if the answers or production might tend to incriminate him or expose him to a penalty." Deane J's judgment was referred to in the joint judgment of Mason A.C.J., Wilson and Dawson JJ in Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9 ; (1983) 152 CLR 328 at 336. Their Honours noted that: "There [in Refrigerated Express] his Honour drew a distinction between discovery in a mere action for a penalty and discovery in an action which was not for a penalty the result of which might be used to establish a party's liability to a penalty in other proceedings (50). In the first situation, the court should, in the absence of statutory provision to the contrary, refuse to make any order for discovery, production of documents or the provision of information for the reason that an intended consequence of the discovery, production of documents or provision of information is the imposition of the penalty, this being the object of the action ... But in the second situation the order will be made and the party against whom the order is made may object to the production of particular documents or to the provision of particular information on the ground that it may tend to expose him to a penalty."


case_text: In Microsoft Corporation v CX Computer Pty Ltd [2002] FCA 3 ; (2002) 116 FCR 372 Lindgren J reviewed a series of cases in which Deane J's decision in Refrigerated Express had been applied or followed. He summarised his conclusions as follows (at 388): "Although the course of authority since Refrigerated Express is not all one way, there has been a strong disposition in a proceeding not itself concerned with the imposition of a penalty for an offence or a civil penalty, in favour of ordering discovery, reserving the issue of self incrimination to the stage of production for inspection, and also reserving liberty to apply in relation to the degree of specificity with which a document is to be described in the individual's list of documents."


case_text: where a large number of documents or extensive information is sought within a short period of time, and where an extension of time is not possible, the specification of a short period of time may reflect upon whether the power was exercised in good faith, for a collateral purpose or was unreasonable: see, eg, A. B. Pty Limited v Australian Crime Commission [2009] FCA 119 at [65] per Flick J. In fact, it was alleged that the burden imposed on the applicants was of such a magnitude that no reasonable person exercising the power under s 155 would have made the decisions giving rise to the issue of certain of the Notices. Reliance was placed on the principles stated by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 and s 5(2)(g) of the ADJR Act.


case_title: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223


case_text: preliminary attack was made on the use of the concept of point of origin or destination of a service as a reference point able to be used in the Notices. It was contended that the Notices (even if confined to outbound services) did not sufficiently describe a matter involving a contravention of the Act, particularly in failing to describe the market in Australia. I accept that just because services cover the movement of goods in or out of Australia, does not necessarily indicate that there is a relevant market located in Australia in respect of those services: see Auskay International Marketing & Trade Pty Ltd v Qantas Airways Ltd [2008] FCA 1458 at [19] and [21] per Tracey J. However, as I mention later, the Notices when properly construed adequately describe matters capable of involving a contravention of the Act and by reference to a market in Australia. I make one further observation as to the Notices. The identified matters concern the alleged contravention of s 45 of the Act and concentrate on the supply of the international air cargo services. However, as I have alluded to earlier, it is important to observe that the description of the matters in the Notices concern price fixing as defined by s 45A of the Act, and it is upon that provision attention should be focussed in interpreting the Notices. Justice Tracey in Auskay FCA 1458 did observe that '[b]uyers and sellers of goods and services must negotiate and enter transactions in an area in which suppliers are engaged in close competition with each other' and '[t]hat area must be located within Australia' (at [19]). However, his Honour also referred to the importance of the place where the relevant competition takes place, and where parties compete to obtain contracts (at [21]). I do not read his Honour's comments (made in the context of a pleading dispute) as dictating that in determinating the geographic location of the market one is confined by the location of the making of the contract for the subject services. Once it is accepted that the place of contracting is not determinative, then in view of the above reasoning, it cannot be concluded that the particular conduct complained of is not capable of constituting a contravention of the Act. We are not then dealing with a market that is wholly outside Australia, but rather, with a possible contravention s 45 of the Act in relation to inbound and outbound services in a market in Australia. Therefore, upon construing the Notices in the manner indicated, I do not regard them as invalid on the ground that the matters the subject of them extend beyond conduct that is capable of constituting a contravention of the Act.


case_text: notion of a 'market in Australia' was recently referred to by Lindgren J in Australian Competition and Consumer Commission v Qantas Airways Limited [2008] FCA 1976 , where his Honour stated (at [33]-[34]): Although the notion of a "market in Australia" in s 4E has been referred to in two cases ( Riverstone Computer Services Pty Ltd v IBM Global Financing Australia Ltd [2002] FCA 1608 at [21] per Hill J and Auskay International Manufacturing & Trade Pty Ltd v Qantas Airways Ltd (2008) ATPR 42-256 at [19] per Tracey J), the concept has not been the subject of extensive judicial consideration. In Riverstone , Hill J rejected the proposition that in order to be a "market in Australia" a market must be wholly within Australia. His Honour said (at [21]) that the fact that a market was global did not signify that there could not be a market in Australia for the same products. As the Commission points out, a contrary view would considerably reduce the efficacy and utility of the competition law provisions of the Act, especially in the modern telecommunications era. Justice Lindgren went on to conclude that the definition of "market in Australia" in s 4E excludes a market that is wholly outside Australia, a conclusion with which I respectfully agree. As other aspects of the decision in Qantas [2008] FCA 1976 proceeded upon agreed facts, however, that case provides little assistance in determining the other issues raised before me which involved 'a concrete dispute reached after contest in argument': see Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53 at [62] (per Gummow, Hayne and Heydon JJ).


case_text: principles relevant to this aspect of the proceedings can be simply stated: (a) The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is an abuse of discretion entitling a party with sufficient standing to seek judicial review of the decision. (b) This ground of review can only be made out if the decision-maker fails to take into account a consideration that they are bound to take into account in making the decision. (c) The factors a decision-maker is bound to take into account in making a decision are determined by construction of the statute conferring the power. Where the matters to be taken into account are not expressly stated in the statute, they must be determined by implication from the subject matter, scope and purpose of the Act: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 39-40 per Mason J. (d) A decision-maker may not have had proper regard to a relevant consideration if they merely make a formalistic reference to the consideration: see Azriel v NSW Land & Housing Corporation [2006] NSWCA 372 at [49] per Basten JA (with whom Santow and Ipp JJA agreed at [1] and [3]). (e) A decision-maker is required to give proper, genuine and realistic consideration to a relevant consideration: see Deloitte Touche Tohmatsu v Australian Securities Commission (1996) 136 ALR 453 at 468 (per Lindgren J); Bruce v Cole (1998) 45 NSWLR 163 at 185-6 per Spigelman CJ and the authorities cited therein. (f) The mere failure to refer expressly to a matter will not necessarily give rise to the inference that it was not taken into account: see Australian Conservation Foundation v Forestry Commission (1988) 19 FCR 127 at 132 (per Burchett J). However, it is open to the Court to infer that a matter was not taken into account where no reference is made to it: see, eg, Sullivan v Department of Transport (1978) 20 ALR 323 at 349 (per Deane J). (g) In Deloitte Touche Tohmatsu 136 ALR 453 , Lindgren J said (at 468): It is for an applicant to make out its case of "failure to take into account", but the circumstances may be such that the applicant will be aided in this task by an absence of evidence from the decision-maker on a particular matter, such as an absence of evidence giving rise to an inference of a failure to make further inquiries when a genuine taking into account would have called for them.


case_text: accept that evidence that was not before the decision-maker may be admissible if it is relevant to a particular ground of review, such as unreasonableness: see, eg, Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707 ; (2005) 148 FCR 446 , 564-66 per Weinberg J; but see Aronson M, Dyer B, and Groves M, Judicial Review of Administrative Action (4 th ed, Lawbook Co, 2009) at 256-58. In addition, sometimes it will also be necessary to have established the facts upon which legal issues can be resolved. In the Singapore Airlines proceeding, the parties filed a statement of agreed facts concerning the supply of international air cargo services, which included the following statements and facts: The following facts are agreed between the parties for the purpose of s 191 Evidence Act 1995 (Cth). Unless stated otherwise, the facts are applicable as at all relevant times, being the period 1 January 2000 to date. 1. Singapore Airlines Ltd (SIA) is incorporated in Singapore. SIA supplies international air transport services to passengers on routes between many different countries, including on routes between Australia and other countries. The hub of SIA's international passenger services is in Singapore. Prior to 1 July 2001, SIA operated a Cargo Division which supplied air transport services for cargo on routes between many different countries, including on routes between Australia and other countries. Air freight is transported either in the 'bellyhold' or lower deck of passenger aircraft or in cargo 'freighters', i.e. planes dedicated to carrying cargo. Prior to 1 July 2001, SIA's Cargo Division supplied international air freight services using both passenger aircraft and cargo freighters. Singapore Airlines Cargo Pte Ltd (SIAC) is a wholly owned subsidiary of SIA. It is incorporated in Singapore. With effect on 1 July 2001, SIA transferred to SIAC the assets, liabilities, cargo-related contracts, operations and business activities of the Cargo Division of SIA. With effect on 3 July 2001, employees of the Cargo Division of SIA ceased to be employed by SIA and were transferred to SIAC. Since that time, only SIAC has supplied international air transport services for cargo within the Singapore Airlines group of companies. SIAC conducts business in 57 countries worldwide including Australia and SIA or SIAC operate aircraft in 38 countries. SIAC or its general sales agents operate out of 76 stations located at international airports to or from which SIAC will carry or arrange for the carriage of cargo. A list of those countries and stations is annexed and marked "A". Each station provides services in relation to the airport at which it is located. In Australia, SIAC currently operates stations at Brisbane, Sydney, Melbourne, Adelaide and Perth international airports. The stations that SIA previously operated at Cairns and at Darwin were closed in March 2001. To supply international air transport services for cargo, SIAC purchases from SIA all non-passenger baggage space in the bellyhold of SIA's passenger airplanes and also operates cargo freighters. The operating fleet of SIAC as at 31 March 2007 comprised 14 B747-400 cargo freighters. SIAC also purchases cargo space from other carriers, or carriage services by road transport operators. Typically SIAC will do this in order to deliver freight to airports which are not serviced by either SIA or SIAC aircraft or to allow stations to access available cargo space on SIA or SIAC aircraft which are operated from another station. Singapore is the main hub and freight distribution centre for SIAC. Charts depicting the routes flown by SIAC freighter aircraft and SIA passenger aircraft as at March 2007 are shown in the routing charts annexed and marked "B". SIAC can offer a freight service from any of its origin ports to Australia, routed through Singapore. The types of freight that are shipped from different countries and different cities can differ substantially. Carriers offer different types of air freight services from different locations in order to meet the requirements of the particular types of freight that are transported from those locations. For example, much of the freight shipped out of Melbourne is perishables such as meat, fruit and vegetables. This type of freight may need to be transported quickly and kept at special temperatures. ... (The annexures referred to above are not annexed to this judgment.) A substantial amount of additional evidence was adduced by the parties in both proceedings, and the ACCC cross-examined a number of witnesses called by Emirates and Singapore Airlines. Evidence received in each proceeding was to be treated as evidence in the other. Some objections were taken to certain evidence sought to be tendered by the parties, which in light of the approach I adopt, need not be ruled upon. No attack was made upon the credit of any witness, although the ACCC submitted that the evidence was far from conclusive and should not be relied upon as contended for by the applicants. Some of the evidence was of a confidential nature and appropriate orders were made under ss 17 and 50 of the Federal Court of Australia Act 1976 (Cth). In giving these reasons for judgment I have not found it necessary to refer to this evidence other than in a general way. The primary purpose of the evidence led was to provide the factual background concerning the markets in which international air cargo services are ordinarily supplied. Such evidence was said to support the argument that the Court could be satisfied that international air cargo services on routes into Australia, and between two points outside Australia, are not competitively provided in a market in Australia. Evidence was also led concerning what became known as the 'burden issue'. That evidence dealt with the steps required to be taken by Singapore Airlines and Emirates to comply with some of the notices. It also concerned the manner and extent to which Mr Samuel had regard to the burden imposed on the recipients, and what considerations he took into account in deciding to issue the Notices.


case_title: Azriel v NSW Land & Housing Corporation [2006] NSWCA 372


case_text: is also now an extensive body of judicial consideration on the scope and requirements of s 155 notices, but it is convenient to refer to the decision of the Full Federal Court in Seven Network Ltd v Australian Competition and Consumer Commission [2004] FCAFC 267 ; (2004) 140 FCR 170. In that case Sackville and Emmett JJ set out the process for construing notices against the s 155 requirements, and stated (at 182-83): The authorities have established a number of propositions concerning the interpretation of s 155(1) of the TP Act. They include the following: (i) In a context where refusal or failure to comply with a s 155 notice is punishable by imprisonment or fine, the notice must: (a) convey with reasonable clarity to the recipient the information that must be furnished; and (b) disclose that the ACCC is entitled to require the recipient to furnish the specified information: Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9 ; (1982) 57 FLR 368 at 374, per curiam. (ii) The second of these requirements will not be satisfied unless it appears from the notice that the information sought is information "relating" to one or more "matters" of a kind described in s 155(1): Pyneboard v TPC at 375 ; SA Brewing v Baxt at 369-70 ; Bannerman v Mildura Fruit Juices Pty Ltd [1984] FCA 156 ; (1984) 2 FCR 581 at 584, per Bowen CJ and Neaves J. However, the question whether a notice discloses the necessary "relatedness" is not to be approached in an "over-technical or hypercritical way": Pyneboard v TPC at 376. Moreover, the "relatedness" is to a proper inquiry into the suspected offences: Panelboard Pty Ltd v Trade Practices Commission [1981] FCA 98 ; (1981) 59 FLR 395 at 407, per Fox J. (iii) Section 155(1) does not require the Chairperson of the ACCC to have "reason to believe" that a specified matter constitutes or may constitute a contravention of the TP Act. The Chairperson must, however, have reason to believe that the relevant person is capable of furnishing information relating to the matter specified in the notice: WA Pines v Bannerman at 179, per Brennan J (with whom Bowen CJ agreed); TNT Australia Pty Ltd v Fels [1992] HCA 55 ; [1992] ATPR 40 ,595 (41-190) at 40,598-40,599, per Gummow J. It follows that the Chairperson or other officer must believe that the person to whom the notice is directed is capable of furnishing information relating to the facts known or suspected: WA Pines v Bannerman at 180. In addition, there must be facts in existence which are sufficient to induce that belief in a reasonable person: George v Rockett at 112. (iv) The word "matter" in s 155(1) is to be construed in its ordinary sense of an affair or thing: Melbourne Home of Ford Pty Ltd v Trade Practices Commission [1979] FCA 15 ; (1979) 36 FLR 450 at 474, per Franki and Northrop JJ; SA Brewing v Baxt at 369. It refers to a body of facts which constitutes or may constitute a contravention of the TP Act. Whether or not the relevant body of facts constitutes a contravention is a matter of law and does not turn on the perception or knowledge of the ACCC or its officers: WA Pines v Bannerman at 179. (v) When s 155(1) speaks of a matter which may constitute a contravention, it refers to a body of facts not fully known and which may, when fully known, reveal themselves as constituting a contravention: WA Pines v Bannerman at 179. The words "may constitute" enable a court to judge from the material in the notice whether, if other facts which may or may not have occurred come to light, the whole body of facts would constitute a contravention: SA Brewing v Baxt at 370. It is not necessary for the Court to determine whether a contravention has occurred; but equally it will not "idly speculate" or "draw on improbable circumstances" to uphold a notice: SA Brewing v Baxt at 370. An alternative formulation is that the Court can take account of facts which may "reasonably be suspected" to have occurred: WA Pines v Bannerman at 179. (vi) Where the matter referred to in the notice, after allowing for undiscovered facts, is incapable of amounting to a contravention, the issue of the notice is not a valid exercise of the power conferred by s 155(1): SA Brewing v Baxt at 371-72. (vii) In view of the principle that a court should not adopt an "over-technical or hypercritical approach" to the construction of a notice, there is no requirement that the notice "plead" all the facts necessary to constitute a contravention or possible contravention of the TP Act: SA Brewing v Baxt at 370. (viii) Information which tends to negative a suspected contravention or liability to conviction or which tends to exculpate a person suspected to be a party to a contravention, is within the ambit of s 155(1). It follows that an inquiry under s 155 may relate to a defence or possible defence available to the suspected person: WA Pines v Bannerman at 180. This conclusion derives from the principles referred to in Seven Network [2004] FCAFC 267 ; 140 FCR 170 , and accords with the reasoning of Bowen CJ and Neaves J (at 586-87) and Davies J (at 590-91) in Bannerman v Mildura Fruit Juices Pty Ltd [1984] FCA 156 ; (1984) 2 FCR 581 , the views expressed by the Full Court (Northrop, Deane and Fisher JJ) in Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9 ; (1982) 57 FLR 368 at 373-74 If the Notices were properly framed and only referred to services in relation to outbound routes, then on the applicants' case, the fact that there may be acquirers of those services outside Australia would not affect the validity of the Notices on this primary ground of attack. It would be accepted there is a market in Australia. No suggestion would be made that the Notices are enquiring into a matter not the subject of the Notice in reliance of the principles outlined in Bannerman [1984] FCA 156 ; 2 FCR 581 , Pyneboard [1983] HCA 9 ; 57 FLR 368 and Melbourne Steamship Co Ltd [1912] HCA 69 ; 15 CLR 333.


case_text: a prefatory matter, a few words must be directed to the question of the reach of the Act. Initially, it appeared that these proceedings were going to concern the extent to which the Act extended to extraterritorial conduct. It has long been accepted in the United States that a court may assert jurisdiction under the Sherman Act 15 USC § 1 for anticompetitive conduct occurring wholly outside the territory of the United States, provided that the conduct has effects felt in the United States: see F Hoffmann-La Roche Ltd v Empagran S.A. [2004] USSC 2381 ; 542 US 155 (2004); Hartford Fire Insurance Co v California [1993] USSC 100 ; 509 US 764 (1993). That s 45 of the Act should be read similarly, at least with respect to corporations carrying on business in Australia, was considered by Merkel J in Bray v F Hoffmann-La Roche Ltd [2002] FCA 243 ; (2002) 118 FCR 1 , at 15-16, and affirmed by the Full Court in Bray v F Hoffmann-La Roche Ltd (2003) 130 FCR 317.


case_title: Bray v F Hoffmann-La Roche Ltd (2003) 130 FCR 317


case_title: Bruce v Cole (1998) 45 NSWLR 163

case_text: principles relevant to this aspect of the proceedings can be simply stated: (a) The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is an abuse of discretion entitling a party with sufficient standing to seek judicial review of the decision. (b) This ground of review can only be made out if the decision-maker fails to take into account a consideration that they are bound to take into account in making the decision. (c) The factors a decision-maker is bound to take into account in making a decision are determined by construction of the statute conferring the power. Where the matters to be taken into account are not expressly stated in the statute, they must be determined by implication from the subject matter, scope and purpose of the Act: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 39-40 per Mason J. (d) A decision-maker may not have had proper regard to a relevant consideration if they merely make a formalistic reference to the consideration: see Azriel v NSW Land & Housing Corporation [2006] NSWCA 372 at [49] per Basten JA (with whom Santow and Ipp JJA agreed at [1] and [3]). (e) A decision-maker is required to give proper, genuine and realistic consideration to a relevant consideration: see Deloitte Touche Tohmatsu v Australian Securities Commission (1996) 136 ALR 453 at 468 (per Lindgren J); Bruce v Cole (1998) 45 NSWLR 163 at 185-6 per Spigelman CJ and the authorities cited therein. (f) The mere failure to refer expressly to a matter will not necessarily give rise to the inference that it was not taken into account: see Australian Conservation Foundation v Forestry Commission (1988) 19 FCR 127 at 132 (per Burchett J). However, it is open to the Court to infer that a matter was not taken into account where no reference is made to it: see, eg, Sullivan v Department of Transport (1978) 20 ALR 323 at 349 (per Deane J). (g) In Deloitte Touche Tohmatsu 136 ALR 453 , Lindgren J said (at 468): It is for an applicant to make out its case of "failure to take into account", but the circumstances may be such that the applicant will be aided in this task by an absence of evidence from the decision-maker on a particular matter, such as an absence of evidence giving rise to an inference of a failure to make further inquiries when a genuine taking into account would have called for them. In any event, for the reasons I have already given, whilst the burden of some of the Notices, having regard to the original time limit, was objectively harsh and oppressive, the decision to issue such Notices was not so unreasonable (or illogical or irrational) that it could not have been made in the circumstances. Even if I looked to the question of 'proportionally', it seems to me that having regard to the very nature, breadth and extent of the investigation, the consequences of the burden were not such as to demonstrate unreasonableness so as to impugn the decision: see discussion in Bruce 45 NSWLR 163, at 184-5 per Spigelman CJ. I would reach this conclusion even on the basis of the evidence sought to be tendered by the applicants on the burden issue, although its relevance may be questionable—see above [13]. A final point was raised by the ACCC that if the applicants succeeded only in relation to their arguments on burden, I should not grant the relief sought as the initial time frame for the Notices in contention has been extended by a variation to the Notices. That such variations have occurred is not in contention. The only attack of the applicants is on the decision to issue the Notices and the Notices in their original form. No complaint is now made as to the extended time frame, there being no attack on the decisions varying the Notices.


case_title: Deloitte Touche Tohmatsu v Australian Securities Commission (1996) 136 ALR 453


case_text: services the subject of the unlawful provision must be the services supplied by the relevant party to the arrangement in competition with the other party in any market in Australia. Put another way, the area of competition has to coincide with the area of restriction imposed by the unlawful provision: see ss 45A(8), 4D(1)(a) and 4D(2); Eastern Express Pty Ltd v General Newspapers Pty Ltd (1991) 30 FCR 385 at 419-20 per Wilcox J; and South Sydney District Rugby League Football Club v News Limited [2000] FCA 1541 ; (2000) 177 ALR 611 at 657 per Finn J.


case_title: F Hoffmann-La Roche Ltd v Empagran S.A. [2004] USSC 2381 ; 542 US 155 (2004)


case_title: Hartford Fire Insurance Co v California [1993] USSC 100 ; 509 US 764 (1993)


case_text: was no direct evidence from Mr Samuel that he had regard to the burden imposed on the applicants when deciding to issue the Notices. In proceedings of this nature I would not expect Mr Samuel to provide direct evidence: see eg Korean Air Lines v Australian Competition and Consumer Commission (No 3) [2008] FCA 701 at [116] per Jacobsen J. The only available evidence suggesting that Mr Samuel might have taken into account the effect of issuing the Notices on the applicants is derived from the Reason to Believe papers, and the objective matters available to Mr Samuel at the time of the issuing of the Notices, including the Notices themselves. Many identical s 155 notices were issued at the same time to many airlines. The Reason to Believe papers seemed to be prepared in standard form for each such notice. This also applied to the 'burden' of the Notices. No allowance seems to have been made for the different burden that may have been imposed on different airlines by reason of the fact that their operations differed in scale and geographic scope.


case_text: is important to recall that the Notices should not be read in an overly-technical way: they are to be 'reasonably, not preciously, construed': see Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 3) [1980] FCA 94 ; (1980) 47 FLR 163 at 175-76 (per Brennan, Keely and Fisher JJ), and S A Brewing 23 FCR 357 at 369 (per Fisher and French JJ). In addition, regard may be had to the identity of, and the knowledge available to, the recipient of the notice: see Seven Network [2004] FCAFC 267 ; 140 FCR 170 , 189 at [75] (per Sackville and Emmett JJ). It is important to keep in mind that it is an investigative power which is under consideration in these proceedings. As stated by the Full Court in Melbourne Home of Ford Pty Ltd [1980] FCA 94 ; 47 FLR 163 (at 174): The investigative power may properly be exercised by inquiring into the existence of facts which do not themselves constitute a contravention or deny the possibility of a contravention. The power may properly be exercised to ascertain facts which may merely indicate a further line of inquiry, or which may tend to prove circumstances from which an inference can be drawn as to the existence of other facts which have a more immediate and proximate relationship to the matter under investigation. The applicants are involved in international activities, and decisions and discussions concerning the matter under investigation may readily be accepted as having occurred overseas, as well as in Australia. The conduct of the applicants wherever occurring could be relevant to the investigation of the matter as defined in the Notices. It is not for this Court to confine or restrict the course of an investigation if the powers conferred by s 155 have not been exceeded. In relation to the interpretation of the Notices, the applicants allege that the definition of 'Fuel Surcharge' is wide and unclear. However, to the extent that the applicants have responded to the Notices, they appear to have had no difficulty at all in understanding the meaning of the term. It seems to me that the applicants should be, and in fact are, well versed in the concept of 'Fuel Surcharge'.


case_title: Melbourne Steamship Co Ltd v Moorehead [1912] HCA 69 ; (1912) 15 CLR 333

case_text: the Notices were properly framed and only referred to services in relation to outbound routes, then on the applicants' case, the fact that there may be acquirers of those services outside Australia would not affect the validity of the Notices on this primary ground of attack. It would be accepted there is a market in Australia. No suggestion would be made that the Notices are enquiring into a matter not the subject of the Notice in reliance of the principles outlined in Bannerman [1984] FCA 156 ; 2 FCR 581 , Pyneboard [1983] HCA 9 ; 57 FLR 368 and Melbourne Steamship Co Ltd [1912] HCA 69 ; 15 CLR 333.


case_text: principles relevant to this aspect of the proceedings can be simply stated: (a) The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is an abuse of discretion entitling a party with sufficient standing to seek judicial review of the decision. (b) This ground of review can only be made out if the decision-maker fails to take into account a consideration that they are bound to take into account in making the decision. (c) The factors a decision-maker is bound to take into account in making a decision are determined by construction of the statute conferring the power. Where the matters to be taken into account are not expressly stated in the statute, they must be determined by implication from the subject matter, scope and purpose of the Act: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 39-40 per Mason J. (d) A decision-maker may not have had proper regard to a relevant consideration if they merely make a formalistic reference to the consideration: see Azriel v NSW Land & Housing Corporation [2006] NSWCA 372 at [49] per Basten JA (with whom Santow and Ipp JJA agreed at [1] and [3]). (e) A decision-maker is required to give proper, genuine and realistic consideration to a relevant consideration: see Deloitte Touche Tohmatsu v Australian Securities Commission (1996) 136 ALR 453 at 468 (per Lindgren J); Bruce v Cole (1998) 45 NSWLR 163 at 185-6 per Spigelman CJ and the authorities cited therein. (f) The mere failure to refer expressly to a matter will not necessarily give rise to the inference that it was not taken into account: see Australian Conservation Foundation v Forestry Commission (1988) 19 FCR 127 at 132 (per Burchett J). However, it is open to the Court to infer that a matter was not taken into account where no reference is made to it: see, eg, Sullivan v Department of Transport (1978) 20 ALR 323 at 349 (per Deane J). (g) In Deloitte Touche Tohmatsu 136 ALR 453 , Lindgren J said (at 468): It is for an applicant to make out its case of "failure to take into account", but the circumstances may be such that the applicant will be aided in this task by an absence of evidence from the decision-maker on a particular matter, such as an absence of evidence giving rise to an inference of a failure to make further inquiries when a genuine taking into account would have called for them. Similarly, Mason J in Peko Wallsend [1986] HCA 40 ; 162 CLR 24 said (at 40): The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: ( Wednesbury Corporation , at 228).


case_text: seems to me that the 'burden' sections of the Reason to Believe papers were pro-forma statements. This is not necessarily to be unexpected. The use of such standard paragraphs is not fatal in itself. However, if a verbal formula is used 'to cloak the decision with the appearance of conformity with the law', the use of that formula will not save the decision from invalidity: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 266 per Brennan CJ, Toohey, McHugh and Gummow JJ. The 'burden' sections of the Rason to Believe papers in dealing with the time for compliance specifically refer to the magnitude of the burden imposed and to the time in which the recipient could provide the information and documents. Consideration was then given to the burden generally and, specifically, to the time in which a recipient would need to make the necessary searches and enquiries, collate the material necessary and obtain legal advice. Significantly, Mr Samuel was reminded that he needed to consider the magnitude of the burden. This indicates that the Reason to Believe papers did not contain the only information relied upon by Mr Samuel, although they contained recommendations. I am not satisfied that the requirement to comply within a certain limited time was imposed without regard to the ultimate burden which it would impose on the recipient, even on the facts as I have found as to the burden objectively imposed.


case_text: the operation of s 45 of the Act, a key concept is 'market'. There is a plethora of case law regarding the meaning of that term, but the High Court has warned that attempts to define 'market' too precisely are dangerous. In NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 , the High Court advocated a broader approach, stating (at 117): The Act is seeking to advance the broad goal of promoting competition. Certain provisions of the Act, particularly in Pt IV, necessarily turn to a significant degree on expressions which are not precise or formally exact. One example is "market": there can be overlapping markets with blurred limits and disagreements between bona fide and reasonable experts about their definition, as in this case. Other examples are "substantial", "competition", "arrangement", "understanding", "purpose" and "reason" (which need only be a "substantial" purpose or reason: s 4F). It is not appropriate to subject the application of this type of legislation to a process of anatomising, filleting and dissecting... . (Emphasis added; citations omitted.)


case_text: observed by Gibbs CJ in Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission [1982] HCA 65 ; (1982) 152 CLR 460 , '[t]he power [under s 155] is a drastic power and is capable of abuse and must be exercised with care' (at 468). The time for compliance has statutory significance. The recipient is obliged to furnish the information sought within the time specified in the notice, and must produce the documents sought in accordance with the notice: subs 155(1). It is an offence to fail to comply: subs 155(5) and (6A). These are matters that needed to be considered by Mr Samuel, as they undoubtedly were, as part of the statutory context of issuing the Notices and as part of the consequences of non-compliance. Once one reaches the conclusion that the decision to issue the Notices was exercised with care, took into account the relevant considerations, and was not to be impugned on the basis of the principles in Pyneboard [1983] HCA 9 ; 57 FLR 368 , then the reference to the statutory significance of compliance takes the argument no further.