case_title: Collins v Administrative Appeals Tribunal [1007] FCAFC 111

case_text: The approach to be taken to the operation of ss 120 and 120A of the VE Act was authoritatively laid down by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82: see Collins v Administrative Appeals Tribunal [2007] FCAFC 111 , at [5], per Lindgren J; at [30], per Allsop J. The relevant passage in Deledio is as follows (at 97-98): '1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail. 2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP [Statement of Principles] determined by the Authority ... 3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP ... If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail. 4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved'.


case_outcome: considered

case_text: In Bull v Repatriation Commission , at 330 [16] Emmett and Allsop JJ regarded the exposition of a ' reasonable hypothesis ' in East v Repatriation Commission (1987) 16 FCR 517, as authoritative. In East the Court said this (at 532-533): 'The adoption of Brennan J's notion [in his dissenting judgment in Repatriation Commission v O'Brien [1985] HCA 10 ; (1985) 155 CLR 422] of a reasonable hypothesis meant that Parliament was requiring something by way of a causal link, but which fell short of proof of the link even prima facie as a fact. The meaning of the phrase "reasonable hypothesis" was felicitously explained by a Veterans' Review Board ... "A hypothesis may be conveniently defined as : 'proposition made as basis for reasoning, without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption': The Concise Oxford Dictionary. ... The addition of the word 'reasonable' would however seem to imply that what is required is more than a mere hypothesis. In the opinion of the Board, to be reasonable, a hypothesis must possess some degree of acceptability or credibility it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be 'raised' by material before the Board, we think it must find some support in that material that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis. At the same time, however, a hypothesis may be reasonable without having been proved (either on the balance of probability or beyond reasonable doubt) to be correct as a matter of fact. Were it otherwise, it would no longer be a hypothesis but would have been elevated to some higher status. Accordingly a connection asserted by a hypothesis to exist between death or incapacity and service may still be reasonable even though theoretical, and it may be theoretical in either or both of a least two senses: by postulating a known medical fact but in circumstances not known to have definitely existed in the instant case; or by postulating a medical principle which science is not yet able to definitely prove but is unable to describe as unreasonable." We agree with this analysis. A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities '. (Emphasis added.) 27 In Bull v Repatriation Commission , Emmett and Allsop JJ made the following comment (at 331 [18]) about East : 'The Court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable. The material must point to the connecting hypothesis ...' (Emphasis in original.) Their Honours observed (at 331 [21]) that there is no doubt that the AAT is obliged to look at all the material, not just some of it and that at this point it is not entitled to find facts or reject matters.


case_outcome: followed

case_title: Repatriation Commission v Deledio (1998) 83 FCR 82


case_outcome: cited

case_text: In Bull v Repatriation Commission , at 330 [16] Emmett and Allsop JJ regarded the exposition of a ' reasonable hypothesis ' in East v Repatriation Commission (1987) 16 FCR 517, as authoritative. In East the Court said this (at 532-533): 'The adoption of Brennan J's notion [in his dissenting judgment in Repatriation Commission v O'Brien [1985] HCA 10 ; (1985) 155 CLR 422] of a reasonable hypothesis meant that Parliament was requiring something by way of a causal link, but which fell short of proof of the link even prima facie as a fact. The meaning of the phrase "reasonable hypothesis" was felicitously explained by a Veterans' Review Board ... "A hypothesis may be conveniently defined as : 'proposition made as basis for reasoning, without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption': The Concise Oxford Dictionary. ... The addition of the word 'reasonable' would however seem to imply that what is required is more than a mere hypothesis. In the opinion of the Board, to be reasonable, a hypothesis must possess some degree of acceptability or credibility it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be 'raised' by material before the Board, we think it must find some support in that material that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis. At the same time, however, a hypothesis may be reasonable without having been proved (either on the balance of probability or beyond reasonable doubt) to be correct as a matter of fact. Were it otherwise, it would no longer be a hypothesis but would have been elevated to some higher status. Accordingly a connection asserted by a hypothesis to exist between death or incapacity and service may still be reasonable even though theoretical, and it may be theoretical in either or both of a least two senses: by postulating a known medical fact but in circumstances not known to have definitely existed in the instant case; or by postulating a medical principle which science is not yet able to definitely prove but is unable to describe as unreasonable." We agree with this analysis. A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities '. (Emphasis added.)


case_text: If there is no relevant SoP, s 120A(3) of the VE Act does not apply: s 120A(4). The third step must therefore be taken without reference to any SoP, in accordance with the approach summarised in Byrnes v Repatriation Commission [1993] HCA 51 ; (1993) 177 CLR 564, at 571, per curiam : 'The position may be summarized as follows: (1) First, sub-s. (3) of s. 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s. (1) of s. 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis'. See Woodward v Repatriation Commission [2003] FCAFC 160 ; (2003) 131 FCR 473, at 483 [55], per curiam ; Bull v Repatriation Commission (2001) 34 AAR 326, at 329-330 [13]-[15], per Emmett and Allsop JJ.


case_text: As to the jurisdictional question, s 39B(1A)(a) of the Judiciary Act confers original jurisdiction on the Federal Court of Australia in any matter arising under the Constitution or involving its interpretation. Section 39B(1A)(c) confers jurisdiction upon the Court, relevantly for present purposes, in any matter arising under any laws made by the Parliament. The Bank claims that its 'rights and entitlements' as a party to a services contract are not affected by s 106 of the IR Act. That claim seems to me to be the assertion of a right, or reliance upon an answer to a claim for an order under s 106 of the State Act, conferred by or under the Commonwealth Act. The claim thus arises under the Commonwealth Statute ( Ex parte McLean [1930] HCA 12 ; (1930) 43 CLR 472 ; The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50 ; (1945) 70 CLR 141 at 154 per Latham CJ; The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty Ltd [1953] HCA 22 ; (1953) 88 CLR 100 ; and Felton v Mulligan & Anor [1971] HCA 39 ; (1971) 124 CLR 367. The controversy also involves a matter arising under the Constitution .


case_title: The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50 ; (1945) 70 CLR 141


case_title: The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty Ltd [1953] HCA 22 ; (1953) 88 CLR 100


case_title: Felton v Mulligan & Anor [1971] HCA 39 ; (1971) 124 CLR 367


case_text: Questions of the tension between the conferral of limited jurisdiction upon the Industrial Court and constraints upon supervisory challenges to the exercise of that limited jurisdiction on grounds of jurisdictional error (before the Supreme Court of New South Wales, the Court of Appeal and ultimately appellate challenges before the High Court) and the reconciliation of that tension, have been considered in Fish v Solution 6 Holdings Ltd (2006) 80 ALJR 959 (' Fish '); Batterham v QSR Limited [2006] HCA 23 ; (2006) 80 ALJR 995 (' Batterham ') and Old UGC Inc v Industrial Relations Commission of New South Wales in Court Session [2006] HCA 24 ; (2006) 80 ALJR 1018 ( 'Old UGC Inc '). Those cases do not involve a question of construction of an Act of the Commonwealth Parliament or whether the source of a denial of jurisdiction to the State Commission or Court involves invalidity in the provisions of the State Act conferring jurisdiction, by reason of s 109 of the Constitution . In other words, they do not engage the question of a State Act expressly seeking to limit federal jurisdiction (other than questions going to a possible or purported limitation upon the exercise of appellate jurisdiction by the High Court). 53 In Fish and Batterham the majority concluded that s 179 was not enlivened according to its terms as no decision or purported decision had been made by the Commission in Court Session. In Old UGC Inc , the s 179 point was not argued before the High Court. These cases are not authority for the proposition that notwithstanding s 179 (enlivened according to its terms), a supervisory court has jurisdiction to grant orders of prohibition directed to the Industrial Court to prevent the threatened making of a decision beyond jurisdiction or the conduct of proceedings that might lead to an order beyond jurisdiction as the point was not alive. Moreover, these cases do not in terms deal with constraints upon the exercise of federal jurisdiction. 55 The further consideration and, it seems to me, the real focus of inquiry, is whether the Federal Court ought to embark upon a consideration of the question raised by these proceedings in circumstances where the Industrial Court has not considered whether it has jurisdiction. If an assumption is made for present purposes that the Industrial Court might ultimately be found not to have the jurisdiction sought to be exercised, it nevertheless has jurisdiction to determine whether it has jurisdiction. The Industrial Court is, by s 152 of the IR Act (and by amendment of the Constitution Act 1902 of the State of New South Wales) a superior court of record equivalent in status to the Supreme Court of New South Wales. An important question, as a matter of comity, is whether this Court ought to hear and determine the controversy framed by these proceedings and, if satisfied that an inconsistency arises depriving the Industrial Court of jurisdiction to make orders pursuant to s 106 of the IR Act, proceed to make orders preventing the further conduct of the Industrial Court proceedings, before the Industrial Court has determined whether it has jurisdiction ( Fish per Heydon J [176] and [177]). 56 The question raised by this controversy is not simply one of whether there is threatened jurisdictional error in acting in reliance upon s 106 of the IR Act in respect of the proper isolation and application of one or more of the integers of the section itself, but a threshold question of constitutional inconsistency between the Commonwealth and State Acts resulting in invalidity in the provisions sought to be relied upon in the exercise of jurisdiction. It seems to me that the interests of the parties are served by the Federal Court considering and determining that matter, in the nature of a preliminary question. Since this proceeding joins parties comprising the Bank, those executives who acted for the Bank in the relevant transactions and all of the participants in the three Industrial Court proceedings, there seems to be utility in deciding the inconsistency question (and thus the validity of s 106 of the IR Act), as between these parties. In addition, the contention of the respondents that the Industrial Court ought to first determine its own jurisdiction as the repository of the power, needs to be qualified as each of the Industrial Court proceedings has been cross-vested to the Supreme Court of New South Wales. 57 Accordingly, I am not persuaded that an order for transfer ought to be made by reason of a want of jurisdiction in the Federal Court or on the footing that the Court ought not to embark upon a consideration of whether there is a constitutional denial of jurisdiction to the Industrial Court, before the relevant forum first determines whether jurisdiction is denied to it by reason of constitutional invalidity arising out of the contended inconsistency.


case_text: Questions of the tension between the conferral of limited jurisdiction upon the Industrial Court and constraints upon supervisory challenges to the exercise of that limited jurisdiction on grounds of jurisdictional error (before the Supreme Court of New South Wales, the Court of Appeal and ultimately appellate challenges before the High Court) and the reconciliation of that tension, have been considered in Fish v Solution 6 Holdings Ltd (2006) 80 ALJR 959 (' Fish '); Batterham v QSR Limited [2006] HCA 23 ; (2006) 80 ALJR 995 (' Batterham ') and Old UGC Inc v Industrial Relations Commission of New South Wales in Court Session [2006] HCA 24 ; (2006) 80 ALJR 1018 ( 'Old UGC Inc '). Those cases do not involve a question of construction of an Act of the Commonwealth Parliament or whether the source of a denial of jurisdiction to the State Commission or Court involves invalidity in the provisions of the State Act conferring jurisdiction, by reason of s 109 of the Constitution . In other words, they do not engage the question of a State Act expressly seeking to limit federal jurisdiction (other than questions going to a possible or purported limitation upon the exercise of appellate jurisdiction by the High Court). 53 In Fish and Batterham the majority concluded that s 179 was not enlivened according to its terms as no decision or purported decision had been made by the Commission in Court Session. In Old UGC Inc , the s 179 point was not argued before the High Court. These cases are not authority for the proposition that notwithstanding s 179 (enlivened according to its terms), a supervisory court has jurisdiction to grant orders of prohibition directed to the Industrial Court to prevent the threatened making of a decision beyond jurisdiction or the conduct of proceedings that might lead to an order beyond jurisdiction as the point was not alive. Moreover, these cases do not in terms deal with constraints upon the exercise of federal jurisdiction.


case_text: Questions of the tension between the conferral of limited jurisdiction upon the Industrial Court and constraints upon supervisory challenges to the exercise of that limited jurisdiction on grounds of jurisdictional error (before the Supreme Court of New South Wales, the Court of Appeal and ultimately appellate challenges before the High Court) and the reconciliation of that tension, have been considered in Fish v Solution 6 Holdings Ltd (2006) 80 ALJR 959 (' Fish '); Batterham v QSR Limited [2006] HCA 23 ; (2006) 80 ALJR 995 (' Batterham ') and Old UGC Inc v Industrial Relations Commission of New South Wales in Court Session [2006] HCA 24 ; (2006) 80 ALJR 1018 ( 'Old UGC Inc '). Those cases do not involve a question of construction of an Act of the Commonwealth Parliament or whether the source of a denial of jurisdiction to the State Commission or Court involves invalidity in the provisions of the State Act conferring jurisdiction, by reason of s 109 of the Constitution . In other words, they do not engage the question of a State Act expressly seeking to limit federal jurisdiction (other than questions going to a possible or purported limitation upon the exercise of appellate jurisdiction by the High Court). 53 In Fish and Batterham the majority concluded that s 179 was not enlivened according to its terms as no decision or purported decision had been made by the Commission in Court Session. In Old UGC Inc , the s 179 point was not argued before the High Court. These cases are not authority for the proposition that notwithstanding s 179 (enlivened according to its terms), a supervisory court has jurisdiction to grant orders of prohibition directed to the Industrial Court to prevent the threatened making of a decision beyond jurisdiction or the conduct of proceedings that might lead to an order beyond jurisdiction as the point was not alive. Moreover, these cases do not in terms deal with constraints upon the exercise of federal jurisdiction. 54 The applicants in this proceeding seek to give expression to rights arising under Commonwealth law. A limitation upon those rights is said to arise by reason of s 179, a State law. Although an argument arises that a State law might, as a matter of construction, be intended by a State parliament to operate in such a way as to foreclose the exercise of jurisdiction by 'every court in the land' including a court exercising 'federal and constitutional jurisdiction' ( Old UGC Inc per Kirby J, [69]), it seems to me, as an aspect of considering an application for transfer, that the proper approach to the application of s 179 of the State Act is that it does not operate to oust or limit the exercise of federal jurisdiction by this Court. I find it difficult to analytically identify how a provision such as s 179 of the IR Act could deprive the Federal Court of invested federal jurisdiction.


case_text: The respondents say that what is necessary is an analysis of the 'totality of the relationship' between the parties to determine whether the contract is one to which an independent contractor is a party. That proposition is based upon Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1 ; (1986) 160 CLR 16 and the judgment of their Honours Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ in Hollis v Vabu Pty Ltd [2001] HCA 44 ; (2001) 181 ALR 263 and particularly the observations at [24]. However, Hollis involved a question of whether a bicycle courier being one of about 25 to 30 individuals within the bicycle courier cohort providing courier services for and on behalf of Vabu, might properly be characterised as an employee or an independent contractor of Vabu for the purposes of determining whether Vabu was vicariously liable for the negligence of one of its couriers. In determining that question, the Court recognised that each bicycle courier was required to sign a three page document comprising on page 1 a pro forma layout for recording the personal details of the courier; a second page setting out an inventory sheet of radio equipment and uniforms and a third page which set out 11 points comprising terms. The content of the arrangements between Vabu and each of its bicycle couriers comprised not only the pro forma three page document but other important matters not forming part of the document such as the rate of remuneration for deliveries and other elements of work practices for bicycle couriers, adopted by Vabu. The arrangements were found to comprise both the written document and other terms not reduced to writing. The circumstances of the present case could not be further removed from the circumstances of Hollis . This case does not involve episodic arrangements for the provision of routine unskilled services. In this case, there is a significant detailed major commercial document which the respondents plead in their Industrial Court proceedings is one that provides for the establishment and governance of the OMB Agency. It is an agreement establishing and governing a significant commercial undertaking as between the parties to it and one which involves specific collateral documents such as the guarantees and securities given in support of it, a Representations Deed, a Business Term Loan Agreement and guarantees and securities given in support of that agreement.


case_title: Hollis v Vabu Pty Ltd [2001] HCA 44 ; (2001) 181 ALR 263


case_text: plaintiff's application relies substantially on the principles stated by the High Court in Queensland v J L Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 . However, in Black & Decker (Australasia) Pty Ltd v GMCA Pty Ltd [2007] FCA 1623 , Finkelstein J observed at [2] that: [P]arties do incur losses resulting from delay that can never be compensated by a costs order.


case_outcome: referred to

case_text: McDougall J said in Ingot & Ors v Macquarie & Ors [2004] NSWSC 1219 at [21] , the principles stated by Heydon J in Micallef v ICI Operations Pty Ltd & Anor [2001] NSWCA 274 at [63] and [64] need to be taken into account. What Heydon J there said is that justice is the paramount consideration in determining such an application, and this may not necessarily result in complete justice to the party who is in default. Heydon J also pointed out that the ultimate obligation of the court is to strive to attain justice between the parties.


case_title: Micallef v ICI Operations Pty Ltd & Anor [2001] NSWCA 274


case_title: Queensland v J L Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146


case_text: At the time of the decision of the High Court in HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640 it was well established that, in the case of the purchase of property induced by misleading statements, the correct measure of damages (apart from consequential losses) was obtained by deducting the true value of the property at the date of the purchase from the purchase price. It is not necessary to go beyond the analysis of the authorities by the Full Court in Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189 ; (2004) 140 FCR 17 at [252] [258]. It is submitted on behalf of the respondents that HTW Valuers 217 CLR 640 fundamentally changed the situation. I do not agree. In that case, the plaintiff, not the defendant, was seeking to rely upon events subsequent to the transaction. The actual decision affirms the Potts v Miller measure of damage but points out that subsequent events can throw light upon the true value of the property at the time of the transaction ( HTW Valuers 217 CLR 640 per Gleeson CJ, McHugh, Gummow, Kirby and Heydon JJ at [34] [40]). That principle is well known in valuation law and practice and had been referred to by the High Court in Kizbeau Pty Ltd v WG & B Pty Ltd [1995] HCA 4 ; (1995) 184 CLR 281 , particularly at 291 296 per Brennan, Deane, Dawson, Gaudron and McHugh JJ. The Court went on to consider an alternative approach proposed by the plaintiff, that is, that the measure of damages would be the price paid minus the benefits left in its hands at the time of trial it being a case where there had been a significant decline in value by the time of the trial. The Court indicated that there may be circumstances in which that approach would be appropriate ( HTW Valuers 217 CLR 640 at [63] [67]). The decision in Murphy v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 216 CLR 388 points in the same direction. This flows from the principle that a plaintiff induced by misleading conduct to enter into a transaction is entitled to be fully compensated. The same principle led to additional consequential losses being awarded in Gould v Vaggelas [1985] HCA 85 ; (1984) 157 CLR 215. That reasoning does not support the view, espoused by the respondents in this case, that the party responsible for the misleading conduct can benefit from an increase in value in the property acquired by the time of trial.


case_outcome: discussed

case_text: At the time of the decision of the High Court in HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640 it was well established that, in the case of the purchase of property induced by misleading statements, the correct measure of damages (apart from consequential losses) was obtained by deducting the true value of the property at the date of the purchase from the purchase price. It is not necessary to go beyond the analysis of the authorities by the Full Court in Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189 ; (2004) 140 FCR 17 at [252] [258]. It is submitted on behalf of the respondents that HTW Valuers 217 CLR 640 fundamentally changed the situation. I do not agree. In that case, the plaintiff, not the defendant, was seeking to rely upon events subsequent to the transaction. The actual decision affirms the Potts v Miller measure of damage but points out that subsequent events can throw light upon the true value of the property at the time of the transaction ( HTW Valuers 217 CLR 640 per Gleeson CJ, McHugh, Gummow, Kirby and Heydon JJ at [34] [40]). That principle is well known in valuation law and practice and had been referred to by the High Court in Kizbeau Pty Ltd v WG & B Pty Ltd [1995] HCA 4 ; (1995) 184 CLR 281 , particularly at 291 296 per Brennan, Deane, Dawson, Gaudron and McHugh JJ. The Court went on to consider an alternative approach proposed by the plaintiff, that is, that the measure of damages would be the price paid minus the benefits left in its hands at the time of trial it being a case where there had been a significant decline in value by the time of the trial. The Court indicated that there may be circumstances in which that approach would be appropriate ( HTW Valuers 217 CLR 640 at [63] [67]). The decision in Murphy v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 216 CLR 388 points in the same direction. This flows from the principle that a plaintiff induced by misleading conduct to enter into a transaction is entitled to be fully compensated. The same principle led to additional consequential losses being awarded in Gould v Vaggelas [1985] HCA 85 ; (1984) 157 CLR 215. That reasoning does not support the view, espoused by the respondents in this case, that the party responsible for the misleading conduct can benefit from an increase in value in the property acquired by the time of trial. 14 I accept the substance of the evidence of Roberts as to assessment of the sustainable annual net profit. Counsel for the respondents made some progress in cross-examination of Roberts, particularly as to some items of expense. However, there was little ultimate difference between the experts as to total expenses per annum as at the date of settlement. Roberts' approach to the assessment of income is more acceptable than that of Drewitt Smith. However, the actual results for 2004 2005 were better than those for 2003 2004, and those for the period taken by Roberts. I would, therefore, take the later higher figure, rounded up to $200,000, as the maintainable annual profit. I am confirmed in this by noting that in the following year the net profit was comparable, with revenue rising. In my opinion, the trading results more than 12 months after purchase have little relevance as to the value of the motel at the time of purchase. To give any significant weight to them would go beyond use envisaged in HTW Valuers 217 CLR 640. The later results received some attention because of the way in which the respondents put their case. That attention was sufficient to illustrate the difficulty in determining why the results improved in later years capital expenditure by the purchasers, better management by the purchasers, improvement in the Australian economy and improvement in the local economy, due particularly to increased coal mining, all played a part. Furthermore, there is no way of telling how an alternative investment of the purchase price may have fared over the period to trial. 15 This integer reflects the rate of return from a business that a purchaser seeks to achieve from the capital outlaid on the purchase of the business. Generally speaking, a purchaser will accept a lesser return on purchase price (and so pay a higher price) for a business that is either very secure or has good prospects of improving than for a business that is riskier or stagnant. That judgment will be affected by factors such as location, facilities and improvements, trade mix, style and pattern of trade, opposition and potential for improvement. This can be observed by comparing varying capitalisation rates reflected in the purchase price of different motels analysed by the valuers. The calculation of the capitalisation rate in a transaction depends upon the assumption made as to maintainable net profits at the time of purchase of the motel. It is thus necessary to consider the features of each motel and choose the deduced capitalisation rate most appropriate for the motel being valued. 16 In the present case, much of the guess work is removed as the capitalisation rate actually represented by the purchase price paid by the first applicant on the basis of the represented figures is known it was 15%. This is confirmed by the contemporaneous valuation carried out by Robertson and Robertson for the financier. The represented results for the financial years ended on 30 June 2002, 30 June 2003 and 30 June 2004 and the six months from 1 July 2004 to 31 December 2004 were considered. The valuer deduced an annual net profit of $300,465 and applied a 15% capitalisation rate to arrive at the valuation of $2,003,098, increased to $2,050,000 in view of the purchase price. The valuer considered that this was in line with capitalisation rates deduced from a number of other sales. 17 Roberts adopted the rate of 15%. In his opinion, the evidence in relation to motels that could be described as comparable to the Sovereign Inn Motel was generally within a range of between 14% and 16%. In substance, Roberts agreed with Robertson and Robertson. 18 Drewitt Smith considered that the most directly comparable sales supported a capitalisation rate of 12.25% to 12.5%, but adopted 12.75% to reflect the motel's present underperforming position and the time required by an alternative operator to improve occupancy and overall profitability. 19 The difference of opinion between the valuers as to the capitalisation rate that should be deduced from other sales was the subject of cross-examination and was scrutinised in submissions. In my opinion, the actual rate of 15% that was paid, supported by a contemporaneous valuation, is decisive as to that which was represented to the purchaser. However, that was not the true picture as to the past, and the future was not known. 20 If the actual results were known, an informed purchaser would have recognised the possibility of correcting the downturn in results by better management and would have been prepared to accept a lower capitalisation rate (and so paid more) on that account. In my opinion, a capitalisation rate of 12.5% would be appropriate. That choice is confirmed by the improvement of revenue in the following year (albeit with no greater profit).


case_title: Kizbeau Pty Ltd v WG & B Pty Ltd [1995] HCA 4 ; (1995) 184 CLR 281


case_title: Murphy v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 216 CLR 388


case_outcome: applied

case_title: Potts v Miller (1940) 64 CLR 282

case_text: The contract for purchase was entered into on 18 May 2005 and was completed on 6 June 2005. The purchase price was $2,050,000. The first applicant claims the difference between the purchase price and the value of the motel at the time of purchase, based upon the true results, of $1,060,000, together with some consequential losses related to financing. The evidence relates to the date of completion rather than that of contract, but it is agreed that nothing turns upon that in this case. The first applicant's claim accords with the conventional measure of damages in a case such as this it is often referred to as the Potts v Miller basis (a reference to Potts v Miller (1940) 64 CLR 282). The respondents say that that measure is inappropriate in the present case as the purchaser did not rescind but elected to operate the motel profitably with improving results such that by the time of trial the motel was worth at least as much, if not more, than the purchase price paid. As will appear, I reject the respondents' contention. The respondents also contest the valuation of the motel as at the time of purchase and do not accept the consequential losses. 5 At the time of the decision of the High Court in HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640 it was well established that, in the case of the purchase of property induced by misleading statements, the correct measure of damages (apart from consequential losses) was obtained by deducting the true value of the property at the date of the purchase from the purchase price. It is not necessary to go beyond the analysis of the authorities by the Full Court in Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189 ; (2004) 140 FCR 17 at [252] [258]. It is submitted on behalf of the respondents that HTW Valuers 217 CLR 640 fundamentally changed the situation. I do not agree. In that case, the plaintiff, not the defendant, was seeking to rely upon events subsequent to the transaction. The actual decision affirms the Potts v Miller measure of damage but points out that subsequent events can throw light upon the true value of the property at the time of the transaction ( HTW Valuers 217 CLR 640 per Gleeson CJ, McHugh, Gummow, Kirby and Heydon JJ at [34] [40]). That principle is well known in valuation law and practice and had been referred to by the High Court in Kizbeau Pty Ltd v WG & B Pty Ltd [1995] HCA 4 ; (1995) 184 CLR 281 , particularly at 291 296 per Brennan, Deane, Dawson, Gaudron and McHugh JJ. The Court went on to consider an alternative approach proposed by the plaintiff, that is, that the measure of damages would be the price paid minus the benefits left in its hands at the time of trial it being a case where there had been a significant decline in value by the time of the trial. The Court indicated that there may be circumstances in which that approach would be appropriate ( HTW Valuers 217 CLR 640 at [63] [67]). The decision in Murphy v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 216 CLR 388 points in the same direction. This flows from the principle that a plaintiff induced by misleading conduct to enter into a transaction is entitled to be fully compensated. The same principle led to additional consequential losses being awarded in Gould v Vaggelas [1985] HCA 85 ; (1984) 157 CLR 215. That reasoning does not support the view, espoused by the respondents in this case, that the party responsible for the misleading conduct can benefit from an increase in value in the property acquired by the time of trial. 6 I do not accept the proposition that the first applicant could not retain the property and claim damages on a Potts v Miller basis. No authority was cited in support of it and it is contrary to authority in the High Court from Holmes v Jones [1907] HCA 35 ; (1907) 4 CLR 1692 onwards. 7 It is common ground that the value of this motel is to be assessed by capitalisation of the annual net return. It is, thus, necessary to arrive at the annual net return and a capitalisation rate having done so, the formula is: 100 [rparenmid] capitalisation rate × net return = value. The respective valuers disagree about each integer. 8 The first applicant's valuer, Mr Ron Roberts, took the 50-week period from November 2003 to October 2004 to assess the annual net return. That was the period for which the primary records maintained by the vendors were available and it incorporated summer and winter seasons and holiday periods. The primary documents were analysed by accountants retained by the first applicant. With some adjustments to that analysis, Roberts deduced a net weekly income of $3,058 with the net annual return being $159,023.


case_outcome: affirmed

case_title: SZCVC v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FMCA 701


case_text: That proceeding before Madgwick J was a challenge by the appellant to a previous Tribunal's decision to affirm the delegate's decision not to grant him a protection visa. Justice Madgwick, on 5 December 2003, set aside that Tribunal's decision by consent, on the basis that certain country information which the Tribunal relied on was not brought to the appellant's attention, nor was he given a chance to comment on it. In Applicant S416 of 2003 v Refugee Review Tribunal [2003] FCA 1630 ( Applicant S416 of 2003) , Madgwick J said at [3]: There may well have been other reasons which the applicant would have wished to urge as to why the Tribunal Member's decision should be quashed. I am aware, for example, that certain material was sent to the authorities on a confidential basis, making serious allegations against the applicant. I upheld a claim for public interest immunity, made by the Minister, against a requirement that the relevant documents making allegations should be produced to the applicant's legal advisers. The nature of that material, it seems to me, was such that it might well give rise to a claim that if a Member of the Tribunal were to look at it and not show it to the applicant or apprise him of sufficient of the substance as to enable him to deal with it for fear of compromising the identity of the informant, among other things that could give rise to a claim of apprehended bias on the part of the Tribunal Member. It therefore seems to me that in order to forestall, so far as possible, any such dispute, it would be desirable upon the remitter of the matter to the Tribunal for re-consideration according to law that the President of the Tribunal should, with the benefit of legal advice, give the matter his consideration. (Emphasis added.) 11 The Federal Magistrate set out this paragraph of Madgwick J's judgment in Applicant S416 of 2003 [2003] FCA 1630 at [23] of his Honour's reasons and emphasised a passage commencing with the words "(t)he nature of that material" until the end of the paragraph. 12 The Federal Magistrate considered at [25] that "a fair-minded lay observer" would appreciate Madgwick J's warning offered to the Tribunal, but would also note that Madgwick J had left it to the Tribunal "to form its own judgment on how to deal with that material". 13 The Federal Magistrate said at [28]: ...once the material did reach the Tribunal, it was the duty of the member constituting the Tribunal personally to consider its potential relevance, weight and usefulness. To allow another person to perform this assessment, would mean that the Tribunal, as properly constituted by a member designated under ss. 421 and 422, had failed to perform the "review" required by ss. 414 and 415. 14 The Federal Magistrate set out passages from the transcript of the hearing before the Tribunal on 5 August 2004 at [33]. At those passages, the Tribunal: • referred to the appellant's concern about the exempt documents unfairly influencing the Tribunal's decision; • said it could not go into much detail about the contents of the exempt documents; • said the accusations in them were "unsupported"; and • said it would not be taking them into account but would "put them aside".


case_text: In Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 222 ALR 411 ( VEAL ), the High Court considered the Tribunal's obligation to accord procedural fairness in circumstances where it was aware of allegations against a protection visa applicant and where the author of the information containing the allegations has requested it be confidential. In that case, the Tribunal did not inform the applicant about a letter containing allegations which were adverse to his application, but said in its reasons for decision that it gave the letter no weight. The High Court said the Tribunal should have told the applicant of the substance of what was said against him. 18 The Court said at [17]: ...what is "credible, relevant and significant" information must be determined by a decision-maker before the final decision is reached. That determination will affect whether the decision-maker must give an opportunity to the person affected to deal with the information. ... "Credible, relevant and significant" must therefore be understood as referring to information that cannot be dismissed from further consideration by the decision-maker before making the decision. 19 In the instant case, the Tribunal informed the appellant prior to making its decision that it would not take the exempt documents into account. However, this does not mean that the Tribunal applied proper procedure in not telling the appellant the substance of the allegations and allowing him to comment. 20 In VEAL , the Court said at [20]: The information set out in the letter about the appellant could not be dismissed from further consideration by the tribunal as not credible, or not relevant, or of little or no significance to the decision. The Court considered the material to bear "upon whether [the appellant] had a well-founded fear of persecution for a Convention reason". 21 As discussed at [16], the Federal Magistrate said in his Honour's reasons for judgment at [36] that some of the material in the exempt documents was "potentially derogatory of...the credibility of [the appellant's] refugee claims". It may be logically considered that the material in the exempt documents bore directly on whether the appellant had a well-founded fear of persecution for a Convention reason. It is immaterial that the Federal Magistrate was not satisfied the exempt documents had any influence on the Tribunal or whether it was probable that they did. The exempt documents were tendered, confidentially, on appeal. In my view, they had the potential to impact adversely on the credibility of the appellant's refugee claims. 22 Counsel for the Minister submitted that what is "credible, relevant and significant" material is a matter for the Tribunal alone and that a degree of latitude should be given to the Tribunal's views, in circumstances where it announces before making its decision that it will not take the material into account. However, counsel conceded that the Tribunal's view on the credibility, relevance and significance of material could be reviewed by a Court in circumstances where the material is, of its nature, so obviously credible, relevant and significant that a reasonable tribunal could not regard it as otherwise. 23 As indicated at [21], the exempt documents were tendered confidentially on the appeal. Having read them, I cannot fathom how any reasonable tribunal would not be influenced by them to form an adverse view of the appellant's credibility generally and in respect of his refugee claims. Some of the allegations raised in the exempt documents against the appellant are very serious. 24 In my view, no reasonable tribunal could consider that the documents were not "credible, relevant and significant". Some of the material in the exempt documents was supported by other parts of it. That impacts on its potential credibility. The exempt documents could not be divorced from an assessment of the appellant's claim to have a well-founded fear of persecution. At the very least, they could not, by their nature, be reasonably dismissed as not bearing on the credibility of the appellant's refugee claims in a real and substantial way such that the material in them could be put to one side and out of the decision-maker's mind. 25 I note the Tribunal's decision preceded the High Court's judgment in VEAL [2005] HCA 72 ; 222 ALR 411 by about ten months. However, in accordance with VEAL [2005] HCA 72 ; 222 ALR 411 at [29] , the Tribunal, to accord procedural fairness to the appellant, should have informed him of the substance of the allegations made in the exempt documents and asked him to respond to them, or at the very least informed him of the substance of those parts of the exempt documents which bore on the credibility of his claims to have a well-founded fear of persecution, and asked him to respond. In failing to do so, the Tribunal failed to accord the appellant procedural fairness. 26 The decision of the Tribunal must be set aside and the matter remitted to a differently constituted Tribunal. The failure to accord the appellant procedural fairness having been established, it is unnecessary for the Court to consider whether the Tribunal's decision was affected by apprehended bias, as a consequence of it being aware of the allegations made against the appellant. There is no utility in examining this issue because if the matter is remitted to the Tribunal it will bring the substance of the exempt documents, which bear on the appellant's credibility, to his attention and no issue of apprehended bias should arise. 27 The Tribunal dealt with the appellant's claim to fear persecution on account of his political opinion at pp 9-27 of its decision record under the heading "Claims and Evidence". Essentially, the appellant claimed to be involved with and to support the Bangladesh National Party (BNP). At p 13, the Tribunal noted the appellant's claim that, in 1992, the BNP appointed him regional director of the AsiaNews Network Overseas (Network), which he described as "a joint venture between BNP and overseas supporters".


case_text: As Young J said in VWFP v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 231 ( VWFP ) at [62]: In applying s 424A, it is necessary to focus on matters that, viewed prospectively, would be the reason or a part of the reason for the Tribunal's decision, or viewed retrospectively in the light of the Tribunal's actual decision, can be seen to be the reason, or a part of the reason, for the Tribunal's decision. 39 Justice Young also observed in VWFP at [62] that "...s 424A is concerned with information that is adverse to the interests of the visa applicant". 40 The reference letter was not adverse to the appellant's interests. It did not contradict material contained in the appellant's protection visa application. The reference letter was evaluated by the Tribunal for comparison with what the appellant said in his 1999 statement to the delegate. The Tribunal considered the reference letter did not support the appellant's assertion about the connection between the Network and BNP. The Tribunal did not state that the reference letter contradicted the claims made in his 1999 statement to the delegate but, rather, said that it did not support the claims. At this point in its decision-making, the Tribunal was doing no more than evaluating the evidence. 41 Under the heading "Findings and Reasons" in the decision record, the Tribunal did not rely on the reference letter in rejecting the appellant's claim that the BNP stood behind the Network. I agree with the submission of counsel for the Minister that the Tribunal considered it critical to this aspect of the appellant's claim that he was unable to provide evidence to support his claim. In that sense, the Tribunal relied on a lack of information in dismissing this claim of the appellant, rather than on any particular information. In my view, the Court below correctly determined that the Tribunal did not breach s 424A of the Act in coming to its decision. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 17 August 2007 Counsel for the appellant: Mr D Patch with Mr I Latham Solicitors for the appellant: Allens Arthur Robinson Counsel for the second respondent: Mr S Lloyd Solicitor for the second respondent: Australian Government Solicitor Date of Hearing: 24 May 2007 Date of Judgment: 17 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1247.html


case_text: This is an appeal against a judgment of a Federal Magistrate delivered on 11 July 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") handed down on 2 October 2007: see SZLOC v Minister for Immigration and Citizenship [2008] FMCA 930. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship not to grant a protection visa to the appellant. 2 The appellant is a citizen of India, from the district of Kerala, who entered Australia on 10 April 2007. On 19 April 2007 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 31 May 2007. On 27 June 2007 the appellant applied to the Tribunal for a review of that decision. 3 The appellant claimed fear of persecution on the basis of his political opinion. The appellant claimed that he was involved in the Student Federation of India (SFI), the student wing of the Communist Party (Marxist) ("CP(M)") for a number of years. He claimed that the SFI comes under the Democratic Youth Federation of India which is part of the CP(M). The appellant claimed that he faced serious harassment on a number of occasions from the Akhil Bharatiya Vidyarthi Parishad which is the student wing of the Bharatiya Janata Party. The appellant provided the Tribunal with two membership "cards" for the SFI. He claimed that he erected posters, assisted with doorknocking campaigns for the SFI and stood for a student representative election while in Year 8 at high school. 4 The appellant claimed that he and/or his family had been attacked in December 1995 and in 2006. He said that in the 2006 attack his right leg was injured and showed the Tribunal a scar on his knee. He provided the Tribunal with a doctor's certificate which referred to "traumatic injuries both legs from 5.2 06 to 25.2 06." 5 The Tribunal did not accept that the appellant was a witness of truth. The Tribunal found that the appellant's claims that he was a member of the SFI were unsupported. The Tribunal said that it could not rely on the membership documents because the documents were incomplete. The appellant had presented two consecutive receipts for memberships covering one period and he gave evidence that the party membership documents were not originals but had been completed by persons assisting him with his protection visa application.


case_title: Itar-Tass Russian News Agency v Russian Kurier Inc, [1998] USCA2 315 ; 153 F3d 82 (1998)

case_text: Mr Geller examined the decision of the Court of Appeals for the Second Circuit in Itar-Tass Russian News Agency v Russian Kurier Inc , [1998] USCA2 315 ; 153 F3d 82 (1998). He treated it as authority for the proposition that copyright ownership issues are governed by the law of the state with the most significant relationship to the property at issue and the parties claiming ownership. 45 Mr Geller noted that Itar-Tass has been applied by the District Court for the Central District of California, Western Division: Lahiri v Universal Music & Video Distribution Inc 513 Supp 2d 1172 (2007). 47 Mr Geller has appended to his report copies of Title 17, the cases referred to above, and others. I have read the cases. I need refer only to Itar-Tass itself. The case concerned a copyright newspaper article, and had nothing to do with films. The Court first noted that Title 17 contains no provision concerning conflicts issues. It was necessary therefore to fill the interstices of the Act by developing federal common law on the conflicts issue. The Court said: Conflicts rule for issues of ownership. Copyright is a form of property, and the usual rule is that the interests of the parties in property are determined by the law of the state with "the most significant relationship" to the property and the parties. ... The Restatement recognises the applicability of this principle to intangibles such as "a literary idea". The Court then applied that rule to the facts of the case, which as the respondents pointed out, were much more related to Russia than are the facts of the present case related to Australia. But that is neither here nor there. It is the choice of law rule that matters, not the outcome of its application in Itar-Tass . 48 The respondents relied on the evidence of Mr Reichman who has undoubted expertise in copyright law. He disagrees with Mr Geller's opinion and believes "there is a strong possibility that the US Court will apply US Copyright law to determine copyright ownership of The Secret". He gives his reasons. 53 The second related deficiency in Mr Geller's report concerns Itar-Tass . He records the essential reasoning of the Court in that case, but does not advert to the note appended to the following statement: To whatever extent we look to the Berne Convention itself as guidance in the development of federal common law on the conflicts issue, we find nothing to alter our conclusion. The Convention does not purport to settle issues of ownership, with one exception not relevant to this case. The note (n 12) reads in part: The Berne Convention expressly provides that "ownership of copyright in a cinematographic work shall be a matter for legislation in the country where protection is claimed" ... Art 14bis(2)(a). The note goes on to explore whether the Article contains any implication as to the choice of law for copyright issues other than ownership. As indicated at [46], Itar-Tass did not concern a cinematographic work. 54 One of the attachments to Mr Geller's report is his article in Journal, Copyright Society of the United States of America (2004): Conflict of Laws in Copyright Cases: Infringement and Ownership Issues . At 326 Mr Geller says: To repeat our basic point: if a field, such as copyright, has a treaty-governed "international system", an ordre public international, such as the Berne/TRIPs regime, then the principles of that system, to the extent relevant to choice of law, must serve as binding constraints on conflicts analysis in the field. In terms of the Second Restatement of Conflict of Laws, reading treaty commitments into the first criterion of section 6(2)(a), "the needs of the ... international system", help to meet other criteria of section 6. Because it is anchored in treaty principles, this approach enhances the "certainty, predictability and uniformity of results": The Restatement framework sets up two levels of conflicts analysis. We have already indicated that, at a first level, section 6(2)(a) of the Restatement sets out a number of criteria for generally resolving conflicts of law, the first being "the needs of the ... international system". The second level of analysis of the Restatement is found in provisions regarding special areas of law, for example, ... in section 222, regarding the choice of laws to govern [copyright] ownership issues. In such instances, the Restatement proposes to choose the "local law" of the jurisdiction which, with respect to the issue in question, has the "most significant relationship" to the ultimate facts of the case, but this relationship is to be determined "under the principles stated in" (italics added) section 6. Thus, in resolving conflicts of laws in cross-border cases under the Restatement, US courts are directed to attend to any relevant "international system" at the first level of analysis, in order to guide focusing on any arguable "significant relationship" adumbrated at the second level of analysis. Following the Restatement analysis in cross-border copyright cases, the courts should then take account of the relevant system, that is, the Berne/TRIPs regime, which the United States has implemented in the Copyright Act . Although Mr Geller does not refer to Art 14bis(2)(a), that passage provides additional support for attending to the provisions of the Berne Convention in any search by a United States court for the appropriate choice of law in a copyright ownership case. 55 Art 14bis(2)(a) directs one to the law of the country where protection is claimed. That is the law of the United States. Title 17 provides in s 104(b) that the works specified in s 102 , which include motion pictures, are "subject to protection under this title" if the work is first published in the United States, as the works in question here were. 68 (c) TS Production's registration under Title 17 is a clear invocation of the protection of the US copyright regime. The effect of that invocation is that under Art 5(2) of the Berne Convention, claims in the United States are governed by US law. (d) Drew Pictures has also sought to avail itself of the protection of US Copyright law. (e) The Film and the screenplay were first published in the United States. Accordingly that country is their "country of origin" under Art 5(4) of the Convention. (f) Title 17 grants copyright protection to joint authors of cinematograph films. If Mr Heriot makes out his case as a co-author of the screenplay and a director of the Film, he is entitled to copyright protection in the US, and it is irrelevant whether the works were conceived in Australia or partly made here. (g) Article 14bis(2)(a) of the Convention allows the US to legislate for ownership of copyright in a cinematograph film, and US law makes provision for joint ownership in films, which counsel submitted the Act does not appear to do. (h) Mr Reichman's expert evidence should be preferred to that of Mr Geller. Mr Geller's reliance on Itar-Tass is misplaced. Here the works were first published in the United States. That is their country of origin. Further, Itar-Tass observed that although the Berne Convention does not purport to settle all questions of copyright ownership, Art 14bis(2)(a) does deal with ownership of copyright in cinematic films this very case. (i) Australian law will apply in the proceeding in this Court. Title 17 will apply to the Illinois proceeding. There is no identity of issues because the two statutory regimes are different. On that basis there can be no anti-suit injunction to stop the respondents prosecuting their claim in the Illinois proceeding. (j) US domestic law will apply to infringement in the Illinois proceeding: Itar-Tass . (k) Where initial infringement occurs in the United States and subsequent infringement occurs elsewhere, United States law allows the recovery of damages for external infringement, at least if there is a causal link between the infringements: Sheldon v Metro-Goldwyn Pictures Corporation 106 F2d 45 (1939). That is not the position in Australia: s 101(1) of the Act. Thus a cross claim for infringement in this proceeding would only cover damages for infringement in Australia. (l) Joint authors of films are not known to Australian law, and that is the central claim in the Complaint. The declarations sought in the Illinois proceeding that the works are joint works, that the respondents can exploit the works independently of TS Production, and that Mr Heriot is a co-author of the works, are not available under Australian law. It is common ground that amendment of the United States copyright register can only be ordered by a United States court. (m) The provisions of the Act relied on, namely ss 22(4) and 98, are quite different from the co-ownership provisions in Title 17 on which the respondents rely in the Illinois proceeding. 74 For the reasons I have given at [49] to [55], the US court will apply United States law to the ownership dispute. If the plaintiffs establish ownership in Drew Pictures, infringement and damages or lost profits will also be governed by United States law: Itar-Tass .


case_text: Mr Geller noted that Itar-Tass has been applied by the District Court for the Central District of California, Western Division: Lahiri v Universal Music & Video Distribution Inc 513 Supp 2d 1172 (2007).


case_text: A court does not conduct its own researches into foreign law. But if an expert witness refers to foreign statutes, decisions or texts, the court is entitled to look at them as part of the evidence. It does not however go on a roving inquiry of its own. However, if the evidence of experts conflicts as to the effect of foreign sources, the court must look at the sources in order to decide between the conflicting opinions. See Dicey, Morris and Collins on The Conflict of Laws 14 th ed (2006) at 262-266; Cross on Evidence 6 th Aust ed (2000) at 1218-1220; Bumper Corporation v Commissioner of Police of Metropolis [1991] 1 WLR 1362 at 1368-1371. 50 I am forced by my own consideration of the material placed before me by Mr Geller and Mr Reichman to prefer the opinion of the latter. There are in my opinion two related deficiencies in Mr Geller's reasoning. The first concerns Art 14bis(2)(a) of the Berne Convention. Although Mr Geller quotes that provision, he does not to my satisfaction explain why it does not cover the present case. The explanation he offers appears in the paragraph beginning on page 7 and ending on page 8 of his report. In view of its length I will not set it out. I am unable to discern how Mr Geller's centrifugal/centripetal and false conflicts discussion enables him to put Art 14bis(2)(a) aside. 51 The World Intellectual Property Organisation's Guide to the Berne Convention at 85-86 (which is quoted by Mr Reichman and is exhibited to his report), commenting on Art 14bis(2)(a) says: Here the Convention provides expressly that the ownership of copyright of the film is a matter for the country where protection is claimed. This may be the maker in his own right, as under the 'film copyright' system, or the maker by reason of a legal assignment, or it may be the various artistic contributors to the film. National legislation is free to adopt any of the systems. The reference to the law of the country where protection is claimed makes it clear that ownership depends on the law of the country of importation, whoever may be considered the owner of the copyright in the country of origin of the film. For example, if protection is claimed in the United Kingdom, it is the British law which governs ownership; if in France it is the law of that country. I accept Mr Reichman's opinion that Art 14bis(2)(a) is a special choice of law rule applicable to motion pictures. 52 That is also the view of the authors of the leading text on the Berne Convention: Ricketson and Ginsburg, International Copyright and Neighbouring Rights The Berne Convention and Beyond 2 nd ed (2006). In volume 2 at 20.12 they say that in Article 14bis(2)(a) the Convention "both addresses questions of ownership and designates the applicable law". At 20.36 they describe the Article as providing "a choice of law rule regarding initial ownership of cinematographic works".


case_text: The following principles can be derived from decisions of the High Court in Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32 ; (1988) 165 CLR 197 , Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 ; (1990) 171 CLR 538 and CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33 ; (1997) 189 CLR 345. (a) Where an anti-suit injunction is sought in an Australian court in relation to proceedings in another country, the court should first consider whether it is appropriate for it to determine the matter in issue before deciding whether to grant the injunction. (b) A stay is only granted if the Australian court is a clearly inappropriate forum. (c) The onus is on the party seeking a stay to satisfy the court that the continuation of the case would be oppressive or vexatious to the party having regard to the existence an appropriate tribunal in another country. (d) The power to stay proceedings is discretionary, in that it involves a subjective balancing process in which the comparative weight to be given to the particular factors in the circumstances of the case, and the decision whether the power should be exercised, are matters for individual judgment and, to a significant extent, matters of impression. (e) Relevant connecting factors include the law that is to be applied, whether the proceeding has a substantial connection with the law of Australia or the foreign jurisdiction, whether the relevant acts or omissions took place in Australia or the foreign jurisdiction, the parties' places of residence, the location of witnesses and the relative ease of access to sources of proof. (f) If the Australian court is clearly an inappropriate forum, that is the end of the matter, and the considerations going to whether anti-suit relief should be granted do not arise. (g) If the Australian court is not clearly an inappropriate forum, the court may require the applicant to seek a stay or dismissal of the foreign proceeding, or may proceed to determine whether an anti-suit injunction should be granted. (h) Where there is litigation in an Australian court in which complete relief may be had, the institution by a party to that suit of proceedings abroad will generally be vexatious or oppressive, because there is nothing that can be gained by the party over and above what may be gained in the local proceeding. (i) Where the proceeding abroad will give other or additional remedies beyond those available in the Australian court, the foreign proceeding will not be vexatious or oppressive. (j) Where different issues are involved in the local and foreign proceedings, albeit that the two proceedings arise out of the same substratum of fact, the question is not whether the Australian court is a clearly inappropriate forum for the litigation of the issues involved in the Australian proceeding. Rather it is whether, having regard to the controversy as a whole, the Australian proceeding is vexatious or oppressive, namely that they are productive of serious and unjustifiable trouble and harassment to the other party.


case_title: Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 ; (1990) 171 CLR 538


case_text: The following principles can be derived from decisions of the High Court in Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32 ; (1988) 165 CLR 197 , Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 ; (1990) 171 CLR 538 and CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33 ; (1997) 189 CLR 345. (a) Where an anti-suit injunction is sought in an Australian court in relation to proceedings in another country, the court should first consider whether it is appropriate for it to determine the matter in issue before deciding whether to grant the injunction. (b) A stay is only granted if the Australian court is a clearly inappropriate forum. (c) The onus is on the party seeking a stay to satisfy the court that the continuation of the case would be oppressive or vexatious to the party having regard to the existence an appropriate tribunal in another country. (d) The power to stay proceedings is discretionary, in that it involves a subjective balancing process in which the comparative weight to be given to the particular factors in the circumstances of the case, and the decision whether the power should be exercised, are matters for individual judgment and, to a significant extent, matters of impression. (e) Relevant connecting factors include the law that is to be applied, whether the proceeding has a substantial connection with the law of Australia or the foreign jurisdiction, whether the relevant acts or omissions took place in Australia or the foreign jurisdiction, the parties' places of residence, the location of witnesses and the relative ease of access to sources of proof. (f) If the Australian court is clearly an inappropriate forum, that is the end of the matter, and the considerations going to whether anti-suit relief should be granted do not arise. (g) If the Australian court is not clearly an inappropriate forum, the court may require the applicant to seek a stay or dismissal of the foreign proceeding, or may proceed to determine whether an anti-suit injunction should be granted. (h) Where there is litigation in an Australian court in which complete relief may be had, the institution by a party to that suit of proceedings abroad will generally be vexatious or oppressive, because there is nothing that can be gained by the party over and above what may be gained in the local proceeding. (i) Where the proceeding abroad will give other or additional remedies beyond those available in the Australian court, the foreign proceeding will not be vexatious or oppressive. (j) Where different issues are involved in the local and foreign proceedings, albeit that the two proceedings arise out of the same substratum of fact, the question is not whether the Australian court is a clearly inappropriate forum for the litigation of the issues involved in the Australian proceeding. Rather it is whether, having regard to the controversy as a whole, the Australian proceeding is vexatious or oppressive, namely that they are productive of serious and unjustifiable trouble and harassment to the other party. 73 The respondents contend that the Illinois court is able to make an award of damages or loss of profits by reference to infringements occurring outside the United States. Reliance is placed on the decision of the Court of Appeals for the Second Circuit in Sheldon v Metro-Goldwyn Pictures Corporation 106F 2d 45 (1939). The respondents rely, by analogy, on CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33 ; (1997) 189 CLR 345 , where an influential factor in holding that the New South Wales proceeding was oppressive was that CSR could not there pursue its claim for statutory damages under the Sherman Act . However no expert gave evidence here that the Illinois court could make an award of damages or loss of profits by reference to infringements occurring outside the United States. Accordingly I am not at liberty to act in reliance on Sheldon . This is the more so because one of the commentaries to which I was referred spoke only of "sporadic cases" adopting the Sheldon approach, which the authors say is a doctrine invoked "relatively infrequently", and which "many cases ignore": Nimmer on Copyright (2007) SS14-05. Accordingly I have not taken into account this possible advantage to the respondents.


case_text: (c) TS Production's registration under Title 17 is a clear invocation of the protection of the US copyright regime. The effect of that invocation is that under Art 5(2) of the Berne Convention, claims in the United States are governed by US law. (d) Drew Pictures has also sought to avail itself of the protection of US Copyright law. (e) The Film and the screenplay were first published in the United States. Accordingly that country is their "country of origin" under Art 5(4) of the Convention. (f) Title 17 grants copyright protection to joint authors of cinematograph films. If Mr Heriot makes out his case as a co-author of the screenplay and a director of the Film, he is entitled to copyright protection in the US, and it is irrelevant whether the works were conceived in Australia or partly made here. (g) Article 14bis(2)(a) of the Convention allows the US to legislate for ownership of copyright in a cinematograph film, and US law makes provision for joint ownership in films, which counsel submitted the Act does not appear to do. (h) Mr Reichman's expert evidence should be preferred to that of Mr Geller. Mr Geller's reliance on Itar-Tass is misplaced. Here the works were first published in the United States. That is their country of origin. Further, Itar-Tass observed that although the Berne Convention does not purport to settle all questions of copyright ownership, Art 14bis(2)(a) does deal with ownership of copyright in cinematic films this very case. (i) Australian law will apply in the proceeding in this Court. Title 17 will apply to the Illinois proceeding. There is no identity of issues because the two statutory regimes are different. On that basis there can be no anti-suit injunction to stop the respondents prosecuting their claim in the Illinois proceeding. (j) US domestic law will apply to infringement in the Illinois proceeding: Itar-Tass . (k) Where initial infringement occurs in the United States and subsequent infringement occurs elsewhere, United States law allows the recovery of damages for external infringement, at least if there is a causal link between the infringements: Sheldon v Metro-Goldwyn Pictures Corporation 106 F2d 45 (1939). That is not the position in Australia: s 101(1) of the Act. Thus a cross claim for infringement in this proceeding would only cover damages for infringement in Australia. (l) Joint authors of films are not known to Australian law, and that is the central claim in the Complaint. The declarations sought in the Illinois proceeding that the works are joint works, that the respondents can exploit the works independently of TS Production, and that Mr Heriot is a co-author of the works, are not available under Australian law. It is common ground that amendment of the United States copyright register can only be ordered by a United States court. (m) The provisions of the Act relied on, namely ss 22(4) and 98, are quite different from the co-ownership provisions in Title 17 on which the respondents rely in the Illinois proceeding. 73 The respondents contend that the Illinois court is able to make an award of damages or loss of profits by reference to infringements occurring outside the United States. Reliance is placed on the decision of the Court of Appeals for the Second Circuit in Sheldon v Metro-Goldwyn Pictures Corporation 106F 2d 45 (1939). The respondents rely, by analogy, on CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33 ; (1997) 189 CLR 345 , where an influential factor in holding that the New South Wales proceeding was oppressive was that CSR could not there pursue its claim for statutory damages under the Sherman Act . However no expert gave evidence here that the Illinois court could make an award of damages or loss of profits by reference to infringements occurring outside the United States. Accordingly I am not at liberty to act in reliance on Sheldon . This is the more so because one of the commentaries to which I was referred spoke only of "sporadic cases" adopting the Sheldon approach, which the authors say is a doctrine invoked "relatively infrequently", and which "many cases ignore": Nimmer on Copyright (2007) SS14-05. Accordingly I have not taken into account this possible advantage to the respondents.


case_text: The respondents' counsel initially submitted that the Act appears not to make provision for joint copyright ownership in films. Later he became more positive, contending that joint authors of films are not known to Australian copyright law. It may well be correct that the joint authorship provisions in Div 9 of Pt III of the Act do not apply to films, though this question was not mentioned in argument. However, in Seven Network (Operations) Ltd v TCN Channel Nine Pty Ltd (2005) 65 IPR 29 Gyles J held that copyright in a film the product of a joint venture between two persons was "jointly held" by them. On appeal Lindgren J agreed with Gyles J on this point. He said at [20]: Although the circumstances may indicate otherwise, ordinarily co-owners of copyright hold as tenants in common, not as joint tenants .... In the absence of the consent of the other co-owner, one co-owner is neither entitled to do an act comprised in the copyright, nor to grant a licence to a third party to do such an act, and the non-consenting co-owner is entitled to an injunction against the infringing co-owner or putative licensee .... See Seven Network (Operations) Ltd v TCN Channel Nine [2005] FCAFC 144 ; (2005) 66 IPR 101 ( Seven Network ) Finkelstein J at [72] said Gyles J's finding that the two venturers were joint owners was not challenged, and his Honour referred to Prior v Landsowne Press Pty Ltd [1977] VR 65 at 68 as authority that co-owners hold copyright as tenants in common rather than as joint tenants. Edmonds J was of the view that the copyright was acquired by the venturers not as co-owners but separately in accordance with their respective contributions to the joint venture. The whole issue of joint ownership is conveniently summarised in Copinger and Skone James on Copyright 15 th ed (2005) vol 1 at 5 165-5 169. See also Ricketson and Creswell, Law of Intellectual Property: Copyright, Designs and Confidential Information at 14-140, where the significance of s 36(1) of the Act is elaborately discussed. 76 These ownership issues were not canvassed in argument, and TS Production did not contest the assertions at [74]. Nevertheless, in view of the observations of Gyles J and Lindgren J in Seven Network , I do not accept the submission that joint ownership of copyright in films is not known to Australian law. See also s 98(4) and the definition of "director" in s 98(7). 77 Given the first publication of the Film in the United States, the substantial exploitation of the Film in that country, that United States law clearly provides for joint ownership of copyright in motion pictures, that the declarations sought by the plaintiffs are available under United States law, and that that law governs ownership and infringement issues, the plaintiffs have in my view issued their proceeding in the most appropriate place. A United States court is the most obvious and natural form in which to litigate their claims. I attach great importance to the fact that United States law will apply to the ownership as well as the infringement and relief issues. 78 I do not accept TS Production's contention that the plaintiffs' purpose in instituting the Illinois proceeding was to prevent it from pursuing the Australian proceeding. I find that their dominant purpose in taking action in the United States was to obtain the relief they seek in the Complaint. 80 In coming to my conclusion, I have not taken into account any assertions of law made in the Complaint that were not proved by expert evidence. For example, there was no evidence that under United States law one co-owner of copyright can exploit the copyright independently of another. That appears not to be the position under Australian law: Powell v Head (1879) 12 Ch D 686 ; Seven Network at [20] and [74] above. 81 On the respondents' motion I will order that the proceeding be stayed pending the outcome of the Illinois proceeding. I will dismiss TS Production's motion. TS Production must pay the respondents' costs of both motions. 82 Since writing the foregoing, a decision of Judge Susan B Conlon in the Illinois proceeding dealing with, amongst other things, a forum non conveniens application by the defendants, has been handed down. Her Honour's reasons for decision are consistent with what I have written, but I have not taken them into account in reaching my own conclusion. I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg. Associate: Dated: 30 July 2008 Counsel for the Applicant: AJ Myers QC and DJ Batt Solicitor for the Applicant: Arnold Bloch Leibler Counsel for the Respondents: WT Houghton QC and SM Rebikoff Solicitor for the Respondents: Mallesons Stephen Jaques Date of Hearing: 11 July 2008 Date of Judgment: 30 July 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1110.html


case_text: Although Mr Hahnheuser has pleaded reliance on s 45DD(3) of the Trade Practices Act in his amended defence, there is a question whether he is entitled to rely on that provision when he has not participated in the trial of the proceeding. In other words, there is a question as to whether the onus of proof of the elements of s 45DD(3) falls on the person seeking to rely on it, or whether the party contending that a contravention of s 45DB(1) has occurred carries the onus of proving that the elements of s 45DD(3) did not exist. The resolution of this question must lie in ascertaining the intention of the legislature from the provisions of the legislation. Often, the fact that a provision is expressed as an exception to a general provision, whether or not it appears in the same section as the general provision, will be a significant indicator that the onus lies on the party seeking to take advantage of the exception. This is not a conclusive rule. See Vines v Djordjevitch [1955] HCA 19 ; (1955) 91 CLR 512 at 519 and Attorney-General of the Australian Capital Territory On The Relation of Olaseat Pty Ltd v The Australian Capital Territory Minister for the Environment, Land and Planning (1993) 43 FCR 329 at 335-336.


case_text: So far as the evidence goes, the acts of the persons accompanying Mr Hahnheuser were not identical to those of Mr Hahnheuser. He appears to have been the one mixing the ham and water, and the one placing the ham and tainted water in places from which the sheep would be expected to feed. Mr Hahnheuser was the one who gave the television interviews. The evidence does not disclose that any of the other persons did any of these things. There may be cases in which different people perform different acts, all directed towards achieving the same end, but the differences are so great as to prevent the conduct of the different persons being described accurately as conduct "in concert". See the discussion in Australasian Meat Industry Employees Union v Meat and Allied Trades Federation of Australia (1991) 32 FCR 318 at 328-329 per Gray J. Nevertheless, in the present case, the extent of the collaboration is sufficient to support a finding that Mr Hahnheuser and at least one of the persons with him were engaging in conduct in concert. An integral part of the end that they sought to achieve was that there should be proof of the adulteration of the sheep feed, so that the shipment of the consignment of sheep could not go ahead and there would be media coverage, informing the public of the frustration of the attempt to ship those sheep to the Middle East. Thus, recording the videos was an essential part of the conduct. Mr Hahnheuser was assisted in making his point in some of the interviews by the other person holding signs so that they would be visible to the television camera. The result is that at least one other person was actively assisting Mr Hahnheuser to achieve the end that he sought, and was doing so by practical means calculated to complement the acts of Mr Hahnheuser. This fact justifies the finding that there were two persons acting in concert to perform the conduct complained of, and that one of them was Mr Hahnheuser.


case_text: Mr Hahnheuser was the principal actor in the three episodes that made up the conduct. He was the one mixing the ham and water in the bathroom, putting the mixture into the water container, distributing the ham and tainted water in the feedlot and giving the interviews. His name appears on the Press Alert. He did not act alone, however. At least one other person was present in the bathroom at the motel, to operate the video camera. At least two other persons were present with Mr Hahnheuser in the feedlot, one operating the video camera and one shown in the video walking with Mr Hahnheuser, wearing a tee-shirt similar to that worn by Mr Hahnheuser. In some of the television interviews, there are two people shown standing behind Mr Hahnheuser, holding up signs shaped like animals, with slogans written on them. The person whose name was given as Diana Simpson made the booking for the motel room used, and was present at the time. The person whose name was given as Mark Pearson paid for the room. The name Mark Pearson also appears on the Press Alert. In the course of his interviews, Mr Hahnheuser made admissions that there were other persons with him in the feedlot. He described what had happened as an operation that was carefully designed and planned, involving detailed investigations in advance and reconnaissance over a number of days, and as being "highly organised". It is clear that the other persons involved were willing participants; there is nothing to suggest that they were coerced, so as to prevent them from being taken to have acted in concert with Mr Hahnheuser. See Epitoma Pty Ltd v Australasian Meat Industry Employees Union (1984) 3 FCR 55 at 61-63. The activities of Mr Hahnheuser and the other persons with him had the element of contemporaneousness sometimes said to be necessary for a finding of conduct in concert to be made. See Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1985) 9 FCR 425 at 433 per Keely and Pincus JJ.


case_title: Australian Builders' Labourers' Federated Union of Workers Western Australian Branch v J-Corp Pty Limited (1993) 42 FCR 452

case_text: What s 45DB(1) of the Trade Practices Act requires is that trade or commerce be prevented or substantially hindered. It appears to be accepted generally that "hindering" in this context must be given a broad meaning, so that it conveys in any way affecting to an appreciable extent the ease of the usual way of performing the activity concerned. The authorities are referred to in Australian Builders' Labourers' Federated Union of Workers − Western Australian Branch v J-Corp Pty Limited (1993) 42 FCR 452 at 459-460 per Lockhart and Gummow JJ, especially the passage quoted there from the judgment of Mason CJ in Devenish v Jewel Food Stores Pty Ltd [1991] HCA 7 ; (1991) 172 CLR 32 at 45-46. There is no suggestion in the present case that the ease with which Rural Export ensured the supply of feed to the feedlot was affected in a negative way to any extent. It simply had to do more of what it would normally have been required to do, during a longer period than it would have been required to do it. It is possible that Rural Export's capacity to do other things in conducting its trade or commerce might have been affected by the need to spend extra time ordering and directing the delivery of extra feed. There is no evidence to this effect, however. It is said that Rural Export had to spend more money on feed than it otherwise would have in respect of this consignment of sheep. On that basis, it appears to me that the only way in which it could be said that Rural Export's trade or commerce has been hindered would be if it were to be accepted that being obliged to spend more money and to carry out the actions necessary to order and procure the delivery of further feed, in order for Rural Export to discharge its responsibilities with respect to the particular consignment of sheep, amounts to having its trade or commerce hindered. This may require an expansion of the concept of hindering beyond that with which the authorities seem to deal. As the authorities stand, I am unable to say that the trade or commerce of Rural Export was hindered, whether substantially or otherwise.


case_text: The only other relevant authority appears to be Australian Wool Innovation Ltd v Newkirk (No 2) [2005] FCA 1307. That case involved an attempt to strike out a statement of claim in which reliance was placed on s 45DB(1) of the Trade Practices Act , among other causes of action. Hely J struck out those parts of the statement of claim based on s 45DB. The relevant passages in his Honour's judgment are found at [56]-[65] and cast light on the question of interpretation that arises in the present case. It is not clear from the reasons for judgment what trade or commerce the applicants in that case carried on. Reference to an earlier judgment in the same proceeding, Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 at [1] and [3], reveals those applicants to have been a corporation claiming to represent some 30,000 Australian woolgrowers, and persons or companies who were Australian woolgrowers represented by that corporation. In Australian Wool Innovation (No 2) at [57], Hely J pointed out that about 95 per cent of the annual production of Australian wool is exported to places outside Australia. The respondents in that case were alleged to be conducting a campaign against a practice known as mulesing, a practice involving the surgical removal of folds of skin in the breech of a ewe as a measure against flystrike. At [57], his Honour described this as a campaign that could be seen as conduct designed to hinder or prevent the export of Australian wool. His Honour said: On a broad reading of s 45DB , conduct which prevents an export sale of wool is at least arguably conduct which prevents the putative vendor from engaging in trade or commerce involving the movement of goods between Australia and places outside Australia because, as a result of the frustration of the intended sale, there will be no movement of those goods overseas. 50 As his Honour pointed out at [59], the original form in which s 45DB(1) passed through the House of Representatives contained a prohibition on persons, acting in concert, from engaging in conduct where the purpose and effect or likely effect of the conduct was to prevent or substantially hinder a third person from engaging in trade or commerce between Australia and other countries, among the States and Territories or within a Territory. The final form of the provision resulted from an amendment sponsored jointly by the Government and the Australian Democrats, and moved in the Senate. The form of the amendment appears to have provoked some controversy, because a document recording arguments of the Government in favour of the amendment was incorporated into the parliamentary record (Australia, Senate, Debates , (1996) Vol S180, p 5606). That document contained the following passage, which Hely J quoted in Australian Wool Innovation (No 2) at [60]: Some concern has been expressed that the provision, as amended, still imposes a very broad prohibition on conduct that constitutes a primary or second boycott. The concern appears to be based on a view that the expression "trade or commerce involving the movement of goods between Australia and places outside Australia" covers a very broad range of activities, because a great many manufacturing and distribution operations have some connection with the export of goods. The concern is ill-founded. The intention of this amendment is that the prohibition in section 45DB will not apply in respect of the production and distribution of goods within Australia. The boycott conduct that the section is designed to prohibit is conduct that has been undertaken for a particular purpose and which has, or is likely to have, a particular effect. The purpose and effect of the conduct must be to prevent or substantially hinder a third person from engaging in a particular type of trade or commerce. That is, trade or commerce involving the movement of goods between Australia and places outside Australia. In this context, the use of the expression "trade or commerce involving the movement of goods between Australia and places outside Australia" does not mean merely that the trade or commerce affected includes the movement of goods into or out of Australia, or that the movement of goods into or out of Australia forms some part of, or is related to, the trade and commerce. Rather, it means that the trade or commerce that is affected must entail, or be rolled up with, the movement of goods between Australia and places outside Australia. 51 In addition, at [61], Hely J quoted from the speech of Senator Murray, a joint mover of the amendment motion, in the following terms: These amendments represent a signification modification of the original bill ... Instead of a general prohibition on primary boycotts affecting trade and commerce, the prohibition will extend only to trade and commerce involving the movement of goods between Australia and places outside it. This provision will pick up only the act of movement; it will not pick up any other aspect of trade and commerce. Some commentators have suggested that it will pick up any aspect of trade and commerce if some aspect of that trade and commerce were to involve the movement of goods. I wish to state categorically, as a joint mover of the motion, that this is clearly not the intention of that provision. This provision is targeted purely and solely at movement, at shipping, for example. The reason for that is that primary boycotts on the wharves affect many other people. The effect is not limited to the immediate parties involved. If the waterside workers refuse to load perishable goods, the supplying factory might be forced to suspend operations and stand down workers, resulting in innocent employers and employees being hurt. 52 At [62], Hely J expressed the view that it was clear that s 45DB(1) as enacted was intended to have a much narrower field of operation than the form originally proposed. At [63]-[64], his Honour rejected an argument that the provision was ambiguous and might, on one view, be broad enough to encompass the claim made. His Honour decided to resolve the question of construction then and there, rather than to leave it to the trial. He expressed the view that the words "involving the movement of goods" are "obviously words of limitation intended to narrow what would otherwise have been the scope of the s 45DB prohibition." It is noteworthy that his Honour appears to have regarded the issue as so clear as to warrant the striking out of the claim. 53 In the present case, counsel for the applicants objected to reliance being placed on the parliamentary materials on which Hely J relied. The objection was obviously untenable. Section 15AB of the Acts Interpretation Act 1901 (Cth) permits the use of material not forming part of an Act if that material is capable of assisting in the ascertainment of the meaning of a provision. Among the material specified in s 15AB(2) as materials that may be considered are: (e) any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted; ... (h) any relevant material in the Journals of the Senate, in the Votes and Proceedings of the House of Representatives or in any official record of debates in the Parliament or either House of the Parliament. 54 In a case such as the present, the history of a provision can be of great importance in construing its meaning. It is possible to see, as Hely J did, that the operation of the provision has been narrowed substantially when compared with the form in which it was first passed by the House of Representatives and transmitted to the Senate. It is significant that the amendment proposed was supported by the Government. The document incorporated into Hansard, on which Hely J relied, falls squarely within s 15AB(2)(e) and the remarks of Senator Murray, a joint mover of the amendment, fall within s 15AB(2)(h). 55 I respectfully adopt Hely J's reasoning in relation to s 45DB(1). His Honour's judgment was a considered one. To the extent to which Hely J's view is inconsistent with the views of Drummond J in F H Transport and Sackville J in Farah , Hely J's view is to be preferred. There is nothing in the reasons of Drummond J and Sackville J in those two cases to show that their Honours even considered the possibility that the words "involving the movement of goods" should be regarded as narrowing the operation of s 45DB(1), or that either of them considered the parliamentary materials.