case_text: Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 (31 March 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here:   AustLII >> Databases >> Federal Court of Australia >> 2006 >> [2006] FCA 363 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 (31 March 2006) Last Updated: 7 April 2006 FEDERAL COURT OF AUSTRALIA Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 EVIDENCE opinion evidence as to likely consumer behaviour excluded not outside the knowledge and experience of a trier of fact evidence of opinion as to ordinary human nature not admissible alternatively evidence would be excluded on discretionary grounds Evidence Act 1995 (Cth) ss 79 , 135 Makita Australia Pty Ltd v Sprowles Pty Ltd [2001] NSWCA 305 ; (2001) 52 NSWLR 705 at [85] not followed Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 at [16] followed Neowarra v Western Australia (No 1 ) (2006) FCR 208 at [16], [21]-[27] followed Jango v Northern Territory (No 4) (2004) 214 ALR 608 at [19] followed Ramsay v Watson [1961] HCA 65 ; (1961) 108 CLR 642 at 649 cited R v Turner [1975] QB 834 at 841 followed Murphy v The Queen [1989] HCA 28 ; (1989) 167 CLR 94 at 111 followed Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 382 followed Velevski v The Queen [2002] HCA 4 ; (2002) 187 ALR 233 cited Dalgety Spillers Foods Ltd v Food Brokers Ltd [1994] FSR 504 at 527 cited Symonds Cider & English Wine Company Ltd v Showerings (Ireland) Ltd [1997] 1 IEHC 1 at [20] cited Transport Publishing Co Pty Ltd v The Literature Board of Review [1956] HCA 73 ; (1956) 99 CLR 111 at 119 followed Cat Media Pty Ltd v Opti-Healthcare Pty Ltd [2003] FCA 133 at [55] cited Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247 ; (2004) 139 FCR 215 at [21] cited Ligertwood, Australian Evidence , 4 th Edition, 2004 at 494 Heydon, Cross on Evidence , 7 th Australian Edition, 2004 at 930 CADBURY SCHWEPPES PTY LTD v DARRELL LEA CHOCOLATE SHOPS PTY LTD NO. VID 555 OF 2005 HEEREY J 31 MARCH 2006 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 555 OF 2005 BETWEEN: CADBURY SCHWEPPES PTY LTD APPLICANT AND: DARRELL LEA CHOCOLATE SHOPS PTY LTD RESPONDENT JUDGE: HEEREY J DATE OF RULING: 31 MARCH 2006 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: The affidavits of Brian John Gibbs are not admitted into evidence. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 555 OF 2005 BETWEEN: CADBURY SCHWEPPES PTY LTD APPLICANT AND: DARRELL LEA CHOCOLATE SHOPS PTY LTD RESPONDENT JUDGE: HEEREY J DATE: 31 MARCH 2006 PLACE: MELBOURNE RULING 1 The applicant Cadbury Schweppes Pty Ltd (Cadbury) has brought this proceeding against the respondent Darrell Lea Chocolate Shops Pty Ltd (Darrell Lea) alleging contravention of ss 52 , 53 (c) and 53 (d) of the Trade Practices Act 1974 (Cth) and passing off constituted by Darrell Lea's use in its chocolate confectionary business of "the colour Cadbury purple or any colour bearing a striking and obvious likeness to the colour Cadbury purple". 14 The same conclusion is also reached by another route. In Transport Publishing Co Pty Ltd v The Literature Board of Review [1956] HCA 73 ; (1956) 99 CLR 111 at 119 Dixon CJ, Kitto and Taylor JJ said "...it may be said at once that ordinary human nature, that of people at large, is not a subject of proof by evidence, whether supposedly expert or not." 15 As to this, senior counsel for Cadbury submitted: "We are certainly not intending to lead evidence of ordinary human nature but the field of expertise or the area of science which is described as behavioural science is certainly a field of expertise and not a matter of proving ordinary human nature." 16 But with respect, the whole raison d'être of Dr Gibbs' evidence is to attempt to persuade the Court what ordinary human nature will lead people to do when making purchasing decisions about Darrell Lea chocolates, given the respective packaging, advertising etc of that firm and Cadbury. As the very name of Dr Gibbs' discipline conveys, he is concerned with the science of human behaviour. That is without doubt an area of specialized knowledge. But Transport Publishing says that ordinary human behaviour is not a matter to be proved in courts by opinion evidence, whether expert or otherwise. 17 In Transport Publishing (loc cit) their Honours go on to say that "particular descriptions of persons may conceivably form the subject of study and special knowledge". Examples given are persons who are "abnormal in mentality or abnormal in behaviour as a result of circumstances peculiar to their history or situation". Likewise, the manner in which people pursuing a special vocation would reason about a matter of business may be the subject of evidence. An example is that of persons skilled in marine insurance who can give evidence as to the materiality of a non-disclosure. Their Honours then say: "But before opinion evidence may be given upon the characteristics, responses or behaviour of any special category of persons, it must be shown they form a subject of special study or knowledge and only the opinions of one qualified by special training or experience may be received." 18 The second part of that passage of course is echoed in s 79. However, it is clear that this second condition of admissibility assumes that the first has been satisfied, that is to say that the evidence concerns a "special category of persons". 22 The present case is concerned with the brand names, colours and get-up of rival manufacturers of chocolate, and the likely effect of those features on retail purchasing decisions by consumers. Chocolate is an inexpensive, everyday product sold in hundreds of thousands of retail outlets throughout this country. Virtually the whole of the Australian population over the age of about eight years are purchasers or potential purchasers. In no way can consumers of chocolate be considered as a "special category of persons" within the meaning of the Transport Publishing rule. The questions thrown up by this case are quintessentially questions of fact within the experience and knowledge of a trier of fact.


case_outcome: cited

case_text: Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 (31 March 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here:   AustLII >> Databases >> Federal Court of Australia >> 2006 >> [2006] FCA 363 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 (31 March 2006) Last Updated: 7 April 2006 FEDERAL COURT OF AUSTRALIA Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 EVIDENCE opinion evidence as to likely consumer behaviour excluded not outside the knowledge and experience of a trier of fact evidence of opinion as to ordinary human nature not admissible alternatively evidence would be excluded on discretionary grounds Evidence Act 1995 (Cth) ss 79 , 135 Makita Australia Pty Ltd v Sprowles Pty Ltd [2001] NSWCA 305 ; (2001) 52 NSWLR 705 at [85] not followed Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 at [16] followed Neowarra v Western Australia (No 1 ) (2006) FCR 208 at [16], [21]-[27] followed Jango v Northern Territory (No 4) (2004) 214 ALR 608 at [19] followed Ramsay v Watson [1961] HCA 65 ; (1961) 108 CLR 642 at 649 cited R v Turner [1975] QB 834 at 841 followed Murphy v The Queen [1989] HCA 28 ; (1989) 167 CLR 94 at 111 followed Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 382 followed Velevski v The Queen [2002] HCA 4 ; (2002) 187 ALR 233 cited Dalgety Spillers Foods Ltd v Food Brokers Ltd [1994] FSR 504 at 527 cited Symonds Cider & English Wine Company Ltd v Showerings (Ireland) Ltd [1997] 1 IEHC 1 at [20] cited Transport Publishing Co Pty Ltd v The Literature Board of Review [1956] HCA 73 ; (1956) 99 CLR 111 at 119 followed Cat Media Pty Ltd v Opti-Healthcare Pty Ltd [2003] FCA 133 at [55] cited Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247 ; (2004) 139 FCR 215 at [21] cited Ligertwood, Australian Evidence , 4 th Edition, 2004 at 494 Heydon, Cross on Evidence , 7 th Australian Edition, 2004 at 930 CADBURY SCHWEPPES PTY LTD v DARRELL LEA CHOCOLATE SHOPS PTY LTD NO. VID 555 OF 2005 HEEREY J 31 MARCH 2006 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 555 OF 2005 BETWEEN: CADBURY SCHWEPPES PTY LTD APPLICANT AND: DARRELL LEA CHOCOLATE SHOPS PTY LTD RESPONDENT JUDGE: HEEREY J DATE OF RULING: 31 MARCH 2006 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: The affidavits of Brian John Gibbs are not admitted into evidence. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 555 OF 2005 BETWEEN: CADBURY SCHWEPPES PTY LTD APPLICANT AND: DARRELL LEA CHOCOLATE SHOPS PTY LTD RESPONDENT JUDGE: HEEREY J DATE: 31 MARCH 2006 PLACE: MELBOURNE RULING 1 The applicant Cadbury Schweppes Pty Ltd (Cadbury) has brought this proceeding against the respondent Darrell Lea Chocolate Shops Pty Ltd (Darrell Lea) alleging contravention of ss 52 , 53 (c) and 53 (d) of the Trade Practices Act 1974 (Cth) and passing off constituted by Darrell Lea's use in its chocolate confectionary business of "the colour Cadbury purple or any colour bearing a striking and obvious likeness to the colour Cadbury purple". 19 In Cat Media Pty Ltd v Opti-Healthcare Pty Ltd [2003] FCA 133 at [55] in the context of a s 52 and passing off case, Branson J, after noting that both sides had called evidence of marketing consultants which was received without objection, said "However, I consider it appropriate to record that in the particular circumstances of this case, which is concerned with the packaging of a product intended to appeal to a wide segment of the general public, I have found the expert evidence of no real assistance. This is not only because there is, as is common in cases of this kind, conflict between the evidence of the two experts. It seems to me that evidence of opinions based on market research and expert appreciation of consumer behaviour will rarely be of assistance in litigation where the Court's primary concern is with the behaviour to be expected of, and the judgments likely to be made by, ordinary (even if it might be thought, somewhat credulous) members of the community intent on making a relatively modest purchase in a conventional way. I endorse the comment of Beaumont J in Pacific Publications Pty Ltd v IPC Media Pty Ltd [2003] FCA 104 at [92] that where a claim is essentially a matter for the Court's impression, expert views which are merely `impressionistic' can be given no more than nominal weight. These observations are not intended in any way to belittle the importance of market research and expert appreciation of consumer behaviour in other types of cases and for other purposes." 23 Senior counsel for Cadbury referred to the assistance he said I could receive from Dr Gibbs' evidence and how it could be helpful. Without wishing to seem ungrateful, or disrespectful to Dr Gibbs, I think the evidence would not be helpful at all. Rather, it would create many areas of disputation with opposing experts and greatly complicate and lengthen the trial of this proceeding. The observations of Branson J in Cat Media are very much in point. 24 I rule that the affidavits of Dr Gibbs are not admissible. Were they admissible, I would exercise the discretion under s 135 to refuse to admit them. 25 Much of the factual material relied on by Dr Gibbs is not in evidence, or likely to be in evidence, or is vague, tendentious and of little weight. As acknowledged above, such matters go to weight rather than admissibility, but by the same token are relevant in considering probative value for the purposes of s 135.


case_text: Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 (31 March 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here:   AustLII >> Databases >> Federal Court of Australia >> 2006 >> [2006] FCA 363 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 (31 March 2006) Last Updated: 7 April 2006 FEDERAL COURT OF AUSTRALIA Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 EVIDENCE opinion evidence as to likely consumer behaviour excluded not outside the knowledge and experience of a trier of fact evidence of opinion as to ordinary human nature not admissible alternatively evidence would be excluded on discretionary grounds Evidence Act 1995 (Cth) ss 79 , 135 Makita Australia Pty Ltd v Sprowles Pty Ltd [2001] NSWCA 305 ; (2001) 52 NSWLR 705 at [85] not followed Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 at [16] followed Neowarra v Western Australia (No 1 ) (2006) FCR 208 at [16], [21]-[27] followed Jango v Northern Territory (No 4) (2004) 214 ALR 608 at [19] followed Ramsay v Watson [1961] HCA 65 ; (1961) 108 CLR 642 at 649 cited R v Turner [1975] QB 834 at 841 followed Murphy v The Queen [1989] HCA 28 ; (1989) 167 CLR 94 at 111 followed Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 382 followed Velevski v The Queen [2002] HCA 4 ; (2002) 187 ALR 233 cited Dalgety Spillers Foods Ltd v Food Brokers Ltd [1994] FSR 504 at 527 cited Symonds Cider & English Wine Company Ltd v Showerings (Ireland) Ltd [1997] 1 IEHC 1 at [20] cited Transport Publishing Co Pty Ltd v The Literature Board of Review [1956] HCA 73 ; (1956) 99 CLR 111 at 119 followed Cat Media Pty Ltd v Opti-Healthcare Pty Ltd [2003] FCA 133 at [55] cited Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247 ; (2004) 139 FCR 215 at [21] cited Ligertwood, Australian Evidence , 4 th Edition, 2004 at 494 Heydon, Cross on Evidence , 7 th Australian Edition, 2004 at 930 CADBURY SCHWEPPES PTY LTD v DARRELL LEA CHOCOLATE SHOPS PTY LTD NO. VID 555 OF 2005 HEEREY J 31 MARCH 2006 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 555 OF 2005 BETWEEN: CADBURY SCHWEPPES PTY LTD APPLICANT AND: DARRELL LEA CHOCOLATE SHOPS PTY LTD RESPONDENT JUDGE: HEEREY J DATE OF RULING: 31 MARCH 2006 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: The affidavits of Brian John Gibbs are not admitted into evidence. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 555 OF 2005 BETWEEN: CADBURY SCHWEPPES PTY LTD APPLICANT AND: DARRELL LEA CHOCOLATE SHOPS PTY LTD RESPONDENT JUDGE: HEEREY J DATE: 31 MARCH 2006 PLACE: MELBOURNE RULING 1 The applicant Cadbury Schweppes Pty Ltd (Cadbury) has brought this proceeding against the respondent Darrell Lea Chocolate Shops Pty Ltd (Darrell Lea) alleging contravention of ss 52 , 53 (c) and 53 (d) of the Trade Practices Act 1974 (Cth) and passing off constituted by Darrell Lea's use in its chocolate confectionary business of "the colour Cadbury purple or any colour bearing a striking and obvious likeness to the colour Cadbury purple". 20 In Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247 ; (2004) 139 FCR 215 at [21] , a Full Court of this Court cited the above passage with approval and continued: "22 Consideration of these difficulties shows the practical wisdom of the firm rule that the likelihood of conduct being misleading or deceptive is a question for the tribunal of fact and not for any witness to decide: General Electric Co v General Electric Co Ltd [1972] 1 WLR 729 at 738 per Lord Diplock, applied in a s 52 context by Gummow J, with whom Black CJ and Lockhart J agreed, in Interlego AG v Croner Trader Pty Ltd (1992) 39 FCR 348 at 387. 23 Lord Diplock points out (ibid) that a different rule applies in the case of sales not to the general public but in specialised markets concerning persons engaged in a particular trade. In the present case the relevant market is that in which the consumers are business users of domain names. Such users constitute large sections of the public and are not participants in a specialised market in the sense discussed by Lord Diplock." 21 In JD Heydon's Cross on Evidence (7 th Australian ed, 2004) the learned author says at 930: "If the court comes to the conclusion that the subject of investigation does not require a sufficient degree of specialised knowledge to call for the testimony of an expert, evidence of opinion will generally be excluded, especially where the witness is produced merely to present in a cogent and vivid form the case of the party calling that witness. The danger of this evidence is that it dresses up matters which are within the ordinary experience of the tribunal of fact in a beguiling scientific garb which may conceal the blemishes within."


case_text: In 2003 Mr Reid sought, unsuccessfully, to have that native title claim struck out for want of authorisation: see Thomas v State of South Australia [2004] FCA 951. 6 After filing the application on 24 May 2007, Mr Reid purported to file two further amended applications, one on 14 June 2007, the other on 9 July 2007. I have had regard to these for the purposes of the State's motion and, formally, I have proceeded as if leave had been given to file and serve that of 14 June 2007. The State's submissions proceeded on that basis. I took this course because I would in any event have had to strike out the original application because, according to the express terms used in Schedule of O of that application, Mr Reid was, as a member of another claim group, "specifically excluded from this application's claim group". 7 The Schedule A claim group is made up of a two page list of 103 named persons followed by the reference to "other living Kokatha persons as described in Attachment A". Mr Reid claims that access to this Attachment is "restricted". The Attachment provided greater detail about Mr Reid and the named persons and then continues: "4. The Claim group also has the capacity to contain descendents of prior attendees and participants in KPC meetings and activities , (if they are not already in the claim group) and if they are have the necessary ancestry relating to inheritance (i.e. if they are valid Kokatha). Such live persons or live descendents will be included in the claim group in due course (at the discretion of KPC Elders and Advisors). 5. The Claim Group also has the capacity to contain live descendents of prior Custodians over parts of the Kokatha Nation Territory. Such persons will be included in the claim group in due course (at the discretion of KPC Elders and Advisors). 6. The Claim Group also has the capacity to contain adopted persons from other tribes (and their Kokatha descendents) using criteria such as whether such people acknowledge and are schooled in Kokatha law and custom, participate in Kokatha activities, or have valid interests in part of Kokatha Nation territory. (The exact criteria that [sic] used will be up to the Elders to decide)." (Original emphasis)


case_text: As Lindgren J commented in Harrington-Smith v State of Western Australia (No 9) [2007] FCA 31 at [72] : "The expression 'native title claim group' is defined in s 253 to mean, relevantly, the native title claim group mentioned in this passage. The expression is commonly and understandably used to refer to the group on whose behalf a native title determination application claimant application is made. Indeed, Form 1, prescribed by para 5(1)(a) of the Native Title (Federal Court) Regulations 1998 (Cth), uses the expression in that sense, treating 'claimants' and members of the 'native title claim group' as synonymous. But there is no escaping the fact that the 'native title claim group', all of whose members are required by s 61(1) to authorise the applicant to apply, is a group constituted by all the actual holders, according to their traditional laws and customs, of the common or group rights or interests comprising the particular native title claimed." 25 Section 61(4) provides that where a native title application is one authorised by a claim group the application must (a) name the persons constituting the group or (b) otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons. 26 "Authorisation" for the purposes of s 61(1) is defined in s 251B as follows: "For the purposes of this Act, all the persons in a native title claim group ... authorise a person or persons to make a native title determination application ... and to deal with matters arising in relation to it, if: (a) where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group ... must be complied with in relation to authorising things of that kind the persons in the native title claim group ... authorise the person or persons to make the application and to deal with the matters in accordance with that process; or (b) where there is no such process the persons in the native title claim group ... authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group ... in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind." (Original emphasis) 29 I have noted above the tie between group membership and authorisation. Of the significance of authorisation I need do more than gratefully adopt what was said by Lindgren J in Harrington-Smith (No 9) at [1171]-[1172]: "'Proper authorisation is the foundation for the institution and maintenance of a native title claimant application under s 61 of the new Act': Perry and Lloyd , Australian Native Title Law (Thomson Lawbook Co, 2003) at [3.140] p 439. Authorisation is 'fundamental to the legitimacy of native title determination applications', and is 'not a condition to be met by formulaic statements in or in support of applications': Strickland at 259-260. Where the authorisation requirement of s 61(1) is not complied with, the non-compliance is fatal to the success of the application: Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [48] ; Strickland at [56]-[57] (approved in WA v Strickland at [77]-[78]); Drury v Western Australia [2000] FCA 132 ; (2000) 97 FCR 169 at [10] ; Daniel v Western Australia (2002) 194 ALR 278 (FCA) at [11]; De Rose FCA/O'Loughlin J at [933]. Authorisation must be by all the persons who constitute the native title claim group in respect of the common or group rights and interests comprising the particular native title claimed: Risk v National Native Title Tribunal [2000] FCA 1589 at [30] ; Dieri People v South Australia [2003] FCA 187 ; (2003) 127 FCR 364 at [55] ( 'Dieri People' ); Tilmouth v Northern Territory [2001] FCA 820 ; (2001) 109 FCR 240."


case_text: It is well-accepted that "[t]he proper identification of the native title claim group is the central or focal issue of a native title determination application": Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 at [35] . It is that group which provides the authorisation under s 251B: see Harrington-Smith (No 9) , at [1186] ff. It is in that group's favour that a determination, if successful, is made: ibid; see also Colbung v State of Western Australia [2003] FCA 774. 35 I would add that it is unsurprising that the definition of the group itself suffers the above vices. Mr Reid's claim seeks to replace the Kokatha Native Title claim. The claim group itself reflects a house divided. The consequences of this becomes the more apparent when one turns to the authorisation requirement: cf the comments of Mansfield J in Landers at [38]. 36 I consider that the application does not comply with the requirements of s 61 of the Act. 37 The evidence on authorisation has been set out above. While the Form 1 suggests three distinct bases of authorisation (i) self-authorisation, (ii) authorisation by Elders of surrounding Western Desert Tribes and (iii) authorisation by KPC members at a meeting on 17 March 2007 the application itself does not betray whether these are intended to be alternative or cumulative. What is said in the Form 1 is not replicated precisely in the accompanying affidavit. No reference is made to self-authorisation. I note in passing that (i) there is no evidence provided by Mr Reid that the enumerated claim group acknowledge his power of self-authorisation; and (ii) Mr Reid has attempted to secure the signatures of some, but by no means all, of the listed claim group both to a copy of the list and to an attached claim map both unnecessary steps if Mr Reid could self-authorise. Equally in Attachment R, reference is made to Elders at the Spear Creek meeting and to the fact that some of those "have now authorized Mr Reid to attend to Kokatha Native Title matters". It is not at all clear whether these Elders were Western Desert Elders (as para 3 of Part A2 of Form 1 might suggest), or were Kokatha Elders (as the Attachment R comments on the KPC meeting would suggest).


case_text: It is well-accepted that "[t]he proper identification of the native title claim group is the central or focal issue of a native title determination application": Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 at [35] . It is that group which provides the authorisation under s 251B: see Harrington-Smith (No 9) , at [1186] ff. It is in that group's favour that a determination, if successful, is made: ibid; see also Colbung v State of Western Australia [2003] FCA 774.


case_text: The requirements that the group be constituted by all the actual native title holders and that a determination, if successful, is to be made in their favour carry with them two consequences. The first is that a subset or part of what truly constitutes a native title group cannot itself be a claimant group under s 61(1): Risk v National Native Title Tribunal [2000] FCA 1589 at [60] - [61] ; although in some, though by no means all, instances, there may be good reason for hesitation in readily concluding that an alleged group is only a sub-group or part of a group for s 84C purposes: see McKenzie v State of South Australia (2005) 214 ALR 214 at [41]. The second is that where the class membership is described, not listed, there must be descriptive certainty of the class, i.e. the application must describe the persons who are within the class "sufficiently clearly so that it can be ascertained whether any particular person is one of those persons": cf 61(4)(b) and McKenzie at [42]-[43]. 29 I have noted above the tie between group membership and authorisation. Of the significance of authorisation I need do more than gratefully adopt what was said by Lindgren J in Harrington-Smith (No 9) at [1171]-[1172]: "'Proper authorisation is the foundation for the institution and maintenance of a native title claimant application under s 61 of the new Act': Perry and Lloyd , Australian Native Title Law (Thomson Lawbook Co, 2003) at [3.140] p 439. Authorisation is 'fundamental to the legitimacy of native title determination applications', and is 'not a condition to be met by formulaic statements in or in support of applications': Strickland at 259-260. Where the authorisation requirement of s 61(1) is not complied with, the non-compliance is fatal to the success of the application: Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [48] ; Strickland at [56]-[57] (approved in WA v Strickland at [77]-[78]); Drury v Western Australia [2000] FCA 132 ; (2000) 97 FCR 169 at [10] ; Daniel v Western Australia (2002) 194 ALR 278 (FCA) at [11]; De Rose FCA/O'Loughlin J at [933]. Authorisation must be by all the persons who constitute the native title claim group in respect of the common or group rights and interests comprising the particular native title claimed: Risk v National Native Title Tribunal [2000] FCA 1589 at [30] ; Dieri People v South Australia [2003] FCA 187 ; (2003) 127 FCR 364 at [55] ( 'Dieri People' ); Tilmouth v Northern Territory [2001] FCA 820 ; (2001) 109 FCR 240."


case_text: The requirements that the group be constituted by all the actual native title holders and that a determination, if successful, is to be made in their favour carry with them two consequences. The first is that a subset or part of what truly constitutes a native title group cannot itself be a claimant group under s 61(1): Risk v National Native Title Tribunal [2000] FCA 1589 at [60] - [61] ; although in some, though by no means all, instances, there may be good reason for hesitation in readily concluding that an alleged group is only a sub-group or part of a group for s 84C purposes: see McKenzie v State of South Australia (2005) 214 ALR 214 at [41]. The second is that where the class membership is described, not listed, there must be descriptive certainty of the class, i.e. the application must describe the persons who are within the class "sufficiently clearly so that it can be ascertained whether any particular person is one of those persons": cf 61(4)(b) and McKenzie at [42]-[43].


case_text: Finally I should note that s 84C(1) provides that, if an application does not comply with s 61, s 61A or s 62, a party to the proceedings may at any time apply to this Court to strike it out. All I need observe here is that the court's power should be exercised only where the claim as expressed is untenable upon the "version of the evidence" favourable to the respondent to the strike out: McKenzie , at [26]; Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77. 31 It is submitted by the State that the described native title claim group is flawed in two respects: (i) it is descriptively uncertain in that, beyond the listed members, the group may be expanded to include persons of certain characteristics at the discretion of certain people: see para 4-6 of Attachment A quoted earlier; and (ii) the present group is only part of the group acknowledged by Mr Reid to be capable of being brought within it as witness the exclusion of persons previously acknowledged by him and by Kokatha lawmen to be representatives of the Kokatha people, the suggestion that Mr Reid is able to add thousands to the claim group and the assertion that members of the claim group are members of the KPC, although as such they bring a claim "for Kokatha people": see the affidavit accompanying the application quoted above. 32 It is unnecessary for me to express a concluded view on the former the descriptive uncertainty submission as I am satisfied that the claim group as described is merely part of a group. Nonetheless, I would comment that there is an arguable case of uncertainty in the description of the possible members who may be given entry to the group in the future. These are envisaged by clauses 4 to 6 of Attachment A. They may or may not be admitted to the group at the discretion of KPC elders. Leaving to one side the arresting character of the stated criteria of cl 4 (prior attendance and participation in KPC meetings etc), there is nothing to suggest that the discretions given are a product of, and are to be informed by, the traditional laws acknowledged and the traditional customs observed by the aboriginal peoples holding the native title rights and interests in question. The clauses may well be vulnerable at this point for this reason.


case_text: Attachment A to the application indicates that the listed members of the claim group are KPC members. The KPC constitution ties membership to acceptance by Mr Reid. The KPC, though, is not a holder of native title rights and interests. Neither can it authorise a native title claim: cf Briggs v Minister for Lands for the State of New South Wales [2004] FCA 1056 ; (2004) 209 ALR 75. A native title group whose members are the members of an incorporated association may, where there is no relevant and mandatory traditional decision making process applicable to the making and conduct of a claimant application, agree to and adopt a process for those purposes: see s 251B(b) and Bolton v State of Western Australia [2004] FCA 760 at [44] . There is no reason in principle to prevent them agreeing to, and adopting a process which utilises a meeting of their association. But, as French J indicated in Bolton at [44], the s 251B(b) requirement necessitates that the authorisation process must be able to be traced to a decision of the native title group who adopt that process.


case_text: Attachment A to the application indicates that the listed members of the claim group are KPC members. The KPC constitution ties membership to acceptance by Mr Reid. The KPC, though, is not a holder of native title rights and interests. Neither can it authorise a native title claim: cf Briggs v Minister for Lands for the State of New South Wales [2004] FCA 1056 ; (2004) 209 ALR 75. A native title group whose members are the members of an incorporated association may, where there is no relevant and mandatory traditional decision making process applicable to the making and conduct of a claimant application, agree to and adopt a process for those purposes: see s 251B(b) and Bolton v State of Western Australia [2004] FCA 760 at [44] . There is no reason in principle to prevent them agreeing to, and adopting a process which utilises a meeting of their association. But, as French J indicated in Bolton at [44], the s 251B(b) requirement necessitates that the authorisation process must be able to be traced to a decision of the native title group who adopt that process. 47 It is at this point of tracing back that the alleged authorisation's ineffectiveness becomes apparent. While there is evidence that the less than 20 of the 103 members of the claim group who were present at the meeting voted unanimously for the application to be made, there is no evidence at all that such notice of the meeting as was given, advertised other than that an AGM was to be held. There is nothing to suggest that the group members were being asked to agree to and adopt a non-traditional process for authorising a claimant application. This would, of itself, be enough to reject the legitimacy of the claimed authorisation process. Further, and in light both of the evidence on notice and of the limited attendance, there is no reasonably arguable basis on which one could infer that the meeting was fairly representative of the claim group: see Bolton at [46]. There is not, in my view, any arguable basis for contending that the meeting was in the circumstances adequate to satisfy the requirements of s 251B(b). 48 For the above reasons I have ordered that the application be struck out under s 84C of the Native Title Act . 49 I will order that my order suspending the above order be vacated.


case_title: Cretazzo v Lombardi (1975) 13 SASR 4

case_text: The Court's general discretion to award costs is conferred by s 43 of the Federal Court of Australia Act 1976 (Cth). It is well accepted that the general discretion conferred by s 43 is absolute and unfettered but that it must be exercised judicially and not on grounds unconnected with the litigation: see Cretazzo v Lombardi (1975) 13 SASR 4 at 11; Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727 at 732. In the exercise of that discretion the usual principle applied is that ordinarily costs follow the event so that a successful litigant receives costs in the absence of special circumstances justifying some other order: Ruddock v Vadarlis [2001] FCA 1865 ; (2001) 188 ALR 143 at [11] .


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


case_text: In McKenzie v State of South Australia [2006] FCA 891 at [8] I referred to the case law on s 85A. Here I need only repeat what I said there: "The most authoritative statement of the matters which should inform the exercise of discretion in awarding costs in light of this section was given by Lee J in Ward v Western Australia [1999] FCA 580 ; (1999) 93 FCR 305, in comments later endorsed by the Full Court in De Rose v State of South Australia (No 2) [2005] FCAFC 137. His Honour noted first, that s 85A(1) is intended to remove the expectation that costs will follow the event but that despite this, the Court retains its discretion as to costs unlimited by subrule (1); secondly the 'unreasonable conduct' of the parties is not a jurisdictional fact which preconditions the exercise of the discretion and, conversely, s 85A(2) will not control or limit the discretion in subrule (1); thirdly, whilst the exercise of the discretion when making a costs order should be judicial, the starting point is that each party will bear their own costs." 61 I do not go so far as to say that, where a strike out motion is brought, a native title claimant is entitled as of course to have that motion determined without fear of an adverse costs order: cf McKenzie [2006] FCA 891 where costs orders were made on an application to discontinue under the shadow of an apprehended strike out motion. Each case must depend on its own circumstances. In the present matter I attribute particular importance to Mr Reid's being an unrepresented person who received spasmodic legal and other assistance which clearly was unequal to the challenge presented by the strike out motion; the motion was brought within a very short period after the filing of the application and the matter was dealt with expeditiously because of its potential to impact on the overlap proceedings. Mr Reid did not capitulate in the face of the flaws indicated to him by the State. He clearly erred in so doing. On balance, though, I do not consider that he so unreasonably caused the State and the ALRM to incur costs in connection with the conduct of the proceeding, or otherwise so acted as to warrant an adverse costs order. 62 Accordingly, I will make no order as to costs. 63 I would add this. Both the State and the ALRM in their submissions sought a costs order, inter alia, for the purpose of providing a clear message to any further potential native title claimants that it is necessary to ensure that matters of form and procedure are strictly to be adhered to when lodging claimant applications. As I earlier indicated, I do not regard deterrence to be a permissible reason for a costs order. This said, the fact and circumstances of this successful strike out motion ought be of no little interest to persons who have made, or who are contemplating making, claimant applications in relation to claim areas that overlap that in the Kokatha overlap proceedings. I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 21 September 2007 Counsel for the Applicant: Mr E Fardone Solicitor for the Applicant: Fardone & Co Counsel for the 1 st Respondent Group: Mr C Kourakis QC and Mr S McCall Solicitor for the 1 st Respondent Group: Crown Solicitor's Office Counsel for the 2 nd Respondent Group: Mr M Steele Solicitor for the 2 nd Respondent Group: Aboriginal Legal Rights Movement Inc. Date of Hearing: 17 August 2007 Date of Judgment: 21 September 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1479.html


case_text: The one additional comment I should make is that it is not proper to use the power to award costs to punish either a successful or an unsuccessful party: cf Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 at 566-567; or as a deterrent to other would-be applicants. I refer to these matters as Mr Reid clearly has been an irritant to others involved in the Kokatha Overlap Proceedings (SAD 6013 of 1998) and his stances and actions have, probably, in some degree impacted adversely upon their expectations in the conduct of those proceedings. 55 The parties have filed written submissions on this matter. I do not intend to outline them in any detail. I have had regard to them. There are, though, two matters arising out of the submissions made by Mr Reid's counsel to which I should refer lest he continue to labour under several obvious illusions. First, I did not strike out Mr Reid's claim because of an alleged misunderstanding arising out of responses he made to questions I asked him and to which I referred above at [11] to [13]. Secondly, I did not strike out the application for the reason that I did not want it to get in the way of a scheduled case management conference. 56 It is clear that the application itself was a product of Mr Reid's increasing dissatisfaction both with the conduct of the Kokatha Native Title claim and with the overlap proceedings (SAD 6013 of 1998) in relation to the Barngala applicants. Even though he had other avenues open to him to express his point of view after his unsuccessful attempt to strike out the Kokatha Native Title Claim, I am satisfied that his own application was brought in good faith and I am satisfied that as a litigant in person for all practical purposes, he acted reasonably in instituting the proceedings even though the application itself was misconceived when considered in light of the distinctive requirements of the Native Title Act . I am not prepared to assume in light of his previous involvements in proceedings relating to the Kokatha Native Title claim that he should be regarded as adequately versed in the mysteries of the Native Title Act and hence as bearing the risk of his misconceptions. Further, I am not satisfied that the timing of his application was informed by some improper motive and in particular that of disrupting the conduct of other proceedings to the extent of any overlap: see s 67 of the Act. I accept that health considerations and the paucity of advice and assistance go far to explain the timing of the application.


case_outcome: affirmed

case_title: MZXPH v Minister for Immigration and Citizenship (2007) FMCA 1620

case_text: This is an application for an extension to time to file and serve a notice of appeal from the judgment of a Federal Magistrate: MZXPH v Minister for Immigration and Citizenship [2007] FMCA 1620 , delivered on 12 October 2007. The Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal dated 22 January 2007. The Tribunal had affirmed a decision of the delegate of the Minister to refuse to grant the applicant a protection visa. 2 The applicant claimed to have a well-founded fear of persecution on the basis of membership of a particular social group and actual or imputed political opinion. He claimed to fear persecution from one Anuradda Ratwatte, the Defence Adviser to the Sri Lankan president. He claimed his grandfather, who was a police officer, had allegedly been threatened by Ratwatte during Sri Lankan elections and later murdered. He claimed his father, a former assistant superintendent of police, had previously arrested a number of members of the SLFP, Ratwatte's party. His father had been imprisoned on false charges but later acquitted on appeal. Since 1995 when Ratwatte's party gained power the appellant and his family have been harassed and threatened by Ratwatte's henchmen. 3 The applicant also claimed that fresh warrants for murder had been issued against his father, who now lives overseas, and that if he returned to Sri Lanka he would be detained until his father handed himself in. The applicant further claimed that he feared persecution because he was a United National Party supporter and former employee, and shared a close relationship with a number of UNP politicians.


case_outcome: considered

case_text: As the High Court reaffirmed in SZBEL at [26], the particular content to be given to the requirement to accord procedural fairness will depend on the facts and circumstances of the particular case. The Tribunal is required to identify any issue critical to the decision (at [29], citing Commissioner of Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591 2). In identifying the requisite opportunity to be heard, the applicant is entitled ' to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material ' ( Alphaone at 590-1; SZBEL at [32]). The High Court (at [33]) emphasised the importance of the reference in s 425 of the Act to ' the issues arising in relation to the decision under review '.


case_outcome: applied

case_text: The appellant submits that the Tribunal decision is infected by jurisdictional error for failure to comply with s 425 of the Act. The appellant contends that the Tribunal failed to identify the issues that arose in relation to the decision under review and failed to take the steps necessary to identify the issues other than those that the Delegate considered dispositive ( SZBEL v MIMIA [2006] HCA 63 ; (2006) 231 ALR 592 at [35] ). She says that it failed to ask her to expand upon those aspects of her account that it considered may be important for the decision and may be open to doubt ( SZBEL at [47]). 14 In SZBEL at [36], the High Court observed that an applicant for review of a Delegate's decision would be entitled to assume that the reasons given by the Delegate for refusing to grant the application will identify the issues that arise in relation to that decision, unless the Tribunal tells the applicant something different. At [47], the High Court acknowledged that there may be cases where the Tribunal's statements or questions during a hearing sufficiently indicate to an applicant that everything she says in support of the application is in issue. Where there are specific aspects of an account that the Tribunal considers important to the decision and open to doubt, the Tribunal is obliged to ask the applicant to expand on those aspects and explain why the account should be accepted. 15 As the High Court reaffirmed in SZBEL at [26], the particular content to be given to the requirement to accord procedural fairness will depend on the facts and circumstances of the particular case. The Tribunal is required to identify any issue critical to the decision (at [29], citing Commissioner of Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591 2). In identifying the requisite opportunity to be heard, the applicant is entitled ' to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material ' ( Alphaone at 590-1; SZBEL at [32]). The High Court (at [33]) emphasised the importance of the reference in s 425 of the Act to ' the issues arising in relation to the decision under review '. 16 Section 425 requires that the appellant understand the issues that are relevant to the Tribunal in its function of reviewing the Delegate's decision. Where the Tribunal made it clear that it was "starting afresh", the appellant could not have assumed that the reasons given by the Delegate would identify for her the issues that arose in relation to that decision because she was not aware of the content of that decision. Accordingly, the Tribunal made it plain to the appellant that all issues identified in her application for a protection visa and the further issues raised at the hearing were, within the context of s 425 , the issues that arise in relation to the decision under review. ' It is those issues which will determine whether rejection of critical aspects of an applicant's account of events was "obviously...open on the known material" ' ( SZBEL at [38]). If every aspect of the claim is in issue or if an issue is made clear to the applicant, it is then open to the Tribunal to accept or reject some or all aspects of the applicant's account ( SZBEL at [39]). 17 The relevant issues can be ascertained from the reasons for the Tribunal decision. The appellant identifies the issues, that she says should have been identified, as relating to: (a) the appellant's practice of her Christian faith in Australia; and (b) the appellant's willingness to risk her livelihood and to endanger her dependent child to assist her friend when the potential consequences of this choice were known to her. 18 The appellant submits that, by reason of s 425 of the Act, the Tribunal was not entitled to relieve itself of the obligation to deal independently with the decision under review, the decision of the Delegate. In circumstances where the Delegate had accepted the appellant as a Christian and made no adverse finding as to her credibility, the appellant contends that she had no reason to believe that she would be disbelieved on this issue. Consequently, the appellant says that she would have been entitled to believe that, on review of the Delegate's decision by the Tribunal, there was no additional issue to be addressed ( SZBEL at [35]). 19 When the appellant told the Tribunal that she was unaware of the Delegate's reasons for decision, the Tribunal did indicate to the appellant that it was looking at the matter afresh, without reference to the Delegate's decision. The issue of the appellant's own practice of the Christian faith, which she began to practise in Australia, was first raised by the appellant at the hearing before the Tribunal. It was not raised before the Delegate. The Delegate's decision was based upon the appellant's claim to be a Christian in China. That was not her claim to the Tribunal. The appellant clearly stated that she was not a Christian while in China. The Tribunal was entitled to consider the claim made to it. Where that conflicted with the basis for the Delegate's decision, the Tribunal was entitled to disregard that decision and the apparent inconsistency in circumstances where the issues before the Tribunal were as presented by the appellant to the Tribunal. 20 The appellant accepts that the Tribunal asked her about her experiences at the Blacktown Screaming Sect but says that at no stage did the Tribunal put her on notice that she would be disbelieved, or that the perceived paucity of the information she provided would be the basis for an adverse finding as to her credit; the Tribunal did not challenge her evidence, express any reaction or invite her to amplify her account. 21 As the issue was raised for the first time before the Tribunal, the appellant should have been in no doubt that it was an issue arising in relation to the Tribunal's consideration and in relation to the decision under review. Therefore, she could not have assumed that it was not in issue because of the Delegate's decision. The Tribunal asked the appellant a number of questions about her understanding of Christianity and her practice of it, to which the appellant responded. The issue was clearly raised. The tenor of those questions made it apparent that the Tribunal did not accept the mere assertion and was testing it. The Tribunal was not obliged to explain its reasoning or its thinking to the appellant. 22 The appellant says that the Tribunal did not specifically tell her that it disbelieved her account of her practice of Christianity. That is correct. However, the practice of Christianity in Australia was not a basis of the appellant's claim to have a well-founded fear of persecution on her return to China. She did not make that claim at the hearing. She spoke of her practice in Australia in response to the question ' are you a Christian? '. Her response was ' I wasn't a Christian when I was at home. I became a Christian after I arrived in Australia '. In her visa application, the appellant said ' I have been regarded as a person to smuggle the illegal Bible from the overseas to China; and it means that I must be arrested by the Chinese government immediately on my return '. That is, it was her past involvement in Bible smuggling and not her present practice of Christianity that founded her claimed fear of persecution. The Tribunal did, however, consider her claim to practise Christianity and rejected it, based on its conclusions about the appellant's credibility. 25 The Tribunal clearly put the appellant on notice that it was having real difficulty in accepting that she would take the risk of being involved in a smuggling operation and being the target of the PSB. Those statements and questions by the Tribunal sufficiently indicated to the appellant that everything she said on this subject was in issue ( SZBEL at [47]). The issue for the Tribunal was whether to believe the appellant. That raised the issue of whether she would have smuggled Bibles in view of the potential risk. The question is whether the fact that she had a business and a dependent child were issues in themselves or factual matters that related to the issue of risk. If they are factual matters that go to the issue arising in relation to the decision under review (ie, risk generally), the Tribunal is not obliged to put each of those factual matters to the appellant. The Tribunal is obliged to inform her of the issue but not of each fact that relates to it. 26 Was the risk to the business and the child, independently of the general issue of risk, important to the Tribunal decision and open to doubt? If so, the Tribunal should at least have asked the appellant to expand on those aspects and to explain why the account should be accepted ( SZBEL at [47]). This is not to require the Tribunal to give the appellant a ' running commentary ' upon its thinking ( SZBEL at [48]). 27 There is no doubt that the Tribunal considered it important that the risks involved with smuggling Bibles weighed against the appellant's asserted reason for engaging in that activity. That reason was that her friend, with whom she had a commercial arrangement, had assisted her financially to establish a business. The existence of risk was an important factor in the rejection by the Tribunal of the appellant's claim to have been involved in the smuggling. After stating the various factors, the Tribunal said that: ' the Tribunal does not accept that armed with this knowledge ', that her friend had had to flee the country and another person had been sentenced to three years in a labour camp, ' that the [appellant] would take the risk of being involved in a smuggling operation that had been the target of the PSB '. After stating this conclusion, the Tribunal noted that the appellant had a business and an eleven year old dependent child and said that it ' cannot accept that the [appellant] would become involved in this activity given her knowledge of the adverse consequences of this type of activity '. 28 In the context of the Tribunal decision, the business and the child were not the issues on which the decision to reject the appellant's claim were based. They were not determinative but additional factual matters that elaborated the matters to be balanced against the risk. The key point in the Tribunal's assessment was the fact that there was a risk to the appellant and, in those circumstances, it did not accept that there was sufficient reason for her to take such a risk. The appellant was directed to that issue at the hearing, asked about it and told that the Tribunal found it difficult to accept her evidence. The Tribunal did not fail to comply with s 425 of the Act in this regard.


case_text: I granted leave to the appellant to appeal from a decision of Smith FM ( SZJUB v Minister for Immigration & Anor [2007] FMCA 325). His Honour dismissed her application, under rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 , for a review of the Tribunal decision affirming the decision of a delegate of the first respondent ('the Delegate') to refuse her application for a protection visa. That application was based on an alleged failure of the Tribunal to comply with ss 424A(1) and 425 of the Migration Act 1958 (Cth) ('the Act'), an alleged reasonable apprehension of bias on the part of the Tribunal and an alleged denial of procedural fairness. The appellant initially appeared without representation. I made an order under Order 80 rule 4 of the Federal Court Rules for legal assistance to be provided to the appellant. Ms Nolan of counsel now appears, pro bono. 2 The amended notice of appeal raises two grounds of appeal, namely, that the Federal Magistrate failed to find: • jurisdictional error on the part of the Tribunal by failure to consider an integer of the appellant's claim to hold a well-founded fear of persecution for reasons of religion; and • denial of procedural fairness by the Tribunal, thereby a breach of s 425 of the Act by failing to identify for the appellant at the Tribunal hearing the issues arising in relation to the decision under review. 3 It is not necessary to canvass the background facts relating to the appellant in any detail. In essence and relevantly the appellant claimed that: • During a difficult period in her life the appellant was assisted by a friend (Ms W) in opening a beauty salon in her home town. In the middle of 2001, Ms W went missing. The appellant learned from the police that Ms W had been suspected of smuggling Bibles into China. The appellant was later contacted by Ms W and asked to smuggle Bibles into China. Ms W said that she needed ' a reliable person who did not have any religious background ' and who was not associated with the Shouters (an underground Christian religious organisation to which Ms W belonged). The appellant agreed to smuggle the Bibles. • The appellant's beauty salon became a "secret station" for the smuggling. Later, Ms W advised the appellant to leave home as the police had been informed. She left China with a false passport. • In the application for a protection visa ('the visa application') the appellant stated her religion as "Christian". • In the statutory declaration that accompanied the visa application, the appellant made no claim to fear persecution on the basis of her own Christianity. She claimed that, as a person who had smuggled Bibles into China, she would be regarded as a Christian or as a person who engaged in smuggling Bibles.


case_text: The applicant seeks leave to appeal from a judgment of Weinberg J, given on 11 October 2006: see Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325. Leave is necessary because the judgment was interlocutory in nature: see Vranic v Commissioner of Taxation (2002) 67 ALD 798, [2]. The application was brought out of time but no objection was raised to me considering the merits of the application as argued by Ms Bahonko. His Honour had refused an application, by Ms Bahonko, for an enlargement of time within which to file an application and claim pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ('the Act'). The decision which provided the catalyst for Ms Bahonko's application had been made under s 46PH(1)(c) of the Act. The President of the Commission had terminated a complaint made by her against the respondents because he considered that the complaints were 'trivial, vexatious, misconceived or lacking in substance'. By s 46PO(1) of the Act, a complainant, whose complaint is terminated by the President, may make an application to this Court alleging unlawful discrimination by one or more of the respondents to the complaint. Section 46PO(2) requires that any such application must be made within 28 days after the date of issue of the notice that the complaint has been terminated. 2 The relevant notices of termination were issued on 9 June 2006. Ms Bahonko filed her application in this Court on 18 July 2006. Since the application was made more than 28 days after the issuing of the notices, it was necessary for her to make the application which was considered by Weinberg J. 3 His Honour accepted that the claim was filed only a short time after the prescribed period had expired, that Ms Bahonko had an acceptable explanation (illness) for the late filing and that none of the respondents was prejudiced by the late filing. He nonetheless rejected the application on the ground that it would be futile to allow the application to proceed because, for jurisdictional and evidentiary reasons, it was bound to fail against each of the respondents. 10 At the hearing Ms Bahonko argued that: • Weinberg J was confused about whether the proceeding which Ms Bahonko wished to commence was a proceeding under s 46PO of the Act or a proceeding under the Administrative Decisions (Judicial Review) Act 1977 ( Cth). • Weinberg J had demonstrated hostility against her during argument. She objected, for example, to being told by His Honour: 'don't tell me how to run my Court.' • Weinberg J put words into the mouths of respondents' counsel. • She was tricked into going into a full hearing. 11 These complaints lack substance. They may, in part, be explained by Ms Bahonko's lack of understanding of normal Court processes. • As Weinberg J's reasons make clear he was under no misunderstanding as to the statutory foundation for the application which Ms Bahonko sought to bring to the Court. That application was brought pursuant to s 46PO of the Act. His Honour's references, during submissions, to the Administrative Decisions (Judicial Review) Act 1977 (Cth) led to a discussion during which it was established that reliance was not being placed on that Act. • Weinberg J's direction to Ms Bahonko that she should not tell him how to run his Court came after Ms Bahonko told him not to interrupt her submissions. His Honour's interventions had been designed to ensure that issues were clearly identified and to ensure that those submissions were developed in an orderly manner. • The complaint that His Honour put words into the mouths of counsel misunderstands the not uncommon practice whereby Judges anticipate and formulate submissions and confirm with counsel that particular submissions are being or are to be put. His Honour confirmed that counsel proposed to argue that it would be futile for the Court to enlarge time because Ms Bahonko's case lacked substance. • The complaint that Ms Bahonko was tricked into arguing the substance of her case misrepresents what occurred. As is plain from the exchange which is recorded at [33] of his Honour's reasons, all parties, including Ms Bahonko, agreed to proceed immediately with argument directed to the question of whether or not an extension of time should be granted within which Ms Bahonko could commence her proposed proceeding in this Court. It may be that Ms Bahonko misunderstood what was involved. However, her suggestion that she was, in some way, tricked cannot be sustained. 12 As is clear from His Honour's reasons, the factor which weighed most heavily in the exercise of his discretion was his view that Ms Bahonko was unable to point to any evidence which was remotely supportive of her discrimination claims against the various respondents. 13 I invited Ms Bahonko to direct my attention to any evidence which supported her claims of racial and disability discrimination against each respondent. She responded by referring to four matters. 14 The first was suggested to be evidence of ministerial intervention in relation to her application for waiver of the registration fee payable to the Institute. She said that, under s 7 of the Victorian Institute of Teaching Act 2001 (Vic), the Minister had power to direct the Institute in the performance of its functions. She then referred to a letter, dated 4 January 2006, in which the Chief Executive Officer of the Institute advised her that her application for waiver of the registration fee had been successful. In that letter she was advised that she should not undertake duties as a teacher during the currency of the waiver. Reference was also made to a policy of the Institute, which had been approved by the Minister, that waiver could only be granted for a maximum of two years. Nothing in this letter could possibly be understood as suggesting that the Minister had played any part in the processing of Ms Bahonko's application for waiver of her registration fee. The fee waiver which she had sought was granted. True it is that the waiver was based on a misunderstanding, by the Institute, of Ms Bahonko's intentions. She quickly made it plain that she wished to teach and it was this intimation which led the Institute to revoke the waiver. 15 The second evidentiary matter raised by Ms Bahonko related to her experiences at a school in Moorabbin in 2005. She said that she had obtained employment at the school on a casual basis. On her first day she was able to teach without supervision. However, during that day she was asked to provide an identification number allocated by the Education Department. The next day her work was supervised by other staff. After a third day her services were terminated. She was unable to explain how these events were supportive of any of her allegations. 17 The final matter on which Ms Bahonko said she would wish to rely at any final hearing of her application was what she said was the perjured evidence of the Institute's solicitor. The evidence is contained in an affidavit which was before Weinberg J. His Honour set out the parts of the affidavit on which he relied at [39] [42] of his reasons. Ms Bahonko did not allege any factual error in any of the material from the affidavit on which His Honour relied. Rather, she complained that the affidavit only told part of the story, that the solicitor had perjured herself by not setting out all relevant facts and that this was suggestive of weaknesses in the Institute's case which she would wish to pursue at trial. There is, in my view, absolutely no foundation for the most serious allegation of perjury. More significantly, for present purposes, the allegation could not be called in aid in support of a discrimination claim against the Institute. 18 I do not consider that Weinberg J's decision is attended by any doubt much less doubt sufficient to warrant it being reconsidered by a Full Court. 19 Accordingly, I refuse leave to appeal from His Honour's Orders, made on 11 October 2006 and dismiss Ms Bahonko's application for leave to appeal, filed on 1 November 2006. I will hear the parties on the costs of the application. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY. Associate: Dated: 24 November 2006 Counsel for the Applicant: Litigant in Person Counsel for the First Respondent: Mr T Hurley Solicitor for the First Applicant: Williams Winter Counsel for the Second Respondent: Ms S Moore Solicitor for the Second Respondent: Victorian Government Solicitor's Office Counsel for the Third Respondent: Ms F O'Brien SC Solicitor for the Third Respondent: Victorian Institute of Teaching Date of Hearing: 10 November 2006 Date of Judgment: 24 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1492.html


case_outcome: referred to

case_text: Having reviewed the relevant statutory provisions His Honour concluded that the Court lacked jurisdiction, under the Act, to hear complaints regarding religious and political discrimination. The right to apply to the Court for relief under s 46PO of the Act is, as His Honour held, limited to applications in respect of complaints of 'unlawful discrimination' which are made to the Commission under Part IIB of the Act: see Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531 ; (2000) 105 FCR 573 at 580-582. Part IIB deals with complaints relating to age, disability, racial and sex discrimination. It does not apply to religious or political discrimination. I do not understand Ms Bahonko to have argued to the contrary before Weinberg J. Rather, she submitted to His Honour that the Court should not be bound by technicalities or legal forms and should avoid, if possible, fragmentation of hearings. On this application she did not argue that His Honour had erred in his ruling on the jurisdictional issues. 5 Each of the specific claims made against the various respondents which were based on allegations of race and disability discrimination were rejected because the applicant had failed to advance any evidence which directly, or by necessary inference, supported her claims. 6 Ms Bahonko's claims against the Royal Melbourne Institute of Technology ('RMIT') arose out of its refusal to pass her doctoral thesis. His Honour said (at [85]) that: 'There is not a scintilla of evidence in anything that she has, at anytime, said to warrant the conclusion that the decision of the examiners not to pass her thesis was actuated or influenced by her race. Nor is there any evidence to support her contention that the examiners were motivated by any disability on her part, actual or imputed.' 7 Ms Bahonko's claim against the Victorian Institute of Teaching arose from some administrative confusion relating to her annual registration as a teacher. Ms Bahonko had applied for a waiver of the annual registration fee. It was granted on condition that she did not work and then refused when she made it plain that she wished to work. Later she arranged for the relevant payment to be made and she was registered. At no time did she lose her registration as a teacher. His Honour held that there was 'not a skerrick of evidence' to support Ms Bahonko's assertion that these administrative decisions reflected any discrimination on the part of the Institute. 8 Ms Bahonko's complaint against the Minister for Education was, first, that the Minister was responsible for the Institute's discrimination against her. Given his finding in relation to the Institute, His Honour rejected this part of Ms Bahonko's claim against the Minister. The alternative basis of the applicant's claim against the Minister relied on alleged vicarious liability. Having examined the relevant legislative provisions His Honour concluded that the conduct of the RMIT could not be attributed to the Minister. He concluded that it would, therefore, be futile to extend time 'to enable her to pursue a hopeless case.'


case_text: The principles to be applied on an application for leave to appeal from an interlocutory decision are well established. They are stated and explained in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. The principles were drawn to Ms Bahonko's attention before she commenced her submissions.


case_outcome: followed

case_text: The applicant seeks leave to appeal from a judgment of Weinberg J, given on 11 October 2006: see Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325. Leave is necessary because the judgment was interlocutory in nature: see Vranic v Commissioner of Taxation (2002) 67 ALD 798, [2]. The application was brought out of time but no objection was raised to me considering the merits of the application as argued by Ms Bahonko. His Honour had refused an application, by Ms Bahonko, for an enlargement of time within which to file an application and claim pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ('the Act'). The decision which provided the catalyst for Ms Bahonko's application had been made under s 46PH(1)(c) of the Act. The President of the Commission had terminated a complaint made by her against the respondents because he considered that the complaints were 'trivial, vexatious, misconceived or lacking in substance'. By s 46PO(1) of the Act, a complainant, whose complaint is terminated by the President, may make an application to this Court alleging unlawful discrimination by one or more of the respondents to the complaint. Section 46PO(2) requires that any such application must be made within 28 days after the date of issue of the notice that the complaint has been terminated.


case_text: The applicant submitted that there is a distinction between the alleged basis of liability respectively of the first and second respondents. For example, it was said that the applicant may be successful against the first, but not the second respondent, in relation to liability for the alleged defects in the manufactured goods, as the duty owed by a manufacturer of goods is not owed by a distributor: in that regard reference was made to McPherson's Ltd v Eaton [2005] NSWCA 435 ; (2005) 65 NSWLR 187. The applicant is correct in drawing that distinction and in the light of the nature of the applicant's causes of action, it is clear that the potential liability of the first respondent to the applicant does not simply reflect the potential liability of the second respondent to the applicant.


case_text: The applicant submitted that the Federal Court has jurisdiction to determine its claim for relief under ss 82 and 87 of the TPA and that the 'non-federal' claim of negligence and relief under the FTA are part of the same controversy between the parties, ' arise out of the same transaction and facts ' or ' a common substratum of facts ', and therefore are within the Federal Court's accrued jurisdiction: the Court was referred to Re Wakim; ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511 at [140] (as per Gummow and Hayne JJ) in support of that proposition.


case_text: As I have foreshadowed, the criteria for the grant of leave to serve an originating process out of the jurisdiction are contained within Order 8 rule 3(2) of the Federal Court Rules . Order 8 in its present form commenced on the 1 August 2006. The form of the repealed Order 8 differs materially from the current Order 8, in that the former Order 8 rule 1, due to the inclusion of sub-rule 1(n), had been construed in a way that required each cause of action pleaded in the statement of claim to be within one or more of the categories listed in Order 8 rule 1. In that regard, the applicant referred the Court to the dicta of French J in Traxon Industries Pty Ltd v Emerson Electric Co (2006) 230 ALR 297 at [63]-[64], where his Honour observed as follows: The question that then arises is whether, given that the causes of action in misleading or deceptive conduct and breach of contract are within O 8 r 1, that is sufficient to satisfy the requirement that the rule "applies to the proceeding" within the meaning of O 8 r 2(2)(b). As to that von Doussa J in Delco Australia said (at [35]): In this Court r 1 (n) makes express provision for a proceeding where a proceeding does not fall squarely within one of the heads enumerated in the earlier paragraphs. In my opinion r 1(n) makes it clear that an originating process to be served out of the Commonwealth must be confined to causes of action that fall wholly within one or several of the heads in r 1. An originating process that includes a claim that does not fall within one or more of the heads is not an originating process that meets the description of r 1, in that it is not one "in" any of the cases described in the rule. It is not a "proceeding to which r 1 applies" so as to meet the requirement of r 2(2)(c)(b). A similar conclusion was expressed by Wilcox J in Tycoon Holding Ltd v Tencor Jetco Inc (1992) 34 FCR 31 at 35. 12 The applicant further submitted that the current Order 8 rule 2 contains no equivalent to the former rule 1(n) and that the plain meaning of the current rule is that 'if the originating process includes any one of the kinds of proceedings listed, regardless of what other relief is sought, the Court has power to order service outside Australia'. I find that submission to be persuasive when read in the light of the text of Order 8 rule 2, namely that ' an originating process may be served on a person in a foreign country in a proceeding which consists of, or includes, any 1 or more of the kinds of proceeding mentioned... '. I also agree with the applicant's proposition that authorities on the construction of the former Order 8 may be of limited guidance relevantly in the present proceedings.


case_title: Distillers Co (Biochemical) Ltd v Thompson [1971] 1 NSWLR 83

case_text: The applicant submitted that the causes of action pleaded in its statement of claim include claims falling within a number of the kinds of proceedings listed in Order 8 rule 2. First, the claims are said to fall wholly within item 1, which allows for an originating process to be served on a person outside Australia where the proceeding ' is based on a cause of action arising in Australia '. The term ' causes of action ' in item 1 was asserted to carry the same meaning as it did in relation to the previous Order 8 rule 1, as construed in Distillers Co (Biochemical) Ltd v Thompson [1971] NSWLR 83 at 90, the correct approach being to ' ask the question, where in substance did this cause of action arise '. The applicant asserted that the representations were made in Australia, the failure to warn occurred in Australia, the defective hard drives were bought in Australia and the damage was suffered in Australia. 14 Secondly, the claims for relief under the TPA were also submitted to be claims for a breach of an 'Act' within items 11, 12 and 13 of rule 2, which appear as follows: 'Kind of Proceeding in which originating process may be served on a person outside Australia ... 11 Proceeding based on a breach of a provision of an Act that is committed in Australia 12 Proceeding based on a breach of a provision of an Act (wherever occurring) seeking relief in relation to damage suffered wholly or partly in Australia 13 Proceeding in relation to the construction effect or enforcement of an Act, regulations or any other instrument having, or purporting to have effect under an Act ...' In terms of the operation of items 11 and 13, the misleading representations and the failure to warn comprised or included conduct submitted to have occurred in Australia, whilst in relation to item 12, as previously observed, the damage was submitted to have occurred in Australia. Thirdly, the claims in tort were submitted to fall within item 4, the negligent representations being directed to and understood by the applicant in Australia. On my reading of Order 8 rule 3(2), the claims put forward by the applicant do fulfil the requirements set out in items 1, 11, 12, and/or 13. 15 In support of its case for service out of the jurisdiction, the applicant brought the Court's attention to what it categorised as cases analogous to the present proceedings. One of the cases referred to was Fubilan Catering Services Ltd v Compass Group (Australia) Pty Ltd [2004] FCA 532 in which French J granted leave to the applicant to serve originating process on the English parent of an Australian registered subsidiary, based on allegations of misleading or deceptive conduct in the course of contractual negotiations between the applicant and that subsidiary, and of an alleged breach of fiduciary duty. Having regard to that authority, and the analogous authorities of Distillers [1971] NSWLR 83, Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10 ; (2002) 210 CLR 491 and Bray v F Hoffman La Roche [2003] FCAFC 153 ; (2003) 130 FCR 317, and in light of the applicant's satisfaction of the conditions prescribed under Order 8 rule 2, I was satisfied that I should grant the applicant's application for leave to serve the application and statement of claim on the first respondent and to use the diplomatic channel for that purpose. I made that order on the day of the interlocutory hearing.


case_text: In support of its case for service out of the jurisdiction, the applicant brought the Court's attention to what it categorised as cases analogous to the present proceedings. One of the cases referred to was Fubilan Catering Services Ltd v Compass Group (Australia) Pty Ltd [2004] FCA 532 in which French J granted leave to the applicant to serve originating process on the English parent of an Australian registered subsidiary, based on allegations of misleading or deceptive conduct in the course of contractual negotiations between the applicant and that subsidiary, and of an alleged breach of fiduciary duty. Having regard to that authority, and the analogous authorities of Distillers [1971] NSWLR 83, Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10 ; (2002) 210 CLR 491 and Bray v F Hoffman La Roche [2003] FCAFC 153 ; (2003) 130 FCR 317, and in light of the applicant's satisfaction of the conditions prescribed under Order 8 rule 2, I was satisfied that I should grant the applicant's application for leave to serve the application and statement of claim on the first respondent and to use the diplomatic channel for that purpose. I made that order on the day of the interlocutory hearing.


case_title: Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10 ; (2002) 210 CLR 491


case_title: Bray v F Hoffman-La Roche Ltd [2003] FCAFC 153 ; (2003) 130 FCR 317


case_text: AFP and the DCT accept that a decision to issue the search warrant is reviewable under the ADJR Act: see eg Australian Broadcasting Corporation v Cloran (1984) 4 FCR 151 ; Ferris v Commonwealth Director of Quarantine (1991) 29 FCR 147 ; Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1994) 94 ATC 4054 ; Salerno v National Crime Authority (1997) 75 FCR 133 ; Hart v Commissioner of Australian Federal Police [2002] FCAFC 392 ; (2002) 124 FCR 384.


case_title: Ferris v Commonwealth Director of Quarantine (1991) 29 FCR 147


case_title: Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1994) 94 ATC 4054


case_title: Salerno v National Crime Authority (1997) 75 FCR 133


case_title: Hart v Commissioner of Australian Federal Police [2002] FCAFC 392 ; (2002) 124 FCR 384


case_outcome: discussed

case_title: Wilhelm v McKay [2007] FCA 367

case_text: Wilhelm v McKay [2007] FCA 367 , Greenwood J refused an application to join a party to an application for an order to review certain decisions relating to the application for a search warrant under the Crimes Act . The party sought to be joined was the person who decided to apply for the search warrant. The circumstances, at least at that level of generality, appear to be the same as those applicable to the decision of the fifth "respondent" (and of the AFP and the DCT, as alleged in paras 9.8 and 9.9 of the amended application). His Honour decided that the decision to swear the affidavit in support of the application for the search warrant and to apply for it were not decisions of an administrative character made under an enactment: see s 3(1) of the ADJR Act. Counsel for Mr Nicholls did contend that the decision was plainly wrong and should not be followed: see eg Bank of Western Australia Ltd v Federal Commissioner of Taxation (1994) 55 FCR 233 at 255. I respectively adopt his Honour's reasons at [60] to [70]. I shall not repeat them. Is there any point of distinction? In Wilhelm v McKay [2007] FCA 367 , one contention was that the applicant for the search warrant did not disclose certain information to the Magistrate. In that case, the non-disclosure was of information which the applicant claimed should have been disclosed. At [78] to [80], Greenwood J reviewed certain authorities touching upon the validity of search warrants procured through fraud or the absence of good faith: see eg Williams v Keelty [2001] FCA 1301 ; (2001) 111 FCR 175 at 225 [238] ; Lego Australia Pty Ltd v Paraggio [1994] FCA 1286 ; (1994) 52 FCR 542. He accepted at [80] that "the fundament of the duty is a duty to act in good faith and avoid making half-truths giving rise to a misrepresentation". His Honour's focus then was upon whether the applicants in that case had demonstrated an arguable case that in swearing the affidavit in support of the application for, and in applying for, the search warrant the person seeking the search warrant had misrepresented material facts going to the exercise of the power by the Magistrate to issue the warrant. As is apparent, I have assumed that a decision to provide to the Magistrate in support of the application for the search warrant information which could not lawfully be presented to him (or, somewhat more obliquely, a decision not to inform the Magistrate that information provided to him could not be relied upon by him) is a decision to which the ADJR Act may apply. That is not obviously so, for the reasons discussed in [37] above. In addition, the operative decision directly affecting the rights of Mr Nicholls is that to issue the search warrant. If that decision is not set aside, the operative decision will not have been impaired by the decision complained of itself being attacked. It is probable, in my view, that the cases discussed by Greenwood J in Wilhelm v McKay [2007] FCA 367 at [78] to [80] point to circumstances which would enliven s 5(1)(g) of the ADJR Act in relation to the decision to issue the warrant, namely that the decision to issue the warrant was induced or affected by fraud. For reasons which appear below, it is not necessary finally to decide whether that is the correct analysis of the decisions referred to. However, in considering whether to permit the amended application to be amended or read in the way which Mr Nicholls now contends, I encompass within that consideration the possibility that ground 9.4 of the amended application might be preserved so as to entertain an attack upon the validity of the decision to issue the search warrant if it were induced or affected by fraud. Order 35A of the Federal Court Rules empowers the Court to stay or dismiss a proceeding if an applicant is in default, that is, fails to comply with an order of the Court or fails to prosecute a proceeding with due diligence. The history of the conduct of these proceedings from their commencement indicates repeated failures by Mr Nicholls to comply with the orders of the Federal Magistrates Court and of this Court. His affidavit of 28 November 2008 goes some way to explaining why that is so, but it too was filed at the last moment, and after repeated unexplained failures to comply with orders of the Court. Mr Nicholls deposes to difficulties with funding, and to having to meet various demands and requirements of an administrator of a company with which he was involved as being "consuming and still on-going"; he deposes to being required to spend "considerable time" to prepare for various court hearings, and he says that: [his] ability to provide legal instruction to [his] own legal counsel has been hindered, primarily as a result of the following issues: (a) Delays caused by the ATO/AFP to make available the HDDs and suitable equipment to enable access the electronic data for the purposes of [his] claim of LLP in a timely manner; (b) Having to respond to the numerous ATO instigated legal actions against [him] personally and against [his] companies; (c) Having to be self-represented in relation to 47(b); (d) Delays caused by the AFP and ATO in compiling and releasing the requested information under the Freedom of Information Act 1982 due to apparent "staff shortages" within each unit; and (e) [His] not being able to access relevant material on the seized HDDs up until only recently to properly instruct [his] legal counsel on a potential claim of LPP and other legal matters relating to the validity and lawfulness of the search warrants. Mr Nicholls also deposes to "endeavouring to secure additional work given [his family's] current financial position", and to him "up-skilling [his] industry experience" by undertaking further study. The relevant question is whether, upon the proper construction of s 65 of the TAA and ss 263 and 264 of the ITAA, those provisions in their context permit or prohibit the use of information acquired under them for the purpose of applying for a search warrant under s 3E of the Crimes Act , and so for the purpose of exercising the power under s 3E. See the discussion in Wilhelm v McKay [2007] FCA 367 per Greenwood J at [78]. As noted above, s 3E of the TAA expressly recognises that information obtained by the Commissioner under the provisions of a tax law (which by definition includes under the TAA and the ITAA) and which is subject to taxation secrecy provisions may be used for specific purposes. The purposes include its use where the definitional requirements are fulfilled, as they are in this instance for applying for, and in consideration of whether to issue, a search warrant. And, at a later point, ss 3E(3) and (4) prohibit the disclosure of the information coercively obtained under a tax law to a Court other than as voluntarily provided to a court in the course of proceedings for a prosecution of a person for a tax-related offence (and for another presently irrelevant type of proceeding. By way of contrast, there are legislative examples where information provided to an executive authority under statutory compulsion may not be used in a subsequent criminal prosecution, where additional features (such as a contemporary claim to the privilege against self-incrimination) exist. See for example s 30 of the Australian Crime Commission Act 2002 (Cth) and s 597 of the Corporations Act 2001 (Cth), and the discussion in Cross on Evidence (7 th ed, 2004 at [25055]-[25060]).


case_text: Wilhelm v McKay [2007] FCA 367 , Greenwood J refused an application to join a party to an application for an order to review certain decisions relating to the application for a search warrant under the Crimes Act . The party sought to be joined was the person who decided to apply for the search warrant. The circumstances, at least at that level of generality, appear to be the same as those applicable to the decision of the fifth "respondent" (and of the AFP and the DCT, as alleged in paras 9.8 and 9.9 of the amended application). His Honour decided that the decision to swear the affidavit in support of the application for the search warrant and to apply for it were not decisions of an administrative character made under an enactment: see s 3(1) of the ADJR Act. Counsel for Mr Nicholls did contend that the decision was plainly wrong and should not be followed: see eg Bank of Western Australia Ltd v Federal Commissioner of Taxation (1994) 55 FCR 233 at 255. I respectively adopt his Honour's reasons at [60] to [70]. I shall not repeat them.


case_text: there any point of distinction? In Wilhelm v McKay [2007] FCA 367 , one contention was that the applicant for the search warrant did not disclose certain information to the Magistrate. In that case, the non-disclosure was of information which the applicant claimed should have been disclosed. At [78] to [80], Greenwood J reviewed certain authorities touching upon the validity of search warrants procured through fraud or the absence of good faith: see eg Williams v Keelty [2001] FCA 1301 ; (2001) 111 FCR 175 at 225 [238] ; Lego Australia Pty Ltd v Paraggio [1994] FCA 1286 ; (1994) 52 FCR 542. He accepted at [80] that "the fundament of the duty is a duty to act in good faith and avoid making half-truths giving rise to a misrepresentation". His Honour's focus then was upon whether the applicants in that case had demonstrated an arguable case that in swearing the affidavit in support of the application for, and in applying for, the search warrant the person seeking the search warrant had misrepresented material facts going to the exercise of the power by the Magistrate to issue the warrant.


case_title: Lego Australia Pty Ltd v Paraggio [1994] FCA 1286 ; (1994) 52 FCR 542


case_text: Nicholls has not identified any decision of an administrative character made by an officer of the AFP or the DCT in relation to the execution of the search warrant, nor presented an argument that any such decision was made under an enactment, so as to attract the application of the ADJR Act: see eg Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 341-3 and Jilani v Wilhelm [2005] FCAFC 269 ; (2005) 148 FCR 255 at 272-3, [102] - [107] .


case_title: Jilani v Wilhelm [2005] FCAFC 269 ; (2005) 148 FCR 255


case_text: question is whether Mr Nicholls' serial non-compliance with orders of the Court, in the light of his further contentions and oral submissions, has demonstrated an inability to comply with orders of the Court, or an unpreparedness to present his claim for hearing: see eg Lenijamar Pty Ltd v AGC (Advances) Ltd [1990] FCA 520 ; (1990) 27 FCR 388 at 396. In my view, in addition to the refusal to entertain grounds 9.1 and 9.4-9.9 of the amended application because I uphold the Notice of Objection to Competency in respect of them, those grounds should be dismissed by reason of the persistent default of Mr Nicholls. He has had ample time to clearly identify, in respect of those grounds, the decisions which he attacks and to provide proper particulars of the reasons for doing so. He has still not done so. His Outlines of Contentions and his oral submissions through counsel have in reality exposed that his attack upon the decision to issue the search warrant and decisions surrounding it are of quite narrow compass. The attack is confined to the alleged use (and alleged misuse) of certain information to support the application for the search warrant which had been compulsorily acquired from Mr Nicholls. That does not generally impinge upon the decision to apply for the search warrant, or upon decisions as to when and how the search warrant was executed. The material indicates, in my view, that Mr Nicholls has demonstrated an inability to comply with orders of the Court in respect of those grounds of the amended application. Otherwise, over the space of six months, he would have been able to properly specify and detail the foundation for those claims.


case_text: these reasons, in my view, Mr Nicholls' first proposition set out at [33] above, expressed as generally as it is, is not fairly arguable. It is inconsistent with s 3E of the TAA. The same applies to his second proposition. The cases which are said expressly to establish those propositions do not do so. Johns v Australian Securities Commission [1993] HCA 56 ; (1993) 178 CLR 408 concerned the question whether Mr Johns, who had provided information to the ASC under compulsion, was entitled to be heard before that information was provided to a Royal Commission. The provision of the information to the Royal Commission was permitted by s 127(4) of the Australian Securities Commission Act 1989 (Cth) (the ASC Act), but it was held that Mr Johns was entitled to have been heard before the provision of that information on an unrestricted basis (see esp per Crennan J at 430-1). Australian Securities and Investments Commission v Rich [2005] NSWSC 62 ; (2005) 52 ACSR 374 concerned the use to which material seized under a search warrant executed by the AFP and made available to ASIC could then be used by ASIC in the conduct of civil proceedings: see per Austin J at 421-9 [239]-[274] and, in particular, his Honour's conclusion at 429 [274]. That is a different issue to either of the first two propositions of Mr Nicholls. Finally, he referred to Commissioner of Taxation v De Vonk (1995) 61 FCR 564. That case addressed the validity of a decision to issue a notice under s 564 of the ITAA where criminal proceedings against the person to whom the notice had been issued had already been commenced. Foster J (who generally agreed with the plurality judgment of Hill and Lindgren JJ) noted at 568 that it was conceded on behalf of the respondent that information so acquired, provided it was acquired for a proper purpose (which his Honour said was the purpose of obtaining information for the collection and protection of the revenue), could be forwarded to the prosecution to assist in a criminal prosecution. The confined nature of that purpose is recognised by the restriction recognised in s 4E(3) and (4) of the TAA referred to above. Nor do I consider that the third proposition of Mr Nicholls, if I understand it, is fairly arguable. He referred only to Johns v Australian Securities Commission [1993] HCA 56 ; 178 CLR 408 in support of the proposition, but the circumstances of that case were quite different. It may be accepted, as the respondents accept, that the tax secrecy provisions generally make information provided to the DCT under compulsion confidential. There may arise circumstances where the permitted use of that material (whether under s 3E of the TAA or under some other provision) might be construed so as to entitle the provider of it to be heard before that permitted use occurred, at least as to the terms upon which the permitted use might occur. Johns v Australian Securities Commission [1993] HCA 56 ; 178 CLR 408 is an example under s 127 of the ASC Act. But that case does not advance Mr Nicholls' third proposition where the permitted use to rely upon the compulsorily acquired and otherwise confidential information to support an application for a search warrant does not publicly expose the information and indeed the issuing officer is prevented by s 3E(2B) of the TAA from disclosing it. Mr Nicholls through counsel did not advance any detailed contention, based upon the terms of s 3E or its context or in any other respect to support the proposition. Consequently, I would not allow the amended application to be further amended to give effect to the now confined propositions of Mr Nicholls relating to the decision to include in the material submitted to the Magistrate certain information which was coercively acquired from Mr Nicholls or from the two banks. That is simply because I consider his propositions not to be fairly arguable. It follows that I would uphold the claims of the AFP and the DCT that grounds 9.2 and 9.3 of the amended application as presently expressed should also be dismissed for Mr Nicholls' failure to comply with the orders of the Court. There are two further reasons why I would make that order.