case_title: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Limited (ACN 051 775 556) [2007] FCA 1515

case_text: On 2 October 2007, I concluded that Telstra had breached the 2005 Enterprise Agreement by failing to pay Mr McDonald his previous rate of salary after he was redeployed to, and later accepted a redundancy package from, a lower paying position: see [2007] FCA 1515 ("the Primary Reasons"). The facts resulting in that conclusion are set out in paras [3] to [38] of the Primary Reasons. I do not propose to repeat them. These reasons for decision should be read with the Primary Reasons. I adopt the same defined terms in these reasons for decision. 4 The parties accept that as a result of the Primary Reasons, Telstra committed the following two breaches: (1) a breach of cl 17.4 of the 2005 Enterprise Agreement, by not paying Mr McDonald at the higher rate of pay after his redeployment in April 2006; and (2) a breach of cl 9.1 of the TRA, by not paying Mr McDonald severance pay at the higher rate of pay after Mr McDonald took voluntary redundancy in October 2006. 5 The CEPU now seeks consequential relief for those breaches in the form of an imposition of a penalty under s 178 of the Industrial Relations Act 1988 (Cth) ("the IR Act ") or s 719 of the Workplace Relations Act 1996 (Cth) ("the WR Act ") and additional declaratory relief. The Court has jurisdiction to grant declaratory relief under s 21 of the Federal Court of Australia Act 1976 (Cth).


case_outcome: cited

case_text: The breach of cl 9.1 of the TRA is entirely reliant upon, and arises out of, substantially the same course of conduct as the primary breach: Gibbs v The Mayor, Councillors and Citizens of the City of Altona (1992) 37 FCR 216. Accordingly, any penalty would be determined by reference to the "totality principle": CPSU, The Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228. 15 Thirdly, in those circumstances, it is appropriate to determine the penalty by reference to the "totality principle" as described by Finkelstein J in CPSU, The Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228 at 230 and Textile Clothing & Footwear Union of Australia v Lotus Cove Pty Ltd [2004] FCA 43 at [44] . So much was conceded by the CEPU and by Telstra. 19 The Court should not be concerned to reimburse an applicant for costs incurred in bringing the application by the imposition of a penalty under s 719 of the WR Act . The legislative policy of the WR Act in relation to costs is found in s 824 of the WR Act , which states that a party should not pay costs except in two prescribed circumstances. In light of this policy, it would be inappropriate to impose a penalty for the purpose of reimbursement: Finance Sector Union v Commonwealth Bank of Australia (2005) 224 ALR 467 at [63]-[64]; Victoria University of Technology v Australian Education Union (1999) 91 IR 96 at [34]. Only when it has been determined that a penalty is appropriate, is it necessary to have resort to s 841 of the WR Act to decide whether the penalty should be paid to the Commonwealth or to a "particular organisation or person": Victoria University of Technology v Australian Education Union (1999) 91 IR 96 at [34] cf CPSU, The Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228 at 232-233; Seven Network (Operations) Pty Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union (No 2) (2001) 110 IR 372 at [8].


case_outcome: applied

case_text: As the Primary Reasons demonstrate, the breaches arose out of a disputed and disputable construction of the 2005 Enterprise Agreement and the TRA. Neither breach was flagrant, wilful or deliberate. Amendments to the WR Act increasing the penalty for breaches of industrial instruments arising out of unlawful industrial conduct indicate a legislative desire to deter and discourage such conduct. These changes in industrial law have led to general deterrence being referred to as the "most significant factor" in determining the applicable penalty: see Finance Sector Union v Commonwealth Bank of Australia (2005) 224 ALR 467 at [60], [72]. Where the unlawful conduct arises out of an arguable but erroneous construction of a relevant term, and the subsequent breach cannot be characterised as demonstrating a flagrant or wilful disregard for the agreement, this legislative purpose is not furthered by imposition of a penalty. In these circumstances, neither general nor specific deterrence is a significant factor weighing in favour of imposing a penalty. Moreover, Mr McDonald has been fully compensated for the loss suffered as a result of the breach. I do not consider that the circumstances in which the conduct took place warrant the Court exercising its discretion to impose a penalty on Telstra. 19 The Court should not be concerned to reimburse an applicant for costs incurred in bringing the application by the imposition of a penalty under s 719 of the WR Act . The legislative policy of the WR Act in relation to costs is found in s 824 of the WR Act , which states that a party should not pay costs except in two prescribed circumstances. In light of this policy, it would be inappropriate to impose a penalty for the purpose of reimbursement: Finance Sector Union v Commonwealth Bank of Australia (2005) 224 ALR 467 at [63]-[64]; Victoria University of Technology v Australian Education Union (1999) 91 IR 96 at [34]. Only when it has been determined that a penalty is appropriate, is it necessary to have resort to s 841 of the WR Act to decide whether the penalty should be paid to the Commonwealth or to a "particular organisation or person": Victoria University of Technology v Australian Education Union (1999) 91 IR 96 at [34] cf CPSU, The Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228 at 232-233; Seven Network (Operations) Pty Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union (No 2) (2001) 110 IR 372 at [8].


case_text: The breach of cl 9.1 of the TRA is entirely reliant upon, and arises out of, substantially the same course of conduct as the primary breach: Gibbs v The Mayor, Councillors and Citizens of the City of Altona (1992) 37 FCR 216. Accordingly, any penalty would be determined by reference to the "totality principle": CPSU, The Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228. 14 Secondly, although there were technically two breaches by Telstra (one of the 2005 Enterprise Agreement and one of the TRA), as the analysis of the facts in the Primary Reasons demonstrate, this is a case where the breaches arose out of substantially the same conduct, being conduct that "impose[d] cumulative obligations or obligations that substantially overlap[ed]": cf Gibbs v The Mayor, Councillors and Citizens of the City of Altona (1992) 37 FCR 216 at 223 and Clothing & Allied Trades Union of Australia v J & J Saggio Clothing Manufacturers Pty Ltd (1990) 34 IR 26 at 37.


case_outcome: referred to

case_title: Kelly v Fitzpatrick [2007] FCA 1080

case_text: In Kelly v Fitzpatrick [2007] FCA 1080 at [14] , Tracey J adopted the following "non-exhaustive range of considerations to which regard may be had in determining whether particular conduct calls for the imposition of a penalty, and if it does the amount of the penalty" (citing Mason v Harrington Corporation Pty Ltd [2007] FMCA 7): "• The nature and extent of the conduct which led to the breaches. • The circumstances in which that conduct took place. • The nature and extent of any loss or damage sustained as a result of the breaches. • Whether there had been similar previous conduct by the respondent. • Whether the breaches were properly distinct or arose out of the one course of conduct. • The size of the business enterprise involved. • Whether or not the breaches were deliberate. • Whether senior management was involved in the breaches. • Whether the party committing the breach had exhibited contrition. • Whether the party committing the breach had taken corrective action. • Whether the party committing the breach had cooperated with the enforcement authorities. • The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements and • The need for specific and general deterrence. "


case_title: Mason v Harrington Corporation Pty Ltd [2007] FMCA 7


case_text: The Court should not be concerned to reimburse an applicant for costs incurred in bringing the application by the imposition of a penalty under s 719 of the WR Act . The legislative policy of the WR Act in relation to costs is found in s 824 of the WR Act , which states that a party should not pay costs except in two prescribed circumstances. In light of this policy, it would be inappropriate to impose a penalty for the purpose of reimbursement: Finance Sector Union v Commonwealth Bank of Australia (2005) 224 ALR 467 at [63]-[64]; Victoria University of Technology v Australian Education Union (1999) 91 IR 96 at [34]. Only when it has been determined that a penalty is appropriate, is it necessary to have resort to s 841 of the WR Act to decide whether the penalty should be paid to the Commonwealth or to a "particular organisation or person": Victoria University of Technology v Australian Education Union (1999) 91 IR 96 at [34] cf CPSU, The Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228 at 232-233; Seven Network (Operations) Pty Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union (No 2) (2001) 110 IR 372 at [8].


case_text: Thirdly, in those circumstances, it is appropriate to determine the penalty by reference to the "totality principle" as described by Finkelstein J in CPSU, The Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228 at 230 and Textile Clothing & Footwear Union of Australia v Lotus Cove Pty Ltd [2004] FCA 43 at [44] . So much was conceded by the CEPU and by Telstra.


case_text: On the other hand, the CEPU submitted that the maximum penalty of $33,000 for breach of a certified agreement indicates the seriousness of a breach. In particular, the CEPU referred to the following additional facts and matters which it described as 'significant' in considering the imposition of a penalty: (1) the need to maintain the integrity of the certified agreement; (2) that the amount withheld from Mr McDonald was significant; (3) that there was no contrition demonstrated by Telstra; (4) the fact that the breach was not flagrant or wilful or deliberate was not determinative: Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd (2002) 121 IR 250 at [75]; (5) the need for specific and general deterrence having regard to size of Telstra and its workforce.


case_text: Before moving to apply these considerations to the facts set out in the Primary Reasons, two further points must be made. First, the Court has a discretion whether or not to impose a penalty: s 719 of the WR Act and see also Australasian Meat Industry Employees' Union v Australia Meat Holdings (1998) 82 IR 76 at 78 and Victoria University of Technology v Australian Education Union (1999) 91 IR 96 at [33] (which considered the discretion to impose penalty under s 178 of the WR Act prior to substantial amendments to the WR Act in 2005). In other words, there is no principle that a Court must, in all cases of proven breach, impose a penalty: Victoria University of Technology v Australian Education Union (1999) 91 IR 96 at [33]. 16 Telstra submitted that no penalty, or alternatively that a 'low range penalty' should be imposed. In support of those contentions, Telstra referred to the following facts and matters: (1) there was no element of wilful or deliberate non-compliance by Telstra; (2) Mr McDonald's job was redundant and he was to be retrenched unless otherwise redeployed. Instead of retrenching Mr McDonald, Telstra accepted his request to redeploy him to a job more than two pay classification levels below his current employment. Telstra did not have to do so; (3) Telstra accepted the redeployment of Mr McDonald on a genuine but mistaken belief that it was only required to pay Mr McDonald the lower rate of pay; (4) the CEPU did not suggest that Telstra had any relevant "prior convictions". There is nothing to suggest that Telstra is disposed to contravene certified agreements to which it is a party. In those circumstances, no specific deterrence is relevant; (5) Telstra is a very large employer with employees across Australia and has been bound by numerous awards and certified agreements over the years; (6) a penalty would serve no remedial purpose. Mr McDonald will be fully compensated by the order made on 2 October 2007 in the Primary Reasons; (7) the Court cannot be influenced by any concern to reimburse the applicant or Mr McDonald for costs incurred in prosecuting the application: Victoria University of Technology v Australian Education Union (1999) 91 IR 96 at [34]; (8) finally, although a penalty acts as a general deterrence, such deterrence is relevant where the obligations are clear, even if the employer was ignorant of the obligation. In the present case, the position adopted by Telstra was arguable but erroneous. 19 The Court should not be concerned to reimburse an applicant for costs incurred in bringing the application by the imposition of a penalty under s 719 of the WR Act . The legislative policy of the WR Act in relation to costs is found in s 824 of the WR Act , which states that a party should not pay costs except in two prescribed circumstances. In light of this policy, it would be inappropriate to impose a penalty for the purpose of reimbursement: Finance Sector Union v Commonwealth Bank of Australia (2005) 224 ALR 467 at [63]-[64]; Victoria University of Technology v Australian Education Union (1999) 91 IR 96 at [34]. Only when it has been determined that a penalty is appropriate, is it necessary to have resort to s 841 of the WR Act to decide whether the penalty should be paid to the Commonwealth or to a "particular organisation or person": Victoria University of Technology v Australian Education Union (1999) 91 IR 96 at [34] cf CPSU, The Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228 at 232-233; Seven Network (Operations) Pty Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union (No 2) (2001) 110 IR 372 at [8].


case_text: he did not attend the hearing of that application on 6 April 2006. Because he did not attend, his application was dismissed pursuant to r 13.03A(c) of the Federal Magistrates Court Rules. The applicant then applied to this Court for leave to appeal from the judgment of the Federal Magistrates Court on 4 July 2006. Leave is required because the judgment is interlocutory. See s 24(1A) of the Federal Court of Australia Act 1976 (Cth) and MLGXAL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 966. In addition, because that application for leave to appeal was not brought within 21 days, the time specified by O 52 r 5(2) of the Federal Court Rules , the applicant also seeks an order that compliance with that rule be dispensed with. I do not propose to explore the reasons why the applicant failed to make that application promptly or why he did not attend before the Federal Magistrates Court. The grant of the application for leave to appeal is, of course, discretionary. One matter of significance is that the Court should be satisfied that there is at least some arguable basis on which the appeal might succeed if leave to appeal is granted. It is to that topic that I turn. As the applicant did not attend the Federal Magistrates Court hearing and his application was dismissed for non-attendance, there are no reasons of the Federal Magistrate dealing with the merits of his application. I propose, nevertheless, to look at the Tribunal decision to see whether there is any prospect of the applicant succeeding on an appeal from that decision, assuming the events in the Federal Magistrates Court may be ignored. That is an assumption very much in the applicant's favour. So too is my preparedness to treat as a neutral factor in the exercise of my discretion his failure to appear at that Court and his delay in making his application to this Court. Before the Tribunal, the applicant made five claims upon which he said he had a well founded fear of persecution for a convention reason. Upon one or more of those claims he therefore asserted that he was a person to whom Australia owed protection obligations under the Refugees Convention, as amended by the Refugees Protocol so as to satisfy the criterion for the grant of a protection visa specified in s 36(2) of the Act. It was upon the satisfaction or otherwise of the existence of that criterion that the Tribunal affirmed the decision not to grant him a protection visa. The Tribunal was not satisfied that the applicant has a well founded fear of persecution for a convention reason if he returns to Pakistan in respect of any of the five grounds upon which he asserted the existence of such a fear. Those grounds were, firstly, that he had converted from Islam to Christianity and that if he were to return to Pakistan he would be persecuted for apostasy. Secondly, he claimed that he and his family had been targeted by Jihadi organisations since at least 1993 and that if he were to return to Pakistan he would be further persecuted by those organisations, the more so because he would be perceived as having changed his religion so as not to have to pay those organisations money.


case_title: Australian Competition and Consumer Commission v Real Estate Institute of WA Inc [1999] FCA 18 ; (1999) 161 ALR 79

case_text: The ACCC and Nudie filed joint submissions in support of the consent orders. They referred to the well established proposition that in such cases the Court will not impede settlements between parties legally represented and able to understand and evaluate the desirability of agreeing to a settlement. The Court will not ordinarily refuse to give effect to terms of settlement by refusing to make orders or accept undertakings where they are within the Court's power to make and are otherwise appropriate. The Court will generally not substitute its own view of the orders or undertakings which it would have made provided that those which are suggested fall within the range of an appropriate disposition in the case: Australian Competition & Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18 ; (1999) 161 ALR 79 at [20] . 12 I am satisfied that the Court has power to make the orders which are sought. I am also satisfied that the orders are appropriate. The declarations that are proposed are more numerous than would appear necessary and could have been collapsed into one or two declarations. That, however, is a matter of drafting rather than a matter of substance. The proposed injunction is expressed with sufficient precision to make it enforceable. 13 Having regard to the misleading promotion, which has been admitted, the corrective advertisement is appropriate. The compliance program is related to the contraventions which have occurred and is appropriate in the circumstances.


case_text: This examination of S152/2003 demonstrates that it is impossible to uphold the contention, put on behalf of the appellant in the present case, that the majority judgment in that case cannot be taken as an expression of the authoritative test to apply when the issue is whether the country of nationality of an applicant for a protection visa alleges that that country lacks the ability effectively to protect him or her from the harmful actions of non-state antagonists. By the time the case reached the High Court, it was a case about the adequacy of state protection. It had become such a case because the Full Court had held that the Tribunal had failed to deal with the ability of the Ukrainian Government to prevent future harm. The majority of the High Court allowed the appeal on the basis that the Tribunal had no evidence before it that would have justified a finding that the necessary state machinery of Ukraine fell below the required standard for protection of its citizens. The majority expressed this norm by reference to international standards, and made it clear that there is no requirement that a state provide absolute protection for its citizens. In the light of what the majority said, the view of McHugh J cannot be regarded as authoritative. In Applicant A99 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 773 (2004) 83 ALD 529 at [35] - [42] , Mansfield J analysed S152/2003 . It is clear that his Honour thought that the view expressed by the majority was authoritative. I respectfully share his Honour's view. Even if what the majority said could be characterised technically as obiter, it would be necessary to characterise the view of McHugh J in the same way. It would be a bold step for a judge of this Court, or a federal magistrate, and especially a Tribunal member, to ignore what the majority said in favour of adopting the view of McHugh J.


case_text: The quotation is from Horvath v Secretary of State for the Home Department [2001] 1 AC 489 at 510. At [78], McHugh J said: If there is a real chance that the asylum seeker will be persecuted for a Convention reason, the fear of persecution is well-founded irrespective of whether law enforcement systems do or do not operate within the State. 22 At [79], his Honour pointed out that an asylum seeker would have to show more than that persons whose circumstances were similar were being persecuted. The asylum seeker would have to show that there is "a real chance that he or she will be one of the victims of that persecution." This might be done either by showing that the particular person has a greater chance of harm than other persons, or to show that a very high percentage of such persons are persecuted. At [83], his Honour said: once the asylum seeker is able to show that there is a real chance that he or she will be persecuted, refugee status cannot be denied merely because the State and its agencies have taken all reasonable steps to eliminate the risk. Nothing in the Convention supports such a conclusion.


case_outcome: followed

case_text: The Tribunal then turned to consider whether the United Kingdom authorities would be able to provide the appellant with effective state protection from the harm that he feared. After referring to passages from the judgments in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 (2004) 222 CLR 1 , the Tribunal said: What is required for the purposes of Article 1A(2) has been described in several ways. The joint judgment in S152/2003 refers to the obligation of the state to take "reasonable measures" to protect the lives and safety of its citizens, including "an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system", or a "reasonably effective police force and a reasonably impartial system of justice", indicating that the appropriate level of protection is to be determined by "international standards", such as those considered by the European Court of Human Rights in Osman v United Kingdom (1998) 29EHRR 245. Thus, an unwillingness to seek protection will be justified for the purposes of Article 1A(2) where the state fails to meet the level of protection which citizens are entitled to expect according to "international standards". 13 At [38]-[42], his Honour analysed S152/2003 , quoting first from the judgment of McHugh J and then from that of the majority. 14 The federal magistrate's conclusions on the point were expressed at [43]-[46]: In this case, I am satisfied that the RRT did consider whether the British authorities were capable of providing the applicant with the required level of protection, which was not an absolute guarantee of safety. This guarantee not being realistically achievable, short of detaining the applicant in the United Kingdom. In performing this assessment the RRT looked at the number of attacks concerned and the response the British authorities had made to them. The RRT found that the British police did respond to complaints of attack by sex offenders living in the community. It also found that the British criminal justice system had prosecuted and convicted the perpetrators of such violence. The RRT further found that, through the MAPPA system, the British Authorities would make a proper assessment of the level of threat to the applicant and provide him with a level of protection commensurate to that threat, which though not absolute was likely to be adequate in the circumstances. On the basis of this assessment, the RRT did not believe that the current situation in the United Kingdom was such that an adequate level of state protection would not be available to the applicant, if he was returned to the United Kingdom. I can find no discernable error in how the RRT conducted this assessment and the matters it took into account in reaching it. They are matters for evidence, which are in the sole domain of the RRT. 15 The appellant's original notice of appeal was obviously drawn without the benefit of legal advice, attempted to agitate issues of fact, and was accompanied by an affidavit. Pursuant to the scheme in O 80 of the Federal Court Rules , the appellant was referred to counsel for legal assistance. Amended grounds of appeal were filed, and the appeal proceeded on one of those grounds of appeal, with the consent of counsel for the Minister. 16 That ground is that the Tribunal failed to apply the correct legal test in ascertaining whether the appellant satisfied the requirement that his unwillingness to avail himself of the protection of the United Kingdom was the result of a well-founded fear of being persecuted. The argument put on behalf of the appellant rested heavily on the proposition that what the majority said in S152/2003 does not constitute a definitive statement of the appropriate test in circumstances such as those faced by the appellant, and needs to be read in the context of the case with which the High Court was dealing. Rather, it was suggested that the correct test was stated by McHugh J in that case. To deal with this submission, it is necessary to analyse S152/2003 . 17 That case involved applications by a couple of Ukrainian nationals for protection visas, on the basis that the husband, who was a Jehovah's witness, had a well-founded fear of persecution in Ukraine for the reason of his religion. Before the Tribunal, the case had been that the Government of Ukraine, directly and through the media it controlled, encouraged persecution of Jehovah's witnesses. The Tribunal rejected that proposition. It was also said that the police condoned violence towards Jehovah's witnesses. The Tribunal did not accept that. The Tribunal made specific findings that it was not satisfied that the Ukrainian authorities were unable or unwilling to protect citizens from violence based on antagonism of the kind involved. An application for judicial review in this Court was rejected. On appeal to the Full Court of this Court, an issue emerged that had not been raised at first instance. The Full Court held that the Tribunal was entitled to find that there was no evidence that the Ukrainian authorities encouraged persecution of Jehovah's witnesses, but that the Tribunal had failed to consider whether Ukraine had the ability, in a practical sense, to provide protection. On this ground, the Full Court allowed the appeal and set aside the Tribunal's decision. The High Court allowed an appeal from the judgment of the Full Court. 18 The following passage appears in the judgment of the majority, Gleeson CJ, Hayne and Heydon JJ, at [25]-[26]: The first respondent is outside his country of nationality owing to a fear resulting from a violent response of some Ukrainian citizens to his religious proselytising. The Tribunal's conclusion that the violence was random and uncoordinated was not merely an assertion. It was a finding based on the evidence, and it was directly relevant to the case the first respondent was seeking to make, which was that the violence was orchestrated and State-sponsored. The first respondent did not set out to demonstrate that his country was out of control. On the contrary, he was claiming that the government was in control, and was using its power and influence to harm people like him. The new case, raised for the first time in the Full Court, has to be related to the terms of Art 1A(2). What kind of inability to protect a person such as the first respondent from harm of the kind he has suffered would justify a conclusion that he is a victim of persecution and that it is owing to a well-founded fear of persecution that, being outside his country, he is unwilling to avail himself of his country's protection? No country can guarantee that its citizens will at all times, and in all circumstances, be safe from violence. Day by day, Australian courts deal with criminal cases involving violent attacks on person or property. Some of them may occur for reasons of racial or religious intolerance. The religious activities in which the first respondent engaged between May and December 1998 evidently aroused the anger of some other people. Their response was unlawful. The Ukrainian State was obliged to take reasonable measures to protect the lives and safety of its citizens, and those measures would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system. None of the country information before the Tribunal justified a conclusion that there was a failure on the part of Ukraine to conform to its obligations in that respect. 19 At [27], their Honours referred to the absence of any "cause to conclude that there was any failure of State protection in the sense of a failure to meet the standards of protection required by international standards". At [28], their Honours referred to the nature of the case put to the Tribunal and to the Full Court's conclusion as to that case and continued: The only other basis upon which the first respondent's unwillingness to seek the protection of the Ukrainian Government could be justified, and treated as satisfying that element of Art 1A(2), would be that Ukraine did not provide its citizens with the level of State protection required by international standards. It is not necessary in this case to consider what those standards might require or how they would be ascertained. There was no evidence before the Tribunal to support a conclusion that Ukraine did not provide its citizens with the level of State protection required by such standards. The question of Ukraine's ability to protect the first respondent, in the context of the requirements of Art 1A(2), was not overlooked by the Tribunal. Because of the way in which the first respondent put his claim, it was not a matter that received, or required, lengthy discussion in the Tribunal's reasons. If the Full Court contemplated that the Tribunal, in assessing the justification for unwillingness to seek protection, should have considered, not merely whether the Ukrainian Government provided a reasonably effective police force and a reasonably impartial system of justice, but also whether it could guarantee the first respondent's safety to the extent that he need have no fear of further harm, then it was in error. A person living inside or outside his or her country of nationality may have a well-founded fear of harm. The fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify unwillingness to seek their protection. For example, an Australian court that issues an apprehended violence order is rarely, if ever, in a position to guarantee its effectiveness. A person who obtains such an order may yet have a well-founded fear that the order will be disobeyed. Paradoxically, fear of certain kinds of harm from other citizens can only be removed completely in a highly repressive society, and then it is likely to be replaced by fear of harm from the State. 20 In a separate judgment, McHugh J discussed at length the requirements of a well-founded fear of persecution. After dealing with state persecution, and state condemnation of persecution by others, his Honour said at [77]: The case that presents most difficulty is one where harm to individuals for a Convention reason may come from any one or more of a widely dispersed group of individuals and the State is willing but is unable to prevent much of that harm from occurring. In societies divided by strongly held ethnic or religious views, it commonly happens that members of one group have a real chance of suffering harm often violent harm because of the pervasive but random acts of members of another group. Such harm occurs although the State makes every effort to prevent it. In such cases, it would be a misuse of language to say that the fear of persecution is not well-founded because the State has "a system of domestic protection and machinery for the detection, prosecution and punishment of actings contrary to the purposes which the Convention requires to have protected". 23 The remaining member of the High Court in S152/2003 , Kirby J, discussed the issues but allowed the appeal without expressing a concluded view on the differences between the majority judgment and that of McHugh J. See the judgment of Kirby J at [111]-[112]. 24 This examination of S152/2003 demonstrates that it is impossible to uphold the contention, put on behalf of the appellant in the present case, that the majority judgment in that case cannot be taken as an expression of the authoritative test to apply when the issue is whether the country of nationality of an applicant for a protection visa alleges that that country lacks the ability effectively to protect him or her from the harmful actions of non-state antagonists. By the time the case reached the High Court, it was a case about the adequacy of state protection. It had become such a case because the Full Court had held that the Tribunal had failed to deal with the ability of the Ukrainian Government to prevent future harm. The majority of the High Court allowed the appeal on the basis that the Tribunal had no evidence before it that would have justified a finding that the necessary state machinery of Ukraine fell below the required standard for protection of its citizens. The majority expressed this norm by reference to international standards, and made it clear that there is no requirement that a state provide absolute protection for its citizens. In the light of what the majority said, the view of McHugh J cannot be regarded as authoritative. In Applicant A99 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 773 (2004) 83 ALD 529 at [35] - [42] , Mansfield J analysed S152/2003 . It is clear that his Honour thought that the view expressed by the majority was authoritative. I respectfully share his Honour's view. Even if what the majority said could be characterised technically as obiter, it would be necessary to characterise the view of McHugh J in the same way. It would be a bold step for a judge of this Court, or a federal magistrate, and especially a Tribunal member, to ignore what the majority said in favour of adopting the view of McHugh J. 25 There can be no doubt that the Tribunal in the present case applied the test expressed by the majority in S152/2003 . It specifically found that the appropriate level of protection was to be determined by international standards, and that the level of protection in the United Kingdom meets international standards. There was evidence before the Tribunal to justify this finding. Once it was reached, the Tribunal was bound to decide, as it did, that the appellant's fear of persecution was not well-founded. Even if in fact the appellant might come to harm at the hands of vigilantes in the United Kingdom, his unwillingness to avail himself of the protection of that country because the protection would not be absolute would not be sufficient to bring him within Art 1A(2) of the Convention. 26 The appellant has therefore failed to make good the only ground on which this appeal was conducted. 27 For these reasons, the appeal must be dismissed. No reason appears, and none was suggested, why the ordinary principle that costs follow the event should not be applied. Accordingly, the appellant will be ordered to pay the costs of the first respondent of the appeal. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate: Dated: 14 August 2008 Counsel for the Appellant: A Macdonald Counsel for the Respondents: C D Bleby Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 28 February 2008 Date of Judgment: 14 August 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1236.html


case_outcome: affirmed

case_text: The essential question in this proceeding is whether the Refugee Review Tribunal ("the Tribunal") applied the wrong test when considering the issue of the availability of state protection in the context of an application for a protection visa. The proceeding is an appeal from a judgment of the Federal Magistrates Court of Australia, which dismissed an application for judicial review of the Tribunal's decision and ordered that the appellant pay the first respondent's costs of that proceeding. The judgment of the learned federal magistrate was delivered, and the orders made, on 11 October 2007. See SBZD v Minister for Immigration & Anor [2007] FMCA 1624. The Tribunal's decision, dated 9 May 2007, was to affirm a decision of a delegate of the Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Citizenship, the first respondent) (in both cases, "the Minister") to refuse to grant to the appellant a protection visa. 2 The appellant is a citizen of the United Kingdom, who arrived in Australia on 29 October 1982. With the benefit of an appropriate visa, he resided lawfully in Australia. During the course of his residence in Australia, he was convicted and sentenced on charges of sexual offences in relation to his adopted daughter, and was imprisoned. As a result of his conviction and sentence, the appellant had his visa cancelled on character grounds, and was the subject of a deportation order, pursuant to s 200 of the Migration Act 1958 (Cth) ("the Migration Act "). On 16 September 2005, the appellant applied for a protection visa. The Minister's delegate's decision to refuse to grant the visa was made on 30 January 2006. The appellant applied to the Tribunal to review that decision. On 1 June 2006, the Tribunal affirmed the decision of the Minister's delegate. The appellant sought review of that decision of the Tribunal in the Federal Magistrates Court. On 22 September 2006, by consent, the Federal Magistrates Court set aside the decision and remitted the matter to the Tribunal, to be determined according to law. The decision of the Tribunal the subject of this proceeding followed that remittal. 3 By s 36 of the Migration Act , there is a class of visas to be known as protection visas. A criterion for a protection visa is that the applicant for the visa be a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The terms "Refugees Convention" and "Refugees Protocol" are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, and the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to refer to these two instruments, taken together, as the "Convention". For present purposes, it is sufficient to note that, pursuant to the Convention, Australia has protection obligations to a person who is a refugee, as defined in Art 1 of the Convention. By Art 1A(2) of the Convention, a refugee is (relevantly) a person who: owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country 4 The substance of the appellant's case before the Tribunal was that he is a member of a particular social group, defined in various ways, but in each case depending on the fact that the offences of which he was convicted are such as to make him a child sex offender or paedophile, or a person perceived to be a child sex offender or paedophile. His fear of persecution is based on the existence in the United Kingdom of vigilante groups, who target paedophiles, or suspected paedophiles, for assault and even death. 5 The Tribunal accepted that the appellant had a genuinely held fear of harm if he returned to the United Kingdom. It accepted that his name and photograph had been communicated publicly in the past by the British media, which had portrayed him as a child sex offender or paedophile. The Tribunal therefore accepted that the appellant has some public profile as a child sex offender or paedophile in the United Kingdom. The Tribunal accepted that if the appellant returned to the United Kingdom, there was a real chance that his name and photograph would again be publicised by British media, and that he would be portrayed in such publicity as a child sex offender or paedophile.


case_text: The following submissions were advanced by Idoshore as to the implications of that contribution which it made to Dr Fox warrant precise reproduction, as follows: (i) 'Idoshore was induced to permit this transaction [to be implemented] on the clear condition and representation that Foundation would take forward the move to a larger location, the CBA building, which in turn would entitle Idoshore to a second Earn-Up with the profits of the economies of scale. Dr Fox was, on the evidence, a critical part of that overall plan for larger premises'; (ii) '[a]gain, no evidence has been called to challenge either Mr O'Shanassy's account of the circumstances, or to demonstrate that Foundation had the present intention represented when the inducement was made, or that it had a reasonable basis for the representations'; based on the Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 principle of evidence, 'and (for the TPA claim) on s 51A of the Trade Practices Act 1974 (Cth), the failure to adduce evidence necessary to explain or demonstrate the truthfulness of the representation is fatal'; the representation having 'induced the payment, relief under sec 87 to order the restoration of the funds to Idoshore is an obvious remedy'; (iii) '[f]urther, by reason that the payment was made pursuant to the undertaking to expand the business, which did not happen, the consideration for the payment wholly failed'; (iv) '[t]he argument that there was simply a breach of contract by not moving, damages for which cannot be demonstrated, because there is no evidence as to what the income would have been in the new premises, invites the McRae v Commonwealth [ Disposals Commission [1950] HCA 12 ; (1951) 84 CLR 377] response that Idoshore having been deprived of the opportunity to show what the effect of a move would have been, because there was not a move, is entitled to recover the monies it paid on the warranty that there would be a move; in McRae the disappointed salvagers were entitled to recover the costs of the salvage expedition undertaken that discovered there was no tanker to salvage because the absence of a tanker prevented them showing what the profits might have been from that expenditure'; (v) '[a]ccordingly, either in restitution for the sum paid on a pre-contractual misrepresentation, or because the consideration and purpose of the payment wholly failed; or because the conduct [of Foundation] was misleading and deceptive in circumstances undertaken within s 51A , the $210,000 removed from the warranty retention money must be returned to Idoshore's account and benefit together with interest'; (vi) '[t]he simplest way of dealing with this in a case such as this is to treat the $210,000 warranty retention money as being intact in the hands of Foundation; in circumstances where the Court concludes (as is submitted) that Foundation has no right to retain any of that money for "warranty" breaches or for any other reason, it should be treated as a remaining part of the original purchase price not yet paid to Idoshore'. As I have foreshadowed, that sum of $210,000 comprised the sums of $125,000 and $85,000 referred to in [2] above, and the same did not as such lose their clause 10.5 character as the part of the 'Purchase Price' payable by Foundation to Idoshore for the 'Purchase' of the 'Business'. There is force in Idoshore's submission that the consideration for and purpose of the payment of the $210,000 failed, and that the totality of those warranty retention moneys should be returned to Idoshore beneficially. There is no evidence before the Court that challenges at least the substance of Mr O'Shanassy's account of the circumstances regarding the drawing down of the Warranty Security Deposit to pay 'one half of the sum demanded by Dr Fox'.


case_title: McRae v Commonwealth Disposals Commission [1950] HCA 12 ; (1951) 84 CLR 377


case_title: James v Australia And New Zealand Banking Group Ltd (1986) 64 ALR 347

case_text: In any event, so Foundation's submissions continued, any representation to the effect that Foundation would work to grow the Business was asserted to have been made 'on reasonable grounds', Foundation emphasising that '... given Foundation's ongoing operation as a large public company operating many medical centres, [then] without direct proof of intention on the part of Foundation not to meet the Benchmark, the reasonable grounds are established', and further that '[i]t is not sufficient that matters represented may have been subject to a change of mind'. Foundation referred in that regard to dictum in James v Australia And New Zealand Banking Group Ltd and Others (1986) 64 ALR 347 at 372 where Toohey J drew attention to principles to the effect that '[t] he mere fact that representations as to future conduct or events do not come to pass does not make them misleading or deceptive', though further that '[n]evertheless, a statement relating to the future may contain an implied statement as to present or past fact [and] may represent impliedly that the promisor has a present intention to make good the promise and it may represent impliedly that he has the means to do so' . Of course so much often depends upon the context to and the subject matter of a representation, but in any event Foundation submitted that the decision 'relating to relocation' was inherently of that general character. 116 In addressing the 'primary objective' theme of clause 3.9 of the Business Sale & Purchase Agreement, that clause being the provision of the Agreement per se upon which Idoshore of course placed significant reliance, Foundation asserted that 'an objective' was to be distinguished from a guarantee or warranty and that clause 3.9 was 'couched in appropriate terms as an objective'. It was further contended that if the purpose of the clause was to provide a guarantee or warranty 'it would have been phrased in definitive terms'. Achievement of growth as such, without nomination or specification for instance of a minimum or maximum standard or parameters for the growth, carries somewhat imponderable implications of difficulty in a contractual setting such as clause 3.9. In any event that clause has significance independently concerning the making by Foundation of 'any material changes' without consultation or consent. 117 As to the operation of clause 3.10 of the Business Sale & Purchase Agreement, which records the unspecific themes as to Foundation's stated intention '... to grow and expand the Business and, subject to clause 3.9, [not to] impede the Purchaser', Foundation submitted that the same constituted a 'motherhood' statement, since '[n]o purchaser would pay $1.125 million dollars for a business without intending to grow and expand it'. Nevertheless contractual significance should be assigned to that contractual acknowledgment, however confined in scope it may be. Foundation submitted further those contractual passages were not to be interpreted as saying that 'performance can be expected to automatically continue at existing levels or outstrip them'. Foundation was already engaged of course in business operations similar to, though apparently much more substantial than, those conducted by Idoshore at the OSMC at the time the Agreement was formed.


case_text: The first such restatement of principle cited by Idoshore was that enunciated by Priestly JA as a member of the New South Wales Court of Appeal in relation to a building and engineering contract in Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 at 260: 'There is nothing in the slightest novel in the implication of terms requiring reasonableness by parties to a contract in implementing terms of the contract.' And further at 268: 'The result is that people generally... have grown used to the courts applying standards of fairness to contract which are wholly consistent with the existence in all contracts of a duty upon the parties of good faith and fair dealing in its performance. In my view this is in these days the expected standard, and anything less is contrary to prevailing community expectations.' In framing those principles, his Honour acknowledged the briefly reported dictum of Dixon J (as he then was) in Gullett v Gardner (1948) 22 ALJ 151, as follows: 'This appeal depends upon the interpretation that should be placed upon a transaction of a somewhat curious nature between the two parties, the plaintiff and the defendant. It depends upon its interpretation in the wide sense; not the mere construction of the language in which it is expressed, but the extraction from the documents and the circumstances to which they refer and in which they were made of the full intention which the parties had or are to be considered as having with reference to the question now arising from the events that have occurred' (that emphasis appearing in the foregoing dictum was that of Dixon J). To similar effect was the dictum of Handley JA appearing in Renard at 280. Meagher JA reached the same outcome in decision-making, upon the operation of the contractual material addressed, as did Priestly and Handley JJA, though (at 275) his Honour rejected the notion '... that reasonableness could be imported as a limitation on the existence of cl 44 powers...' , upon the basis that '[s]uch a limitation, if it existed, could only arise either from the express words of the contract or by way of an implied term' .


case_title: Gullett v Gardner (1948) 22 ALJ 151


case_text: Idoshore cited also what appeared more recently in the unanimous reasons of the High Court in Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 at 462 (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ), concerning the bearing of surrounding circumstances upon the construction of written contracts, as follows: 'The construction of the letters of indemnity is to be determined by what a reasonable person in the position of Pacific would have understood them to mean. That requires consideration, not only of the text of the documents, but also the surrounding circumstances known to Pacific and BNP and the purpose and object of the transaction.' 147 The surrounding circumstances implicitly known to Idoshore and Foundation included the nature and extent of Idoshore's then existing business activities, described by the Agreement as the provision of 'facilities and services to medical practitioners to facilitate the conduct of their individual medical practices carried out in and from the Premises...', such premises being of course the subject of the medical operations of Idoshore's medical practitioners by the time of formation of the Business Sale & Purchase Agreement. As I have foreshadowed, at the time of formation of the Agreement, Foundation was already itself engaged extensively in the operation of business activities of that general description, though on a much larger scale than Idoshore. 148 As I have already placed on record, Idoshore listed the following matters in summary as the principal focus of its case, being of course the case the subject of its several claims (I put aside for the moment Foundation's briefly framed cross-claim): '(a) the representations made to [Mr] O'Shanassy about exchanging a higher price for an Earn-Up provision; (b) the pre-contractual representations as to [Foundation's] intention to grow the Business [and] the Heads of Agreement; (c) the contractual provisions of the Business Sale & Purchase Agreement setting out [Foundation's] intention to grow the Business; (d) the express obligation [of Foundation] not to make any material change to the Business; and (e) the contractual warranties by Idoshore as to maintenance of post acquisition EBITDA.' As to (a) above, the same is apparently a reference to representations made in the course of pre-contract negotiations, as is explicitly the case in (b) above.


case_text: The ACCC commenced these proceedings on 1 November 2006 alleging contraventions by various parties of s 45 of the Act and the Code. The alleged contraventions involved price fixing in the provision of educational consultancy services to overseas students of Korean origin. The proceedings were commenced against Kokos, Chad Kim, IAE, Young Gil Pae, Sang-Hong Jung and Rebekah Cabalt. Study Overseas Now Pty Ltd (Study Overseas Now) was joined as a respondent to the proceedings subsequently. On 17 August 2007 the ACCC was given leave to serve on Mr Seow Bing Yeo, a director of that company, a notice of motion seeking his joinder, such service to be effected out of the jurisdiction in Japan through a diplomatic channel. For the reasons set out in Australian Competition & Consumer Commission v Kokos International Pty Ltd [2007] FCA 2035 , that latter requirement was dispensed with and an order for substituted service made. 5 The corporate respondents and Sang-Hong Jung are each said to have been in the business of providing educational consultancy services to students of Korean origin. The services allegedly involved providing information to students about courses in secondary and tertiary education institutions in Western Australia and arranging for their enrolment at institutions of their choice. The corporate respondents and Ms Jung are said to have been remunerated by commissions paid by the institutions. 6 The corporate respondents and Ms Jung are said to have made oral and written agreements in 2004 and 2005 under which they agreed not to offer or accept discounted tuition fees. Any party to the agreements that offered or agreed to accept a discounted tuition fee would be referred to a 'Council of Korean Agency' comprising representatives of each of the parties to the agreement. Such parties would be banned from enrolling students in the relevant institutions for a period of three months. It was alleged that copies of the written agreement were sent to a number of educational institutions. The ACCC alleged that the conduct of the corporate respondents and Ms Jung was in contravention of s 45 of the Act and of the Code. The other natural person respondents were said to have been involved in the contraventions.


case_text: The ACCC set out in its submissions a non-exhaustive list of the principles and factors relevant to the determination of pecuniary penalties. They were: (a) The nature and extent of the contravening conduct. (b) The amount of loss or damage caused. (c) The circumstances in which the conduct took place. (d) The size of the contravening company. (e) The degree of power it has, as evidenced by its market share and ease of entry into the market. (f) The deliberateness of the contravention and the period over which it extended. (g) Whether the contravention arose out of the conduct of senior management or at a lower level. (h) Whether the company has a corporate culture conducive to compliance with the Act as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention. (i) Whether the company has shown a disposition to cooperate with the authorities responsible for the enforcement of the Act in relation to the contravention. (j) Whether the respondents have engaged in similar conduct in the past. (k) The financial position of the respondents. (l) The deterrent effect of the proposed penalty. The ACCC referred to Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 and Australian Competition and Consumer Commission v NW Frozen Foods Pty Ltd (1996) ATPR 41-515. Although there has been repeated discussion in later cases of the factors relevant to the quantum of pecuniary penalties, I am satisfied that the above list is sufficiently comprehensive. It is to be applied by reference to the general principle that the purpose of pecuniary penalties is to deter the contravenor and others from future contraventions of the Act.


case_text: Save for the orders sought against Mr Chad Kim in relation to the alleged attempted contravention of the Code, the declaratory orders sought are within the power of the Court to make. There may be a question about their utility given that these reasons set out the findings of fact and the contraventions which underpin the injunctive relief which has been granted and the pecuniary penalties which are to be imposed. However, as Nicholson J pointed out in Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union (2007) ATPR 42-140 at [6] such declarations: 1. Are an appropriate vehicle to record the Court's disapproval of the contravening conduct: Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1993) 41 FCR 89 at 100; Australian Competition and Consumer Commission v Chen [2003] FCA 897 ; (2003) 132 FCR 309 at [36] . 2. Serve to vindicate the ACCC's claim that the respondents contravened the Act: Australian Competition and Consumer Commission v Goldy Motors (2000) 23 ATPR 41-801 at [34]. 3. May be of assistance to the ACCC in the future in carrying out the duties conferred upon it by the Act: Goldy Motors 23 ATPR at [34]. 4. Are of assistance in clarifying the law: Goldy Motors 23 ATPR at [34]; Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (in liq) [2005] FCA 1212 at [146] . 5. May inform consumers of the dangers arising from a respondent's contravening conduct: Chen 132 FCR at [48]; and 6. May deter corporations from contravening the Act: Australian Competition and Consumer Commission v Midland Brick Co Pty Ltd (2004) 207 ALR 329 at [22]. In that case in considering the appropriateness of declaratory relief, Nicholson J observed that the declarations sought, by consent, were directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The matters in issue had been identified, particularised and admitted by the respondents. The ACCC as a public body charged with enforcing the Act had a real interest in seeking the relief and the respondents were in the position of a proper contradictor in that they had a true interest in opposing the declarations sought. So much is true in this case. 49 In the circumstances of this case however, there is a question affecting the appropriateness of making the declarations sought at this time. There are other parties to these proceedings who are named in the declarations and against whom these proceedings are still pending. Although the declaratory orders are sought only against the first to fourth respondents, they involve formal declarations of the involvement of other respondents. True it is that the declarations are in personam as between the ACCC and the first to fourth respondents severally. They would not give rise to any issue estoppel against other parties any more than would the findings of fact based upon admissions made by the first to fourth respondents. Those findings of fact have been made only as against the first to fourth respondents. 50 In my opinion it is undesirable that the Court should, at this time, make formal declarations naming other respondents as parties to the contravening conduct. The question of declaratory relief will be stood over with liberty to the ACCC to apply for orders at an appropriate time in the terms sought. Apart from the declaration sought against Mr Chad Kim in relation to the alleged attempt to contravene the Code, the declaratory orders proposed are otherwise appropriate.


case_title: Trade Practices Commission v CSR Ltd (1991) ATPR 41-076


case_text: While its burden has been the subject of controversies of recent times: see Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117 ; it is unnecessary that I enter upon them. It is sufficient for me to note that: (i) the effect of s 31A was to soften the test for a successful application for summary judgment as stated by the High Court in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 ; see Kowalski at [25]-[26]; (ii) As to what is signified by having "no reasonable prospect of successfully prosecuting a proceeding", in light of what was said in Kowalski at [29]-[30], I am content to adopt what was said by Rares J in Boston Commercial Services Pty Ltd v G E Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720 at [43] - [45] : The concept of a party having "no reasonable prospect of successfully prosecuting a proceeding" has some similarity to the test at common law for determining whether a jury properly instructed could reach a verdict for the plaintiff. That test was authoritatively stated by the Judicial Committee in Hocking v Bell (1947) 75 CLR 125 at 130 1 ; [1948] 1 ALR 85 at 87 8 ( Hocking (1947)), approving the following statement from the dissenting judgment of Latham CJ ( Hocking v Bell [1945] HCA 16 ; (1945) 71 CLR 430 at 441 2 ( Hocking (1945))): If there is evidence upon which a jury could reasonably find for the plaintiff, unless that evidence is so negligible in character as to amount only to a scintilla, the judge should not direct the jury to find a verdict for the defendant, nor should the Full Court direct the entry of such a verdict. The principle upon which the section is based is that it is for the jury to decide all questions of fact, and therefore to determine which witnesses should be believed in case of a conflict of testimony. But there must be a real issue of fact to be decided, and if the evidence is all one way, so that only one conclusion can be said to be reasonable, there is no function left for the jury to perform, so that the court may properly take the matter into its own hands as being a matter of law, and direct a verdict to be entered in accordance with the only evidence which is really presented in the case. [Emphasis added] ... In a case to which s 31A applies, where there is a real issue of fact to be decided in the sense identified in the above principle, and, possibly, where there is a real issue of law of a similar kind, it is obviously appropriate that the matter goes to trial. ... I am of opinion that in assessing what reasonable prospects of success are for the purposes of s 31A , the court must be very cautious not to do a party an injustice by summarily dismissing the proceedings where, in accordance with the principles in Hocking (1947), contested evidence might reasonably be believed one way or the other so as to enable one side or the other to succeed. As soon as the evidence may have such an ambivalent character prior to a final determination, I am of opinion that then, as a matter of law, at that point there are reasonable prospects of success within the meaning of s 31A.


case_title: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125


case_title: Boston Commercial Services Pty Ltd v G E Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720


case_text: Because of their present relevance, I will refer to the observations of French J in Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [20] where his Honour said that that judgment may be made: ... by reference to evidence put on in support of an application under s31A which reasonably excludes the possibility that facts essential to the success of the claim or defence will be able to be established. 30 Order 20 r 5 of the Federal Court Rules empowers the Court (inter alia) to order that a proceeding be dismissed if satisfied that it is frivolous, vexatious or an abuse of process. 31 The Council's grounds for summary dismissal are, as I have said, layered. The first two grounds relate to the competence of the purported s 88 application. The first ground is that Mr Wilkshire is not a "person aggrieved"; the second, that his application has not enlivened any of the grounds specified in s 88(2) which are the only grounds available for making an order under s 88(1). (a) "A person aggrieved"


case_text: The concept of "an aggrieved person" in this context has been considered in many cases: see the discussion by Sackville J in Kraft Foods Inc v Gaines Pet Food Corporation (1996) 65 FCR 104 at 111-114. For present purposes it is sufficient for me to refer, as others have done, to McLelland J's comment on it in Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158 at 193: ... the expression would embrace any person having a real interest in having the Register rectified, or the trade mark removed in respect of any goods, as the case may be, in the manner claimed, and thus would include any person who would be, or in respect of whom there is a reasonable possibility of his being, appreciably disadvantaged in a legal or practical sense by the Register remaining unrectified, or by the trade mark remaining unremoved in respect of any goods, as the case may be, in the manner claimed.


case_title: Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158


case_text: Mr Wilkshire's affidavits are replete with speculations about, and assertions and allegations of, impropriety, be it of the Delegate, the Council's witnesses, or both parties' lawyers. While accepting he may be able to point to inconsistencies in evidence relating to events long prior to the preparation of the declarations of witnesses for the Council, or to the non-production of documents created over a decade earlier, he has provided no plausible justification at all for the regularly made and, at first flush, seemingly preposterous consequential allegations of impropriety. I note in passing the standard of proof s 140 of the Evidence Act 1995 (Cth) provides for such allegations: see Qantas Airways Ltd v Gama [2008] FCAFC 69 at [123] - [139] . 42 Importantly there is nothing at all to suggest that the very specific matters which were central to his case and in particular the discrepancies in the evidence on the Council's use of its mark as between April and June 1997 were themselves material, or of any causative significance, in the Council obtaining registration of that mark. The supposedly tainted evidence had no bearing on the Delegate's decision. 43 I refer to these matters because what would be involved in allowing Mr Wilkshire to amend his application would be the articulation of an, as yet, indiscernible claim (possibly under s 62A) and a claim, moreover, which there is no reason to believe on the material before me will have any substance, legal or factual.


case_text: It is the case generally that the dismissal of a proceeding in this Court by consent can found res judicata and issue estoppels and attract the Anshun doctrine: see generally Maiden, "Recent steps in the evolution of res judicata , cause of action estoppel and the Anshun doctrine in Australia" (2004) 25 Australian Bar Review 130 esp at 138. As was said in Re South American and Mexican Co [1895] 1 Ch 37 at 50: ... a judgment by consent is intended to put a stop to litigation between the parties, just as much as is a judgment which results from the decision of the court after the matter has been fought out to the end. See also Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3) [2001] FCA 1861 ; (2002) 119 FCR 1 at [1148] ; Chamberlain v Deputy Commissioner of Taxation (ACT) [1988] HCA 21 ; (1988) 164 CLR 502 at 508. This said, there is real controversy as to the extent to which decisions on appeal in opposition proceedings (whether by consent or otherwise) can found an issue estoppel or attract the Anshun doctrine in s 88 applications given the view of the Full Court in Lomas v Winton Shire Council [2002] FCAFC 413 at [18] that an opposition proceeding had a "quasi summary nature". The Court went on (at [18]) to say that: An unsuccessful opponent would always have the opportunity to bring an expungement proceeding if the opposition proceeding fails. In an expungement proceeding, the validity of a trade mark can be fully explored. That is a reason for concluding that there should not be a full exploration of the prospective validity of a trade mark on an appeal in an opposition proceeding. See also Clinique Laboratories Inc v Luxury Skin Care Brands Pty Ltd [2003] FCA 1517 ; (2003) 61 IPR 130 at [13] ; Health World Ltd v Shin-Sun Australia Pty Ltd (2006) 68 IPR 557 at [31]-[48].


case_title: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3) [2001] FCA 1861 ; (2002) 119 FCR 1


case_title: Chamberlain v Deputy Commissioner of Taxation (ACT) [1988] HCA 21 ; (1988) 164 CLR 502


case_title: Lomas v Winton Shire Council [2002] FCAFC 413


case_title: Clinique Laboratories Inc v Luxury Skin Care Brands Pty Ltd [2003] FCA 1517 ; (2003) 61 IPR 130


case_title: Health World Ltd v Shin-Sun Australia Pty Ltd (2006) 68 IPR 557


case_text: The Council has sought to outflank these decisions by contending that Mr Wilkshire's proceeding can, in the circumstances, properly be characterised as an abuse of process. The power of the Court to prevent such abuses extends beyond "the strict limits" of res judicata , issue estoppel and the Anshun doctrine: SZAJB v Minister for Immigration and Citizenship [2008] FCAFC 75 ; (2008) 168 FCR 410 at [37] - [38] . A considerable body of material was put on to support the contention that Mr Wilkshire was engaging in "unjust harassment of the Council ... with respect to the subject matter of this litigation". 50 Given the view I have already taken of the prospects of this application, I do not intend to enter upon the controversies raised above. The undertakings 51 The final ground, which only came into sharp focus at the hearing of the motion, is a foreshadowed defence to Mr Wilkshire's application. It is founded on the consent undertakings noted with the consent orders. It is appropriate to reiterate their terms at this point: 4 The applicant undertakes to the Respondent as follows: (a) not to interfere in any way with the Respondent's application to register trade mark number 942740 (the "Respondent's mark"); and (b) not to threaten the Respondent, any of the Respondent's licenses (whether current or future) or any other person with any form of action (including action for trade mark infringement under the Trade Marks Act 1995 , passing off, breach of section 52 or 53 of the Trade Practices Act 1974 or related State and Territory Fair Trading Legislation and/or a breach of copyright) in relation to the use of the Respondent's mark. This undertaking applies to existing and future use of the Respondent's mark in relation to all goods and services. For the avoidance of doubt, nothing in this undertaking restricts the Applicant's right to use trade mark no. 847,229 in relation to the services for which he is registered.


case_text: As I will indicate below, the undertakings are contractual in character and, no less so than the Court orders, they are binding on the parties. In construing the consent orders and the undertakings, like principles are applied and in particular, evidence of the surrounding circumstances, or context, is admissible: see Nokia Corporation v Liu [2008] FCAFC 138 at [29] - [31] . 53 I earlier noted that Mr Wilkshire's legal advisers accepted an offer of compromise made by the Council's solicitors on 9 March 2007. While there may be an outstanding question whether that compromise included a non-disclosure undertaking, there is no doubt that it included the above two undertakings. Whether or not Mr Wilkshire's advisers exceeded their authority in acting as they did is not presently relevant. There can be no doubt that, in the circumstances, they acted within their ostensible authority to compromise the action. Equally there is no doubt that Mr Wilkshire was prepared to accept the compromise in the form offered in the letter of 27 February 2007 from the Council's lawyers. It was, in substance, what is contained in the consent orders and undertakings. Both the evidence and legal principle point in one direction. Whatever grounds for complaint (if any) Mr Wilkshire has against his advisers, he was bound by the consent orders and he remains bound by his contractual undertaking. 54 The remaining question is whether, by the undertakings given, he contractually bound himself not to initiate the present proceedings.


case_text: The Council contends that cl 4(b) created an estoppel by convention which barred Mr Wilkshire for instituting the present proceeding. I have some difficulty in understanding how this species of estoppel (on which see generally Handley, Estoppel by Conduct and Election , Ch 8 (2006)) in this setting assists the Council beyond the assistance which it properly can derive from the construction of the undertakings themselves in their setting. The context does provide quite clear indications as to how the language of the undertakings should be interpreted but that conclusion is arrived at by well accepted processes of interpretation. It does not in this matter seem to suggest that the parties adopted some assumption as the "conventional basis" upon which they entered into their compromise and from which Mr Wilkshire should not now be allowed to depart: Grundt v Great Boulder Pty Gold Mines Ltd [1937] HCA 58 ; (1937) 59 CLR 641 at 657.


case_text: As Allsop P indicated in Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234 at [3] : ... the identification of ambiguity is not a precondition for examining contextual and background material otherwise legitimate to examine in furtherance of the construction and interpretation of a written contract. 60 It is in my view quite clear that considered together with the consent orders (which, unfavourably to Mr Wilkshire, brought to an end the proceeding that was then on foot), the manifest intent of the two undertakings was to (a) secure that Mr Wilkshire would not interfere with the Council's obtaining registration of its mark (cl 4(a)); and (b) thereafter he would not interfere with the Council's use and enjoyment of its registered mark, directly or indirectly (cl 4 (b)). Likewise the manifest intent of the consent orders, when considered in the context of the undertakings, was not simply to bring to an end a proceeding of "a quasi summary nature". Put shortly, the combined effect of the orders and undertaking was that their dispute over the mark was to be at an end then and thereafter. Order 1 and Undertaking 4(a) were to secure for the Council its registered mark vis-à-vis Mr Wilkshire; Undertaking 4(b) was to secure the use and enjoyment of that registered mark undisturbed by actions, threatened or initiated, by Mr Wilkshire. In aggregate the parties' compromise agreement was more than the bare compromise on an opposition appeal. In this setting "not to threaten ... with any form of action" manifestly was intended to comprehend "the initiation" of an action. Similarly any action in relation "to the use of" the registered mark encompassed an action in relation to its use as a registered mark. 61 In its setting cl 4(b) is not in my view to be construed as some adaptation of the s 129 "threat action". Rather, it can, and should be, interpreted as I have indicated above. As such, it could be relied upon as a complete defence to the prosecution of the present application. It provides yet another basis for summary judgment against him under s 31A of the Federal Court of Australia Act .


case_title: Maguire v Leather [2007] QSC 164

case_text: Atkins , of course, refers to, in its English origins, an English practice whereby it is traditionally the role of junior counsel to furnish an advice on evidence. In Australia, that certainly can be so but especially in more recent times, both solicitors themselves, as well as senior counsel, have an involvement in the furnishing of an advice on evidence. An example of the difficulties which can be encountered where an advice on evidence is not prepared is offered by Fryberg J in a Queensland case, Maguire v Leather , BC200705438, given on 13 July 2007, [2007] QSC 164 , see especially para 71.


case_outcome: considered

case_title: Bassett v Host (1982) 1 NSWLR 206

case_text: In terms of general principle, it seems to me that an appropriate starting point is a decision given in the New South Wales Court of Appeal, Bassett v Host (1982) 1 NSWLR 206. That case was the subject of a subsequent appeal to the High Court, Host v Bassett (1983) 57 ALJR 681 , in which an appeal was dismissed. The passages from which I quote now from the judgments in the New South Wales Court of Appeal were not the subject of express reference in the High Court, but there is nothing in the High Court's judgment, which was confined to the more narrow issues that arose in that case, that calls into question the passages concerned.


case_title: Host v Bassett (1983) 57 ALJR 681


case_title: Betts v Whittingslowe (1944) SASR 163

case_text: The circumstances in which witnesses can be called even after a party has closed its case are many and varied. Some singular examples show just how far the extent of the discretionary power to permit the calling of a witness after the closing of a case can reach. In that regard, note might usefully be taken of two South Australian cases. The first, Betts v Whittingslowe (No. 1) (1944) SASR 163 is a decision of then Chief Justice, Napier CJ. His Honour, at page 163, held that: Until the issues of fact and law have been finally determined by verdict or judgment, a trial judge has an inherent right to open a trial or to admit fresh evidence. 20 In the course of his judgment the Chief Justice, at page 163, did observe that: A trial should not be reopened merely to permit a party to fortify evidence adduced in the first instance by calling witnesses who might easily have been made available if due diligence had been shown.


case_text: More recently in time, Zelling J, then an acting justice of the South Australian Supreme Court, in Jingellic Minerals NL v Beach Petroleum NL (1991) 55 SASR 424 , also had occasion to consider the subject of the calling of a witness after the closing of a case. The circumstances there were rather singular in the sense that it became apparent that counsel in that case had not appreciated that a particular issue was material to the determination of the proceeding before the court. The application was made after the close of the case. His Honour held that a judge had power to reopen a case and to do so even in respect of a case where he had given judgment, but before orders had been sealed, if the interests of justice required such a course. His Honour counselled that such applications are to be kept in strict bounds. He added at page 425: Justice, however, is a protean concept and has moreover to be administered having regard to the rights and interests of both sides so that the application of the admitted jurisdiction to a given set of facts is not free of difficulty. There must be on the cases some specific cause which triggers the use of the remedial jurisdiction.


case_text: More recently in time the High Court has had occasion in State of Queensland v JL Holdings (1996/1997) [1997] HCA 1 ; 189 CLR 146 to consider the place of case management systems in the obtaining of justice according to law. Their Honours cite two authorities which, in my opinion, have pertinence in the context of the present application. At page 152 their Honours cite with approval what they describe as a well known passage in the judgment of Bowen LJ in Cropper v Smith (1884) 26 Ch D 700 at 710, where his Lordship said: Now, I think it is a well established principle that the object of courts is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. Speaking for myself and in conformity with what I have heard laid down by the other division of the Court of Appeal and by myself as a member of it, I know of no kind of error or mistake which, if not fraudulent or intended to over reach, the court ought not to correct if it can be done without injustice to the other party. Courts do not exist for the sake of discipline but for the sake of deciding matters in controversy and I do not regard such amendment as a matter of favour or of grace. 24 Their Honours continue in Queensland v JL Holdings at page 154 that they did not regard the passages that they cited from Sali v SPC as sanctioning any departure from Cropper v Smith and accepted in cases such as Clough and Rogers v Frog (1974) 48 ALJR 481. They continue, by way of observation, that: Sali v SPC was a case concerning the refusal of an adjournment in relation to which proper principles of case management have a particular relevance. And I considered they had just such relevance in refusing the application made by Olivaylle in December. 25 It is also observed by Dawson, Gaudron and McHugh JJ in Queensland v JL Holdings at page 154 that: Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation but it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim. Those are observations reflect the views of an ultimate appellant court. Obviously enough, their application will differ in the context of particular cases and especially will differ in relation to an application of this nature, made in the course of a trial, in terms of whether prejudice will be occasioned to an opposing party. It must be said that in this court the reception of Queensland v JL Holdings has not been, with the very greatest of respect, an entirely subordinate one. In this regard and in the very particular context of the case before his Honour, in Black and Decker Australasia Pty Limited v GMCA Pty Limited [2007] FCA 1623 on 23 October 2007, Finkelstein J observed at para 3 that a state of affairs whereby case management directions were overlooked had as one of its chief causes what his Honour described as "the chilling effect" of the High Court's decision in Queensland v JL Holdings . 26 With the very greatest respect, I do not regard Queensland v JL Holdings as having a chilling effect. It seems to me that there is a need not to confuse the particular principle enunciated in JL Holdings with the outcome in particular cases. In terms of principle and in the context of this particular case, the most material consideration in my opinion is, is there prejudice and, if so, what is its nature and extent and having regard to that, what impact does that have on the discretion to permit the reception of some or all of the contents of Mr Lorenz's affidavit as evidence in the trial?


case_title: Cropper v Smith (1884) 26 Ch D 700

case_text: More recently in time the High Court has had occasion in State of Queensland v JL Holdings (1996/1997) [1997] HCA 1 ; 189 CLR 146 to consider the place of case management systems in the obtaining of justice according to law. Their Honours cite two authorities which, in my opinion, have pertinence in the context of the present application. At page 152 their Honours cite with approval what they describe as a well known passage in the judgment of Bowen LJ in Cropper v Smith (1884) 26 Ch D 700 at 710, where his Lordship said: Now, I think it is a well established principle that the object of courts is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. Speaking for myself and in conformity with what I have heard laid down by the other division of the Court of Appeal and by myself as a member of it, I know of no kind of error or mistake which, if not fraudulent or intended to over reach, the court ought not to correct if it can be done without injustice to the other party. Courts do not exist for the sake of discipline but for the sake of deciding matters in controversy and I do not regard such amendment as a matter of favour or of grace. 24 Their Honours continue in Queensland v JL Holdings at page 154 that they did not regard the passages that they cited from Sali v SPC as sanctioning any departure from Cropper v Smith and accepted in cases such as Clough and Rogers v Frog (1974) 48 ALJR 481. They continue, by way of observation, that: Sali v SPC was a case concerning the refusal of an adjournment in relation to which proper principles of case management have a particular relevance. And I considered they had just such relevance in refusing the application made by Olivaylle in December.


case_title: Sali v SPC Limited (1993) 67 ALJR 841

case_text: Their Honours also cite at pages 153 and 154 a passage from an earlier High Court decision Sali v SPC Ltd (1993) 67 ALJR 841 at 849, where in that case Toohey and Gaudron JJ had observed: The contemporary approach to court administration has introduced another element into the equation or, more accurately, has put another consideration onto the scales. The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions of the court's lists with the consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard. 24 Their Honours continue in Queensland v JL Holdings at page 154 that they did not regard the passages that they cited from Sali v SPC as sanctioning any departure from Cropper v Smith and accepted in cases such as Clough and Rogers v Frog (1974) 48 ALJR 481. They continue, by way of observation, that: Sali v SPC was a case concerning the refusal of an adjournment in relation to which proper principles of case management have a particular relevance. And I considered they had just such relevance in refusing the application made by Olivaylle in December.


case_text: Their Honours continue in Queensland v JL Holdings at page 154 that they did not regard the passages that they cited from Sali v SPC as sanctioning any departure from Cropper v Smith and accepted in cases such as Clough and Rogers v Frog (1974) 48 ALJR 481. They continue, by way of observation, that: Sali v SPC was a case concerning the refusal of an adjournment in relation to which proper principles of case management have a particular relevance. And I considered they had just such relevance in refusing the application made by Olivaylle in December.


case_text: It is also observed by Dawson, Gaudron and McHugh JJ in Queensland v JL Holdings at page 154 that: Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation but it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim. Those are observations reflect the views of an ultimate appellant court. Obviously enough, their application will differ in the context of particular cases and especially will differ in relation to an application of this nature, made in the course of a trial, in terms of whether prejudice will be occasioned to an opposing party. It must be said that in this court the reception of Queensland v JL Holdings has not been, with the very greatest of respect, an entirely subordinate one. In this regard and in the very particular context of the case before his Honour, in Black and Decker Australasia Pty Limited v GMCA Pty Limited [2007] FCA 1623 on 23 October 2007, Finkelstein J observed at para 3 that a state of affairs whereby case management directions were overlooked had as one of its chief causes what his Honour described as "the chilling effect" of the High Court's decision in Queensland v JL Holdings .


case_text: Before departing from questions of principle I should also make reference to another decision of the New South Wales Court of Appeal, Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471 to which I was very helpfully referred by counsel. The leading judgment in the Court of Appeal in that case is that of Clarke J with whom Mahoney and Meagher JJ agreed. There are passages which appear at pages 475 and 476 which are pertinent to the discretion I have to exercise in this case. It suffices for present purposes if I note, by reference to what is an accurate summary of them in the head note, that a failure to lead evidence from a witness whom it is afterwards desired to call, even where such failure to due to a deliberate decision taken for tactical reasons, can not be a decisive ground for a court to refuse to exercise its discretion to grant an application by a party to re-open its case, albeit that is, an important factor. 28 Strictly speaking, the Respondent has not closed its case although, as I have mentioned, there were directions which required the identification of the Respondent's evidence in-chief by affidavit filed pre-trial, subject to a grant of leave. 29 In the context of this case, there is no doubt whatsoever that there is, to say the least, a degree of forensic embarrassment to Olivaylle in the application that is now made on behalf of Flottweg. It is quite apparent from the opening of the Applicant's case, as well as from passages in the cross examination of, especially, Dr Paterson, that aspects of the Applicant's case have been cast by reference to a predicated absence of Mr Lorenz from the witness box. "Predicated" in the sense that no affidavit from him was served by or on behalf of Flottweg until 2 April. Olivaylle also identifies and draws attention to the lateness of the application and the fact that Mr Lorenz's affidavit is not short, and it highlights and emphasises the prejudice I have mentioned. 30 Mr Lorenz's affidavit seems to me to have three broad subject areas: (i) his in-house involvement in the issuing of quotes and the conduct of correspondence related thereto with Dr Paterson, including conversations by telephone with Dr Paterson; (ii) a visit which he made to Australia in September 2004 to meet Dr Paterson and Messrs Nieuwkerk, de Moya and Carey to discuss the project; and then a further visit that he made to Australia in May of 2006 which involved his attendance on 1 and 2 May at the Olivaylle site of operation. The latter involved his observation of the line. In his affidavit at para 40, he purports to give an opinion in respect of the performance of that line. 31 On behalf of Flottweg, attention is directed to the court's overriding obligation to achieve justice between both parties. The point is also developed that some of the forensic advantage may depend on the interpretation of a particular email authored by Mr Lorenz on 28 January 2004 which is page 196 in the exhibits to the affidavit of Mr de Moya, (which became document 26 on the court file).


case_title: Perrone; Re v Secretary, Department of Family and Community Services [2004] AATA 775

case_text: The Tribunal found that the applicant suffered from a number of significant war-caused disabilities that included anxiety and a rare blood disorder that left him susceptible to infection. It found that he avoided public places and public transport and that he found that his anxiety, in particular, was helped by regular trips into the Australian outback, where he felt more relaxed and normal within himself. The Tribunal found that the applicant purchased the motor vehicle and the camper trailer for the specific purpose of having annual trips to the outback. The Tribunal found that the motor vehicle was not specifically designed for use by a disabled person. It was a standard motor vehicle and it had not been modified in any way that related to the applicant's particular disabilities. The Tribunal found that the camper trailer was a standard item owned by many members of the community and it was not specifically designed for use by a disabled person. It found that it was not modified in any way to accommodate the applicant's specific disabilities. The Tribunal referred to the only decision of which it was aware that might have been relevant to the issue before it ( Re Perrone v Secretary, Department of Family and Community Services [2004] AATA 775). 8 The Tribunal held that s 52(1)(k) and (l) of the VE Act refers to specific aids for the disabled and did not refer to standard items that have the additional feature that they give some comfort or relief to a disabled person. The Tribunal said that the submission advanced by the applicant, namely, that an asset not normally seen as being designed for a disabled person can be "reinterpreted" to be designed for a disabled person with a particular disability if that item has the effect of alleviating their disability, went well beyond a beneficial interpretation of the legislation. The Tribunal said that the relevant legislative provisions were straightforward and unambiguous. It said that the motor vehicle and camper trailer were not specifically designed or modified for a disabled person and that they were standard items owned by many members of the community. Both came within the definition of "assets", as contained in the VE Act , and had been properly brought to account as assets of the applicant and his wife. 9 The Tribunal affirmed the decisions under review.


case_outcome: related

case_text: On 18 July last, Lindgren J convened a scheme meeting of the members of Investa Properties Limited (ABN 54 084 407 241) for the purpose of considering and, if thought fit, approving (with or without modification) a scheme of arrangement ( Investa Properties Limited, in the matter of Investa Properties Limite d [2007] FCA 1104. The convening of that meeting involved also the holding of a meeting of unit holders as members were the holders of the stapled securities consisting of shares and units. His Honour looked carefully at the material before him and was satisfied with the formalities and also considered the contents of the draft scheme booklet to be forwarded to shareholders. Lindgren J was satisfied that it was an appropriate case for the decision to be made on a commercial basis by those involved. His Honour noted some aspects of the scheme of arrangement to which I will briefly return. 2 I am satisfied that the meetings took place as convened and that the results were favourable to approval of the scheme, in fact overwhelmingly so. I am satisfied that the meeting was properly and validly called in relation to the notice of meeting and the advertisement of that meeting. I am satisfied that there was proper registration of the matter with the Australian Securities and Investments Commission (ASIC) and I am satisfied that ASIC has no objection to the orders sought. I note that ASIC had granted the relief referred to in Lindgren J's decision prior to the orders being made. Evidence has been given as to the satisfaction of the conditions precedent to the implementation of the scheme and the relevant certificates to that effect from each party have been tendered, together with certificates of warranty. 3 Disclosure has been made of a change to remuneration which took place after the meeting and I am satisfied that that is not a topic which causes any need for further disclosure to the holders of the securities. The form of the scheme, as I have said, has been considered by Lindgren J and approved for consideration. It would be a very rare case that, on an ex parte application, a judge, considering confirmation after approval by members, would take a different view from that of the judge convening the meeting. There is no opposition today and there is no occasion to differ from the view his Honour has expressed. That being so, the exact effect and status of the express provisions of schemes dealing with the transfer of shares being free of encumbrances and charges and so on, and the exact legal analysis and effect of the warranties included in the schemes, may be considered, if necessary, on another day. In my opinion, there is no necessity to raise any question about the effect of those clauses in the present case. 4 I am satisfied that all of the conditions that are appropriate have been met and I make the orders set forth in the draft short minutes of order. I should add that, in my opinion, this is an appropriate case for exemption from compliance with s 411(11) , pursuant to s 411(12) of the Corporations Act 2001 (Cth). I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 3 September 2007 Counsel for the Plaintiff: Mr TF Bathurst QC Solicitor for the Plaintiff: Gilbert + Tobin Counsel for the Acquirer, Post Bidco Pty Limited: Mr MB Oakes SC Solicitor for the Acquirer, Post Bidco Pty Limited: Minter Ellison Date of Hearing: 27 August 2007 Date of Judgment: 27 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1388.html