case_text: response the respondent submitted in summary: The Tribunal did consider the claim of the appellants concerning their membership of a particular social group, namely wealthy middle class businessmen, but it was in the context of the primary submission of the appellants before the Tribunal which was that the male appellant was being persecuted due to his perceived association and support for various Tamil groups. The issue whether a particular social group needs to be considered if there has been no persecution was recently considered by Besanko J in SZJRU v Minister for Immigration and Citizenship [2009] FCA 315. The Tribunal found, as a finding of fact, a lack of credibility in the appellants' account of events which formed the basis for the claim of a well-founded fear of persecution. In short, the Tribunal did not accept that the appellants left Sri Lanka in the circumstances claimed, nor that they had been targeted by the Sri Lankan security forces, the army, the paramilitary, the Karuna nor anyone else. No jurisdictional error or error in the decision of the Federal Magistrate was apparent in this ground of appeal. Consideration Article 1A(2) of the Refugees Convention provides that a "refugee" is a person who: owing to a 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. In applying Art 1A(2) of the Convention and the concept of "persecution" in the context of the Migration Act , s 91R of the Migration Act 1958 (Cth) relevantly provides: (1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless: (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and (b) the persecution involves serious harm to the person; and (c) the persecution involves systematic and discriminatory conduct. (2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph: (a) a threat to the person's life or liberty; (b) significant physical harassment of the person; (c) significant physical ill treatment of the person; (d) significant economic hardship that threatens the person's capacity to subsist; (e) denial of access to basic services, where the denial threatens the person's capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist. I accept Ms McWilliam's submission that this case is not out of the ordinary, so that as a general proposition the Tribunal must consider the appellants' case by reference to the particular social group articulated by them (cf Besanko J in SZJRU v Minister for Immigration and Citizenship [2009] FCA 315). However, the appellants' case is (and must be in order to satisfy the requirements of the Migration Act and the definition of "refugee" for the purposes of the Convention), that they had a well-founded fear of persecution by reason of their membership of a particular social group. As submitted by the Minister, in essence the Tribunal made a factual finding that the appellants did not have a well-founded fear of persecution for any reason, because the Tribunal did not accept that the appellants had previously been the subject of abduction, assault, harassment or other forms of serious harm which complaints formed the basis of the appellants' claims of their well-founded fear of persecution before the Tribunal. If the appellants did not have a well-founded fear of persecution as contemplated by s 91R(1) of the Migration Act , as the Tribunal found, the Tribunal was entitled to affirm the decision of the Minister not to grant the appellants Protection (Class XA) visas. Ms Wheatley for the first respondent also directed my attention to recent comments of Besanko J in SZJRU v Minister for Immigration and Citizenship [2009] FCA 315 at [50] where, after referring to Dranichnikov [2003] HCA 26 ; (2003) 197 ALR 389 , his Honour said: Notwithstanding these principles, it is not necessarily an error for the Tribunal not to begin with (or even to deal with) the question of whether there is a particular social group ... If the serious harm results from the application of a law of general application and there is no discrimination and therefore no persecution, the claim must fail ...


case_outcome: applied

case_text: The concession made by Mr Goot appears to me to be correct. In CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33 ; (1997) 189 CLR 345 , the joint judgment of six members of the High Court noted (at 391) that the power to stay proceedings on the ground of forum non conveniens is an aspect of the inherent or implied power which, in the absence of some statutory provisions to the same effect, every court must have to prevent its own processes being used to bring about injustice. The joint judgment went on to say (at 391) that: '[t]he counterpart of a court's power to prevent its processes being abused is its power to protect the integrity of those processes once set in motion. And in some cases, it is that counterpart power of protection that authorises the grant of anti-suit injunctions'. (Emphasis in original; citation omitted.) 21 After giving examples of circumstances in which it may be appropriate to grant an anti-suit injunction in relation to foreign proceedings, the joint judgment observed (at 392) that: '[t]he inherent power to grant anti-suit injunctions is not confined to the examples just given. As with other aspects of that power, it is not to be restricted to defined and closed categories. Rather, it is to be exercised when the administration of justice so demands or, in the context of anti-suit injunctions, when necessary for the protection of the court's own proceedings or processes'. (Citation omitted.) 22 The joint judgment identified a number of circumstances in which it may be appropriate to make orders restraining the commencement or continuation of proceedings in other courts (or arbitral bodies). These include the following: • where the other proceedings interfere with or have a tendency to interfere with proceedings pending in the court ( CSR, at 392; National Mutual Holdings Pty Ltd v The Century Corporation (1989) 22 FCR 209 , at 230-233, per Gummow J); • where the institution or continuation of the other proceedings involves unconscionable conduct or the unconscionable exercise of legal rights ( CSR, at 392); • where the other proceedings are, according to the principles of equity, vexatious or oppressive ( CSR, at 393), for example where a second proceeding is commenced in a court, and an action is pending in another court with respect to the matters in issue ( Henry v Henry (1996) 185 CLR 571 , at 590-591, per Dawson, Gaudron, McHugh and Gummow JJ); and • where the bringing of proceedings with respect to one claim is properly to be seen as an election either not to proceed on another claim or not to proceed in another jurisdiction, thus giving rise to an estoppel by conduct ( CSR, at 394). The joint judgment emphasised, however, that the power is not to be confined by reference to the example found in the decided cases. Rather, it is a power the limits of which are to be determined by the dictates of ' equity and good conscience ' ( CSR, at 394).


case_outcome: referred to

case_title: Henry v Henry (1996) 185 CLR 571

case_text: The joint judgment identified a number of circumstances in which it may be appropriate to make orders restraining the commencement or continuation of proceedings in other courts (or arbitral bodies). These include the following: • where the other proceedings interfere with or have a tendency to interfere with proceedings pending in the court ( CSR, at 392; National Mutual Holdings Pty Ltd v The Century Corporation (1989) 22 FCR 209 , at 230-233, per Gummow J); • where the institution or continuation of the other proceedings involves unconscionable conduct or the unconscionable exercise of legal rights ( CSR, at 392); • where the other proceedings are, according to the principles of equity, vexatious or oppressive ( CSR, at 393), for example where a second proceeding is commenced in a court, and an action is pending in another court with respect to the matters in issue ( Henry v Henry (1996) 185 CLR 571 , at 590-591, per Dawson, Gaudron, McHugh and Gummow JJ); and • where the bringing of proceedings with respect to one claim is properly to be seen as an election either not to proceed on another claim or not to proceed in another jurisdiction, thus giving rise to an estoppel by conduct ( CSR, at 394). The joint judgment emphasised, however, that the power is not to be confined by reference to the example found in the decided cases. Rather, it is a power the limits of which are to be determined by the dictates of ' equity and good conscience ' ( CSR, at 394).


case_title: National Mutual Holdings Pty Ltd v The Century Corporation (1989) 22 FCR 209


case_text: By instituting proceedings in the AIRC the day after withdrawing its interlocutory application, Sydney Ferries seeks to achieve, in substance, the same result in the AIRC that it failed to achieve in this Court. It is true, as Mr Goot points out, that there are differences between s 494 and 496 of the Workplace Relations Act and that the differences are not confined to the nature of the decision-making body that exercises the relevant powers. (One example is that an order under s 494(5) of the Workplace Relations Act can be made only by the persons identified in s 494(2) , while an order made under s 496 must be complied with by any person to whom the order is expressed to apply, including a union registered solely under State law: s 496(10) ; Transport Workers' Union of New South Wales v Australian Industrial Relations Commission [2008] FCAFC 26 , at [25], [36], per Gray and North JJ.) Nonetheless, in order to discharge its functions, the AIRC must address and make a determination on the proper construction of the statutory expression ' industrial action ' and its application to the circumstances of the present case. That is precisely one of the points that was argued before this Court on the application for injunctive relief that was withdrawn by Sydney Ferries.


case_text: I accept that, as Mr Goot contended, a determination by the AIRC on the question of statutory construction cannot bind this Court. Any such determination appears to be merely a step to the determination of future rights by the AIRC and does not bind the parties: Miller v University of New South Wales (2003) 127 IR 432, at 439, per Gray J; at 456, per Ryan and Gyles JJ. Nonetheless, having pursued a particular course in this Court and failed, Sydney Ferries now seeks relief in the AIRC that is in substance very similar if not identical to that sought in this Court on an interlocutory basis. It does so, moreover, on the basis of arguments that it has decided not to pursue in this Court on an interlocutory basis and which may remain to be resolved. In my opinion, to allow Sydney Ferries to proceed in this way would impair the integrity of the processes of this Court that Sydney Ferries itself chose to invoke. To put the matter another way, Sydney Ferries' initiation of proceedings in the AIRC is an attempt to seek relief of the kind that it has unsuccessfully sought in this Court, and requires the AIRC to address issues of construction that were and may still be before this Court. 30 It is difficult to see, so far as the present dispute between the parties is concerned, what point would be served by the proceedings in this Court seeking declaratory relief in relation to the construction of the Enterprise Agreements if Sydney Ferries were to succeed in its application before the AIRC, whether on an interim or permanent basis. Assuming Sydney Ferries succeeded before the AIRC, it would have obtained orders binding on the Respondents and their members, in the sense that any contravention of the orders could lead to the imposition of penalties. For the AIRC to make such orders, it would have to address the questions of construction presented by the application to this Court. This is so because if Sydney Ferries' actions are not authorised by the Enterprise Agreements, it is unlikely that the Respondents could be said to be organising or threatening ' industrial action '. Moreover, if the AIRC made the orders sought by Sydney Ferries, the onus would be on the Respondents to challenge the orders, whether by way of an appeal to a Full Bench of the AIRC (for which leave is necessary), or, more likely, by an application in this Court or the High Court by way of constitutional writs alleging jurisdictional error. There would be no need for Sydney Ferries to obtain any additional relief from this Court for the threatened or actual ' industrial action ' to be effectively restrained. 31 I should add that the effect of the anti-suit injunction sought by the Respondents will not be to deprive Sydney Ferries of recourse to the AIRC. The order proposed by the Respondents will apply only until the determination of the application for declaratory relief in this Court. Once that occurs, as Mr Birch SC (who appeared with Mr Gibian for the AMOU) accepted, it will be open to Sydney Ferries to seek orders under s 496 of the Workplace Relations Act from the AIRC. Any declaration made by the Court as to the effect of the Enterprise Agreements will be binding on the parties by virtue of s 849 of the Workplace Relations Act . Since an expedited hearing has been granted, there will be only a short delay before Sydney Ferries' application to this Court is resolved. Thereafter it will be free to pursue such remedies as may be available to it in the AIRC.


case_outcome: distinguished

case_text: the respondent argued that, consistent with the decision of the Supreme Court of New South Wales in Fekala Pty Ltd v Cenbond Pty Ltd [2001] NSWSC 340 , an order for costs ought to be made in the respondent's favour. In that case, the Court was concerned with two interlocutory applications relating to an order under s 441D(2) of the Corporations Act . Section 441D operates to protect a company's property during an administration. Section 441D allows an administrator to apply to the Court for an order that a chargee or receiver or other person not perform specified functions or exercise specified powers during the course of the administration: s 441D of the Corporations Act . The section allows the Court to restrain a secured creditor from realising on the creditor's security. In Fekala Pty Ltd v Cenbond Pty Ltd [2001] NSWSC 340 , the Court was asked to make an order under s 441D where the administrators had had considerable time to put forward some firm proposal in relation to a payment due to the secured creditor and even at the time of the hearing could only put forward a speculative proposal. The administrators were not in a position to give any undertaking as to damages. The trial judge, Young J, made the order under s 441D only because he thought there was some chance that the secured creditors would benefit by the order being made. He made it a condition of the order, without saying why, that the administrators pay the costs of the application. It seems to me that that case is no authority for any general proposition that when a court makes an order under s 444F , the court should award the chargee or the owner or lessor of property its costs. Justice Young did not say that. He merely made it a condition of the order that the costs be paid. In my opinion, that case is not authority for the proposition advanced by the respondent. Next the respondent contended that, if the applicants had applied to the Court for relief under the Law of Property Act 2000 (NT), the Court could have made an order for costs in favour of the respondent. The applicants did initially include in their application a claim for relief under that Act but that was abandoned very early in the hearing. The matter did not proceed under that Act. It seems to me irrelevant what powers the Law of Property Act 2000 (NT) gives to the Court in relation to costs for applications under that Act.


case_outcome: cited

case_text: it was put that there is a presumption that where a party seeks an order for relief from forfeiture that the party seeking relief ought to pay the lessor's costs. In support of that contention the respondent relied on Hayes v Gunbola Pty Ltd (1986) 4 BPR 9247. That was a case for relief from forfeiture under s 128 of the Conveyancing Act 1919 (NSW) in which the trial judge (Young J) was of the opinion that, in the exercise of the Court's discretion relief should be granted. His Honour addressed the question of costs and said "it is abundantly clear that as the price of getting relief against forfeiture the plaintiff must pay the lessor's reasonable costs": Hayes v Gunbola Pty Ltd 4 BPR 9247 at 9255. His Honour referred to Howard v Fanshawe [1895] 2 Ch D 581 at 592 where he said the ordinary order was that the plaintiff must bear the costs of the action except where those costs have been increased by the defendant resisting the claim and those costs must be borne by the defendant. He also referred to Langley v Foster (1909) 10 SR (NSW) 54 at 62 where Simpson CJ in Eq said: ... prima facie one of the terms imposed should be the payment of all costs, for the plaintiff's own breach of his agreement has given rise to the litigation ... this is not a hard and fast rule, for, if it were, a lessor might always oppose relief being granted knowing he would always get his costs from the lessee. If the court thinks the lessor ought not have opposed in toto the grant of relief from forfeiture, the court may make the lessor pay the costs so far as they have been increased by the lessor resisting the claim to relief on any terms ... But the court may make, and has in one case at any rate made, the lessee pay all the costs, notwithstanding the lessor contested his claim to relief at all: Quilter v Mapleson [1882] 9 QB 672. It is a question for the court's discretion in each case.


case_title: Howard v Fanshawe [1895] 2 Ch D 581

case_text: was a case for relief from forfeiture under s 128 of the Conveyancing Act 1919 (NSW) in which the trial judge (Young J) was of the opinion that, in the exercise of the Court's discretion relief should be granted. His Honour addressed the question of costs and said "it is abundantly clear that as the price of getting relief against forfeiture the plaintiff must pay the lessor's reasonable costs": Hayes v Gunbola Pty Ltd 4 BPR 9247 at 9255. His Honour referred to Howard v Fanshawe [1895] 2 Ch D 581 at 592 where he said the ordinary order was that the plaintiff must bear the costs of the action except where those costs have been increased by the defendant resisting the claim and those costs must be borne by the defendant. He also referred to Langley v Foster (1909) 10 SR (NSW) 54 at 62 where Simpson CJ in Eq said: ... prima facie one of the terms imposed should be the payment of all costs, for the plaintiff's own breach of his agreement has given rise to the litigation ... this is not a hard and fast rule, for, if it were, a lessor might always oppose relief being granted knowing he would always get his costs from the lessee. If the court thinks the lessor ought not have opposed in toto the grant of relief from forfeiture, the court may make the lessor pay the costs so far as they have been increased by the lessor resisting the claim to relief on any terms ... But the court may make, and has in one case at any rate made, the lessee pay all the costs, notwithstanding the lessor contested his claim to relief at all: Quilter v Mapleson [1882] 9 QB 672. It is a question for the court's discretion in each case.


case_title: Langley v Foster (1909) 10 SR (NSW) 54


case_text: purpose of an order for costs is to compensate the party in whose favour the costs order is made for the costs of the proceeding. The orders for costs are not an indemnity but are designed to compensate the party in whose favour the order for costs is made in part for the costs of the proceeding. The purpose of an order for costs is not to punish the party against whom the order for costs is made: Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 at 543, 563 and 567; Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 at 96.


case_title: Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72


case_text: While the appellant may feel that insufficient weight was ascribed to evidence which he considered important, it is clear that: • the weight given by the Tribunal to evidence before it, both oral and written evidence, is a matter for the Tribunal in its role as the arbiter of fact: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259, and • if the Tribunal made an error of fact, it is not a jurisdictional error if there is some evidence upon which the finding of fact could be made: Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 at [36] , Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510.


case_text: In the absence of particularisation it is difficult to deal with this ground of appeal. Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quinn [1990] HCA 21 ; (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors. With respect to legal errors, other than the failure of Driver FM to deal with one of the appellant's grounds before his Honour - with which I have already dealt in this judgment - no legal errors are demonstrated by the appellant. Third ground of appeal


case_text: A number of these grounds were not raised before Driver FM. Although as a general proposition the appellant must demonstrate that it is expedient and in the interests of justice that new grounds of appeal be raised - O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at 319, Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7 - I am prepared to consider them in this appeal.


case_title: Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80


case_text: The principles articulated by the Full Court in Randhawa 52 FCR 437 were recently affirmed by the High Court in SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634. In that case at pages 638-639 Gummow, Hayne and Crennan JJ agreed with the reasoning of Lord Bingham of Cornhill in Januzi v Secretary of State for the Home Department [2006] UKHL 5 ; [2006] 2 AC 426 where his Lordship said: The [Convention] does not expressly address the situation at issue in these appeals where, within the country of his nationality, a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate. But the situation may fairly be said to be covered by the causative condition to which reference has been made: for if a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he would have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason (at [7]).


case_text: While the appellant may feel that insufficient weight was ascribed to evidence which he considered important, it is clear that: • the weight given by the Tribunal to evidence before it, both oral and written evidence, is a matter for the Tribunal in its role as the arbiter of fact: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259, and • if the Tribunal made an error of fact, it is not a jurisdictional error if there is some evidence upon which the finding of fact could be made: Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 at [36] , Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510. 36 As I noted earlier in this judgment, weight given by the Tribunal to evidence before it is a matter for the Tribunal as an incident of its role as the arbiter of fact: Wu Shan Liang [1996] HCA 6 ; 185 CLR 259. This includes a finding by the Tribunal that documentation upon which the claimant relies is fabricated (see Re Minister for Immigration and Multicultural Affairs: ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 per McHugh J at 67).


case_outcome: considered

case_text: The notice of appeal raises ten grounds of appeal. These grounds are as follows: 1. The Federal Magistrate had failed to find error of law, jurisdictional error, procedural fairness and relief under s 39B of the Judiciary Act 1903 (Cth). 2. The Federal Magistrate had dismissed the case without considering the legal and factual errors in the Tribunal decision. 3. The Federal Magistrate made a legal, factual and jurisdictional error in not applying the principles laid down in Randhawa 52 FCR 437. 4. The Federal Magistrate failed to take into consideration that the Tribunal decision was unjust and made without taking into account the full gravity of the appellant's circumstances and consequences of the claim. 5. The Tribunal had ignored relevant material as to the appellant's Shi'a background which put his life at risk, relied in part on irrelevant material and made a finding which was erroneous or mistaken. 6. There had been a lack of procedural fairness in his case along the same line as Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601. In particular, the appellant claimed that his case was identical to Muin [2002] HCA 30 ; 190 ALR 601, where the Tribunal had misled the applicant before it in that case to believe that the Tribunal had read some material. 7. The Federal Magistrate did not consider the appellant's application dismissed on the date of hearing the application, and the appellant was not legally represented at the hearing before the Federal Magistrate. 8. The Tribunal was affected by jurisdictional error in that the Tribunal did not take into account certain relevant considerations or "integers" central to the appellant's claim. 9. The Tribunal failed to carry out its review function and exercise its jurisdiction in that: • it did not consider the immense and intimidating pressure on the appellant by Sunnis because of his Shi'a background • it did not consider the appellant's claim that Sunnis would kill him if he returned to Pakistan. 10. The Tribunal had applied the wrong test, in particular: • by requiring independent evidence of facts before the Tribunal would accept a claim being made by the appellant the Tribunal was, in fact, placing high onus of proof on the appellant and failing to give the appellant the benefit of the doubt • the Tribunal left out individual elements of the appellant's claims and tested whether they individually amounted to persecution rather than looking at the claim as a whole to determine whether the claim amounted to persecution. 31 In Muin [2002] HCA 30 ; 190 ALR 601 the majority of the High Court held, inter alia , that where the Tribunal indicated to a claimant for refugee status that it had considered all material relating to his application, but in fact had not because the Department of Immigration and Multicultural Affairs had not transferred all relevant material to the Tribunal, there was a failure in the Tribunal to accord procedural fairness to the claimant in relation to such material. 32 With respect to the appeal before me, it is not clear as to which material the appellant is referring in relying on principles articulated in Muin [2002] HCA 30 ; 190 ALR 601. In the circumstances, this ground of appeal is not sustainable. Seventh ground of appeal 33 This ground of appeal does not evince a jurisdictional error. Eighth ground appeal 34 In the absence of further particularisation, this ground of appeal cannot be substantiated. Ninth ground of appeal


case_title: NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76


case_title: NAHI v MIMIA [2004] FCAFC 10

case_text: In the absence of particularisation this ground of appeal cannot be substantiated. In any event, the Court cannot engage in review of the merits of the appellant's claims: NAHI v MIMIA [2004] FCAFC 10 at [10] . Fifth ground of appeal 35 It is clear that, notwithstanding the claim of the appellant, the Tribunal did consider his claims concerning his position arising from his Shi'a background, and the potential danger to the appellant should he return to Pakistan, and made findings adverse to the appellant with respect to these claims. As I indicated earlier in this judgment, the Court cannot engage in review of the merits of the appellant's claims: NAHI v MIMIA [2004] FCAFC 10 at [10] . Tenth ground of appeal


case_title: O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310


case_text: This is clearly of concern. Failure by a court of first instance to consider a claim clearly raised by a litigant can give rise to a miscarriage of justice. So, for example, in the High Court decision QBE Insurance Ltd v Switzerland Insurance Workers Compensation (NSW) Ltd (1996) 70 ALJR 281 on appeal from the Court of Appeal of New South Wales, Gaudron, McHugh and Gummow JJ held that, in circumstances where a ground of cross-appeal was plainly arguable, and the judgment of the court below gave no indication that it had considered that ground (and, if it did, the reasons given by the court could not be regarded as proper reasons for rejecting that ground), there had been a miscarriage of justice calling for the intervention of the High Court. In those circumstances the High Court ordered that that the matter be remitted for re-determination to the Court of Appeal. 14 At the hearing before me, Mr Foreman submitted that, in relation to the issue of relocation as claimed by the appellant before the Federal Magistrate: • the appellant had no prospect of success • in any event, the issue of relocation was not relevant in the context of this appeal because the appellant had, as found by the Tribunal, actually relocated from his village over ten years ago. Accordingly this is not a case where either the Tribunal, or the Court on judicial review, is required to consider whether relocation within Pakistan is a feasible option for the appellant. 15 In this case, I consider that this error of the Federal Magistrate is not a reason to allow the appeal from his Honour's decision or to remit the case to the Federal Magistrate for re-hearing. I take this view because I accept the submission of Mr Foreman that the appellant had no prospect of success in relation to this ground of judicial review before his Honour. To use the terminology of the High Court decision in QBE 70 ALJR 281, this ground of review was not "plainly arguable" in light of the findings of the Tribunal with respect to relocation of the appellant elsewhere in Pakistan.


case_text: The appellant has obliquely raised this issue in his third ground of appeal before me, namely that: "The Federal Magistrate made a legal, factual and jurisdictional error in not applying the principles laid down in Randhawa v The Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437". 11 (The Full Court decision in Randhawa 52 FCR 437 clearly raises issues of relocation, as I outline later in this judgment.) 12 To a lesser extent, the issue is also raised by the appellant in his second ground of appeal, namely: "The Federal Magistrate had dismissed the case without considering the legal and factual errors in the Tribunal decision". 16 In Randhawa 52 FCR 437 the facts demonstrated that the appellant in that case, a Sikh from the Punjab region of India, would have had a well-founded fear of persecution were he required to return to his family's home in the Punjab. However the Full Court in Randhawa 52 FCR 437 held that the Convention definition of "refugee" does not support a claim to refugee status in circumstances where the appellant, although having a well-founded fear of persecution in one region of a country, could avail themselves of protection elsewhere within that country. This is only the case, however, if it is reasonable in the circumstances to expect a person with a well-founded fear of persecution in relation to that part of the country from which they have fled to relocate to another part of the country of nationality. If it is not reasonable, their fear of persecution in relation to the country as a whole is well-founded (per Black CJ at 440-441 and 443, Beaumont J at 451, Whitlam J at 453). 17 The principles articulated by the Full Court in Randhawa 52 FCR 437 were recently affirmed by the High Court in SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634. In that case at pages 638-639 Gummow, Hayne and Crennan JJ agreed with the reasoning of Lord Bingham of Cornhill in Januzi v Secretary of State for the Home Department [2006] UKHL 5 ; [2006] 2 AC 426 where his Lordship said: The [Convention] does not expressly address the situation at issue in these appeals where, within the country of his nationality, a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate. But the situation may fairly be said to be covered by the causative condition to which reference has been made: for if a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he would have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason (at [7]). 21 The notice of appeal raises ten grounds of appeal. These grounds are as follows: 1. The Federal Magistrate had failed to find error of law, jurisdictional error, procedural fairness and relief under s 39B of the Judiciary Act 1903 (Cth). 2. The Federal Magistrate had dismissed the case without considering the legal and factual errors in the Tribunal decision. 3. The Federal Magistrate made a legal, factual and jurisdictional error in not applying the principles laid down in Randhawa 52 FCR 437. 4. The Federal Magistrate failed to take into consideration that the Tribunal decision was unjust and made without taking into account the full gravity of the appellant's circumstances and consequences of the claim. 5. The Tribunal had ignored relevant material as to the appellant's Shi'a background which put his life at risk, relied in part on irrelevant material and made a finding which was erroneous or mistaken. 6. There had been a lack of procedural fairness in his case along the same line as Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601. In particular, the appellant claimed that his case was identical to Muin [2002] HCA 30 ; 190 ALR 601, where the Tribunal had misled the applicant before it in that case to believe that the Tribunal had read some material. 7. The Federal Magistrate did not consider the appellant's application dismissed on the date of hearing the application, and the appellant was not legally represented at the hearing before the Federal Magistrate. 8. The Tribunal was affected by jurisdictional error in that the Tribunal did not take into account certain relevant considerations or "integers" central to the appellant's claim. 9. The Tribunal failed to carry out its review function and exercise its jurisdiction in that: • it did not consider the immense and intimidating pressure on the appellant by Sunnis because of his Shi'a background • it did not consider the appellant's claim that Sunnis would kill him if he returned to Pakistan. 10. The Tribunal had applied the wrong test, in particular: • by requiring independent evidence of facts before the Tribunal would accept a claim being made by the appellant the Tribunal was, in fact, placing high onus of proof on the appellant and failing to give the appellant the benefit of the doubt • the Tribunal left out individual elements of the appellant's claims and tested whether they individually amounted to persecution rather than looking at the claim as a whole to determine whether the claim amounted to persecution.


case_text: As I noted earlier in this judgment, weight given by the Tribunal to evidence before it is a matter for the Tribunal as an incident of its role as the arbiter of fact: Wu Shan Liang [1996] HCA 6 ; 185 CLR 259. This includes a finding by the Tribunal that documentation upon which the claimant relies is fabricated (see Re Minister for Immigration and Multicultural Affairs: ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 per McHugh J at 67).


case_title: SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634


case_text: The Full Court held in WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 at [54] that where the finding of fact made does not turn upon the credibility of the appellant and where there is nothing on the face of the documents themselves to alert the decision maker that they are forgeries, it is inherently unfair that the decision-maker conclude that they are not genuine without affording the person affected by that conclusion the opportunity of addressing the issue of possible fabrication. In this case, however with respect to a document purporting to be a copy of a First Information Report, referring to a crime by the appellant allegedly occurring after he had left Pakistan, and which the Tribunal concluded was not a reliable source of evidence, it is clear from the Tribunal decision that the Tribunal had questioned the appellant in relation to the document and expressed doubt at the hearing as to its provenance. In my view, there has been no absence of procedural fairness provided to the appellant in relation to that document or any claims he may have with respect to that document. 38 In the circumstances the appropriate order is that the appeal should be dismissed. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 15 November 2007 Counsel for the Appellant: The appellant appeared in person Counsel for the Respondent: R Foreman Solicitor for the Respondent: Sparke Helmore Date of Hearing: 14 November 2007 Date of Judgment: 15 November 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1747.html


case_text: turn, the Commissioner seeks an order pursuant to s 588FGA(2) of the Corporations Act against a director of Seminars International, Mr Roger Jeffrey Davies (Mr Davies). Mr Davies has become the Second Defendant in the proceedings, pursuant to interlocutory process issued against him at the behest of the Commissioner. I note that such a practice was the subject of approval by Mackenzie J in Harris v Commissioner of Taxation [2006] QSC 108 at [25] . Earlier this year I made orders providing for substituted service in respect of Mr Davies. The material read this morning on behalf of the Commissioner satisfies me that he has been served in accordance with those orders. Mr Davies has not appeared today.


case_text: evidence before me establishes that, of the sum of $125,471.40 previously referred to, the sum of $68,544.94 was applied by the Commissioner to Pay As You Go (PAYG) withholding liabilities of the company to the Commonwealth under subdivision 16B of Pt 2 - 5 in Sch 1 to the Taxation Administration Act 1953 (Cth). The evidence further establishes that Mr Davies was a director of the company at the time when the payments were made. It is submitted, correctly, in my opinion, that the loss suffered by the Commissioner is twofold, namely: (a) the amount of the Court's repayment order in favour of the liquidator, insofar as that relates to PAYG withholding liabilities, in this case $68,544.94 (see Hillig v Commissioner of Taxation [2000] QSC 403 ; (2001) 2 QR 147) ; and (b) any legal costs and interest that the Commissioner has required to pay to the liquidator in consequence of the voidable preference claim brought against the Commissioner (see Commissioner of Taxation v Sims [2008] NSWCA 298 at [34] ).


case_title: Commissioner of Taxation v Sims [2008] NSWCA 298


case_text: The question is whether the power to make an order ' staying or otherwise affecting the operation or implementation ' of the Board's decision extends to an order prohibiting compliance with s 1296(1) of the Corporations Act . The Tribunal concluded that it had no such power because of observations made by Heerey J in Allied Asia Holdings (Aust) Pty Ltd v Australian Securities & Investments Commission [2002] FCA 566. There, ASIC made a decision under s 21(2)(c) of the Insurance (Agents & Brokers) Act 1984 (Cth) ('the Insurance Brokers Act') to refuse to renew a company's registration as a general insurance broker. On the same day, ASIC notified that company that it intended to publish a press release recording that facts and the findings made in the course of making the decision. The company sought to restrain ASIC from publishing the press release until the decision to refuse renewal had been reviewed by the Tribunal. At that stage, there had been no application to the Tribunal for review. A fortiori, there had been no application to the Tribunal for exercise of the powers conferred by s 41. 8 Heerey J also observed, however, that there was a statutory obligation imposed on ASIC by s 21(5) of the Insurance Brokers Act, which provides that, if ASIC refuses to renew the registration of a company under that Act, ASIC must publish notice of the refusal in the Gazette . His Honour considered that it was pointless to issue an injunction if the same result would follow by the publication of notice of refusal in the Gazette . His Honour then made the following observation: 'Section 21(5) appears to me to be in quite clearly mandatory terms, and I do not see how it could be affected by the grant by the [Tribunal] of any stay, which, after all, could only affect the operation or implementation of the decision to refuse, not the fact that that decision has been made.' 9 Thus, his Honour drew a distinction, which ASIC supports in the present proceeding, between a decision, on the one hand, and the operation or implementation of the decision, on the other hand. The power conferred by s 41(2) of the AAT Act is to stay or affect the operation or implementation of a decision. It is not, in its terms, a power to suspend or stay the decision itself. 10 ASIC submitted that the operation of a decision is the way in which the decision works and that the implementation of a decision is the carrying out or putting into effect of the decision. Thus, ASIC contended, the making of orders that the registration of a liquidator be suspended would be an implementation of the decision to suspend the registration as that liquidator. Under s 1286(1)(a)(v) of the Corporations Act , ASIC must cause to be entered in the Register of Liquidators, in relation to any person who is registered as a liquidator, particulars of any suspension of the registration of that person as a liquidator. ASIC pointed to such an entry as another example of an implementation of a decision to suspend. Compliance with s 1296(1) , it says, however, is not implementation of the decision; nor, said ACIC, is it the operation of the decision. 11 Clearly, the implementation of a decision is distinct from the decision itself; so is the operation of a decision. However, some meaning must be given to the word ' operation ' when it appears in s 41(2) that is different from the meaning to given to ' implementation '. As a matter of ordinary English, ' operation ' includes the exertion of force or influence, a working or activity, a manner of working, or the way in which a thing works (see Shorter Oxford English Dictionary , 5 th ed, Oxford University Press, Oxford, 2002). It also means the state of being operative, or the act, process or manner of operating (see Macquarie Dictionary , 4 th Ed., The Macquarie Library Pty Ltd, 2005). On the other hand, ' implementation ' involves completion or execution, fulfilment or putting into effect (see Shorter Oxford English Dictionary ). 12 If the decision of the Board to make orders had not been made, there would be no obligation arising under s 1296(1) to lodge notice of the decision with ASIC or to publish a notice in the Gazette setting out the decision. Further, if the decision were set aside, one consequence would be that, for many purposes, it would be as if the decision had not been made and did not have any effect. If that happened before compliance with s 1296 , there could be no obligation to lodge a copy of a notice with ASIC or to publish a notice. Such an obligation could exist only for so long as the decision continued to have effect.


case_title: Abela v Giew (1964) 81 WN (Part 1) (NSW) 344

case_text: general approach is that where a party satisfies the Court that he or she generally desires to amend the pleadings so as to alter an existing claim or to introduce a new claim, leave should be granted unless the proposed amendment is so obviously futile that it would be struck out if it had appeared in the original pleading or would cause substantial injustice which cannot be compensated for in the manner indicated in [14] above: Abela v Giew (1964) 81 WN (Pt 1) (NSW) 344 at 345.


case_text: overriding concerns should be to ensure that all matters in issue upon which the parties seek adjudication are determined in the proceeding and to avoid a multiplicity of proceedings: Caruso Australia Pty Ltd v Portec Australia Pty Ltd [1986] FCA 40. Order 13 rule 2(2) of the Rules makes explicit reference to this principle: 'All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings.'


case_text: starting point is that all of such amendments should be made as are necessary to enable the real questions in controversy between the parties to be decided: Queensland v J L Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146; Dresna Pty Ltd v Misu Nominees Pty Ltd [2003] FCA 1537. Although O 13 r 2 of the Federal Court Rules ('the Rules') confers a discretion on the Court as to whether to allow the amendments, it is well-established that an amendment will ordinarily be allowed provided it can be done without harm to the other party which cannot be compensated by an award of costs or an adjournment: The Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394; Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128.


case_title: Ketterman v Hansel Properties Ltd [1987] AC 189

case_text: is recognised that the allowance of an amendment before a trial begins (when there is time for a proper defence to be filed) stands in a very different position from amendment towards the end of a trial: Ketteman v Hansel Properties Ltd [1987] AC 189 at 220 per Lord Griffiths. The proposed amendments in or to paras 5A, 13, 33, 34 and 37 relate to Spirits' claim against Diageo based on alleged misleading and deceptive conduct in relation to a beverage referred to as the Ruski RTD. Diageo opposes Spirits' amendments to paras 13 and 33 (and related paras 34 and 37) of the proposed FASC on the basis that Spirits have not pleaded material facts in support of the allegations in paras 13 and 33 (and related paras 34 and 37).


case_title: Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128


case_text: claims that paras 47C, 47D and 48A to 48C plead the law relating to the implication of terms to give business efficacy to a contract in support of the allegation that there are certain implied terms in the First Agreement (when read together with or amended by the Supplementary Agreements, First SPI Assignment and Second SPI Assignment). However, Diageo submits that it is trite that a statement of claim must only plead material facts and not evidence or legal propositions: O 11 r 2; North-Western Salt Company Ltd v Electrolytic Alkali Company Ltd [1913] 3 KB 422 at 425. Accordingly, Diageo submitted that leave should not be granted with respect to the amendments in paras 47C, 47D and 48A to 48C. They amount to statements of legal propositions and are embarrassing. For this reason, no leave should be given to amend paras 48 and 49 because Spirits have not pleaded any material facts in support of the amendments. When pressed, Senior Counsel for Spirits submitted that the opening words of para 48: 'By reason of the matters pleaded above ...', is a reference to paras 38 to 47D of the proposed FASC, and that para 47D is a pleading of fact. I tend to agree with the latter submission although it might be more accurate to describe para 47D as a pleading of mixed fact and law, as it would be to describe a number of the other pleadings from para 38 onwards.


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


case_title: The Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394


case_text: basis of Diageo's opposition to a grant of leave with respect to the proposed amendments in [3] is that Spirits have failed to plead material facts in support of their amended causes of action and that the proposed amendments are embarrassing because they do not enable Diageo to understand and plead to the new causes of action. Diageo submits that a pleading must state with particular clarity the factual basis upon which a foundation of a cause of action under Pt V of the Trade Practices Act 1976 (Cth) ('the TPA') is based: Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (1998) ATPR 41-633 at 40,977. I am not sure that I fully comprehend what lies behind the submission that the proposed amendments are embarrassing to Diageo. Diageo's submission that it is unable to understand and plead a response flies in the face of a plea in denial; such a pleading may turn out to be embarrassing, but any embarrassment in those circumstances will be at the feet of Spirits' articulation of their pleading and not at the feet of Diageo's response. I do not view such a prospect as a basis for necessarily withholding leave to amend; in certain circumstances it may be. The real issue on the motion is whether such circumstances exist in the present case. Spirits plead no cause of action and make no claim for relief against Federal Treasury Enterprise (FKP) Sojuzplodoimport ('FKPS'), the party nominally titled 'the Second Respondent'. FKPS was joined as the second respondent to this proceeding by order of Gyles J in December 2004, for the purpose only of enabling FKPS to file and serve a cross-claim against Spirits. This proceeding was commenced by Spirits against Diageo by way of application and statement of claim filed on 7 December 2004. On 2 December 2005 Spirits filed an Amended Application and Amended Statement of Claim ('ASC') with the leave of the Court. Diageo consented to the grant of leave in that instance.


case_title: Anacon Corporation Ltd v Environmental Research Technology Ltd [1994] FSR 659 ,

case_text: In assessing whether copyright subsists in a work, it must be clear exactly what copyright is claimed over, as copyright protects only the form in which ideas and information are expressed: Baker v Selden [1879] USSC 9 ; (1879) 101 US 99. Copyright does not cover ideas or concepts: Skybase Nominees Pty Ltd v Fortuity Pty Ltd (1996) 36 IPR 529 , 531 and Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd [2002] FCAFC 112 ; (2002) 119 FCR 491 , 547-574. This is the basis upon which copyright is built, and distinguishes copyright protection from patent registration under the Patents Act 1990 (Cth). 124 An "artistic work" includes a "drawing ... whether [the drawing] is of artistic quality or not": s 10(1) of the Act . Each of the Krueger Sketch and the Krueger Drawings falls within the inclusive definition of a drawing, as each "is a two-dimensional work in which shapes and images are depicted by lines, often without colouring" ( Woodtree Pty Ltd v Zheng (2008) 74 IPR 484 , at [25]), performing a visual rather than "semiotic" function: Anacon Corporation Ltd v Environmental Research Technology Ltd [1994] FSR 659 at 662. The Krueger Sketch and the Krueger Drawings are, therefore, artistic works.


case_title: Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37 ,

case_text: As Megarry J put it, "there can be no breach of confidence in revealing to others something which is already common knowledge" ( Coco, at 47). However, the standard that must be met to establish the necessary quality of confidence is low. For example, confidentiality can attach to information that is not entirely novel or original, provided the information was not commonly or publicly known at the time of the alleged breach. Confidentiality can also attach to a design that draws on already known information to create a new solution to a problem. In British Celanese Ltd v Courtaulds Ltd (1935) 52 RPC 171 at 193, Lord Tomlin observed that there may well be inventive merit in combining in one combination, integers which are themselves old or the subject of common knowledge. In fact, that which is required to transform common knowledge into a matter of commercial confidence may involve little more than "work done by the maker upon materials which may be available for the use of anybody, so as to achieve a result which can only be achieved by somebody who goes through the same process": Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37 at 49 per Gowans J.


case_title: Avel Pty Ltd v Intercontinental Grain Exports Pty Ltd (1996) 65 FCR 154 ,

case_text: In any event, there is no support for the proposition that even if Krueger failed in its infringement claim, then by definition Vawdrey's cross-claim would have succeeded. Even assuming that the threats contained in the letters were in fact unjustified, Vawdrey would not be entitled as of right to a declaration to that effect: JMVB Enterprises Pty Ltd v Camoflag Pty Ltd (2005) 67 IPR 68 at 107-108; see also Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd [2008] FCA 447 at [39] - [42] ; Avel Pty Ltd v Intercontinental Grain Exports Pty Ltd (1996) 65 FCR 154.


case_text: In assessing whether copyright subsists in a work, it must be clear exactly what copyright is claimed over, as copyright protects only the form in which ideas and information are expressed: Baker v Selden [1879] USSC 9 ; (1879) 101 US 99. Copyright does not cover ideas or concepts: Skybase Nominees Pty Ltd v Fortuity Pty Ltd (1996) 36 IPR 529 , 531 and Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd [2002] FCAFC 112 ; (2002) 119 FCR 491 , 547-574. This is the basis upon which copyright is built, and distinguishes copyright protection from patent registration under the Patents Act 1990 (Cth).


case_title: Barrett Property v Metricon Homes (2008) 74 IPR 52 ,

case_text: Moreover, because Camerons authorised Vawdrey to do the acts that constituted an infringement of Krueger's copyright in the Subsequent Krueger Drawings, Camerons is also liable for that infringement: see s 36 of the Copyright Act and Barrett Property v Metricon Homes (2008) 74 IPR 52 at 99. 137 No separate argument was directed to the development of Krueger's claims under the TPA. It is unnecessary therefore to say anything further about these claims. In any event, it was not suggested that if Krueger were to succeed in its claims under the TPA that it would be entitled to any different relief. 138 By order dated 16 February 2005, the issues of liability and quantum were split for trial, with quantum yet to be heard. 145 Krueger also submitted that "Tindal and Cameron were personally involved in the sense that they authorised or aided and abetted the wrongful conduct complained of". The balance of Krueger's written submission was no more than a reference to the decision of Gilmour J in Barrett . As against Tindal and Cameron, the only relief sought in the Application was a declaration that they were "involved in the ... contraventions by" Camerons and Vawdrey. 146 None of the oral submissions addressed this issue except to make a passing reference to "an interesting debate in the court at the moment about the test for personal liability of someone who is said to direct or procure tort[i]ous conduct of a corporation". 147 No party submitted that even if Tindal and / or Cameron were personally liable, Krueger would have sought or obtained different monetary relief. Moreover, I can see no other potential utility in granting the declaration sought by Krueger (and none was suggested). In these circumstances, it is neither necessary nor appropriate to consider this issue further.


case_title: British Celanese Ltd v Courtaulds Ltd (1935) 52 RPC 171 ,


case_title: Coco v AN Clark (Engineering) Ltd [1969] RPC 41 ,

case_text: The information submitted by Krueger to be confidential is described above (see [3]). I will deal with each element of the test in Coco in turn. 89 As Megarry J put it, "there can be no breach of confidence in revealing to others something which is already common knowledge" ( Coco, at 47). However, the standard that must be met to establish the necessary quality of confidence is low. For example, confidentiality can attach to information that is not entirely novel or original, provided the information was not commonly or publicly known at the time of the alleged breach. Confidentiality can also attach to a design that draws on already known information to create a new solution to a problem. In British Celanese Ltd v Courtaulds Ltd (1935) 52 RPC 171 at 193, Lord Tomlin observed that there may well be inventive merit in combining in one combination, integers which are themselves old or the subject of common knowledge. In fact, that which is required to transform common knowledge into a matter of commercial confidence may involve little more than "work done by the maker upon materials which may be available for the use of anybody, so as to achieve a result which can only be achieved by somebody who goes through the same process": Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37 at 49 per Gowans J. 92 Before proceeding, however, I pause here to note that care must be taken in using such loaded terms as "novel" in this context. The parties proceeded in this case as if it were a patent matter, presenting expert testimony regarding prior art, common general knowledge, and so forth. That is to say, they implicitly proceeded as if the Krueger design had to be patentable in order to be confidential. No doubt this approach was influenced at least in part by the ongoing patent application by Krueger in respect of the design at issue and the fact that the same experts were retained by the parties in both proceedings; Camerons' expert gave candid evidence that he was unaware of any distinction between patent, copyright, and breach of confidence litigation, and that he and Krueger's expert approached this case as if it were a patent dispute. Unfortunately, this is a fundamentally wrong approach in breach of confidence litigation. As Megarry J said in Coco (at 48), one should not get caught up by particular adjectives such as novel; "whether it is described as originality or novelty or ingenuity or otherwise, I think there must be some product of the human brain which suffices to confer a confidential nature upon the information". To put it more plainly, information need not be patentable, copyrightable, or otherwise protected by the intellectual property laws in order to be confidential. Common examples of commercial information that may be considered confidential even if not novel in the patent law sense include customer lists, price lists, business proposals, and marketing strategies. In this regard, I would draw the parties' attention to the concise definition of confidentiality provided by IP Toolbox in its handy reference page, "The concept of legal confidentiality" (available at http://www.iptoolbox.gov.au/default.asp?print=true&action=article&ID=194): Confidential information need not be entirely composed of information that is not available publicly. Public information can also be considered as confidential. This depends on the way a business uses the information. A customer list, for example, can be protected as having the necessary legal confidentiality where it has been developed and treated as confidential, even though it is drawn from information which is publicly known (ie. telephone records, trade journals, public registers etc). Legal confidentiality can be distinguished from the requirements for patent or design registration. The latter require that the concept be inventive and novel (or in the case of a design, an advance on the 'prior art' base). Legal confidentiality can protect uninventive information as long as it is not in the public domain. (Emphasis added.) 93 Notwithstanding that definition, the obligation of the Court is to decide the case that has been put, not the case that should have been put. Accordingly, I will approach the issue of confidentiality as it was argued - that for the Krueger Concept to be protected it must not have been routine or otherwise a minor variation of common general knowledge. In that respect, Krueger submitted that there were at least two bases on which its design could be seen as novel as compared to existing load restraint systems. I turn to consider those bases now. 94 Camerons accepted that an ability for gates to overlap or stack would have set the Krueger Concept apart from pre-existing load restraint systems so that the Krueger Concept would not have been routine or already publicly known. Camerons submitted, however, that the ability of the gates to overlap or stack was, in fact, not conveyed by the confidential information. 104 The concession of Mr Cameron does not end the inquiry, however, because not everything that is confidential in business is necessarily deemed confidential in law. What is important for information to attract a legal obligation of confidence is that "the preservation of its confidentiality or secrecy is of substantial concern to the plaintiff": Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) [1984] HCA 73 ; (1984) 156 CLR 414 at 438. In Moorgate , the High Court found that information relating to a new cigarette brand was not confidential in part because it comprised merely standard marketing materials that would be shown to any prospective licensees, not just the defendant. Here, on the other hand, it is clear that Krueger created the information and communicated it to Camerons so that Krueger, and only Krueger, would win the business with Camerons. It is thus objectively reasonable in the circumstances of this case that the preservation of the information's confidentiality and secrecy (specifically, its non-disclosure to competitors such as Vawdrey) was of substantial concern to Krueger. Accordingly, I conclude that the information in [3] attracted an obligation of confidentiality under the 'reasonable man' test propounded by Megarry J in Coco at 48. 106 Analysis of this third element requires what Megarry J in Coco (at 50) describes as both a strict and broad approach. The strict approach, which Megarry J suggested should be applied in commercial cases such as this, requires some detriment suffered by the provider of the confidential information for equity to intervene. In contrast, under the broad approach, unauthorised use does not necessarily need to be accompanied by detriment. In the years since Coco , however, the cases have cast considerable doubt on whether detriment should be considered part of the cause of action even in commercial cases: see L Tsaknis, " The Jurisdictional Basis, Elements and Remedies in the Action for Breach of Confidence Uncertainty Abounds " (1993) 5 Bond University Review 18, 21-23 (collecting the cases and stating, "It is not clear whether the confider must suffer any detriment as a result of the unauthorised disclosure, though the balance of the authority suggests that the better view is that detriment is not required"). I do not consider the point further, however, because Krueger did not raise it, relying instead principally on Coco . In any event, nothing much turns on detriment in the present case because detriment is not an issue if Krueger is successful in establishing the other elements, detriment was clearly suffered by Krueger in that it lost the contract with Camerons in respect of the Amcor Tender. 107 Krueger provided its information to Camerons for the limited purpose of winning a contract with Camerons for the manufacture of approximately 20 truck trailers. In order to advance this purpose, it allowed Camerons to include part of that information (the Subsequent Krueger Drawings) in the tender Camerons submitted to Amcor. As noted earlier, it was not submitted that the authorised disclosure of the Subsequent Krueger Drawing to Amcor robbed that drawing of its confidential character or released Camerons from its otherwise general obligation to maintain it in confidence. Camerons had asked for permission to disclose it to Amcor. It had not asked for permission to disclose it more generally. 108 That leaves the issue of unauthorised use of the confidential information. If it is shown that Camerons provided Krueger's information (or part of it) to Vawdrey, allowing Vawdrey to eventually win the work with Camerons, Krueger suffered detriment from that unauthorised use. As noted earlier in these reasons (see [81] to [83]), I concluded that Camerons, knowing the Krueger Concept to contain information confidential to Krueger, made unauthorised use of it by disclosing it to Vawdrey without the consent of Krueger.


case_title: Desktop Marketing Systems Pty Ltd v Telstra [2002] FCAFC 112 ; (2002) 119 FCR 491 ,


case_title: Donoghue v Allied Newspapers Ltd [1938] Ch 106 (Ch D),

case_text: Just as copyright protects only a form of expression and not an idea itself, it is the originality of the expression , and not the originality of the ideas encompassed in the work, that is assessed: see eg, Donoghue v Allied Newspapers Ltd [1938] Ch 106 (Ch D) per Farwell D at 109-112 in relation to the same requirement of originality for the Copyright Act 1911 (UK). Originality requires no notion of novelty or invention. If the form of expression represents independent application of knowledge, judgment, skill or labour, that will be sufficient: Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465.


case_title: Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd [2008] FCA 447 ,


case_title: Francis Day & Hunter Ltd v Bron [1963] Ch 587 ,

case_text: For infringement of copyright, the infringing act must be done in relation to a substantial part of the work (ss 14(1)(a) and (b) of the Act), and the infringing item must be objectively similar to the original work: Francis Day & Hunter Ltd v Bron [1963] Ch 587 at 614 per Willmer LJ; SW Hart & Co Pty Ltd v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466 at 472 per Gibbs CJ. Whether assessed by visual comparison or otherwise, substantial reproduction "depends much more on the quality than on the quantity" of what is alleged to have been copied: Ladbroke at 469 per Reid LJ; LED Builders .


case_title: JMVB Enterprises Pty Ltd v Camoflag Pty Ltd (2005) 67 IPR 68 ,


case_title: Jones v Dunkel (1959) 101 CLR 298 ,

case_text: These principles were restated by Dixon CJ in Jones v Dunkel (1959) 101 CLR 298 at 304-305, again by comparing and contrasting hypotheses or conjecture on the one hand, and the drawing of inference on the other. He said: [I]n any case, we are not concerned with a choice between rival conjectures. In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind . It is true that "you need only circumstances raising a more probable inference in favour of what is alleged". But "they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture." These phrases are taken from an unreported judgment of this Court in Bradshaw v. McEwans Pty. Ltd . [(Unreported, delivered 27th April 1951)], which is referred to in Holloway v. McFeeters [1956] HCA 25 ; [(1956) 94 CLR 470] , by Williams, Webb and Taylor JJ. The passage continues: "All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood." [1956] HCA 25 ; [(1956) 94 CLR 470 , at 480-481] But the law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied . (Emphasis added)


case_title: Holloway v McFeeters [1956] HCA 25 ; (1956) 94 CLR 470 ,

case_text: Krueger's case was thus based on inferences, which it said should be drawn from established facts. The principles to be applied in such a case are well established. They were described by Dixon CJ in Holloway v McFeeters [1956] HCA 25 ; (1956) 94 CLR 470 at 477, and by Williams, Webb and Taylor JJ at 480 and 481 (in the context of litigation arising from a vehicle collision) by comparing and contrasting the hypotheses that could be adopted to explain proved facts and the drawing of an inference from those facts. Dixon CJ said at 477: The state of facts reached by inferences is itself compatible with a number of hypotheses, some of them implying fault on one side, some on the other, some on both sides. Hypotheses of this kind are not inferences. What is required is a basis for some positive inference involving negligence on the part of the driver as a cause of the deceased's death. The inference may be made only as the most probable deduction from the established facts, but it must at least be a deduction which may reasonably be drawn from them. It need not be an inference as to how precisely the accident occurred, but it must be a reasonable conclusion that the accident in one way or another occurred through the lack of due care on the part of the driver and not otherwise. 11 These principles were restated by Dixon CJ in Jones v Dunkel (1959) 101 CLR 298 at 304-305, again by comparing and contrasting hypotheses or conjecture on the one hand, and the drawing of inference on the other. He said: [I]n any case, we are not concerned with a choice between rival conjectures. In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind . It is true that "you need only circumstances raising a more probable inference in favour of what is alleged". But "they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture." These phrases are taken from an unreported judgment of this Court in Bradshaw v. McEwans Pty. Ltd . [(Unreported, delivered 27th April 1951)], which is referred to in Holloway v. McFeeters [1956] HCA 25 ; [(1956) 94 CLR 470] , by Williams, Webb and Taylor JJ. The passage continues: "All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood." [1956] HCA 25 ; [(1956) 94 CLR 470 , at 480-481] But the law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied . (Emphasis added)


case_text: The Krueger Drawings were produced by Stephen Hunt from the Krueger Sketch and further oral explanations of the load restraint issue from Adel Gerges (see above at [33]-[35] and [37]). The Krueger Drawings are similar. However, that does not mean they are less likely to be original; the redrawing of a technical drawing may still involve considerable skill, time and effort on the part of the draftsperson: Interlego AG v Croner Trading Pty Ltd [1992] FCA 624 ; (1992) 39 FCR 348 , 378-379 per Gummow J; New England Country Homes Pty Ltd v Moore (199) 82 FCR 500 , 502-503 per Burchett J.


case_title: Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465,

case_text: Just as copyright protects only a form of expression and not an idea itself, it is the originality of the expression , and not the originality of the ideas encompassed in the work, that is assessed: see eg, Donoghue v Allied Newspapers Ltd [1938] Ch 106 (Ch D) per Farwell D at 109-112 in relation to the same requirement of originality for the Copyright Act 1911 (UK). Originality requires no notion of novelty or invention. If the form of expression represents independent application of knowledge, judgment, skill or labour, that will be sufficient: Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465. 129 For infringement of copyright, the infringing act must be done in relation to a substantial part of the work (ss 14(1)(a) and (b) of the Act), and the infringing item must be objectively similar to the original work: Francis Day & Hunter Ltd v Bron [1963] Ch 587 at 614 per Willmer LJ; SW Hart & Co Pty Ltd v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466 at 472 per Gibbs CJ. Whether assessed by visual comparison or otherwise, substantial reproduction "depends much more on the quality than on the quantity" of what is alleged to have been copied: Ladbroke at 469 per Reid LJ; LED Builders .


case_title: LED Builders Pty Ltd v Eagle Homes Pty Ltd (1996) 35 IPR 215 ,

case_text: Vawdrey submitted that the Krueger Drawings were not sufficiently original because of the alleged pre-existence of the Vawdrey-type lock. Vawdrey's evidence of the existence of the "Vawdrey-type lock" included two engineering drawings and the job sheet referred to earlier: see [101]. When the lock came into existence is in dispute. However, it is unnecessary to resolve that dispute. Even if the two engineering drawings relied upon by Vawdrey were created in 1995, the Krueger Drawings are still original. As I have said earlier, it is the originality of the form of expression rather than originality of the concept of sliding side posts with fixed gates attached that is required for copyright protection. Even assuming the concept were not novel in itself, novelty is not a requirement for copyright protection. What is relevant is that the Krueger Drawings represent an independent application by Hunt of his judgment, skill and labour and portray an original, distinctive expression of the concept to that of the Vawdrey drawings of the Vawdrey-type lock (which in any event do not even convey the same concept, as noted in [101] above): see LED Builders Pty Ltd v Eagle Homes Pty Ltd (1996) 35 IPR 215. The Krueger Drawings are original. 129 For infringement of copyright, the infringing act must be done in relation to a substantial part of the work (ss 14(1)(a) and (b) of the Act), and the infringing item must be objectively similar to the original work: Francis Day & Hunter Ltd v Bron [1963] Ch 587 at 614 per Willmer LJ; SW Hart & Co Pty Ltd v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466 at 472 per Gibbs CJ. Whether assessed by visual comparison or otherwise, substantial reproduction "depends much more on the quality than on the quantity" of what is alleged to have been copied: Ladbroke at 469 per Reid LJ; LED Builders . 131 Krueger's claim for infringement of copyright in the Krueger Drawings, which do contain a distinct expression of the concept contained in the Krueger Sketch, does not fail. For infringement of copyright, there must be a degree of objective similarity and there must also be some causal connection between the work in which the copyright subsists and the allegedly infringing work: Nine Network Australia Pty Limited v IceTV Pty Limited [2008] FCAFC 71 at [124] ; Francis, Day & Hunter at 614; SW Hart at 472 per Gibbs CJ. Although inferences from facts can be drawn to substantiate a causal connection (see eg Tamawood Ltd v Henley Arch Pty Ltd (2004) 61 IPR 378 , 387; LED Builders at 225), there must still be established facts from which to infer that the allegedly infringing party had access to the copyright material. 132 Here, the facts established by the objective evidence provide a basis for inferring that Vawdrey had indirect access to the substance of the Krueger Drawings as a result of disclosure by Camerons: see [70] [78] above. Particularly relevant is my conclusion that shortly after winning the Tender, Camerons requested that Vawdrey increase the size of the gates in its design and change the number of posts from six to seven in order to conform to the design shown in the Krueger Subsequent Drawing included in the Tender proposal. Those facts put this case on all fours with LED Builders , where the court found (at 225) indirect copying based on the giving of oral instructions by an intermediary to bring the infringing design plans into line with the copyright holder's. I am satisfied that the same thing occurred here. 133 The next question is to determine whether Vawdrey copied a substantial part of the Krueger Drawings? 134 When one compares the Vawdrey Engineering Drawings (being the drawings from which the trailers were constructed) with the Subsequent Krueger Drawings, that question must be answered "yes". However, in answering that question, it is necessary to exclude from that analysis those elements that are unprotected by copyright. There was nothing in the unprotected concept that dictated the number of posts or the size of the gates. Here both the Vawdrey Engineering Drawings and the Subsequent Krueger Drawings featured seven posts with gates attached of nearly identical size and shape. Vawdrey submitted that these similarities were an inevitable result of the fixed parameters of a 48ft trailer. I reject that submission. The content of the First Vawdrey Drawing (see Annexure 6) demonstrates the error in that submission. In that drawing, the same concept was expressed using only six sliding posts with gates that were smaller and in the shape of a hoop. In addition, Krueger's expert, Dr Hart, gave evidence that the Krueger Concept could be expressed in numerous ways. In light of this evidence, I am satisfied that there were multiple ways in which the same concept was capable of expression but the Vawdrey Engineering Drawings used substantially the same form of expression as the Subsequent Krueger Drawings.


case_title: Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70 ; (2002) 210 CLR 181 ,

case_text: Where parties enter into written or verbal confidentiality agreements prior to commercial negotiations, the terms of the agreement usually govern the rights and obligations of the parties to that agreement. This is so even in relation to information that may not truly be confidential (for example because it has lost its confidentiality by reason of being in the public domain): Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70 ; (2002) 210 CLR 181. Nonetheless, the High Court found that the agreement in question in Maggbury was an unreasonable restraint of trade because the information the agreement sought to protect was in the public domain and had been put there by Maggbury itself. 112 Krueger submitted there was a contractual obligation arising out of an express agreement to keep certain information confidential between Krueger and Camerons at the Cameron / Krueger meeting. The evidence of John Krueger and Grant Krueger was that at the beginning of the meeting with Camerons, John Krueger specifically requested that all information discussed in the meeting be kept private and confidential. Mr Cameron denies that confidentiality was discussed at any point during the meeting and denies that there was any express agreement as to confidentiality. He said that if the issue had been raised, he would have been offended. Initially, Tindal denied that confidentiality was discussed but later accepted he could not recall whether confidentiality was discussed at the meeting. 113 Both Grant and John Krueger asserted that Krueger had good reason to demand a confidentiality agreement from Camerons on the basis that Camerons rarely bought trucks from Krueger and he had the impression that Camerons was not seriously considering contracting with Krueger, but instead trying to keep Vawdrey competitive. It is true Camerons had not purchased many new Krueger trucks directly from Krueger for some years, though they did own a number of Krueger trucks they had purchased on the second hand market. 115 In this respect, as in others, I prefer the evidence of the Krueger witnesses to that of Camerons' witnesses. That is, I find that there was an oral agreement between Krueger and Camerons that "any quotation, drawings and technical and pricing information provided by Krueger, including the Krueger Concept, would be kept confidential. (The consideration for that agreement was an exchange of promises - a promise of confidentiality in consideration for a promise to proceed with the negotiations and submit a design proposal.) Moreover, that agreement was a reasonable restraint of trade because, unlike in Maggbury , the Krueger Concept was not already in the public domain. Finally, for the reasons given earlier (see [81]-[83]), Camerons breached that agreement. 116 Camerons submitted that, even if it breached an equitable or contractual obligation of confidentiality to Krueger, it was nevertheless not liable in damages because Krueger lost the contract with Camerons for reasons unrelated to disclosure of the confidential design information. Specifically, it argued that Vawdrey won the contract for reasons of delivery time, price, difficulties with hire trailers, and reliability of supply. 117 Having carefully reviewed those submissions, I find that the evidence does not support them. In that regard, I need not rely on the principle that I should more readily infer that the wrongdoer achieved its desired objective: eg omnia praesumuntur contra spoliatorem . Instead, I find as a matter of fact that, but for the disclosure of Krueger's confidential information by Camerons to Vawdrey, Krueger would have won the contract with Camerons. Further, I find that it was reasonably foreseeable to Camerons at the time it disclosed the confidential information that Vawdrey would use the information to improve its design solution and win the contract to the detriment of Krueger.


case_title: Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) [1984] HCA 73 ; (1984) 156 CLR 414 ,

case_text: The concession of Mr Cameron does not end the inquiry, however, because not everything that is confidential in business is necessarily deemed confidential in law. What is important for information to attract a legal obligation of confidence is that "the preservation of its confidentiality or secrecy is of substantial concern to the plaintiff": Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) [1984] HCA 73 ; (1984) 156 CLR 414 at 438. In Moorgate , the High Court found that information relating to a new cigarette brand was not confidential in part because it comprised merely standard marketing materials that would be shown to any prospective licensees, not just the defendant. Here, on the other hand, it is clear that Krueger created the information and communicated it to Camerons so that Krueger, and only Krueger, would win the business with Camerons. It is thus objectively reasonable in the circumstances of this case that the preservation of the information's confidentiality and secrecy (specifically, its non-disclosure to competitors such as Vawdrey) was of substantial concern to Krueger. Accordingly, I conclude that the information in [3] attracted an obligation of confidentiality under the 'reasonable man' test propounded by Megarry J in Coco at 48.


case_title: New England Country Homes Pty Ltd v Moore (199) 82 FCR 500 ,


case_title: Nine Network Australia Pty Limited v IceTV Pty Limited [2008] FCAFC 71 ,

case_text: Krueger's claim for infringement of copyright in the Krueger Drawings, which do contain a distinct expression of the concept contained in the Krueger Sketch, does not fail. For infringement of copyright, there must be a degree of objective similarity and there must also be some causal connection between the work in which the copyright subsists and the allegedly infringing work: Nine Network Australia Pty Limited v IceTV Pty Limited [2008] FCAFC 71 at [124] ; Francis, Day & Hunter at 614; SW Hart at 472 per Gibbs CJ. Although inferences from facts can be drawn to substantiate a causal connection (see eg Tamawood Ltd v Henley Arch Pty Ltd (2004) 61 IPR 378 , 387; LED Builders at 225), there must still be established facts from which to infer that the allegedly infringing party had access to the copyright material.


case_title: Skybase Nominees Pty Ltd v Fortuity Pty Ltd (1996) 36 IPR 529 ,


case_title: SW Hart & Co Pty Ltd v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466 ,

case_text: For infringement of copyright, the infringing act must be done in relation to a substantial part of the work (ss 14(1)(a) and (b) of the Act), and the infringing item must be objectively similar to the original work: Francis Day & Hunter Ltd v Bron [1963] Ch 587 at 614 per Willmer LJ; SW Hart & Co Pty Ltd v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466 at 472 per Gibbs CJ. Whether assessed by visual comparison or otherwise, substantial reproduction "depends much more on the quality than on the quantity" of what is alleged to have been copied: Ladbroke at 469 per Reid LJ; LED Builders . 131 Krueger's claim for infringement of copyright in the Krueger Drawings, which do contain a distinct expression of the concept contained in the Krueger Sketch, does not fail. For infringement of copyright, there must be a degree of objective similarity and there must also be some causal connection between the work in which the copyright subsists and the allegedly infringing work: Nine Network Australia Pty Limited v IceTV Pty Limited [2008] FCAFC 71 at [124] ; Francis, Day & Hunter at 614; SW Hart at 472 per Gibbs CJ. Although inferences from facts can be drawn to substantiate a causal connection (see eg Tamawood Ltd v Henley Arch Pty Ltd (2004) 61 IPR 378 , 387; LED Builders at 225), there must still be established facts from which to infer that the allegedly infringing party had access to the copyright material.


case_title: Tamawood Ltd v Henley Arch Pty Ltd (2004) 61 IPR 378 ,