case_title: STJB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 9


case_outcome: cited

case_text: appellant had legal assistance in relation to his application to the Tribunal for review. His legal advisers wrote to the Tribunal on 19 September 2007. In their letter, they said that the appellant accepted that, as a result of the High Court's decision in STCB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 61 ; (2006) 231 ALR 556 , the appellant could not claim refugee status on the basis that he is a member of the particular social groups described as "Albanian citizens who are subject to the customary law" or "the [X] family" which are at risk of persecution because of a blood feud. I use the letter, X, in lieu of the name of the appellant's family. On the appellant's behalf, his legal advisers submitted that he was a refugee on the following grounds: that he is a member of the particular social group being a "male Albanian child" and will suffer persecution because of that membership; that he is a member of the particular social group being a "Kulak (landowner) family" and will suffer persecution because of that membership; or his imputed political opinion as a member of a Kulak family. The appellant's legal advisers submitted that, although Albanian law does not uphold traditional or customary law, the Albanian authorities are unwilling and unable to protect the appellant from the risk of harm which he faces if he returns to that country. The Tribunal member said that the direct cause of the blood feud was the act of Uncle Ded shooting at members of the Lleshi and Biba families and not for any other reason. The fear of harm resulted from the blood feud and the blood feud would not have arisen without the occurrence of the shooting incident. The Tribunal member said that Uncle Ded's fear of reprisals was for the shooting incident and is not Convention related. As the fear held by the appellant's family member was not Convention related, the threshold question in s 91S(a) was satisfied. The Tribunal member said: "Therefore, in accordance with subsection 91S(b), any fear of persecution on the basis of being a member of the [X] family on the basis of the shooting incident must be disregarded under section 91S of the Act. As found by the majority in the High Court in STCB v MIMIA & Anor [2006] HCA 61 at [20] in similar circumstances (and acknowledged by the representative), in these circumstances, s 91S is fatal to a claim that the applicant fears persecution for reasons of membership of a particular social group that consists of his family." The Tribunal member said that she did not need to decide if there were particular social groups of the kind advanced by the appellant ("male Albanian child" or "Kulak family") because, in light of her findings of fact, membership of those "groups" could not be the reason for the fear of harm. She said that the shooting incident triggered the blood feud which in turn is the reason for the fear of harm. The Tribunal member concluded that the appellant did not have a well-founded fear of persecution for a Convention reason and she was not satisfied that the appellant came within Article 1A(2) of the Refugees Convention. The federal magistrate's reasons Thirdly, the appellant submitted that Uncle Ded's conduct was clearly not criminal and that a purpose behind the introduction of s 91S was to remove the potential for criminal families to otherwise claim refugee status ( STCB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 61 ; (2006) 231 ALR 556). However, the evidence before the Tribunal was at the very least equivocal as to whether Uncle Ded's conduct constituted a criminal act. It is true that he was not charged by the police over the shooting incident, but the evidence suggests that Uncle Ded shot at members of the Lleshi and Biba families as they were leaving the property. Again, it is clearly not my task to make findings about these issues. Again, they suggest that the claim now made was not apparent on the face of the material before the Tribunal. I have considered all the circumstances and I do not think the claim now advanced was apparent on the face of the material before the Tribunal. In my opinion, the Tribunal did not fall into jurisdictional error in not considering whether there was a social group of "Albanian householders who had resisted armed encroachment onto their property" and whether Uncle Ded was a member of such a group. Conclusion The appeal must be dismissed with costs. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 14 August 2009 Counsel for the Appellant: Dr S C Churches Solicitor for the Appellant: McDonald Steed McGrath Lawyers Counsel for the First Respondent: Dr C D Bleby Solicitor for the First Respondent: Australian Government Solicitor Date of Hearing: 24 February 2009 Date of Judgment: 14 August 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/878.html


case_outcome: referred to

case_text: The Minister is not bound to proceed by reference to the direction under s 499 of the Act, namely, Direction No 21: Howells v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 327 ; (2004) 139 FCR 580 at 585 [31] . However, he may choose to do so. In this case, he said that he would proceed in accordance with the Direction. 20 The applicant submits that the third primary consideration referred to in Direction No 21, namely, the best interests of the child, is only relevant if there is a child. He points to paragraph 2.3(c) set out in [11] above and he also points to the following paragraph in Direction No 21: "2.13 This consideration only applies if the child is or would be less than 18 years of age at the time when the decision is intended to come into effect. The best interests of any children aged 18 years or more is not a primary consideration but may be considered with other considerations under paragraph 2.17." 21 It should be noted that Direction No 21 makes it clear that although generally speaking it is in the child's best interests to remain with his or her parent, there may be circumstances in which the best interests are served by separation from the non-citizen.


case_text: It was accepted by the applicant that Direction No 21 is "not so broadly stated as to cover all considerations properly brought to bear on the exercise of the discretion". I think that approach is correct. In other words, where the decision under s 501(2) is made by the Minister, as opposed to his delegate, jurisdictional error is not established simply by showing a misconstruction of Direction No 21; it must be shown that the Minister acted outside the terms of the statutory power. Section 501(2) does not state the matters the Minister must or may take into account in exercising the discretion. In exercising an apparently unconfined discretion the determination of the limits of the statutory power is made having regard to the subject-matter, scope and purpose of the power and the Act in which it appears. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24, Mason J said at 40: "In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: see Reg v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd , adopting the earlier formulations of Dixon J in Swan Hill Corporation v Bradbury , and Water Conservation and Irrigation Commission (NSW) v Browning . By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act." (Footnotes omitted.) 27 As I understood it, the applicant also conceded that if all the Minister did was to take into account as a matter in favour of cancelling the applicant's visa the fact that the applicant had no children then although the Minister had misconstrued Direction No 21 that would not constitute a jurisdictional error. I think that concession was correctly made because there is nothing in the nature and purpose of the statutory provisions to indicate that the fact that the applicant had no children is a matter the Minister was prohibited from taking into account. 28 The applicant submits that the Minister in fact made a more serious error than simply taking into account that the applicant had no children and that the error he made was a jurisdictional error. I do not find it easy to articulate the more serious error identified by the applicant but, as I understand it, it was that the Minister had found that the best interests of the children favoured cancellation of the visa when in fact that there were no children. I reject that submission. A fair reading of the Minister's reasons is that he found that the fact that the applicant had no children was a matter in favour of cancelling his visa. That was a misconstruction of Direction No 21 but not a jurisdictional error.


case_text: The next question is whether the error of the Minister being a misconstruction of Direction No 21 amounts to jurisdictional error. The applicant referred to the following observations of French and Drummond JJ in Minister for Immigration and Ethnic Affairs v Gray (1994) 50 FCR 189 at 208: "If a decision-maker, not bound to apply policy, purports to apply it as a proper basis for disposing of the case in hand but misconstrues or misunderstands it so that what is applied is not the policy but something else, then there may be reviewable error. In a limiting case a policy may be so broadly stated as to cover all considerations properly brought to bear on the exercise of the discretion. In such a case misconstruction of the policy may reduce to misconstruction of the statute or misunderstanding of its purpose."


case_text: In the same way as the reasons of the Administrative Appeals Tribunal or the Refugee Review Tribunal are not to be approached "minutely and finely with an eye keenly attuned to the perception of error", neither are the reasons of the Minister: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ. 24 Even adopting that approach, I am of the opinion that the Minister misconstrued Direction No 21. The Minister referred to "the information relevant to this consideration" and the only information to which that could have referred is the statement that the applicant has no children. That is the information the Minister said weighed in favour of cancelling the applicant's visa and to which he said he gave (as a consideration) considerable weight. In my opinion, that is a misconstruction of Direction No 21 because once the decision-maker finds that a non-citizen has no children, the matter or consideration became irrelevant. I do not think it is possible to construe the Minister's reasons as saying no more than that the matter of the best interests of the child was irrelevant and, as this was generally a matter in favour of not cancelling the visa, the other matters in favour of cancellation were not counter-balanced by this consideration.


case_title: Minister for Immigration and Multicultural Affairs, Re; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1

case_text: The rules of procedural fairness apply to the exercise of the power in s 501(2) of the Act: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 (" Lam "). 31 The applicant submits that the matter the Minister took into account the fact that the applicant did not have children was a matter in favour of cancelling his visa stood outside the terms of Direction No 21. The applicant submits that he was not given the opportunity to comment upon whether that was a matter the Minister should take into account. The applicant submits that there had been a breach of the rules of procedural fairness and he put two alternative submissions. 32 First, he submits that he was led to believe that the Minister would make his decision by reference to the matters in Direction No 21 and only by reference to those matters. That submission requires an examination of the two letters sent to the applicant inviting him to make submissions in support of his contention that his visa should not be cancelled. In the letter from the Department dated 7 August 2006 the following passage appears: " Should your visa be cancelled? If the Minister or a delegate makes a determination that he or she reasonably suspects that you do not pass the character test, and you fail to satisfy him or her that you do pass the character test, the Minister or the delegate will then consider whether your visa should be cancelled. Considerations to be taken into account if decision is made by a delegate In considering whether to exercise the power under s 501(2) to cancel your visa, a delegate will be required to follow directions given by the Minister under s 499 of the Migration Act . Those directions are contained in Direction No 21 ('Direction under Section 499 Visa Refusal and Cancellation under Section 501 Migration Act 1958 '). I have attached a copy of Direction No 21 for your information. Considerations to be taken into account if decision is made by the Minister If the decision in relation to cancellation of your visa is made by the Minister, although she may decide to have regard to the matters discussed in Minister's Direction No 21, she is not required to give consideration to those matters. Your opportunity to comment Before the Minister or delegate considers whether to cancel your visa under s 501(2) , you are provided with an opportunity to comment. You may provide information and comments in relation to:  whether you fail the character test; and  whether your visa should be cancelled. In making a decision whether to cancel your visa under s 501(2) , the Minister or delegate will take the following information into account already available to the Department:  Offender History Report (Attachment A)  Certificate of Record for the sentence of 02/07/2003 (Attachment B)  Judge's sentencing remarks of 02/07/2003 (Attachment C)  Report by Community Corrections Officer dated 21/06/2006 (Attachment D) The Department has also obtained reports from the Parole Board of SA. These reports have been classified as 'non-disclosable information' pursuant to Section 5(1) of the Act and can not [sic] be released to you, however you are invited to comment. If there is any additional information that you wish the Minister or delegate to consider, you must give that information to the Department. If you do not provide any further information the Minister or a delegate may rely upon the information set out above to determine that your visa are [sic] are liable to cancellation under s 501(2) of the Migration Act . In preparing your comments, please read fully and carefully the contents of the Minister's Direction. You should address each and every topic that you feel applies to you or is relevant to your circumstances. You may also provide any further information, apart from those considerations found in the Minister's Direction, that you feel the Minister or delegate ought to be aware of and take into account." 36 In my opinion, there are two answers to that submission. First, I am not satisfied that it can be inferred that the correspondence from the Department would have led to the belief (based on reasonable grounds) that the topic of children and the best interests of children would only be dealt with in the manner contemplated by Direction No 21 and not otherwise. In this case it is a matter of looking at what may be reasonably inferred from the letters sent by the Department and other circumstances. It was not contended that the applicant's actual belief is relevant; in any event there was no evidence of his belief. It seems to me that the significance to the decision of having a family including children in Australia or not having a family for a person facing the cancellation of their visa would be obvious. Furthermore, I note that although it appears under the heading of "Other considerations" in Direction No 21, the Direction identifies "family composition of the non-citizen's family, both in Australia and overseas" as a relevant consideration: cl 2.17(d). Secondly, I do not think it can be said that any practical injustice has been shown: Lam at 14 [38] per Gleeson CJ, at 34-35 [106] per McHugh and Gummow JJ. I realise that the Court must be careful not to engage in a determination of the merits of a decision under the guise of considering an argument as to futility. However, in this case I do not think there was any practical injustice to the applicant. In practical terms he was afforded a full opportunity to be heard on the matters ultimately taken into account by the Minister. 37 In my opinion, the application must be dismissed. I will hear the parties on costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 17 August 2007 Counsel for the Applicant: Mr S Ower Solicitor for the Applicant: McDonald Steed McGrath Counsel for the Respondent: Dr C Bleby Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 29 June 2007 Date of Judgment: 17 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1249.html


case_text: In any event, the recipient of a notice would have an obligation to claim privilege over documents in the possession of the recipient that the recipient reasonably believed were subject to the privilege of someone else, such as a client of the recipient. The recipient would have an obligation to preserve legal professional privilege by reason of the character or status of the documents as being privileged. The privilege attaches to a document and, once privileged, the document will always be privileged. As the possessor or custodian of a document that has such a special character or status, the recipient of a notice requiring production of such a document would have an obligation to take steps to preserve and maintain that character or status. The recipient of a notice would be obliged to make claims for privilege in respect of documents where the privilege might reasonably be expected to exist in order to ensure that such a claim for privilege would not be lost (see Commissioner of Taxation v Citibank Limited (1989) 20 FCR 403 at 414). 35 A governmental authority issuing a compulsory production notice, in whatever form, must provide the recipient of the notice with a reasonable opportunity to claim legal professional privilege, both on its own behalf and on behalf of others. The recipient must not be denied the opportunity to make adequate claims for privilege in relation to the documents of itself or its clients that are the subject of the compulsory production notice (see Citibank at 414). 36 However, there is no requirement for such an authority to give clients of the recipient, as distinct from the recipient, a reasonable opportunity to make claims for privilege before enforcing the compulsory production notice. The most that is required is that the recipient of such a notice must be afforded the opportunity of asserting legal professional privilege, either on the recipient's account or on account of another person, such as a client. It has not been suggested that any recipient of a notice in issue in the present proceeding was not given an opportunity to obtain legal advice or that any claim for privilege made by a recipient, on behalf of the recipient or a third party, was not respected.


case_text: There is no requirement that a person other than a recipient be afforded the opportunity to claim or assert legal professional privilege and the scheme of the Act makes it clear that no such right is to be afforded to a person in the position of the applicants. There is no requirement for the Commission either to notify persons in the position of the applicants that a notice has been issued to a third party that may require the production of documents that are subject to a privilege of the applicants. Nor is there any requirement for a person in the position of the applicant to be notified by the Commission, after production of documents by a recipient of a notice, of the fact of the production of documents that may be the subject of a claim for privilege on behalf of an applicant that was not made by the recipient of the notice. There is no requirement, for example, that an authority issuing a compulsory production notice to a solicitor should notify the solicitor's clients that the solicitor has been given such a notice in order that the client might have the opportunity to challenge the validity of the notice on grounds of privilege (see May v Commissioner of Taxation [1999] FCA 287 ; (1999) 92 FCR 152 at [36] , [31] and [38]. 38 Further, the regime contemplated by s 29A(4) , under which a notation will be cancelled in specified circumstances, would be effective to ensure that, even if the privilege had not been claimed previously, it could be claimed as soon as a criminal proceeding is begun. Thus, the holder of the privilege would be able to make the claim for privilege prior to the tendering in evidence against that person of any document obtained by the Commission pursuant to a notice containing a relevant notation. The right of the holder of the privilege not to have privileged material used in evidence against him or her would therefore be protected. 39 Section 29B evinces a clear intention on the part of the Parliament that, in relation to documents produced by third parties who are not lawyers, the existence of the notice pursuant to which it is produced is not to be disclosed even to a potential holder or privilege, for so long as the notation is operational. The Act does not take away or abrogate legal professional privilege. It simply has the effect that, in particular circumstances, the holder of the privilege may not know that documents that might be the subject of the privilege are the subject of a notice requiring production by the possessor or custodian of the documents.


case_title: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24

case_text: An administrative decision may be impugned if the decision maker was bound to take a factor into account in reaching his or her decision but failed to do so. If a statute states expressly the factors that must be taken into account, that will be decisive. However, if the relevant factors are not expressly stated, they must be determined by necessary implication from the subject matter, scope and purpose of the [1986] HCA 40 ; Act ( Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39-40). 41 In the present case, s 29A(2) sets out factors that an Examiner must consider when determining whether a notation must or may be included in a notice. The matters that must be taken into consideration are: • the safety or reputation of a person; • the fair trial of a person who has been or may be charged with an offence; • the effectiveness of an operation or investigation. 42 Further, the scheme of ss 29A and 29B recognises the existence of legal professional privilege in so far as the prohibition on disclosure does not prevent a person from making disclosure to a legal practitioner or, if the person is a legal practitioner, for the purpose of obtaining instructions as to the production of a document. 43 Under s 30(3) a legal practitioner may refuse to comply with a requirement to produce a document containing a privileged communication unless the person with whom the communication was made agrees to the practitioner complying with the requirement. The subject matter, scope and purpose of the Act make it abundantly clear that an Examiner who is deciding whether or not to issue a notice and whether to include a notation in the notice is not required to have regard to the possibility that the recipient of the notice may not discharge that recipient's obligation to assert or claim legal professional privilege that may reside in a person other than the recipient in relation to the document that the recipient is required to produce. 44 That is the clear intent and purpose of ss 29A and 29B. However, the clear object of ss 29A and 29B is to ensure that, in some circumstances, the object of an investigation, such as persons in the position of the applicants, is not informed of the existence of a notice. The relevant Examiners did not fail to take into account a consideration that they were bound to take into account simply by reason of the fact that they did not have regard to the possibility that documents that were required to be produced by a notice might be the subject of legal professional privilege of a person other than the recipient.


case_text: 22 May 2009, for reasons which I then gave, I granted certain interlocutory injunctive relief on the application of the Australian Communications and Media Authority (ACMA) - Australian Communications and Media Authority v Mobilegate Ltd A Company Incorporated in Hong Kong [2009] FCA 539. These reasons should be read in conjunction with those of 22 May 2009. The interlocutory relief granted on 22 May 2009 was not as extensive as the ACMA had sought, but that was because of comprehensive undertakings which were then proffered to the Court. On that day, I also made directions for the further conduct of the proceedings. Those directions included the following: The first respondent provide a response to the applicant's request for particulars dated 15 May 2009 on or before 11 June 2009. The first respondent provide to the applicant a full electronic copy of that database referred to in paragraph 5 of the first respondent's discovery list filed 31 March 2009, or alternatively access to that database for the purposes of the applicant creating an electronic copy, on and from not later than 11 June 2009. The first respondent file and serve an amended discovery list by 11 June 2009, which list: (1) identifies, as fully and accurately as possible, the documents previously held by the first respondent, which it no longer holds, and what became of them; (2) identifies whether each such document is in its power or control and the steps it has taken to obtain documents that are within its power or control; (3) lists, to the extent they are within the discovery categories required of the first respondent, documents in relation to the employment of Ms Teresa Posella; (4) incorporates in the response to item 5 of the said discovery categories, production of any database in relation to the premium telephone number 19910007.


case_text: Salcedo states that he and his colleagues did not wish to appear without the services of a lawyer but could not afford that. Like any other individual party, each of the Fourth, Fifth and Seventh Respondents is entitled to represent himself if he chooses. None of them have indicated an active interest in so doing or even that they are actively seeking alternative legal representation. The preference voiced by Mr Salcedo is not a basis for the ignoring of the progression of a case in the Court in accordance with the Court's directions. That case management considerations are relevant to the exercise of discretions in respect of matters of practice and procedure arising under the rules of court was recently emphasised by the High Court in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 at [30]. Mr Salcedo also makes reference to negotiations having occurred with the ACMA in relation to the proceedings and attaches, without the permission of the AGS, a copy of a "without prejudice" letter written by the AGS in that regard. That attachment should not have occurred. The ACMA, by the AGS, does not object to the marking of the letter as an exhibit but with the proviso that the attachment should not be available for general searching. That seems to me the appropriate course to take in respect of it. I shall give directions accordingly.


case_title: Humphreys v Halifax Vogel Group Pty Ltd (ACN 104 808 853) [2008] FCA 569 ; (2008) 76 IPR 144

case_text: the Court is alternatively empowered to give judgment or make any other order against the respondent concerned. In other words, there is no requirement that evidence be adduced by the parties seeking default judgment in respect of the matters pleaded in the statement of claim. Instead, the statement of claim must be scrutinised to see whether it discloses a cause of action in law in respect of the relief sought. In Humphreys v Halifax Vogel Group Pty Ltd (ACN 104 808 853) (2008) IPR 144 at 146, [6] to [9], I concluded that this was the effect of the rule. I shall not repeat what is there stated.


case_outcome: followed

case_title: Australian Competition and Consumer Commission v Dataline.Net.AU Pty Ltd (2006) 236 ALR 665

case_text: is not to say that the receipt of evidence is precluded on an application for default judgment under O 35A. Prior authority establishes that additional evidence consistent with a party's case as pleaded in the statement of claim may be considered with respect to the relief sought: Australian Competition and Consumer Commission v Dataline Net AU Pty Ltd (2006) 236 ALR 665 (Kiefel J (affirmed Australian Competition and Consumer Commission v Dataline.Net.AU Pty Ltd [2007] FCAFC 146 ; (2007) 161 FCR 513) (Dataline). In Dataline , Kiefel J also noted of O 35A that: The statement of claim alleges numerous contraventions of s 16(1) and s 16(9) of the Spam Act 2003 (Cth) (Spam Act). It further alleges contraventions by the First and Second Respondents of s 52 of the Trade Practices Act 1974 (Cth) with the Fourth, Fifth and Seventh Respondents being alleged to be parties to these corporate contraventions. Albeit at the risk of over-generalisation, the conduct alleged may be summarised as the deceptive use of fabricated profiles on dating websites in order to obtain mobile telephone numbers for the purpose of sending or causing to be sent unsolicited commercial electronic messages to the unsuspecting telephone account holders. Yet, further conduct alleged involves the sending of unsolicited commercial electronic messages which purport to supply a "single club" or "fantasy chat" service to unsuspecting telephone account holders. So far as the First, Second, Fourth, Fifth and Seventh Respondents are concerned, I am satisfied that the statement of claim alleges contraventions known to law of the Spam Act and the Trade Practices Act and which enliven the Court's jurisdiction to grant declaratory and injunctive relief. I am further satisfied that the injunctive relief sought is not merely a bland recitation of statutory prohibitions but rather has been framed with sufficient precision to enable the Respondents concerned to identify the conduct which is the subject of restraint and so as to permit ready identification of an event of default. The declarations sought are in these terms: Declarations concerning contraventions of the Spam Act 2003 (Cth) A declaration that the first respondent, whose central management and control was in Australia, by sending short message service ("SMS") messages or causing SMS messages to be sent via 19773366 and 19910006 to Australian mobile telephone numbers, which it had obtained by deception using fabricated dating website profiles, for the purpose of dishonestly obtaining the account holders' acceptance of its Safe Divert service, has engaged in conduct in contravention of s.16(1) of the Spam Act 2003 (Cth) . A declaration that the second respondent, whose central management and control was in Australia, by sending SMS messages or causing SMS messages to be sent via 19773366 to Australian mobile telephone numbers, which it had obtained by deception using fabricated dating website profiles, for the purpose of dishonestly obtaining the account holders' acceptance of its Safe Divert service, has engaged in conduct in contravention of s.16(1) of the Spam Act 2003 (Cth) . A declaration that the first respondent, whose central management and control was in Australia, by sending SMS messages or causing SMS messages to be sent via 19724253 to Australian mobile telephone numbers, which it had obtained by deception using fabricated dating website profiles, for the purpose of dishonestly obtaining the account holders' acceptance of its Maybemeet service, has engaged in conduct in contravention of s.16(1) of the Spam Act 2003 (Cth) . A declaration that the first respondent, whose central management and control was in Australia, by sending further SMS messages or causing further SMS messages to be sent via 19773366 and 19910006 to Australian mobile telephone account holders who had replied "yes" in circumstances where the first respondent knew that their acceptance of its Safe Divert service had been obtained by deception, has engaged in further conduct in contravention of s.16(1) of the Spam Act 2003 (Cth) . A declaration that the second respondent, whose central management and control was in Australia, by sending further SMS messages or causing further SMS messages to be sent via 19773366 to Australian mobile telephone account holders who had replied "yes" in circumstances where the second respondent knew that their acceptance of its Safe Divert service had been obtained by deception, has engaged in further conduct in contravention of s.16(1) of the Spam Act 2003 (Cth) . A declaration that the first respondent, whose central management and control was in Australia, by sending further SMS messages or causing to be sent further SMS messages via 19724253 to Australian mobile telephone account holders who had replied "yes" in circumstances where the first respondent knew that their acceptance of its Maybemeet service had been obtained by deception, has engaged in further conduct in contravention of s.16(1) of the Spam Act 2003 (Cth) . A declaration that each of the first and second respondents, whose central management and control was in Australia, by sending SMS messages or causing SMS messages to be sent via 19773377 to Australian mobile telephone numbers for the purpose of offering to supply a fantasy chat service without obtaining the consent of the mobile telephone account holders, has engaged in conduct in contravention of s.16(1) of the Spam Act 2003 (Cth) . A declaration that the first respondent, whose central management and control was in Australia, by sending SMS messages or causing SMS messages to be sent via 19910007 to Australian mobile telephone numbers for the purpose of offering to supply a fantasy chat service without obtaining the consent of the mobile telephone account holders, has engaged in conduct in contravention of s.16(1) of the Spam Act 2003 (Cth) . A declaration that each of the fourth, fifth, and seventh respondents: 9.1 aided and abetted; and 9.2 was knowingly concerned in and party to; each of the first and second respondents' contraventions of s.16(1) of the Spam Act 2003 (Cth) pleaded in paragraphs 1, 2, 3, 4, 5, 6, 7 and 8 and thereby engaged in conduct in contravention of s.16(9) of the Spam Act 2003 (Cth) . A declaration that each of the fourth and seventh respondents: 10.1 aided and abetted IMP, whose central management and control was in Australia, to send SMS messages or cause SMS messages to be sent via 19773366; and 10.2 was knowingly concerned in and party to IMP, whose central management and control was in Australia, sending SMS messages or causing SMS messages to be sent via 19773366: to: 10.3 Australian mobile telephone numbers, which its servants or agents had obtained by deception using fabricated dating website profiles, for the purpose of dishonestly obtaining the account holders' acceptance of its Safe Divert service; 10.4 to Australian mobile telephone account holders who had replied "yes" in circumstances where the company knew that their acceptance of its Safe Divert service had been obtained by deception; 10.5 in contravention of s.16(1) of the Spam Act 2003 (Cth) , and thereby engaged in conduct in contravention of s.16(9) of the Spam Act 2003 (Cth) . Declarations concerning contraventions of the Trade Practices Act 1974 (Cth) A declaration that each of the first and second respondents, in trade or commerce: 11.1 by the use of dating website profiles created and registered on dating websites, represented to dating website members that the individuals described in those profiles were members of the respective dating website; and further, 11.2 by communicating with dating websites as those profiles, represented to dating website members that the communication was with the individuals described in those profiles; when in fact: 11.3 the individuals described in the profiles did not exist; 11.4 it did not inform the dating website members that it had created the profiles; 11.5 it did not inform the dating website members that their mobile telephone numbers were being obtained for the purpose of collecting mobile telephone numbers of Australian mobile telephone account holders to be recipients of commercial electronic messages via 19773366, 19910006 and/or 19724253; and 11.6 any communication between dating website members and the profiles was between it and those members; engaged in conduct that was misleading or deceptive or likely to mislead or deceive contrary to s.52 of the Trade Practices Act 1974 (Cth). A declaration that each of the first and second respondents, in trade or commerce, by sending SMS messages or causing SMS messages to be sent to Australian mobile telephone numbers which represented that a dating website member wanted to communicate with the mobile telephone account holder using its advertised Safe Divert service when in fact the SMS messages were generated by its agent, has engaged in conduct that is misleading or deceptive or likely to mislead or deceive, in contravention to s.52 of the Trade Practices Act 1974 (Cth). A declaration that the first respondent, in trade or commerce, by sending SMS messages or causing SMS messages to be sent to Australian mobile telephone numbers which represented that a dating website member wanted to communicate with the mobile telephone account holder using its advertised Maybemeet service when in fact the SMS messages were generated by its agent, has engaged in conduct that is misleading or deceptive or likely to mislead or deceive, contrary to s.52 of the Trade Practices Act 1974 (Cth). A declaration that each of the first and second respondents, in trade or commerce, by sending further SMS messages or causing further SMS messages to be sent to Australian mobile telephone numbers which represented that they were written by a dating website member when in fact the SMS messages were written by individuals engaged by its agent, has engaged in conduct that is misleading or deceptive or likely to mislead or deceive, contrary to s.52 of the Trade Practices Act 1974 (Cth). A declaration that each of the fourth, fifth and seventh respondents: 15.1 aided and abetted; and 15.2 was knowingly concerned in and party to; each of the first and second respondents' contraventions of the s.52 of the Trade Practices Act 1974 (Cth) pleaded in paragraphs 11, 12, 13 and 14. A declaration that each of the fourth, fifth, and seventh respondents: 16.1 aided and abetted; and 16.2 was knowingly concerned in and party to; IMP, through its agent, in trade or commerce: 16.3 by the use of dating website profiles created and registered on dating websites, representing to dating website members that the individuals described in those profiles were members of the respective dating website; and further, 16.4 by communicating with dating websites as those profiles, representing to dating website members that the communication was with the individuals described in those profiles; when in fact: 16.5 the individuals described in the profiles did not exist; 16.6 it did not inform the dating website members that it had created the profiles; 16.7 it did not inform the dating website members that their mobile telephone numbers were being obtained for the purpose of collecting mobile telephone numbers of Australian mobile telephone account holders to be recipients of commercial electronic messages via 19773366; and 16.8 any communication between dating website members and the profiles was between it and those members; in contravention of s.52 of the Trade Practices Act 1974 (Cth) .


case_text: Notwithstanding the attitude adopted by Mr Pritchard, a declaration is a judicial act which s 1317E of the Corporations Act prescribes should only be made if the Court is satisfied by the evidence that it is appropriate to grant the declarations sought: BMI Ltd v Federated Clerks Union of Australia (1983) 51 ALR 401 at 412-413 (per Keely and Beaumont JJ). See also Australian Securities and Investments Commission v Cash King Pty Ltd [2005] FCA 1429 at para [3] .


case_text: Contrary to the submission of Counsel for Mr Pritchard, neither the express words of the Corporations Act nor the relevant extrinsic materials (see in particular paras 6.2 and 6.3 of the Explanatory Memorandum extracted at [40] above) support the contention that the provisions are " contemplated to follow criminal prosecution rather than to precede it (with all the risks to the defendant that might entail) except where the subsequent prosecution is affected by the evidentiary restrictions imposed by s 1317Q" . To take just one example, s 1317P is directly contrary to that submission. Moreover, the decision of Fryberg J in Australian Securities and Investments Commission v Intertax Holdings Pty Ltd [2006] QSC 276 does not support that submission. It was not concerned with s 1317E of the Corporations Act or a civil penalty provision but the more difficult question of the power of a court to make a declaration as to whether conduct by a corporation or its officer contravened the Corporations Act when where there is a likelihood or prospect of criminal proceedings.


case_text: The statutory duties imposed by ss 180 , 181 and 182 of the Corporations Act reflect and, to some extent, refine the obligations of the directors at general law: Australian Securities and Investments Commission v Maxwell (2006) 59 ACSR 373 at [99]. Each is a duty owed by a director to the corporation. However, directors' duties provisions are not concerned with any general obligation owed by directors to conduct the affairs of the company in accordance with the law generally or the Corporations Act . Moreover, the directors' duties provisions do not necessarily make a director liable for a breach by the company of another provision in the Corporations Act . The corollary is that it cannot be said that every breach by a company of the Corporations Act necessarily gives rise to a breach of the directors' duties provisions. 23 That last proposition or principle (that not every breach by a company of the Corporations Act necessarily gives rise to a breach of the directors' duties provisions) is self evident. It is reinforced by the fact that, under s 180(1) of the Corporations Act , the circumstances of the particular company are relevant to the content of the duty of a director to exercise reasonable care and diligence. The circumstances may include, but are not limited to, the type of company, the size and nature of the company's business, the director's position and responsibilities within the company, the particular functions the director is performing, the manner in which responsibility for the business of the company is distributed and, of course, the circumstances of the case: Maxwell at [100] and the authorities referred to. 24 The need to consider the circumstances of a particular company in defining the content of the duty of a director to exercise reasonable care and diligence is demonstrated in the case of Mr Pritchard. The circumstances of Warrenmang are outlined in paras [5] to [15] above. There was an " identity of interest between the directors and the shareholders, so that in effect the directors [were] the shareholders ": Maxwell [103]. Ordinarily that fact may make the requirement to prevent self-interested dealing much less acute: Maxwell at [103]. In the case of Warrenmang, the identity of interest between the directors and the shareholders in fact meant the requirement to prevent self-interested dealing was acute because of the following circumstances. (1) Warrenmang was registered as an unlisted public company on 1 September 2003 with Mr Pritchard holding approximately 20 million of the 20.82 issued shares; (2) although at the time of its incorporation, three directors were appointed, Mr Pritchard was at all times the person in charge of Warrenmang's day to day activities including maintenance of its financial records and was its controlling mind; (3) on 5 December 2003 and again 10 March 2004, Warrenmang sought to raise funds from the public through the sale shares in Warrenmang and in response to the IPO and the Supplementary Prospectus did in fact raise substantial funds from hundreds of subscribers; and (4) the subscription monies were received by Warrenmang and deposited into the Warrenmang Accounts to which Mr Pritchard was the sole signatory.


case_title: BMI Ltd v Federated Clerks Union of Australia (1983) 51 ALR 401


case_text: If there is prejudice to any person by ASIC taking the step of first pursuing and securing a declaration of contravention (without seeking a pecuniary penalty order) under s 1317E of the Corporations Act prior to criminal proceedings being started against that person for conduct that is substantially the same as the conduct that constituted the contravention of the civil penalty provision, ASIC takes that step assessing the risk that it may impede any subsequent criminal proceedings whether by application of the principles under the heading of abuse of process or related doctrines (see for example, Pearce v The Queen [1998] HCA 57 ; (1998) 194 CLR 610 at [29] and [30] (per McHugh, Hayne and Callinan JJ) citing Maxwell v The Queen [1995] HCA 62 ; (1996) 184 CLR 501 at 512 and Rogers v The Queen [1994] HCA 42 ; (1994) 181 CLR 251 in relation to stay of criminal proceedings for abuse of process and Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 at 518-520) or otherwise. It is neither necessary nor appropriate to explore these issues in the present case. It was not the subject of argument and, in any event, the issue may never arise.


case_title: Pearce v The Queen [1998] HCA 57 ; (1998) 194 CLR 610


case_text: ASIC may apply for such a declaration: s 1317J. Section 1317E(2) prescribes what a declaration under s 1317E(1) must specify, namely: "(a) the Court that made the declaration; (b) the civil penalty provision that was contravened; (c) the person who contravened the provision; (d) the conduct that constituted the contravention; (e) if the contravention is of a corporation / scheme civil penalty provision the corporation or registered scheme to which the conduct related." Section 1317F provides that a declaration of contravention is conclusive evidence of the matters referred to in s 1317E(2): Re One.Tel Ltd (in liq); Australian Securities and Investments Commission v Rich (2003) 21 ACLC 672. As a result, the court must specify the conduct that constituted the contravention with sufficient particularity to enable the declaration of contravention not only to stand on its own but to meet the statutory requirements and purpose of s 1317E. 33 Other sections provide for the making of pecuniary penalty orders (s 1317G) and provide that the Court must apply the rules of evidence and procedure for civil matters (s 1317L). 34 The intersection between the civil and criminal process is addressed in ss 1317M , 1317N and 1317P . The intersection is not easy. In the present case, it is further complicated by the timing of ASIC's application for declaration of contravention. Section 1317M deals with civil proceedings after criminal proceedings and provides that: "A court must not make a declaration of contravention or a pecuniary penalty order against a person for a contravention if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention ." (Emphasis Added) 35 Section 1317N deals with criminal proceedings during civil proceedings and provides: "(1) Proceedings for a declaration of contravention or pecuniary penalty order against a person are stayed if: (a) criminal proceedings are started or have already been started against the person for an offence; and (b) the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention. (2) The proceedings for the declaration or order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings for the declaration or order are dismissed." This provision is significant. It provides that proceedings for a declaration of contravention or pecuniary penalty order are stayed if criminal proceedings are on foot at the same time in relation to conduct that is substantially the same as the conduct alleged to constitute the contravention. In this provision, no distinction is drawn between proceedings for a declaration of contravention and proceedings for a pecuniary penalty order. 36 Section 1317P then deals with criminal proceedings after civil proceedings. It provides: "(1) Subject to subsection (2), criminal proceedings may be started against a person for conduct that is substantially the same as conduct constituting a contravention of a civil penalty provision regardless of whether: (a) a declaration of contravention has been made against the person; or (b) a pecuniary penalty order has been made against the person; or (c) a compensation order has been made against the person; or (d) the person has been disqualified from managing a corporation under Part 2D.6 ; or (e) an order has been made against the person by ASIC under section 920A (banning orders) or by the Court under section 921A (disqualification by Court)."


case_title: Rogers v The Queen [1994] HCA 42 ; (1994) 181 CLR 251


case_title: Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509


case_outcome: applied

case_text: Unlike O 20 r 2 which applies generally, s 84C is clearly limited to native title determination applications under the Act. The language of s 84C and O 20 r 2 is dissimilar in that s 84C refers to "strike-out" of the application, whereas O 20 r 2 deals with permanent stay or summary dismissal of the proceedings. Further, the issues of which proof is required under each provision differs in that s 84C applies where an application does not comply with ss 61 , 61A or 62 whereas O 20 r 2 is only enlivened if no reasonable cause of action is disclosed, the proceeding is frivolous or vexatious, or the proceeding is an abuse of process. To that extent, s 84C is concerned with matters of form and authority rather than the merit of any native title determination (Branson J in Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77 at 85). 18 The cautious approach of the Court as described in Williams [2004] FCAFC 178 was more recently reaffirmed by the Full Court in Bodney 140 FCR at 89, where Stone J (with whom Spender and Branson JJ agreed on this point) said that notwithstanding the operation of s 84C in the context of native title applications, the Court approaches strike-out applications under this section in the same way as applications under O 20 r 2 Federal Court Rules (see also Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 at 497, Thomas v State of South Australia [2004] FCA 951 at [2] - [3] , McKenzie v State Government of South Australia (2005) 214 ALR 214 at 221).


case_text: The importance of the authorisation of a claim was emphasised by Tamberlin J in Booth v State of Queensland [2003] FCA 418 at [10] - [11] where his Honour said in relation to that case: The applicant must be authorised by all members of the Native Title Claim Group. In the present application the persons who compromise the Native Title Claim Group are not identified either by name or by reference or by any sufficient description. There is also a lack of evidence that the Native Title Claim Group, which is alleged to have authorised Mr Booth, had any applicable traditional decision-making process or that any particular process was followed. There is no evidence that the Native Title Claim Group agreed to and adopted some other decision-making process in relation to authorising the applicant to make the application. Nor is there any evidence that the process has been recognised or that any process has been followed. 35 These comments are equally applicable in the case before me. Other than an assertion by the applicant that the late Oodgeroo, the late Kath Walker, has authorised the applicant to make the application, and that such authorisation is through "Traditional Custom and Lore", there is no evidence that the applicant is authorised by the claim group, even to the extent that the claim group in this case can be identified. No details of the decisions that the claim group made are provided. There is no evidence of the process, or that any particular process was recognised or followed by the claim group (cf Booth [2003] FCA 418 at [11] ). 36 I again note the affidavit of Ms Waters which states that the Oodgeroo descendants are part of the Gonzales family group, one of 11 family groups forming the Quandamooka Claim group. QSNTS has submitted that there is no suggestion that the smaller family group, the Oodgeroo group, could establish particular rights and interests which the larger Quandamooka Claim group cannot. Further, I note the affidavits filed by Jonathon Patrick Malone sworn 23 January 2007 and Edward Ruska sworn 7 February 2007, who depose that they are members of the Noonukul of Minjerrabah and that they did not authorise the making of the Noonukul Application and were not advised of or involved in the process of authorisation.


case_text: As pointed out by Mansfield J in Landers 128 FCR at 504: "The proper identification of the native title claim group is the central focus or focal issue of a native title determination application. It is the native title claim group which provides authorisation under s 251B , and it is the group on whose behalf the claim is then pursued and, if successful, in whose favour a determination of native title is then made." (cf Briggs on behalf of the Gumbangirri People v Minister for Lands for the State of New South Wales [2004] FCA 1056 ; (2004) 141 FCR 17 at 25-26)


case_text: I agree with the submission of QSNTS that the group is not described sufficiently so as to allow one to ascertain whether any particular person is in that group: cf Dieri People v State of South Australia [2003] FCA 187 ; (2003) 127 FCR 364 at 379, Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31 at [1206] - [1225] ). Indeed, if anything, the descriptions of claimants provided in various places in the application are contradictory in that "the members of the family bloodline groups to the island of Minjerribah and the waters of Quandamooka" is clearly a larger group than the "identified descendants of Oodgeroo the Late Kath Walker". I note in this regard the affidavit of Ms Waters, consultant historian, sworn 24 January 2007, where she deposes that 11 family groups make up the Quandamooka Claim groups. 37 Accordingly in my view, and in circumstances where, despite the applicant's non-appearance in Court, the applicant has had an opportunity to put forward evidence in relation to this and other issues, I am satisfied that not only is there a lack of clarity as to the persons who make up the claim group, but that in any event the applicant was not authorised to make the application on behalf of such people of the claim group as have been identified. It therefore appears that the applicant is not authorised to make an application on behalf of all of the claim group. If the applicant represents a family subgroup which claims to hold native title, it is not the group which holds the common or group rights or interests within s 61 of the Act ( Risk v National Native Title Tribunal [2000] FCA 1589 at [60] , Dieri 127 FCR at 377, Hillig [2006] FCA 1115 at [60] ).


case_text: I agree with the submission of QSNTS that the group is not described sufficiently so as to allow one to ascertain whether any particular person is in that group: cf Dieri People v State of South Australia [2003] FCA 187 ; (2003) 127 FCR 364 at 379, Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31 at [1206] - [1225] ). Indeed, if anything, the descriptions of claimants provided in various places in the application are contradictory in that "the members of the family bloodline groups to the island of Minjerribah and the waters of Quandamooka" is clearly a larger group than the "identified descendants of Oodgeroo the Late Kath Walker". I note in this regard the affidavit of Ms Waters, consultant historian, sworn 24 January 2007, where she deposes that 11 family groups make up the Quandamooka Claim groups.


case_text: QSNTS submits that if the claim group has not been properly identified in accordance with s 61(4) , then it is not possible for the claim to be authorised in a manner which complies with ss 61 , 62 and s 251B , even if the requirements in s 251B are met. QSNTS cites Hillig as administrator of the Wormi Local Aboriginal Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 115 at [70] in support. 32 QSNTS further submits that in any event, the Noonukul Application does not meet the authorisation requirements of s 61(1) and s 251B. Indeed, QSNTS submit that there is simply no evidence presented that any type of authorisation process was followed to authorise the making of the Noonukul Application. 33 Part A s 2 of the Form 1 of the Native Title Act "Native Title Determination Application Claimant Application" provides for details about authorisation. The applicant asserts in that part of the Noonukul Application that: This Application has been authorised pursuant to s 251B(1)(a) of the Native Title Act 1993 ... The Applicant has been authorised to make this application for a claim over the determination area through Traditional Custom and Lore by the authority of the late Oodgeroo the late Kath Walker and carry out the business pertaining to it. 37 Accordingly in my view, and in circumstances where, despite the applicant's non-appearance in Court, the applicant has had an opportunity to put forward evidence in relation to this and other issues, I am satisfied that not only is there a lack of clarity as to the persons who make up the claim group, but that in any event the applicant was not authorised to make the application on behalf of such people of the claim group as have been identified. It therefore appears that the applicant is not authorised to make an application on behalf of all of the claim group. If the applicant represents a family subgroup which claims to hold native title, it is not the group which holds the common or group rights or interests within s 61 of the Act ( Risk v National Native Title Tribunal [2000] FCA 1589 at [60] , Dieri 127 FCR at 377, Hillig [2006] FCA 1115 at [60] ).


case_text: The cautious approach of the Court as described in Williams [2004] FCAFC 178 was more recently reaffirmed by the Full Court in Bodney 140 FCR at 89, where Stone J (with whom Spender and Branson JJ agreed on this point) said that notwithstanding the operation of s 84C in the context of native title applications, the Court approaches strike-out applications under this section in the same way as applications under O 20 r 2 Federal Court Rules (see also Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 at 497, Thomas v State of South Australia [2004] FCA 951 at [2] - [3] , McKenzie v State Government of South Australia (2005) 214 ALR 214 at 221). 26 As pointed out by Mansfield J in Landers 128 FCR at 504: "The proper identification of the native title claim group is the central focus or focal issue of a native title determination application. It is the native title claim group which provides authorisation under s 251B , and it is the group on whose behalf the claim is then pursued and, if successful, in whose favour a determination of native title is then made." (cf Briggs on behalf of the Gumbangirri People v Minister for Lands for the State of New South Wales [2004] FCA 1056 ; (2004) 141 FCR 17 at 25-26)


case_text: The cautious approach of the Court as described in Williams [2004] FCAFC 178 was more recently reaffirmed by the Full Court in Bodney 140 FCR at 89, where Stone J (with whom Spender and Branson JJ agreed on this point) said that notwithstanding the operation of s 84C in the context of native title applications, the Court approaches strike-out applications under this section in the same way as applications under O 20 r 2 Federal Court Rules (see also Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 at 497, Thomas v State of South Australia [2004] FCA 951 at [2] - [3] , McKenzie v State Government of South Australia (2005) 214 ALR 214 at 221).


case_text: Accordingly in my view, and in circumstances where, despite the applicant's non-appearance in Court, the applicant has had an opportunity to put forward evidence in relation to this and other issues, I am satisfied that not only is there a lack of clarity as to the persons who make up the claim group, but that in any event the applicant was not authorised to make the application on behalf of such people of the claim group as have been identified. It therefore appears that the applicant is not authorised to make an application on behalf of all of the claim group. If the applicant represents a family subgroup which claims to hold native title, it is not the group which holds the common or group rights or interests within s 61 of the Act ( Risk v National Native Title Tribunal [2000] FCA 1589 at [60] , Dieri 127 FCR at 377, Hillig [2006] FCA 1115 at [60] ).


case_title: Thomas v State of South Australia [2004] FCA 951


case_title: Williams v Grant [2004] FCAFC 178

case_text: Notwithstanding these distinctions, the Courts have tended to equate the consequences of strike-out under s 84C with those of summary dismissal under O 20 r 2. As observed by Lander J (North and Dowsett JJ agreeing) in Williams v Grant [2004] FCAFC 178: [48] Section 84C only applies to applications which do not comply with ss 61 , 61A and 62 . However, an application under s 84C, if successful, has the very serious consequence that the native title application is struck out. Such a result is akin to a court proceeding being summarily dismissed, or at least dismissed before any hearing on the merits. No court proceeding is summarily dismissed except in a very clear case: Dey v Victorian Railways Commissioner [1949] HCA 1 ; (1949) 78 CLR 62 at 91 per Dixon J; General Steel Industries Inc v Commissioner for Railways [1964] HCA 69 ; (1964) 112 CLR 125 at 129. [49] Applications for native title are brought by representatives of the native title claim group. The dismissal of an application because, for example, the applicant has not been authorised means the dismissal of the native title claim group's claim. The repercussions, therefore, are far reaching. I see no reason why an application to strike out a native title claim under s 84C should be treated any differently to any other application to dismiss a claim summarily. The power should be exercised sparingly and with caution, and only when the Court is satisfied that the moving party has made out a clear case that the applicant has not complied with the relevant section and cannot, by amending the application, comply. Section 84C assumes that a party might respond to a strike out application by amending the claim to comply with the requirements of the Act. A claim can be amended without obtaining leave. 18 The cautious approach of the Court as described in Williams [2004] FCAFC 178 was more recently reaffirmed by the Full Court in Bodney 140 FCR at 89, where Stone J (with whom Spender and Branson JJ agreed on this point) said that notwithstanding the operation of s 84C in the context of native title applications, the Court approaches strike-out applications under this section in the same way as applications under O 20 r 2 Federal Court Rules (see also Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 at 497, Thomas v State of South Australia [2004] FCA 951 at [2] - [3] , McKenzie v State Government of South Australia (2005) 214 ALR 214 at 221).


case_text: Observations concerning the meaning of effect of s 424A were made by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 81 ALJR 1190 , at 1195 1196, [15] [17]. In the joint judgment of Gleeson CJ and Gummow, Callinan, Heydon and Crennan JJ, one there finds the following in para 15: Section 424A does not require notice to be given of every matter the Tribunal might think relevant to the decision under review. Rather the Tribunal's obligation is limited to the written provision of "particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review". 9 And then in para 17: The "reason, or a part of the reason for affirming the decision that is under review" was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light it is difficult to see why the relevant passages in the appellant's statutory declaration would itself be "information that the Tribunal considers would be the reason, or part of the reason for, affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellant's claims to be persons to whom Australia owed protection obligations. 10 Appended to the protection visa application was a statement of the male Appellant. That statement provided the basis upon which a claim for a protection visa was made. It also provided, for the reason which I have already given, the basis upon which the Appellant's wife advanced her claim. The basis of the claim for a protection visa, as there made, was not enlarged upon in the proceedings of the Tribunal. That is because, though invited to attend at a hearing and present evidence, the Appellant and his wife did not take advantage of that opportunity. The Tribunal, then, as it was entitled to do under the Migration Act 1958 , decided the case on the basis of the material which it did have, and that material, in essence, was the statement to which I have referred.


case_text: In Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1292 , Gray J, after referring to Zhan , held (at [53]) that where any of the requirements of s 66(2) of the Act were not complied with, there was no "notification" with the result that time did not begin to run in respect of an application to the Migration Review Tribunal. The same reasoning must apply to a non-compliance with paras 501G(1)(c)-(f). In any event, the parties accepted that if I should uphold Mr Pomare's submission that the notice did not comply with subpara 501G(1)(f)(iv), the matter should be remitted to the Tribunal to be heard and determined in accordance with law.


case_text: In Zhan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 327 ; (2003) 128 FCR 469 ( Zhan ), Allsop J had to deal with an alleged failure of a written notice to comply with s 66(2) of the Act. That provision related to notification of a decision to refuse an application for a visa. In the circumstances, the notification was required to state where an application for review of the decision could be made (subpara 66(2)(d)(iv) of the Act). His Honour said (at [64]) that the purpose of such a statement was to give information as to where the applicant could "make the application", that is, "initiate it". His Honour's statement is consistent with my holding above. 28 In Zhan , the applicant was told that lodgement of documents had to be at "a registry of the Tribunal" and no address was given. A leaflet giving that information was not included with the letter. His Honour left open the possibility that identification of "registries" of the Tribunal in the telephone directory might have sufficed to supply the meaning of the expression "a registry of the Tribunal", but the fact was that the telephone directory did not specify that the address given in it was that of a "registry". Allsop J remarked (at [65]) that the address given in the telephone directory might have been the Tribunal's head office or the site of some other activity of the Tribunal. 29 The word "registry" assumed a special significance in Zhan because of its appearance in the letter a feature that is absent from the present case. In this respect Zhan is distinguishable. 30 Counsel for the Minister submits, correctly, that the facts of the present case are different from those in Zhan because the written notice in the present case did state "the Tribunal at GPO Box 9955". However, as noted earlier, the Minister correctly concedes that an application would not be received by the Tribunal and therefore would not be made to the Tribunal when it reached that address. If an applicant led evidence to support an inference that an application reached the nominated post office box, it would nonetheless be open to the Minister to defeat the application by proving that the application was not in fact received in the registry office of the Tribunal. 31 In Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1292 , Gray J, after referring to Zhan , held (at [53]) that where any of the requirements of s 66(2) of the Act were not complied with, there was no "notification" with the result that time did not begin to run in respect of an application to the Migration Review Tribunal. The same reasoning must apply to a non-compliance with paras 501G(1)(c)-(f). In any event, the parties accepted that if I should uphold Mr Pomare's submission that the notice did not comply with subpara 501G(1)(f)(iv), the matter should be remitted to the Tribunal to be heard and determined in accordance with law.


case_text: Thus, quite apart from Darrell Lea's criticisms, the Court is entitled, and indeed bound, to form its own views on the evidence, including, but by no means limited to, the opinions of the Cadbury experts. It was put that by choosing not to adduce any expert evidence, Darrell Lea "effectively accepts the (Cadbury) expert evidence" and that in accordance with Browne v Dunn "Darrell Lea is now estopped from making any submissions that the expert evidence is incorrect". I do not accept this submission. In Ancher, Mortlock, Murray & Wooley Pty Ltd v Hooker Homes Pty Ltd [1971] 2 NSWLR 278, a copyright infringement case concerning house plans, Street J said at 286: In view of the volume of expert evidence, and the differing views expressed by the expert witnesses, I should state the use that can properly be made of that evidence in reaching a decision in a suit such as this. The decision upon the issue of similarity is an original decision for the court itself. It is to be reached upon an assessment of such similarities and dissimilarities as appear to the court between the plans or buildings under consideration. The fact that one particular expert of the highest authority and of unimpeachable credit is permitted to swear to an opinion on similarity or dissimilarity does not relieve the court of the responsibility of forming its own opinion on this issue. In this sense the expert evidence in a suit such as the present fills a somewhat unusual role. It is almost as if each side calls an expert to argue out with counsel in examination-in-chief and cross-examination the similarity or dissimilarity which that particular expert sees between the plans and houses. By attending to the progress of this argumentative process between counsel and expert the court is enabled to perceive and more readily to appreciate the points of similarity and dissimilarity. In this way the tendering of expert evidence is of value in exposing the facets of the ultimate question to which the expert opinion evidence is directed. But the important point is that, in distinction from the judicial process in relation to expert evidence such as is normally encountered in litigation, a court in the present type of litigation is entitled, and, indeed, bound, to form and act on its own original opinion. His Honour's approach would seem to apply a fortiori in a case concerning the retail marketing of everyday consumer products.


case_text: As to the application of Browne v Dunn in modern commercial litigation, see also Australian Competition and Consumer Commission v J McPhee & Son (Australia) Pty Ltd (1998) ATPR (Digest) |P 46-183 at 50,323, approved on appeal: J McPhee & Son (Australia) Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 365 ; (2000) 172 ALR 532 at [103] - [107] .


case_outcome: discussed

case_title: Browne v Dunn (1893) 6 R 67

case_text: Cadbury submitted that if Darrell Lea wished to challenge or qualify the conclusions reached by the witness on the basis of different factual assumptions the Rule in Browne v Dunn (1893) 6 R 67 required the cross-examiner to ask the witness whether such matters resulted in any change to his opinion. 40 As well as Browne v Dunn itself, Cadbury cited in support of this proposition the decision of the Full Court in Bush v The Queen [1993] FCA 361 ; (1993) 43 FCR 549. That case concerned an appeal from a jury's conviction of the appellant for attempted murder of his second wife and murder of her lover. Evidence was given by a Mr Saulwick of a survey of persons in the Australian Capital Territory as to their knowledge of the appellant's conviction five years earlier of the manslaughter of his first wife and the effect any such knowledge would have on their opinion as to his likely guilt of a similar offence in relation to the second wife. This evidence was adduced in support of an application for leave to challenge jurors as to cause. There was discussion at 557 by Drummond J (with whom Davies and Miles JJ agreed) critical of the usefulness of the survey. In substance his Honour found it was not useful and not a sufficient basis for its conclusion that at least one member of the jury would have connected the appellant with the 1987 killing and, for that reason, would have found the appellant guilty of the 1992 offences. Davies J at 551-552 also gave reasons for his conclusion that the survey questions were "misconceived". Mr Saulwick was cross-examined. It may be that some matters relied on by their Honours were not put to him. For example, in making the point that the sample was drawn from ACT voters and not the more limited population of the ACT eligible for jury service Drummond J said at 557: "This may or may not affect Mr Saulwick's opinion". If anything, the case seems contrary to Cadbury's argument. In any event, Browne v Dunn is not mentioned. 41 In Raben Footwear Pty Ltd v Polygram Records Inc (1997) 145 ALR 1 Tamberlin J discussed the application of the Rule in Browne v Dunn in the context of a copyright infringement case where one issue was whether a Mr Ron Lewy had, as he claimed, spoken by telephone to a German company and received certain assurances about copyright arrangements in Australia in respect of CDs which Mr Lewy's company was about to import. The trial judge had not accepted that the words were said. In the Full Court Tamberlin J said at 14-15: The submission made to this court is that because it was not specifically and expressly put to Mr Ron Lewy, in cross-examination, that the statement was not made, the rule of professional practice enunciated in Browne v Dunn (1893) 6 R 67 was breached and therefore the evidence should have been ignored or the matter reopened. The failure by his Honour to address the point was said to amount to procedural unfairness. Counsel referred to a number of decisions including Payless Superbarn (NSW) Pty Ltd v O'Gara (1990) 19 NSWLR 551 at 554 7. Ultimately, the rule in Browne v Dunn is one of procedural fairness. Whether his Honour should have taken any action in relation to the failure to put the disputed words called for the exercise of a discretionary judgment on his part. As Hunt J has pointed out, in Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1 at 26 7; (1983) 44 ALR 607 , the rule is designed to ensure fairness to the witness so as to enable the witness to deal with the disputed matter and perhaps to give further evidence in corroboration or to contradict any inference which may be sought to be drawn. See also Dolan v Australian & Overseas Telecommunications Corp [1993] FCA 202 ; (1993) 42 FCR 206 at 207 8; [1993] FCA 202 ; 114 ALR 231 ; Marelic v Comcare [1993] FCA 599 ; (1993) 121 ALR 114 at 119 20. It is common ground that it was not expressly put to Mr Ron Lewy that the words were not said. In commercial litigation (including intellectual property matters), where issues are clearly defined, there will often be no point in formally challenging every aspect of the evidence which is contested. There will often be a large number of matters in respect of which it will be apparent from the pleadings and particulars there is clearly a contest. Where this is the case the principle need not be applied in an unduly technical way. After discussing the evidence, his Honour continued: The rule may be satisfied where the witness is on notice that the version given is disputed and such notice may come from pleadings, the opponent's evidence or opening, or from the general manner in which the case is conducted. 42 Likewise in Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 at 236 Mahoney JA said: ...failure to cross-examine a witness may not found such an assumption or render the course of the trial unfair if it is clear from the manner in which generally the case has been conducted that his evidence will be contested. This was pointed out by Lord Herschell ([in Browne v Dunn] at 71). The nature of the defendant's case and the particulars given, and otherwise the conduct of it may make it sufficiently clear that such an assumption is unwarranted and that there has been no surprise or prejudice concerning the matter. 43 As to the application of Browne v Dunn in modern commercial litigation, see also Australian Competition and Consumer Commission v J McPhee & Son (Australia) Pty Ltd (1998) ATPR (Digest) |P 46-183 at 50,323, approved on appeal: J McPhee & Son (Australia) Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 365 ; (2000) 172 ALR 532 at [103] - [107] . 51 Thus, quite apart from Darrell Lea's criticisms, the Court is entitled, and indeed bound, to form its own views on the evidence, including, but by no means limited to, the opinions of the Cadbury experts. It was put that by choosing not to adduce any expert evidence, Darrell Lea "effectively accepts the (Cadbury) expert evidence" and that in accordance with Browne v Dunn "Darrell Lea is now estopped from making any submissions that the expert evidence is incorrect". I do not accept this submission. In Ancher, Mortlock, Murray & Wooley Pty Ltd v Hooker Homes Pty Ltd [1971] 2 NSWLR 278, a copyright infringement case concerning house plans, Street J said at 286: In view of the volume of expert evidence, and the differing views expressed by the expert witnesses, I should state the use that can properly be made of that evidence in reaching a decision in a suit such as this. The decision upon the issue of similarity is an original decision for the court itself. It is to be reached upon an assessment of such similarities and dissimilarities as appear to the court between the plans or buildings under consideration. The fact that one particular expert of the highest authority and of unimpeachable credit is permitted to swear to an opinion on similarity or dissimilarity does not relieve the court of the responsibility of forming its own opinion on this issue. In this sense the expert evidence in a suit such as the present fills a somewhat unusual role. It is almost as if each side calls an expert to argue out with counsel in examination-in-chief and cross-examination the similarity or dissimilarity which that particular expert sees between the plans and houses. By attending to the progress of this argumentative process between counsel and expert the court is enabled to perceive and more readily to appreciate the points of similarity and dissimilarity. In this way the tendering of expert evidence is of value in exposing the facets of the ultimate question to which the expert opinion evidence is directed. But the important point is that, in distinction from the judicial process in relation to expert evidence such as is normally encountered in litigation, a court in the present type of litigation is entitled, and, indeed, bound, to form and act on its own original opinion. His Honour's approach would seem to apply a fortiori in a case concerning the retail marketing of everyday consumer products.


case_text: As well as Browne v Dunn itself, Cadbury cited in support of this proposition the decision of the Full Court in Bush v The Queen [1993] FCA 361 ; (1993) 43 FCR 549. That case concerned an appeal from a jury's conviction of the appellant for attempted murder of his second wife and murder of her lover. Evidence was given by a Mr Saulwick of a survey of persons in the Australian Capital Territory as to their knowledge of the appellant's conviction five years earlier of the manslaughter of his first wife and the effect any such knowledge would have on their opinion as to his likely guilt of a similar offence in relation to the second wife. This evidence was adduced in support of an application for leave to challenge jurors as to cause. There was discussion at 557 by Drummond J (with whom Davies and Miles JJ agreed) critical of the usefulness of the survey. In substance his Honour found it was not useful and not a sufficient basis for its conclusion that at least one member of the jury would have connected the appellant with the 1987 killing and, for that reason, would have found the appellant guilty of the 1992 offences. Davies J at 551-552 also gave reasons for his conclusion that the survey questions were "misconceived". Mr Saulwick was cross-examined. It may be that some matters relied on by their Honours were not put to him. For example, in making the point that the sample was drawn from ACT voters and not the more limited population of the ACT eligible for jury service Drummond J said at 557: "This may or may not affect Mr Saulwick's opinion". If anything, the case seems contrary to Cadbury's argument. In any event, Browne v Dunn is not mentioned.


case_text: Cadbury applied to the High Court for special leave to appeal against the Full Court's remission of the matter to the primary judge. The application was refused: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] HCATrans 468.


case_text: After hearing further argument the Full Court made orders in relation to costs of the appeal: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 3) [2007] FCAFC 119 ( Full Court III ). The Full Court ordered that Darrell Lea pay Cadbury's costs other than its costs of and associated with grounds 1-14 inclusive, 17 and 18 of the amended notice of appeal, and that Cadbury pay Darrell Lea's costs of and associated with those grounds. 7 Their Honours in Full Court III noted at [8] that at the hearing of the appeal some grounds of the amended notice of appeal were abandoned by Cadbury, namely grounds 3, 4, 5, 6, 8, 13, 14, 17 and 18, and that grounds 1, 2, 7, 9, 10, 11 and 12, which raised challenges to substantive findings of the trial judge, were pressed only formally at the hearing of the appeal and were rejected by the Court. 8 On the further hearing Cadbury called its three experts and they were cross-examined by senior counsel for Darrell Lea. Darrell Lea had filed an affidavit by an expert in the same area, a Mr Hall, but did not read his affidavit. 9 Against that background, an initial question has been raised as to the findings made in the earlier judgment under the heading Summary of Findings at [95] to [112] as follows (I have added cross-references indicating grounds in Cadbury's amended notice of appeal which challenge the finding or seek a different finding on the same topic): 95 The evidence warrants the following findings. 96 There is wide awareness amongst Australian consumers of the use by Cadbury of a dark purple colour (i) in connection with the marketing, packaging and presentation of certain chocolate products particularly Cadbury Dairy Milk and other block milk chocolate products, and (ii) as a corporate colour. [Grounds 1, 2] 97 Cadbury does not have an exclusive reputation in the use of this dark purple colour in connection with chocolate. Other traders have, with Cadbury's knowledge, for many years used a similar shade of purple. Cadbury has not consistently enforced its alleged exclusive reputation. In relation to its chief competitor Nestlé, Cadbury has, for its own commercial reasons, permitted a use of purple in relation to popular chocolate products. [Grounds 1, 2] 98 Cadbury markets many chocolate products which have little or no purple in their packaging. 99 Cadbury products, regardless of the presence or absence of purple in the packaging, always bear the Cadbury name in a distinctive script. [Ground 2] 100 Cadbury's use of purple in marketing advertising and promotion is, and is seen by consumers to be, inextricably bound up with the well known name Cadbury in its distinctive script. Cadbury never uses the colour purple in isolation as an indicium of trade. [Ground 2] 101 Cadbury products, with insignificant exceptions, are not sold at retail level at premises owned or occupied by Cadbury. [Grounds 6, 7, 8] 102 Cadbury's marketing of chocolate heavily emphasises specific products and in particular Cadbury Dairy Milk block chocolate. [Ground 8] 103 Darrell Lea is a name well known in connection with chocolate in those parts of Australia where it operates, even though not as well known as Cadbury. [Ground 10] 104 The names Darrell Lea and Cadbury are quite distinct in sound and appearance (especially with the respective scripts the parties have adopted) and not likely to be mistaken for each other. [Grounds 10, 11, 12] 105 Darrell has since at least Christmas 2000 used in its marketing, packaging, promotion and point of sale presentation a purple colour much like that used by Cadbury. There has been particular use at Christmas 2000 to 2004 inclusive and also uses at other times. Such usage has diminished and purple has been to a significant extent replaced by blue since 2004. [Ground 12] 106 Darrell Lea did not adopt the colour purple with the intention of leading consumers to believe its products were Cadbury products or that it, or its products, had some kind of association with Cadbury. [Grounds 3, 4, 5] 107 Most of Darrell Lea's retailing occurs in premises which it owns or occupies. Other retailing occurs from separate stands or displays in retail premises, such as newsagents, pharmacies, convenience stores and video stores. Darrell Lea has only a minor presence in supermarkets and only, in the past, to a very limited and transient extent in the major chains. Its products are not presented for sale in close proximity to Cadbury's. [Grounds 6, 7, 8] 108 Darrell Lea's marketing gives less emphasis to particular products than does Cadbury. [Grounds 8, 10, 11, 12] 109 Darrell Lea does not sell moulded block chocolate. [Grounds 10, 11, 12] 110 Darrell Lea uses its name in a distinctive script widely and consistently in marketing, packaging and point of sale presentation. [Grounds 10, 11, 12] 111 Colour recognition or attraction can play an important part in consumer decisions to purchase chocolate. [Ground 9] 112 Consumer decisions to purchase chocolate are often made quickly and on impulse but not necessarily irrationally. Price and brand recognition can play an important part. [Ground 9] 10 After analysing Cadbury's case I reached the following conclusions (again, references to the grounds in the amended notice of appeal are inserted): 121 The findings above lead to these conclusions. Cadbury and Darrell Lea are competitors in the retail chocolate market, yet they each have distinctive product lines which are sold from different sorts of premises under distinctive trade names. [Grounds 8, 9, 10, 11, 12] They have distinct identities in the market place. [Grounds 11, 12] Cadbury does not own the colour purple and does not have an exclusive reputation in purple in connection with chocolate. Darrell Lea is entitled to use purple, or any other colour, as long as it does not convey to the reasonable consumer the idea that it or its products have some connection with Cadbury. I am not satisfied that this has occurred, or is likely to occur.


case_text: Cadbury brought a motion to the Full Court seeking an order that the previous order remitting the matter to the trial judge for further hearing be varied to provide that the matter be remitted to the trial judge for a new trial: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 2) [2007] FCAFC 102 ( Full Court II ). In rejecting Cadbury's motion the Full Court said: 4 We do not understand Cadbury to be suggesting that an order remitting the matter to the primary judge for a further hearing was not open to the Court. Cadbury's motion appears to have been prompted by a directions hearing before the primary judge on 12 June 2007 during which his Honour indicated his understanding that the effect of the Full Court's order was that there would be a further hearing at which the excluded evidence would be adduced, but that that would be the extent of the further hearing. It would seem that that was not Cadbury's understanding of the effect of the Full Court's order of 21 May 2007. 5 It is clear that Cadbury sought a new trial as part of the relief claimed in the appeal. On the hearing of the appeal, one of the issues was whether, even if there had been an error on the part of the primary judge in excluding evidence there was nevertheless no miscarriage of justice and the orders made by the primary judge should therefore stand. The Full Court rejected that contention. The Court concluded that it could not be said that the disputed evidence was of so little weight that it could not influence the result of a new trial, so as to produce a different result (at [111]). 6 However, the Court did not consider that a new trial was justified. Rather, the Court was of the view that justice would be served by a further hearing before the primary judge, at which Cadbury would have another opportunity of adducing the disputed evidence. 7 The proceeding was remitted on the basis that it would be before the primary judge as though the case were part heard. Thus, it would be a matter for the primary judge to determine the extent to which, after entertaining all proper objections and making rulings on such objections, additional or further evidence should be admitted. That may have the consequence that Darrell Lea would seek to adduce its own evidence in response to the disputed evidence. 8 We indicated in our reasons (at [110]) that, if proper objections were taken to the disputed evidence at the further hearing and the evidence was rejected, it would be open to the primary judge to allow Cadbury to elicit further evidence to overcome the objections. That would be an aspect of the management of the further hearing by the primary judge in the same way as it would have been had his Honour not rejected the disputed evidence in its entirety. That is to say, it would be for counsel for Darrell Lea to make such objections to the admissibility of the disputed evidence on formal grounds as they may consider appropriate. If, in the exercise of his discretion, the primary judge were to permit Cadbury the opportunity of adducing further evidence to overcome any objections, that would be a matter entirely for his Honour at the further hearing. 9 It is conceivable that, after hearing proper objections from Darrell Lea, none of the disputed evidence will be admitted. We do not, by that comment, indicate any view about the outcome of any objections one way or the other, except to the extent that we indicated the principles to be applied in our reasons of 21 May 2007. It is, of course, conceivable, and we make no comment one way or the other as to whether it is likely, that is Honour would still reject the disputed evidence under s 135 of the Evidence Act . That is entirely a matter for the primary judge. 10 Further, there would be no reason why the primary judge should entertain any contention that he should reverse earlier rulings made by him that were not in any way dependant upon the rejection of the disputed evidence. His Honour should be in a position to conduct the further hearing as though he had admitted such of the disputed evidence as his Honour finds to be admissible after considering appropriate objections. 11 In so far as we referred to "a further trial" (at [129]) or "the new trial judge" (at [130]) we should be understood as having referred to a further hearing by the primary judge along those lines. As we said (at [114]): In the circumstances, there is no reason why the proceeding should not be remitted to the primary judge for further hearing. Of course, if the primary judge were prepared to entertain a submission that he would not be able to bring an open mind to the resolution of the proceeding in the light of his Honour's earlier rulings both on the disputed evidence and in the final decision, it would be a matter for his Honour to decide whether he considered it was appropriate for the proceeding to be referred to another judge for a retrial ab initio. 12 Similarly, if the primary judge were persuaded that the conduct of the hearing to date was such that the admission of any part of the disputed evidence that his Honour was disposed to admit would cause injustice, it would be a matter for his Honour as to whether the trial should, for that reason, be aborted. The primary judge should be regarded as being in the same position as he would have been in had he not made the ruling of 31 March 2006. It is clear from the context that the term "rulings" in [10] is a reference to rulings on evidence and procedure and not substantive findings, as to which see [11]-[12] below.


case_text: I found in favour of Darrell Lea: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) [2006] FCA 446 ; (2006) 69 IPR 23 (the earlier judgment). Subsequently the Full Court upheld Cadbury's appeal on the ground that I had wrongly excluded evidence sought to be adduced by Cadbury from three expert witnesses, Dr Brian Gibbs, Dr Constantino Stavros and Mr Timothy Riches (collectively, the Cadbury experts): Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCAFC 70 ; (2007) 72 IPR 261 ( Full Court I ).


case_title: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) [2006] FCA 446 ; (2006) 69 IPR 23


case_text: The evidence of the Cadbury experts had been excluded ( Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 at [8] - [18] ) on the ground that an expert's opinion is not admissible as to matters within the experience and knowledge of a judge or jury ( The Queen v Turner [1975] QB 834 at 841, Murphy v The Queen [1989] HCA 28 ; (1989) 167 CLR 94 at 111) and specifically in relation to "ordinary human nature, that of people at large" ( Transport Publishing Co Pty Ltd v The Literature Board of Review (1956) 99 CLR 111 at 119) such as purchasers of everyday consumer items ( Dalgety Spillers Foods Ltd v Food Brokers Ltd [1994] FSR 504 at 527, Symonds Cider & English Wine Company Ltd v Showerings (Ireland) Ltd [1997] IEHC 1 at [20] ); see also JD Heydon Cross on Evidence (7 th Australian ed, 2004) at 930.


case_text: Nevertheless s 80 of the Evidence Act deals only with the admissibility of evidence. It does not affect the approach to particular kinds of evidence in particular categories of cases. In Cat Media Pty Ltd v Opti-Healthcare Pty Ltd [2003] FCA 133 at [55] in the context of a s 52 and passing off case (and well after the introduction of the Evidence Act ), Branson J, after noting that both sides had called evidence of marketing consultants which was received without objection, said: However, I consider it appropriate to record that in the particular circumstances of this case, which is concerned with the packaging of a product intended to appeal to a wide segment of the general public, I have found the expert evidence of no real assistance. This is not only because there is, as is common in cases of this kind, conflict between the evidence of the two experts. It seems to me that evidence of opinions based on market research and expert appreciation of consumer behaviour will rarely be of assistance in litigation where the Court's primary concern is with the behaviour to be expected of, and the judgments likely to be made by, ordinary (even if it might be thought, somewhat credulous) members of the community intent on making a relatively modest purchase in a conventional way. I endorse the comment of Beaumont J in Pacific Publications Pty Ltd v IPC Media Pty Ltd [2003] FCA 104 at [92] that where a claim is essentially a matter for the Court's impression, expert views which are merely 'impressionistic' can be given no more than nominal weight. These observations are not intended in any way to belittle the importance of market research and expert appreciation of consumer behaviour in other types of cases and for other purposes.


case_title: Dalgety Spillers Foods Ltd v Food Brokers Ltd [1994] FSR 504