case_text: The extent to which the respondent is subject to s 46 TPA is a threshold issue in these proceedings. As was explained by McHugh ACJ, Gummow, Callinan and Heydon JJ in NT Power Generation Pty Ltd v Power and Water Authority [2004] HCA 48 ; (2004) 219 CLR 90 at 116-117: • while the conduct proscribed by the TPA, if it is to fall within s 2B, must be engaged in in the course of the entity carrying on a business, the conduct need not itself be the actual business engaged in • had s 2B not been enacted, the impugned conduct would not be examinable in circumstances where the entity is the Crown in right of a State or Territory • rather than examining specific conduct and then examining whether that contravention can be described as carrying on a business (as was unsuccessfully argued in NT Power [2004] HCA 48 ; 219 CLR 90), the correct approach is to first ascertain whether the entity "carries on a business". As the majority explained in NT Power [2004] HCA 48 ; 219 CLR 90, it is necessary to do this because: "this removes the governmental obstacle to curial examination of its conduct in order to see whether section 46 has been contravened." (at 117) 49 As was also observed by the majority in NT Power [2004] HCA 48 ; 219 CLR 90, it is also important not to substitute the question of defining markets for the question of whether a business is being carried on (at 117). Their Honours pointed out: "However, the words 'market' and 'business' have distinct meanings. Nothing in the Act limits the meaning of 'business' by reference to the criteria for market definition. Businesses often operate across the boundaries of separate markets... All these considerations militate against any approach to the question of 'carrying on a business' by reference to competition in a market... The only question is: what business was [the entity] carrying on? So far as it was carrying on a business, s 46 applied to it." (219 CLR at 118) 50 Prima facie , s 46 applies only to corporations, defined by s 4 TPA to mean bodies corporate that are: (a) foreign corporations (b) trading corporations formed within the limits of Australia or are financial corporations so formed (c) incorporated in a Territory or (d) are holding companies of bodies corporate of a kind referred to in paras (a), (b) or (c). 51 Clearly the respondent is not a corporation. However Pt 1 TPA makes provision for the extended application of certain parts of the Act. Of particular relevance in these proceedings is s 2B TPA. This section provides: (1) The following provisions of this Act bind the Crown in right of each of the States, of the Northern Territory and of the Australian Capital Territory, so far as the Crown carries on a business, either directly or by an authority of the State or Territory: (a) Part IV (aa) Part VB (b) Part XIB (c) the other provisions of this Act so far as they relate to the above provisions. (2) Nothing in this Act renders the Crown in right of a State or Territory liable to a pecuniary penalty or to be prosecuted for an offence. (3) The protection in subsection (2) does not apply to an authority of a State or Territory. 52 Section 46 is found in Pt IV TPA. However the extended application only operates if the Crown in right of the relevant State or Territory is carrying on a business, either directly or by an authority of the State of Territory. As is clear from such cases as NT Power 219 CLR (particularly at 116) and Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2007) 237 ALR 512 (particularly at 526-527), this condition is strictly applied. 55 Although the phrase "carries on a business" appears in a number of provisions of the TPA including s 2B, it is not defined in the Act. However it has received consideration by Courts to the extent that a number of principles have emerged which are of relevance in this case. They are as follows: 1. "Business" in the context of s 2B is normally a "wide and general" word: Gibbs CJ in Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd [1982] HCA 23 ; (1982) 150 CLR 169 at 184, McHugh ACJ, Gummow, Callinan and Heydon JJ in NT Power 219 CLR at 116. Its meaning in the TPA is widened by s 4(1), since "business" includes "a business not carried on for profit": NT Power 219 CLR at 116. 2. The phrase "carries on a business" should be interpreted in light of the purpose of Parliament in introducing s 2B and related legislation, which was to ensure that "with state and territory application legislation, the prohibitions against anti-competitive conduct can be applied to all businesses in Australia." (Australia, House of Representatives, Parliamentary Debates (Hansard) 30 June 1995, p 2794). 3. Subject to a statutory qualification as to not for profit businesses, in the context of the TPA, "carrying on a business" is intended to refer to activities undertaken in a commercial enterprise or as a going concern: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50 ; (2003) 128 FCR 1 at 303, Corrections Corporation of Australia Pty Ltd v Commonwealth [2000] FCA 1280 ; (2000) 104 FCR 448 at 451. 4. An act of government, whether directly or through an authority, which is merely the carrying out of the functions of government in the performance of its statutory duty, is unlikely to be characterised as "carrying on a business": Village Building Company Limited v Canberra International Airport Pty Limited (No 2) [2004] FCA 133 at [90] . So, for example, the issue of certificates by a municipal council with respect to a real property pursuant to the Environmental Planning and Assessment Act 1979 (NSW) was not "carrying on a business" ( Mid Density Development Pty Ltd v Rockdale Municipal Council (1992) 39 FCR 579), nor was operating a detention centre ( Corrections Corporation of Australia [2000] FCA 1280 ; 104 FCR 448), nor were the activities of the New South Wales Department of Agriculture in acquiring cattle in endeavours to eradicate Bovine Johne's Disease, providing compensation to farmers for cattle slaughter, and reselling the carcases to recoup some of the funds: State of New South Wales v RT & YE Falls Investments Pty Ltd [2003] NSWCA 54 ; (2003) 57 NSWLR 1. However, activities for reward which are those which could be performed by any citizen or private trader potentially constitutes "carrying on a business". Examples of this are Paramedical Services Pty Ltd v The Ambulance Service of New South Wales [1999] FCA 548 where the Ambulance Service of New South Wales supplied, for reward, ambulance services at sporting events and first aid training, and JS McMillan v Commonwealth (1997) 77 FCR 337 where the Commonwealth in its guise as AGPS provided general printing services, dispatch and distribution services, graphic design services and editorial services. 5. Mere repetitiveness is not sufficient to constitute carrying on of a business; further, although system and regularity are involved in the carrying on of the business it does not necessarily follow that one who has transactions of the same kind systematically or regularly is carrying on a business in those transactions: JS McMillan 77 FCR at 354, GEC Marconi Systems 128 FCR at 303, Sirway Asia Pacific Pty Ltd v Commonwealth of Australia [2002] FCA 1152 at [53] . 120 The role of the port authority in Stirling Harbour [2007] FCA 1381and the Federal Airports Corporation in Plume [1997] 1019 FCA can be contrasted with the role of the respondent in its supply of Collected Data to the applicant and the other licensees, namely that of a wholesaler of information on commercial terms dictated by the respondent, in an environment where the respondent was also a supplier of data in the Retail Market. While the regulatory power of the respondent to collect data and enter licence agreements clearly assisted its commercial position in entering such agreements (cf comments of the majority in NT Power 219 CLR at 142) the conduct of the respondent in withdrawing the Excluded Data but continuing to supply other data on commercial terms was a market, rather than a regulatory, issue. 133 Section 46(1)(a) contemplates circumstances where an entity, through its substantial degree of market power in a market, takes advantage of that power for the purpose of eliminating or substantially damaging another entity which is its competitor in another market. This is plain from the terms of the section itself, and follows, for example, from observations of McHugh ACJ, Gummow, Callinan and Heydon JJ in NT Power at 219 CLR at 114-115, 145. Accordingly, the respondent would have acted in breach of s 46(1)(a) TPA if it took advantage of its power in the Wholesale Market for the purpose of eliminating or substantially damaging the applicant in the Retail Market, if the applicant was a competitor of the respondent in that Retail Market. 134 The applicant conceded that there was no direct evidence that the respondent's purpose was to substantially damage the applicant in the Retail Market. The applicant invited the court to draw the inference that this was the purpose of the respondent, and referred in particular to the change in the products to be offered by removal of the Excluded Data, and the simultaneous change in pricing under the proposed fees structure. In summary, the applicant contended: • The applicant has substantial market share in the Retail Market. • The respondent is a competitor of the applicant in the Retail Market. • The removal of the Excluded Data will make the applicant's products less attractive to its existing customers in comparison to the existing offerings of the applicant. • The result of a proposed licence fee incorporating a royalty would result in a licence fee payable by the applicant to the respondent in excess of $1 million in contrast with the current flat fee, which proposal has not been adequately explained. The respondent did not produce one document evidencing the way in which the pricing for either the access fee or the royalty fee was worked up for these particular products. • The removal of the Excluded Data was allegedly precipitated by complaints concerning direct marketing activities by real estate agents, but this does not explain the basis of the particular pricing provisions. • In any event, the respondent's witnesses exaggerated the number and account of complaints concerning direct marketing activities by real estate agents, and in fact the number of complaints received was minor (a total of 139 written complaints discovered between 1997 and 2006), which would not justify substantial overhaul to contractual arrangements in place since 1992. 135 In summary the respondent submitted: • The evidence is overwhelming that the only purpose of the respondent in implementing its proposals concerning the Excluded Data and the pricing structure was to prevent the misuse of the Excluded Data for direct marketing. • There is no evidence that the respondent had the purpose of substantially damaging the applicant in the Retail Market. • For s 46(1)(a) TPA to apply the applicant and the respondent must be competitors in a market, and the only market in which the applicant alleges it competes with the respondent is the Retail Market: para 6 of the amended statement of claim. • The applicant and the respondent are not competitors in the Retail Market. There are substantial differences between the data offerings to end users made by the applicant and the respondent, namely: o the respondent offers three products to end users based on the Collected Data: Fry affidavit para 4(a) and annexure WBF-1 o the applicant offers a much greater range of products: Matthews affidavit, RP Data's Information Memorandum pp 23-32, and Williams expert report at paras 83, 85 and Figure 1 o the applicant does not see the respondent as a competitor: RP Data's Information Memorandum pp 14, 15 and 17, and comments of Mr Catelan (TS p 57 ll 40) o evidence of Mr Rush indicates that the respondent has no plans to offer integrated data services of the kind offered by the applicant (TS pp 304-305, p 306 ll 12-2-, p 310 ll 25-35 and 40 and p 312 ll 15-20). • There is no evidence that the proposal is part of some grand conspiracy by the respondent to "get back" at the applicant. • In 1997 the respondent was encouraging more licensees to come into the Retail Market and reduced its fees to allow that to occur. The unchallenged evidence is that all licensees were treated equally. • Mr Fry deposed that he had told the applicant that if it did not agree to the new licence conditions and refused to enter into a licence agreement, it would not be able to receive licensed data after 30 June 2005, and deposed further that this would also apply to the other seven licensees. Was the respondent a "competitor" of the applicant in the Retail Market?


case_outcome: distinguished

case_text: Although the phrase "carries on a business" appears in a number of provisions of the TPA including s 2B, it is not defined in the Act. However it has received consideration by Courts to the extent that a number of principles have emerged which are of relevance in this case. They are as follows: 1. "Business" in the context of s 2B is normally a "wide and general" word: Gibbs CJ in Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd [1982] HCA 23 ; (1982) 150 CLR 169 at 184, McHugh ACJ, Gummow, Callinan and Heydon JJ in NT Power 219 CLR at 116. Its meaning in the TPA is widened by s 4(1), since "business" includes "a business not carried on for profit": NT Power 219 CLR at 116. 2. The phrase "carries on a business" should be interpreted in light of the purpose of Parliament in introducing s 2B and related legislation, which was to ensure that "with state and territory application legislation, the prohibitions against anti-competitive conduct can be applied to all businesses in Australia." (Australia, House of Representatives, Parliamentary Debates (Hansard) 30 June 1995, p 2794). 3. Subject to a statutory qualification as to not for profit businesses, in the context of the TPA, "carrying on a business" is intended to refer to activities undertaken in a commercial enterprise or as a going concern: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50 ; (2003) 128 FCR 1 at 303, Corrections Corporation of Australia Pty Ltd v Commonwealth [2000] FCA 1280 ; (2000) 104 FCR 448 at 451. 4. An act of government, whether directly or through an authority, which is merely the carrying out of the functions of government in the performance of its statutory duty, is unlikely to be characterised as "carrying on a business": Village Building Company Limited v Canberra International Airport Pty Limited (No 2) [2004] FCA 133 at [90] . So, for example, the issue of certificates by a municipal council with respect to a real property pursuant to the Environmental Planning and Assessment Act 1979 (NSW) was not "carrying on a business" ( Mid Density Development Pty Ltd v Rockdale Municipal Council (1992) 39 FCR 579), nor was operating a detention centre ( Corrections Corporation of Australia [2000] FCA 1280 ; 104 FCR 448), nor were the activities of the New South Wales Department of Agriculture in acquiring cattle in endeavours to eradicate Bovine Johne's Disease, providing compensation to farmers for cattle slaughter, and reselling the carcases to recoup some of the funds: State of New South Wales v RT & YE Falls Investments Pty Ltd [2003] NSWCA 54 ; (2003) 57 NSWLR 1. However, activities for reward which are those which could be performed by any citizen or private trader potentially constitutes "carrying on a business". Examples of this are Paramedical Services Pty Ltd v The Ambulance Service of New South Wales [1999] FCA 548 where the Ambulance Service of New South Wales supplied, for reward, ambulance services at sporting events and first aid training, and JS McMillan v Commonwealth (1997) 77 FCR 337 where the Commonwealth in its guise as AGPS provided general printing services, dispatch and distribution services, graphic design services and editorial services. 5. Mere repetitiveness is not sufficient to constitute carrying on of a business; further, although system and regularity are involved in the carrying on of the business it does not necessarily follow that one who has transactions of the same kind systematically or regularly is carrying on a business in those transactions: JS McMillan 77 FCR at 354, GEC Marconi Systems 128 FCR at 303, Sirway Asia Pacific Pty Ltd v Commonwealth of Australia [2002] FCA 1152 at [53] . 60 It follows that, in my view, the supply of data by the respondent in response to individual searches is not, as was the case in Paramedical Services [1999] FCA 548 or JS McMillan 77 FCR 337, an activity for reward which could be performed by any citizen or private trader, and thus potentially "carrying on a business" by the respondent.


case_outcome: cited

case_text: First, while I accept that, as a result of the respondent's proposal, the applicant will not be able to continue to provide services to its customers which include the Excluded Data, and that this may impact upon the business of the applicant as claimed in para 9(b) of the amended statement of claim, the applicant must demonstrate more than this effect to show that the purpose of the respondent's conduct was in breach of s 46(1)(c). As pointed out by Lee J in NT Power Generation v Power & Water Authority [2002] FCAFC 302 at [17] , although the effect of conduct may, in some circumstances, explain or reveal the purpose of the conduct, the inference may be negated by other material relevant to the issue of purpose (cf Photo-Continental Pty Ltd v Sony (Australia) Pty Ltd (1995) ATPR 41-372 at 40,122-40,123). It is the purposeful conduct of the contravening corporation that attracts the operation of s 46(1)(c): Baxter Healthcare 237 ALR at 519.


case_text: Finally, in my view the power used by the respondent in withdrawing the Excluded Data from supply was not regulatory power, but market power. I have already found that, although the collection of data by the respondent was pursuant to statutory obligations, the supply of Collected Data by the respondent to the applicant and the other licensees was in the course of carrying on a business by the respondent. In my view this case is distinguishable from Stirling Harbour [2000] FCA 1381 and Plume v Federal Airports Corporation [1997] 1019 FCA where the Court found that relevant entity was exercising regulatory authority rather than market power: • In Stirling Harbour [2007] FCA 1381 , the function of the port authority under the relevant statute was to arrange for port services to be provided, including towage, and did so by tender. The Full Court in that case was satisfied that the port authority had assumed the role of a market regulator. • Similarly in Plume [1997] 1019 FCA, the court was satisfied that the conduct of the Federal Airports Corporation was properly characterised as use of a regulatory power designed for the benefit of the members of the public who had occasion to use the facilities of the airport at Alice Springs. 120 The role of the port authority in Stirling Harbour [2007] FCA 1381and the Federal Airports Corporation in Plume [1997] 1019 FCA can be contrasted with the role of the respondent in its supply of Collected Data to the applicant and the other licensees, namely that of a wholesaler of information on commercial terms dictated by the respondent, in an environment where the respondent was also a supplier of data in the Retail Market. While the regulatory power of the respondent to collect data and enter licence agreements clearly assisted its commercial position in entering such agreements (cf comments of the majority in NT Power 219 CLR at 142) the conduct of the respondent in withdrawing the Excluded Data but continuing to supply other data on commercial terms was a market, rather than a regulatory, issue.


case_text: Section 46(1)(c) must be read in the context of the policy objective sought to be achieved by the TPA. As pointed out by Gleeson CJ, Gummow, Hayne and Callinan JJ in Melway 205 CLR at 13). "Section 46 aims to promote competition, not the private interests of particular persons or corporations." (cf Boral 215 CLR 373 per Gleeson CJ and Callinan J at 411, Gaudron, Gummow and Hayne JJ at 429, McHugh J at 458-459; Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ in Baxter Healthcare 237 ALR at 535, Rural Press [2002] FCAFC 213 at [139] , Universal Music 131 FCR at 585, and the discussion of Professor Corones at pp 34-37). It follows that the conduct of a person which the corporation or other entity with the substantial degree of market power seeks to affect must be conduct in the nature of competition in a market. Like s 46(1)(a), the breadth of application of s 46(1)(c) is such that it does not need to be the market in which the respondent is a participant (cf Merkel J in Robert Hicks Pty Ltd (t/as Auto Fashions Australia) v Melway Publishing Pty Ltd (1998) 42 IPR 627 at 643, Toohey J in Ross Payne & Co v Western Australian Lamb Marketing Board unreported, Federal Court of Australia, 3 August 1983, Wilcox J in Pont Data Australia Pty Ltd v ASX Operations Pty Ltd (1990) 93 ALR 523 at 555). Accordingly, it is within the scope of s 46(1)(c) that a corporation or entity with a substantial degree of market power in the Wholesale Market could breach s 46(1)(c) because, inter alia , its purpose was to deter or prevent the a person from engaging in competitive conduct in the Retail Market.


case_outcome: applied

case_text: The necessity for competition to exist before a "market" is constituted was emphasised in Boral Besser Masonry Ltd v Australian Competition and Consumer Commission [2003] HCA 5 ; (2003) 215 CLR 374. As Gleeson CJ and Callinan J observed: "A market is an area of close competition; a field of rivalry. As the passage from Re Queensland Co-Operative Milling Association Ltd quoted above indicates, and as s 46(3) recognises, both the supply side and the demand side are relevant to an assessment of the market. It does not solve, but merely re-states, the problem to speak of sub-markets. There may be a wider, and a narrower, area of rivalry; but, if the narrowest area itself constitutes a market, then it is power and conduct in that area that must be examined." (at 422-423) (cf Deane J in Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd [1989] HCA 6 ; (1989) 167 CLR 177 at 195) 75 The notion of "market power" in the sense of capacity to act in a manner unconstrained by the conduct of competitors has been the subject of frequent judicial consideration. The leading case in this context is Queensland Wire [1989] HCA 6 ; 167 CLR 177. Usefully, Lockhart J in Dowling v Dalgety Australia Ltd (1992) 34 FCR 109 at 138 summarised from the judgment of Mason CJ and Wilson J in Queensland Wire 167 CLR at 188-190 the following factors as relevant in defining and identifying market power: "(a) "the ability of a firm to raise prices above the supply cost without rivals taking away customers in due time, supply cost being the minimum cost an efficient firm would incur in producing the product"; (b) "the extent to which the conduct of [any of the respondents] in that market is constrained by the conduct of...competitors or potential competitors..." (s 46(3)); (c) market share of each respondent must be examined but this alone is generally not determinative of market power as "the relative effect of percentage command of a market varies with the setting in which that factor is placed" (Mason CJ and Wilson J adopted the language of Reed J in United States v Columbia Steel Co (1948) 334 US 495 at 528); (d) the presence of vertical integration is another factor, but its presence does not necessarily mean that a substantial degree of power exists; and (e) to what extent is it rational or possible for new entrants to enter the relevant market? That is to say, what are the barriers to entry? It is this factor which must be taken as the primary consideration in determining market power. See also the judgment of the Full Court of this court in Arnotts Ltd v Trade Practices Commission at FCR 336 9." 76 Further in Queensland Wire 167 CLR at 200, Dawson J observed: "The term 'market power' is ordinarily taken to be a reference to the power to raise price by restricting output in a sustainable manner... But market power has aspects other than influence upon the market price. It may be manifested by practices directed at excluding competition such as exclusive dealing, tying arrangements, predatory pricing or refusal to deal... The ability to engage persistently in these practices may be as indicative of market power as the ability to influence prices. Thus Kaysen and Turner define market power as follows: 'A firm possesses market power when it can behave persistently in a manner different from the behaviour that a competitive market would enforce on a firm facing otherwise similar cost and demand conditions.' (Kaysen and Turner, Antitrust Policy (1959) p 75) ... Market power is thus the advantage which flows from monopoly or near monopoly..." 77 The comments of his Honour were adopted by Gleeson CJ, Gummow, Hayne and Callinan JJ in Melway Publishing Pty Ltd v Robert Hicks Pty Ltd [2001] HCA 13 ; (2001) 205 CLR 1 at 21 and 27, where their Honours said: "As Dawson J explained, in Queensland Wire , market power means capacity to behave in a certain way (which might include setting prices, granting or refusing supply, arranging systems of distribution), persistently, free from the constraints of competition..." (at 27) 88 However, with respect there is little material presented before me upon which I can find that the respondent does have a substantial degree of market power in the Retail Market. In particular, I note the following: • In the Joint Expert Statement of Areas of Agreement and Disagreement, the expert witnesses for both parties agreed that, because of the respondent's substantial degree of market power in the Wholesale Market, "it is able to substantially influence patterns of competition in the Retail Market". The respondent points out however, that the experts do not say that the respondent has a "substantial degree of market power" in the Retail Market. This is in contrast with their agreement as the respondent's substantial degree of power in the Wholesale Market. Indeed Mr Williams gave evidence at the hearing that he was not an expert in the Retail Market (TS p 88 ll 40-42) and that he had not put his mind to whether the applicant had a substantial degree of power in the Retail Market (TS p 78 ll 3-4). • Conduct in a wholesale market which in turn affects levels of competition in a "downstream" retail market is a relatively common phenomenon, and issues relevant to this phenomenon have been considered in this court, for example, in the context of claims of alleged anti-competitive conduct in Pt XIB TPA ( Telstra Corporation Limited v Australian Competition and Consumer Commission (No 2) [2007] FCA 493) , in relation to claims for access to services under Pt IIIA TPA ( Sydney Airport Corporation Limited v Australian Competition Tribunal [2006] FCAFC 146) , and in the context of acquisitions claimed to result in a substantial lessening of competition ( Australian Gas Light Company (ACN 052 167 405) v Australian Competition & Consumer Commission (No 3) [2003] FCA 1525). However, the ability of an entity to "substantially influence patterns of competition" in a retail market because of its market power in a wholesale market, as agreed by the experts, is not, in my view, necessarily tantamount to "a substantial degree of market power" in the Retail Market or even, as submitted by the respondent, "market power" within the meaning of the s 46 TPA. • As I have already noted, the activities of the applicant and the respondent in the Retail Market are quite different, supplying different services to different customers. It is not in contention before me that there is "a" Retail Market in which both the applicant and the respondent are supplying information. However, whereas it is clear that the respondent supplies base data to members of the general public who pay the prescribed statutory fee and makes available its SmartMap product, it is also clear that the applicant offers a much greater range of sophisticated products to a different customer base, namely parties who are prepared to subscribe to the applicant's services, as distinct from any members of the public who seek information over the counter. It is also apparent from the evidence before me that the applicant does not view the respondent as a significant competitor in its area of the Retail Market (RP Data Information Memorandum Document 1 pp 14, 15; evidence of Mr Catelan TS p 57 ll 37-42). In this respect, the "market power" of the respondent in the Retail Market, viewed in light of its activities in this broad Retail Market, is not obvious. Even if the respondent had market power in its area of the Retail Market in respect of its supply of raw data to end-users, it has not been demonstrated that such market power extends throughout the entire Retail Market as was the subject of consideration by the Full Court in Singapore Airlines Limited v Tabropane Tours WA Pty Ltd (1991) 33 FCR 158. • I note the submission of Mr Hinson SC for the respondent that the evidence fell short of establishing that the respondent had any market power let along any substantial degree of market power in the Retail Market. Further, I note that, notwithstanding para 7 of the amended statement of claim, Mr Hinson SC also submitted and this was not contested by Mr Jackson QC at the hearing that the respondent did not understand the applicant's case to assert that the respondent had a substantial degree of power in the Retail Market (note TS p 370 ll 12-17). • I also note that: o despite a number of oral submissions in his opening statement (TS p 2 ll 1-14, p 7 ll 19-23), Mr Jackson QC for the applicant did not subsequently press the claim that the respondent had a substantial degree of power in the Retail Market o Mr Jackson QC, in his written submissions concerning the issue of power in the Retail Market, confines the position of the applicant to the agreed position of the experts, and does not specifically submit that the respondent has a substantial degree of power in the Retail Market. • I have carefully reviewed the transcript and after submissions in the opening statement, I can identify no subsequent submissions made on behalf of the applicant that the respondent had a substantial degree of power in the Retail Market. • As pointed out in Queensland Wire , the existence of market power is identifiable by reference to factors including pricing, barriers to entry, market share. However in this case I note, for example, that: a. no evidence is lead as to the impact on prices in the Retail Market of conduct of the respondent b. although the entry of retailers into the market appears dependent upon their ability to obtain a licence from the respondent, there is no evidence before me as the extent to which this is a barrier to market entry by retailers c. no evidence is lead as to market share (if any) in the Retail Market held by the respondent. 95 So for example, in Queensland Wire [1989] HCA 6 ; 167 CLR 177 Deane J held that the identification of the proscribed purpose in that case led directly to the conclusion that BHP was taking advantage of its market power, because the nature of the purpose was such that, in the circumstances of that case, it could not have been achieved by the conduct impugned had it not been for the existence of the market power ( Queensland Wire 167 CLR at 197-198, Melway 205 CLR at 17). The majority in Melway at 18 also noted comments of Scalia J in the Supreme Court of the United States when his Honour said: "Where a defendant maintains substantial market power, his activities are examined through a special lens: Behavior that might otherwise not be of concern to the antitrust laws or that might even be viewed as procompetitive can take on exclusionary connotations when practiced by a monopolist." ( Eastman Kodak Co v Image Technical Services Inc (1992) 504 US 451 at 488) 97 However as was pointed by the High Court in Queensland Wire [1989] HCA 6 ; 167 CLR 177, and subsequently reiterated by the majority of the High Court in Melway 205 CLR at 17, "take advantage of" does not mean anything materially different from "use" and does not require conduct which is predatory or morally blameworthy: per Mason CJ and Wilson J at 191, Deane J at 194, Dawson J at 198, Toohey J at 212-214 (cf also the Full Court in Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 at [137] ). In terms of s 46 it does, however, entail an analysis of actions in the context of a competitive environment, and identification of a determinative approach in the entity with the substantial market power to achieve an outcome proscribed by s 46. So, as Heerey J said in ACCC v Boral Ltd (1999) 166 ALR 410 (at 440), subsequently approved by the majority of the High Court in Boral Besser [2003] HCA 5 ; 215 CLR 374 (at 434): "If the impugned conduct has a business rationale, that is a factor pointing against any finding that conduct constitutes a taking advantage of market power. If a firm with no substantial degree of market power would engage in certain conduct as a matter of commercial judgment, it would ordinarily follow that a firm with market power which engages in the same conduct is not taking advantage of its power." 118 Fourth, I do not accept as material the distinction drawn by the respondent between the facts of this case and other refusal to supply cases such as Melway [2001] HCA 13 ; 205 CLR 1 and Queensland Wire [1989] HCA 6 ; 167 CLR 177, in that in those cases there was a refusal to supply one of several acquirers of goods and services. Whether or not all licensees were being treated equally in this case is not germane to the issue of whether the respondent, for reasons of its own, was taking advantage of its market power. (Whether it is relevant to purpose is a different question, which I shall consider shortly). In, for example, a hypothetical situation where a wholesale supplier formulated a strategy of itself entering the retail market and as part of that strategy informed its customers who were retailers in that retail market of its decision to henceforth refuse supply of its products, the fact that all retailers were equally disadvantaged does not mean that the wholesale supplier has not taken advantage of its market power. 121 Irrespective whether the respondent has taken advantage of its substantial degree of market power in the Wholesale Market, as a matter of law it will only be in breach of s 46 if it has done so for a purpose proscribed by s 46(1). That this is so is demonstrated by the unambiguous terms of s 46(1) , and decisions in Australia at the highest level confirming this principle (for example Queensland Wire [1989] HCA 6 ; 167 CLR 177, Melway 205 CLR at 22). 123 In relation to identifying the "purpose" of the respondent, as illustrated by the cases listed in Miller's Annotated Trade Practices Act 28th edition para 1.46.65, the weight of authority indicates that the relevant purpose is to be identified on the basis of a subjective test rather than objectively, although purpose may be established by inference from the conduct of the respondent (s 46(7)). As Toohey J observed in Queensland Wire 167 CLR, the reference to "for the purpose of" carries with it the notion of an intent to achieve the result spoken of in each of the paragraphs in s 46(1) (at CLR 214). I note that the subjective nature of the relevant intent was also endorsed by the High Court in Boral Besser 215 CLR at 484. 161 Second, in my view the "purpose" of the respondent, which as Toohey J observed in Queensland Wire [1989] HCA 6 ; 167 CLR 177 carries with it the notion of an intent to achieve a certain result, was to prevent the Excluded Data being used for direct marketing. The clear inference which can be drawn from the conduct of the respondent is that, despite publicly expressed concerns of the respondent concerning usage of its data for direct marketing, and although the licensees were required by the licence agreement between themselves and the respondent to ensure that end users had agreed not to use the data or data products supplied by the licensees for direct marketing, nonetheless end users (primarily some real estate agents) were engaging in direct marketing using data sourced originally from the respondent. I note that the possibility of the Excluded Data being withdrawn because of inappropriate use by end users had been anticipated by cl 9.11 of the 2003 licence agreement which provided: "The Licensor reserves the right to exclude future supply of certain particulars forming part of the Licensed Data if the Chief Executive of the Licensor is satisfied on reasonable grounds, that inclusion of the data may result in inappropriate use or disclosure. Furthermore the Licensor may prohibit or limit distribution of certain particulars forming part of the Licensed Data." 162 It is because of the respondent's view that Excluded Data was being misused for direct marketing that the respondent formulated its proposal to exclude the Excluded Data from the Collected Data it supplied the applicant and the other licensees. Excluded Data could still be obtained from the respondent, because the respondent was statutorily obliged to supply it. One obvious result of end users obtaining Excluded Data on the basis of individual searches is that the cost and process of so obtaining that information is a clear disincentive to direct marketing activities, which is compatible with the stated purpose of the respondent. 163 Third, the applicant made a number of claims in the amended statement of claim concerning the alleged intention of the respondent to harm the applicant. I make the following observations: • In relation to the claim of the applicant that the respondent had an intention to harm and prevent the applicant competing in the market place by offering another party, Infopac, favourable terms in order to compete with the applicant (amended statement of claim para 10(b)(i)(B)(I)), no evidence is produced other than that of Mr Catelan in his affidavit, referring to alleged statements of Mr Witt in 1998. I note that these statements were allegedly made almost 10 years ago, and appear to bear little relationship to the complaint before me. Further, I note that Mr Witt was not cross-examined in relation to these statements, nor did any other person who could give direct evidence as to such an offer give evidence. I also note Mr Oakley was cross-examined in relation to a letter from Infopac received by him in 1998 (pp 278-279) however there was no substantiation that the respondent had sought to cause harm to the applicant in connection with an contractual relationship between the respondent and Infopac. I therefore give no weight to this aspect of the claim. • Similarly Mr Witt was not cross-examined concerning the allegations of the applicant with respect to Mr Edwards and Residex (amended statement of claim para 10(b)(i)(B)(II)). No evidence was given by Mr Edwards, and Mr Edwards did not appear as a witness in these proceedings. I also give no weight to this aspect of the claim. • In relation to the claim of the applicant that on 4 February 2005 Mr Fry and Mr Oakley said to Ms Jane Woodward of the applicant that if the applicant did not agree to the new licence conditions the applicant would not receive any Collected Data in the future, I note that: o Mr Fry stated in para 28 of his affidavit that what occurred was that "I said that if RP Data did not agree to the new licence conditions and refused to enter into a licence agreement then RP Data would not be able to receive licensed data after 30 June 2005. This would apply to the other seven licensees." Mr Fry was not cross-examined with respect to this statement. o Ms Woodward gave no evidence in these proceedings. o It is clear from the evidence of Mr Fry that all licensees were being treated in the same way, and this evidence does not establish a breach of s 46 as alleged.


case_title: Robert Hicks Pty Ltd (t/as Auto Fashions Australia) v Melway Publishing Pty Ltd (1998) 42 IPR 627


case_title: Ross Payne & Co v Western Australian Lamb Marketing Board unreported, Toohey J, 3 August 1983


case_text: However as was pointed by the High Court in Queensland Wire [1989] HCA 6 ; 167 CLR 177, and subsequently reiterated by the majority of the High Court in Melway 205 CLR at 17, "take advantage of" does not mean anything materially different from "use" and does not require conduct which is predatory or morally blameworthy: per Mason CJ and Wilson J at 191, Deane J at 194, Dawson J at 198, Toohey J at 212-214 (cf also the Full Court in Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 at [137] ). In terms of s 46 it does, however, entail an analysis of actions in the context of a competitive environment, and identification of a determinative approach in the entity with the substantial market power to achieve an outcome proscribed by s 46. So, as Heerey J said in ACCC v Boral Ltd (1999) 166 ALR 410 (at 440), subsequently approved by the majority of the High Court in Boral Besser [2003] HCA 5 ; 215 CLR 374 (at 434): "If the impugned conduct has a business rationale, that is a factor pointing against any finding that conduct constitutes a taking advantage of market power. If a firm with no substantial degree of market power would engage in certain conduct as a matter of commercial judgment, it would ordinarily follow that a firm with market power which engages in the same conduct is not taking advantage of its power." 158 Section 46(1)(c) must be read in the context of the policy objective sought to be achieved by the TPA. As pointed out by Gleeson CJ, Gummow, Hayne and Callinan JJ in Melway 205 CLR at 13). "Section 46 aims to promote competition, not the private interests of particular persons or corporations." (cf Boral 215 CLR 373 per Gleeson CJ and Callinan J at 411, Gaudron, Gummow and Hayne JJ at 429, McHugh J at 458-459; Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ in Baxter Healthcare 237 ALR at 535, Rural Press [2002] FCAFC 213 at [139] , Universal Music 131 FCR at 585, and the discussion of Professor Corones at pp 34-37). It follows that the conduct of a person which the corporation or other entity with the substantial degree of market power seeks to affect must be conduct in the nature of competition in a market. Like s 46(1)(a), the breadth of application of s 46(1)(c) is such that it does not need to be the market in which the respondent is a participant (cf Merkel J in Robert Hicks Pty Ltd (t/as Auto Fashions Australia) v Melway Publishing Pty Ltd (1998) 42 IPR 627 at 643, Toohey J in Ross Payne & Co v Western Australian Lamb Marketing Board unreported, Federal Court of Australia, 3 August 1983, Wilcox J in Pont Data Australia Pty Ltd v ASX Operations Pty Ltd (1990) 93 ALR 523 at 555). Accordingly, it is within the scope of s 46(1)(c) that a corporation or entity with a substantial degree of market power in the Wholesale Market could breach s 46(1)(c) because, inter alia , its purpose was to deter or prevent the a person from engaging in competitive conduct in the Retail Market.


case_text: However, with respect there is little material presented before me upon which I can find that the respondent does have a substantial degree of market power in the Retail Market. In particular, I note the following: • In the Joint Expert Statement of Areas of Agreement and Disagreement, the expert witnesses for both parties agreed that, because of the respondent's substantial degree of market power in the Wholesale Market, "it is able to substantially influence patterns of competition in the Retail Market". The respondent points out however, that the experts do not say that the respondent has a "substantial degree of market power" in the Retail Market. This is in contrast with their agreement as the respondent's substantial degree of power in the Wholesale Market. Indeed Mr Williams gave evidence at the hearing that he was not an expert in the Retail Market (TS p 88 ll 40-42) and that he had not put his mind to whether the applicant had a substantial degree of power in the Retail Market (TS p 78 ll 3-4). • Conduct in a wholesale market which in turn affects levels of competition in a "downstream" retail market is a relatively common phenomenon, and issues relevant to this phenomenon have been considered in this court, for example, in the context of claims of alleged anti-competitive conduct in Pt XIB TPA ( Telstra Corporation Limited v Australian Competition and Consumer Commission (No 2) [2007] FCA 493) , in relation to claims for access to services under Pt IIIA TPA ( Sydney Airport Corporation Limited v Australian Competition Tribunal [2006] FCAFC 146) , and in the context of acquisitions claimed to result in a substantial lessening of competition ( Australian Gas Light Company (ACN 052 167 405) v Australian Competition & Consumer Commission (No 3) [2003] FCA 1525). However, the ability of an entity to "substantially influence patterns of competition" in a retail market because of its market power in a wholesale market, as agreed by the experts, is not, in my view, necessarily tantamount to "a substantial degree of market power" in the Retail Market or even, as submitted by the respondent, "market power" within the meaning of the s 46 TPA. • As I have already noted, the activities of the applicant and the respondent in the Retail Market are quite different, supplying different services to different customers. It is not in contention before me that there is "a" Retail Market in which both the applicant and the respondent are supplying information. However, whereas it is clear that the respondent supplies base data to members of the general public who pay the prescribed statutory fee and makes available its SmartMap product, it is also clear that the applicant offers a much greater range of sophisticated products to a different customer base, namely parties who are prepared to subscribe to the applicant's services, as distinct from any members of the public who seek information over the counter. It is also apparent from the evidence before me that the applicant does not view the respondent as a significant competitor in its area of the Retail Market (RP Data Information Memorandum Document 1 pp 14, 15; evidence of Mr Catelan TS p 57 ll 37-42). In this respect, the "market power" of the respondent in the Retail Market, viewed in light of its activities in this broad Retail Market, is not obvious. Even if the respondent had market power in its area of the Retail Market in respect of its supply of raw data to end-users, it has not been demonstrated that such market power extends throughout the entire Retail Market as was the subject of consideration by the Full Court in Singapore Airlines Limited v Tabropane Tours WA Pty Ltd (1991) 33 FCR 158. • I note the submission of Mr Hinson SC for the respondent that the evidence fell short of establishing that the respondent had any market power let along any substantial degree of market power in the Retail Market. Further, I note that, notwithstanding para 7 of the amended statement of claim, Mr Hinson SC also submitted and this was not contested by Mr Jackson QC at the hearing that the respondent did not understand the applicant's case to assert that the respondent had a substantial degree of power in the Retail Market (note TS p 370 ll 12-17). • I also note that: o despite a number of oral submissions in his opening statement (TS p 2 ll 1-14, p 7 ll 19-23), Mr Jackson QC for the applicant did not subsequently press the claim that the respondent had a substantial degree of power in the Retail Market o Mr Jackson QC, in his written submissions concerning the issue of power in the Retail Market, confines the position of the applicant to the agreed position of the experts, and does not specifically submit that the respondent has a substantial degree of power in the Retail Market. • I have carefully reviewed the transcript and after submissions in the opening statement, I can identify no subsequent submissions made on behalf of the applicant that the respondent had a substantial degree of power in the Retail Market. • As pointed out in Queensland Wire , the existence of market power is identifiable by reference to factors including pricing, barriers to entry, market share. However in this case I note, for example, that: a. no evidence is lead as to the impact on prices in the Retail Market of conduct of the respondent b. although the entry of retailers into the market appears dependent upon their ability to obtain a licence from the respondent, there is no evidence before me as the extent to which this is a barrier to market entry by retailers c. no evidence is lead as to market share (if any) in the Retail Market held by the respondent.


case_text: Although the phrase "carries on a business" appears in a number of provisions of the TPA including s 2B, it is not defined in the Act. However it has received consideration by Courts to the extent that a number of principles have emerged which are of relevance in this case. They are as follows: 1. "Business" in the context of s 2B is normally a "wide and general" word: Gibbs CJ in Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd [1982] HCA 23 ; (1982) 150 CLR 169 at 184, McHugh ACJ, Gummow, Callinan and Heydon JJ in NT Power 219 CLR at 116. Its meaning in the TPA is widened by s 4(1), since "business" includes "a business not carried on for profit": NT Power 219 CLR at 116. 2. The phrase "carries on a business" should be interpreted in light of the purpose of Parliament in introducing s 2B and related legislation, which was to ensure that "with state and territory application legislation, the prohibitions against anti-competitive conduct can be applied to all businesses in Australia." (Australia, House of Representatives, Parliamentary Debates (Hansard) 30 June 1995, p 2794). 3. Subject to a statutory qualification as to not for profit businesses, in the context of the TPA, "carrying on a business" is intended to refer to activities undertaken in a commercial enterprise or as a going concern: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50 ; (2003) 128 FCR 1 at 303, Corrections Corporation of Australia Pty Ltd v Commonwealth [2000] FCA 1280 ; (2000) 104 FCR 448 at 451. 4. An act of government, whether directly or through an authority, which is merely the carrying out of the functions of government in the performance of its statutory duty, is unlikely to be characterised as "carrying on a business": Village Building Company Limited v Canberra International Airport Pty Limited (No 2) [2004] FCA 133 at [90] . So, for example, the issue of certificates by a municipal council with respect to a real property pursuant to the Environmental Planning and Assessment Act 1979 (NSW) was not "carrying on a business" ( Mid Density Development Pty Ltd v Rockdale Municipal Council (1992) 39 FCR 579), nor was operating a detention centre ( Corrections Corporation of Australia [2000] FCA 1280 ; 104 FCR 448), nor were the activities of the New South Wales Department of Agriculture in acquiring cattle in endeavours to eradicate Bovine Johne's Disease, providing compensation to farmers for cattle slaughter, and reselling the carcases to recoup some of the funds: State of New South Wales v RT & YE Falls Investments Pty Ltd [2003] NSWCA 54 ; (2003) 57 NSWLR 1. However, activities for reward which are those which could be performed by any citizen or private trader potentially constitutes "carrying on a business". Examples of this are Paramedical Services Pty Ltd v The Ambulance Service of New South Wales [1999] FCA 548 where the Ambulance Service of New South Wales supplied, for reward, ambulance services at sporting events and first aid training, and JS McMillan v Commonwealth (1997) 77 FCR 337 where the Commonwealth in its guise as AGPS provided general printing services, dispatch and distribution services, graphic design services and editorial services. 5. Mere repetitiveness is not sufficient to constitute carrying on of a business; further, although system and regularity are involved in the carrying on of the business it does not necessarily follow that one who has transactions of the same kind systematically or regularly is carrying on a business in those transactions: JS McMillan 77 FCR at 354, GEC Marconi Systems 128 FCR at 303, Sirway Asia Pacific Pty Ltd v Commonwealth of Australia [2002] FCA 1152 at [53] .


case_text: The onus of proof is on the applicant to show that the impugned conduct of the respondent had the proscribed anti-competitive effect: Sodastream Limited v Electronics (Broken Hill) Pty Limited (1985) 60 ALR 427 at 430; John S Hayes and Associates Pty Limited v Kimberly-Clark Australia Pty Limited (1994) ATPR |P41-318 at 42,237, Stirling Harbour Services Pty Limited v Bunbury Port Authority [2000] FCA 1381 at [13] . 90 I make this point particularly in light of the onus of proof which rests on the applicant to demonstrate that the impugned conduct breaches s 46 ( Sodastream Limited v Electronics (Broken Hill) Pty Limited (1985) 60 ALR 427 at 430; John S Hayes and Associates Pty Limited v Kimberly-Clark Australia Pty Limited (1994) ATPR |P41-318 at 42,237, Stirling Harbour [2000] FCA 1381 at [13] .)


case_title: State of New South Wales v RT & YE Falls Investments Pty Ltd [2003] NSWCA 54 ; (2003) 57 NSWLR 1


case_text: The onus of proof is on the applicant to show that the impugned conduct of the respondent had the proscribed anti-competitive effect: Sodastream Limited v Electronics (Broken Hill) Pty Limited (1985) 60 ALR 427 at 430; John S Hayes and Associates Pty Limited v Kimberly-Clark Australia Pty Limited (1994) ATPR |P41-318 at 42,237, Stirling Harbour Services Pty Limited v Bunbury Port Authority [2000] FCA 1381 at [13] . 90 I make this point particularly in light of the onus of proof which rests on the applicant to demonstrate that the impugned conduct breaches s 46 ( Sodastream Limited v Electronics (Broken Hill) Pty Limited (1985) 60 ALR 427 at 430; John S Hayes and Associates Pty Limited v Kimberly-Clark Australia Pty Limited (1994) ATPR |P41-318 at 42,237, Stirling Harbour [2000] FCA 1381 at [13] .) 119 Finally, in my view the power used by the respondent in withdrawing the Excluded Data from supply was not regulatory power, but market power. I have already found that, although the collection of data by the respondent was pursuant to statutory obligations, the supply of Collected Data by the respondent to the applicant and the other licensees was in the course of carrying on a business by the respondent. In my view this case is distinguishable from Stirling Harbour [2000] FCA 1381 and Plume v Federal Airports Corporation [1997] 1019 FCA where the Court found that relevant entity was exercising regulatory authority rather than market power: • In Stirling Harbour [2007] FCA 1381 , the function of the port authority under the relevant statute was to arrange for port services to be provided, including towage, and did so by tender. The Full Court in that case was satisfied that the port authority had assumed the role of a market regulator. • Similarly in Plume [1997] 1019 FCA, the court was satisfied that the conduct of the Federal Airports Corporation was properly characterised as use of a regulatory power designed for the benefit of the members of the public who had occasion to use the facilities of the airport at Alice Springs. 120 The role of the port authority in Stirling Harbour [2007] FCA 1381and the Federal Airports Corporation in Plume [1997] 1019 FCA can be contrasted with the role of the respondent in its supply of Collected Data to the applicant and the other licensees, namely that of a wholesaler of information on commercial terms dictated by the respondent, in an environment where the respondent was also a supplier of data in the Retail Market. While the regulatory power of the respondent to collect data and enter licence agreements clearly assisted its commercial position in entering such agreements (cf comments of the majority in NT Power 219 CLR at 142) the conduct of the respondent in withdrawing the Excluded Data but continuing to supply other data on commercial terms was a market, rather than a regulatory, issue.


case_title: Sydney Airport Corporation Limited v Australian Competition Tribunal [2006] FCAFC 146


case_text: Similarly, the Privy Council in Telecom Corporation of New Zealand Ltd v Clear Communications Ltd (1995) 1 NZLR 385 at 402 observed that use and purpose, though separate requirements, will not be easily separated. 147 While in some cases where an entity has used its dominant position it may, as the Privy Council said in Telecom Corporation of New Zealand Ltd [1995] 1 NZLR at 402 be hard to imagine a case in which it would have done so otherwise than for the purpose of producing an anti-competitive effect, and it will legitimate for a court to infer from the respondent's use of its dominant position that its purpose was to produce the effect in fact produced, the respondent in this case is a government department under the direction of a State government Minister which, while engaged in supply of data for revenue, is also required to take into account broader community interests. In my view it is not difficult to accept that the public interest to ensure that its data base is not misused for direct marketing purposes is what has motivated the respondent to act in this case. 148 Third, from the consistent evidence of the respondent's witnesses it could not be inferred that changes to the respondent's pricing structure were implemented for the purpose of eliminating or damaging the applicant as a competitor. The respondent's proposal was implemented in relation to all licensees, not only the applicant and in accordance with a Department wide approach. One possible explanation for this development is that the respondent was seeking to eliminate all possible competition in the Retail Market, including that posed by the applicant. However it is inconsistent with a deliberate attack on the applicant specifically as a competitor. 149 Fourth, according to evidence of Mr Witt, the current licence fees are considerably lower than they were in the late 1990s when the applicant paid $600,000 upfront plus $50,000 per month for five years for its licence (affidavit of Mr Witt para 13). The applicant currently pays $158,749 per annum in licence fees, and under the proposed new licence the applicant would pay a maximum of $158,749 comprising licence fees and a capped royalty fee (Witt affidavit para 13, Oakley affidavit para 27). The proposal of the respondent meant, at least in the foreseeable future, that the licensees would not pay more under the proposed licence than they were paying under the current arrangement (oral evidence of Mr Oakley TS p 279 ll 34-45), although clearly without receiving the Excluded Data, which is a key aspect of the applicant's complaint.


case_title: Telstra Corporation Limited v Australian Competition and Consumer Commission (No 2) [2007] FCA 493


case_text: The notion of "market power" in the sense of capacity to act in a manner unconstrained by the conduct of competitors has been the subject of frequent judicial consideration. The leading case in this context is Queensland Wire [1989] HCA 6 ; 167 CLR 177. Usefully, Lockhart J in Dowling v Dalgety Australia Ltd (1992) 34 FCR 109 at 138 summarised from the judgment of Mason CJ and Wilson J in Queensland Wire 167 CLR at 188-190 the following factors as relevant in defining and identifying market power: "(a) "the ability of a firm to raise prices above the supply cost without rivals taking away customers in due time, supply cost being the minimum cost an efficient firm would incur in producing the product"; (b) "the extent to which the conduct of [any of the respondents] in that market is constrained by the conduct of...competitors or potential competitors..." (s 46(3)); (c) market share of each respondent must be examined but this alone is generally not determinative of market power as "the relative effect of percentage command of a market varies with the setting in which that factor is placed" (Mason CJ and Wilson J adopted the language of Reed J in United States v Columbia Steel Co (1948) 334 US 495 at 528); (d) the presence of vertical integration is another factor, but its presence does not necessarily mean that a substantial degree of power exists; and (e) to what extent is it rational or possible for new entrants to enter the relevant market? That is to say, what are the barriers to entry? It is this factor which must be taken as the primary consideration in determining market power. See also the judgment of the Full Court of this court in Arnotts Ltd v Trade Practices Commission at FCR 336 9."


case_title: Village Building Company Limited v Canberra International Airport Pty Limited (No 2) [2004] FCA 133


case_text: Finally, with respect to potential issues of prejudice to the respondents, whether relating to privilege or otherwise, I emphasise that: the issue of the subpoena does not at this stage produce any prejudice to the [respondents]. If the [applicants], after leave is granted and the subpoena is answered, decide[s] to seek to bring any documents from that yield to the Court, then the Court will need to be addressed on any issue that might prejudice the [respondents]. Calder v Commissioner of Taxation [2004] FCA 1770 at [11] . To the extent that the subpoena yields documents said to be problematic for one reason or another, those problems can be dealt with in due course. 19 For the foregoing reasons, leave to issue the subpoena will be granted. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon. Associate: Dated: 26 June 2008 Counsel for the Applicants: Mr AJ Ryan SC and SM Rebikoff Solicitor for the Applicants: Mallesons Stephen Jaques Counsel for the Applicants: Mr C Golvan SC Solicitor for the Applicants: Middletons Date of Hearing: 12 June 2008 Date of Written Submissions: 19 June 2008 Date of Judgment: 26 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/969.html


case_text: Secondly, the ACC is not presumably ignorant of the dispute in light of the prior correspondence. Thirdly, it is not being asked to form a judgment as to potential relevance of documents; it is simply being asked to produce documents as to which it has already formed a judgment regarding relevance (ie the documents referred to in the 1 May letter). Because it appears from the correspondence that the ACC has already reviewed and identified the relevant documents, I consider that the documents are identified with "reasonable particularity": Commissioner for Railways v Small (1938) SR (NSW) 564 at 573. Indeed, the ACC does not appear to make any complaint regarding undue burden or oppression.


case_text: The Court has power to refuse to grant leave to issue or to set aside a subpoena: O 27A and O 27 of the Federal Court Rules . It is well established that a subpoena must be issued for a legitimate forensic purpose: NSW Commissioner of Police v Tuxford [2002] NSWCA 139 at [20] . A subpoena will be refused unless the documents sought to be produced "on their face, have some potential relevance to the issues in dispute between the parties": Dunstan v Human Rights and Equal Opportunity Commission [2004] FCA 1137 at [29] . Subpoenas may be issued to non-parties provided that they specify with reasonable particularity the documents which are required to be produced: P Dawson Nominees Pty Ltd v Multiplex Pty Ltd (2007) 64 ACSR 53 at [24].


case_text: With respect to the remainder of the respondents' objections, I note: (1) that some of the documents requested may not be relevant in the end does not matter - the standard is potential, not actual, relevance; and (2) that the pleadings have not yet closed does not matter because there is no limit on the time at which the court can issue a subpoena: Hughes v Western Australian Cricket Association (Inc) (1986) 66 ALR 541 at 543-44. The problem of potential costs to the respondents in dealing with documents generated by the subpoena can and will be addressed in two ways. First, under the ordinary rule, costs follow the event, so that if the respondents prevail in the proceedings they will have the costs incurred in relation to this subpoena as part of those costs. Secondly, if the respondents, after seeing the response to the subpoena, are of the view that it has led to costs thrown away or other waste, their remedy is to make application for a separate costs order.


case_title: NSW Commissioner of Police v Tuxford [2002] NSWCA 139


case_outcome: followed

case_text: The Court has power to refuse to grant leave to issue or to set aside a subpoena: O 27A and O 27 of the Federal Court Rules . It is well established that a subpoena must be issued for a legitimate forensic purpose: NSW Commissioner of Police v Tuxford [2002] NSWCA 139 at [20] . A subpoena will be refused unless the documents sought to be produced "on their face, have some potential relevance to the issues in dispute between the parties": Dunstan v Human Rights and Equal Opportunity Commission [2004] FCA 1137 at [29] . Subpoenas may be issued to non-parties provided that they specify with reasonable particularity the documents which are required to be produced: P Dawson Nominees Pty Ltd v Multiplex Pty Ltd (2007) 64 ACSR 53 at [24]. 12 Ordinarily, that sort of request contained in the catch-all would be set aside, given the well-settled rule that the court will not ask a stranger to the proceedings "to go to trouble and perhaps to expense in ransacking his records and endeavouring to form a judgment as to whether any of his papers throw light on a dispute which is to be litigated upon issues of which he is presumably ignorant." P Dawson (2007) 64 ACSR 53 at [24]. 13 However, the applicants submit that the form of the subpoena is, in this case, justified by the prior correspondence with the ACC. I accept this submission. The applicants are not asking the ACC to incur the costs of ransacking their records at cost. The 1 May 2008 letter from the ACC states that the records have already been searched. Similarly, the applicants are not asking the ACC to form a judgment about matters which the ACC is ignorant; the judgment has already been formed. Moreover, public investigatory bodies like the ACC which have previously conducted or are conducting an investigation and collected documents in the course of such investigation stand in a different position to a non-party such as a bank or business that simply happens to have acquired or generated potentially relevant documents in the ordinary course of business but has no special reason to know of any litigation or relevance of its records to that litigation. Such records as the ACC has can be, and usually are, clearly and separately identifiable and identified as documents obtained in the course of a particular investigation. P Dawson (2007) 64 ACSR 53 at [25]. 15 In addition, the submission that a court will not issue a subpoena as a substitute for discovery is not apposite. First, the authorities to that effect relate to the issue of subpoenas to a party to the litigation, not a non-party such as the ACC: P Dawson (2007) 64 ACSR 53 at [24]. Secondly, "discovery" in this context is a term of art, as was explained by Heerey J in P Dawson (2007) 64 ACSR 53 at [24]. It means only that a court will not ask a person to ransack their records without clear instructions as to what is being sought. Again, as I have explained, that is not the case here. The ACC has already identified the documents; the subpoena is simply a formality requested by the ACC as condition precedent to their handing over the documents. 16 In short, I consider that where a non-party (particularly a public investigatory agency) has: (1) confirmed to a party that it has searched for and identified potentially relevant documents; (2) indicated in writing that it has no objection to producing those identified documents provided a formal subpoena is issued; and (3) the court is satisfied identified documents in fact appear to be potentially relevant, there is in general no obstacle to the court exercising its discretion in the interests of justice to issue a subpoena for the production of those documents.


case_text: can be seen there is no express obligation, imposed on the Tribunal, by s 43(2B) to refer to all relevant evidence, to set out the basis for conclusions or ultimate findings of fact reached, or to set out its understanding of the relevant law. Counsel submitted that these obligations arose from a gloss which Woodward J, in Ansett Transport Industries (Operations) Pty Ltd v Wraith [1983] FCA 179 ; (1983) 48 ALR 500 at 507, placed on the differently worded s 13(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). In submitting that the Tribunal had failed to satisfy the obligations imposed on it by s 43(2B), counsel drew attention to the following matters: As a result, so it was submitted, Mr Culley was confronted with statements by the Tribunal which reflected badly on his business acumen and integrity, but was left to guess at the evidentiary basis for this criticism. Because of this he could not defend his good name.


case_outcome: referred to

case_text: Culley appealed pursuant to s 44 of the AAT Act. Section 44(1) provides for appeals to this Court "on a question of law" from any decision of the Tribunal: see TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 at 178; Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at 324-5. Mr Culley's further amended notice of appeal identified six questions of law. Some are related to others such that they can be dealt with together. Questions 1 and 2


case_title: Comcare v Lees (1997) 151 ALR 647

case_text: if it had been established that the Tribunal had not complied with the requirements of s 43(2B) this would not have constituted a reviewable error of law which would justify the setting aside of the Tribunal's decision: see Repatriation Commission v O'Brien [1985] HCA 10 ; (1985) 155 CLR 422 at 445-6 (per Brennan J); Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 379 (per Kirby J); and see also Comcare v Lees (1997) 151 ALR 647 at 656-9 (per Finkelstein J). Counsel for Mr Culley accepted that this was the legal position.


case_text: Tribunal then directed particular attention to the fact that three of the companies owed a total of $1,092,000 to the Australian Taxation Office. This debt included considerable sums of unpaid tax instalments deducted from employees' salaries, goods and services taxes and income tax. The debt had accumulated since, at least, 1999. The Tribunal noted at [12] the observations of Young J in Cullen v Corporate Affairs Commission (NSW) (1988) 14 ACLR 789 at 795-6, that: "... In this Court over the last 20 years at least, Judges have been extremely reluctant to grant adjournments in winding up proceedings where it appears that there is a claim for outstanding group tax because the group tax is part of the employees' wages which have been withheld to be paid to the tax office on behalf of the employees. They are, for all intents and purposes, trust moneys which do not belong to the company. If the company directors use these monies for trading purposes, it shows a complete lack of appreciation of this situation and a serious lack of commercial morality. In England the non payment of such monies has been highlighted perhaps above all other factors as showing that a director is not fit to continue his profession ..." The Tribunal continued: "While Mr Culley may have sought negotiation's (sic) with the Australian Taxation Office it would appear that little or no payments were made to reduce the debt and it was well over two years after much of the debt was due by [one of the companies] before voluntary administration and subsequent liquidation occurred. It was noted that Mr Culley appeared to be of the view that the unpaid tax was not significant in relation to the total of his 27 year career and taxes paid. It is particularly relevant that, in the case of Austbloom, Mr Culley arranged to pay out local creditors to retain their goodwill for a successor company while leaving $121,350 owing in taxes." The Tribunal then turned to an assessment of other matters relating to the various companies of which Mr Culley had been a director. These matters were collected in a single paragraph. The terms in which the Tribunal expressed itself were the subject of criticism during argument and it is, therefore, necessary to set the paragraph out in full. The Tribunal used abbreviated titles for the companies. Oriental Experience Pty Ltd was referred to as "Oriental". Construction Resources Pty Ltd was referred to as "Resources". B.M.C. Special Projects Pty Ltd was referred to as "Special Projects". B. M. Culley & Associates Pty Ltd was referred as "Associates". It will be convenient to adopt these abbreviations for the purposes of these reasons. The Tribunal said: "14. While Mr Culley may argue that the reason for the insolvency of each company were (sic) beyond his control it is not clear that appropriate action was taken in a timely manner. Mr Culley's evidence was that his primary business had been construction development. However, it would appear that the insolvencies of Resources, Special Projects and Associates resulted from these companies moving away from construction management and becoming head contractors and part owner of developments. In all cases including Oriental and Austbloom it would appear that the companies had inadequate capital to deal with losses. In Oriental and Austbloom there are clear inferences from the liquidators that these (sic) had been a failure in management and record keeping."


case_text: parties referred to the decision of Heerey J in Kardas v Australian Securities Commission (1998) 29 ACSR 304. In that case his Honour was concerned with the construction and application of s 600 of the Corporations Law , the predecessor of s 206F. The applicant had brought proceedings under the ADJR Act to challenge a disqualification decision. One of the grounds was that the Commission had failed to comply with an implied obligation that it exercise its power within a reasonable time. In dealing with that ground his Honour said (at 313-4) that: "Counsel relied on the judgment of O'Bryan J in Halliday v CCA (14 May 1990, SC(Vic), unreported). His Honour there held that a delay of almost two years between service of a show cause notice and a decision to prohibit would be too long. A statutory power (such as the power of prohibition under s 600) conditioned upon the occurring of a certain event (such as the making of a s 533 report in respect of two or more companies) will often be subject to an implied requirement that it be exercised within a reasonable time: Koon Wing Lau v Calwell [1949] HCA 65 ; (1949) 80 CLR 533 at 573-4; [1949] ALR 97 ; Giris Pty Ltd v FCT [1969] HCA 5 ; (1969) 119 CLR 365 at 383; [1969] HCA 5 ; [1969] ALR 369 ; Re Federal Cmr of Taxation; Ex parte Australena Investments Pty Ltd (1983) 50 ALR 577 at 578; Repatriation Commission v Morris (1997) 26 AAR 284 at 289. I am satisfied that the s 600 power is subject to such a requirement. Once a liquidator's report in respect of a second "s 600 company" triggers the power of disqualification, that power, if it is to be exercised at all, should be exercised with reasonable promptness. A person potentially the object of that power should not be kept in an indefinite state of uncertainty. More importantly, since the purpose of a s 600 disqualification is prophylactic rather than punitive, there should be as little delay as possible in taking steps to protect the public. What is a reasonable time will depend on the circumstances. The affairs of companies vary greatly in their complexity. But the commission does not, as it were, start from scratch. It will, ex hypothesi, have the benefit of a liquidator's report and no doubt the liquidator would usually be willing and able to provide further information and explanation on request." Counsel for ASIC sought to distinguish Kardas on the basis that the two companies involved in that case were not related. In the present case the Tribunal had found that Resources, Special Projects and Associates were related companies. Resources was solely an employer of labour. Special Projects had been formed to act as a head contractor on two projects, one of which failed. Associates acted as construction manager under contract with a developer for a fee. Associates was the principal company in the group. As a result, it was argued, it would have been premature for ASIC to issue a show cause notice under s 206F before it had received the liquidator's report on Associates. That did not occur until 7 April 2005. Accordingly, it was contended, ASIC's compliance with the reasonable celerity requirement should be assessed as if the last triggering event had occurred on 7 April 2005. The time between then and the issuing of the disqualification notice was one year and 10 months. This delay was not, so it was submitted, to be regarded as unreasonable. No explanation was given for the delay of three years and five months between the winding up of Associates and the provision of the liquidator's report. There is no evidence of any relevant action being taken by ASIC between its receipt of the liquidator's report on Associates in April 2005 and July 2006. On 12 July 2006 ASIC wrote to the liquidators of Special Projects and Resources seeking further information about those companies. On the following day a similar request was directed to the liquidator of Associates. The avowed purpose of these requests for further information was to assist ASIC in determining whether to take action against Mr Culley under s 206F. The liquidators responded to these requests. The last of these responses was received by ASIC on 28 September 2006. The reason for the 15 month delay between the receipt of the liquidator's report on Associates and the despatch of requests for further information is unexplained.


case_text: the hearing of an appeal the Tribunal stands in the shoes of the original decision maker: see Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85 ; (1980) 44 FLR 41 at 46-7. When doing so it can exercise all of the powers and discretions conferred upon the original decision maker: see s 43 of the AAT Act. As the High Court held in Shi v Migration Agent Registration Authority [2008] HCA 31 ; (2008) 235 CLR 286 , the Tribunal is not required, in the absence of any express contrary statutory prescription, to confine its attention to the material which was before the primary decision maker. As Kirby J said (at 303), the Tribunal is able to exercise its powers "with the benefit of any new, fresh, additional or different material."


case_title: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323


case_text: for Mr Culley made the formal submission that the answers to both these questions should be "yes". He conceded, however, that the decision of the Full Court in Murdaca v Australian Securities and Investments Commission (2009) 258 ALR 223 bound me to conclude that the first question should be answered "no" and that the second question did not arise. The concession was properly made. The Full Court held (at 250) that a delegate of ASIC could rely on material not appearing in the notice to show cause for the purpose of determining whether or not to disqualify a director provided that it accorded the director natural justice. Specifically the Full Court held (at [127]) that "... we do not agree that ASIC must refer to and address in the show cause notice all matters upon which it might rely in support of disqualification and we do not agree that ASIC is confined to such matters as are contained in the show cause notice when it comes to consider disqualification." In Murdaca at 245, the Full Court identified the two preconditions which must be satisfied before ASIC may exercise its powers under s 206F of the Act. These conditions, prescribed by s 206F(1)(a) are that, within seven years immediately before ASIC gives a notice to show cause: Both parties agreed that these preconditions (or trigger points) had been met, in the present case, on 23 October 2002. On that day ASIC received a report under s 533(1) of the Act from the liquidator appointed to Resources. The report was dated 21 October 2002. The liquidator's report contained the following paragraph: "5.1 The director of the company.,(sic) Brian Francis Culley and former director of the company, Anne Culley, were directors of the following companies which are now in liquidation Company Date of Commencement B M Culley & Associates Pty Ltd 29 th November 2001 Construction Resources Pty Ltd 29 th November 2001 BMC Special Projects Pty Ltd 9 th May 2001 Accordingly, as the directors have been officers of three companies which are now in liquidation and have not paid creditors in full, the ASIC may consider applying the provisions of Section 206F of the Act in seeking an order to disqualify them from acting as directors for an appropriate period." It is to be noted that, although the liquidator referred to Associates having been wound up on 29 November 2001, no liquidator's report had been provided in relation to that company before 23 October 2002. The two relevant companies for the purposes of s 206F(1)(a) were Resources and Special Projects.


case_title: Repatriation Commission v O'Brien [1985] HCA 10 ; (1985) 155 CLR 422


case_title: Shi v Migration Agent Registration Authority [2008] HCA 31 ; (2008) 235 CLR 286


case_title: TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175


case_text: The High Court considered the principles applicable to the grant of an interlocutory injunction in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 229 ALR 457. At [65] , Gummow and Hayne JJ applied Beecham Group Limited v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618 at 622-3 where it was observed that the two main enquiries are as follows: 'The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief...The second inquiry is...whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.' 10 GenRx must show sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. This depends on the nature of the rights and the practical consequences likely to flow from the orders sought ( O'Neill at [65] [72] per Gummow and Hayne JJ). It is in this context that the formulation "serious question to be tried" has effect when the Court asks whether an applicant has shown that there is a serious question to be tried as to the applicant's entitlement to relief, that the applicant is likely to suffer injury for which damages will not be an adequate remedy and has shown that the balance of convenience favours the granting of an injunction ( O'Neill at [19] per Gleeson CJ and Crennan J). In considering the balance of convenience, the Court may take into account whichever course appears to carry the lower risk of injustice if the injunction is granted to a party who fails to establish its right at trial or in failing to grant an injunction to a party who succeeds at trial ( Bradto Pty Ltd v State of Victoria [2006] V ConvR 54-722 at [35]). 18 I accept that there is a serious question in the O'Neill sense. 19 There is little evidence on the number of advertisements presently "in the pipeline" or the difficulties faced by Servier if it were ordered not to place further advertisements asserting improved stability. I conclude that no serious inconvenience or injustice would be suffered if no further advertisements referring to stability were to be placed until further order. 20 It is therefore appropriate that Servier be prohibited from placing any further advertisements containing the reference to "improved stability" until further order.


case_text: The High Court considered the principles applicable to the grant of an interlocutory injunction in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 229 ALR 457. At [65] , Gummow and Hayne JJ applied Beecham Group Limited v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618 at 622-3 where it was observed that the two main enquiries are as follows: 'The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief...The second inquiry is...whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.'


case_text: GenRx must show sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. This depends on the nature of the rights and the practical consequences likely to flow from the orders sought ( O'Neill at [65] [72] per Gummow and Hayne JJ). It is in this context that the formulation "serious question to be tried" has effect when the Court asks whether an applicant has shown that there is a serious question to be tried as to the applicant's entitlement to relief, that the applicant is likely to suffer injury for which damages will not be an adequate remedy and has shown that the balance of convenience favours the granting of an injunction ( O'Neill at [19] per Gleeson CJ and Crennan J). In considering the balance of convenience, the Court may take into account whichever course appears to carry the lower risk of injustice if the injunction is granted to a party who fails to establish its right at trial or in failing to grant an injunction to a party who succeeds at trial ( Bradto Pty Ltd v State of Victoria [2006] V ConvR 54-722 at [35]).


case_text: The application was remitted to this Court pursuant to orders made by Gaudron J following the delivery of judgment in Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601. 4 By letter dated 12 November 2004, the District Registrar of this Court notified the applicant that the Court proposed to consider whether there was an arguable case on the basis of the written material that the applicant had given to the Court and without any oral hearing. The applicant was invited to file written submissions on the question of whether the Court should make an order nisi . On 7 December 2004, the applicant filed an amended application under the Judiciary Act 1903 (Cth), however, he has not filed any written submissions. 5 I propose to deal with this application on the papers. 18 This claim in form may be prima facie capable of attracting relief under the second limb of the Muin ratio decidendi, that is, that the applicant was misled into thinking that favourable country information had been considered by the Tribunal when in fact it had not. However, the material contained in the draft order nisi and the affidavit in support merely amounts to a pleading or assertion of the right to relief. There are no particulars or evidence of facts that would support the grant of the relief claimed. None of the country information is identified. For orders requiring the respondent to show cause why final relief should not be granted, the applicant must provide material showing that there is at least an arguable case for the grant of the final relief claimed. 19 On the material before me, the applicant has not made out an arguable case that the Tribunal committed jurisdictional error. The application for an order nisi should therefore be dismissed with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 30 May 2006 The Applicant is self-represented. Solicitor for the Respondent: Australian Government Solicitor Date of Judgment: 30 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/651.html


case_text: Subsection 424A(3)(b) provides that s 424A does not apply to information "that the applicant gave for the purposes of the application". In Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27, a Full Court held that information to which ss 424A(3)(b) refers is information given by an applicant to the Tribunal for the purpose of the application for review and not to information given on the original application for a protection visa.


case_text: The reference to "information" in s 424A does not encompass a failure to mention a matter to the Tribunal. An observation that an applicant failed to refer to a particular matter may constitute no more than an aspect of the Tribunal's reasoning concerning a deficiency in his evidence. In VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24], Finn and Stone JJ commented on the term "information": " ... the word does not encompass the Tribunal's subjective appraisals, thought processes or determinations; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps." See also SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306 at [9] - [15] per Hely J; SZBKB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1811 at [14] - [33] per Bennett J.


case_title: SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306


case_title: SZBKB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1811


case_text: Division 4 of the Administration Act imposes several important limitations upon a Tribunal's review of an objection decision. Two are of particular importance for present purposes. Both are contained in s 14ZZK of that Act. The first is that, unless the Tribunal orders otherwise, an applicant is limited to the grounds stated in the taxation objection to which the decision relates. The significance of this limitation is that the objection circumscribes the issue or issues raised by the applicant which the Tribunal is required to determine. This contrasts with the usual case of Tribunal review where the Tribunal stands in the shoes of the person whose decision is in question, hearing the matter de novo and reaching its own conclusion on the material before it as to what is the correct or preferable decision. The difference between the forms of text review, as will be seen, can become accentuated when, as in this matter, an attack is made upon the adequacy of the Tribunal's reasons for decision: for the ordinary case of review see e.g. Hill v Repatriation Commission (2005) 218 ALR 251 at [105]. 7 The second limitation on an objection decision review is that the applicant bears the burden of proving, if the decision is an assessment, that the assessment is excessive: s 14ZZK(b)(i) of the Administration Act . This onus is of some significance in this proceeding.


case_text: The parties are in broad agreement as to the manner in which the discharge or non-discharge of the onus can affect a Tribunal's determination of the issues before it. They accept as do I, the correctness of the following observations of Lockhart J in Federal Commissioner of Taxation v Munro (1997) 37 ATR 249 at 258 in referring to the reasons of Gibbs J in McCormack v Federal Commissioner of Taxation [1979] HCA 18 ; (1979) 143 CLR 284: "In McCormack v FCT [1979] HCA 18 ; (1979) 143 CLR 284 ... Gibbs J said that s 190(b) of the Assessment Act placed the burden of proving that the assessment was excessive upon the taxpayer and that on ordinary principles the taxpayer therefore bore the burden of proving the facts necessary to make out his or her case (at CLR 301). To discharge the burden of proving that the assessment is excessive the taxpayer in McCormack (a s 26(a) case) was required to prove affirmatively on the balance of probabilities that the property was not acquired for the purpose of profit making by sale. His Honour said that the burden may be discharged by drawing inferences from the evidence, but he rejected (at CLR 303) the argument that a taxpayer can succeed simply because there is no evidence from which it can be concluded that the relevant purpose of profit making existed; since this would mean that the burden of proving the existence of that purpose lies on the FCT. That would, his Honour said, be to invert the onus of proof." See also Gauci v Federal Commissioner of Taxation [1975] HCA 54 ; (1975) 135 CLR 81 at 89-90 per Mason J. Section 190(b), I would note, was the precursor of s 14ZZK(b).


case_title: McCormack v Federal Commissioner of Taxation [1979] HCA 18 ; (1979) 143 CLR 284


case_title: Gauci v Federal Commissioner of Taxation [1975] HCA 54 ; (1975) 135 CLR 81


case_outcome: discussed

case_text: The only additional matter of principle to which I need refer concerning the onus of proof is that in a Tribunal review of an assessment it is not necessary for the Commissioner to seek to establish that the applicant's assessable income was or was at least a particular figure. As Hill J commented in Galea v Federal Commissioner of Taxation (1990) 90 ATC 5,060 at 5,067: "The fact that the Commissioner sought so to do and failed has no bearing, at the end of the day, on the question whether the applicant has discharged the onus of showing, as he is required by sec 190(b) of the Act to show, that the assessment is excessive. The Commissioner's failure to establish a positive case, if that is what he sought to do, leaves the Tribunal in no different position than it would have been in if the Commissioner had not sought at all to advance a positive case." 10 The Tribunal, necessarily, reviewed jointly the applications of Mr Vu and Mrs Duy as their cases and grounds of objection were interrelated. The primary cases put were that the money deposited in bank accounts during the relevant tax years represented capital and/or income of Mrs Duy derived by her in Vietnam prior to becoming a resident of Australia. Mrs Duy stated that she and Mr Vu subsequently carried US$550,000 and A$1,268,000 into Australia in cash in fourteen trips made by one or other of them: Reasons at [4], [10]. Only two small amounts allegedly so carried ($20,605 and $17,000) were declared to Australian Customs: Reasons at [10]. A further sum of A$513,999 was transferred from Vietnam through a Sydney-based company. I would note in passing that the Tribunal found (with considerable reservation) that this last sum was not income but represented funds of Mrs Duy prior to her arrival in Australia: Reasons at [31] and [32]. 11 The Tribunal accepted that Mrs Duy may well have earned income in a range of activities in which she said she engaged in Vietnam and which on the evidence of Mrs Duy and her witnesses indicated earnings of over US$2,000,000. However, the Tribunal was not satisfied that those activities necessarily resulted in her having available to her in 1996 the equivalent of almost A$2 million.


case_text: As I understand the "bank accounts" submission it is said that once the Tribunal rejected Mr Vu's and Mrs Duy's evidence on the provenance of the money in Mrs Duy's accounts and concluded that it could not be satisfied that it came from Vietnam, the evidence was, simply, that Mrs Duy had bank accounts in her name. In these circumstances the Tribunal should have inferred or presumed the moneys were hers (the second ground of appeal). If the Tribunal had a reason for not so inferring or presuming and for finding as it did, it did not state its reason in its decisions. This omission was in relation to a material question of fact: s 43(2B) , AAT Act and as such involved an error of law (the first ground of appeal). On such an error see e.g. Casarotto v Australian Postal Commission (1989) 86 ALR 399 at 402-403. 22 These grounds of appeal can be answered shortly. The objection decision to be reviewed by the Tribunal was that all of the moneys in the bank accounts were the joint income of Mr Vu and Mrs Duy for the relevant tax years. The grounds of objection taken to the assessment of present relevance were, insofar as Mr Vu was concerned, (i) that the moneys in the accounts were brought from Vietnam; were capital and/or income derived by him when a non-resident of Australia; or were funds given to him by his own and his spouse's family; and (ii) the moneys did not represent assessable income and were not assessable to the taxpayer. 23 These, considered in context, are quite circumscribed grounds of objection. The Tribunal considered "their basic thrust" as relating to the alleged prior earning of funds by Mrs Duy in Vietnam and their later transfer by cash to, and then deposit in banks in, Australia. It would appear that Mr Vu's contentions before the Tribunal were limited to providing particular explanations as to the sources of the money in question which were ascribed primarily to his wife's money in Vietnam.