case_text: was referred to what Windeyer J said in Shell Co. of Australia Ltd v Esso Standard Oil (Australia) Ltd [1961] HCA 75 ; (1961) 109 CLR 407 at 414 415 concerning the different ways of assessing the criteria of 'substantially identical with' on the one hand, and 'deceptively similar to' on the other. His Honour said: 'In considering whether marks are substantially identical they should, I think, be compared side by side, their similarities and differences noted and the importance of these assessed having regard to the essential features of the registered mark and the total impression of resemblance or dissimilarity that emerges from the comparison. ... On the question of deceptive similarity a different comparison must be made from that which is necessary when substantial identity is in question. The marks are not now to be looked at side by side. The issue is not abstract similarity, but deceptive similarity. Therefore the comparison is the familiar one of trade mark law. It is between, on the one hand, the impression based on recollection of the plaintiff's mark that persons of ordinary intelligence and memory would have; and, on the other hand, the impressions that such persons would get from the defendant's television exhibitions.' The applicant submitted that: (i) The essential features of the registered mark are the star logo and the word 'STARR'. The essential features of the respondent's mark are the star logo and the word 'Star'. (ii) The star logo in both marks is eye catching. The star logo appears at the front of both marks. It is the first thing seen when looking at the marks. (iii) The star logo in both marks abuts the word part of the mark. (iv) The differences in the star logos are minor. The differences in the word part of the marks are also minor; the registered mark has an additional 'R' and the word is capitalised. The word 'Partners' is in lower case in the registered mark and is not an essential feature. Similarly, the word 'REALTY' is not an essential feature of the respondent's mark. (v) Comparing the two marks side by side, demonstrates that the essential features are substantially identical to each other and the differences do not detract from the total resemblance of the two marks. The applicant referred to s 10 of the Act which provides: 'For the purposes of this Act, a trade mark is taken to be "deceptively similar" to another trade mark if it so nearly resembles that other trade mark that it is likely to deceive or cause confusion.' I was referred to what Windeyer J said in Shell concerning 'deceptive similarity', quoted at [25] supra, and to what was said by Dixon and McTiernan JJ in Australian Woollen Mills at 658: 'In deciding this question, the marks ought not, of course, to be compared side by side. An attempt should be made to estimate the effect or impression produced on the mind of potential customers by the mark or device for which the protection of an injunction is sought. The impression or recollection which is carried away and retained is necessarily the basis of any mistaken belief that the challenged mark or device is the same. The effect of spoken description must be considered. If a mark is in fact or from its nature likely to be the source of some name or verbal description by which buyers will express their desire to have the goods, then similarities both of sound and of meaning may play an important part. The usual manner in which ordinary people behave must be the test of what confusion or deception may be expected. Potential buyers of goods are not to be credited with any high perception or habitual caution. On the other hand, exceptional carelessness or stupidity may be disregarded. The cause of business and the way in which a particular class of goods are sold gives, it may be said, the setting, and the habits and observations of men considered in the mass affords the standard. Evidence of actual cases of deception, if forthcoming, is of great weight.' As noted in the extract from the judgment of Windeyer J in Shell quoted in [25] supra, following the side by side comparison of the marks, the noting of their similarities and differences and the importance of these assessed against the essential features of the registered mark, it is the total impression of resemblance or dissimilarity that emerges from the comparison that determines whether the criteria of 'substantially identical' is satisfied. Apart from the partial star logo, and even that is different in each mark, the positioning of that logo with respect to the 'STARR'/'Star' word and the aural similarity of the 'STARR'/'Star' words, the two marks have a number of differences. I am of the view that the word 'Partners' is an essential feature of the registered mark because it articulates the very structure of the applicant's business a franchise operation involving various unrelated parties (the partners) carrying on discrete businesses under a common banner. If that be right, then the essential features of the two marks are quite different, both visually and aurally; and even if it is not right, that difference between the two marks, particularly coupled with the difference between 'STARR' and 'Star', are sufficiently significant themselves to militate against any conclusion that they are substantially identical. In my view, there is no substantial similarity, let alone identity, visually or aurally, between the two marks. There seemed to be common ground as to the governing principles to be applied in a case where the question is whether a mark so nearly resembles a registered mark that it is likely to deceive or cause confusion. It is a different comparison than that for substantial identity; in the case of deceptive similarity, it is one of impression based on recollection: Shell at 415, which will be an imperfect recollection, measured against a standard of side by side comparison. As Windeyer J said in Re Bali Brassiere Co. Inc's Registered Trade Mark and Berlei Ltd's Application [1968] HCA 72 ; (1968) 118 CLR 128 at 139: 'The governing principles are not in dispute; and little is to be gained by the quotation of enunciations and elaborations of them in other cases. The difficulty is always in their application to the facts of the case in hand.'


case_outcome: applied

case_text: was also referred to certain propositions set out by Kitto J at first instance in Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd [1953] HCA 73 ; (1953) 91 CLR 592 at 594 595: (1) To show that a trade mark is deceptively similar to another it is necessary to show a real, tangible danger of deception or confusion occurring. A mere possibility of confusion is not sufficient. (2) A trade mark is likely to cause confusion if the result of its use will be that a number of persons are caused to wonder whether it might not be the case that the two products or closely related products and services come from the same source. It is enough if the ordinary person entertains a reasonable doubt. (3) In considering whether there is a likelihood of deception or confusion, all the surrounding circumstances have to be taken into consideration. These include the circumstances in which the marks will be used, the circumstances in which the goods or services will be bought and sold, and the character of the probable acquirers of the goods and services. The respondent accepted, generally, the summary of the relevant principles as set out in the applicant's submissions; the test in respect of infringement, it was submitted, remains that as set out in Southern Cross . I was also referred to the recent decision in Beecham Group at [54] [56] where the Court considered the established principles in Southern Cross and confirmed that the approach adopted by the Court is to attempt to estimate the 'effect or impression produced on the mind of potential customers' and to determine whether there is a 'real, and tangible danger of confusion'.


case_outcome: referred to

case_text: respondent submitted that the marks 'STARR Partners' and 'Star REALTY' are not identical and they fall short of being 'substantially identical'. The respondent referred to the following points of difference: (i) In the use of capitals for the entirety of the word and the additional 'R' in 'STARR'; (ii) there is the use of the word 'Partners' as opposed to 'REALTY'. The use of the word 'Partners' is essential to the registered mark and some analogy can be drawn to the circumstances in Torpedoes Sportswear Pty Limited v Thorpedo Enterprises Pty Ltd [2003] FCA 901 ; (2003) 132 FCR 326 at [54] [60]; (iii) the use of different words results in completely different aural sounds when the marks are spoken in their entirety; (iv) the 'star symbols' at the commencement of each of the respective marks are different; (v) the applicant's 'star symbol' has four points to the star including points on the eastern and southeastern points whilst the respondent's symbol has only the northern and western points; (vi) the applicant's 'star symbol' is also separate and distinct from the letters in the word 'STARR' with the southern line of the symbol directed to the northwest and coming inside, and parallel to, a line heading directed to the southeast; (vii) the respondent's 'star symbol' leans against, or is cut off by, the 'S'; (viii) further, the 'S' in the respondent's mark is stylised and the letters 't', 'a' and 'r' are separate from one another whilst the applicant's 'T', 'A', 'R' and 'R' are more standard, closely positioned letters. I was referred to a summary of the principles, recently extracted by Bennett J in Torpedoes Sportswear at [78] from the leading authorities. The respondent submitted that the applicant's submissions disregard the fact that the respective marks must be considered in their entirety when assessing whether they are deceptively similar. The focus on the use of the word 'STARR' and the applicant's 'star symbol' is, in effect, to infer that infringement will occur if another mark contains the word 'star', either of its own accord or in combination with a star symbol of some type. It was submitted that it is erroneous to focus on that word or symbol in isolation from the remainder of the mark. I was referred in particular to SAP (Australia) Pty Ltd v Sapient (Australia) Pty Ltd (1999) 169 ALR 1 and Torpedoes Sportswear , supra.


case_text: Given the above facts, the Court considers that it should depart from the usual rule relating to the award of costs. It is just for AIA to receive costs on an indemnity basis in respect of the issues which the Court is satisfied were raised without any factual basis and those which were pursued falsely to the knowledge of the applicants. Since these matters largely occupied hearing time from 11 September 2007, in accordance with the principles in Re Wilcox; Ex parte Venture Industries Pty Ltd and Others (No 2) (1996) 72 FCR 151 at 156-158 and Amadio Pty Ltd and Another v Henderson and Others (1998) 81 FCR 149 at 258-259, the Court will order the applicants to pay indemnity costs to AIA from that date.


case_text: Alternatively, AIA submits that it should be entitled to indemnity costs from 15 June 2007. By letter of this date AIA's solicitors, Ebsworth and Ebsworth, made an offer of settlement which was stated to be written in accordance with the principle referred to in Calderbank v Calderbank [1975] 3 All ER 333 ('the Calderbank letter'). The Calderbank letter attached copies of the receipts and copies of correspondence written by Mr Xu to AIA complaining that although he had paid cash to Mr Yang for the renewal of his policies his policies had been cancelled. The Calderbank letter proposed that each party pay their own costs and the proceedings be abandoned. Such offer was not accepted. 8 The applicants oppose the orders sought. They submit that their claim was predicated upon various representations which were alleged to have been made by AIA to Mr Yang at the time of his engagement as an agent of AIA. The applicants submit that the evidence of Ms Lin disputing the grant of authority to issue the receipts was not provided until approximately September 2007 which was at a late stage of the proceedings and that the applicants' claim was keenly fought in respect of numerous factual issues. 9 Section 43 of the Federal Court of Australia Act 1976 (Cth) ('the Act') empowers the Court to make orders for costs. Subsection 43(1) of the Act empowers the Court or a Judge thereof to award costs in all proceedings before the Court except those proceedings in respect of which any other Act provides that costs shall not be awarded. Subsection 43(2) of the Act provides: Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge.


case_text: AIA submits that the principles referred to by Sheppard J in Colgate-Palmolive Company and Another v Cussons Pty Limited (1993) 46 FCR 225 apply in respect of proceedings which are conducted in such manner such as to warrant an order for indemnity costs. At page 233 his Honour observed that orders for indemnity costs might be made where proceedings had been conducted: ... in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp (supra)); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata ); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525, Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal); Crisp v Keng (unreported, Court of Appeal, NSW, Kirby P, Priestley JA, Cripps JA, No 40744/1992, 27 September 1993)... 21 The allegations made by the applicants concerning the issue of the receipts were wholly inconsistent with the objective facts. The Court is satisfied that such allegations were groundless. Further, there was no factual basis to support the claim that AIA had manipulated the records. The applicants' claims relating to the issue of the receipts and of the computer records should never have been raised (see Colgate-Palmolive v Cussons per Sheppard J at 233).


case_text: It has been recognised that where a party has caused another party or parties to incur unnecessary costs, an order that costs be paid on an indemnity basis may be made. In Degmam Pty Ltd (In liq) v Wright (No 2) (1983) 2 NSWLR 354, Holland J at 358 found that a party had raised false defences which were deliberately concocted to deny the other party its rights. His Honour observed that such conduct grossly prolonged the litigation, causing 'the other parties to incur liability for solicitor and client costs far beyond what they could reasonably have expected to incur in litigation of genuine issues' . See also Rouse v Shepherd [No 2] and Others (1994) 35 NSWLR 277.


case_text: In Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd and Others [1988] FCA 202 ; (1988) 81 ALR 397 Woodwood J (at 400-401) observed that the Court had an 'absolute and unfettered' discretion with regard to the award of costs. In Donald Campbell and Company Limited v Pollak [1927] AC 732 Viscount Cave L.C. said at 811-812: A successful defendant in a non-jury case has no doubt, in the absence of special circumstances, a reasonable expectation of obtaining an order for the payment of his costs by the plaintiff; but he has no right to costs unless and until the Court awards them to him, and the Court has an absolute and unfettered discretion to award or not to award them. This discretion, like any other discretion, must of course be exercised judicially, and the judge ought not to exercise it against the successful party except for some reason connected with the case. In Latoudis v Casey (1990) 170 CLR 534 McHugh J at 569 adopted his Lordship's observations.


case_text: AIA submits that the principles referred to by Sheppard J in Colgate-Palmolive Company and Another v Cussons Pty Limited (1993) 46 FCR 225 apply in respect of proceedings which are conducted in such manner such as to warrant an order for indemnity costs. At page 233 his Honour observed that orders for indemnity costs might be made where proceedings had been conducted: ... in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp (supra)); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata ); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525, Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal); Crisp v Keng (unreported, Court of Appeal, NSW, Kirby P, Priestley JA, Cripps JA, No 40744/1992, 27 September 1993)... 11 In Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd and Others [1988] FCA 202 ; (1988) 81 ALR 397 Woodwood J (at 400-401) observed that the Court had an 'absolute and unfettered' discretion with regard to the award of costs. In Donald Campbell and Company Limited v Pollak [1927] AC 732 Viscount Cave L.C. said at 811-812: A successful defendant in a non-jury case has no doubt, in the absence of special circumstances, a reasonable expectation of obtaining an order for the payment of his costs by the plaintiff; but he has no right to costs unless and until the Court awards them to him, and the Court has an absolute and unfettered discretion to award or not to award them. This discretion, like any other discretion, must of course be exercised judicially, and the judge ought not to exercise it against the successful party except for some reason connected with the case. In Latoudis v Casey (1990) 170 CLR 534 McHugh J at 569 adopted his Lordship's observations.


case_text: An order for costs is compensatory not punitive: see Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 ; see also Hamod and Another v New South Wales and Another [2002] FCA 424 ; (2002) 188 ALR 659 at 665.


case_title: Latoudis v Casey (1990) 170 CLR 534


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


case_title: Re Wilcox; Ex parte Venture Industries Pty Ltd and Others (No 2) (1996) 72 FCR 151


case_title: Rouse v Shepherd [No 2] and Others (1994) 35 NSWLR 277


case_outcome: cited

case_text: On 12 March 2008 the Court ordered that the applicants' application be dismissed and that the applicants pay the costs of the respondent ('AIA'): see Yang v American International Assurance Company (Australia) Ltd [2008] FCA 39. 2 AIA now seeks an order that the applicants pay AIA's costs of the proceedings on an indemnity basis or alternatively pay the AIA's costs of the proceedings on a whole party-party basis up to and including 15 June 2007 and thereafter on an indemnity basis. 3 In the primary hearing the applicants contended that Mr Yang had not received any payment in cash from Mr Xu for the renewal of Mr Xu's insurance policies, despite Mr Yang having issued receipts to Mr Xu recording such payment. AIA submits that the applicants knew this claim was false and that the applicants knowingly maintained the litigation raising groundless contentions based upon such false claim.


case_text: my view, the conduct of Mr Flynn constituted by the May 2005 allegations amounted to sexual harassment. He clearly made a request for sexual favours to Ms Poniatowska by his emails of 8 May 2005 and 10 May 2005 and by his subsequent SMS text messages. Those requests were unwelcome on the part of Ms Poniatowska: see Aldridge v Booth [1988] FCA 170 ; (1988) 80 ALR 1. It is not necessary to find whether the email of 8 May 2005 was made in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that Ms Poniatowska would be offended, humiliated or intimidated by it. That is because, in the light of her response to the first email, I find that the subsequent communications referred to, starting with the email of 10 May 2005, were made in circumstances in which a reasonable person, having regard to all the circumstances including the terms of Ms Poniatowska's response, would have anticipated that she would be offended and humiliated by them. She had clearly indicated that she did not wish to receive requests for sexual favours from him. Mr Flynn nevertheless persisted to make such requests in the manner I have found. Having indicated her attitude quite clearly, it was apparent, and a reasonable person would have anticipated, that Ms Poniatowska would be offended if the requests were maintained (as they were). It was also apparent, and a reasonable person would have anticipated, that she would be humiliated by such conduct because it conveys an understanding of the potential preparedness of Ms Poniatowska to have a sexual relationship with him, notwithstanding her clearly expressed attitude to the contrary. Even if Mr Flynn did not see the situation that way, and was nevertheless hopeful of establishing a sexual relationship, that does not result in a different conclusion. The test in s 28A is clearly an objective one: see generally Leslie v Graham [2002] FCA 32 at [70] .


case_title: Leslie v Graham [2002] FCA 32


case_text: cause of action predicates the existence of a duty of mutual trust and confidence, to be implied into Ms Poniatowska's contract of employment. Ms Poniatowska referred to a series of Australian authorities purportedly accepting the existence of such an implied term: McDonald v State of South Australia [2008] SASC 134 ; Delooze v Healey [2007] WASCA 157 ; Koehler v Cerebos (Australia) Ltd [2005] HCA 15 ; (2005) 222 CLR 44 ; and Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2007] NSWSC 104. Since the hearing, an appeal has been decided in respect of the latter matter: Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2008] NSWCA 217. In a recent decision of Tracey J, Van Efferen v CMA Corporation Limited [2009] FCA 597 , his Honour noted at [80] that the question of whether such terms may be implied in contracts of employment is one of controversy on which the High Court has yet to make a definitive pronouncement. His Honour reviewed the authorities and made the following observations at [83]-[85]: In this Court single judges have adopted a more guarded approach. In McDonald (at 398-400) Buchanan J reviewed the authorities relating to the mutual trust and confidence term. He expressed disquiet about the notion that such a term could have escaped judicial notice for so long. More significantly he queried whether such a term could be implied consistently with the principles expounded by the High Court in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283. I respectfully share his Honour's reservations. In Walker v Citigroup Global Markets Pty Ltd [2005] FCA 1678 ; (2005) 226 ALR 114 at 156-157 Kenny J held that, in Australia, a term of good faith "does not apply to employment contracts". On appeal the Full Court did not need to express a view on her Honour's finding: see Walker v Citigroup Global Markets Australia Pty Ltd [2006] FCAFC 101 ; (2006) 233 ALR 687 at 708 [86] . As a single judge I would follow the decisions of other single judges unless I considered them to be clearly wrong: see Bank of Western Australia Ltd v Commissioner of Taxation (1994) 55 FCR 233 at 255. Although Buchanan J's observations in McDonald were obiter I nonetheless consider them to be correct. Kenny J's ruling in Walker forms part of the ratio of her decision in that case. I do not consider either decision to be clearly wrong. Had it been necessary I would have followed them.


case_title: Delooze v Healey [2007] WASCA 157

case_text: cause of action predicates the existence of a duty of mutual trust and confidence, to be implied into Ms Poniatowska's contract of employment. Ms Poniatowska referred to a series of Australian authorities purportedly accepting the existence of such an implied term: McDonald v State of South Australia [2008] SASC 134 ; Delooze v Healey [2007] WASCA 157 ; Koehler v Cerebos (Australia) Ltd [2005] HCA 15 ; (2005) 222 CLR 44 ; and Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2007] NSWSC 104. Since the hearing, an appeal has been decided in respect of the latter matter: Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2008] NSWCA 217.


case_title: Koehler v Cerebos (Australia) Ltd [2005] HCA 15 ; (2005) 222 CLR 44


case_title: Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2007] NSWSC 104


case_title: Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2008] NSWCA 217


case_outcome: followed

case_text: a recent decision of Tracey J, Van Efferen v CMA Corporation Limited [2009] FCA 597 , his Honour noted at [80] that the question of whether such terms may be implied in contracts of employment is one of controversy on which the High Court has yet to make a definitive pronouncement. His Honour reviewed the authorities and made the following observations at [83]-[85]: In this Court single judges have adopted a more guarded approach. In McDonald (at 398-400) Buchanan J reviewed the authorities relating to the mutual trust and confidence term. He expressed disquiet about the notion that such a term could have escaped judicial notice for so long. More significantly he queried whether such a term could be implied consistently with the principles expounded by the High Court in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283. I respectfully share his Honour's reservations. In Walker v Citigroup Global Markets Pty Ltd [2005] FCA 1678 ; (2005) 226 ALR 114 at 156-157 Kenny J held that, in Australia, a term of good faith "does not apply to employment contracts". On appeal the Full Court did not need to express a view on her Honour's finding: see Walker v Citigroup Global Markets Australia Pty Ltd [2006] FCAFC 101 ; (2006) 233 ALR 687 at 708 [86] . As a single judge I would follow the decisions of other single judges unless I considered them to be clearly wrong: see Bank of Western Australia Ltd v Commissioner of Taxation (1994) 55 FCR 233 at 255. Although Buchanan J's observations in McDonald were obiter I nonetheless consider them to be correct. Kenny J's ruling in Walker forms part of the ratio of her decision in that case. I do not consider either decision to be clearly wrong. Had it been necessary I would have followed them. As I have found that ESA discriminated against Ms Poniatowska on the ground of her sex, and contravened s 14(2)(c) of the SD Act by so discriminating against her by dismissing her, I do not need to decide whether, in the circumstances, a term of mutual trust and confidence ought be implied into Ms Poniatowska's employment contract. Such a finding would not add to the range of remedies or the extent of the compensation awarded. In those circumstances, it is appropriate simply to note the observations of Tracey J in Van Efferen v CMA Corporation Limited [2009] FCA 597. It is now necessary to consider the appropriate award of damages or other relief to be granted to Ms Poniatowska. In her application, she seeks the giving of an apology or apologies from those respondents against whom adverse findings have been made.


case_text: are a number of reasons for that. In the first place, in my view, the adverse findings made against the respondents in respect of the conduct concerning them individually is sufficient recognition for Ms Poniatowska of the inappropriateness of that conduct. The imposition upon those respondents, who variously denied the conduct specifically attributed to them or in some respects denied its significance, would put them in the position of requiring them to apologise for conduct which they did not accept that they had severally engaged in: see for instance the observations of Branson J in Jones v Toben [2002] FCA 1150 ; (2002) 71 ALD 629 at [106] ; Jones v The Bible Believers' Church [2007] FCA 55 at [65] .


case_title: Jones v The Bible Believers' Church [2007] FCA 55


case_text: This is an appeal against a judgment of a Federal Magistrate delivered on 2 July 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") handed down on 18 October 2007: see SZGQK v Minister for Immigration and Citizenship [2008] FMCA 982. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship not to grant a protection visa to the appellant. 2 The appellant is a citizen of the People's Republic of China. The appellant entered Australia on 19 December 2004 on a Temporary Business Visa. On 24 January 2005 the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs, as it was then known. A delegate of the first respondent refused the application for a protection visa on 23 February 2005. On 14 March 2005 the appellant applied to the Tribunal for a review of that decision. On 17 May 2005 the Tribunal affirmed the delegate's decision. The appellant appealed to the Federal Magistrates Court. On 13 February 2006 the Federal Magistrates Court dismissed the application. The appellant appealed to this Court. On 11 August 2006 Tamberlin J set aside the Tribunal's decision and remitted the matter to the Tribunal. On 24 November 2006 the Tribunal, differently constituted, affirmed the delegate's decision not to grant the appellant a protection visa. On 31 May 2007 the Federal Magistrates Court ordered by consent that the Tribunal's decision be set aside and remitted the matter to the Tribunal. On 18 October 2007 the Tribunal, differently constituted, affirmed the delegate's decision not to grant the appellant a protection visa. It is this decision of the Tribunal that is the subject of the present appeal. 3 The appellant claimed that he was suspected of being a Taiwanese spy because he worked as a welder for several Taiwanese firms in Fujian. He stated that he had established close contact with a number of Taiwanese individuals who held senior positions in these firms and remained in contact and received gifts from them. He claimed that he was dismissed from his job in 1999 because of these suspicions and he was unable to get another job until 2004. He claimed that he was interrogated by the Public Security Bureau in November 2004. He stated that his wife and parents were threatened by the local authorities because he was suspected of being a Taiwanese spy and his child has been denied family registration. 4 The appellant also claimed that a fisherman friend who visited Mazu Island and spoke to some Taiwanese people was sentenced to five years in jail and identified him (the appellant) as being a Taiwanese spy. He also stated that his hometown is very close to Taiwan and many young people living there sell material to the Taiwanese. The Chinese authorities are, therefore, more suspicious of him because of the proximity of where he lives to Taiwan. Finally he claimed that one of his Taiwanese friends had been in the Taiwanese army which made the Chinese authorities even more suspicious of him. 5 The Tribunal found that the appellant was not a truthful or credible witness. His claims were very general and lacked specific details. The Tribunal was not satisfied that the appellant had access to special or privileged information that was not already available to the Taiwanese. The Tribunal noted that the appellant was unable to explain why the Chinese authorities would suspect him, as a welder, of having any information or knowledge that could be regarded as sensitive or confidential, or of any interest to the Taiwanese authorities.


case_text: The Federal Magistrate found that the reasoning of the Tribunal could not be characterised as "unreasonable" so as to provide jurisdictional error in the manner suggested by the High Court in Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611. The Federal Magistrate noted that it was the Tribunal's task to consider the extent to which it was satisfied by the claims made by the appellant and the documents which he tendered. The Federal Magistrate was satisfied that the conclusions of the Tribunal were open to it on the evidence before it. 9 The Federal Magistrate noted that the appellant did not identify what "relevant information" was not taken into account, and the Federal Magistrate was not able to identify any misconception by the Tribunal of legal principles which might be characterised as the "real chance test" arising from the effect of the Refugees Convention definition as adopted by s 36 of the Migration Act 1958 (Cth) ("the Act "). The Federal Magistrate found the third ground to be "totally unexplained" and he was therefore unable to give it any meaningful application to the present decision. 10 The Federal Magistrate also rejected the appellant's submission that the Tribunal did not tell the appellant which documents it would not accept as being genuine, or provide him with an adequate explanation for rejecting the genuineness of the documents.


case_text: When asked whether he wished to make any oral submissions the appellant sought to raise what I understood to be an allegation of jurisdictional error, on the part of the Tribunal, involving a contravention of s 91R(3) of the Act . This issue had not been raised in his application to the Federal Magistrates Court and was not raised in the notice of appeal to this Court. The issue had been raised, in the Federal Magistrates Court, by counsel appearing for the Minister. It was drawn to the Court's attention as a matter of fairness. It arose from an observation by the Tribunal to the effect that the appellant had not engaged in any conduct in Australia which was likely to bring him to the attention of Chinese authorities. The Federal Magistrate held that no contravention of s 91R(3) had occurred: see SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 ; 247 ALR 451. This was because the Tribunal had done no more than assure itself that there was no additional basis on which the appellant's claim might be upheld and that, in any event, the Tribunal had rejected the appellant's claim on the free standing basis that his claims about events, said to have occurred in China, were not to be believed and that he had sought to rely on forged documents. 17 The s 91R(3) issue is not raised in the notice of appeal to this Court. Had I thought that there may have been some substance in it I would have, nonetheless, been prepared to deal with it. Having examined the Tribunal's reasons, however, I consider that the Federal Magistrate was correct, for the reasons which he gave, in holding that no jurisdictional error had been made by the Tribunal. 18 The two grounds which do appear in the notice of appeal are plainly untenable. The Federal Magistrates Court did deal with the claims that the Tribunal's rejection of the appellant's application was unreasonable and that the Tribunal had failed to take all relevant information into consideration.


case_outcome: distinguished

case_title: Applicant VEAL of 2002 v Minister for Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88

case_text: Dr Carrick sought to support her complaint concerning the Committee's receipt of Dr Heap's report by reference to Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88. That case concerned the failure of the Refugee Review Tribunal to tell an applicant for a protection visa that it had received an unsolicited letter that made damaging allegations against him. It is not an authority which is of assistance to Dr Carrick who was at all relevant times fully aware of the content of Dr Heap's report. 59 The complaint that the Committee wrongly received into evidence and considered Dr Heap's report is not made out. 60 The Final Report discloses that the Committee had regard to one class of services provided by Dr Carrick, namely MBS item 30487 provided in association with one or more gastrointestinal endoscopic procedural items. It examined this class of services by employing a sample of the services included in the class as authorised by s 106K(1) of the Act. Dr Carrick contends that the sampling methodology used by the Committee for this purpose was not a sampling methodology specified in a determination made by the Minister under s 106K(3).


case_title: Daniel v Kelly (2003) 200 ALR 379

case_text: Dr Carrick placed particular reliance on the judgments of this Court, at first instance and on appeal, regarding an investigative referral decision made concerning a Dr Daniel ( Daniel v Kelly (2003) 200 ALR 379 (Ryan J); Kelly v Daniel [2004] FCAFC 14 ; (2004) 134 FCR 64 (Full Court)). In Daniel v Kelly Ryan J at [13] rejected the submission that, in the circumstances of that case, the investigative referral was a result of the operation of the Act with the consequence that no occasion arose for the exercise of a discretion by the Commission. His Honour went on at [25] to describe as 'plainly relevant to any decision to investigate Dr Daniel' the fact that the relevant conduct of Dr Daniel had already been the subject of counselling and review resulting in a decision to take no action at that time. On appeal the Full Court at [81] agreed that the Commission had a discretion under s 86 to make an investigative referral and that the Commission had proceeded on the erroneous assumption that it was required to make an investigate referral. 21 I reject Dr Carrick's submission that this case is on ' all fours ' with Daniel v Kelly. It is not suggested in this case that the Commission proceeded on the assumption that it was required to make an investigative referral. The correspondence considered in [24] and [28] below makes plain that the Commission appreciated that an investigative referral was discretionary.


case_text: Additionally, as North J, one of the members of the Full Court in Kelly v Daniel, explained in Freeman v Health Insurance Commission [2004] FCA 453 at [54] : 'The issue fatal to validity in Daniel was the failure of the Commission to take into account a relevant consideration, namely the fact that, apparently unknown to officers of the Commission responsible for making the referral, Dr Daniel's conduct had already been considered and the issues resolved between other officers of the Commission and Dr Daniel.' By contrast, the written communications between Dr Carrick and officers of the Commission between 14 December 2000 (the date of Dr Carrick's interview with Dr Lorenz) and 12 June 2002 indicated that significant issues between Dr Carrick and the Commission remained unresolved at the time of the Investigative Referral.


case_text: Dr Carrick placed particular reliance on the judgments of this Court, at first instance and on appeal, regarding an investigative referral decision made concerning a Dr Daniel ( Daniel v Kelly (2003) 200 ALR 379 (Ryan J); Kelly v Daniel [2004] FCAFC 14 ; (2004) 134 FCR 64 (Full Court)). In Daniel v Kelly Ryan J at [13] rejected the submission that, in the circumstances of that case, the investigative referral was a result of the operation of the Act with the consequence that no occasion arose for the exercise of a discretion by the Commission. His Honour went on at [25] to describe as 'plainly relevant to any decision to investigate Dr Daniel' the fact that the relevant conduct of Dr Daniel had already been the subject of counselling and review resulting in a decision to take no action at that time. On appeal the Full Court at [81] agreed that the Commission had a discretion under s 86 to make an investigative referral and that the Commission had proceeded on the erroneous assumption that it was required to make an investigate referral. 22 Additionally, as North J, one of the members of the Full Court in Kelly v Daniel, explained in Freeman v Health Insurance Commission [2004] FCA 453 at [54] : 'The issue fatal to validity in Daniel was the failure of the Commission to take into account a relevant consideration, namely the fact that, apparently unknown to officers of the Commission responsible for making the referral, Dr Daniel's conduct had already been considered and the issues resolved between other officers of the Commission and Dr Daniel.' By contrast, the written communications between Dr Carrick and officers of the Commission between 14 December 2000 (the date of Dr Carrick's interview with Dr Lorenz) and 12 June 2002 indicated that significant issues between Dr Carrick and the Commission remained unresolved at the time of the Investigative Referral. 34 I accept for present purposes that Kelly v Daniel [2004] FCAFC 14 ; 134 FCR 64 is authority for the proposition that, in making a decision under s 86(1), the Commission is bound to take into account the consideration, where applicable, that the conduct of the person under review has already been considered by the Commission and a decision communicated to the person that the conduct will not be further investigated. As identified above, that consideration was not pertinent in this case.


case_outcome: approved

case_text: A submission to the same effect was 'rejected out of hand' by Edmonds J in Mathews v Health Insurance Commission (2006) 90 ALD 49 at [40]. It is appropriate for me to follow the approach adopted by his Honour unless I am satisfied that his Honour was in error. I am not so satisfied. Indeed, in my respectful view, his Honour was plainly correct. 76 The sampling methodology prescribed by the Determination assumes an understanding of, and facility with, statistics. It is unlikely that the Minister intended that Committee members, rather than appropriately qualified statisticians, should undertake important statistical procedures. The obligation on a Committee to 'ensure' that the preliminary random sample is a random sample may, in my view, be met by the Committee satisfying itself that the preliminary random sample has been generated as a random sample by an appropriately qualified person. Nothing in the evidence establishes that the Committee did not take that step in this case. 77 I am not persuaded that it was necessary for the Committee to be given the full preliminary sample in the order of its original random selection, as argued by Dr Maxwell Stevenson, an expert statistician whose affidavit evidence was adduced by Dr Carrick. The responsibility of the Committee under s 106K and the Determination was not to engage in 'sound audit practice' , to use Dr Stevenson's expression, but rather to ensure that s 6 of the Determination was complied with.


case_text: To substantiate her challenge that the Commission exercised the power under s 86(1) of the Act without taking into account relevant considerations Dr Carrick was required to: (a) identify a consideration that the Commission was bound to take into account in making its decision ( Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24 per Mason J at 39); and (b) demonstrate, on the balance of probabilities, that the Commission did not take into account that consideration. 35 What other factors the Commission is bound to take into account in making a decision under s 86(1) are to be determined as a matter of statutory construction. As the Act does not expressly identify the considerations to be taken in account, they are to be implied from the subject matter, scope and purpose of the Act ( Peko-Wallsend [1986] HCA 40 ; 162 CLR 24 at 39-40). 36 It is not necessary for a decision to be reached in this case on whether the Commission was bound to take into account any of the following considerations: (a) that a counselling meeting had taken place between Dr Carrick and a Commission Medical Advisor at which Dr Carrick's referred conduct was discussed; (b) Dr Carrick's practice statistics had been reviewed later than the date of the counselling meeting; and (c) there had been some, albeit, in the Commission's view, insufficient, change in Dr Carrick's practice statistics since counselling. I am satisfied that the Commission was alert to, and took into account, each of the above considerations as each of them is referred to in the Investigative Referral under the heading 'Reasons for Investigative Referral' (see [16] above). The weight to be given to them was a matter for the Commission. 37 Having regard to the view that I have taken of the true tenor of the written and oral communications discussed above between Dr Carrick and the officers of the Commission, I am not persuaded that Dr Carrick has identified any consideration not identified in the Investigative Referral that the Commission was bound to take into account in making its decision under s 86(1) of the Act.


case_text: In any event, as Lander J, with whom Black CJ and Wilcox J agreed, observed in Oreb v Willcock [2005] FCAFC 196 ; (2005) 146 FCR 237 at [101] - [102] : '[T]the absence of a mention of those ... matters in the reasons does not mean that the Commission did not have regard to those matters. The reasons which must be given by the Commission under s 86(4)(b) are "the reasons why the Commission considers the person under review may have engaged in inappropriate practice". The Commission does not have to give reasons why it has decided to make an investigative referral but only the reasons why it considers the practitioner may have engaged in inappropriate practice. The purpose of the Commission's reasons is to identify the matters into which the Director needs to inquire. In my opinion, the reasons which were advanced by the Commission were appropriate having regard to the reasons which the Commission had to give. In those circumstances, the appellant cannot, in my opinion, rely upon the Commission's failure to mention the ... matters to which the appellant referred for arguing that the Commission failed to have regard to them.' 39 Dr Carrick was not able to point to any evidence apart from the terms of the Investigative Referral itself to support her contention that the Commission did not take into account all relevant aspects of her conduct over the referral period (see [17] above). 40 The extent to which Dr Carrick ultimately pressed the claim that she was positively misled by Dr Lorenz on 14 December 2000 is unclear (see [19(e)] above). This claim was expanded upon in a written submission made by her to the Director which is annexed to an affidavit sworn by her in support of her application. In that written submission she drew attention to the fact that the statistics discussed during the interview related to the year ended 30 September 2000 while the referral period is 1 July 2000 to 31 June 2001; that is, to the fact that the referral period significantly overlapped with the period covered by the statistics discussed during the interview. She contended that in this circumstance it was farcical that the Investigative Referral stated: 'The HIC determined there had been insufficient change to remove the overall concerns about the referred conduct above.'


case_title: Phan v Kelly [2007] FCA 269

case_text: Appendix 2 to the Adjudicative Referral was a list of the first 40 randomly selected MBS item 30487 services (and the full medical records for the patients identified in that list) from the list of randomly selected MBS item 30487 services provided to the Director by the Commission. Dr Carrick's outline opening statement indicated that her case concerning the Adjudicative Referral was that the discretion of the Director to refer the matter to a Committee hearing miscarried because he included in his referral 'the already examined patient medical files of [Dr Carrick] for the Committee for it to examine again' (emphasis in original). This appears to be a re-run of an argument unsuccessfully advanced before Tamberlin J in Phan v Kelly [2007] FCA 269. 48 Section 93 of the Act governs the form and content of an adjudicative referral. Subject to s 93, the content and form of an adjudicative referral must comply with relevant guidelines made by the Minister under s 93(4). The Health Insurance (Professional Services Review Content and Form of Adjudicative Referrals) Guidelines 1999 ('the Guidelines') were made by the Minister under s 93(4). 49 Section 93(6) provides: 'If the Director makes an adjudicative referral, the Director must: (a) prepare a written report to the Committee, in respect of the services to which the referral relates, giving the reasons why the Director thinks that conduct by the person under review in connection with rendering or initiating the services may have constituted engaging in inappropriate practice; and (b) attach the report to the adjudicative referral.' 66 As I understand Dr Carrick's submissions concerning the sampling methodology adopted by the Committee, she does not contend that the Committee breached any express requirement of the Determination. Rather she argues that it is necessarily implicit in the Determination that the Committee was required: 'to find for itself and inspect a fresh pool of randomly selected medical services to examine, instead of examining a set of 30 from the 40 provided to them by the Director.' Again, as I understand it, this is a re-run of an argument unsuccessfully advanced before Tamberlin J in Phan [2007] FCA 269. 67 The evidence demonstrates that on 2 July 2002 the Director requested the Commission to select a random sample of 98 patient services from the total population of MBS item 30487 services rendered by Dr Carrick for the period 1 July 2000 - 30 June 2001. It is accepted that the Commission used a computer program to create a report which listed the names of 98 patients who had received a MBS item 30487 service from Dr Carrick randomly selected from the total population as required. The report discloses that it was produced on 29 July 2002 by the Analysis & Evaluation Section of the Program Review Division of the Commission. 68 It is not disputed that the preliminary sample size of 98 patient services met the requirements of s 7 of the Determination. Nor is it disputed that before providing the list of randomly selected patient services to the Director, the Commission used the same computer program to randomly assign a new random number to each of the services in the preliminary random sample. It then re-sorted the services in the order corresponding to the new random numbers assigned to each service. The list of randomly selected services provided by the Commission to the Director was the list re-sorted in that order. 69 The exploratory sample which the Committee examined consisted of the first 30 services on the list of randomly selected services provided by the Commission to the Director. I accept the evidence of Professor Desmond Nicholls, which was not challenged, that these first 30 services were a sample selected randomly from the preliminary random sample as required by s 8 of the Determination. 70 The Director, by a written notice given under s 89B(2) of the Act, required Dr Carrick to produce to him original patient records for the first 40 patients listed on the random sample of 98 patient services provided to the Director by the Commission. The Director engaged Dr Heap to review the 40 medical records provided by Dr Carrick. Dr Heap reported that he did not believe that it was justified for Dr Carrick to charge any of the 40 patients for an MBS item 30487 service. The Director also obtained data which showed that Australia wide 7,800 claims were made for MBS item 30487 services during the referral period and that Dr Carrick provided 4,073 of these services. The next highest provider claimed 876 MBS item 30487 services. 79 The second error claimed to affect the methodology adopted by the Committee was that the preliminary random sample was not a random sample in the hands of the Committee because it had already been the subject of consideration by the Director. This argument was rejected by Tamberlin J in Phan [2007] FCA 269 at [52] . His Honour there observed: 'In my view, the sample used in the present case was in accordance with the requirements of the Act. The evidence is that the Commission drew a preliminary random sample and that the Director required the production of records which he examined. He concluded, for the reasons given by him in his Report, that it would be appropriate for him to refer the matter to a Committee. In examining the material and completing his Report, the Director did not decide that there was inappropriate conduct. That determination was left for the Committee to make following a hearing and having regard to the evidence adduced at that hearing. It is not correct to suggest that the Director had found that the samples had in fact given rise to inappropriate conduct. The fact that the Director examined and considered the records and forwarded them to the Committee does not affect their randomness when they were considered afresh by the Committee. The sample items retained their character as random samples and were not skewed or biased so that the Committee's decision should be considered invalid.' (emphasis in original) 80 Again, I should follow the approach adopted by his Honour unless I am satisfied that his Honour was in error. I am not so satisfied. Indeed, in my respectful view, his Honour was correct. 81 The report of Dr Stevenson, parts of which I received by way of submission (O 10 r 1(2)(j) of the Federal Court Rules ), assumed a requirement for the conclusions arrived at by the Committee to be 'truly independent of those of the Director' . Dr Carrick argued that were this not the case, the conclusions would otherwise be ' unfair '. It is, of course, the case that a Professional Services Review Committee is obliged to make its own finding in respect of the conduct of the person under review; that is, a finding as to whether the conduct constituted engaging in inappropriate practice. However, as I understand the report of Dr Stevenson, he takes the view that, at least where a Committee places reliance on s 106K of the Act, the findings of the Committee must be arrived at by reference to samples of services not previously considered by the Director. Additionally Dr Stevenson places reliance on the notion of 'data snooping' in suggesting that the preliminary random sample did not satisfy the requirements of s 7 of the Determination. Data snooping can occur when a given set of data is used more than once for the purpose of inference. 82 The question of whether the findings of the Committee were required to be arrived at by reference to samples of services not previously considered by the Director is to be answered by reference to the Act. References to sound audit practice and notions of fairness are of only limited assistance in this regard. Section 93(6) of the Act provides that where the Director makes an adjudicative referral the Director must prepare and attach to the adjudicative referral: 'a written report to the Committee, in respect of the services to which the referral relates, giving the reasons why the Director thinks that conduct by the person under review in connection with rendering or initiating the services may have constituted engaging in inappropriate practice' . This statutory requirement suggests against any legislative intention that the conclusions arrived at by the Committee are to be arrived at by reference to evidence independent of that considered by the Director. 83 It is also significant in this regard that the Director is not authorised to make a finding that a person has engaged in inappropriate practice. Rather the role of the Director under Part VAA of the Act is as outlined in [12] above. A function of the Director under the scheme established by Part VAA is to ensure that only matters where the Committee could reasonably find that the person under review has engaged in inappropriate practice are referred to a Professional Services Review Committee.


case_text: Part VAA of the Act is entitled 'The Professional Services Review Scheme' . It is concerned to protect public revenues from abuse of the Medicare benefits system. It establishes a scheme whereby a medical practitioner's conduct in respect of services for which Medicare benefits are paid can be investigated to ascertain if it involves inappropriate practice. The operation of the scheme has been described in some detail in a number of other judgments of the Court. I do not consider it necessary to repeat that exercise. I refer by way of example to the description set out in Pradhan v Holmes [2001] FCA 1560 ; (2001) 125 FCR 280 at [5] - [61] . 9 Although Dr Carrick is not a specialist medical practitioner, nothing before this Court suggests that she is a 'general practitioner' within the meaning of the Act (see the definition of 'general practitioner' in s 3 of the Act and item 1 of Part 1 of Schedule 1 of the Health Insurance (1998-99 General Medical Services Table) Regulations 1998 ). For that reason the relevant definition of ' inappropriate practice ' in her case is that contained in s 82(1)(d). That definition is as follows: 'A practitioner engages in inappropriate practice if the practitioner's conduct in connection with rendering or initiating services is such that a Committee could reasonably conclude that: ... (d) if the practitioner rendered or initiated the referred services as neither a general practitioner nor a specialist but as a member of a particular profession the conduct would be unacceptable to the general body of the members of that profession.' 10 It is sufficient here to note that the above definition, and the other definitions of inappropriate practice in s 82 of the Act, make plain that the scheme is concerned with professional conduct that a practitioner's professional peers would consider unacceptable. Where a judgment in that regard is required, it is made by a Professional Services Review Committee to which the Director has made an adjudicative referral under s 93. Section 95(2) ensures that the members of a Professional Services Review Committee are practitioners who belong to the profession in which the practitioner was practising when he or she rendered or initiated the referred services. 14 As mentioned above, on 28 June 2002 the Commission, by its delegate Dr Houston, made the Investigative Referral. No criticism has been made of the instrument of referral although it appears not to have been drafted in accordance with the construction placed on s 86 and s 87 of the Act by Finn J in Pradhan [2001] FCA 1560 ; 125 FCR 280 at [14] - [17] . As his Honour observed, s 81 defines 'referred services' relevantly to mean 'the services particulars of which are contained in the referral in accordance with paragraph 86(4)(a)' . That paragraph encompasses all services rendered or initiated during the referral period by, relevantly, the person under review. 15 The Investigative Referral specified particularly Dr Carrick's conduct in connection with the rendering of certain services identified by reference to MBS item numbers including MBS item 30487. MBS item 30487 represents small bowel intubation with biopsy. 16 The instrument of referral set out the reasons why the Commission considered Dr Carrick may have engaged in inappropriate practice as follows: 'Within the scope of Dr Carrick's conduct in connection with the rendering or initiating of the above services, the HIC is concerned that, as indicated by her practice profile, Dr Carrick may have: • rendered or initiated services that were not necessary; • not provided an appropriate level of clinical input to the services; • not provided appropriate 'professional services' to her patients, or • not satisfied the requirements of the relevant items in the Medicare Benefits Schedule Book and the Schedule of Pharmaceutical Benefits. The concerns of the HIC have been identified and analysed by: • a review of Dr Carrick's practice statistics; • a comparison of those statistics with the data concerning the practice of all active medical practitioners and surgery non-specialists in Australia; • a counselling meeting between a HIC Medical Adviser and Dr Carrick where the above referred conduct was discussed; • a report of that meeting between the HIC Medical Adviser and Dr Carrick ... ; and • a review of Dr Carrick's practice statistics since counselling. The HIC determined there had been insufficient change to remove the overall concerns about the referred conduct above. Taking into account the concerns which are outlined above, the HIC is of the view that Dr Carrick may be engaging in inappropriate practice within the meaning of section 82 of the Act and that the conduct should be referred for consideration by the Director of Professional Services Review.' (footnote omitted)


case_title: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 1944 CLR 355

case_text: In any event, I see no reason to conclude that the Determination, considered in the context of the Act and s 106K in particular, discloses an intention that, where a preliminary random sample is in fact random, the findings of a Committee should be rendered invalid because the Committee itself failed to 'ensure' that the preliminary random sample was random ( Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355).


case_text: The circumstances in which indemnity costs may properly be awarded were further discussed by Sheppard J in Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 at 232 234. The passage is well-known, and I will not set it out in these reasons for judgment. It is sufficient simply to observe that his Honour recognised that the ordinary rule is that, where the Court orders the costs of one party to be paid by another, those costs will be assessed on a party and party basis. However, there may be factors that warrant the Court in departing from the usual course. His Honour then identified some of those factors. 6 The examples which his Honour gave are illuminating. They include making allegations of fraud knowing them to be false, evidence of particular misconduct that causes loss of time to the Court and to other parties, the fact that the proceedings were commenced or continued for some ulterior motive or in wilful disregard of known facts or clearly established law, and an imprudent refusal of an offer to compromise. 7 Importantly for present purposes, his Honour also identified as a basis for the award of indemnity costs the making of allegations which ought never to have been made, or the undue prolongation of a case by groundless contentions.


case_text: The power to award solicitor and own client costs can be exercised where there is some special or unusual feature associated with the case which warrants that course. In Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 Woodward J said (at 401): "I believe that it is appropriate to consider awarding "solicitor and client" or "indemnity" costs, whenever it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law. Such cases are, fortunately, rare. But when they occur, the court will need to consider how it should exercise its unfettered discretion."


case_text: There are other formulations to similar effect, some of which were discussed recently by Sackville J in Seven Network Limited v News Limited [2007] FCA 1489. Basically, they contemplate that there can be a departure from the usual rule where an application can be seen to have had no chance of success. The respondents contend that the present application matched that description. The evidence-in-chief on behalf of the applicant was filed by affidavit. It ought to have been obvious that it did not support the existence of any agreement of the type alleged and was, in any event, at odds with the case as pleaded. 9 The strongest point in support of the respondents' claim for solicitor and own client costs is the fact that applicant was put on notice of the disconformity between his case as pleaded, and the evidence led in support of that case, but elected to ignore the warnings given. 10 The applicant, in his submissions, conceded that the respondents were entitled to an order for costs. However, he submitted that the order should be costs in the usual form, that is, on a party and party basis. 11 The applicant submitted that it was clear that no amendment of his pleadings would have assisted him because, even on his own version of the facts, there was never a concluded agreement of the type alleged. The real issue was whether, properly advised, he should have known that his case was so hopeless that it should never have been brought. 12 As the applicant correctly submitted, it is often a matter of fine judgment as to whether the evidence available in support of a claim warrants instituting a proceeding, or continuing with a case once brought. In this case, the respondents did not seek summary judgment. They did not, at the conclusion of the applicant's case, submit that there was no case to answer. They did not suggest that the applicant had instituted this proceeding with any ulterior motive. They did not establish, or perhaps even seek to establish, that the applicant's evidence, taken as whole, was deliberately untruthful. In fact, I specifically found that he was basically honest, but somewhat out of his depth. 13 In my opinion, the respondents have not established any proper basis for a departure from the usual rule. There will be an order that the applicant pay the respondents' costs on a party and party basis, such costs to be taxed in default of agreement. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg . Associate: Dated: 3 October 2007 Counsel for the Applicant: Mr R G Squirrell Solicitor for the Applicant: Kahns Lawyers Counsel for the Respondent: Mr L Glick SC and Mr A T Schlicht Solicitor for the Respondent: Strongman & Crouch Date of Submissions: 19 and 26 September 2007 Date of Judgment: 3 October 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1533.html


case_text: In connection with issues of novelty, inventiveness and construction of patents, courts frequently rely upon the evidence of skilled addressees. Such a person would presumably be a person of ordinary skill in the relevant art, possessed of the common general knowledge in that art at the relevant time. See, for example, Freeman v TJ and FL Pohlmer Pty Ltd [1994] FCA 1568 ; (1994) 30 IPR 377 at 381 . In connection with novelty and inventiveness, the focus upon such a "skilled addressee" is designed to identify objectively the relevant prior art base and the obviousness of any development going beyond that base. I am not presently concerned with such issues. Where words have a special meaning in the relevant art, it may be necessary that expert evidence concerning such meaning be given by a person skilled in the art. However there is no suggestion of that in the present case. RTI does not dispute the construction of the patent advanced by Mr Davis. Where the words are common technical or scientific words, not limited to use in the particular art, a wider class of persons may be competent to give such evidence. Further, the question of construction is ultimately for the Court. 16 Section 79 of the Evidence Act 1995 (Cth) provides: If a person has specialized knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge. 17 In his evidence Mr Davis seeks to compare with the RTI patent, particular samples of the product which OMI proposes to market. Mr Davis also seeks to compare those samples with the OMI patent. Counsel for RTI correctly points out that the diagrams attached to Mr Davis's reports do not precisely depict the OMI samples which are in evidence. However the differences do not seem to be significant. I will discuss them in more detail at a later stage. Mr Davis's evidence is obviously based on his reading of the patent in light of his training and experience. That evidence may assist me to compare the samples which are exhibited to Mr Jenkins' affidavit filed on 25 June 2007 with the claims of the OMI patent and the RTI patent. However it is for me to decide all questions of fact. Mr Davis's evidence can do little more than offer an explanation as to the way in which each "feature" in the respective patents may or may not be present in the OMI samples.


case_title: Bride v KMG Hungerfords [1998] FCA 412

case_text: the affidavit in support of his application for an extension of time, Mr Conley recites a conversation which he says he overheard between solicitor and Counsel for the Bank during the District Court proceedings. The substance of that conversation relates to the creation by the Bank of ' an indefinite delay through [the issue of] bankruptcy proceedings ' against him. The conversation is denied and evidence of it was not before the primary judge. No explanation was given why it was not adduced. It would constitute new evidence on the appeal and a grant of leave to rely on it would be prejudicial to the Bank. This is a circumstance that argues against the proposed ground being argued on appeal. A sequestration order should not be refused if, apart from that alleged motive, the Bank is entitled to the order sought ( In re King; Ex parte the Commercial Bank of Australia (No 2) [1920] VLR 490 at 510; Bride v KMG Hungerfords [1998] FCA 412 at 9) . His Honour found that to be the case.


case_title: In re King; Ex parte the Commercial Bank of Australia (No 2) [1920] VLR 490


case_text: if the period of time between his Honour's judgment and the publication of written reasons is sufficient to explain the delay, it is necessary to look at the merits of the proposed appeal to determine whether or not special reasons have been shown as to why there should be an extension of time ( N1202/01A v Minister for Immigration & Multicultural Affairs (2002) 68 ALD 21 at [13]). No draft notice of appeal has been prepared by Mr Conley and he does not seek an adjournment of this application in order to prepare that document. In the absence of any draft notice of appeal, I repeatedly asked Mr Conley to identify the proposed grounds of appeal. In response, Mr Conley consistently raised the same ground of appeal, that he had filed substantial material before his Honour and that his Honour had not and could not have read all of the material in detail in the time available to him. The consequence of that alleged failure was said to be that his Honour did not consider the evidence in the filed material and its relationship to the ground there pressed. The contention before his Honour was that the proceedings in this Court ('the bankruptcy proceedings') were commenced and continued by the respondent ('the Bank') as an abuse of process. The abuse of process is said to be the issuing of the bankruptcy proceedings by the Bank for the purpose of delaying indefinitely proceedings that Mr Conley had commenced against the Bank in the New South Wales Supreme Court ('the Supreme Court proceedings'). The Supreme Court proceedings concern the manner in which the Bank, as mortgagee, exercised a power of sale over Mr Conley's home. When asked to identify any evidence in the material tendered before his Honour directly probative of that assertion, Mr Conley was unable to do so. In fact, he conceded that there was no direct evidence of that nature. The evidence that was tendered, which included the statement of claim filed in the Supreme Court proceedings, concerned the matters in dispute in those proceedings. Mr Conley's submission is that his Honour should have inferred from the whole of that evidence that the bankruptcy proceedings in this Court were an abuse of process. Some difficulty arises in substantiating that allegation of abuse of process because the Supreme Court proceedings were commenced on 26 June 2006, almost 5 months after the issue of the bankruptcy notice founding the proceedings in this Court. It is hard to understand how the bankruptcy proceedings could have been commenced with a view to delaying indefinitely Supreme Court proceedings which had not yet been commenced. However, Mr Conley asserts that the Bank would have been aware from previous proceedings against it in the District Court of New South Wales ('the District Court proceedings') that he intended to commence the Supreme Court proceedings. This matter has a complex litigation history which need not be set out here. The primary judge in his reasons set out that history in some detail, referring to the District Court proceedings, proceedings in the Local Court of New South Wales and the Supreme Court proceedings (at [1] to [9]). While his Honour did not refer in detail to the evidence before him, he was satisfied that there ' is a bona fide dispute that Mr Conley could raise in litigation to contest the exercise of the power of sale ' (at [5]). His Honour was also satisfied that the statement of claim in the Supreme Court proceedings discloses a bona fide cause of action which was not colourable as an abuse of process (at [11]) . His Honour noted that it was for the trustee in bankruptcy to decide whether to prosecute the Supreme Court proceedings if a sequestration order were made (at [20]). The primary judge, having been presented with an admission by Mr Conley that he was insolvent, considered his task to be an inquiry as to whether Mr Conley had shown sufficient cause why a sequestration order ought not to be made pursuant to s 52(2)(b) of the Bankruptcy Act 1966 (Cth) (at [13] to [14]). His Honour had regard to the public interest and concluded that he was not so satisfied (at [20] to [21]). Although Mr Conley submits that the primary judge should have inferred from the whole of the evidence before him that the bankruptcy proceedings in this Court were an abuse of process, no allegation of an abuse of process was clearly presented to his Honour. Mr Conley refers me to the first ground in his notice of grounds of opposition to the creditor's petition filed in this Court before his Honour. Ground 1 in that notice states: ' The Applicant is manipulating the Court System to avoid or make it as difficult as possible for the Respondent to progress an ongoing claim against the Applicant in future court proceedings involving the fraudulent mortgagee sale by the Applicant of a property previously owned by the Respondent. ' By reference to the transcript before the primary judge, it is apparent that this ground was not pressed or dealt with in any detail before his Honour. The only reference to a possible abuse of process that the parties identified in the transcript of the proceedings before his Honour is a statement made by Mr Conley in the context of a discussion of the effect of the bankruptcy on him. Mr Conley submitted that the bankruptcy proceedings were intrusive, that he was unable because of personal reasons to pursue his proceedings and that: '[i] t is a very curious matter, because it is only doing this to make it as difficult as possible for me to proceed in the Supreme Court. ' That submission, in the absence of any evidence, was insufficient to raise for consideration an allegation as serious as an abuse of process. It did not provide sufficient support to ground 1 in the notice of opposition. An affidavit was tendered before his Honour which had been filed in the Federal Magistrates Court by Mr Conley on 6 March 2006. It annexed a number of medical reports on which Mr Conley relied. That affidavit included a paragraph stating in general terms that the respondent was attempting to prevent Mr Conley from pursuing further claims in the Supreme Court. His Honour's attention was not drawn to the paragraph which, in any event, is cast in an inadmissible form and has the difficulties referred to at 11 above.


case_text: proceeding was heard concurrently with proceeding VID 337 of 2008; see Piotto v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 1115. Each proceeding arises out of "Newstart participation failures" imposed on Mr Piotto by the respondent and subsequent decisions of the Administrative Appeals Tribunal ("the Tribunal") to affirm those decisions. The applicant, Mr Piotto, is a long term recipient of a Newstart allowance. In 2008, Mr Piotto received job search and other assistance from MatchWorks, on behalf of Centrelink. Centrelink administers the Social Security Act 1991 (Cth) ("the Act") on behalf of the respondent and other Commonwealth Government departments. Centrelink imposed a Newstart participation failure on Mr Piotto in 2008. The Newstart participation failure arose from Mr Piotto's failure to enter into a Newstart Activity Agreement on 30 September 2008 ("the Participation Failure"). As a result of the Participation Failure, Mr Piotto's Newstart allowance was cancelled with effect from 26 September 2008. These reasons should be read in conjunction with the reasons in Piotto and especially in respect of the relevant legislative background which is set out in Piotto at [10] [15]. Mr Piotto seeks an order from this Court overturning the Participation Failure and reinstating his Newstart allowance. Mr Piotto also seeks other orders which are not necessary to traverse. On 26 May 2009, Mr Piotto filed a notice of motion seeking an order that "The respondent resume Newstart appeal payments for the applicant, from the date they were terminated 26 September 2008 and order that no reporting is required". In submissions before the Tribunal, the respondent argues that a valid delegation existed by virtue of an instrument executed by the respondent on 27 June 2008, Instrument DEEWR SSL 3 of 2008. That instrument, with effect from 27 June 2008, delegates the respondent's power: to each person engaged by an Employment Services Provider to perform functions or to perform services under a relevant arrangement, each of my powers under or referred to in a provision of the Social Security Act 1991 or the Social Security (Administration) Act 1999 contained in Schedule 1 of this instrument, subject to the limitations in Schedule 1. The powers listed in Sch 1 to the delegation include the powers conferred on the respondent by ss 605 and 606 of the Act. Employment Services Providers include an "organisation that performs functions or provides services for the purposes of the social security law" pursuant to the Employment Services Contract 2006 2009 ; see cl 3(b). The instrument of delegation is in the same terms as that discussed in Piotto at [23] [24]. The respondent in its submissions to the Tribunal identified MatchWorks as falling within cl 3(b) of the instrument of delegation, namely that MatchWorks was an organisation which provides services to the respondent pursuant to the Employment Services Contract 2006 2009 . The ability of Mr Piotto to engage in negotiation of a Newstart Activity Agreement is discussed in Piotto at [32] [33]. Additionally, as noted in Piotto at [37] [39], a failure to negotiate a Newstart Activity Agreement is not a reasonable excuse for refusing to enter into an agreement for the purposes of s 624(2) (2B) of the Act. Additionally, Mr Piotto has not demonstrated he had a reasonable excuse for refusing to enter into the Newstart Activity Agreement. As noted in Piotto at [38], the matters which will constitute a reasonable excuse for the purposes of s 624 of the Act are serious matters which have a significant impact on that person's ability to comply with the requirement to enter into a Newstart Activity Agreement; see also cl 4(2) of the Social Security (Reasonable Excuse) (DEWR) Determination 2006 (Cth). I do not consider that Mr Piotto's disagreement over which terms were suitable for inclusion in the Newstart Activity Agreement constitutes a reasonable excuse for the purposes of the Act. In this respect, the Tribunal's decision to uphold the Participation Failure imposed on Mr Piotto was correct. The fourth ground of appeal fails. The notice of motion filed on 26 May 2009 was not agitated by Mr Piotto at the hearing of this proceeding. The relief sought by Mr Piotto in that notice of motion is not relief which it is within this Court's powers to grant. In any event, in light of the issues discussed above, I see no basis for dealing with Mr Piotto's notice of motion further.


case_text: Lim v Secretary, Department of Education, Employment and Workplace Relations (No 2) [2008] FCA 1752 at [41] , Bennett J observed that there is no requirement for the employees of Employment Service Providers to identify the basis of their delegated power before signing a Newstart Activity Agreement with a job seeker. Justice Bennett considered the crucial issue to be whether a valid delegation had been made. At [19], Bennett J found that the respondent in Lim had proven that: In contrast to the circumstances described in Lim , the respondent did not produce evidence before the Tribunal to show that MatchWorks provided services to the respondent pursuant to an arrangement described in cl 3 of the delegation, or that the relevant employees of MatchWorks were employed to perform functions and provide services pursuant to that arrangement. In particular, no document was before the Tribunal to show that MatchWorks was an Employment Service Provider within the meaning of cl 3(b) of the delegation. The mere assertion in submissions that such was the case is not tantamount to evidence before the Tribunal. Accordingly, I am not satisfied that there was any material on which the Tribunal could conclude that a valid delegation from the respondent to MatchWorks was in place at the time of the Participation Failure. The application must be remitted to the Tribunal. Although it is not strictly necessary to do so the Court will deal now with the other issues raised in argument. No negotiation of the Newstart Activity Agreement Mr Piotto also alleges that the Tribunal erred in not finding that there was no negotiation of the Newstart Activity Agreement for the purposes of s 605(3) of the Act.


case_text: any event, as French J observed in Despot v Department of Family and Community Services [2004] FCA 140 at [40] in relation to the alleged denial of a right to negotiate a Newstart Activity Agreement, "This is not a ground which raises any question of law upon which a review of the AAT decision could be based". The second ground of Mr Piotto's application fails. The respondent's ability to require Mr Piotto to sign a Newstart Activity Agreement


case_text: Piotto also contends that the Tribunal erred in finding that the respondent was able to require him to sign the Newstart Activity Agreement. To support this proposition, Mr Piotto relies on Re Hewitson and Secretary, Department of Family and Community Services (2002) 71 ALD 231. Hewitson is a decision of the Tribunal and is not binding on this Court. The Tribunal, in Hewitson , found that the relevant question under s 607(1)(b)(ii) of the Act, as it then was, was whether the Newstart recipient has "agree[d] to terms of the agreement proposed by the Secretary". The section of the Act in place at the time of Hewitson dealt with a failure to negotiate an agreement and delaying unreasonably entering into an agreement. The Tribunal found that as Mr Hewitson had evinced an intention to be bound by the terms of the agreement, his signature was not required. At the time of Mr Piotto's Participation Failure, s 607(1)(b)(ii) of the Act considered by the Tribunal in Hewitson was no longer in force. Rather the Act at the time of the Participation Failure, provided that a Newstart allowance recipient commits a participation failure if the person "fails to comply with a requirement to enter into a Newstart Activity Agreement"; see s 624(1)(d) of the Act. Its language differs markedly from that employed in the previous s 607(1). Indeed, a Newstart Activity Agreement must be a written agreement between the Newstart recipient and the respondent; see s 605(4) of the Act. It follows from this requirement that there must be some written indication of Mr Piotto's consent to its terms. There is no material to suggest that Mr Piotto complied with the requirement in s 624(1)(d) of the Act to enter into a Newstart Activity Agreement. The third ground of Mr Piotto's application fails. The Newstart Activity Agreement was "inherently faulty" Mr Piotto also alleges that the Newstart Activity Agreement offered by MatchWorks was unreasonable and "inherently faulty" as it did not comply with s 606 of the Act. In doing so, Mr Piotto points to what he says is the intention of MatchWorks to unilaterally change the terms of the Newstart Activity Agreement, the requirement to complete ten job searches each fortnight and the requirement that Mr Piotto perform "work for the dole".


case_outcome: discussed

case_text: The appellants now appeal to this Court. Essentially the duress alleged was the threatened and actual deprivation of Ms Wills of weekend work. The appellants attack some of his Honour's fact finding. They say that even accepting the facts as found, a case of contravention was not made out. They say there was a misunderstanding of the principles laid down in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 at 359-362. They say the reasons given by his Honour were inadequate. 4 Ms Wills started work at the Tavern on 14 February 2005. At the time she was nineteen. She had commenced studying a course of business management at the University on a full time basis in 2004 and was still engaged in those studies. She worked predominantly as a waitress in the restaurant but occasionally in the kitchen. 5 Up until August 2006 Ms Wills worked generally three or four dinner shifts during the week and also on weekends when she was regularly rostered to work both days. She was almost always rostered to work on the Sunday lunch shift. The work roster at the Tavern for each week was written on a sheet of paper displayed on a wall between the kitchen and the bar, usually one or two weeks in advance. The employee responsible for compiling the rosters was Mr Michael Taylor. He was the head chef and had worked at the Tavern for over ten years. He was Ms Wills' immediate superior. She often spoke with Mr Taylor about the number of shifts per week that she wanted to work. She told him she needed to work four or five shifts per week or approximately fourteen hours in order to meet her financial commitments. 71 The appeal grounds can be summarised as follows: • His Honour erred in finding that duress was applied in connection with an AWA (Grounds 1-8, 11); • His Honour misapplied the principles laid down in Briginshaw v Briginshaw at 359-362 (Ground 9); • Findings concerning Ms Wills being a "ringleader" and that her work hours changed "dramatically" were not open (Ground 10). Other errors were alleged in a "Schedule of Fact Finding Errors"; • His Honour failed to properly consider and deal with the appellants' submissions (Ground 12). Ground 13, alleging that the penalties were excessive, was not pursued. 72 There were ten matters complained of under this heading. 73 "Pressure" not applied in connection with AWA . Plainly the evidence established that Mr Hibberd was keen to have AWAs signed by employees, especially because he had discovered that he did not have a valid AWA regime existing. All his dealings with Ms Wills referred to by his Honour were directed towards her signing an AWA, indeed they were concerned with little else. Prior to the AWA issue Ms Wills had virtually no contact with Mr Hibberd. The change to her weekend rosters was obviously intended to disadvantage her in the context of her resistance to signing an AWA. It is hard to see how his Honour could have come to any other conclusion. 74 It was submitted before his Honour that the respondent had to establish that the conduct of Mr Hibberd amounted to a "compulsion of the will of Ms Wills such as to have the effect of giving her no other practical alternative than to sign the AWA". There had to have been an "overbearing of the will". 85 His Honour said: 32 I accept, as both parties submitted, that the principles applicable in Briginshaw v Briginshaw and Another [1938] HCA 34 ; (1938) 60 CLR 336 ("Briginshaw") should be applied to allegations such as duress. I note that, not surprisingly, the Respondents sought to place the definition of duress, as it were, at the highest level. It was submitted (First and Second Respondents' outline of closing submission) that "clear, cogent, strong and strict proof is required" (paragraph 1). 33 The authority cited in support of that proposition as a footnote was the observation of Ryan J in Canturi at [44]. What Ryan J actually said at paragraph [44] was: I accept that the onus of proving duress remains on the applicants and it is one which, having regard to the seriousness of the alleged contravention, has to be proved to the reasonable satisfaction of the Court in accordance with Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336. 34 In my view it is preferable to approach an issue such as a finding of duress in accordance with what are well established principles. To seek to elevate duress to any particular level of significance is only likely to cloud the issues. While I bear well in mind the observations of the Courts as to the hesitations that should be borne in mind in considering issues both of duress generally and even more so of economic duress, it seems to me that in the ultimate the Court is faced in this instance with an alleged breach of the terms of a subsection of the Act, which is required to be proved to the satisfaction of the Court in accordance with Briginshaw principles. 86 Later at [295] his Honour said that he was satisfied of "all the above matters" (ie the matters in [292]-[294] quoted at [70] above) "to what Ryan J in Canturi described as 'the requisite degree' when referring to Briginshaw principles". 87 The complaint of the appellants on the appeal centred on his Honour's statement that the appellants "sought to place the definition of duress at its highest level" (at [32]). This was said by the appellants to manifest a misunderstanding "of the application of the Briginshaw principle to the case before him". 88 I think that all his Honour was conveying was that the appellants had submitted, as might have been expected, that duress was a serious allegation. It is inherent in the forensic process that a defendant will stress the seriousness of the charge alleged, be it civil or criminal. As counsel for the respondents submitted, correctly (and, in the light of the recent Full Court decision to be discussed hereafter, presciently), the principle in Briginshaw is simply that serious misconduct is not lightly to be found because it is not ordinarily engaged in by members of the community. 89 In any event, it may be that, if anything, his Honour's application of Briginshaw was too favourable to the appellants. I say that because the true nature and effect of Briginshaw has recently been the subject of detailed analysis by Branson J (with whom French and Jacobson JJ agreed) in Qantas Airways Ltd v Gama [2008] FCAFC 69. 90 Branson J explained that expressions like "the Briginshaw standard" and "the Briginshaw test" should be avoided because of their tendency to mislead. Her Honour cited (at [124]) the well known passage from the judgment of Dixon J in that case at 361-362: Fortunately... at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. Her Honour emphasised at [125]-[126] that Dixon J was speaking of "allegations", that is to say individual allegations of material fact, rather than, for example, causes of action. Nor did Dixon J identify any particular standard; rather that the tribunal of fact, before accepting the truth of evidence of a particular allegation, should give consideration to the nature of the allegation and the likely consequences which follow should it be accepted. 94 Applying that approach to the present case, it may be doubted whether the particular allegations of fact in this case, for example that Mr Hibberd or Ms Bercheree said or did such and such or had such and such intention, really involve allegations of particular gravity. They are to be contrasted with allegations of adultery ( Briginshaw ) or fraud ( Rejfek ). The AWA regime is, or was at the time, part of a complex statutory industrial law system. Knowledge of its full ramifications amongst all employers is not self-evidently a circumstance on which courts can safely rely. Breaches of the law may well occur in ignorance. Moral opprobrium does not necessarily attach. Of course, particular factual allegations in AWA duress cases may involve allegations of reprehensible behaviour; see, for example, the conduct in Jordan . While the conduct alleged against Mr Hibberd certainly warranted the learned Magistrate's criticisms, I doubt if it could be characterised as conduct inherently unlikely to be engaged in by employers. 95 In the light of the Full Court's decision in Gama one does not say: "Contravention of s 400(5) is a serious matter; therefore the Briginshaw standard applies". Rather, the fact finder must look at the particular factual allegations. They can vary infinitely. Before reaching a finding which accepts those allegations as true (the onus of course being on the applicant), the fact finder must, amongst other things, take into account the gravity of the particular allegations: s 140(2)(c). Once the facts are fully found, including the making of inferences from primary fact, the question whether those facts fall within the statutory prescription of applying duress in connection with an AWA is a question of law: Hope v City of Bathurst [1980] HCA 16 ; (1980) 144 CLR 1 at 7. 96 Gama is an important decision, not least for throwing light on an intriguing phenomenon in Australian professional legal culture. The resilience of the common law is such that in practice the Evidence Act is often overlooked. In my own experience, in the period of well over a decade since the Evidence Act was introduced Briginshaw is without fail cited in witness actions with the possible exception of patent infringement cases but I do not recall ever being referred to s 140. This is not to say it never happens, but a search of the Federal Court internal judgment database reveals only six decisions, apart from Gama , (including one in the Full Court) in which the covering list of legislation and cases cited refers to both s 140 and Briginshaw .


case_text: Whatever may be the position in other contexts, s 400(5) does not require, as an essential element of contravention, an overbearing of the will of the employee. There can still be a contravention even if, as in the present case, the employee does not sign the AWA and thus has not had his or her will overborne. By contrast, at common law the question of duress will usually only arise where the plaintiff is seeking to avoid the consequence of some act or event allegedly produced by the duress of the defendant, such as the payment of money or the entering into a contract. In Canturi v Sita Coaches Pty Ltd (2002)116 FCR 276 at [43] Ryan J, after reviewing the authorities, stated the position as follows: In my view, the consensus of the authorities to which I have referred is that duress, in the relevant sense, involves the illegitimate application of pressure to induce a party to enter into an AWA, or to discourage a party from taking that course. What is illegitimate is a question of fact to be decided in the circumstances of each case which may include whether there is an existing relationship of employer and employee or some other relationship of utmost good faith between the parties to the proposed AWA. As is made clear by the last sentence in the passage from the judgment of the Full Court in Schanka [v Employment National (Administration) Pty Ltd [2000] FCA 202 ; (2000) 97 FCR 186 at [23] ] quoted at [36] above, it is not only pressure which in fact overbears the will of one party so as to result in an AWA being concluded that can amount to duress. Accordingly, I cannot accept the argument advanced on behalf of the respondents that "neither Napoli nor Canturi submitted to the alleged duress so it cannot be contended that their will was overborne, or that the conduct alleged against the respondents was illegitimate". 86 Later at [295] his Honour said that he was satisfied of "all the above matters" (ie the matters in [292]-[294] quoted at [70] above) "to what Ryan J in Canturi described as 'the requisite degree' when referring to Briginshaw principles".


case_text: Her Honour pointed out that the Evidence Act 1995 (Cth) contained a provision dealing with standard of proof in civil matters, viz s 140 , which is as follows: (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged. As her Honour had noted, with the concurrence of Kenny J, in Employment Advocate v Williamson [2001] FCA 1164 ; (2001) 111 FCR 20 at [65] , s 140(2) of the Evidence Act was intended to reflect the common law position as to the strength of evidence necessary to establish satisfaction on the balance of probabilities.