case_text: Lander J held that, in expressing conclusions, the tribunal did not need to identify which of the particular pieces of information it had relied upon for any particular conclusion, and thus rejected a submission that the tribunal had failed to have regard to the information ( VWFW [2006] FCAFC 29 at [72] ). He distinguished the facts of that case from that of a decision-maker who failed to take into account a relevant consideration which the decision-maker was bound to take into account, referring to Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24. He then concluded that the appellant's argument was, in truth, one that the tribunal had failed to give sufficient weight to the information contained in the two documents and that that submission had to fail: VWFW [2006] FCAFC 29 at [73] . 27 In Peko-Wallsend 162 CLR at 44-45, Mason J (with whom Gibbs CJ at 30 and Dawson J at 71 agreed on this issue) said that, once it was accepted that the subject-matter, scope and purpose of the Act in question there indicated that the detriment that may be occasioned by a proposed land grant was a factor vital to the exercise of the Minister's discretion, it was but a short and logical step to conclude that a consideration of that factor "... must be based on the most recent and accurate information that the Minister has at hand". 28 Mason J observed that considerable time might elapse between completion of the earlier report of a Commissioner and the time at which the Minister had to make a decision, which in that case was well over a year and a half. He said that the change of circumstances may mean that the previous comments were no longer an accurate guide. He continued ( Peko-Wallsend 162 CLR at 45): "It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker. This conclusion is all the more compelling when the decision in question is one which may adversely affect a party's interests or legitimate expectations by exposing him to a new hazard or new jeopardy." (emphasis added) 32 I consider that in Peko-Wallsend 162 CLR at 45, Mason J stated a principle of law generally applicable to administrative decision making, not a mere practice. Legislation may exclude the applicability of the principles of administrative law, as s 422B of the Act does in reducing the scope of the operation of the principles of procedural fairness or the rules of natural justice. But, the fundamental importance of these principles, as applied by the relevant statutory scheme in which they operate, is to ensure that a decision is arrived at lawfully; i.e. in the manner authorised by the Parliament: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 at 160-161 [25] - [26] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. A departure from the procedure mandated by law, ordinarily will lead to the Court setting aside the decision because the decision-maker acts outside the power and authority conferred by the legislation. However, the Court retains a discretion to withhold constitutional writ relief if the departure from the proper procedure would make no difference to the result, or some other recognised ground for exercising the discretion is present: SZBYR v Minister for Immigration & Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 at 618 [28] - [29] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. 36 However, those cases did not apply or qualify the principle identified by Mason J in Peko-Wallsend 162 CLR 44-45 that "... an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made" and that should be the most current material available to the decision-maker. Indeed, in VWFW [2006] FCAFC 29 at [68] - [69] , Lander J noted there that the first item of country information relied on suggested that the previous information was still current, and the second item of country information relied on was consistent with the tribunal's findings. 37 More importantly, the principle in the passage from Peko-Wallsend 162 CLR at 45 that I have set out above is distinct from the requirement considered earlier by Mason J in that judgment, namely that a decision-maker must take into account relevant considerations and not take into account irrelevant ones: Peko-Wallsend 162 CLR at 39-42. In other words, the issue which arises here is whether the decision-maker, the tribunal, was obliged to make its decision "on the basis of the most current material available to [it]": Peko-Wallsend 162 CLR at 45. 38 In my opinion, the critical question for the tribunal to decide under s 36(2)(a) of the Act is whether, at the date of its decision, the applicant for a visa is a person to whom Australia has protection obligations under the Refugees Convention. An adverse conclusion can result in an applicant for review being returned to his or her country of origin, despite his or her claim to have a well-founded fear of persecution were he or she to return there. And, if that occurs, he or she might be exposed to the possibility that the fear was in fact well-founded. 39 Often, circumstances can change radically in the applicant for review's country of origin between the time he or she arrived in Australia and when the decision-maker makes a decision under s 36(2) of the Act. In this time period, repressive governments may be toppled, democracies may suffer coups d'état and continuing governments may change their domestic policies to become more or less oppressive. 40 If the decision-maker has actual notice of a recent and significant matter affecting the question whether the applicant for a protection visa has a well-founded fear of persecution in his or her country of origin, the subject-matter, scope and purpose of s 36(2)(a) require the decision-maker to base his or her decision, as to whether the fear claimed is well-founded, on that information: Peko-Wallsend 162 CLR at 45. This is not to say that the decision-maker is obliged to find that the applicant in fact has satisfied him or her that the applicant, for example, has a religious belief as claimed simply because the latest information actually available to the decision-maker (i.e. before him or her) supports a conclusion of persecution of adherents of that religion in the applicant's country of origin. Rather, it is to say that in evaluating the claimed fear, the most recent information is relevant and must be considered. 41 The claim of a black person that he or she would suffer persecution for reasons of his or her race, by being subjected to slavery if he or she returned to one of the Confederate States in North America, would be viewed through very different eyes in 1861 and today. And the aphorism that a week is a long time in politics is not a merely local observation. The trend of events throughout the world is one of constant charge. A decision-maker charged with the important function of assessing whether Australia owes protection obligations to an applicant for a protection visa cannot ignore recent, up to date information actually before him or her and make a decision on earlier material which may be out of date. 42 Again, the decision-maker must not simply defer to the recent material because it is recent, for that would be to abjure the statutory function of arriving at his or her own state of satisfaction. The tribunal must be able to assess and weigh country information in forming its own ultimate conclusion on that information. And, there is no unqualified obligation for the tribunal to search out country information which it does not already have before it. The potential sources of such information are vast and of varying degrees of relevance, reliability, (im)partiality and utility. The recent material may not be cogent, full, accurate or satisfactory. But those characterisations could only be arrived at as part of the decision-maker evaluating the recent material in the performance of his or her function of basing the decision on the most recent and accurate material that the decision-maker has at hand: Peko Wallsend 162 CLR at 45. 50 The tribunal failed to have regard to or give any reason for rejecting the recent country information in DFAT report 404 that the one child was strictly enforced in Fujian Province, contrary to its assertion that there was a "considerable relaxation" of that policy. Yet it used the up to date information from the same source for the purposes of finding that the social compensation fee could be paid in instalments. It did not give genuine, proper and realistic consideration to the merits of the appellants' claims as to enforcement of family planning law in China. Although the Minister argued that this was a matter either of weight or selection of evidence, I am satisfied that the tribunal ignored the most up to date and recent material available to it in DFAT report 404: Peko-Wallsend 162 CLR at 45. Accordingly, I am of opinion that the tribunal made a jurisdictional error and her Honour erred in failing so to find. 51 The appellants criticised the tribunal's use of DFAT report 404 in relation to the practice in Shandong Province for payment of the social compensation fee. For the reasons I have given, the tribunal was entitled to use this up to date information to the extent it did. While it did not have to accept the information, it had to base its decision on it: Peko-Wallsend 162 CLR at 45. I reject this argument. 52 The appellants also argued that the tribunal erred in failing to find that imposition of the fee would be persecutory of them. I am of opinion that this ground is without substance. The tribunal concluded that the fee was imposed by a law of general application. Her Honour concluded that this argument was an attack on the merits of the tribunal's decision. I agree. 53 The fifth basis on which the appellants challenged the tribunal's rejection of their claims based on the one child policy was that it had not made findings about the level of fee that would be imposed on the appellant parents for their breach or how long S would remain unregistered. 54 The tribunal accepted country information in many reports that stated that the Chinese authorities, first, applied the regulations dealing with the one child policy and, secondly, required payment of the social compensation fee (with the possible exception that the authorities might not apply the regulations and impose a social compensation fee in the case of a child conceived or, possibly, born out of China). The tribunal found that such a fee would be likely to be imposed on the parents in respect of S, were they to return to China. The Shandong regulations permitted a fee up to ten times the parents' income to be imposed. This may have required payment by instalments. The tribunal did not make any assessment of the real chance of a fee of a particular amount being imposed, nor did it address the capacity of the parents to pay any social compensation fee, even by instalments, within any particular period of time. As noted above, the tribunal discussed, at a high level of generality and speculation, the possible fee that may be imposed and possible scenarios as to how long it might take the appellant parents to pay it. This process, however, did not result in the tribunal making any finding about these issues.


case_outcome: cited

case_text: Of course, the Court cannot turn a review of the administrative decision into a review of the merits of the decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. Their Honours said that proceedings for judicial review should not over-zealously scrutinise the reasons of the decision-maker. Those reasons are meant to inform.


case_text: Her Honour said that no authority had been cited to her in support of the proposition that the tribunal was under an obligation to make its decision on the basis of the most country information reasonably available to it. She said that in VAO v Minister for Immigration and Multicultural Affairs [2002] FCAFC 31 Sundberg, Marshall and Weinberg JJ had held that the tribunal had no obligation "to seek out or act upon more recent information" at [25]. The trial judge said that it was open to the tribunal to prefer particular country information in arriving at findings of fact and that no jurisdictional error would be established if it did so or gave different weight to various items, relying on NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 and VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104 among other authorities.


case_outcome: distinguished

case_text: The appellants argued that the tribunal had ignored or failed to consider DFAT report 404 because it gave no reasons or source for the finding that there had been a "considerable relaxation of the one child policy in Fujian Provence" when DFAT report 404 suggested that the policy was strictly enforced. The tribunal was actually aware of that report since it referred to material in it for other purposes on the same page of its reasons. Her Honour held that the tribunal's finding of a "considerable relaxation" was consistent with the 2002 Home Office Country Report: SZJTQ [2008] FMCA 1188 at [51] . The trial judge said that the tribunal was entitled to form its own views as to the accuracy and weight of country information, relying on NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at 440 [81] per Young J with whom Gyles and Stone JJ agreed. Young J had said that it was not for the Court to reconsider the tribunal's factual findings as to an applicant's claims and what country information was relevant to the tribunal in determining whether those claims gave rise to a well-founded fear of persecution.


case_text: The principle identified by Mason J requires a decision-maker to make his or her decision on the basis of the most current material available to him or her at the time the decision is made, unless the legislation under which the decision is made excludes this duty: Darling Casino Ltd v NSW Casino Control Authority [1997] HCA 11 ; (1997) 191 CLR 602 at 624 per Gaudron and Gummow JJ with whom Brennan CJ, Dawson and Toohey JJ agreed on this issue at 609; see also Shi v Migration Agents Registration Authority [2008] HCA 31 ; (2008) 248 ALR 390 at 400 [42] per Kirby J.


case_text: The Minister argued that the appellants' complaint on this ground amounted to, in effect, a failure to give sufficient weight to the information contained in DFAT report 404. He relied on the reasoning on VWFW [2006] FCAFC 29 at [73] . He contended that the mere failure of the tribunal to refer to a piece of evidence which the Court thinks relevant does not, of itself, lead to the conclusion that the tribunal failed to take into account the relevant consideration: see Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 1113 at [27] - [29] per Jacobson J.


case_text: I consider that in Peko-Wallsend 162 CLR at 45, Mason J stated a principle of law generally applicable to administrative decision making, not a mere practice. Legislation may exclude the applicability of the principles of administrative law, as s 422B of the Act does in reducing the scope of the operation of the principles of procedural fairness or the rules of natural justice. But, the fundamental importance of these principles, as applied by the relevant statutory scheme in which they operate, is to ensure that a decision is arrived at lawfully; i.e. in the manner authorised by the Parliament: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 at 160-161 [25] - [26] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. A departure from the procedure mandated by law, ordinarily will lead to the Court setting aside the decision because the decision-maker acts outside the power and authority conferred by the legislation. However, the Court retains a discretion to withhold constitutional writ relief if the departure from the proper procedure would make no difference to the result, or some other recognised ground for exercising the discretion is present: SZBYR v Minister for Immigration & Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 at 618 [28] - [29] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.


case_title: SZBYR v Minister for Immigration & Citizenship [2007] FCA 26 ; (2007) 235 ALR 609


case_text: Recently, Buchanan J referred to the need for a decision maker to make his or her decision on the basis of the most current material available to him or her at the time the decision is made. He described this as an "expected practice", but in the circumstances of the matter he was deciding, he said that it was not necessary for him to consider the "expected practice ... as one in the nature of a jurisdictional imperative": SZIGH v Minister for Immigration & Citizenship [2008] FCA 1885 at [34] . This was because the tribunal had disbelieved the applicant for review in that case on matters completely unrelated to the more recent country information, which could not possibly have been relevant to events claimed to have occurred many years before. 31 Buchanan J was thus dealing with a factual context in which the recent material had no bearing on the outcome, and so the tribunal's error in failing to have regard to it did not affect its exercise of power in determining the review. I do not understand that his Honour was seeking to qualify the principle; rather he was explaining why it had no bearing on the ultimate exercise of power by the tribunal on the facts before him.


case_text: The tribunal was obliged to identify the evidence on which its finding of "considerable relaxation of the one child policy" was based pursuant to s 430(1)(d) of the Act. It did not make a jurisdictional error merely by failing to identify the evidence on which that finding was based. However, a decision-maker must give proper, genuine and realistic consideration to the merits of the case: Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457 ; (1987) 14 ALD 291 at 292 per Gummow J; see also Telstra Corporation Ltd v ACCC [2008] FCA 1758 at [106] where I collected the authorities.


case_title: VAO v Minister for Immigration and Multicultural Affairs [2002] FCAFC 31


case_outcome: followed

case_text: In VEAL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at 96 [16] Gleeson, Gummow, Kirby Hayne and Heydon JJ said: "Because principles of procedural fairness focus upon procedures rather than outcomes, it is evident that they are principles that govern what a decision-maker must do in the course of deciding how the particular power given to the decision-maker is to be exercised. They are to be applied to the processes by which a decision will be reached." (original emphasis) 34 Ordinarily, but not invariably, a failure to follow the procedures mandated by law necessarily affects the exercise of an administrative decision-maker's power, because the decision will be arrived at in a manner outside that authorising it; hence the need to pay particular attention in judicial review proceedings to the formalities of procedure in the path leading to the challenged decision.


case_title: VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104


case_text: The tribunal's decision occupied 49 pages of very small close typing. It extracted a great deal of material, sometimes repetitiously. The critical reasoning in its consideration of the one child policy was attacked on five bases below, which were repeated in the notice of appeal. These bases are: 1. The tribunal erred because it did not have regard to the most recent country information currently available to it. 2. The tribunal erred in finding that if the appellants had to pay a social compensation fee under applicable Chinese law, that would not amount to persecution within the meaning of s 91R(1). 3. The tribunal failed to enquire as to whether the social compensation fee was appropriate and adapted to a legitimate end so as to be a law of general application. (The appellants relied on the decision of Merkel J in VTAO v Minister for Immigration and Multicultural Indigenous Affairs (2004) 81 ALD 332 ; [2004] FCA 927 at [38] - [39] .) 4. The tribunal erred because it relied on the practice of authorities in Shandong Province as to payment of the social compensation fee identified in a Department of Foreign Affairs and Trade (DFAT) Report 404. That report said that this practice accorded with the position that DFAT had found the previous year, 2004, in Fujian Province, whence the husband and wife came. 5. The tribunal did not make findings in relation to the amount of the social compensation fee which was likely to be imposed on the parent appellants for their breaches of the one child policy, or the time that S would be a "black child" while any fee was unpaid. 10 The tribunal accepted that S would have the status of a "black child" initially on his return to China. However, it reasoned, on the basis of country information, that the status of a "black child" could be removed once the father paid a social compensation fee which would allow the child's registration. It accepted country information that all registered children were entitled to access to health and educational facilities, although a first child is given preference. 11 The tribunal concluded that it was satisfied that, like the general population in China, the parent appellants may suffer financial consequences for their breaches of the one child policy. However, it concluded that "this may indicate that the level of the penalty to which they may be exposed on return to China would not be applied on a differential or discriminatory basis" (emphasis added).


case_text: Her Honour reasoned that DFAT report 404 was not necessarily inconsistent with the tribunal's conclusion of a considerable relaxation of the one child policy in Fujian province. She pointed to the other evidence before the tribunal, to which I have referred, which pre-dated and post-dated the 2002 Home Office Report. The trial judge followed what she understood to have been the reasoning in VWFW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 29 at [64] - [73] per Lander J with whom Kiefel J at [8] and, on this issue, Grey J at [7] agreed. Lander J said that it was not possible to contend that the tribunal had failed to have regard to two pieces of country information when it sought and obtained that information and made direct reference to it in its reasons. 25 Lander J held that, in expressing conclusions, the tribunal did not need to identify which of the particular pieces of information it had relied upon for any particular conclusion, and thus rejected a submission that the tribunal had failed to have regard to the information ( VWFW [2006] FCAFC 29 at [72] ). He distinguished the facts of that case from that of a decision-maker who failed to take into account a relevant consideration which the decision-maker was bound to take into account, referring to Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24. He then concluded that the appellant's argument was, in truth, one that the tribunal had failed to give sufficient weight to the information contained in the two documents and that that submission had to fail: VWFW [2006] FCAFC 29 at [73] . 35 The Minister argued that the appellants' complaint on this ground amounted to, in effect, a failure to give sufficient weight to the information contained in DFAT report 404. He relied on the reasoning on VWFW [2006] FCAFC 29 at [73] . He contended that the mere failure of the tribunal to refer to a piece of evidence which the Court thinks relevant does not, of itself, lead to the conclusion that the tribunal failed to take into account the relevant consideration: see Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 1113 at [27] - [29] per Jacobson J. 36 However, those cases did not apply or qualify the principle identified by Mason J in Peko-Wallsend 162 CLR 44-45 that "... an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made" and that should be the most current material available to the decision-maker. Indeed, in VWFW [2006] FCAFC 29 at [68] - [69] , Lander J noted there that the first item of country information relied on suggested that the previous information was still current, and the second item of country information relied on was consistent with the tribunal's findings.


case_outcome: referred to

case_text: debate which had existed as to whether an applicant for interlocutory injunctive relief required to demonstrate a "prima facie" case, or a "serious question to be tried", a phrase, derived from the speech of Lord Diplock in American Cyanamid Co v Ethicon Ltd [1975] UKHL 1 ; [1975] AC 396 at 407 was resolved. These expressions may be used interchangeably so long as their meaning is understood. As their Honours said at [70]: There is then no objection to the use of the phrase "serious question" if it is understood as conveying the notion that the seriousness of the question, like the strength of the probability referred to in Beecham , depends upon the considerations emphasised in Beecham . In any event this application for an interlocutory injunction does not engage the adequacy of damages test set out in American Cyanamid Co v Ethicon Ltd [1975] UKHL 1 ; [1975] AC 396 at 408. That test applies where the injunction is to restrain interference with a legal right of the plaintiff. The ABCC's application is made in the public interest of improving the building and construction industry under a statutory capacity to so apply. It is not in respect of any interference with any legal right of the ABCC. The legislature plainly conferred on the ABCC powers to obtain interlocutory injunctions, damages and penalties as instruments for effecting that improvement: ICI Operations [1992] FCA 474 ; 38 FCR 248 per French J at [268]. No prejudice to the respondents


case_text: approach to justification is a useful, if imprecise, analogue for whether action taken in this case was "based on a reasonable concern" under s 36(1)(g)(i). Munro J in AMWU v Rheem Australia Pty Ltd (PR929970, AIRC, 9 April 2003) at [45] thought it to be so in respect to a predecessor provision namely s 124 of the Industrial Relations Act 1988 (Cth) .


case_outcome: applied

case_title: Australian Broadcasting Commission v O'Neil [2006] HCA 46 ; (2006) 227 CLR 57

case_text: Court is required to make two main inquiries. The first is whether the applicant has made out a prima facie case in the sense that if the evidence remains as it is there is a probability that at the trial of the action the applicant will be held to be entitled to relief. The second is whether the inconvenience or injury to the applicant if an injunction were refused outweighs or is outweighed by the injury the respondent would suffer if the injunction were granted: Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618 ; Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57. Gummow and Hayne JJ with whom Gleeson CJ and Crennan J agreed, in ABC v O'Neill [2006] HCA 46 ; 227 CLR 57 at [65] explained the application of "prima facie case" as used in Beecham : By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial.


case_outcome: considered

case_text: Court is required to make two main inquiries. The first is whether the applicant has made out a prima facie case in the sense that if the evidence remains as it is there is a probability that at the trial of the action the applicant will be held to be entitled to relief. The second is whether the inconvenience or injury to the applicant if an injunction were refused outweighs or is outweighed by the injury the respondent would suffer if the injunction were granted: Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618 ; Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57. Their Honours then referred to what was said in Beecham at 622: How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks. The debate which had existed as to whether an applicant for interlocutory injunctive relief required to demonstrate a "prima facie" case, or a "serious question to be tried", a phrase, derived from the speech of Lord Diplock in American Cyanamid Co v Ethicon Ltd [1975] UKHL 1 ; [1975] AC 396 at 407 was resolved. These expressions may be used interchangeably so long as their meaning is understood. As their Honours said at [70]: There is then no objection to the use of the phrase "serious question" if it is understood as conveying the notion that the seriousness of the question, like the strength of the probability referred to in Beecham , depends upon the considerations emphasised in Beecham .


case_text: apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more dubious claim, which nevertheless raises a serious question to be tried, may still attract interlocutory relief if there is a marked balance of convenience in favour of that claim: Mobileworld Operating Pty Ltd v Telstra Corporation Ltd [2005] FCA 1365 at [20] per Weinberg J, citing Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 at 472. The threshold for a serious question to be tried is not particularly onerous: Cahill v Construction, Forestry, Mining and Energy Union (2006) 151 IR 41, at [22].


case_title: Cahill v Construction, Forestry, Mining and Energy Union (2006) 151 IR 41


case_text: 38 of the BCII Act covers acts by persons other than employees. In Cahill v Construction, Forestry Mining and Energy Union (No 2) [2008] FCA 1292 ; (2008) 170 FCR 357 at [49] - [57] , Kenny J held that the words "a ban, limitation or restriction on the performance of building work" in paras (b) and (c) of the definition of "building industrial action" in the BCII Act covered the imposition of bans, limitations or restrictions by unions. Arguably s 38 extends to union officers in a case such as this. In any event the interlocutory injunction as against the CFMEU would, practically, be directed also at its employees, officers or agents. Further or alternatively, Mr McDonald and Mr Buchan and the CFMEU, are amenable to interlocutory injunctive orders under s 49 of the BCII Act by reason of the accessorial liability provisions of s 48(2) if a prima facie case is demonstrated that each aided, abetted, counselled or procured the contraventions by employees; or in the case of Mr McDonald and Mr Buchan that they were also directly or indirectly knowingly concerned in or a party to those contraventions. It will be sufficient for present purposes in relation to Mr McDonald and Mr Buchan, as respondents, if in due course, I consider only the question of accessorial liability under s 48, which of course depends on primary liability, upon a prima facie basis, being established against the CFMEU.


case_text: 39(3) is in the same terms as s 80(4) of the Trade Practices Act 1974 (Cth). In ICI Australia Operations Pty Ltd v Trade Practices Commission [1992] FCA 474 ; (1992) 38 FCR 248 Lockhart J (with whom French J agreed) said at 256-7: Subsections (4) and (5) of s 80 are novel because they empower the court to grant injunctive relief notwithstanding that the defendant has not previously engaged in the prohibited conduct or does not intend to engage in it again or to continue to engage in it or there is no imminent danger of substantial damage. Yet these are the traditional requirements for equitable injunctive relief. . . . In my opinion subss (4) and (5) are designed to ensure that once the condition precedent to the exercise of injunctive relief has been satisfied (ie contraventions or proposed contraventions of Pts IV or V of the Act), the court should be given the widest possible injunctive powers, devoid of traditional constraints, though the power must be exercised judicially and sensibly. . . . This does not mean that the traditional equitable doctrines are irrelevant. For example, it must be relevant to consider questions of repetition of conduct or whether it has ever occurred before or whether imminent substantial damage is likely: but the absence of any one or more of these elements is not fatal to the grant of an injunction under s 80. That is the effect of subss (4) and (5) (subs (4) in relation to the prevention of conduct and subs (5) in relation to a mandatory injunction). Their presence is not an indication of a new statutory house, rather an old house with some modern extensions. Gummow J at 267 came to essentially the same conclusion. Section 49 BCII Act Section 49(1)(c) and (3) of the BCII Act empower the Court to grant injunctions (including interim injunctions) in relation to a person who has contravened a civil penalty provision. Subsection 49(6) defines an eligible person to make an application under s 49(1) and (3) to include the ABCC. Thus, s 49(1) and s 49(3)(a) empower this Court on the present application, to make an interim injunction in relation to a person who has contravened s 38. This Court may grant injunctive relief under s 39 and its power to do so may, under s 39(3)(a), be exercised whether or not it appears that the respondents intend to engage again in the relevant conduct. The question of repetition is nonetheless of relevance to the exercise of the discretion, but the relevance is set in the particular context of public interest injunctions, as distinct from those related to private proprietary interests: ICI Australia Operations Pty Ltd v Trade Practices Commission [1992] FCA 474 ; (1992) 38 FCR 248 at 256/7 per Lockhart J; 267 per Gummow J; 268 per French J. The Court is inclined to grant an injunction in cases of statutory injunctions in the public interest where there has been unlawful conduct, in order to add contempt to the disincentives for repetition: per French J at 268 where his Honour said: There is room ... for an injunction that is intended not to restrain an apprehended repetition of contravening conduct but to deter an offender from repeating the offence. That deterrence is effected by attaching to the repetition of the contravention the range of sanctions available for contempt of court. In this case, a prima facie case has been established of contraventions which have already occurred twice over a combined period of 4 days. Danger of damage "to any person" On each of the days that industrial action occurred, the evidence is that the following persons suffered damage or were exposed to damage: (a) 5, 6 and 8 June 2009 - Diploma, Commercial Tiling Services Pty Ltd, Action Interiors Pty Ltd, Firesafe Systems Pty Ltd, Planet Plumbing (WA) Pty Ltd, Triple M Mechanical Services WA Pty Ltd, Micos Curtain Wall Australia Pty Ltd, D & Z Constructions, Ward Post Tensioning Pty Ltd, and Betta Bricklaying (WA) Pty Ltd. (b) 24 June 2009 - Diploma, Micos Curtain Wall Australia Pty Ltd, D & Z Construction, Ward Post Tensioning Pty Ltd, and Betta Bricklaying Pty Ltd. (c) 25 June 2009 - Diploma, Traditional Scaffolders Pty Ltd, Micos Curtain Wall Australia Pty Ltd, D & Z Construction, Ward Post Tensioning Pty Ltd, and Betta Bricklaying (WA) Pty Ltd. There may well have been others including suppliers to the project such as concrete batchers and truck deliverers who may have suffered or been exposed to damage. In any event this application for an interlocutory injunction does not engage the adequacy of damages test set out in American Cyanamid Co v Ethicon Ltd [1975] UKHL 1 ; [1975] AC 396 at 408. That test applies where the injunction is to restrain interference with a legal right of the plaintiff. The ABCC's application is made in the public interest of improving the building and construction industry under a statutory capacity to so apply. It is not in respect of any interference with any legal right of the ABCC. The legislature plainly conferred on the ABCC powers to obtain interlocutory injunctions, damages and penalties as instruments for effecting that improvement: ICI Operations [1992] FCA 474 ; 38 FCR 248 per French J at [268]. No prejudice to the respondents


case_title: Kadian v Richards [2004] NSWSC 382

case_text: is a conflict in the evidence. The mere fact that Mr Buchan was not cross-examined on his version is not determinative: Sullman v Sullman [2002] NSWSC 169 ; Kadian v Richards [2004] NSWSC 382 at [127] .


case_text: Labor Council of New South Wales v Axis Metal Roofing (2004) 131 IR 272 , Vice President Justice Walton considered whether, under s 143(5) of the Industrial Relations Act 1996 (NSW), a strike was based on a reasonable concern for health and safety of employees. There was no requirement for the concern for health and safety to be an imminent risk. Nonetheless his Honour considered the concepts of "imminence", "seriousness", "proportionality" and "justification" which would be relevant to the exercise of the Court's discretion: (a) Whether it is a "reasonable" concern involves an objective assessment of the nature of that concern; (b) A concern may be reasonable so long as it is not fanciful, illogical or irrational at the time the concern arises, without the benefit of hindsight and the knowledge of whether a real risk does in fact exist; (c) There is no need to establish that an actual risk existed at the time; (d) The reasonableness must be assessed from the perspective of an ordinary and reasonable person in the position of the employees involved at the relevant time; (e) The reasonable concern must continue during all times that the relevant industrial action is occurring; and (f) Previous incidents, occurrences or beliefs may be relevant to a basis for a concern for health or safety in the circumstances. Accordingly the issue is not whether certain matters did in fact constitute a risk to health or safety, but rather whether any employee reasonably held a concern about an imminent risk to their health or safety. The applicant accepts, correctly in my view, that an employee may have a concern even though his or her concern arose only from something communicated by a union official. However, such a concern must still be objectively reasonable. It will not be reasonable merely because it was raised by a union official. Imminent


case_text: respondents point to the fact that they are not the employees in question and did not fail or refuse to attend for building work and are therefore not capable of engaging in building industrial action. They rely on Leighton Contractors Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 317 ; (2006) 164 IR 375 at [26] . It follows, they submit, that there is no cause of action against the respondents for engaging in building industrial action and, therefore, unlawful industrial action, in the manner alleged in paragraphs 1(a) and (b) of the Details of Claim in the application, and therefore no serious question to be tried in relation to those allegations. The respondents further contend that the application does not contain any reference to the accessorial provisions found in s 48(2) which treats persons involved in a contravention of a civil penalty provision as having contravened the provision. Le Miere J in Leighton Contractors Ltd 164 IR 375 at [26] correctly stated that a defendant who was not a relevant employee and who did not fail or refuse to attend for building work is not capable of engaging in building industrial action with the definition in s 36(1)(d). However, his Honour was not there considering accessorial liability under s 48(2). This case does not assist the respondents.


case_text: 49(3) confers power to grant an interim injunction without reaching a final decision that a contravention has occurred: Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 149 IR 299 at [7], [8]; Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 149 IR 306 at [52].


case_title: Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 149 IR 306


case_title: Mobileworld Operating Pty Ltd v Telstra Corporation Ltd [2005] FCA 1365


case_title: Ranger Uranium Mines Pty Ltd v Federated Miscellaneous Workers' Union of Australia (1987) 54 NTR 6

case_text: Ranger Uranium Mines Pty Ltd v Federated Miscellaneous Workers' Union Of Australia (1987) 54 NTR 6 at 9, Nader J of the Supreme Court of the Northern Territory outlined the following factors relevant to a determination of whether action taken by the respondent Union was justified. Ranger had sued for alleged economic torts. The union said its conduct was justified because its motivating purpose was the protection and promotion of the safety of the workers. His Honour outlined the following factors: (a) How seriously did the situation threaten health and safety? (b) What efforts had been made in the past by the workers (or others to their knowledge) to eliminate that risk? (c) What response has the employer made to reduce the risk? (d) Is the issue genuine or is it a pretext to further a less worthy objective? (e) What other methods, if any, were available to the defendants to achieve such "less worthy objective?"


case_title: Sullman v Sullman [2002] NSWSC 169


case_text: In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 , the Court said that an applicant for review before a Refugee Review Tribunal could ordinarily expect that the issues under review were those which had been issues before the original decision maker which were determinative against the applicant unless the Tribunal raised for consideration some other additional issues. In those circumstances, it was incumbent upon the Tribunal, if it intended to rely upon some other issues to reject the applicant's review, to give notice of those issues to comply with s 425. 56 In this case, the issues which were raised by the Tribunal related to the circumstances in which the appellant had received either money or value from Mr Nassif and Mr Jarjo. 57 That issue raised squarely for determination the question of the accuracy of the financial statements. If, for example, Mr Nassif and Mr Jarjo were lenders to the business or to the company then the sum lent would be shown as an asset and the amount owing would be shown as a liability. The financial statements which were presented did not show liabilities owing to Mr Nassif and Mr Jarjo. 58 As the Tribunal had notified the appellant that the source of funds was an issue under review, then the appellant should have understood that the accuracy of the financial statements which he had presented in support of his claim to be entitled to a visa was also an issue. This is not the type of case that the High Court considered in SZBEL [2006] HCA 63 ; 231 ALR 592 . The Tribunal was not under any obligation to provide some sort of running commentary as to the view that it takes on the evidence as it unfolds before it. In SZBEL [2006] HCA 63 ; 231 ALR 592 the High Court said at [48]: Secondly, as Lord Diplock said in F Hoffmann La Roche & Co AG v Secretary of State for Trade & Industry : "... the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice, only the most talkative of judges would satisfy it and trial by jury would have to be abolished." Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence it has given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment. 59 In my opinion, nothing has been shown which would indicate that the Tribunal failed to comply with s 360. Ground 2 has not been made out. 60 In those circumstances, it is not necessary for me to have further regard to the affidavit of Harry Mavrelefterou.


case_text: discussed the limitations on the Court's power to accept an undertaking in Australian Competition and Consumer Commission v Auspine Ltd (2006) 235 ALR 95 at 104-109 [24]-[35]. Although the undertaking is expressed in somewhat general terms, I considered that I had both the power to accept it and that it was appropriate for me to do so. In reaching that conclusion, I had regard to the decisions of the Full Court of this Court in ICI Australia Operations Pty Ltd v Trade Practices Commission [1992] FCA 474 ; (1992) 38 FCR 248 and Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (in liquidation) [2007] FCAFC 146 ; (2007) 161 FCR 513 (" Dataline ").


case_text: discussed the limitations on the Court's power to accept an undertaking in Australian Competition and Consumer Commission v Auspine Ltd (2006) 235 ALR 95 at 104-109 [24]-[35]. Although the undertaking is expressed in somewhat general terms, I considered that I had both the power to accept it and that it was appropriate for me to do so. In reaching that conclusion, I had regard to the decisions of the Full Court of this Court in ICI Australia Operations Pty Ltd v Trade Practices Commission [1992] FCA 474 ; (1992) 38 FCR 248 and Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (in liquidation) [2007] FCAFC 146 ; (2007) 161 FCR 513 (" Dataline "). The principal object of the penalties imposed by s 76 of the Act is deterrence, and, in particular, general deterrence: Trade Practices Commission v CSR at 52,152 per French J; NW Frozen Foods at 292 per Burchett and Kiefel JJ ; Dataline at 527-528 [60], [62]; Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] ATPR 42-031 per Selway J. Application of principles


case_text: Commission sought an order that Skins provide a letter on its letterhead to each of its current retailers, agents and/or distributors. The terms and size of the letter were to be in accordance with a document annexed to the draft consent orders. The letter advises the addressee of the results of this proceeding, including the pecuniary penalties imposed, and of the fact that Skins may only recommend a retail price, and is not allowed to specify to retailers a minimum price below which goods or services are not to be resold or advertised for sale. Skins consented to such an order. I considered that it was appropriate to make such an order (see s 86C(2); Australian Competition and Consumer Commission v Hobie Cat Australasia Pty Ltd [2008] ATPR 42-225). The Commission proposed that Skins pay to the Commonwealth of Australia a pecuniary penalty of $120,000 and that Mr Warhurst pay to the Commonwealth of Australia a pecuniary penalty of $14,000.


case_text: principal object of the penalties imposed by s 76 of the Act is deterrence, and, in particular, general deterrence: Trade Practices Commission v CSR at 52,152 per French J; NW Frozen Foods at 292 per Burchett and Kiefel JJ ; Dataline at 527-528 [60], [62]; Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] ATPR 42-031 per Selway J. Application of principles


case_title: Australian Competition & Consumer Commission v NW Frozen Foods [1996] ATPR 41-515

case_text: addition to the above matters, the trial judge (Heerey J; see Australian Competition and Consumer Commission v NW Frozen Foods Pty Ltd [1996] ATPR 41-515) considered (at 42,444-42,445) the financial position of the respondents and the deterrent effect of the proposed penalty.


case_text: addition to being satisfied by evidence that it is appropriate to make the declarations sought, I must be satisfied that I have the power to make the declarations and that they are appropriate: Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18 ; (1999) 161 ALR 79 (" Real Estate Institute "). The power to make orders for corrective advertising is contained in s 86C of the Act and the power to accept undertakings of the nature proffered is part of the power to grant injunctions in s 80 of the Act. Again, as with the declarations, the Court must be satisfied that it has the power to accept the undertakings and that they are appropriate, although the Court will not substitute its own view for that of the parties if the undertakings fall within an appropriate disposition of the case: Real Estate Institute at 87, 89 [21], [26] per French J. Skins admits that, on a number of occasions, it engaged in conduct, in trade and commerce, that was misleading or deceptive, or likely to mislead or deceive, in contravention of s 52 of the Act. At the heart of the contravening conduct were three representations. The first representation was that Skins did not pay money to sports stars, or their representatives, clubs, teams or governing bodies, for the sports stars to wear Skins products. The parties referred to this as the "no payment to wear" representation, and it is convenient to adopt that shorthand way of referring to the representation. The second representation was that Skins did not provide Skins products to sports stars, or their representatives, clubs, teams or governing bodies, unless the Skins products were paid for with money. The parties referred to this representation as the "always paid for" representation and again it is convenient for me to do likewise. The third representation was that Skins did not pay money to sports stars, or their representatives, clubs, teams or governing bodies, for sports stars to endorse Skins products. The parties referred to this representation as the "no payment to endorse" representation, and again it is convenient for me to do likewise.


case_title: ICI Australia Operations Pty Ltd v Trade Practices Commission [1992] FCA 474 ; (1992) 38 FCR 248


case_outcome: discussed

case_text: s 76 of the Act, it is for the Court to determine the appropriate pecuniary penalty. At the same time, the Court can place weight on the pecuniary penalties proposed by the parties. The relevant principle and the reason for it were stated by the Full Court of this Court in the following passage in the reasons for judgment of Burchett and Kiefel JJ in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285 (" NW Frozen Foods ") at 290-291: "The Act places on the shoulders of the Court the responsibility to determine the 'appropriate' penalty in each particular case, having regard to 'all relevant matters' including the matters specified in the section. But effects upon the functioning of markets, and other economic effects, will generally be among the most significant matters to be considered as relevant, so that the Court is likely to be assisted greatly by views put forward by the Australian Competition and Consumer Commission, or by economists called on behalf of the parties. Since the decision in Trade Practices Commission v Allied Mills Industries Pty Ltd [(1981) [1981] FCA 142 ; 60 FLR 38 ; 37 ALR 256] , it has been accepted that both the facts, and also views about their effect, may be presented to the Court in agreed statements, together with joint submissions by both the Commission and a respondent as to the appropriate level of penalty. Because the fixing of the quantum of a penalty cannot be an exact science, the Court, in such a case, does not ask whether it would without the aid of the parties have arrived at the precise figure they have proposed, but rather whether their proposal can be accepted as fixing an appropriate amount. There is an important public policy involved. When corporations acknowledge contraventions, very lengthy and complex litigation is frequently avoided, freeing the courts to deal with other matters, and investigating officers of the Australian Competition and Consumer Commission to turn to other areas of the economy that await their attention. At the same time, a negotiated resolution in the instant case may be expected to include measures designed to promote, for the future, vigorous competition in the particular market concerned. These beneficial consequences would be jeopardised if corporations were to conclude that proper settlements were clouded by unpredictable risks. A proper figure is one within the permissible range in all the circumstances. The Court will not depart from an agreed figure merely because it might otherwise have been disposed to select some other figure, or except in a clear case." Section 76(1) of the Act requires the Court to consider all relevant matters in determining the appropriate pecuniary penalty, including the nature and extent of the contravening conduct, the amount of loss and damage caused by the contravening conduct, the circumstances in which the contravening conduct took place and whether the contravener had previously been found by the Court to have engaged in similar conduct. In NW Frozen Foods , Burchett and Kiefel JJ referred (at 292) to these matters as "elaborations of the statutory requirement to consider 'the circumstances in which the act or omission took place'". In addition to the above matters, the trial judge (Heerey J; see Australian Competition and Consumer Commission v NW Frozen Foods Pty Ltd [1996] ATPR 41-515) considered (at 42,444-42,445) the financial position of the respondents and the deterrent effect of the proposed penalty. It will be seen that, in the passage quoted from NW Frozen Foods and set out in [64] above, Burchett and Kiefel JJ emphasised the importance of the effects of the conduct on the functioning of the market, and other economic effects.


case_text: Court was asked to make declarations that Skins contravened s 48 of the Act by an act of inducement in July 2005, an act of attempting to induce in September 2005 and a second act of attempting to induce in May 2006. The Court was also asked to make a declaration that on each occasion Mr Warhurst was, directly or indirectly, knowingly concerned in, or party to, the contravention. Clearly there was power to make the declarations and, having regard to the agreed facts and submissions, I considered that it was appropriate to make the declarations. The declarations I made sufficiently described the conduct which contravened s 48 (cf Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53 at 91 [89] - [90] per Gummow, Hayne and Heydon JJ). The Court was also asked to accept an undertaking by Skins in the following terms: "Skins undertakes to the Court that Skins shall not, by itself, its servants, agents or otherwise howsoever, for a period of 3 years from the date of this undertaking, induce or attempt to induce, any person or corporation not to sell or advertise Skins products supplied to it by Skins for sale at a price less than a price specified by Skins."


case_text: Trade Practices Commission v CSR Ltd [1991] ATPR 41-076 (" Trade Practices Commission v CSR ") at 52,152-52,153, French J identified relevant factors additional to those in the section and they are the following: (1) the size of the contravening company; (2) the degree of power it has, as evidenced by its market share and ease of entry into the market; (3) the deliberateness of the contravention and the period over which it extended; (4) whether the contravention arose out of the conduct of senior management or at a lower level; (5) whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention; and (6) whether the company has shown a disposition to cooperate with the authorities responsible for the enforcement of the Act in relation to the contravention. The principal object of the penalties imposed by s 76 of the Act is deterrence, and, in particular, general deterrence: Trade Practices Commission v CSR at 52,152 per French J; NW Frozen Foods at 292 per Burchett and Kiefel JJ ; Dataline at 527-528 [60], [62]; Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] ATPR 42-031 per Selway J. Application of principles


case_text: The principles of public interest immunity to be gleaned from the decisions of the High Court in Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1 and Alister v The Queen [1984] HCA 85 ; (1984) 154 CLR 404 , were set out by Lockhart J in Zarro at 44-46.


case_text: In short, attachment 2 was not prepared by a legal practitioner and there is no relevant legal context. Accordingly, it does not attract client legal privilege or litigation privilege: see AWB Ltd v Cole [2006] FCA 571 ; (2005) 152 FCR 382 at [144] - [145] .


case_text: This approach is consistent with that which was adopted by Mansfield J in Australian Competition and Consumer Commission v Rural Press Limited [2000] FCA 66 ; (2000) 96 FCR 389 at [37] [38]. His Honour accepted that the effect of the decision by the judges in Kotan is that the question of whether the exercise of the power is for an improper purpose is to be determined by a consideration of all the circumstances.


case_text: Mr Gageler SC referred me to the line of authorities commencing with Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 , referred to by Gibbs CJ in O'Reilly v Commissioners of the State Bank of Victoria [1983] HCA 47 ; (1983) 153 CLR 1 at 11. Gibbs CJ there said that the authorities establish that when a Minister is entrusted with administrative functions he or she may in general act through a duly authorised officer of the department.


case_text: In Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 151 FCR 341 , a Full Court, after referring to Mann v Carnell and other authorities said at [52]: [52] These authorities show that, where issue or implied waiver is made out, the privilege holder has expressly or impliedly made an assertion about the contents of an otherwise privileged communication for the purpose of mounting a case or substantiating a defence. Where the privilege holder has put the contents of the otherwise privileged communication in issue, such an act can be regarded as inconsistent with the confidentiality that would otherwise pertain to the communication.


case_text: Their Honours referred with approval to the statement of Allsop J in DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384 ; (2003) 127 FCR 499 at [58] . His Honour there referred to waiver coming about when a party entitled to the privilege makes an assertion which is either about the contents of the confidential communication or which necessarily lays it open to scrutiny. Privilege is lost because an inconsistency arises between the act and the maintenance of the confidence, informed partly by forensic unfairness. 73 It is true that Mr Pearson has deployed the existence of the separate settlement team and the fact that the team developed a proposed settlement regime for consideration by the Enforcement Committee. However, I do not consider that the assertions in Mr Pearson's affidavit at [8] and [10] [15] fall within the principles referred to above. 74 In particular, I do not consider that the assertions in the affidavit are about the contents of the redacted portions of attachment 1.


case_text: The parties agreed that I should follow the course adopted in Hudson v Branir Pty Limited (2005) 148 NTR 1 by having regard to the context of evidence proposed to be adduced at the final hearing so as to be able to determine the context in which the dispute over the Notice to Produce arises. Some of that material, though not yet formally in evidence, was read out and referred to in open Court and I will refer to the salient parts in my reasons for judgment. 18 Mr Mark Pearson is the Executive General Manager of the Enforcement and Compliance Division of the ACCC. At all times since about July 2006, Mr Pearson has been the most senior staff member of the ACCC with overall responsibility for the investigation of air cargo price fixing. 19 Mr Paul Taylor, Director, Coordination Branch, has been responsible for conducting the investigation on a day-to-day basis since about July 2006.


case_text: The ACCC contends that there is no legitimate forensic purpose to support the production of these documents. The essential reason for this is that the ACCC submits that the only relevant decision in relation to the attack upon the s 155 notice is the decision of the ACCC itself; decisions of officers or staff cannot be decisions of the ACCC to issue the notice. The ACCC relies upon a decision of a Full Court in Kotan Holdings Pty Limited v Trade Practices Commission (1991) 30 FCR 511. 14 The ACCC also contends that even if there is a legitimate forensic purpose in the production of the documents, certain redacted portions of them are subject to a claim for legal professional privilege. One portion is also said, in the alternative, to be the subject of a claim for public interest immunity. 38 Kotan , on which counsel for the ACCC relied, was an appeal from an order of a single judge striking out a statement of claim seeking relief against s 155 notices issued by the Chairman of the Trade Practices Commission. 39 Crucial to the decision of the Court, and to the ACCC's argument in the present case, were the terms of [16] of the statement of claim. It pleaded that on a date unknown to the applicants: (i) the Commission; (ii) the officers of the Commission having the conduct of the matter; (iii) the solicitor acting for the Commission; had decided that proceedings should be instituted. 40 Davies and Foster JJ said at 516 that they accepted that it may be arguable that the power to issue a s 155 Notice ceases when the Commission has formally resolved that legal proceedings be instituted. However, they said that this was not pleaded in [16] of the statement of claim. Lockhart J observed at 522 that the only relevant decision could be that of the Commission itself, so that the allegations that officers of the Commission and the solicitor had decided to institute proceedings could not stand. 41 These were statements of a Full Court and, of course, I accept them as binding, authoritative and correct. But they were made in relation to the pleading that was in issue before their Honours. In my view, their Honours' remarks on this topic, though no doubt central to the question at the final hearing, do not assist the ACCC on the question of the Notice to Produce. 42 What [8] of KAL's statement of issues leaves open for determination on the final hearing, is who, in the present case, comprised the Commission. In this respect, [8] of the statement is in different terms from [16] of the statement of claim in Kotan where the pleading specifically referred to persons who could not have constituted the Commission for the purpose of the decision to issue the s 155 notice. 45 This approach is consistent with that which was adopted by Mansfield J in Australian Competition and Consumer Commission v Rural Press Limited [2000] FCA 66 ; (2000) 96 FCR 389 at [37] [38]. His Honour accepted that the effect of the decision by the judges in Kotan is that the question of whether the exercise of the power is for an improper purpose is to be determined by a consideration of all the circumstances. 46 The precise limits of the power to issue a s 155 notice were left open in Kotan. Davies and Foster JJ accepted that it was arguable that the power ceases when the Commission has formally resolved that legal proceedings be instituted (at 516). Lockhart J at 521 was of the view that the Commission's power to issue a s 155 notice does not cease and is not abused merely because the Commission has made a decision to commence proceedings. 47 The documents required by [5] of the Notice to Produce are documents created by senior officers of the ACCC. They go to the questions raised in [8] of the Statement of Issues and to the questions of purpose raised by the other paragraphs set out above. 48 I reject the submission that they lack a legitimate forensic purpose.


case_text: KAL contends that even if the relevant portions of the document are properly the subject of the claim for legal professional privilege, that privilege has been waived in accordance with the principle stated by the High Court in Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1. 16 The evidence before me on the hearing was an affidavit of Mr Scott Gregson, the General Manager of the Enforcement Branch of the ACCC. His affidavit deals with the claims of legal professional privilege and public interest immunity. 70 The principle of implied waiver, under which a party who would otherwise be entitled to the benefit of legal professional privilege was stated by the High Court in Mann v Carnell at [29]. 71 In Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 151 FCR 341 , a Full Court, after referring to Mann v Carnell and other authorities said at [52]: [52] These authorities show that, where issue or implied waiver is made out, the privilege holder has expressly or impliedly made an assertion about the contents of an otherwise privileged communication for the purpose of mounting a case or substantiating a defence. Where the privilege holder has put the contents of the otherwise privileged communication in issue, such an act can be regarded as inconsistent with the confidentiality that would otherwise pertain to the communication.


case_title: O'Reilly v Commissioners of the State Bank of Victoria [1983] HCA 47 ; (1983) 153 CLR 1


case_title: Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1


case_text: The principles applicable to legal professional privilege as a rule of substantive law were comprehensively reviewed by McColl JA in Workcover Authority (NSW) v Law Society of New South Wales (2006) 65 NSWLR 502 at [72]ff. 55 The following relevant propositions emerge from her Honour's review of English and Australian authority: • Once it is established that a legal practitioner was acting in the requisite capacity, a confidential communication will attract privilege even if it contains extraneous matter, as long as it was prepared for the dominant purpose of giving legal advice. • Legal advice is not confined to telling the client the law; it may include advice as to what should prudently and sensibly be done in the relevant legal context. • What matters is whether the lawyers are being asked qua lawyers to provide legal advice. • The presence of other matter may raise a question of the purpose for which the document was brought into existence but this will be a question of fact. • The privilege should not be undermined by an overly narrow or technical approach to the identification of the relevant advice.


case_text: It is well-established that the Court may inspect the documents in question to ascertain whether any doubts about the validity of the claim are made good by an inspection of the documents: see eg Zarro v Australian Securities Commission (1992) 36 FCR 40 at 61. 59 The parties agreed that I may inspect the documents. I have done so and am satisfied that the claim for the redacted portion of attachment 1 is supported. 60 In my view, the claim for legal professional privilege for attachment 2 is not supported, either by the principles to which I have referred or by an inspection of the document. 62 The principles of public interest immunity to be gleaned from the decisions of the High Court in Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1 and Alister v The Queen [1984] HCA 85 ; (1984) 154 CLR 404 , were set out by Lockhart J in Zarro at 44-46.


case_text: Counsel for the third respondent submitted that the duties which were owed by a solicitor were ascertained by reference to the scope of the retainer. Counsel relied in particular upon the following observations of Sheller JA in Citicorp Australia Ltd v O'Brien (1996) 40 NSWLR 398 at 418: 'The solicitor's duty is found in the terms of the retainer and the ambit of any additional assumed responsibility relied upon.' 21 Further, counsel for the third respondent also relied upon observations in a number of authorities in support of a submission that, unless specifically retained to do so, a solicitor was not responsible for giving financial advice, advising about investments or, when retained to advise on or prepare a document, the commercial merits or wisdom of the underlying transaction.


case_text: The submissions of counsel for the applicants are to be accepted. The scope of any retainer and the scope of the implied duty to carry out the retainer with reasonable care, depends upon the facts peculiar to the relationship between the solicitor and the client in each case. As Oliver J said in Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp (A Firm) [1979] 1 Ch 384 at 402: 'There is no such thing as a general retainer in that sense. The expression "my solicitor" is as meaningless as the expression "my tailor" or "my bookmaker" in establishing any general duty apart from that arising out of a particular matter in which his services are retained.'


case_text: The applicants' proposition is that a solicitor, acting reasonably, would obtain instructions directly from a client, when that solicitor is retained by an agent of the client, and the carrying out of retainer has the propensity to benefit that agent. In my view, it cannot be said that the applicants' proposition is so untenable as to result in their application being summarily terminated. In my view, it is arguable that there was a duty on the third respondent to obtain instructions directly from the applicants, as an incident of the implied duty to carry out his retainer with reasonable care and skill. Further, in my view, it is also arguable that, in the circumstances of this case, had that duty been carried out, the advice duties pleaded at pars 32.3, 32.4 and 32.5 could also have arisen ( Dalleagles v Australian Securities Commission (1991) 4 WAR 325 at 332-333; Hawkins v Clayton [1988] HCA 15 ; (1988) 164 CLR 539 at 574). It follows that I do not accept that the claim against the third respondent should be struck out on the grounds that no reasonable cause of action is disclosed, or that the claim is frivolous or vexatious.


case_title: Hawkins v Clayton [1988] HCA 15 ; (1988) 164 CLR 539


case_text: In my view, the following observations of Dowsett J at [303] in Australian Competition & Consumer Commission v Michigan Group Pty Ltd [2002] FCA 1439 are relevant in this context: 'It is quite possible that the act of a natural person respondent on behalf of a corporation will constitute a contravention of the Act by that corporation, and yet the natural person respondent will be found not to have been knowingly concerned in that contravention. In the case of representations as to existing facts, this is because it is not necessary to show that the respondent corporation knew of the misleading nature of the statement in question, but knowing involvement predicates such knowledge on the part of the relevant natural person. The matter is even more complex in the case of representations as to future matters. A representation on behalf of a corporation will constitute a contravention if the corporation fails to show reasonable grounds for it. However a natural person respondent bears no onus of proof. It will be necessary for ACCC to demonstrate that such a person:  knew that the representation was made; and either:  knew that it was misleading; or  knew that the corporation had no reasonable grounds for it.' 35 The applicants have in par 37 of the statement of claim only relied upon the making by Dultona of future representations as the conduct comprising the breach of the TP Act. There is no pleading in par 37 of there being any absence of reasonable grounds for Dultona making the representations as to the future.


case_text: There is no plea in par 38 that the third respondent knew of the future representations and, also, importantly there is no plea that the third respondent knew that there were no reasonable grounds for the making of those representations. The absence of pleas to that effect are fatal to any attempt to plead a claim against the third respondent based on an allegation that the third respondent was knowingly concerned in, or a party to, the misleading or deceptive conduct of Dultona ( Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at 670). 37 It follows that par 37 and par 38 of the statement of claim will be struck out as disclosing no reasonable cause of action, but I will give the applicants leave to amend the statement of claim. The third respondent's motion will otherwise be dismissed. I will hear the parties on the question of costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate: Dated: 7 April 2006 Counsel for the Applicants: Ms C H Thompson Solicitor for the Applicants: Marks & Sands Counsel for the Third Respondent: Mr G J Pynt Solicitor for the Third Respondent: Pynt & Partners Date of Hearing: 15 November 2005 Date of Judgment: 7 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/385.html


case_text: order striking out pleadings does not finally determine the rights of the parties. The proceeding remains extant (see Australian Competition and Consumer Commission v Fox Symes & Associates Pty Limited [2005] FCA 1071) and a party is ordinarily given an opportunity to re-plead in accordance with the Rules ( Australian Competition and Consumer Commission at [95]). (ii) Interlocutory orders do not found an issue estoppel


case_title: Bond v Barry (2008) 173 FCR 106

case_text: Ford was considered by a Full Court of this Court in Bond v Barry (2008) 173 FCR 106 (Sundberg, Jacobson and Lander JJ) but declined to express a view on which of the competing views in Jefferson Ford of the application of s 31A of the Act was correct (at [74]). (ii) Application of the general principles to this proceeding


case_text: respect of applications for summary judgment under s 31A of the Act, the onus to demonstrate that the proceedings do not have reasonable prospects of success rests with the party seeking summary judgment. In Boston Commercial Services Pty Limited v GE Capital Finance Australasia Pty Limited [2006] FCA 1352 ; (2006) 236 ALR 720 at [43] and [44] Rares J, quoting from Latham CJ in Hocking v Bell [1945] HCA 16 ; (1945) 71 CLR 430 at 441 442, likened the standard under s 31A of the Act to the common law test for determining whether a jury properly instructed could reach a verdict for a plaintiff: [T]here must be a real issue of fact to be decided. And if the evidence is all one way, so that only one conclusion can be said to be reasonable, there is no function left for the jury to perform, so that the court may properly take the matter into its own hands as being a matter of law, and direct a verdict to be entered in accordance with the only evidence which is really presented in the case ... In a case to which s 31A applies, where there is a real issue of fact to be decided in the sense identified in the above principle, and possibly where there is a real issue of law of a similar kind, it is obviously appropriate that the matter goes to trial. A Full Court of this Court considered the application of s 31A in Jefferson Ford Pty Limited v Ford Motor Company of Australia Limited [2008] FCAFC 60 ; (2008) 167 FCR 372 (Finkelstein, Rares and Gordon JJ). Finkelstein J stated that s 31A of the Act is to be given a 'substantial operation' which requires the 'judge to conduct what might loosely be described as a preliminary trial' and to look closely to a party's 'assertion that there is a real question of law or fact to be decided' (at [23]). About factual issues Finkelstein J (at [20]) stated that the task of prediction was fraught with all kinds of difficulties including the Court, in many cases, not having before it all the material evidence, and if credit is involved the impossibility of predicting how that issue would be resolved. Even if the dispute is only a question of law, that issue may be difficult to resolve; or to predict its resolution, in the absence of detailed argument such as only occurs at a trial. Then Finkelstein J stated (at [23]) that the task of the judge is 'to decide whether the opposing party has evidence of sufficient quality and weight to be able to succeed at trial' and on questions of law the task of the judge is to determine whether the question of law is 'sufficiently strong to warrant a trial' (at [23]). Rares J favoured the test he stated in Boston Commercial and noted that that the correctness of that test did not need to be examined because 'neither party challenged that test' (at [73]). Gordon J identified a number of principles which 'inform' the application of s 31A of the Act. Among these are: (1) that s 31A is less stringent than the General Steel Industries standard; (2) that each case must be determined separately; (3) where there is a real issue of fact it is unlikely that that part of the proceeding has no prospect of success; (4) in determining whether a real issue of fact exists the Court must draw all available reasonable inferences in favour of the non-moving party (at [124] [132]). Gordon J at [126] stated that the assessment that a proceeding has no reasonable prospects of success will necessarily require: 1. Identification of the cause of action pleaded; 2. identification of the pleaded facts said to give rise to that cause of action; a review of the evidence (if any) tendered in support of the claim for judgment; 4. identification of the defence pleaded; identification of any facts pleaded which are said to give rise to the defence; and 6. a review of the evidence (if any) tendered in defence of the claim. In SMS's submission it has 'discharged the onus to enliven the discretion to authorise a summary termination of the proceedings which s 31A envisages', per Rares J in Boston Commercial at [45]. Even accepting Mr Neil Windsor and Dr Windsor's version of the discussions on 8 and 10 January 2001 (paras 19, 21 and 23 of Ex. B (the 74 page affidavit) and paras 21, 23 and 24 of Ex. A (the 54 page affidavit)) as completely accurate, there is no reasonable interpretation of the communications between Mr Neil Windsor and SMS which is consistent with any conclusion other than that any contract for the provision of locum services by Dr Windsor was entered into between InterNEOn and SMS. Dr Windsor pointed to the evidence at para 19 of the 74 page affidavit that is part of Ex. B in support of the case propounded in the amended statement of claim on the formation of the agreement, specifically: (1) That Mr Neil Windsor, on Dr Windsor's behalf, met with Mr Muldoon of SMS on 8 January 2001; (2) that at the commencement of the meeting the following exchange took place: Mr Muldoon said 'So you have come to negotiate with me, have you?' [Mr Windsor said]: I guess I have.' (3) that Mr Windsor and Mr Muldoon on 8 January 2001 negotiated Dr Windsor's terms of engagement with SMS and reached agreement on those terms; (4) that at another point during the meeting the following exchange took place: [Mr Windsor said]: 'How often do you pay the locums?' Mr Muldoon said: 'Monthly on the second Wednesday of each month. I prepare a tax invoice for the locums. I need an ABN Number, you know, to take care of this GST crap.' [Mr Windsor said]: 'Does it have to be a personal ABN or can it be a company one?' Mr Muldoon said: 'I don't care. It's up to the locums to take care of their tax anyway they want.' [Mr Windsor said]: 'It might take a while to get an ABN. What are you going to do about payment?' Mr Muldoon said: 'I will keep the money until you give me an ABN. I'm not going to deduct 50% of the pay like the tax department want us to do.' It was submitted on behalf of Dr Windsor that it is inappropriate in a summary judgment application to determine the question of law whether post-contractual conduct or communications can be used to identify the parties to the contract for the provision of medical services entered into by SMS. Further, that there is evidence in support of the case pleaded in the amended statement of claim that the agreement was entered into by Dr Windsor, through the agency of her husband, Mr Neil Windsor, and Mr Muldoon of SMS on 8 January 2001; and there is no evidence by SMS as to the negotiations on 8 January 2001. It was submitted that the Court should find that SMS has not satisfied the onus of demonstrating that Dr Windsor has no reasonable prospects of prosecuting the proceedings within s 31A(2) of the Act. In conclusion, it was submitted on behalf of Dr Windsor that, whether the Court applies the standard adopted by Rares J in Boston Commercial , the principles identified by Gordon J in Jefferson Ford or, the tasks of the judge in considering an application under s 31A of the Act identified by Finkelstein J in Jefferson Ford , the Court should find that SMS has not satisfied the onus of demonstrating that Dr Windsor has no reasonable prospects of prosecuting the proceedings within s 31A(2) of the Act.


case_text: orders, by nature, lack finality. It follows, therefore, that they are insufficient to create an issue estoppel (see Wilson v Union Insurance Co [1992] NTSC 107 ; (1992) 112 FLR 166 ; cited with approval in Bowes v Fehlberg & Ors (No 2) [2001] TASSC 24 at [22] and by the New South Wales Court of Appeal in Miller v Deputy Commissioner of Taxation (1997) 38 ATR 51. (iii) The facts and law the subject of the 2007 notice of motion were not conducted on a final basis


case_text: observations were cited with approval by a Full Court of this Court in Coffey v Secretary, Department of Social Security [1999] FCA 375 ; (1999) 86 FCR 434 at 443.


case_text: it was submitted that if, contrary to the foregoing submissions, I was to find that any principle coming out of Manning can apply by way of analogy to the present case, there were four reasons why it was fair and just to reconsider the matter rather than be persuaded that SMS had established the amended statement of claim was an abuse of process. These were put as follows: (1) Dr Windsor was self-represented on the hearing of the 2007 notice of motion. (2) I applied impermissible criteria in deciding the 2007 notice of motion clearly a strike-out application rather than confining myself to the pleadings; had I done the latter, I would have dismissed the 2007 notice of motion. I have already accepted this submission at [12] and [13] above. (3) On the hearing of the 2007 notice of motion, the Court's attention was not drawn to the undecided question of law about whether post-contractual conduct and communications could be used to identify parties to the contract (see Dennis Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154 ; (2007) Aust Contract R §90-263 at [59] per Campbell JA (Beazley JA agreeing); Sagacious Procurements Pty Ltd v Symbion Health Ltd (formerly Mayne Group Ltd) [2008] NSWCA 149 at [99] ff per Giles JA (Hodgson and Campbell JJA agreeing); County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 at [161] per McColl JA), and at least some of the Judgment Documents fall within that category. (4) The fact that on the hearing of the 2007 notice of motion my attention was not drawn to admissions that were relied upon on the hearing of the current motion and, even if I did have regard to them on the earlier occasion, there is no indication on the face of the reasons for judgment that I interacted with them.


case_text: response, it was submitted on behalf of Dr Windsor that the principle articulated in Manning , to which I would merely observe, assuming a principle can be identified other than a preference for the view of Charles JA rather than the majority in D A Christie Pty Ltd v Baker (1996) 2 VR 582 , concerned, as did Dawson and Christie , the bringing of a second interlocutory application by an applicant or plaintiff; here, it was pointed out, on both occasions, Dr Windsor was resisting such an application and so, at best, any principle, if it can apply at all, could only be by way of analogy.


case_text: order striking out a statement of claim on the ground that it fails to disclose a reasonable cause of action is interlocutory and not a final order ( Jones v Insole (1891) 64 LT 703 , a decision of the English Court of Appeal; cited with approval by Taylor J (with whom Owen J agreed) in Hall v The Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 at 440, where his Honour said: The same view [ie that the order was interlocutory] was taken of an order striking out a plaintiff's statement of claim on the ground that it disclosed no reasonable cause of action: Jones v Insole and of an order dismissing an action as frivolous and vexatious in In re Page . (Citations omitted) In this Court, Burchett J in Weatherall v Satellite Receiving Systems (Australia) Pty Ltd [1999] FCA 741 ; (1999) 92 FCR 101 at [9] after reviewing both English and Australian authorities (including Jones v Insole and Hall v The Nominal Defendant ) concluded that an order striking out a statement of claim is an interlocutory order. Burchett's J analysis in Weatherall was cited with approval by Cowdroy J in Md Abdullah Al Mamun v Minister for Immigration and Citizenship [2007] FCA 541.


case_text: respect of applications for summary judgment under s 31A of the Act, the onus to demonstrate that the proceedings do not have reasonable prospects of success rests with the party seeking summary judgment. In Boston Commercial Services Pty Limited v GE Capital Finance Australasia Pty Limited [2006] FCA 1352 ; (2006) 236 ALR 720 at [43] and [44] Rares J, quoting from Latham CJ in Hocking v Bell [1945] HCA 16 ; (1945) 71 CLR 430 at 441 442, likened the standard under s 31A of the Act to the common law test for determining whether a jury properly instructed could reach a verdict for a plaintiff: [T]here must be a real issue of fact to be decided. And if the evidence is all one way, so that only one conclusion can be said to be reasonable, there is no function left for the jury to perform, so that the court may properly take the matter into its own hands as being a matter of law, and direct a verdict to be entered in accordance with the only evidence which is really presented in the case ... In a case to which s 31A applies, where there is a real issue of fact to be decided in the sense identified in the above principle, and possibly where there is a real issue of law of a similar kind, it is obviously appropriate that the matter goes to trial.


case_text: the hearing of the current motion it was submitted on behalf of Dr Windsor that I impermissibly had regard to the evidence and that if I had confined myself to the terms of the pleading as I should have done in respect of a strike-out motion in reliance on O 11 r 16, the 2007 notice of motion would have been dismissed. I was referred to what was recently said by Finkelstein J in Imobilari Pty Ltd v Opes Prime Stockbroking Limited [2008] FCA 1920 ; (2008) 252 ALR 41 at [4] : The fundamental thing to understand about the strike-out rule, which the language of O 11 r 16 itself makes clear, is that the rule is concerned only with the adequacy of the pleading (or to be more precise, the allegations and the causes of action asserted therein) as a matter of law. The rule does not permit or allow consideration of facts or evidence outside the pleadings: Dey v Victorian Railway Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91 and 109; [1999] ALR 333 at 347-8; see also General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129; [1964] HCA 69 ; [1965] ALR 636 at 638 (' General Steel '). Indeed, as counsel for ANZ, Mr Archibald QC, correctly noted in his submissions, the court must, for purposes of deciding the strike-out motion and deciding whether a pleading discloses a reasonable cause of action, assume the truth of the allegations in the statement of claim and draw all inferences in favour of the non-moving party because the question is whether those allegations, even if proved, cannot succeed as a matter of law: General Steel CLR at 129; ALR at 638. The submission is clearly correct. For the reasons more fully explored at [30] below, it is not possible to regard the 2007 notice of motion as anything more than a strike-out motion. It certainly did not seek dismissal of the proceeding as an abuse of process or summary judgment in reliance on s 31A of the Act. As indicated at [35] below, if it had been necessary, I would have taken my error in this respect into account in the exercise of my discretion as to whether the justice of the matter required that the finding as to the contracting parties made on the 2007 notice of motion be reconsidered. On 1 December 2008, Dr Windsor filed an amended statement of claim pursuant to O 13 r 3(1) of the Rules. In the amended statement of claim, Dr Windsor has reformulated her claim for damages for breach of contract and has pleaded that she entered into an agreement with SMS to provide medical services on behalf of SMS on or about 8 January 2001 (para 5). Section 31A of the Act and O 11 r 16 of the Rules have different legislative concerns. In Imobilari , Finkelstein J (at [4] [6]) observed that s 31A of the Act is concerned with the ability to make a claim, and a court must look at the evidence to see whether a cause of action is disclosed, whereas O 11 r 16 of the Rules, on the other hand, is concerned with the adequacy of pleadings as a matter of law and not with facts or evidence outside the pleadings. The amended statement of claim in compliance with O 11 r 2(a) of the Rules pleads the following statement of material facts upon which Dr Windsor relies: (1) That Dr Windsor and SMS entered into an agreement for the provision of medical services by Dr Windsor (para 5); (2) that the agreement comprised certain express and implied terms (paras 6 and 7); (3) that the terms of the agreement were varied (para 8); (4) that the agreement, as varied, was breached by SMS (para 14); and (5) that the breaches caused Dr Windsor to terminate the agreement (para 15); and (6) that Dr Windsor has suffered loss (para 17). The amended statement of claim discloses a reasonable cause of action for breach of contract by Dr Windsor against SMS. There are no grounds upon which the pleaded amended statement of claim constitutes an abuse of process. In these circumstances, it was submitted that the Court should find that SMS has not satisfied the onus of demonstrating that the amended statement of claim discloses no reasonable cause of action or is otherwise an abuse of process within O 11 r 16 of the Rules and, accordingly, refuse to strike out the amended statement of claim.


case_text: Full Court of this Court considered the application of s 31A in Jefferson Ford Pty Limited v Ford Motor Company of Australia Limited [2008] FCAFC 60 ; (2008) 167 FCR 372 (Finkelstein, Rares and Gordon JJ). Finkelstein J stated that s 31A of the Act is to be given a 'substantial operation' which requires the 'judge to conduct what might loosely be described as a preliminary trial' and to look closely to a party's 'assertion that there is a real question of law or fact to be decided' (at [23]). About factual issues Finkelstein J (at [20]) stated that the task of prediction was fraught with all kinds of difficulties including the Court, in many cases, not having before it all the material evidence, and if credit is involved the impossibility of predicting how that issue would be resolved. Even if the dispute is only a question of law, that issue may be difficult to resolve; or to predict its resolution, in the absence of detailed argument such as only occurs at a trial. Then Finkelstein J stated (at [23]) that the task of the judge is 'to decide whether the opposing party has evidence of sufficient quality and weight to be able to succeed at trial' and on questions of law the task of the judge is to determine whether the question of law is 'sufficiently strong to warrant a trial' (at [23]). Rares J favoured the test he stated in Boston Commercial and noted that that the correctness of that test did not need to be examined because 'neither party challenged that test' (at [73]). Gordon J identified a number of principles which 'inform' the application of s 31A of the Act. Among these are: (1) that s 31A is less stringent than the General Steel Industries standard; (2) that each case must be determined separately; (3) where there is a real issue of fact it is unlikely that that part of the proceeding has no prospect of success; (4) in determining whether a real issue of fact exists the Court must draw all available reasonable inferences in favour of the non-moving party (at [124] [132]). Gordon J at [126] stated that the assessment that a proceeding has no reasonable prospects of success will necessarily require: 1. Identification of the cause of action pleaded; 2. identification of the pleaded facts said to give rise to that cause of action; a review of the evidence (if any) tendered in support of the claim for judgment; 4. identification of the defence pleaded; identification of any facts pleaded which are said to give rise to the defence; and 6. a review of the evidence (if any) tendered in defence of the claim. Jefferson Ford was considered by a Full Court of this Court in Bond v Barry (2008) 173 FCR 106 (Sundberg, Jacobson and Lander JJ) but declined to express a view on which of the competing views in Jefferson Ford of the application of s 31A of the Act was correct (at [74]). (ii) Application of the general principles to this proceeding In conclusion, it was submitted on behalf of Dr Windsor that, whether the Court applies the standard adopted by Rares J in Boston Commercial , the principles identified by Gordon J in Jefferson Ford or, the tasks of the judge in considering an application under s 31A of the Act identified by Finkelstein J in Jefferson Ford , the Court should find that SMS has not satisfied the onus of demonstrating that Dr Windsor has no reasonable prospects of prosecuting the proceedings within s 31A(2) of the Act.


case_title: Jones v Insole (1891) 64 LT 703


case_text: example of an abuse of process is where interlocutory orders, though not truly able to found an issue estoppel, may be capable of finally determining an issue of fact or law if 'it is reasonable to regard the earlier decision as a final determination of the issue' ( Re Martin & Anor; Ex parte Amtron Australia Pty Limited (1996) 62 FCR 438 per Cooper J at 443) or the parties have conducted the litigation 'upon the footing that this part of the proceedings is to be then determined, to that extent, finally' ( Leppington Pastoral Co Pty Limited v Commonwealth of Australia (1997) 76 FCR 318 per Beaumont J (with whom Jenkinson and Lehane JJ agreed)) or 'a reasonable construction of the interlocutory judgment shows that a point has been the subject of a final determination' ( Northern Star Agriculture Pty Ltd v Morgan and Banks Developments Pty Ltd [2007] NSWSC 98 per Young CJ in Eq at [42]).


case_text: this Court, Burchett J in Weatherall v Satellite Receiving Systems (Australia) Pty Ltd [1999] FCA 741 ; (1999) 92 FCR 101 at [9] after reviewing both English and Australian authorities (including Jones v Insole and Hall v The Nominal Defendant ) concluded that an order striking out a statement of claim is an interlocutory order. Burchett's J analysis in Weatherall was cited with approval by Cowdroy J in Md Abdullah Al Mamun v Minister for Immigration and Citizenship [2007] FCA 541.


case_title: Miller v Deputy Commissioner of Taxation (1997) 38 ATR 51