case_title: Kizon v Palmer (1997) 72 FCR 409

case_text: See also Kizon v Palmer (1997) 72 FCR 409, per Lindgren J at 446-7, Jenkinson and Kiefel JJ concurring, and Rann v Olsen (2000) 172 ALR 395, per Doyle CJ at [190]-[192], Prior J at [230], Perry J at [258], Mullighan J at [284] and Lander J at [391]. 31 In each action the subpoena should be set aside. The plaintiffs should pay the Proper Officer's costs of and incidental to the motion. I will entertain any application pursuant to O 15A r 8 should the plaintiffs wish to proceed further with that course. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 5 July 2007 Counsel for the Plaintiff: Mr A W Street Mr McClure Solicitor for the Plaintiff: Norton White Counsel for the First Defendant: The first defendant did not appear Counsel for the Second Defendant: The second defendant did not appear Counsel for the Australian Transport Safety Bureau: Dr Perry SC Ms Mitchelmore Solicitor for the Australian Transport Safety Bureau: Australian Government Solicitor Date of Hearing: 26 February 2007 Date of Judgment: 5 July 2007 FEDERAL COURT OF AUSTRALIA Elbe Shipping SA v Giant Marine Shipping SA [2007] FCA 1000 CONSTITUTIONAL LAW judicial power whether legislation infringes or usurps judicial power of Commonwealth whether legislation invalid PROCEDURE motion to set aside subpoena to produce documents production of documents to court prohibited under s 60 of Transport Safety Investigation Act 2003 (Cth) whether the power of the court to order the production of documents by subpoena is properly characterised as practice and procedure subpoena set aside Constitution ss 49 , 51 , 98 Transport Safety Investigation Act 2003 (Cth) ss 3 , 7 , 53 , 56 , 57 , 58 , 60 Admiralty Act 1988 (Cth) s 59 Judiciary Act 1903 (Cth) s 78B Evidence Act 1995 (Cth) ss 16 , 130 Parliamentary Privileges Act 1987 (Cth) Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1 discussed Nicholas v The Queen [1998] HCA 9 ; (1998) 193 CLR 173 applied Warren v Warren [1997] QB 488 cited Williamson v Ah On [(1926) [1926] HCA 46 ; 39 CLR 95 cited Kizon v Palmer (1997) 72 FCR 409 cited Rann v Olsen (2000) 172 ALR 395 cited ELBE SHIPPING SA v GIANT MARINE SHIPPING SA, BEING THE OWNERS OF THE SHIP "GLOBAL PEACE" AND ADSTEAM HARBOUR PTY LIMITED NSD 124 OF 2006 SQ MARINE SA v GIANT MARINE SHIPPING SA BEING OWNERS OF THE SHIP "GLOBAL PEACE" AND ADSTEAM HARBOUR PTY LIMITED NSD 125 OF 2006 DOWSETT J 5 JULY 2007 BRISBANE IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY NSD 124 OF 2006 BETWEEN: ELBE SHIPPING SA Plaintiff AND: GIANT MARINE SHIPPING SA, BEING THE OWNERS OF THE SHIP "GLOBAL PEACE" First Defendant ADSTEAM HARBOUR PTY LIMITED Second Defendant JUDGE: DOWSETT J DATE OF ORDER: 5 JULY 2007 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The subpoena issued to the Proper Officer of the Australian Transport Safety Bureau be set aside. 2. The plaintiff pay the Proper Officer's costs of and incidental to the motion of 21 February 2007. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY NSD 125 OF 2006 BETWEEN: SQ MARINE SA Plaintiff AND: GIANT MARINE SHIPPING SA BEING OWNERS OF THE SHIP "GLOBAL PEACE" First Defendant ADSTEAM HARBOUR PTY LIMITED Second Defendant JUDGE: DOWSETT J DATE OF ORDER: 5 JULY 2007 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The subpoena issued to the Proper Officer of the Australian Transport Safety Bureau be set aside. 2. The plaintiff pay the Proper Officer's costs of and incidental to the motion of 21 February 2007. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY NSD 124 OF 2006 BETWEEN: ELBE SHIPPING SA Plaintiff AND: GIANT MARINE SHIPPING SA, BEING THE OWNERS OF THE SHIP "GLOBAL PEACE" First Defendant ADSTEAM HARBOUR PTY LIMITED Second Defendant IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY NSD 125 OF 2006 BETWEEN: SQ MARINE SA Plaintiff AND: GIANT MARINE SHIPPING SA, BEING THE OWNERS OF THE SHIP "GLOBAL PEACE" First Defendant ADSTEAM HARBOUR PTY LIMITED Second Defendant JUDGE: DOWSETT J DATE: 5 JULY 2007 PLACE: BRISBANE REASONS FOR JUDGMENT 1 On 24 January 2006 the tug "Tom Tough" was assisting the vessel "Global Peace" to berth in Gladstone Harbour. The plaintiff in each of these actions alleges that in so doing, the tug came into contact with the hull of the Global Peace causing damage which led to the discharge of oil into harbour waters. The plaintiff in action NSD 124 of 2006 alleges that oil came into contact with the hull of its vessel, "Medi Vitoria", causing loss and damage. The plaintiff in action NSD 125 of 2006 alleges that oil damaged its vessel, "Nord Stream". Each plaintiff sues the first defendant as owner of "Global Peace", seeking damages. It is not presently necessary to address the potentially difficult legal questions concerning the extent of the first defendant's responsibility for the conduct of the tug, its master and crew. The first defendant denies liability. On 18 April 2007, after I had received submissions in connection with the motion with which I am presently concerned, Adsteam Harbour Pty Ltd, the owner of the tug, was joined as second defendant in each action. THE MOTION 1 On 23 October 2006, on the application of the plaintiff in each case, the Registrar issued a subpoena directed to: 'The Proper Officer Australian Transport Safety Bureau 15 Mort Street Canberra City ACT 2601.' 2 Although it is not entirely clear, it seems that the subpoena was intended to compel production of documents in each case, and not attendance to give oral evidence. I am presently considering a notice of motion which seeks an order that in each case, the subpoena be set aside. The applicant is said to be Australian Transport Safety Board. However counsel announced that they appeared for Australian Transport Safety Bureau, the body named in the subpoena. I have been unable to identify any such legal entity. The Transport Safety Investigation Act 2003 (Cth) (the "Act") contemplates the appointment of an Executive Director of Transport Safety Investigation (the "Executive Director"). That officer and his delegates have numerous responsibilities and powers under the Act. It may be that the subpoena ought to have been directed to the Executive Director, but no such point has been taken. I infer that the Australian Transport Safety Bureau comprises the Executive Director's staff, and that there is a person who is recognizable as the "Proper Officer" of that organization to whom a subpoena might properly be addressed. I proceed upon the basis that such person is the applicant pursuant to the notice of motion. THE SUBPOENA 2 Pursuant to s 21 of the Act the Executive Director investigated the collision between Global Peace and the tug and, in August 2006, published a report. This report is publicly available. In effect, the plaintiffs seek access to the material upon which the report is based. A schedule to the subpoena provides as follows: Schedule The documents and things you must produce are as follows, copies of: (Note: In this Subpoena the term "Incident" means the collision between MV "Global Peace" and the Tug "Tom Tough" resulting in the discharge or escape of oil from the "Global Peace" into Gladstone Harbour at Gladstone on 24/25 January 2006). 1. Any documents or other records in relation to oil analysis, sampling analysis, testing or testing results of the oil discharged from the "Global Peace" on 24 and 25 January 2006. 2. Any documents or other records or reports or survey reports or status or situation reports or similar documents in relation to the extent or known extent, spread, range and distribution of the oil discharged or escaped from the "Global Peace" as a result of the Incident. 3. Any photographs or other images, whether electronic or hard copy of the extent or known extent, spread, range and distribution of the oil discharged or escaped from the "Global Peace" as a result of the Incident. 4. Any Gladstone vessel traffic service (VTS) records or documents in relation to the incident, whether audio, digital, electronic or written from 12 noon on 24 January 2006 to the time of the departure of the "Global Peace, including but not limited to the extent or known extent, spread, range and distribution of the oil discharged or escaped from the "Global Peace" as a result of the Incident. 5. Any documents, statements or other records of interview of the Master, Pilot, officers or crew of the "Global Peace" or the "Tom Tough" in relation to the Incident, including but not limited to the extent or known extent, spread, range and distribution of the oil discharged or escaped from the "Global Peace" as a result of the Incident. 6. Any records or records of investigation or inspection or reports or survey reports or similar documents in relation to the extent of damage and/or holing of the shell plating of the "Global Peace" by way of the port deep fuel oil tank at or about frames 42-46 as a result of the Incident. 7. Any records or records of investigation or inspection or reports or survey reports or similar documents in relation to the fender and support beam arrangement of the starboard quarter fender of the "Tom Tough". 8. Any Master's Notes of Protest in relation to the Incident, including but not limited to the extent or known extent, spread, range and distribution of the oil discharged or escaped from the "Global Peace" as a result of the Incident.' THE PROPER OFFICER'S RESPONSE 3 On 2 November 2006 a Deputy Director of the Bureau notified the Registrar that: • it held documents which were responsive to the subpoena; • such documents were 'restricted information' as defined in s 3 of the Act; • such documents were held by 'staff members' as there defined; • the Executive Director had not issued a certificate pursuant to s 60(5) of the Act; and • in those circumstances the documents could not be disclosed by staff members to the Court. 3 As I have said the Proper Officer has applied to set aside the subpoena. THE PLAINTIFFS' MOTION FOR NON-PARTY DISCOVERY 4 After hearing oral submissions I reserved my decision. I then formed the view that the plaintiffs ought to have sought non-party discovery pursuant to O 15A rather than the issue of a subpoena. I was concerned that certain statutory provisions upon which the Proper Officer relies in support of the motion might not apply to an order pursuant to O 15A in the same way as to a subpoena. I accordingly invited the parties to make submissions. The plaintiffs then sought leave to issue notices of motion seeking orders pursuant to O 15A r 8. However the parties do not consider the distinction to be of any importance for present purposes. I proceed upon that basis. PLAINTIFFS' SUBMISSIONS 5 In their written submissions, the plaintiffs challenge the validity of ss 53, 56, 57, 58 and 60 of the Act. However I understand the Proper Officer to rely only on s 60. I need not consider the other sections. The plaintiffs submit that s 60 of the Act is 'an impermissible interference with the jurisdiction vested in the Federal Court' by the Admiralty Act 1988 (Cth) (the " Admiralty Act "). They submit that in these actions, the Federal Court is exercising jurisdiction conferred upon the Court pursuant to s 76(ii) and (iii), s 77 and s 71 of the Constitution 'and that jurisdiction cannot be ousted directly or ... indirectly.' They submit that s 60 is 'not a law with respect to any plenary power within s.51 and/or s 98 of the Constitution and accordingly, is invalid and/or to be read down under s.15A of the Acts Interpretation Act ... so as to create no offence by disclosure to a court under compulsion of subpoena and so as not to interfere with the Court's process and power to compel production of documents ... .' It is further submitted that it is for the Court and 'not an executive director' to decide whether documents should be produced or withheld and questions of admissibility in federal matters. This proposition is said to flow from the decision of the High Court in Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1 at 38. 6 Appropriate notices have been given pursuant to s 78B of the Judiciary Act 1903 (Cth). There has been no intervention and no application for removal. SECTION 60 OF THE ACT 7 Section 60 of the Act provides: ' Staff members (1) A person who is or has been a staff member is guilty of an offence if: (a) the person makes a record of information; and (b) the information is restricted information. Maximum penalty: Imprisonment for 2 years. (2) A person who is or has been a staff member is guilty of an offence if: (a) the person discloses information to any person or to a court; and (b) the information is restricted information. Maximum penalty: Imprisonment for 2 years. Non-staff members (3) A person who has, or had, access to restricted information under section 62 must not: (a) make a record of the information; or (b) disclose the information to any person or to a court. Maximum penalty: Imprisonment for 2 years. Defences (4) Subsection (1), (2) or (3) does not apply to: (a) anything done by a person in performing functions under this Act or in connection with this Act; or (b) disclosure to a court in criminal proceedings for an offence against this Act; or (c) disclosure to a court in civil proceedings where: (i) the Executive Director issues a certificate under subsection (5); and (ii) the court makes an order under subsection (6). Note: A defendant bears an evidential burden in relation to a matter in subsection (4). See subsection 13.3(3) of the Criminal Code . Certificate (5) The Executive Director may issue a certificate in relation to restricted information, stating that the disclosure of the information is not likely to interfere with any investigation. Courts (6) If the court is satisfied that any adverse domestic and international impact that the disclosure of the information might have on any current or future investigations is outweighed by the public interest in the administration of justice, the court may order such disclosure. (7) The court may direct that the restricted information, or any information obtained from the restricted information, must not: (a) be published or communicated to any person; or (b) be published or communicated except in such manner, and to such persons, as the court specifies. (8) If a person is prohibited by this section from disclosing restricted information, then: (a) the person cannot be required by a court to disclose the information; and (b) any information disclosed by the person in contravention of this section is not admissible in any civil or criminal proceedings (other than proceedings against the person under this section).' 8 The relevant provisions seem to be subss 60(2) and 60(8). The prohibition applies to a limited class of person (staff members) and to a limited class of information (restricted information). Those terms are defined in s 3 as follows: ' staff member means: (a) the Executive Director; or (b) an APS employee who is assisting the Executive Director in exercising powers under this Act; or (c) a person to whom the Executive Director, has delegated any of the Executive Director's powers under this Act'; and: 'restricted information means any of the following (but does not include OBR information): (a) all statements (whether oral or in writing) obtained from persons by a staff member in the course of an investigation (including any record of such a statement); (b) all information recorded by a staff member in the course of an investigation; (c) all communications with a person involved in the operation of a transport vehicle that is or was the subject of an investigation; (d) medical or private information regarding persons (including deceased persons) involved in a transport safety matter that is being or has been investigated; (e) in relation to a transport vehicle that is or was the subject of an investigation-information recorded for the purposes of monitoring or directing the progress of the vehicle from one place to another or information recorded in relation to the operation of the vehicle; (f) records of the analysis of information or evidential material acquired in the course of an investigation (including opinions expressed by a person in that analysis); (g) information contained in a document that is produced to a staff member under paragraph 32(1)(b) or 36(3)(a) or (4)(a).' 9 The prohibition is further limited in that the Executive Director may determine that disclosure is not likely to interfere with any investigation. In that event the Court must consider whether or not the material should be received as a matter of public interest. Thus the Court's power to compel disclosure is only removed if the Executive Director has not so determined. The prohibition does not apply to criminal proceedings for an offence against the Act. 10 The definitions of "restricted information" and "staff member" demonstrate that the prohibition primarily concerns information obtained as the result of investigations conducted pursuant to the Act. There is no prohibition upon the independent collection of the same information. On-board recording information ("OBR information") is in a different category, but I do not understand it to be relevant for present purposes. The prohibition in s 60 is not limited in its operation to proceedings in Commonwealth and state courts exercising federal jurisdiction. It also applies to proceedings in state courts exercising state jurisdiction. 11 It seems likely that much of the material will be in the form of statements from witnesses. Such statements would not usually be admissible in evidence unless the witnesses in question were called. Of course hearsay is no longer an absolute bar to admissibility. Nonetheless, one suspects that the material would be more valuable in directing the plaintiffs' lines of inquiry than as evidence. JURISDICTION AND POWER 12 This matter concerns the power of the Federal Court to compel the production of documents. The plaintiffs seem to assume that conferment of jurisdiction must involve the unlimited power to compel the giving of evidence including such production. The Court's jurisdiction is conferred by statute. Delineation of such jurisdiction is therefore a matter of statutory construction. Parliament may give or withhold any aspect of the judicial power of the Commonwealth. A grant of subject matter jurisdiction such as that in s 9 of the Admiralty Act will usually carry with it a grant of the power necessary to perform the relevant judicial functions. See Nicholas v The Queen [1998] HCA 9 ; (1998) 193 CLR 173 at [23] . If Parliament expressly withholds or withdraws a particular power, there can be no basis for asserting that the Court has it. It is possible that the withholding or withdrawal of a power necessary to the performance of a particular judicial task may render it impossible for the Court to perform its judicial function. In that case the conferment of jurisdiction might fail or be implicitly revoked. In construing the legislation which confers relevant jurisdiction upon it, the Court will seek to give effect to all aspects of such legislation. However, at the end of the day, clear legislative provisions must be given appropriate effect. Quite clearly, Parliament intended to deprive this Court of the power to compel the disclosure of restricted information by staff members, save where the Executive Director has issued a certificate. In my view it is no answer to say that because the Federal Court has statutory jurisdiction to determine the issues raised in these actions, s 60 must necessarily be unconstitutional in so far as it applies to it. I say nothing about the application of the section to the High Court or to state courts. 13 A further misconception underlies the plaintiffs' attempt to draw an analogy between public interest immunity, as a basis for resisting the disclosure of documents, and this legislation. The plaintiffs refer to the decision in Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1 at 38 as authority for the proposition that the validity of a claim to such immunity is a matter for the court in question. At that time, however, the Evidence Act 1995 (Cth) (the " Evidence Act ") had not been enacted. The question of the admissibility or otherwise of such evidence is now regulated by s 130 of that Act. There has been no suggestion that s 130 constitutes an unlawful interference with proceedings in this Court. 14 Historically, the courts have not enjoyed such a wide power to compel the giving of evidence as is implied by the plaintiffs' submissions. For example, as the Court of Appeal held in Warren v Warren [1997] QB 488, under the common law judges were competent, but not compellable, witnesses as to matters of which they became aware, relating to, and as a result of, the performance of the judicial function. In Australia that position is now regulated by s 16 of the Evidence Act . Other provisions contained in Division 1 of Part 2.1 of the Evidence Act also regulate the compellability of witnesses. The Parliamentary Privileges Act 1987 (Cth) regulates the calling of parliamentarians as witnesses and the proof of parliamentary proceedings. This legislation was no doubt enacted pursuant to s 49 of the Constitution . Nonetheless it demonstrates the fallacy of the general proposition asserted by the plaintiffs that it is for a court to determine, in its absolute discretion, who should be summoned to give evidence and the evidence which should be given. THE DECISION IN NICHOLAS 15 The relationship between the judicial power of the Commonwealth and Parliament's legislative authority in connection with witnesses and evidence was explained by the High Court in Nicholas (supra). That case concerned the power of a criminal court to exclude evidence upon the ground that it had been obtained in circumstances in which unlawful conduct had been committed by law enforcement officers. In light of an earlier decision of the High Court, Parliament had legislated to prohibit the exclusion of evidence on that ground. The accused submitted that the legislation was invalid as purporting to direct a court to exercise its discretionary power in a manner, or to produce an outcome which was inconsistent with, the essential character of a court or with the nature of judicial power. At [20] et seq, Brennan CJ said: '20. ... A law that purports to direct the manner in which judicial power should be exercised is constitutionally invalid ... . However, a law which merely prescribes a court's practice or procedure does not direct the exercise of the judicial power in finding facts, applying law or exercising an available discretion. For the purposes of the accused's first submission, the function of a court to which s 15X relates is the finding of facts on which the adjudication and punishment of criminal guilt depends. 21. Section 15X does not impede or otherwise affect the finding of facts by a jury. Indeed, it removes the barrier which Ridgeway placed against tendering to the jury evidence of an illegal importation of narcotic goods where such an importation had in fact occurred. Far from being inconsistent with the nature of the judicial power to adjudicate and punish criminal guilt, s 15X facilitates the admission of evidence of material facts in aid of correct fact finding. 22. However, to identify the adjudication of criminal guilt as the relevant exercise of judicial power is not to deal with the effect of s 15X on which the accused relies to challenge its validity. The accused's argument is not that the adjudication by the jury of criminal guilt is affected by s 15X but that s 15X governs the determination by the trial judge of the challenge to the admission of evidence of an illegal importation. The argument assumes that the exercise of discretion to admit or reject evidence is itself an exercise of judicial power distinct from a step in the practice or procedure which governs the exercise of judicial power. 23. The judicial power of a court is defined by the matters in which jurisdiction has been conferred upon it. The conferral of jurisdiction prima facie carries the power to do whatever is necessary or convenient to effect its exercise. The practice and procedure of the court may be prescribed by the court in exercise of its implied power to do what is necessary for the exercise of its jurisdiction ... but subject to overriding legislative provision governing that practice or procedure. The rules of evidence have traditionally been recognized as being an appropriate subject of statutory prescription. A law prescribing a rule of evidence does not impair the curial function of finding facts, applying the law or exercising any available discretion in making the judgment or order which is the end and purpose of the exercise of judicial power. E.S. Roscoe ... observing that the common law had produced a law of evidence of such high technicality as "justly merited the wholesale condemnation of Bentham" credits Lord Denman with the initiation of the move for legislative reform. The preamble to the Evidence Act 1843 (Imp) ... shows the need which was perceived to warrant legislative intervention: "Whereas the Inquiry after Truth in Courts of Justice is often obstructed by Incapacities created by the present Law, and it is desirable that full Information as to the facts In Issue, both in Criminal and in Civil Cases, should be laid before the Persons who are appointed to decide upon them" it was enacted that certain evidentiary rules be changed. Even though judicial opinion was opposed to the enactment of the Criminal Evidence Act 1898 ... it would not have occurred to the Imperial Parliament that a legislative power to prescribe rules of evidence might be regarded as a usurpation of judicial power.' 16 At [24] Brennan CJ referred to earlier decisions, in particular the decision of Higgins J in Williamson v Ah On [(1926) [1926] HCA 46 ; 39 CLR 95 at [122] and continued: 'However, Isaacs J pointed out a difference between a rule of evidence and a provision which, though in the form of a rule of evidence, is in truth an impairment of the curial function of finding the facts and hence an usurpation of judicial power. He said: "It is one thing to say, for instance, in an Act of Parliament, that a man found in possession of stolen goods shall be conclusively deemed to have stolen them, and quite another to say that he shall be deemed to have stolen them unless he personally proves that he got them honestly." If a court could be directed by the legislature to find that an accused, being found in possession of stolen goods, had stolen them, the legislature would have reduced the judicial function of fact finding to the merest formality. The legislative instruction to find that the accused stole the goods might prove not to be the fact. The legislature itself would have found the fact of stealing. Isaacs J continued: "The first is a parliamentary arbitrary creation of a new offence of theft, leaving no room for judicial inquiry as to the ordinary offence; the second is only an evidentiary section, altering the burden of proof in the ordinary case of theft, and requiring certain pre-appointed evidence to fit the special circumstances in the interests of justice, because the accused best knows the facts, and leaving the Court with these provisions to examine the facts and determine the matter." ' 17 At [26], Brennan CJ continued: 'If s 15X had simply declared that evidence of an illegal importation should be admitted, denying any discretion in the trial judge to exclude the evidence, the provision would simply have enlarged the evidentiary material available to a jury to assist it to find the facts truly. It would have been a mere procedural law assisting in the court's finding of material facts. No exception could be taken to such a law consistently with the authority cited above. But s 15X leaves the trial judge with a discretion to reject evidence of importation of narcotic goods in an authorized controlled operation, requiring only that in exercising the discretion, the illegal conduct of law enforcement officers should be disregarded. The existence of the judicial discretion does not alter the classification of the law as a law governing the admission of evidence and therefore a law governing procedure. The procedure for determining the admission of evidence of illegal importation is affected, but the judicial function of fact finding is unchanged and the judicial power to be exercised in determining guilt remains unaffected.' 18 Toohey J said at [53]: 'It is a considerable step to reason that legislation may not affect the way in which judicial power is exercised. It is an even bigger step to contend that the legislature may not provide that evidence possessing a certain character must be treated in a certain way or that evidence of a particular character must be rejected or, for that matter, admitted. It might be necessary, in a particular situation, to look closely at the consequences of rejecting or admitting the evidence. Those consequences may, for instance, be so inimical to the idea of a fair trial that a question arises as to the power of the legislature, at any rate where the judicial power of the Commonwealth is involved. In Polyukhovich v The Commonwealth ..., where the operation of a law retroactively was one of the issues, I said: "It is only if a law purports to operate in such a way as to require a court to act contrary to accepted notions of judicial power that a contravention of Chapter III may be involved." The operation of s 15X falls far short of that situation. It postulates a particular evidentiary footing upon which a court may then proceed where the admissibility of evidence that narcotic goods were imported into Australia is at issue. Section 15X is an evidentiary provision. It does not determine whether a charge of an offence ... will succeed or fail.' 19 Gummow J said, at [144]-[146]: '144. The present dispute does not turn upon the nature of the liabilities of the accused under s 233B of the Customs Act which are subjected to determination by the exercise of judicial power, nor upon the consequences of that determination. The accused is liable to the determination of criminal guilt and the consequent infliction of punishment. There is a correlative right of the accused to the determination of that guilt and the infliction of punishment by the exercise of judicial power. What is at the heart of the complaint by the accused is legislative prescription as to the manner of the exercise of the judicial power at his trial. 145. The essential question concerns the limitation imposed by s 15X upon the discretion which the trial court otherwise would enjoy to exclude evidence that the heroin in question was imported into Australia in contravention of the Customs Act . Is this such an interference with the governance of the trial and a distortion of its predominant characteristics as to involve the trial court in the determination of the criminal guilt of the accused otherwise than by the exercise of the judicial power of the Commonwealth? 146. The legislative powers of the Commonwealth do not extend to the making of a law which authorises or requires a court exercising the judicial power to do so in a manner which is inconsistent with its nature ... Thus, a legislative direction requiring a court not to release a person held in unlawful custody is a direction as to the manner (and outcome) of the exercise of its jurisdiction and is an impermissible intrusion into the exercise of the judicial power ... Nor would a legislative direction be valid if it required a court in exercise of the judicial power of the Commonwealth to order exercise of the judicial power of the Commonwealth to order imprisonment, not on the basis that the persons in question had breached any criminal law, but upon an opinion formed by reference to material, not necessarily admissible in legal proceedings, that, on the balance or probabilities, they might breach such a law.' 20 At [162] his Honour concluded: 'The section in its operation, if not necessarily on its face, deals not with proof but with a discretion to exclude evidence of facts. It operates to facilitate the proof by the prosecution of its case by the admission of evidence that otherwise was liable to exclusion. The case for the accused is made that much more difficult than it would have been if s 15X had not been enacted. However, the section does not deem any ultimate fact to exist, or to have been proved. It leaves untouched the elements of the crimes for which the accused is to be tried. Nor does s 15X change the amount or degree of proof essential to convict him from that required when the alleged offences were committed.' 21 At [232] et seq, Hayne J said: '232. It was submitted that the discretion to reject evidence of illegally procured offences is a common law (as opposed to statutory) discretion which is exercised by the courts to protect the integrity of their processes. No doubt this is so. Equally there is no doubt that a court which exercises the discretion is exercising judicial power. Thus, when the trial judge ruled that the evidence which the prosecution proposed to lead of the importation of the heroin which it was alleged that Nicholas had, or had attempted to have, in his possession should be excluded, the trial judge was exercising the judicial power of the Commonwealth. But it by no mean follows from these considerations that Parliament may make no law touching the discretion. 233. At the outset it is necessary to recall that the discretion is one which is rooted in public policy and requires the balancing of competing considerations. Part 1AB seeks to have the Court strike that balance differently in some kinds of cases, presumably because the Parliament considers that the public interest requires it. The effect of Nicholas' contentions is that only the courts may determine what the public interest requires. I do not accept that that is so. 234. The facts that the discretion is a creature of the common law and is concerned with the protection of the integrity of the courts' processes do not mean that the discretion cannot be affected by legislation. There are many rules which have been developed by the common law which have been changed or even abolished by legislation and yet it is not suggested that such legislation intrudes upon the separation of judicial and legislative powers. Nor do the facts that the discretion is designed to protect the integrity of the courts and that the discretion is "an incident of the judicial powers vested in the courts" ... take the discretion altogether beyond the reach of the legislature. Whether other considerations would arise if Parliament attempted to abolish the discretion altogether is a question I need not, and do not, address. The legislation now in question does not abolish the discretion it affects only some kinds of prosecutions and then only in the limited circumstances that are prescribed in the legislation. 235. Moreover, Part 1AB is concerned with a rule about the reception or rejection of certain evidence. That Parliament may make laws prescribing rules of evidence is clear and was not disputed. Plainly, Parliament may make laws (as it has) on subjects as diverse as the circumstances in which hearsay may be received ... or the circumstances in which confessional statements by accused persons may be admitted in evidence and it may do so to the exclusion of the previous common law rules ... . 236. The common law rules that were developed in these areas were often, if not always, developed with questions such as reliability of evidence or fairness to the accused at the forefront of consideration and thus, at least to that extent, with questions of the integrity of the curial process and its results well in mind. And yet such legislation does not infringe the separate of powers.' 22 At [238] his Honour continued: 'Once it is accepted that the legislature may make or change the rules of evidence it is clear that it may make or change the rules governing the discretionary exclusion of evidence. In particular, it may make or change rules governing the factors which a court is to take into account in exercising that discretion.' 23 See also Kizon v Palmer (1997) 72 FCR 409, per Lindgren J at 446-7, Jenkinson and Kiefel JJ concurring, and Rann v Olsen (2000) 172 ALR 395, per Doyle CJ at [190]-[192], Prior J at [230], Perry J at [258], Mullighan J at [284] and Lander J at [391]. 24 In light of these authorities there is simply no room for the submission that Parliament cannot make laws relating to the admissibility or inadmissibility of evidence. There may be extreme cases in which the consequence of a statutory provision is that a judicial function performed in accordance with it would not be recognizable as judicial in nature. That may lead to the conclusion that the provision is unlawful or that the conferment of jurisdiction was not, or is no longer, valid. However it cannot be seriously suggested that the present case is of that kind. No attempt was made to establish that it was. 25 The plaintiffs also submit that the power conferred on the Executive Director by subs 60(5) is judicial and therefore not capable of conferment upon that officer. There is no reason for treating the power as being judicial in nature other than that it results in evidence not being receivable in a court. Once it is accepted as it must be, that Parliament may legislate to exclude certain matters from being received in evidence, there seems to be no reason why it should not be able to empower an identified person to determine whether or not the Act's protection should be invoked or waived. If this argument were valid, it would seem to follow that the legislation extending such protection should also be characterized as judicial and not legislative. There is nothing in this point. The submission is also put in a slightly different way. It is said that the legislation subordinates exercise of the judicial power to an executive discretion. While such a proposition has the typical appeal of a rhetorical flourish, it fails to address the fundamental problem that the authorities recognize the power of Parliament to legislate in connection with rules of evidence. 26 Finally, the plaintiffs submit that s 60 'compromises the integrity of the judicial system, because it goes to the question of the power of the court to make orders with which the executive or, in this case, with which people will comply.' The administration of law is, no doubt, a public function of primary importance in a civilized society, but other functions are also important. Whilst the courts balance the interests of one litigant against another, Parliament must balance the interaction between different public functions. It is for Parliament to determine the balance between the right of a litigant to lead evidence and the objects identified in s 7 of the Act. There is nothing in this point. CONSTITUTIONAL POWER 27 As to the assertion that there is no head of power which authorizes enactment of s 60, the Proper Officer relies upon subss 51(i) [xx] and [xxix] and s 98 of the Constitution . The plaintiffs have made no attempt to demonstrate any basis for arguing that the legislation is beyond the power conferred by those provisions. My understanding of their argument is rather that there is no express authorization for legislation which has the effect of restricting the power of this Court to compel classes of witnesses to give evidence of a particular kind. As I have said that argument cannot be maintained. Section 60 is within power. ORDERS 28 In each action the subpoena should be set aside. The plaintiffs should pay the Proper Officer's costs of and incidental to the motion. I will entertain any application pursuant to O 15A r 8 should the plaintiffs wish to proceed further with that course. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 5 July 2007 Counsel for the Plaintiff: Mr A W Street Mr McClure Solicitor for the Plaintiff: Norton White Counsel for the First Defendant: The first defendant did not appear Counsel for the Second Defendant: The second defendant did not appear Counsel for the Australian Transport Safety Bureau: Dr Perry SC Ms Mitchelmore Solicitor for the Australian Transport Safety Bureau: Australian Government Solicitor Date of Hearing: 26 February 2007 Date of Judgment: 5 July 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1000.html


case_outcome: cited

case_title: Rann v Olsen (2000) 172 ALR 395


case_text: The circumstances in which security for costs may be ordered are not confined to particular factors: Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1, at 3-4. Although the current appeals have been instituted and are to be heard on 15 May 2007 by the Full Court, a single judge has power to order the provision of security for costs of an appeal: see per Hely J in Croker v Deputy Registrar of the High Court of Australia [2003] FCA 681 at [2] ; and per Marshall J in Upton v Tasmanian Perpetual Trustees Pty Ltd [2006] FCA 1336.


case_title: Croker v Deputy Registrar of the High Court of Australia [2003] FCA 681


case_title: Upton v Tasmanian Perpetual Trustees Pty Ltd [2006] FCA 1336


case_title: Cowell v Taylor (1885) 31 Ch D 34

case_text: The cases suggest that, in the case of an appeal, where an impecunious litigant has had the benefit of a full hearing at first instance, the significance of the fact that a security for costs order may frustrate the exercise of the right of appeal should carry less weight than in the circumstances where a litigant at first instance may be put out of litigating a matter at all. As long ago as Cowell v Taylor (1885) 31 Ch D 34 at 38, Bowen LJ said: The general rule is that poverty is no bar to a litigant, that, from time immemorial, has been the rule at common law, and also, I believe, in equity. There is an exception in the case of appeals, but there the appellant has had the benefit of a decision by one of Her Majesty's courts, and so an insolvent party is not excluded from the courts, but only prevented, if he cannot find security, from dragging his opponent from one court to another. Spender J in Skyring v Sweeney [1999] FCA 61 at [6] said: Impecuniosity is a factor which can be taken into account as justifying the grant of security. Impecuniosity ought not to be a bar to a person prosecuting at first instance a claim, but the position on appeal seems to me to be fundamentally different. In effect, in the absence of an order for security for costs in the circumstances of this case, Mr Skyring, in effect, is given a free hit, and that seems to me to be intrinsically unfair.


case_title: Skyring v Sweeney [1999] FCA 61


case_outcome: discussed

case_text: The decision of the learned magistrate made on the application for summary judgment was based upon the "threshold requirement" as identified by Riley J in Re Alafaci; Registrar in Bankruptcy v Hardwick (1976) 9 ALR 262 at 268. It is that the Court should first be satisfied that on the grounds and facts before it a case had been made out for inquiry into the trustee's conduct under s 179 of the Bankruptcy Act 1966 (Cth). As his Honour said at [18], he needed to be satisfied before embarking upon an inquiry under s 179 that sufficient grounds had been demonstrated for the inquiry to be conducted. No ground of appeal attacks that analysis of the legal approach as incorrect. 28 His Honour then addressed the evidence adduced by Mr Moore, together with that adduced by Mr Macks, and referred to the decisions of Lander J in the primary judgment. He noted the role of Mr Macks as a director and shareholder of Manna Hill Mining Co Pty Ltd, and also as its administrator and as its administrator under a Deed of Company Arrangement entered into apparently in May 2000 and which Mr Moore maintained until he resigned as deed administrator in September 2001. One of the other creditors of Manna Hill Mining Co Pty Ltd (as well as Mr Moore) was apparently Ms Dubois. Ms Dubois was also a bankrupt, and Mr Macks was also the trustee of her estate. His Honour considered Mr Moore's contentions as to the role of Mr Macks in the administration of that company in 2000 and 2001 and his role as trustee of the bankrupt estate of Ms Dubois. He concluded that there was nothing in that conduct which provided any sufficient basis to embark upon an inquiry under s 179 of the Bankruptcy Act 1966 (Cth). His Honour also concluded that there were no communications between Mr Macks and Mr Moore which provided any basis for the Court to infer that Mr Macks had some significant animosity towards Mr Moore. Beyond that, as his Honour noted, the conflict of interest assertion had not been particularised. He described Mr Moore's contentions as being no more than inviting his Honour to speculate about Mr Macks' general attitude towards Mr Moore or about the reasons why Mr Macks should presently, as Mr Moore's trustee, have a conflict of interest. His Honour was not prepared simply to speculate about those matters in the absence of any material to support them. 29 The next category of matters which were said to provide the basis for an inquiry concerned certain alleged conduct of Mr Macks through communications with Mr Moore. Although there were significant allegations of improper conduct on the part of Mr Macks, they were extremely general. His Honour concluded that there was no foundation for any of those allegations. His Honour rejected those allegations. He indicated that there was no material of any substance to establish any impropriety in the professional relationship between Mr Macks and his legal advisers, nor any foundation for the serious allegation Mr Moore had made against those legal advisers. They were rejected "unambiguously" as providing any basis for the Court to embark upon an inquiry under s 179 of the Bankruptcy Act 1966 (Cth). 30 Dealing generally with the significant factual conclusions asserted by Mr Moore, his Honour said at [36]: I accept the submission of the respondent that it is inappropriate to order an inquiry on the strength of allegations which have no factual basis and agree that to do otherwise would encourage disaffected bankrupts to make baseless allegations which would have the effect of requiring trustees to needlessly expend time and costs in defending their position. 31 Nor was Mr Macks' decision to defer his decisions in relation to the conduct of the appeals from the primary judgment until his status as the trustee of Mr Moore was finally determined (by the judgment of 10 February 2006) indicative of any conduct which would warrant such an inquiry. That part of the application was then referred to this Court and determined by Besanko J as referred to above. 32 His Honour at [40] then referred to "the miscellany of other complaints raised by Mr Moore against Macks" and said that they all fall into the same category of "unsubstantiated assertion." 33 In my view, there is nothing which has been identified by Mr Moore which shows that any of his assertions contained within the grounds of his appeal have any prospect of success. They are discursive, general and remain unsubstantiated by any cogent reference to evidence or reasoning. The same may be said of his submissions of 27 March 2007. 34 The application for summary dismissal of the proceeding before Lindsay FM was filed on 14 June 2005 and ultimately argued on 2 December 2005. Mr Moore had ample opportunity to prepare for it. His proposed evidence, even in its assertive form, was received and considered. Subsequent to that hearing, the learned magistrate received further evidence from Mr Moore on his application and had regard to it. There is nothing to indicate that Mr Moore was not given an opportunity to present to the Court such material as he was properly entitled to present, or was not given the opportunity to make submissions on the matters which he sought to make submissions upon. His allegations of not being accorded procedural fairness, or of the Magistrate having demonstrated a closed mind towards his application, are simply unfounded on the material before me. 35 I take into account that the appeal in this matter has no apparent prospects of success. 36 There has been a delay in bringing the application for security for costs in respect of this appeal. The notice of appeal was filed on 17 May 2006. The notice of motion seeking security for costs was filed only on 14 February 2007, following correspondence shortly before that time. However, I do not regard that delay as sufficiently significant in the present circumstances to affect the view which, on balance, I have otherwise reached in relation to the application. That is because (as noted above) the conduct of that appeal had been delayed whilst Besanko J heard that part of the proceeding which had been referred to this Court. The appeal is inter-related with the matter before Besanko J which is now the subject of appeal SAD 7/2007. As is apparent from the orders which have been made, it is appropriate that both appeals be heard together. There is nothing to suggest that Mr Moore's position has been adversely affected by the limited action in respect of his appeal up to the present time, and indeed he has not pressed for this appeal to have been listed for hearing earlier. 37 In respect of the appeal from the judgment of Besanko J (SAD 7 of 2007), the notice of appeal states the grounds assertively as follows: 1. The legal principles governing the evidence and procedures were not properly applied. 2. Admissible evidence was excluded. The Judge acted unfairly and was biased. 3. See attached document of further grounds of appeal number 3 to 39. 38 I have read the subsequent paragraphs numbered 3 to 39. Apart from assertions without any identified basis (e.g. the judge did not consider properly), Mr Moore complains of having insufficient time to present his evidence. The complaint seems to be that he could not adduce the "evidence concerning mining joint venture, my credibility, Lawton not being credible and Wilson not being credible witnesses." 39 He also complains of Lawton and Wilson being represented and being allowed to appear at the hearing through counsel. He asserts that the appeals from the primary judgment were not part of his bankrupt estate. He asserts that the learned judge overlooked the existence of the appeals from the primary judgment. That is patently wrong. Nothing more need be said about it. He asserts that the learned judge should have found that Mr Macks had a relevant, but unspecified, conflict of interest which should have precluded him from taking any decision about the fate of the appeals from the primary judgment.


case_title: In the Estate of William Just, deceased (No 1) (1973) SASR 508

case_text: Secondly, he purports to sue as "managing trustee" of 26 trusts. It is unnecessary for me to consider whether or not Mr Garrett can properly appear for these trusts in the representative capacity he asserts. I would simply note, though, on the material before me and by Mr Garrett's own admission, the first two of the trusts listed are ones in respect of which he is a joint trustee along with a company, Evajade Pty Ltd. It would appear from a printout from the Australian Securities and Investment Commission's national database that that company has no current directors and that it has a sole shareholder who has entered into a personal insolvency agreement under Pt X of the Bankruptcy Act . I would note in passing that that printout is proof of its contents in this regard in the absence of evidence to the contrary. The difficulties this may pose need not be explored here: cf In the Estate of William Just, deceased (No 1) (1973) 7 SASR 508; Ford and Lee, Principles of the Law of Trusts [9380].


case_text: Thirdly, he asserts to be sole director and shareholder (albeit in the capacity as a trustee) of 15 companies. As to the claim that he was sole director, he admitted under questioning that he was not now a director, his attention having been drawn to the provisions of s 206B(3) of the Corporations Act 2001 (Cth) and to the problems that section might cause him. They were also pointed out to him in turn by Gray J in Evajade Pty Ltd v National Australia Bank (No 2) (2005) SASC 229. Curiously two of the companies of which he asserts to be director and shareholder are Evajade Pty Ltd and the third respondent in this proceeding, The Wine Company Pty Ltd (the previous name of which was Andrew Garrett Group Pty Ltd). I have referred above to Evajade. As to The Wine Company, the ASIC national database printout reveals that company to have been de-registered on 15 January 2006 by ASIC pursuant to s 601AB of the Corporations Act 2001 (Cth). I need to emphasise this for reasons which will become apparent below. 6 Fourthly, he purports to proceed as assignee of causes of action including from the de-registered Wine Company. What is not clear is in what capacity he is acting as assignee or what those choses are. 7 Fifthly, he purports to be exercising powers of attorney on behalf of some number of persons and companies including his wife who is also an undischarged bankrupt. There is no evidence as to the type of cause of action vested in her which he is prosecuting on her behalf, let alone whether it is competent for her to assert it.


case_outcome: followed

case_text: With respect to each of the allegedly counterfeit products, Mr Taylor explained why he believed they were not licensed by Nokia. Mr Taylor stated that he knew that the Nokia branded neck straps were counterfeit because "[t]he Applicant does not manufacture mobile phone neck straps bearing the NOKIA trade mark, or authorise the use by any third party of the trade mark NOKIA on mobile phone neck straps, for sale to the public". With respect to other products, Mr Taylor referred to the packaging, workmanship and the appearance of the Nokia brand together with other features as evidence that the products were counterfeit. I interpolate here that I accept that Mr Taylor's evidence is admissible pursuant to s 79 of the Evidence Act 1995 (Cth), alternatively, s 78 of that Act : see Nokia Corporation v Truong [2005] FCA 1141 at [35] per Crennan J and Nokia Corporation v Mai (2003) 59 IPR 413 at [11] per Kenny J. His evidence established that the Nokia Trade Marks had been applied to counterfeit goods.


case_title: Nokia Corporation v Mai (2003) 59 IPR 413


case_text: Prior to the enactment of s 31A of the Federal Court Act , the standard to be satisfied before summary judgment would be granted was settled law. The authorities made it clear that the jurisdiction to give summary judgment should be exercised with great care and only where the Court was satisfied that the respondent had no arguable defence to the claim made by the applicant: see, e.g., Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129-130; Fancourt v Mercantile Credits Ltd [1983] HCA 25 ; (1983) 154 CLR 87 (" Fancourt ") at 99; and Webster v Lampard [1993] HCA 57 ; (1993) 177 CLR 598 (" Webster "). As the applicant conceded, s 31A of the Federal Court Act does not apply to this proceeding. Accordingly, the Court should apply the authorities cited above.


case_title: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125


case_title: Geoffrey Inc v Luik (1997) 38 IPR 555

case_text: Whether or not the Court is satisfied that that there is no real question to be tried (see Fancourt at 99) will depend entirely on the circumstances of the case. By its affidavits, Nokia is required to make out such facts as are necessary for its cause of action: see Rourke v Victorian Finance Guarantee and Share Co Ltd (1894) 20 VLR 8 at 11 and Evans Deakin & Co Pty Ltd v Kaiser Engineers and Constructors Inc [1968] Qd R 379 at 382. Once Nokia has filed the requisite affidavits, the respondents must place evidence before the Court that deals specifically with the Nokia's claim, and state clearly what their defence is and what facts are relied on to support that defence. A mere general denial is usually not sufficient to avoid summary judgment: see Wallingford v The Mutual Society (1880) 5 AC 685 at 704; also O 11 r 13 of the Rules. Where the outcome of a case depends on the resolution of disputed facts, the Court should be especially cautious to order summary judgment: see Webster at 603 per Mason CJ, Deane and Dawson JJ. The Court should approach an application for summary judgment on the basis that the respondent's evidence, if not inherently credible, will be accepted at trial, and on the basis that the Court should consider the material to determine whether it discloses either an arguable defence or material that might give rise to an arguable defence: see Webster at 603 and Geoffrey Inc v Luik (1997) 38 IPR 555 at 557 per RD Nicholson J. The Court retains discretion to refuse summary judgment, although that discretion must be exercised judicially.


case_text: Prior to the enactment of s 31A of the Federal Court Act , the standard to be satisfied before summary judgment would be granted was settled law. The authorities made it clear that the jurisdiction to give summary judgment should be exercised with great care and only where the Court was satisfied that the respondent had no arguable defence to the claim made by the applicant: see, e.g., Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129-130; Fancourt v Mercantile Credits Ltd [1983] HCA 25 ; (1983) 154 CLR 87 (" Fancourt ") at 99; and Webster v Lampard [1993] HCA 57 ; (1993) 177 CLR 598 (" Webster "). As the applicant conceded, s 31A of the Federal Court Act does not apply to this proceeding. Accordingly, the Court should apply the authorities cited above. 46 Whether or not the Court is satisfied that that there is no real question to be tried (see Fancourt at 99) will depend entirely on the circumstances of the case. By its affidavits, Nokia is required to make out such facts as are necessary for its cause of action: see Rourke v Victorian Finance Guarantee and Share Co Ltd (1894) 20 VLR 8 at 11 and Evans Deakin & Co Pty Ltd v Kaiser Engineers and Constructors Inc [1968] Qd R 379 at 382. Once Nokia has filed the requisite affidavits, the respondents must place evidence before the Court that deals specifically with the Nokia's claim, and state clearly what their defence is and what facts are relied on to support that defence. A mere general denial is usually not sufficient to avoid summary judgment: see Wallingford v The Mutual Society (1880) 5 AC 685 at 704; also O 11 r 13 of the Rules. Where the outcome of a case depends on the resolution of disputed facts, the Court should be especially cautious to order summary judgment: see Webster at 603 per Mason CJ, Deane and Dawson JJ. The Court should approach an application for summary judgment on the basis that the respondent's evidence, if not inherently credible, will be accepted at trial, and on the basis that the Court should consider the material to determine whether it discloses either an arguable defence or material that might give rise to an arguable defence: see Webster at 603 and Geoffrey Inc v Luik (1997) 38 IPR 555 at 557 per RD Nicholson J. The Court retains discretion to refuse summary judgment, although that discretion must be exercised judicially.


case_title: Webster v Lampard [1993] HCA 57 ; (1993) 177 CLR 598


case_title: Rourke v Victorian Finance Guarantee and Share Co Ltd (1894) 20 VLR 8


case_title: Evans Deakin & Co Pty Ltd v Kaiser Engineers and Constructors Inc [1968] Qd R 379


case_title: Wallingford v The Mutual Society (1880) 5 AC 685


case_outcome: referred to

case_text: By its statement of claim the applicant alleged that the respondents have contravened s 120 of the Act . Under this provision a trade mark will be infringed where a mark which is "substantially identical with, or deceptively similar to" a registered trade mark is used in relation to the same goods as the registered goods. The use complained of must be "use by the alleged infringer as a trade mark" and this requires consideration of the "purpose and nature of the impugned use": see Shell Co of Australia Ltd v Esso Standard Oil (Australia) Ltd [1961] HCA 75 ; (1963) 109 CLR 407 at 426 per Kitto J as cited in Johnson & Johnson Australia Pty Ltd v Sterling Pharmaceuticals Pty Ltd (1991) 30 FCR 326 at 347 per Gummow J. It is clear that the respondents' use of the allegedly infringing marks is use for the purposes of trade. 48 The third and fourth respondents have, in essence, admitted that they have infringed the Nokia Trade Marks. Nokia's evidence of the trap purchases from them and Mr Taylor's evidence that the goods were counterfeit made out Nokia's case of trade mark infringement against them. The third respondent has not attempted to file any defence in this proceeding and, in oral evidence, admitted that he had sold counterfeit Nokia products. In his "Defence" of 24 February 2006, the fourth respondent effectively admitted trade mark infringement. Accordingly, Nokia is entitled to summary judgment against the third and fourth respondents (Mr Akyildiz and Mr Kim). 49 In contrast to the third and fourth respondents, the first and second respondents have denied trade make infringement. As counsel for Nokia noted, the affidavit and statements filed on their behalf did not include any firm denials stating that the alleged trap purchases had not taken place. Further, this material admitted that the first respondent had sold "off market" products and did not specifically deny that such products included unauthorised Nokia branded products. On their own, these vague and seemingly ambiguous denials would have no prospects of success at a trial.


case_text: There remains the question of whether leave should be given to the second respondent to represent the first respondent on the hearing of this motion. The general rule is that a company is not permitted to act by an officer but is required to act through a solicitor to defend proceedings against it: see O 9 r 1(3) of the Rules, which permits the Court to grant leave for someone other than a solicitor to defend the proceedings on the company's behalf. In Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241 , French J considered the operation of this rule. His Honour noted, at [12], that, unlike the equivalent rule in other jurisdictions, there was no threshold requirement in O 9 r 1(3) of special or exceptional circumstances. The discretion conferred by the Rules of this Court is to be exercised by reference to all the relevant circumstances. However, as French J said at [13]: "Nevertheless the policy of the rule is clear that ordinarily a corporation will be required to be represented by a solicitor. Relevant factors for dispensing with that requirement include the financial capacity or lack of capacity of the corporation and those standing behind it, the effect of diverting company resources to paying legal expenses, the nature of the company's undertaking, its financial structure, its ability to retain and pay its staff and the identity and spread of its shareholders. The factual complexities of the case and the capacity of the proposed representative to conduct it effectively are also relevant ... ." As his Honour observed those who carry on business through corporate structures have advantages that those who carry on business on their own account do not enjoy, but they also acquire disabilities and obligations: compare Clout (Trustee) v Anscor Pty Ltd [2001] FCA 604 at [23] per Drummond J and Melaleuca of Australia & New Zealand Pty Ltd v Duck [2005] FCA 1481 at [14] - [15] per Bennett J.


case_title: Clout (Trustee) v Anscor Pty Ltd [2001] FCA 604


case_title: Melaleuca of Australia & New Zealand Pty Ltd v Duck [2005] FCA 1481


case_text: have been referred to the decision of Hodgson J in George Ward Steel Pty Ltd v Kizkot Pty Ltd (1989) 15 ACLR 464; (1989) 7 ACLC 838, an authority I have myself applied in other cases, including Deputy Commissioner of Taxation v Fairchild Development Pty Ltd (in liq) [2006] FCA 714. Hodgson J's points are not, of course, a statutory formula but they are a useful checklist of things to at least take into account. Because of the very short time involved here, the indication of solvency is a fairly low threshold that is well met by the evidence which has been put before me.


case_title: George Ward Steel Pty Ltd v Kizkot Pty Ltd (1989) 15 ACLR 464; (1989) 7 ACLC 838


case_outcome: applied

case_text: The power granted by s 447A to make the order sought cannot be doubted. The width of that section was firmly established in Australasian Memory Pty Ltd v Brien [2000] HCA 30 ; (2000) 200 CLR 270 at 281 282 and has been applied in many circumstances since that time. Administrations vary greatly and s 447A provides the necessary flexibility if the object of Pt 5.3A set out in s 435A is to be realised. 16 The respondent EPG companies (by their administrators) appeared and consented to the orders sought. Australian Securities and Investments Commission (ASIC) was advised of the intention to bring the proceeding and was supplied with draft documents. The responsible officer noted that ASIC took no formal position in relation to the application, it being a commercial matter for the parties, and advised that ASIC would not be appearing. No other party was served or given notice of the application. 17 As the administrators of the various companies represent the interests of unsecured creditors, the only other potential parties possibly affected are the other secured creditors of the relevant respondent EPG companies. I accepted the submission of counsel for the applicants that the interests of such creditors are not affected in a manner which would make them necessary parties to this application. The result of this application does not affect the rights of any secured creditor in relation to the enforcement of its security. However, it seemed to me that, rather than make an order applicable only to the charges held by ACR over property of the relevant EPG respondent companies, the extension should be in general terms so as to avoid any possible argument that any other secured creditor had been disadvantaged by a special deal. There was not time on 12 June 2007 for any great reflection about that matter and the form of this order should not be taken as a precedent.


case_text: The ACR Administrators did consider an alternative course, namely, to seek to enter a deed or some other form of agreement with the EPG Administrators under which they would give consent under s 440B(a) to ACR enforcing its securities after the "decision period" had expired. The ACR Administrators considered that there was a risk that a court would find that an agreement which fetters the future exercise of discretion and fiduciary obligations by administrators in such a manner would not be enforceable. (cf P Pan, "A Practical Comparison of Corporate Insolvency Procedures" in D Allen et al, Australian Finance Law , (5 th ed, Lawbook Co, 2002), Ch 27, at p 682; Re Java 452 Pty Ltd (Administrators Appointed); Permanent Trustee Australia Ltd v Stout (1999) 32 ACSR 507; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30 ; (1998) 195 CLR 1 at [54] ).


case_title: Re Java 452 Pty Ltd (Administrators Appointed); Permanent Trustee Australia Ltd v Stout (1999) 32 ACSR 507


case_outcome: considered

case_text: The Arts Victoria Act 1972 (Vic) creates the office of Director, Arts Victoria, and provides for the appointment of a body called the Victorian Council of the Arts. Section 4 of that Act provides, in relation to the Department of Premier and Cabinet: 'The objects of the Department under this Act are− (a) to develop and improve the knowledge understanding appreciation and practice of the Arts in Victoria; (b) to increase the availability and accessibility of the Arts to the public of Victoria; (c) to encourage and assist in the provision of facilities to enable the Arts to be performed or displayed; (d) to continually survey and assess the position of the Arts in Victoria and to report to the Parliament at least once in every year on the condition of the Arts in Victoria and to suggest ways in which the Arts may be further and better assisted; (e) to administer the Acts and enactments for which the Minister is responsible; (f) to advise and co-operate with other Departments of the Government public statutory authorities municipalities and other persons or bodies concerned with the promotion or practice of the Arts in Victoria.' 24 It is clear that the Trust is not a State Government department, for the purposes of the phrase 'State Government Departments and Instrumentalities' in the award clauses with which this case is concerned. There is a clear contrast between the Trust and Arts Victoria, which is described as a division of what is undoubtedly a State Government department. The test for determining whether a particular body is an 'instrumentality' of a State, within the ordinary meaning of that term, is found in Re Anti-Cancer Council of Victoria; Ex parte State Public Services Federation [1992] HCA 53 ; (1992) 175 CLR 442 at 448, where the High Court said: 'It is well settled that union eligibility rules are to be interpreted liberally and according to their ordinary and popular meaning. However, the expression "State instrumentality" is one that carries much the same meaning in popular usage as in a legal context. That meaning directs attention to the purpose or end served, so that a body is a State instrumentality if it is empowered to and does, in fact, serve some State government purpose. And that is so even if it is neither a servant nor an agent of the State.' [Footnotes omitted] 26 In the Anti-Cancer Council case, the court held that the Anti-Cancer Council of Victoria ('the ACCV') was not a 'State instrumentality', within the meaning of that expression in a trade union's eligibility rules. The ACCV was not under ministerial control. Its only function that might have been described as serving a State Government purpose was the receipt of reports and the keeping and compiling of a register, for which the ACCV received a small amount of government funding. Significantly, there was no obligation imposed on the ACCV with respect to the reports it received or the cancer register. The court held that the ACCV fell within another limb of the rule of the trade union in question, which defined those eligible for membership. 51 Counsel for the respondent attempted to rely on the capitalisation of the initial letter of the word 'Instrumentalities' in each of cl 8A(a)(ii) of the 1994 Award and cl 15.3.1(b) of the 2003 Award, as well as in the earlier Victorian award, as indicative that a particular meaning of the word had been intended. Capitalisation of the initial letters of words in headings is a common practice. Inappropriate capitalisation of the initial letters of words, when not used in headings, is also common. It is unlikely to indicate the use of a term of art. In any event, if a conscious decision had been made to use the word 'Instrumentalities' as a term of art, the option of defining it in the award was available. It is unlikely that whoever drafted the 1994 Award made a conscious decision to use a term of art, and to indicate that a term of art had been used solely by the use of an initial capital letter. I do not accept that the fact that the word 'Instrumentality' has a capital initial in the 1994 Award and the earlier Victorian award that replaced it can be said to be indicative of a term of art. This is so, even when the word is contrasted with the word 'instrumentality' in the clause considered by the High Court in the Anti-Cancer Council case.


case_text: Among the authorities cited for the central proposition is the passage in the judgment of Isaacs and Rich JJ in Federated Municipal and Shire Council Employees' Union of Australia v Melbourne Corporation [1919] HCA 72 ; (1919) 26 CLR 508 at 530 531, where their Honours said: 'If a municipality either (1) is legally empowered to perform and does perform any function whatever for the Crown, or (2) is lawfully empowered to perform and does perform any function which constitutionally is inalienably a Crown function − as, for instance, the administration of justice − the municipality is in law presumed to represent the Crown, and the exemption applies. Otherwise, it is outside that exemption, and, if impliedly exempted at all, some other principle must be resorted to. The making and maintenance of streets in the municipality is not within either proposition.'


case_outcome: distinguished

case_text: Counsel for the respondent relied on R v Industrial Court of South Australia; Ex parte Australian Broadcasting Commission (1976) 13 SASR 460. The Full Court of the Supreme Court of South Australia held that the Australian Broadcasting Commission ('the ABC') was not an 'instrumentality or agency of the Government of the Commonwealth', within the meaning of s 114 of the Industrial Conciliation and Arbitration Act 1972 1975 (SA). At 284, Bray CJ, with whom Hogarth J agreed, referred to Electricity Trust of South Australia v Linterns Ltd [1950] SASR 133, in which it was held that the Electricity Trust of South Australia was a government instrumentality, as it managed the undertaking for the supply of electricity and the mining of coal in South Australia, exercised its functions on behalf of the Crown, and was the means or agency for managing a Crown asset. At 284 285, Bray CJ conceded that the ABC might be regarded as an instrumentality of the Commonwealth, but expressed the view that it could not be regarded as an instrumentality of the 'Government' of the Commonwealth. His Honour took the view that the word 'Government', with a capital initial, in s 114 meant the executive government of the Commonwealth. At 285, his Honour examined various provisions of the statute creating the ABC, emphasising the degree of autonomy from the executive government enjoyed by the ABC (with ministerial control only over a small number of specified functions, or in some exceptional specified circumstances), and the obligation of the ABC to indemnify the Postmaster-General in respect of any claim for anything done by the Postmaster-General's Department at the request of the ABC. His Honour also pointed out that there was nothing in the statute declaring that the ABC held its assets on behalf of the Crown. At 285 286, Bray CJ also regarded as relevant the question whether the degree of ministerial control was sufficient to entitle the ABC to the shield of the Crown. Assuming it to have been decided correctly, the ABC case is readily distinguishable from the present.


case_title: Electricity Trust of South Australia v Linterns Ltd [1950] SASR 133


case_text: In the present case, one of the most striking features of the Trust is the extent to which it is subject to ministerial control. By s 4(2) of the VAC Act, the Trust's management of the Victorian Arts Centre is expressly subject to the general direction and control of the relevant Minister of the Crown. The Trust can only perform functions outside those expressly conferred by s 5(1) if the Minister approves of such functions (see s5(1)(h)). The exercise of the Trust's borrowing power is only possible with the approval of the Treasurer, under s 7. The extent of ministerial control is such that the Trust would be very likely to have the benefit of the immunity of the Crown from the application of legislation not expressed to bind the Crown, or from being sued or convicted of a criminal offence. In determining whether a statutory authority has such immunity, the extent to which it is subject to ministerial control under its establishing legislation is of great importance. See Superannuation Fund Investment Trust v Commissioner of Stamps (SA) [1979] HCA 34 ; (1979) 145 CLR 330 at 347 350 per Stephen J, and State Bank of New South Wales v Commonwealth Savings Bank of Australia [1986] HCA 62 ; (1986) 161 CLR 639 at 650.


case_text: In the present case, one of the most striking features of the Trust is the extent to which it is subject to ministerial control. By s 4(2) of the VAC Act, the Trust's management of the Victorian Arts Centre is expressly subject to the general direction and control of the relevant Minister of the Crown. The Trust can only perform functions outside those expressly conferred by s 5(1) if the Minister approves of such functions (see s5(1)(h)). The exercise of the Trust's borrowing power is only possible with the approval of the Treasurer, under s 7. The extent of ministerial control is such that the Trust would be very likely to have the benefit of the immunity of the Crown from the application of legislation not expressed to bind the Crown, or from being sued or convicted of a criminal offence. In determining whether a statutory authority has such immunity, the extent to which it is subject to ministerial control under its establishing legislation is of great importance. See Superannuation Fund Investment Trust v Commissioner of Stamps (SA) [1979] HCA 34 ; (1979) 145 CLR 330 at 347 350 per Stephen J, and State Bank of New South Wales v Commonwealth Savings Bank of Australia [1986] HCA 62 ; (1986) 161 CLR 639 at 650. 32 Another significant indicator that the Trust is established to serve a government purpose is the grant to it, by s 18A of the VAC Act of the power to make by-laws. The delegation of legislative power suggests that the Trust carries on governmental activity. See State Bank of New South Wales at 651. 33 The examination of the legislative history, and of the current state of the VAC Act, makes it difficult to avoid the conclusion that the Trust is both empowered to serve, and does serve a State Government purpose. That purpose is the control and management of a significant public asset, which successive governments of Victoria have wished to make available for the economic and cultural enrichment of the citizens of Victoria. The information on the Trust's web site confirms this view. The Trust therefore falls clearly within the ordinary meaning of the phrase 'State instrumentality'. 34 Counsel for the respondent submitted that the expression 'State Government Departments and Instrumentalities' in cl 8A(a)(ii) of the 1994 Award and cl 15.3.1(b) of the 2003 Award should not bear its ordinary meaning. His submissions were based on the history of the making of the two awards and the circumstances surrounding them. He also advanced a number of other arguments about the construction of the relevant provisions, including the argument that a purposive construction of them should be adopted.


case_text: Counsel for the respondent also attempted to argue that I should have regard to possible anomalies that might arise from the application of cl 8A(a)(ii) of the 1994 Award and cl 15.3.1(b) of the 2003 Award to high-rise buildings, occupied by a mix of tenants, only some of which were State Government entities. This argument is completely irrelevant to the present case. There is no suggestion that the Victorian Arts Centre is occupied by any entity other than the Trust. The question of multiple occupancy of buildings and the application of cl 8A(a)(ii) of the 1994 Award is dealt with in Liquor, Hospitality and Miscellaneous Union v Prestige Property Services Pty Ltd [2005] FCA 408 , a judgment delivered subsequent to the hearing of the present case. 53 For these reasons, I am persuaded that the word 'Instrumentalities' when used in the composite phrase 'State Government Departments and Instrumentalities' in cl 8A(a)(ii) of the 1994 Award and cl 15.3.1(b) of the 2003 Award is used in its ordinary and natural meaning. When so used, as I have already found, it encompasses the Trust. 54 It follows that the respondent has been in breach of its obligations, imposed by cl 8A(a)(ii) of the 1994 Award and cl 15.3.1(b) of the 2003 Award, to pay the allowances required by those clauses to its employees engaged in performing cleaning services at the Victorian Arts Centre.


case_text: I also propose to make an order that the respondent pay to each of the persons it employed at the Victorian Arts Centre the amount agreed to be outstanding. To each amount there should be added interest, pursuant to s 179A of the WR Act. In this respect, the applicant's claim is modest. Because of the difficulty of calculation of interest when it is payable on a series of payments that were due over a long period, the applicant has asked for interest only from 1 June 2003, ie. on the total sum owed to each employee in respect of the two periods claimed. The applicant calculated that interest only up to the date when the case was being heard. It should be calculated to the date of judgment. As to the rate, the applicant sought interest at 11 per cent per annum, that being the operative rate at 1 June 2003, pursuant to the Penalty Interest Rate Act 1983 (Vic). It is appropriate to choose that rate for the reasons advanced in EMCL Pty Ltd v Esanda Finance Corporation Ltd (No. 2) (1998) 160 ALR 382 at 384, and Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd [2002] FCA 1406 at [91] . The rate of interest was increased to 11.25 per cent from 26 June 2003, and to 12 per cent from 1 July 2004, but counsel for the applicant forwent any entitlement to a rate greater than 11 per cent. The order that I make for payment to each employee will therefore include an amount of interest on the sum owing to that employee at 1 June 2003, at the rate of 11 per cent per annum (non-compounding), from 1 June 2003 to the date of judgment.


case_title: Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd [2002] FCA 1406


case_title: Laz v Downer Group Ltd [2000] FCA 1390 ; FCA (2000) 108 IR 244

case_text: Parker Hannifin bears the onus of proving that it did not terminate Ms Crowley's employment for the reasons alleged; see Laz v Downer Group [2000] FCA 1390 ; FCA (2000) 108 IR 244 at [26] per Moore J. 20 Mr Flint is the decision maker who terminated Ms Crowley's employment. Mr Flint gave evidence that he terminated her employment for the following reasons: • her absence from work for an extended period during the previous 12 months; • her failure to give timely notification of her absences, in that medical certificates generally arrived in bundles and were backdated by several weeks and sometimes by a month; • the difficulty he experienced in communicating with her to ascertain when she would return to work; • his belief that there was little prospect of her returning to work in the short to medium term; and • his knowledge that she had applied for other jobs, including with Tyco and attending interviews when she was supposed to be too ill to work. 21 Mr Flint denies that he terminated Ms Crowley's employment because of her "temporary absence". He says that he considered that her absence was not "a temporary absence". Mr Flint also denies that Ms Crowley's applications to WorkCover or the Equal Opportunity Commission of Victoria were reasons for the termination. He makes the same point in respect of her physical disability, which was the injury to her left ear which caused her absences from employment from November 2004 to March 2005.


case_text: The claim that Ms Crowley's employment was terminated in breach of s 170CK(2)(e) is without foundation. As at the date of the termination (8 March 2005) Ms Crowley had not filed any complaint with any authority. To the extent that Ms Crowley relies on internal complaints within her former employer, such complaints are not encompassed by s 170CK(2)(e); see He v Lewin [2004] FCAFC 161 ; (2004) 137 FCR 266 at [44] .


case_text: Even if the complaint to WorkCover had have preceded the termination, s 170CK(2)(e) would not have been breached. This is because the making of a claim under the Accident Compensation Act 1985 (Vic) is not contemplated by s 170CK(2)(e); see Jennings v Salvation Army [2003] FCA 1193 ; (2003) 128 IR 366 at [35] . The making of a complaint to WorkCover can only be in the context of a claim with which it has jurisdiction to deal. Complaining to WorkCover about aspects of an employer's conduct is also not contemplated by s 170CK(2)(e). 24 Mr Flint gave evidence that the injury to Ms Crowley's ear was not a reason for the termination. Ms Crowley did not challenge that evidence in her cross-examination of him. I am confident that if Ms Crowley and Mr Flint had been able to agree on a program for Ms Crowley to be re-integrated into Parker Hannifin's active workforce, on an agreed "return to work program", her termination would not have occurred; at least not at the initiative of Parker Hannifin. I am satisfied that Parker Hannifin has discharged its onus of proof with respect to this aspect of the proceeding. 25 The critical issue for determination in the proceeding is whether Parker Hannifin terminated Ms Crowley's employment for a reason which included the reason of her "temporary absence from work because of illness or injury within the meaning of the regulations".


case_text: the appellants submit that the Tribunal applied an incorrect test, it is clear from the Tribunal decision that it recognised that it was necessary to ascertain whether it was reasonable for the appellants to relocate in their country to a region where objectively there was no appreciable risk of the occurrence of the feared persecution ( SZATV v Minister for Immigration and Citizenship [2007] HCA 40 ; (2007) 233 CLR 18 at [23] [24]; SZFDV v Minister for Immigration and Citizenship [2007] HCA 41 ; (2007) 233 CLR 51 at [14] ). The appellants criticise the Tribunal's further conclusion that the appellants would not need to surrender any fundamental rights that are currently protected by the Convention categories if they were to relocate. They say that this indicates that the Tribunal misdirected itself as to the test to be applied and failed to ascertain whether it was reasonable for the appellants to relocate in a practical sense. I accept the Minister's submission that this aspect of the Tribunal's reasons was directed to the considerations described in SZATV at [32]. It is clear that this was an additional consideration taken into account by the Tribunal in order to deal not only with the question of reasonableness of relocation but also with any suggestion, although not advanced, that the appellants would give up such fundamental rights as a price of relocation. I am not satisfied that the Tribunal applied the wrong test in assessing reasonableness. The test for relocation is whether it is reasonable in the sense of being practicable in the particular circumstances of the particular applicant ( SZATV at [24]). The answer to that question, in turn, depends upon the framework set by the particular objections raised to relocation (see SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 ; (2009) 174 FCR 415 at [124] per Tracey and Foster JJ).


case_text: the appeal to the Federal Magistrates Court, the appellants were represented by counsel. Federal Magistrate Cameron found no error in the approach of the Tribunal, either in respect of the claim of inadequate state protection or in respect of the issue of relocation ( SZMZV v Minister for Immigration and Citizenship [2009] FMCA 617). Further, his Honour noted that the two grounds raised by the appellants provided separate bases for the Tribunal's decision. As his Honour said, it followed that as long as one of those grounds was not affected by jurisdictional error, the decision was not liable to be set aside ( SZCJH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1660 at [23] ). As the grounds for the application before Cameron FM form the basis of the grounds of appeal, I shall deal with them in greater detail in the consideration of the notice of appeal. The notice of appeal


case_text: the appellants submit that the Tribunal applied an incorrect test, it is clear from the Tribunal decision that it recognised that it was necessary to ascertain whether it was reasonable for the appellants to relocate in their country to a region where objectively there was no appreciable risk of the occurrence of the feared persecution ( SZATV v Minister for Immigration and Citizenship [2007] HCA 40 ; (2007) 233 CLR 18 at [23] [24]; SZFDV v Minister for Immigration and Citizenship [2007] HCA 41 ; (2007) 233 CLR 51 at [14] ).


case_text: am not satisfied that the Tribunal applied the wrong test in assessing reasonableness. The test for relocation is whether it is reasonable in the sense of being practicable in the particular circumstances of the particular applicant ( SZATV at [24]). The answer to that question, in turn, depends upon the framework set by the particular objections raised to relocation (see SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 ; (2009) 174 FCR 415 at [124] per Tracey and Foster JJ).


case_outcome: affirmed

case_title: SZMZV v Minister for Immigration and Citizenship [2009] FMCA 617


case_text: Counsel also contend that Mr Hadgkiss's failure to give evidence in regard to the changes to the investigation is significant. Counsel submitted that the inference of an improper purpose raised, so it is said, by the changes to the investigation are not rebutted by Mr Hadgkiss and therefore, the inference should be accepted by the Court; see Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298. Counsel submit it was not sufficient for the ABCC's solicitor, through the admission of her letter asserting a changed position, to rebut the inference without Mr Hadgkiss deposing to the changed position himself. 36 Counsel also submit that there is nothing on the face of the flyer that would support an allegation of breach of s 816. Counsel suggested that the better construction of the flyer was that it admonished people who co-operated with the ABCC rather than those who gave evidence or intended to give evidence to the AIRC, as the flyer says nothing about AIRC proceedings. They contend that a substantial purpose of the investigation is to investigate lack of co-operation with the ABCC.


case_text: As Gaudron J said in Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46 ; (1990) 170 CLR 649 at 672: An improper purpose will not lightly be inferred and, by application of a presumption of regularity, will only be inferred if the evidence cannot be reconciled with the proper exercise of the power...


case_text: Justice Tamberlin (with whom Branson and Finn JJ agreed on that issue) applied that approach in The Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources [2007] FCAFC 175 at [126] to [127]. His Honour also referred to "the test of substantiality necessary to establish improper purpose" referred to in Thompson v The Council of the Municipality of Randwick Corporation [1950] HCA 33 ; (1950) 81 CLR 87 at 106. In Thompson at 106, Williams, Webb and Kitto JJ said that a purpose is an "ulterior" one: ...if such a purpose is a substantial purpose in the sense that no attempt would have been made to resume this land if it had not been desired to reduce the cost of the new road by the profit arising from its re-sale.


case_text: Justice Tamberlin (with whom Branson and Finn JJ agreed on that issue) applied that approach in The Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources [2007] FCAFC 175 at [126] to [127]. His Honour also referred to "the test of substantiality necessary to establish improper purpose" referred to in Thompson v The Council of the Municipality of Randwick Corporation [1950] HCA 33 ; (1950) 81 CLR 87 at 106. In Thompson at 106, Williams, Webb and Kitto JJ said that a purpose is an "ulterior" one: ...if such a purpose is a substantial purpose in the sense that no attempt would have been made to resume this land if it had not been desired to reduce the cost of the new road by the profit arising from its re-sale. 39 To meet the Thompson test of substantiality, the applicants must prove that the investigation by the ABCC into alleged contraventions of s 816 of the WR Act would not have been commenced had it not been for the desire to question union officials about their lack of co-operation or encouraging lack of co-operation with the ABCC. 40 The evidence can be reconciled with the proper exercise of power. Section 52 of the BCII Act has been engaged because Mr Hadgkiss is investigating an alleged contravention of a designated building law by building industry participants. The particulars given in the notices to attend for questioning refer to alleged breaches of s 816. It is not to the point that the allegations as particularised may be weak or that the flyer relied upon may be open to an explanation not related to s 816. 41 Further the test of substantiality is not met. The evidence does not support the proposition that the investigation would not have occurred but for a desire to question union officials about their attitude to co-operation with the ABCC. The 29 October 2007 notice to Mr Washington and Mr Balta make serious allegations about the conduct of Mr Setka with respect to Mr Peterson and Mr Broadhead which seek to connect that conduct with their provision of information to the AIRC and appearances before it.


case_text: For over 150 years it has been the law that "nobody has any right to represent his goods as the goods of somebody else" per Turner LJ in Burgess v Burgess (1853) 22 LJ Ch 675 ; 3 De GM&G 896 at 904; [43] ER 351 at 354: AG Spalding & Bros v AW Gamage Ltd (1915) 84 LJ Ch 449 per Lord Parker of Waddington (with whom Viscount Haldane LC, Lord Atkinson and Lord Sumner concurred): Angelides 40 CLR at 81 per Rich and Starke JJ. 57 Lord Parker identified the basis of a passing off action as a false representation by the defendant that his goods were the plaintiff's. In Campomar 202 CLR at 88-89 at [109]-[110] the High Court recognised that the range of the defendant's conduct which could constitute passing off included inducing consumers to believe that the defendant's goods or services had an association, quality or endorsement which belonged, or would belong, to the goods or services of or associated with the plaintiff. As Lord Parker recognised, relevantly here, the point to be decided is whether, having regard to all the circumstances of the case, the use by the defendant in connection with the goods of the get-up in question, impliedly represents the defendant's goods to be goods of the plaintiff or associated with the plaintiff, whether generally or in respect of a particular class or quality. In other words, the question is whether the defendant's use of the get-up is calculated to deceive. He pointed out that it would be impossible to enumerate or classify all the possible ways in which a man may make the false representation relied on: Spalding 84 LJ Ch at 450; see too Vieright Pty Ltd v Myer Stores Ltd (1995) 31 IPR 361 at 369-370 per Beaumont, Branson and Lindgren JJ; ConAgra 33 FCR at 356 per Gummow J.


case_text: In this area of the law the courts constantly endeavour to keep pace with the progress of trade by adapting fundamental doctrines to advancing methods and changing circumstances: Angelides v James Stedman Hendersons Sweets Ltd [1927] HCA 34 ; (1927) 40 CLR 43 at 59-60 per Isaacs ACJ; ConAgra Inc v McCain Foods (Aust) Pty Ltd [1992] FCA 159 ; (1992) 33 FCR 302 at 356 per Gummow J; Campomar 202 CLR at 88 [109]. 56 For over 150 years it has been the law that "nobody has any right to represent his goods as the goods of somebody else" per Turner LJ in Burgess v Burgess (1853) 22 LJ Ch 675 ; 3 De GM&G 896 at 904; [43] ER 351 at 354: AG Spalding & Bros v AW Gamage Ltd (1915) 84 LJ Ch 449 per Lord Parker of Waddington (with whom Viscount Haldane LC, Lord Atkinson and Lord Sumner concurred): Angelides 40 CLR at 81 per Rich and Starke JJ.


case_text: Mere proof of the fact that a person has deliberately copied the name or get-up of a trade rival does not of itself establish a contravention of s 52 or a passing off or goods or services: Apand Pty Ltd v The Kettle Chip Co Ltd (1994) 52 FCR 474 at 496 per Lockhart, Gummow and Lee JJ. In ConAgra 33 FCR at 374, Gummow J said "[d]eliberate copying does not necessarily indicate fraud. A notable example is provided by Cadbury Schweppes [[1980] 2 NSWLR 851]". And, Lockhart J said ( ConAgra 33 FCR at 345: French J at 377 agreed with both Lockhart J and Gummow J): But deliberate copying of the plaintiff's goods does not always evidence an intention to deceive; it may indicate nothing more than realisation that the plaintiff has a useful idea which the defendant can turn to his own advantage, though not intending to pass off his goods as those of the plaintiff.