case_text: Three important considerations arise from the above. Firstly, the burden of proof lies upon Ms Obieta to establish discrimination, harassment or victimisation whether it arises pursuant to the RDA or the SDA. Secondly, with respect to claims of unlawful discrimination, harassment or victimisation under the RDA, it is essential that the discrimination, harassment or victimisation be proved, on the balance of probabilities, on the ground of Ms Obieta's race (see Victoria v Macedonian Teachers' Association of Victoria Inc and Another [1999] FCA 1287 ; (1999) 91 FCR 47). Similarly, with regard to a claim for sexual discrimination, harassment or victimisation under the SDA, discrimination, harassment or victimisation based upon Ms Obieta's sex must be established on the balance of probabilities: see Aboriginal Legal Rights Movement Inc v South Australia and Another (No1) (1995) 64 SASR 551 at 553.


case_outcome: referred to

case_text: The requirement to identify that the particular 'distinction', 'exclusion', 'restriction' or 'preference' was ' based on' Ms Obieta's race has been the subject of judicial determination in Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission and Another (1998) 91 FCR 8. At [33] the Court considered that the words 'based on' required a test of 'sufficient connection' with race rather than a 'causal nexus'. Weinberg J distinguished the expression 'based on' from other constructions used elsewhere in Federal anti-discrimination legislation (such as 'by reason of' or 'on the ground of'). The words 'based on' encompass a broader meaning of 'by reference to' and are not limited to 'by reason of' (at [30]). What is required is a close relationship, between the designated characteristic and the impugned conduct, which is not necessarily causal (at [33]): see also Baird and Others v Queensland (No 1) (2005) 224 ALR 541 and Commonwealth v McEvoy and Another [1999] FCA 105 ; (1999) 94 FCR 341 for an analysis of the meaning of 'based on'.


case_outcome: cited

case_text: In Bropho v Human Rights and Equal Opportunity Commission and Another [2004] FCAFC 16 ; (2004) 135 FCR 105, French J observed at, [69] that the words ' offend, insult, humiliate or intimidate ' are to be considered according to ' their ordinary meaning, in their context, acknowledging their somewhat elastic content and having regard to the objectives of the legislation...' . These objectives, it was noted, are to be gleaned not only from the words of the legislation but also from extraneous material such as, inter alia, the Second Reading Speech of the Racial Hatred Bill 1994 (Cth) ('Second Reading Speech'). The Second Reading Speech provides that the Act was intended to ' close a gap in the legal protection available to the victims of extreme racist behaviour ': see Bropho 135 FCR at [70]. In Creek v Cairns Post Pty Ltd [2001] FCA 1007 ; (2001) 112 FCR 352 at 356-357 Kiefel J said that the conduct which is encompassed by s 18C of the RDA is that which has, ' profound and serious effects not to be likened to mere slights '. 223 Section 18C of the RDA requires the satisfaction of an objective test of the likelihood that the act complained of will have the prohibited effect: see Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 at [15] . The objective nature of the test was also considered in Bropho 135 FCR where French J at [66] citing the Second Reading Speech said: 'Community standards of behaviour rather than the subjective views of the complainant are taken into account' (Australia, House of Representatives Debates (1994), p334). 225 The question of causation that arises in the application of s 18C(1)(a) has been considered in numerous cases. In Purvis v New South Wales (Department of Education and Training) and Another [2003] HCA 62 ; (2003) 202 ALR 133 at 138 the High Court explained per Gleeson CJ, at 171-2 per McHugh and Kirby JJ, at 187 per Gummow, Hayne and Heydon JJ, that the accepted test for causation in the context of anti-discrimination legislation focuses on the 'genuine basis' or 'the true basis' or 'real reason' for the act of the alleged discriminator. The question of causation was also considered in Bropho 135 FCR at [71] wherein French J referred to the description by Kiefel J in Creek v Cairns Post 112 FCR at [28] of the key causation issue as 'whether anything suggests race as a factor' in the act in question. Kiefel J at [23] adopted the approach to the construction of statutory provisions similar to s 9 of the RDA taken by McHugh J in Waters 173 CLR at 401.


case_text: The requirement to identify that the particular 'distinction', 'exclusion', 'restriction' or 'preference' was ' based on' Ms Obieta's race has been the subject of judicial determination in Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission and Another (1998) 91 FCR 8. At [33] the Court considered that the words 'based on' required a test of 'sufficient connection' with race rather than a 'causal nexus'. Weinberg J distinguished the expression 'based on' from other constructions used elsewhere in Federal anti-discrimination legislation (such as 'by reason of' or 'on the ground of'). The words 'based on' encompass a broader meaning of 'by reference to' and are not limited to 'by reason of' (at [30]). What is required is a close relationship, between the designated characteristic and the impugned conduct, which is not necessarily causal (at [33]): see also Baird and Others v Queensland (No 1) (2005) 224 ALR 541 and Commonwealth v McEvoy and Another [1999] FCA 105 ; (1999) 94 FCR 341 for an analysis of the meaning of 'based on'. 213 Under s 9 it is also necessary to establish the relevant human right which has been impaired because of race. The expression 'human right' for the purpose of the RDA incorporates the rights set out in the International Convention on the Elimination of all Forms of Racial Discrimination (CERD) scheduled to the RDA. The preamble to the RDA recites the entry into force of the CERD and the desirability of parliament making provision for giving effect to the CERD. Von Doussa J in Commonwealth v McEvoy and Another 94 FCR noted at [31] that: 'It is apparent that in adopting the phrase "race, colour, descent or national or ethnic origin" in s 9...Parliament has transported into the domestic law of Australia, through the RDA, text from Article 1.1 of the International Convention on the Elimination of All Forms of Racial Discrimination'


case_title: Cooke v Plauen Holdings [2001] FMCA 91

case_text: Section 28A(2) defines 'conduct of a sexual nature' as including 'making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing' . Where it is alleged that conduct is unlawful under the SDA, the context of the conduct must be considered. In Cooke v Plauen Holdings [2001] FMCA 91 , Driver FM observed that whether an act or statement can constitute sexual harassment will depend upon the nature or the quality of the act or statement. 239 For Ms Obieta to establish her claims under section 28F of the SDA she is required to establish that the relevant staff member (s 28F(1)) or adult student (s 28F(2)) of TAFE sexually harassed her. That is, pursuant to s 28A of the SDA, Ms Obieta would have to establish that the relevant respondent made an unwelcome sexual advance, or an unwelcome request for sexual favours (s 28A(1)(a)) or engaged in other unwelcome conduct of a sexual nature (s 28A(1)(b)) in circumstances in which a reasonable person having regard to all the circumstances, would have anticipated that Ms Obieta would be offended, humiliated or intimidated.


case_text: Under s 105 of the SDA a person who causes, instructs, aids or permits another person to do an act that is unlawful under Division 1 or 2 of Part II shall, for the purposes of the SDA, be taken also to have done the act. The meaning of the word 'permit' was discussed in Cooper v Human Rights and Equal Opportunity Commission and Another [1999] FCA 180 ; (1999) 93 FCR 481 at 494-495, [41] - [45] . Moore J in Elliott v Nanda and Another [2001] FCA 418 ; (2001) 111 FCR 240 at 293, [163] explained the operation of s 105 as pertaining to the situation where a person who is in a position to prevent allegedly unlawful conduct fails to do so. His Honour said: 'Section 105 provides a means of bringing about lawful conduct by rendering liable a person who could prevent unlawful conduct from occurring or continuing or who assists, directly or indirectly, in its performance. A person can prevent unlawful conduct by not creating a situation where it will or may take place or altering a situation so it will not continue.'


case_text: In Bropho v Human Rights and Equal Opportunity Commission and Another [2004] FCAFC 16 ; (2004) 135 FCR 105, French J observed at, [69] that the words ' offend, insult, humiliate or intimidate ' are to be considered according to ' their ordinary meaning, in their context, acknowledging their somewhat elastic content and having regard to the objectives of the legislation...' . These objectives, it was noted, are to be gleaned not only from the words of the legislation but also from extraneous material such as, inter alia, the Second Reading Speech of the Racial Hatred Bill 1994 (Cth) ('Second Reading Speech'). The Second Reading Speech provides that the Act was intended to ' close a gap in the legal protection available to the victims of extreme racist behaviour ': see Bropho 135 FCR at [70]. In Creek v Cairns Post Pty Ltd [2001] FCA 1007 ; (2001) 112 FCR 352 at 356-357 Kiefel J said that the conduct which is encompassed by s 18C of the RDA is that which has, ' profound and serious effects not to be likened to mere slights '. 225 The question of causation that arises in the application of s 18C(1)(a) has been considered in numerous cases. In Purvis v New South Wales (Department of Education and Training) and Another [2003] HCA 62 ; (2003) 202 ALR 133 at 138 the High Court explained per Gleeson CJ, at 171-2 per McHugh and Kirby JJ, at 187 per Gummow, Hayne and Heydon JJ, that the accepted test for causation in the context of anti-discrimination legislation focuses on the 'genuine basis' or 'the true basis' or 'real reason' for the act of the alleged discriminator. The question of causation was also considered in Bropho 135 FCR at [71] wherein French J referred to the description by Kiefel J in Creek v Cairns Post 112 FCR at [28] of the key causation issue as 'whether anything suggests race as a factor' in the act in question. Kiefel J at [23] adopted the approach to the construction of statutory provisions similar to s 9 of the RDA taken by McHugh J in Waters 173 CLR at 401.


case_text: In Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 , a case which considered, inter alia, the meaning of 'detriment' in comparable state legislation, the Administrative Decisions Tribunal ('ADT') found that the word 'detriment' should be given its common meaning of 'loss, damage or injury' (at [40]). It was also said in that case that '[t]he detriment suffered... must be real and not trivial' and 'whether something constitutes a detriment must be determined objectively and not subjectively' (at [41]). In Damiano and Another v Wilkinson and Another [2004] FMCA 891 at [23] Baumann FM considered the meaning of detriment gleaned from three authorities as follows: '... [T]he definition of detriment [is] placing a complainant "under a disadvantage of a matter of substance" (Bogie v University of Western Sydney (1990) EOC 92-313 ) or "suffers a material difference in treatment" (Bailey v Australian National University (1995) EOC 92- 744 ) which is "real and not trivial" (Sivanathan [sic] v Commissioner of Police (NSW) (2001) NSWADT 44 ) ' 240 Pursuant to s 94(1) of the SDA it is an offence for a person to commit an act of victimisation against another person. Pursuant to s 94(2) Ms Obieta is required to establish that the relevant respondent subjected, or threatened to subject her to any detriment on the grounds that Ms Obieta had or was believed to have made or proposed to make a complaint under the SDA or under the HREOC Act (s 94(2)(a)); or that Ms Obieta had brought or proposed to bring proceedings under the SDA or the HREOC Act against any person (s 94(2)(b)); or that Ms Obieta had furnished or produced or proposed to furnish or produce any information or documents to anybody exercising functions under the SDA or the HREOC Act (s 94(2)(c)); or that Ms Obieta had attended or proposed to attend a conference held under the SDA or the HREOC Act (s 94(2)(d)); or that Ms Obieta appeared or proposed to appear as a witness in proceedings under the SDA or the HREOC Act (s 94(2)(e)); or that Ms Obeita has reasonably asserted or proposed to assert any rights under the SDA or the HREOC Act (s 94(2)(f)); or that Ms Obieta had made an allegation that a person had done an act that is unlawful under Part II of the SDA (s 94(2)(g)). In Damiano [2004] FMCA 891 Baumann FM at [22] said, referring to Bailey v ANU (1995) EOC 92-744, that for victimisation to be established under comparable legislation one of the grounds under a section comparable to s 94(2) of the SDA must be a 'substantial and operative' factor for the alleged action.


case_title: Elliott v Nanda and Another [2001] FCA 418 ; (2001) 111 FCR 240


case_text: In addition it was noted in Gerhardy v Brown [1985] HCA 11 ; (1985) 159 CLR 70 that for the purposes of s 9 of the RDA 'human rights' may include those included in other international instruments to which Australia is a party. One such other instrument is the International Covenant on Civil and Political Rights (ICCPR) (as provided in Schedule 2 to the HREOC Act) which is relied upon by Ms Obieta.


case_text: Section 18C of the RDA requires the satisfaction of an objective test of the likelihood that the act complained of will have the prohibited effect: see Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 at [15] . The objective nature of the test was also considered in Bropho 135 FCR where French J at [66] citing the Second Reading Speech said: 'Community standards of behaviour rather than the subjective views of the complainant are taken into account' (Australia, House of Representatives Debates (1994), p334).


case_text: Despite the fact that one of the options of the Court in s 27(2) of the RDA is the imposition of a penal sentence, it has been held that the civil standard should nevertheless apply where the substance of the proceedings are civil (see In Marriage of Lindsey (1995) 128 FLR 46). The majority of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Others [1992] HCA 66 ; (1992) 110 ALR 449 has emphasised the fact that the ordinary standard of proof in civil litigation is proof on the balance of probabilities even when the matter to be proved involves criminal conduct or fraud (see Rejfek and Another v McElroy and Another [1965] HCA 46 ; (1965) 112 CLR 517 at 519-21). It was also held in that case that the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.


case_text: A similar observation of the requirement of objectivity was made by Brown FM in Kelly-Country v Beers and Another [2004] FMCA 336 ; (2004) 207 ALR 421 at [84] .


case_text: Ms Obieta instituted these proceedings nominating the Commission as the first respondent. However, Ms Obieta later instituted separate proceedings against the Commission (see Lina Obieta v Human Rights and Equal Opportunity Commission [2006] FCA 1684) and the Court ordered that the Commission be removed as first respondent to these proceedings. 15 The fifth and sixth respondents were fellow students of Ms Obieta. Ms Obieta has alleged that they engaged in conduct which was unlawful pursuant to the SDA, RDA and the HREOC Act. 16 A section entitled 'Specific Issues' considered hereunder contains details of the 48 issues raised by Ms Obieta of alleged discrimination, harassment and victimisation under the RDA and SDA. It follows the same order as contained in the Statement of the Precise Matters raised against each respondent contained in Ms Obieta's submissions filed on 16 June 2006. Such document was prepared in response to the Court's direction that Ms Obieta provide a list of precise matters upon which she relied and the sections of the relevant legislation which she claimed were breached. 77 Ms Obieta claims that Mr Norman gave less favourable treatment to her and created hostility in the class. He referred to Ms Roxanna Ramos as ' Roxan' in his greeting to her. He called upon Ms Cecilia Cordova to recite a passage and referred to her as ' Lina' . Ms Obieta claims that when Mr Norman apologised for calling Ms Cordova 'Lina', this created hostility from other students in the class. She claims that Mr Norman's less favourable treatment of her had the effect of violating or impairing her rights on an equal footing with other students and made her feel ridiculed. As such she claims that she was subjected to harassment or bullying which is at law, ' being subject to any other detriment '. Such conduct is alleged to be a breach of ss 9, 17 and 27 of the RDA and s 94 of the SDA. 78 Mr Norman says that he inadvertently referred to Ms Cordova as Lina, realised his mistake and apologised to Ms Cordova. He states that it was not an attempt by him to incite other students to feel contempt for Ms Obieta. 79 Ms Obieta states that during the class discussion on 8 September 2004, Mr Norman came closer to her, looked at her and said in a nasty way: 'Oh, I don't want to be representing a client who assaulted somebody.' 97 Ms Obieta claims that when called upon to recite something, Mr Norman referred to Ms Davis as ' Lina' . When Ms Obieta's name was called out, Ms Obieta alleges that Ms Davis made the noise of a duck or chicken. She claims that Ms Davis was mimicking manner of speech or her Asian accent in class and that Ms Davis made racist sounds in her presence. She claims that such conduct was harassment and constitutes ' being subject to any other detriment '. Ms Obieta claims that this constitutes a breach of ss 9, 17, 18C and 27 of the RDA. 98 Ms Davis states that she has no recollection of such event and does not believe that she has ever done so. She states that she does not mimic ducks or chickens. 99 Ms Fogarty testifies that she does not recall Ms Davis ever making any duck or chicken noises.


case_outcome: considered

case_title: Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission and Another (1998) 91 FCR 8


case_outcome: followed

case_title: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Others [1992] HCA 66 ; (1992) 110 ALR 449


case_text: The question of causation that arises in the application of s 18C(1)(a) has been considered in numerous cases. In Purvis v New South Wales (Department of Education and Training) and Another [2003] HCA 62 ; (2003) 202 ALR 133 at 138 the High Court explained per Gleeson CJ, at 171-2 per McHugh and Kirby JJ, at 187 per Gummow, Hayne and Heydon JJ, that the accepted test for causation in the context of anti-discrimination legislation focuses on the 'genuine basis' or 'the true basis' or 'real reason' for the act of the alleged discriminator. The question of causation was also considered in Bropho 135 FCR at [71] wherein French J referred to the description by Kiefel J in Creek v Cairns Post 112 FCR at [28] of the key causation issue as 'whether anything suggests race as a factor' in the act in question. Kiefel J at [23] adopted the approach to the construction of statutory provisions similar to s 9 of the RDA taken by McHugh J in Waters 173 CLR at 401.


case_title: Rejfek and Another v McElroy and Another [1965] HCA 46 ; (1965) 112 CLR 517


case_text: Under s 17(a) of the RDA it is unlawful for a person to incite the doing of acts made unlawful by a provision of Part II of the RDA. Further s 17(b) makes it unlawful for a person to assist or promote the doing of such an act (whether by financial assistance or otherwise). In Shaikh v Campbell & Nivona Pty Ltd [1998] HREOCA 13 (24 April 1998), in referring to s 17 of the RDA, Commissioner Innes AM stated at 8: 'In order to make out a case under this section the complainant has to show incitement, assistance or promotion of someone carrying out unlawful acts. Incitement denotes encouragement in an active way.' 232 To establish her claims pursuant to this section, Ms Obieta must show that the particular respondents were actively inciting or encouraging behaviour that is made unlawful by a provision of Part II of the RDA (s 17(a)) or that the respondents assisted or promoted the doing of such acts (s 17(b)). 233 Section 5 of the SDA provides a definition of sex discrimination under the SDA and does not of itself give rise to a cause of action. It essentially provides the conditions that are required before a person called the 'discriminator' (s 5(1)) can be found to have discriminated against another person called the 'aggrieved person' (s 5(1)) on the grounds of the sex of the aggrieved person. Under s 5(1) if by reason of the sex of the aggrieved person, or a characteristic that generally pertains to or is generally imputed to a person of that sex, the discriminator treats the aggrieved person less favourably than the discriminator treats or would treat a person of the opposite sex, then the discriminator has discriminated against the aggrieved person. Ms Obieta must establish that the respondent in question treated her less favourably than the respondent would treat a person of the opposite sex in circumstances that are the same or not materially different.


case_text: The standard of proof that is required to establish unlawful conduct under s 9 of the RDA was considered in Sharma v Legal Aid (Qld) [2002] FCAFC 196 ; (2002) 115 IR 91. The Full Court at [40] said: ' It is for the applicant who complains of racial discrimination to make out his or her case on the balance of probabilities. It may be accepted that it is unusual to find direct evidence of racial discrimination, and the outcome of a case will usually depend on what inferences it is proper to draw from the primary facts found: Glasgow City Council v Zafar [1997] UKHL 54 ; [1998] 2 All ER 953, 958. There may be cases in which the motivation may be subconscious. There may be cases in which the proper inference to be drawn from the evidence is that, whether or not the employer realised it at the time or not, race was the reason it acted as it did: Nagarajan v London Regional Transport [1999] UKHL 36 ; [1999] 3 WLR 425, 433. It was common ground at first instance that the standard of proof for breaches of the RDA is the higher standard referred to in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336, 361-362. Racial discrimination is a serious matter, which is not lightly to be inferred: Department of Health v Arumugam [1988] VR 319, 331. No contrary argument was put on the hearing of the appeal, apart from the comment that there is no binding authority on this Court that Briginshaw should be applied in cases of this nature. In a case depending on circumstantial evidence, it is well established that the trier of fact must consider "the weight which is to be given to the united force of all the circumstances put together". One should not put a piece of circumstantial evidence out of consideration merely because an inference does not arise from it alone: Chamberlain v The Queen [No 2] [1984] HCA 7 ; (1983-1984) 153 CLR 521 at 535. It is the cumulative effect of the circumstances which is important provided, of course, that the circumstances relied upon are established as facts.'


case_text: In Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 , a case which considered, inter alia, the meaning of 'detriment' in comparable state legislation, the Administrative Decisions Tribunal ('ADT') found that the word 'detriment' should be given its common meaning of 'loss, damage or injury' (at [40]). It was also said in that case that '[t]he detriment suffered... must be real and not trivial' and 'whether something constitutes a detriment must be determined objectively and not subjectively' (at [41]). In Damiano and Another v Wilkinson and Another [2004] FMCA 891 at [23] Baumann FM considered the meaning of detriment gleaned from three authorities as follows: '... [T]he definition of detriment [is] placing a complainant "under a disadvantage of a matter of substance" (Bogie v University of Western Sydney (1990) EOC 92-313 ) or "suffers a material difference in treatment" (Bailey v Australian National University (1995) EOC 92- 744 ) which is "real and not trivial" (Sivanathan [sic] v Commissioner of Police (NSW) (2001) NSWADT 44 ) '


case_text: Some of the alleged breaches refer to definition or explanatory sections, which cannot give rise to a cause of action. Accordingly the Court will make no reference to the alleged breaches of such sections. Further, no cause of action can arise from an alleged breach of an International Convention as claimed by Ms Obieta (see Tasmanian Wilderness Society Inc and Others v Fraser and Others [1982] HCA 37 ; (1982) 153 CLR 270 at 274 per Mason J). Accordingly the Court will similarly not refer to articles of International Conventions which Ms Obieta claims have been breached. 18 Mr Norman was Ms Obieta's teacher of the modules Interaction in a Legal Office , Interaction with Other Parties and Advocacy Skills , each of which were part of the TAFE course for the Diploma of Business-Legal Studies. 19 On Wednesday 5 May 2004 during a class exercise relating to discrimination, Mr Norman proposed that the class be divided into different groups and that each group would be required to report, either ' for' a particular argument or ' against ' it. He made a comment to the effect ' my two blue-eyed good friends over here would report that there is discrimination and the other group would report there is no discrimination '. Ms Obieta says that Mr Norman indicated that one who would be advocating that there was no discrimination came from the Philippines, thereby indicating Ms Obieta, and the other had a history of China, thereby indicating Ms Chong, another student in the class. Ms Obieta claims that by reason of Mr Norman saying such words loudly and repeatedly on two occasions, she felt discriminated against. She alleges that such conduct breached ss 9 and 18C of the RDA.


case_text: In Toben v Jones [2003] FCAFC 137 ; (2003) 129 FCR 515 at [31] Carr J agreed with the adoption by Kiefel J of the approach taken by McHugh J in Waters 173 CLR. At 31 Carr J said: 'The authorities on the issue of causation in the context of the discrimination legislation were reviewed by Kiefel J in Cairns Post at [19]-[27]. It seems clear from what her Honour said at [22] that she regarded the assessment of a reason as being an objective one, but not one which excluded any evidence of the relevant person's intention or motive. Regard was to be had to all the circumstances. I respectfully agree with that approach.'


case_text: Three important considerations arise from the above. Firstly, the burden of proof lies upon Ms Obieta to establish discrimination, harassment or victimisation whether it arises pursuant to the RDA or the SDA. Secondly, with respect to claims of unlawful discrimination, harassment or victimisation under the RDA, it is essential that the discrimination, harassment or victimisation be proved, on the balance of probabilities, on the ground of Ms Obieta's race (see Victoria v Macedonian Teachers' Association of Victoria Inc and Another [1999] FCA 1287 ; (1999) 91 FCR 47). Similarly, with regard to a claim for sexual discrimination, harassment or victimisation under the SDA, discrimination, harassment or victimisation based upon Ms Obieta's sex must be established on the balance of probabilities: see Aboriginal Legal Rights Movement Inc v South Australia and Another (No1) (1995) 64 SASR 551 at 553.


case_text: To succeed in establishing a claim under s 9(1A) of the RDA that there was an act involving a distinction based on, or done by reason of, her race, colour, decent or national or ethnic origin, Ms Obieta must establish that a term, condition or requirement that was not reasonable in the circumstances was imposed upon her (see s 9(1A)(a)). As was held by McHugh J in Waters and Others v Public Transport Corporation [1991] HCA 49 ; (1991) 173 CLR 349 at 406 in reference to a similar provision in Victorian anti-discrimination legislation (see s 17(5)(a) Equal Opportunity Act 1984 (Vic)), such term, condition or requirement would need to be identified with precision. 216 Further, under s 9(1A)(b) Ms Obieta must established that she does not or cannot comply with the term, condition or requirement and under s 9(1A)(c), that the requirement has the purpose or effect of interfering with the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as Ms Obieta, of any relevant human right or fundamental freedom. 217 Section 10 of the RDA relevantly provides for a right of equality before the law and that the laws of the Commonwealth, States and Territories are to apply generally to all people regardless of their race, colour, national or ethnic origin. Ms Obieta must show that under a particular law, she does not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or that she enjoys that right to a more limited extent. Once this has been established then notwithstanding the particular law in question, by force of this section, she is entitled to enjoy the right to the same extent as persons of another race, colour or national or ethnic origin. 225 The question of causation that arises in the application of s 18C(1)(a) has been considered in numerous cases. In Purvis v New South Wales (Department of Education and Training) and Another [2003] HCA 62 ; (2003) 202 ALR 133 at 138 the High Court explained per Gleeson CJ, at 171-2 per McHugh and Kirby JJ, at 187 per Gummow, Hayne and Heydon JJ, that the accepted test for causation in the context of anti-discrimination legislation focuses on the 'genuine basis' or 'the true basis' or 'real reason' for the act of the alleged discriminator. The question of causation was also considered in Bropho 135 FCR at [71] wherein French J referred to the description by Kiefel J in Creek v Cairns Post 112 FCR at [28] of the key causation issue as 'whether anything suggests race as a factor' in the act in question. Kiefel J at [23] adopted the approach to the construction of statutory provisions similar to s 9 of the RDA taken by McHugh J in Waters 173 CLR at 401. 227 In Toben v Jones [2003] FCAFC 137 ; (2003) 129 FCR 515 at [31] Carr J agreed with the adoption by Kiefel J of the approach taken by McHugh J in Waters 173 CLR. At 31 Carr J said: 'The authorities on the issue of causation in the context of the discrimination legislation were reviewed by Kiefel J in Cairns Post at [19]-[27]. It seems clear from what her Honour said at [22] that she regarded the assessment of a reason as being an objective one, but not one which excluded any evidence of the relevant person's intention or motive. Regard was to be had to all the circumstances. I respectfully agree with that approach.'


case_title: Australian Prudential Regulation Authority v Siminton [2006] FCA 326

case_text: In reasons for judgment delivered in this matter today ([2006] FCA 326) I outlined the nature of the present proceeding and the orders made by Sundberg J, Gray J and myself. It is unnecessary to repeat that outline. 4 The orders made by Sundberg J were superseded by the orders made by Gray J granting interlocutory injunctions: see Australian Prudential Regulation Authority v Siminton [2006] FCA 140. The orders were first challenged by Siminton by his motion of 14 March 2006, which was well after the original orders were spent. The only apparent purpose of that challenge was Siminton's endeavour to have the orders declared to be a nullity so that they could not found the motion of the applicant (APRA) against him for contempt. For the reasons given (at [42]-[53]) of my reasons for judgment handed down today I have concluded that the challenge to the orders made by Sundberg J is to be rejected. The motion to set aside the orders has been brought too late, is misconceived and is without merit. 5 Gray J, after hearing the parties, granted the interlocutory injunctions sought by APRA. His Honour was in no doubt that there was a serious issue to be tried and that the balance of convenience favoured the grant of the injunctive relief sought. Siminton has not adduced evidence of any new facts that have come into existence or been discovered that render the enforcement of the orders unjust: see Phillip Morris at 178. His challenge to the orders appears to be an endeavour to rely on the Court's power to set aside interlocutory orders as a substitute for an appeal. The challenge should be refused as it is a misuse of process and, in any event, is wholly without merit. In particular, I am not satisfied that any proper basis has been demonstrated for interfering with his Honour's orders. 10 Also, in my decision today I have found that Siminton deliberately breached certain orders made by Sundberg J and have adjourned the contempt hearing to enable submissions to be made in relation to penalty which, plainly, can involve the possibility of a term of imprisonment. 11 Finally, Siminton has placed no evidence before the Court as to why the orders made by me might work any injustice or unfairness. Indeed, it appears that independently of my orders, he has no entitlement to his passport. Nonetheless, he claims that the orders 'deprive him of his liberty'. 12 Accepting, as I do, that orders of the kind made by me ought to be made sparingly and only where the special circumstances of the case require the making of such orders, the above matters leave me with little confidence in Siminton. In particular, he has not provided any information or taken any steps to allay the concerns I expressed on 23 December 2005. For the reasons there expressed (save that there may no longer be a difficulty in locating Siminton) this is an exceptional case in which it is in the public interest that the Court ensures that Siminton's presence in Australia is secured to prevent the Court's processes from being frustrated and, in particular, to ensure that any relief to which APRA may become entitled is able to be effective. I would add that the contempt proceeding, with the possibility of a term of imprisonment, is an added reason for not varying the orders I made.


case_outcome: applied

case_text: The Court has the power to set aside or vary the previous orders because those orders are interlocutory orders over which the Court maintains its control: see Adam P. Brown Male Fashions v Phillip Morris [1981] HCA 39 ; (1981) 148 CLR 170 (' Phillip Morris ') at 178. However, for reasons that I shall endeavour to briefly state I am of the clear view that the orders sought should not be made and that each of the notices of motion of the respondent should be dismissed with costs. 5 Gray J, after hearing the parties, granted the interlocutory injunctions sought by APRA. His Honour was in no doubt that there was a serious issue to be tried and that the balance of convenience favoured the grant of the injunctive relief sought. Siminton has not adduced evidence of any new facts that have come into existence or been discovered that render the enforcement of the orders unjust: see Phillip Morris at 178. His challenge to the orders appears to be an endeavour to rely on the Court's power to set aside interlocutory orders as a substitute for an appeal. The challenge should be refused as it is a misuse of process and, in any event, is wholly without merit. In particular, I am not satisfied that any proper basis has been demonstrated for interfering with his Honour's orders.


case_text: The standard of proof is the civil standard, but because the claim is for a penalty, to the level of satisfaction in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 at 361-362.


case_title: Jones v Dunkel (1959) 101 CLR 298

case_text: In my opinion, in the absence of any explanation for failing to call Mr Carslake and none was proffered, it would be right to draw the inference that Mr Carslake's evidence would not have assisted the respondent on this and the other two relevant conversations: Jones v Dunkel (1959) 101 CLR 298. There is no suggestion that Mr Carslake was not available to be called and I find that a conscious decision was made not to call him. 32 I accept Mr Zito's evidence and I find that on 3 May 2004 Mr Feehan told Mr Zito that he would close the site down because Mr Zito's employees were not members of the Union and because the site lacked the appropriate facilities. I also find that either later on 3 May 2004, or on 4 May 2004, Mr Feehan attended the site with Mr Carslake and Mr Carslake spoke to Mr Zito and told Mr Zito that he would not be able to pour concrete the next day. 33 The respondent said that he told Mr Zito that he would be back on 5 May 2004. I accept that aspect of the respondent's evidence because it is consistent with both Mr Potter's and Mr Zito's evidence. Moreover, he did return on 5 May 2004 as he promised.


case_text: The issue to be determined is whether the respondent intentionally hindered or obstructed an employer or employee. That question is simply a question of fact. A person may intentionally hinder or obstruct another person by an active act or conduct which is essentially negative in character: O'Reilly v The Commissioners of the State Bank of Victoria [1983] HCA 47 ; (1983) 153 CLR 1 at 49-50. 22 Here the case against the respondent is that he did both. He both performed acts and failed to perform acts which showed that he intentionally hindered or obstructed both employers and employees. 23 The Halifax Street site is on the corner of Halifax Street and Cardwell Street, Adelaide. It is on the southern side of Halifax Street and its eastern border was on Cardwell Street. Part of its southern border at that time was on Ely Place. The rest of its southern border was on Gilles Street. The site was owned by the Southcott family but it was the Kinsmen Group who was the developer of the site. Scott Salisbury Homes were in May 2004 commencing to build eight separate two-storey townhouses or units with separate strata titles on an area of the site called "Stage 4". Stage 4 was on the western boundary of the site near Ely Place. The only access to the site was from Halifax Street, there being no access either from Cardwell Street or Ely Place. The area of the site immediately adjacent to Halifax Street was called the common access roadway. It was into that area that traffic coming from Halifax Street onto the site would enter. Immediately south of the common access area and to the east of Stage 4 was an area undergoing remediation. There was an access lane area between Stage 4 and the area undergoing remediation upon which traffic, including trucks, could travel to get access to all of Stage 4. Trucks could not turn in that access lane area. If a truck needed to turn it had to turn into the common access area immediately off Halifax Street. If a truck wanted to travel down the access lane area, the truck driver would have had to back down the lane if the truck driver wished to drive out nose first, or back out if the truck driver had chosen to drive in nose first. The common access area was sometimes used as a parking area for employees on the site and had been so used prior to the day in question.


case_title: Pine v Doyle (2005) 143 IR 98

case_text: Such a finding is consistent with him telling Mr Zito that he would be back the next day and with his later actions. He parked his car next to Rocky Mastrullo's truck. Shortly after he alighted from his car, he was approached by Mr Potter. He was asked to remove his car from the site. A conversation ensued. During the conversation Mr Potter asked to see the respondent's permit and the written notice of entry. The respondent disputed that he needed a written notice and claimed that Mr Potter knew that he would be there that day. The respondent showed Mr Potter his permit as he was obliged to do under s 285D(1). The exercise of a power of entry under the Act is a matter of fact: Pine v Doyle (2005) 143 IR 98. The respondent exercised that power of entry. 61 Mr Potter told him to move his vehicle and told him that the vehicle was parked in a position which would impede the progress of concrete trucks which needed that space in which to turn so that the trucks might back down the access lane to the Stage 4 development. The respondent did not comply with that request, notwithstanding that he was told that the position of his car was in an area designated for the trucks to turn. His silence amounted to a refusal. 62 It was at the time the practice of the Building Industry Task Force to maintain a running sheet as a record of matters that were attended to on particular days. Mr Concannon kept a running sheet of the events of 5 May 2004 which was exhibited to his affidavit.


case_text: The present application does not call for a detailed discussion of the principles that govern the exercise of the Court's discretion under s 436B(2) of the Act. The reason is that, in my view, on any approach, the discretion should be exercised in favour of the granting of leave for the Liquidators to appoint themselves as administrators. The main question under s436B(2) of the Act is whether the Court is satisfied that the liquidator is an appropriate person to be appointed as administrator. After all, a liquidator is at liberty under s 436B(1) of the Act to appoint another person as administrator without the necessity of leave: see Deputy Commissioner of Taxation v Foodcorp Pty Ltd (1994) 13 ACSR 796 ( Foodcorp) ; Re Cobar Mines Pty Ltd (rec and mgr apptd) (in liq) (1998) 30 ACSR 125; John R Turk & Sons (Artarmon) Pty Ltd v Newmont Television Pty Ltd [1999] NSWSC 622 ; Nardell Coal Corporation Pty Ltd (recs and mgrs apptd) (in liq) (2003) 47 ACSR 122. It has been suggested, however, that the Court should also have in mind considerations of commercial morality: see Re Data Homes Pty Ltd (in liq) [1972] 2 NSWLR 22; Re Depsun Pty Ltd (1994) 13 ACSR 644; Foodcorp at 798-9.


case_text: The present application does not call for a detailed discussion of the principles that govern the exercise of the Court's discretion under s 436B(2) of the Act. The reason is that, in my view, on any approach, the discretion should be exercised in favour of the granting of leave for the Liquidators to appoint themselves as administrators. The main question under s436B(2) of the Act is whether the Court is satisfied that the liquidator is an appropriate person to be appointed as administrator. After all, a liquidator is at liberty under s 436B(1) of the Act to appoint another person as administrator without the necessity of leave: see Deputy Commissioner of Taxation v Foodcorp Pty Ltd (1994) 13 ACSR 796 ( Foodcorp) ; Re Cobar Mines Pty Ltd (rec and mgr apptd) (in liq) (1998) 30 ACSR 125; John R Turk & Sons (Artarmon) Pty Ltd v Newmont Television Pty Ltd [1999] NSWSC 622 ; Nardell Coal Corporation Pty Ltd (recs and mgrs apptd) (in liq) (2003) 47 ACSR 122. It has been suggested, however, that the Court should also have in mind considerations of commercial morality: see Re Data Homes Pty Ltd (in liq) [1972] 2 NSWLR 22; Re Depsun Pty Ltd (1994) 13 ACSR 644; Foodcorp at 798-9. 26 It would be wasteful to put the Liquidators to that effort and expense, having regard to the fact that the members of the committee of inspection in the liquidation have unanimously supported the Proposal, in general, and, in particular, the re-appointment of the Liquidators as administrators for the purpose of advancing it. For this reason I made the order sought under s 447A of the Act. I note that such an order has been made in somewhat similar circumstances in Re Cobar Mines Pty Ltd (rec and mgr apptd) (in liq) (1998) 30 ACSR 125; John R Turk & Sons (Artarmon) Pty Ltd v Newmont Television Pty Ltd [1999] NSWSC 622 and Re Nardell Coal Corporation Pty Ltd (rec and mgr apptd) (in liq) (2003) 47 ACSR 122.


case_title: John R Turk & Sons (Artarmon) Pty Ltd v Newmont Television Pty Ltd [1999] NSWSC 622


case_title: Re Nardell Coal Corporation Pty Ltd (recs and mgrs apptd) (in liq) (2003) 47 ACSR 122


case_title: Re Data Homes Pty Ltd (in liq) [1972] 2 NSWLR 22


case_title: Re Depsun Pty Ltd (1994) 13 ACSR 644


case_text: No party to the Deed of Settlement is a party to the proceeding. More particularly it is not asserted that Sons of Gwalia Ltd acquired its interest in the mining lease and associated property other than as a 'bona fide' purchaser for value without notice. Apart from the insurmountable difficulties that would usually face a party attempting to have a Deed of Settlement set aside it is obvious that this proceeding against the defendants has no prospect of success seeking as it does an order against the defendants in respect of their rejection of the proof of debt lodged by the plaintiff. (See: Bowen v Stratigraphic Explorations Pty Ltd [1971] WAR 119, 121).


case_text: It may be accepted that an application for summary dismissal of a proceeding will rarely succeed if the application is based on no more than the apparent lack of probability that the claimant will succeed or if the application to dismiss does not address whether there are latent substantive questions that may arise in the course of the proceeding. (See: Lonrho Plc v Al-Fayed (No 2) [1992] 1WLR 5; Seven Network Ltd v News Ltd (No 4) (2005) 214 ALR 686). However, this proceeding is one of those cases where it is obvious that there is no utility in allowing the matter to continue. On its face there is no question that can be competently raised by the plaintiff for resolution by the Court in respect of the conduct of the defendants as Administrators. (See: Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 per Dixon J at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 per Barwick CJ at 129).


case_title: Seven Network Ltd v News Ltd (No 4) (2005) 214 ALR 686


case_title: Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62


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


case_text: am satisfied that there is a serious question to be tried against AIF and that the allegations made in the statement of claim have a foundation (Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57).


case_text: Commission also submits that it is important in the public interest and the administration of the Trade Practices Act that it be given leave to proceed against AIF in order for the public to be informed, if the Commission is successful, of the public's rights in relation to the provision of bundled services. I accept that, if the Commission is successful, there is utility in promoting general deterrence. As was pointed out by Carr J in Australian Competition and Consumer Commission v Goldy Motors Pty Ltd (2001) ATPR 41-801 at [34], '[t] here is some degree of public interest in the determination and declaration that the respondent by its conduct has contravened [a provision of the Trade Practices Act ]'. However, I do not consider this to be a factor in support of the exercise of discretion to proceed against AIF. There are other finance companies already joined as respondents to the proceedings. If the Commission is successful in establishing contraventions of the Trade Practices Act , this aspect of the public interest will be served. The Commission points out that it may be successful against AIF and not against the other companies but I cannot properly weigh that likelihood at this stage of the proceedings. The Commission submits that it is in the public interest to grant leave to proceed against AIF ' because it is important that the Trade Practices Act ... be seen to be enforced '. I do not accept that it is appropriate to grant leave to proceed against a company in liquidation simply because the Commission considers it important that the Trade Practices Act be seen to be enforced. The Commission also relies upon the public interest in obtaining declarations that a party has contravened the Trade Practices Act ' to vindicate the rights and interests of small businesses which have entered into arrangements with [AIF] which are contrary to section 47(6) of the [Trade Practices Act]'.


case_text: proceedings were commenced on 17 September 2008, prior to AIF being placed into liquidation. The Commission submits that the fact that resources have already been committed to litigation is an important consideration in granting leave to continue. However, unlike Speiser v Locums Financial Management Pty Ltd (1996) 22 ACSR 478 at 482 3, the liquidation in the present case did not occur in the midst of litigation after days had been set aside for further hearing. In this case there are a number of respondents in the proceedings and there is no indication that the formulation of the claims against AIF represents a predominant allocation of resources. Only a small amount of time has elapsed since the commencement of the proceedings. I do not consider this to be a relevant factor in support of the exercise of discretion.


case_text: Commission's case is that this discloses that AIF knew of the relevant transaction between the Telco and the customer. The Commission submits that this is sufficient to establish a serious question to be tried as to the accessorial liability of AIF in the contravention by the Telcos of the exclusive dealing provisions of the Trade Practices Act ( Vagrand Pty Ltd (in liq) v Fielding (1993) 41 FCR 550). As the Commission points out, these proceedings do not represent a choice as is often available in a liquidation, between an action and a proof of debt. The remedies sought by the Commission are not available in the liquidation. Although the unavailability of relief pursuant to liquidation does not automatically entitle an applicant to leave under s 471B of the Corporations Act ( Vagrand at 553), the fact that relief is not otherwise available is a significant factor in favour of the exercise of discretion to grant leave to proceed against the company in liquidation. Further, the Commission submits that it is necessary to obtain the relief sought in order to inform and protect customers who may be unaware of their potential rights under the Trade Practices Act . The public interest in the declarations and other orders sought against AIF is relevant. As the Commission points out, consumers may be subject to claims by AIF for moneys owed as part of the bundling agreement. In view of the large number of individual customers said to have been made subject to the bundling arrangements as pleaded, I accept that findings of fact in these proceedings as against AIF may be useful to persons who have dealt with the company in a similar manner to that pleaded in the statement of claim and who may wish to pursue their own remedies against it. If the contracts with AIF are found in these proceedings to have been "forced" in contravention of s 47(6) of the Trade Practices Act , customers against whom enforcement proceedings are brought may be able to seek relief from the contracts by virtue of any findings made in these proceedings. If AIF is not a party to these proceedings, then it will be free to argue in any such enforcement proceedings that it is not bound by any judgment, so that the question of contravention of s 47(6) of the Trade Practices Act would need to be relitigated by the individual customer, even if that customer were aware of the provisions of the Trade Practices Act . There is no indication from the liquidator whether there are any funds available in AIF. However, the assets of the liquidator include claims against customers who have an equipment lease with AIF. Those assets come to the liquidator with their history and inherent characteristics. As the Full Court pointed out in Vagrand (at 553), '[a] lthough the liquidator takes the assets on behalf of the creditors, third parties retain any rights which enure to them as a result of that history or those characteristics '.


case_text: It is common ground that in ruling upon this application, the Court is to apply the test established by the High Court in Adam P. Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 which requires the respondent to persuade the Court that the discharge of the undertaking would be appropriate because of the existence of new facts that render the ongoing enforcement of the undertaking unjust. 4 The respondent carries the burden of establishing the new facts. Mr McDonald of Senior Counsel, who appeared on behalf of the respondent with Mr O'Grady, argued that there were two material changes in circumstances which rendered it unjust for the Court to maintain the undertaking of the respondent. 5 First, Mr McDonald contended that the cause of action under s 1317AA of the Act had been abandoned by the legal representative of the applicant in the course of the trial, which is presently part heard. Reference was made to the transcript at pp 22 and 50 which support the contention that this cause of action was abandoned in the course of the trial.


case_text: As noted by Bennett J in Austal Ships Pty Ltd v Stena Rederi Aktiebolag (2004) 66 IPR 420 at 433, the requirements in the patent specification in relation to 'narrow waisted' are: • 'SWATHs are catamaran type vessels where those parts of the hull located beneath the surface of the water are joined by narrow connections. Such vessels have a narrow hull waist, or narrow cross section, at the water line. • The cross sectional shape of the hull shapes of the claims throughout a substantial portion of the forward half of the hull has a bulbous underwater part and a narrow waisted part which extends through the water line. • The hull construction of the claims comprises a forward hull part which has a bulbous underwater cross section. That is, the hull width is narrower in the region of the water line than both above and below the water line. There are numerous references to the bulbous shape. For example, 'pronounced bulbous shape solely at the foreward part of its underwater body'. The bulbous shape of the forward part of the hull cross-section a relatively narrow hull width in the vertical region of the hull extends up through the water line. • The figures, in particular fig 1, show the bulbous shape underwater and significant waisting at the water line. • The hull is described in such a way as to indicate to the skilled reader that the forward part is SWATH-like. There is a specific reference to the link between the area above the water line and a characteristic of SWATHs' 40 Austal says that the expression 'narrow waisted', which is interrelated with the other requirements of integer 1.6, is also obscure and capable of diverse meanings. 41 It is noteworthy that the reference is to a waist which is narrow. Not all waisting can of course be described as 'narrow'. It is common ground that the degree of waisting of the preferred embodiment in Figure 1 (expressed as a percentage of the forward half of the hull which is narrowed or waisted) is as follows: • 85% narrowing at 40% of the forward half of the hull; • about 79-80% narrowing at 50% of the forward half of the hull; • 62% narrowing at 80% of the forward half of the hull; • about 42% narrowing at 100% of the forward half of the hull; and • 23% narrowing at 120% of the forward half of the hull. 42 On an ordinary grammatical reading, waisting can occur when lines are merely not parallel. As a matter of language, the expression 'waisting' requires only a discernable narrowing. However, given that the expression at issue here is 'narrow waisting', I agree with Bennett J that the expression 'narrow waisting', on its correct construction, means a 'significant narrowing': see Austal Ships Pty Ltd v Stena Rederi Aktiebolag (2004) 66 IPR 420 at 433-434. 43 Mr Soars agreed that a hull with an underwater bulb which, at the waterline at 50 percent of the forward half of the hull, is waisted at little more than 20 percent would be profoundly different to the preferred embodiment in its ability to dampen the pitching of the vessel. Such a hull would have only one quarter of the waisting of the preferred embodiment at 50 percent of the forward half of the hull (that is, 20 percent waisting compared with 80 percent). Although Mr Soars ultimately put the requirement as being any waisting in excess of 20 percent, Austal notes that in cross examination Mr Soars referred to the expression 'narrow waisted' as being a vague one. By contrast, Mr Quigley considered that a vessel could not be a SWATH style vessel unless it had a waisting of at least 70 percent. He added that he had never seen a SWATH with only 20 percent waisting, stating that although he was unable to determine from the claims of the specification a precise percentage for the narrow waisting, a significant narrowing of the waist would require at least a 50 percent narrowing of the maximum underwater hull width. Accordingly, Austal submits that that degree of waisting, on the language of the claim, must be more than 50 percent. 44 The difficulty with the evidence of Mr Quigley is that he has regard solely to the SWATH-type characteristics of the vessel. He has given insufficient weight to the hybrid nature of the hull design issue in suit. In my view, a narrowing of the waisting in the order of 20 percent or more could be said to be a significant narrowing. I accept the evidence of Mr Soars on this point. 91 Other witnesses called for Austal were also unsatisfactory on this question. Mr Wagner's evidence neither relates to the issues in dispute in these proceedings, nor is based on any work done in Australia relevant in this case. Moreover, the designs with which he is familiar differ from the hull in the claimed invention. Mr Black's evidence suffers because he is not an independent witness, employed as he is by Austal, and because he was aware of the patent and had been involved in its opposition. Indeed, it is revealing to note that Mr Black described the similarities between the Austal 94 hull form and the patent claims as 'too close for comfort!'. His evidence that the expression 'narrow waisted' refers to any waisting whatsoever has already been rejected by Bennett J, with whom I agree at [42] above: see A ustal Ships Pty Ltd v Stena Rederi Aktiebolag (2004) 66 IPR 420 at 433-434. In addition, he refers to the concept of 'semi-SWATH', which indicates that his knowledge was affected by information obtained after the priority date. 92 The evidence of Mr Norman for Austal was also unsatisfactory. His evidence does not address the developments in Australia at Austal between the design of both Austal 14 and Austal 18 in 1990 and the design of Austal 94. It is significant to note that no evidence was adduced by Austal to explain the steps which were taken to arrive at the design of the Austal 94, despite the apparent availability of this information. 93 Austal relied on the "Patria", which was a modified SWATH in operation before the priority date, as an example of a vessel with SWATH-type features which could be suitably modified to solve the problem addressed by the patent. The "Patria", however, is classified as a SWATH vessel and the evidence indicates that its design and use of propeller propulsion created problems at speed. This indicates that any attempt to modify the "Patria" design would require significant design modifications in order to accommodate some form of water-jet propulsion in order to achieve speeds above 30 knots. While the "Patria" may have had good seakeeping features, this was achieved at the expense of speed, which is a critical element in the problem the invention was designed to meet. It should be noted that when Mr Quigley initially dealt with the question of obviousness, he made no reference whatsoever to the "Patria". This lends support to the conclusion that it was not a type of vessel which readily came to mind when considering the question of obviousness.


case_text: As pointed out by Emmett J in E I Du Pont De Nemours v ICI Chemicals & Polymers Ltd (2005) 66 IPR 462 at 493: 'Ultimately, it is a matter for the court as to whether a proposed line of enquiry was obvious to the relevant persons. Where the evidence of a relevant person constitutes no more than speculation as to what that person might have done in circumstances that had never arisen ... the evidence will have little weight'. 98 In my view, the evidence does not establish that the Davidson A hull would provide any basis to support the argument which would make the claimed inventive step obvious or non-existent. 99 Furthermore, simply because the earlier Austal hulls and Crowther hull included a bulbous bow in a catamaran hull design does not automatically mean they were relevant to a consideration of the problem addressed by the patent. It is left unclear as to the nature and extent of the modifications required to make such vessels suitable for use in exposed waters. I accept the evidence that these vessels did not disclose the use of a small water plane area for a substantial portion of the forward half of the vessel, which is a crucial feature of the patent specification. They were more akin to the water plane areas used in conventional catamarans at that time. The use of such vessels in calm or sheltered waters does not necessarily provide any useful guide to the design of a hull suitable for use at high speed in exposed waters, in which conditions the problem of good seakeeping is greatly increased.


case_text: Where the language of the specification is unambiguous, a court should not readily depart from the wording of the claim by reading words into it or using stray phrases in the body of the specification in order to narrow or widen the boundaries of the monopoly fixed by the plain words of a claim. As Lord Russell of Killowen stated in Electric and Musical Industries Ltd v Lissen (1938) 56 RPC 23 at 39: 'The function of the claims is to define clearly and with precision the monopoly claimed, so that others may know the exact boundary of the area within which they will be trespassers. Their primary object is to limit and not to extend the monopoly. What is not claimed is disclaimed. The claims must undoubtedly be read as part of the entire document and not as a separate document; but the forbidden field must be found in the language of the claims and not elsewhere.' See also Kirin-Amgen Inc v Hoechst Marion Roussel Limited [2004] UKHL 46 at [20] (per Lord Hoffmann); Kimberly-Clark Pty Ltd v Arico Trading International Pty Limited [2001] HCA 8 ; (2001) 207 CLR 1 at 12; Interlego AG v Toltoys Pty Ltd [1973] HCA 1 ; (1973) 130 CLR 461 at 479.


case_text: The principles relating to 'inventive step' and 'obviousness' were recently considered by the High Court in Lockwood Security Products Pty Ltd v Doric Products Pty Ltd [2007] HCA 21. In that case, their Honours referred to ss 7(2) and (3) the Act , which describe the statutory test as to what constitutes an 'inventive step'. Their Honours noted at [122] and [150] that the standard by which obviousness is to be determined is by reference to the understanding of a person skilled in the relevant art, who, at the priority relevant date, would possess common general knowledge in that art, and who would have had regard to any additional information referred to in s 7(3): see also Firebelt Pty Ltd v Brambles Australia Ltd [2002] HCA 21 ; (2002) 188 ALR 280 at 287-289; Tidy Tea Ltd v Unilever Australia Ltd (1995) 32 IPR 405 at 414 (per Burchett J). The Court clarified at [152] that s 7(3) has the effect of enlarging the prior art base to include relevant prior disclosures beyond that information which is shown to constitute common general knowledge in that art.


case_text: The gravamen of the submission by Austal is that the language of claim 1 is so obscure, ambiguous and uncertain in important respects that it cannot give rise to an infringement. The submission relies on the principle adopted by Hely J in Flexible Steel Lacing Company v Beltrico Ltd (2000) 49 IPR 331 at 348-349, that a claim may be bad for uncertainty notwithstanding that the Court could find its true meaning in the circumstances, if it is so obscure that its proper construction must remain a matter of doubt. The difficulty in the application of the principle is in defining the level of clarity required in the context of a particular claim. It is not sufficient to show merely that a claim might have been better drafted or that it is capable of more than one construction. 26 The imprecise language which Austal says makes claim 1 invalid for uncertainty resides particularly in the drafter's use of the undefined expressions 'substantial portion' and 'narrow waisted' in integer 1.6. The vagueness which arises from these expressions is said to be compounded because they are interrelated features relating to the bulbous underwater part of the hull shape. Austal notes that the expression 'substantial portion' was first introduced into the claim by an amendment as a consequence of opposition. 27 Mr Soars who gave evidence for the applicant is a qualified naval architect. He graduated with a Bachelor of Science in engineering and is a member of the Royal Institution of Naval Architects. He has had considerable experience in the design of large twin hull vessels. His expertise and experience is not in issue. Between 1980 and the year 2000 he was involved in the design of over 120 high speed light craft ranging from 16 metres to 100 metres. He was the Senior Naval Architect at Incat Designs between 1983 and 1985, a role which involved computer programming, structural design, design technology developments, supervision and project management for high speed catamarans.


case_title: Interlego AG v Toltoys Pty Ltd [1973] HCA 1 ; (1973) 130 CLR 461


case_text: There is no significant dispute as to the relevant legal principles of interpretation. It is clear that the claims must not be read in the abstract, but rather in their context, including existing published knowledge. What is being construed is a public instrument which must define a monopoly in such a way that it is not reasonably capable of being misunderstood: Populin v HB Nominees Pty Ltd (1982) 41 ALR 471 at 476. In Kimberly-Clark Pty Ltd v Arico Trading International Pty Limited [2001] HCA 8 ; (2001) 207 CLR 1 at 16, the majority joint judgment noted that it is necessary to construe the complete specification in the light of the common general knowledge and the art before the priority date, allowing the Court to place itself in the position of a person reading the specification who is acquainted with the surrounding circumstances as to the state of that art and its manufacture at that time. 20 Where the language of the specification is unambiguous, a court should not readily depart from the wording of the claim by reading words into it or using stray phrases in the body of the specification in order to narrow or widen the boundaries of the monopoly fixed by the plain words of a claim. As Lord Russell of Killowen stated in Electric and Musical Industries Ltd v Lissen (1938) 56 RPC 23 at 39: 'The function of the claims is to define clearly and with precision the monopoly claimed, so that others may know the exact boundary of the area within which they will be trespassers. Their primary object is to limit and not to extend the monopoly. What is not claimed is disclaimed. The claims must undoubtedly be read as part of the entire document and not as a separate document; but the forbidden field must be found in the language of the claims and not elsewhere.' See also Kirin-Amgen Inc v Hoechst Marion Roussel Limited [2004] UKHL 46 at [20] (per Lord Hoffmann); Kimberly-Clark Pty Ltd v Arico Trading International Pty Limited [2001] HCA 8 ; (2001) 207 CLR 1 at 12; Interlego AG v Toltoys Pty Ltd [1973] HCA 1 ; (1973) 130 CLR 461 at 479.


case_title: Kirin-Amgen Inc v Hoechst Marion Roussel Limited [2004] UKHL 46


case_text: In Leonardis v Sartas No 1 Pty Ltd (1996) 67 FCR 126 at 134, the Full Court stated that it is not inadmissible to use an imprecise word in a claim where, in an appropriate context, it conveys the necessary meaning. The Court there referred to the use in patent claims of imprecise expressions such as 'relatively small', 'a minor amount', 'substantial effect' and 'substantially above' as terminology which does not necessarily invalidate a patent. Relative expressions which require the exercise of judgment can be used but they must be understood in a practical commonsense manner. Moreover, as Dixon CJ cautioned in Martin v Scribal Pty Ltd [1954] HCA 48 ; (1954) 92 CLR 17 at 60, a patentee does not have to express his claim with a precision that implies an arbitrary restriction on the inherent variability of a feature which is part of the invention.


case_text: The priority date of the claims is to be determined according to ss 43 and 114 (1) of the Act and regs 3.12 and 3.14 of the Patents Regulations 1991 (Cth) ("Regulations"). The effect of these provisions is that the priority date of the current patent is the filing date in Australia, namely 28 January 1992, unless the Regulations so provide. However, if the claims of the patent are fairly based on matter which is disclosed in the original application document in Sweden, then the priority date will be the date of filing in Sweden, namely 30 January 1991. In other words, if the present claims cover matters which were in substance really and reasonably clearly disclosed, so that the invention as now claimed is broadly described in the body of the original specification considered as a whole, then the priority date will be taken as 30 January 1991: see Pfizer Inc v Commissioner for Patents [2005] FCA 137 ; (2005) 141 FCR 413 at 420; Rhem Pty Ltd v Websters Security Systems (International) Pty Ltd (1988) 81 ALR 79 at 95; Lockwood Security Products Pty Limited v Doric Products Pty Limited [2004] HCA 58 ; (2004) 217 CLR 274 at 300-301. 105 As to the question of fair basis, because I consider the patent as granted is fairly based on the disclosure in the original application in Sweden, and taking into account the similarity of that patent specification and the present patent specification, I consider there is fair basis for the claims in this case. The claims do not travel beyond the disclosure. The consistory clauses at pages 3 to 3A reflect the language of the claims and provide a fair basis for them: see Lockwood Security Products Pty Ltd v Doric Products Pty Ltd [2004] HCA 58 ; [2004] 217 CLR 274 at 293-294.


case_text: The principles relating to 'inventive step' and 'obviousness' were recently considered by the High Court in Lockwood Security Products Pty Ltd v Doric Products Pty Ltd [2007] HCA 21. In that case, their Honours referred to ss 7(2) and (3) the Act , which describe the statutory test as to what constitutes an 'inventive step'. Their Honours noted at [122] and [150] that the standard by which obviousness is to be determined is by reference to the understanding of a person skilled in the relevant art, who, at the priority relevant date, would possess common general knowledge in that art, and who would have had regard to any additional information referred to in s 7(3): see also Firebelt Pty Ltd v Brambles Australia Ltd [2002] HCA 21 ; (2002) 188 ALR 280 at 287-289; Tidy Tea Ltd v Unilever Australia Ltd (1995) 32 IPR 405 at 414 (per Burchett J). The Court clarified at [152] that s 7(3) has the effect of enlarging the prior art base to include relevant prior disclosures beyond that information which is shown to constitute common general knowledge in that art. 105 As to the question of fair basis, because I consider the patent as granted is fairly based on the disclosure in the original application in Sweden, and taking into account the similarity of that patent specification and the present patent specification, I consider there is fair basis for the claims in this case. The claims do not travel beyond the disclosure. The consistory clauses at pages 3 to 3A reflect the language of the claims and provide a fair basis for them: see Lockwood Security Products Pty Ltd v Doric Products Pty Ltd [2004] HCA 58 ; [2004] 217 CLR 274 at 293-294.


case_title: Martin v Scribal Pty Ltd [1954] HCA 48 ; (1954) 92 CLR 17


case_text: In Melbourne v Terry Fluid Controls Pty Ltd (1993) 26 IPR 292, Jenkinson J decided that the words 'substantial portion' used in a claim to describe a sleeve of a mechanical assembly did not apply to a situation where the portion was less than 50% of the total length. In that case it was 48%. In reaching this conclusion his Honour had regard to context of the complete specification and to the expert evidence concerning the functions which the sleeve was intended to perform in operation of the device. 24 The above interpretation principles are relevant in the present case to a consideration of the particular expressions in the patent specification which Austal submits display uncertainty and lack of clarity. The relevant expressions are found in integers 1.5 and 1.6 and, to a lesser extent, in claim 7.


case_text: Patent language which uses terms expressing approximation or requiring assessment according to circumstances does necessarily not mean that the impugned claim lacks clarity. Exact expressions are not always essential. An example of this dictum is found in Minnesota Mining & Manufacturing Company v Beiersdorf (Australia) Ltd [1980] HCA 9 ; (1980) 144 CLR 253 at 274, where Aickin J said that lack of precise definition in claims is not fatal to validity so long as they provide a workable standard suitable to the intended use. In that case, his Honour did not consider the word 'inextensible' to be imprecise because on its correct construction in the circumstances his Honour considered that it meant 'relatively inextensible' or 'not capable of extending appreciably'. As can been seen from his Honour's use of language in deciding the meaning of the term, his Honour did not shrink from using other words of general connotation.


case_text: In order to succeed on the infringement claim, Stena must show that Austal has taken each and every one of the essential integers of the patentee's claim; that is, Stena must show that each of the Austal 94, Austal 196 and Austal 285 vessels possesses all of the essential features of the relevant claims: see Populin v HB Nominees Pty Ltd (1982) 41 ALR 471 at 475; Olin Corporation v Super Cartridge Co Pty Ltd [1977] HCA 23 ; (1977) 180 CLR 236 at 246 (per Gibbs J).


case_text: The priority date of the claims is to be determined according to ss 43 and 114 (1) of the Act and regs 3.12 and 3.14 of the Patents Regulations 1991 (Cth) ("Regulations"). The effect of these provisions is that the priority date of the current patent is the filing date in Australia, namely 28 January 1992, unless the Regulations so provide. However, if the claims of the patent are fairly based on matter which is disclosed in the original application document in Sweden, then the priority date will be the date of filing in Sweden, namely 30 January 1991. In other words, if the present claims cover matters which were in substance really and reasonably clearly disclosed, so that the invention as now claimed is broadly described in the body of the original specification considered as a whole, then the priority date will be taken as 30 January 1991: see Pfizer Inc v Commissioner for Patents [2005] FCA 137 ; (2005) 141 FCR 413 at 420; Rhem Pty Ltd v Websters Security Systems (International) Pty Ltd (1988) 81 ALR 79 at 95; Lockwood Security Products Pty Limited v Doric Products Pty Limited [2004] HCA 58 ; (2004) 217 CLR 274 at 300-301.


case_text: There is no significant dispute as to the relevant legal principles of interpretation. It is clear that the claims must not be read in the abstract, but rather in their context, including existing published knowledge. What is being construed is a public instrument which must define a monopoly in such a way that it is not reasonably capable of being misunderstood: Populin v HB Nominees Pty Ltd (1982) 41 ALR 471 at 476. In Kimberly-Clark Pty Ltd v Arico Trading International Pty Limited [2001] HCA 8 ; (2001) 207 CLR 1 at 16, the majority joint judgment noted that it is necessary to construe the complete specification in the light of the common general knowledge and the art before the priority date, allowing the Court to place itself in the position of a person reading the specification who is acquainted with the surrounding circumstances as to the state of that art and its manufacture at that time. 53 In order to succeed on the infringement claim, Stena must show that Austal has taken each and every one of the essential integers of the patentee's claim; that is, Stena must show that each of the Austal 94, Austal 196 and Austal 285 vessels possesses all of the essential features of the relevant claims: see Populin v HB Nominees Pty Ltd (1982) 41 ALR 471 at 475; Olin Corporation v Super Cartridge Co Pty Ltd [1977] HCA 23 ; (1977) 180 CLR 236 at 246 (per Gibbs J).


case_title: Rhem Pty Ltd v Websters Security Systems (International) Pty Ltd (1988) 81 ALR 79


case_text: The High Court at [111] emphasised that it is not the role of a court to substitute its own conclusion for the objective test laid down by ss 7(2) and (3), except in the rarest of circumstances: see also Technograph Printed Circuits Ltd v Mills & Rockley (Electronics) Ltd [1972] RPC 346 at 355 (per Lord Reid). The task for the court is to look forward from the prior art base to what a person skilled in the relevant art is likely to have done when faced with the problem which the patentee claims to have solved. The Court noted at [115]-[116] the importance of secondary evidence when considering whether an inventive step has been achieved. Secondary evidence is that evidence which relates to matters such as the commercial success of the invention, the satisfaction of a long felt want or need, the failure of others to find a solution to the problem and the copying of the invention by competitors. Their Honours at [115] also refer to the necessity for a court to consider the scope and extent of the prior art, and to determine the precise advance over that which was previously in existence, when assessing the level of that prior art. 74 When considering the application of s 7(3) , the Court observed at [152] that attention must be directed to prior disclosures (that is publicly available information which is not part of common general knowledge), which a person skilled in the relevant art could be expected to have regarded as relevant to solving a particular problem. This does not mean that regard must be given to any work in the relevant art whatsoever, but rather only to that information a person skilled in the art could regard as relevant when confronted with the problem faced by the patentee. 75 In this case, it is not the principles relating to 'inventive step' and 'obviousness' which are in dispute, but rather their application. Austal submits that the hull of the invention is only a hybrid combination of desirable features of conventional catamaran hulls and SWATH hulls to produce a multi-hull vessel suitable for high speed operations in exposed seas. The design approach of Stena was not counter-intuitive. A person or team skilled in the art as at the priority date would, when seeking to modify the hull of a catamaran or SWATH into a hull of a so-called semi-SWATH in order to improve seakeeping while retaining speed and stability, design a hull form within the claims without any inventive step. This, Austal submits, demonstrates that the claimed invention is obvious. 76 Austal submits that the relevant prior art base for consideration concerns large high speed multi-hull passenger and cargo vessels suitable for use in exposed sea conditions. It argues that, prior to 30 January 1991, the advantages and disadvantages of both conventional multi-hull catamaran-type vessels and SWATH-type vessels were apparent and known to those in the field. Conventional catamarans were known to be highly efficient with low resistance and capable of high speeds greater than 30 knots. They had broad flat stern sections and were well suited to accommodate large engines, gear boxes and water jets to enable high speed propulsion. In addition, the broad flat stern sections were suitable for loading cargo on and off the stern. One difficulty they suffered, however, was bad seakeeping when operating in exposed waters, which arose from the vertical motion imparted due to the influence of waves. 77 SWATH vessels, on the other hand, had advantages of good seakeeping due to their small water plane area and the ability to move at high speeds (up to about 30 knots). However, SWATH vessels suffered hindrances in the form of limitations on their maximum speed due to high frictional resistance arising from large wetted surface areas. They also had low load stability and involved some engineering complexities, such as difficulty in installing and powering suitable water jet propulsion. As a result of this difficulty with propulsion, they were regarded as unsuitable for use above 30 knots.


case_title: Tidy Tea Ltd v Unilever Australia Ltd (1995) 32 IPR 405


case_title: Ryan v ETSA (No 1) (1987) 47 SASR 220

case_text: Harris Scarfe did not (and subject to the outcome of these proceedings, does not) consider that either the television commercial or the catalogue breached ss 52 or 53(e) of the TP Act. Consequently, neither the development of the Advertising Rule Book, nor its contents can be taken as an admission. It is a sensible process to undertake, after an occurrence about which the ACCC is concerned, and to adapt to its concerns: see eg Ryan v ETSA (No 1) (1987) 47 SASR 220. Nevertheless, it is significant in my view, on the issue of the appropriateness of any orders, if a contravention or contraventions are established, that Harris Scarfe has sought to reinforce the processes which it had in place, and which it had reason to think would protect it from contravention of the TP Act, by the introduction of the Advertising Rule Book and the training associated with it. There is evidence of that training having now been undertaken. Harris Scarfe has also offered, on an open basis, to enter into yet a further s 87B undertaking in a form proposed. That form is responsive to the nature of the contraventions currently asserted in these proceedings. Further, Harris Scarfe has adopted a cooperative approach to the ACCC's inquiries at all times and endeavoured to address those concerns without the need for litigation.


case_outcome: discussed

case_text: proceeding does not attempt to break new ground in the application of ss 52 and 53(e) of the TP Act. The applicable principles are now well established: see eg Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 ( Parkdale ); Taco Company of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136 ; (1982) 42 ALR 177 ( Taco Bell ). Conduct is misleading or deceptive if it induces or is capable of inducing error (to adopt the expression in Harris Scarfe's written submissions). That must of course be understood as applying not in an absolute sense, but in relation to consumers or to a relevant class of consumers. Evidence of members of the public having been misled is not conclusive: Parkdale at 198-9. Of course, the converse is also not necessarily correct. That is, the absence of evidence that members of the public have been misled does not necessarily negate the fact of a contravention having occurred. It has also been held that the words "likely to mislead or deceive" do not add much to the section: Parkdale at 198. In the submissions, nothing was made of those particular words. It is sufficient if there is a real chance that the conduct will mislead or deceive: Global Sportsman Pty Ltd v Mirror Newspapers Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 87. Importantly, whether conduct is misleading or deceptive or is likely to mislead or deceive must be determined in context. In Parkdale it was said at 199: It seems clear enough that consideration must be given to the class of consumers likely to be affected by the conduct. Although it is true, as has often been said, that ordinarily a class of consumers may include the inexperienced as well as the experienced, and the gullible as well as the astute, the section must in my opinion by (sic) regarded as contemplating the effect of the conduct on reasonable members of the class. The heavy burdens which the section creates cannot have been intended to be imposed for the benefit of persons who fail to take reasonable care of their own interests. What is reasonable will or (sic) course depend on all the circumstances. The test is an objective one for the Court upon the whole of the evidence. Not every member of the public needs to have been misled or capable of having been misled for the conduct to be misleading or deceptive. The test is applied to the public, or a relevant section of the public, to whom the representation is made or in relation to whom the conduct is engaged in, including the astute and the gullible, the intelligent and the not so intelligent, the well educated as well as the poorly educated, men and women of various ages pursuing a variety of vocations. See Taco Bell at 202. That passage was referred to with approval in Parkdale at 199 but, as the passage from Parkdale quoted above shows, it is to be measured against reasonable members of the class.


case_text: proceeding does not attempt to break new ground in the application of ss 52 and 53(e) of the TP Act. The applicable principles are now well established: see eg Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 ( Parkdale ); Taco Company of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136 ; (1982) 42 ALR 177 ( Taco Bell ). The test is an objective one for the Court upon the whole of the evidence. Not every member of the public needs to have been misled or capable of having been misled for the conduct to be misleading or deceptive. The test is applied to the public, or a relevant section of the public, to whom the representation is made or in relation to whom the conduct is engaged in, including the astute and the gullible, the intelligent and the not so intelligent, the well educated as well as the poorly educated, men and women of various ages pursuing a variety of vocations. See Taco Bell at 202. That passage was referred to with approval in Parkdale at 199 but, as the passage from Parkdale quoted above shows, it is to be measured against reasonable members of the class. In the submissions, no difference was identified between the application of s 52 and s 53(e) to the relevant conduct. The applicability of s 53(e) is similarly a question of fact to be assessed objectively in the context of the conduct and the surrounding circumstances: Taco Bell at 202.


case_text: is misleading or deceptive if it induces or is capable of inducing error (to adopt the expression in Harris Scarfe's written submissions). That must of course be understood as applying not in an absolute sense, but in relation to consumers or to a relevant class of consumers. Evidence of members of the public having been misled is not conclusive: Parkdale at 198-9. Of course, the converse is also not necessarily correct. That is, the absence of evidence that members of the public have been misled does not necessarily negate the fact of a contravention having occurred. It has also been held that the words "likely to mislead or deceive" do not add much to the section: Parkdale at 198. In the submissions, nothing was made of those particular words. It is sufficient if there is a real chance that the conduct will mislead or deceive: Global Sportsman Pty Ltd v Mirror Newspapers Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 87.


case_text: considerations apply equally to representations by advertising as to other forms of conduct. Whether a representation has been made in advertising material must be assessed not by a particular statement taken in isolation, but by the statement in its context and, where appropriate, in the surrounding circumstances: Trade Practices Commission v Optus Communications Pty Ltd & Optus Mobile Pty Ltd (1996) 64 FCR 326 ( Optus ) at 336-8; Australian Competition and Consumer Commission v Thorn Australia Pty Ltd [2004] FCA 157 at [13] - [14] ; Australian Competition and Consumer Commission v Signature Security Group Pty Ltd [2003] FCA 3 ( Signature ) at [25]-[28]. Where printed advertising is under consideration, it is appropriate to consider not simply the words or images depicted but also their relative emphasis (whether by print size, location, colour or other manner of presentation) to determine whether the asserted representation has been made in its overall context. So, where, as here, particular words or figures are accompanied by an asterisk and the asterisk apparently directs attention to a footnote, it is necessary to do more than treat the whole of the communication as one piece of text. It is necessary to look to the way the asterisk is placed, the size of the footnote relative to the text in the body of the advertisement, and the terms of the footnote: see per Davies J in Trade Practices Commission v QDSV Holdings Pty Ltd (t/as Bush Friends Australia) [1994] FCA 1562 ; (1995) 128 ALR 551 at 559. Whilst, as his Honour says, the ideal is that qualifying words should be in the same sized print as the print which catches the eye, it is not necessary for qualifying print to be in that size to avoid the large print which first catches the eye from conveying a representation without regard to the qualification. See the discussion in Optus at 339-41; Medical Benefits Fund of Australia Ltd v Cassidy (2003) 205 ALR 402 at [35]-[41].


case_text: considerations apply equally to representations by advertising as to other forms of conduct. Whether a representation has been made in advertising material must be assessed not by a particular statement taken in isolation, but by the statement in its context and, where appropriate, in the surrounding circumstances: Trade Practices Commission v Optus Communications Pty Ltd & Optus Mobile Pty Ltd (1996) 64 FCR 326 ( Optus ) at 336-8; Australian Competition and Consumer Commission v Thorn Australia Pty Ltd [2004] FCA 157 at [13] - [14] ; Australian Competition and Consumer Commission v Signature Security Group Pty Ltd [2003] FCA 3 ( Signature ) at [25]-[28].


case_text: considerations apply equally to representations by advertising as to other forms of conduct. Whether a representation has been made in advertising material must be assessed not by a particular statement taken in isolation, but by the statement in its context and, where appropriate, in the surrounding circumstances: Trade Practices Commission v Optus Communications Pty Ltd & Optus Mobile Pty Ltd (1996) 64 FCR 326 ( Optus ) at 336-8; Australian Competition and Consumer Commission v Thorn Australia Pty Ltd [2004] FCA 157 at [13] - [14] ; Australian Competition and Consumer Commission v Signature Security Group Pty Ltd [2003] FCA 3 ( Signature ) at [25]-[28]. I have taken into account the asterisk where it appears, and the footnote text. In that regard, I note what Stone J said in Signature [2003] FCA 3 at [26] in the following terms: I agree with the respondent's submission that George Weston Foods Pty Ltd v Goodman Fielder Ltd (2001) 49 IPR 553 ('the Wonder White case') is authority for the fact that an asterisk can be sufficient to draw the attention of a consumer to a qualification of a representation. That case concerned, inter alia, the packaging of the respondent's bread which declared in large typeface 'Now Twice the Fibre*'. Moore J observed that: "the asterisk is prominent and would be taken to signify some qualification or explanation of the words used. One could expect a consumer interested in the fibre content to seek out the qualification or explanation. Not only is the explanation within 2 cm of the words used on the package (albeit in much smaller type) but it is repeated elsewhere on the packaging." In my view, the asterisk is quite prominent and is sufficient to direct attention to the asterisk at the bottom of each page. The footnote disclaimer accompanied by the asterisk is not hard to find and is not hidden. But the context is clear, by the relative size of the headline and the footnote: the footnote is not to contradict the headline, but to explain or qualify or limit it. If it were simply to contradict the headline, one would expect the footnote to be much more prominent. In my view, the footnote on each page was of limited effect. It said two things: that discounts were off "regular prices"; and that no further discounts apply to catalogue lines. As noted above, the footnote on page 1 of the sale catalogue added that the banner content excluded television, sound, digital cameras and toys (on page 1 only). The corrective advertising sought by the ACCC is said to match the placement of the advertising in the sale catalogue giving rise to the contraventions. In my view, there is no real purpose in making such an order in the present circumstances. The injunctive order will prevent the form of advertising which gave rise to the contraventions. There is no evidence of any consumer having suffered loss as a result of the contravening conduct. There was a significant period after the sale catalogue was published before these proceedings were instituted, and a further period has since elapsed. In those circumstances, it is difficult to see how the proposed corrective advertising would serve any useful purpose: see Hospitals Contribution Fund of Australia Ltd v Switzerland Australia Health Fund Pty Ltd (1987) 78 ALR 483 ; St Lukes Health Insurance v Medical Benefits Funds of Australia [1995] FCA 1314 per Northrop J at [34]; Wizard Mortgage per Merkel J at [27]; Signature [2002] FCA 3.


case_text: the case of television advertising, necessarily the message is conveyed visually with images and in this case printed text and generally with oral text. It is relatively fleeting (although the fleeting impression is often sought to be reinforced by iteration or abridged iteration, sometimes in successive advertisements). Nevertheless, it is still necessary to determine the overall impression of what is conveyed from consideration of all parts of the television presentation to ensure the message is taken in context: Chief Executive Officer, Australian Competition and Consumer Commission v Medical Benefits Fund of Australia Ltd (No 2) [2002] FCA 1097 ( MBF No 2 ) at [45].


case_text: printed advertising is under consideration, it is appropriate to consider not simply the words or images depicted but also their relative emphasis (whether by print size, location, colour or other manner of presentation) to determine whether the asserted representation has been made in its overall context. So, where, as here, particular words or figures are accompanied by an asterisk and the asterisk apparently directs attention to a footnote, it is necessary to do more than treat the whole of the communication as one piece of text. It is necessary to look to the way the asterisk is placed, the size of the footnote relative to the text in the body of the advertisement, and the terms of the footnote: see per Davies J in Trade Practices Commission v QDSV Holdings Pty Ltd (t/as Bush Friends Australia) [1994] FCA 1562 ; (1995) 128 ALR 551 at 559. Whilst, as his Honour says, the ideal is that qualifying words should be in the same sized print as the print which catches the eye, it is not necessary for qualifying print to be in that size to avoid the large print which first catches the eye from conveying a representation without regard to the qualification. See the discussion in Optus at 339-41; Medical Benefits Fund of Australia Ltd v Cassidy (2003) 205 ALR 402 at [35]-[41].


case_text: printed advertising is under consideration, it is appropriate to consider not simply the words or images depicted but also their relative emphasis (whether by print size, location, colour or other manner of presentation) to determine whether the asserted representation has been made in its overall context. So, where, as here, particular words or figures are accompanied by an asterisk and the asterisk apparently directs attention to a footnote, it is necessary to do more than treat the whole of the communication as one piece of text. It is necessary to look to the way the asterisk is placed, the size of the footnote relative to the text in the body of the advertisement, and the terms of the footnote: see per Davies J in Trade Practices Commission v QDSV Holdings Pty Ltd (t/as Bush Friends Australia) [1994] FCA 1562 ; (1995) 128 ALR 551 at 559. Whilst, as his Honour says, the ideal is that qualifying words should be in the same sized print as the print which catches the eye, it is not necessary for qualifying print to be in that size to avoid the large print which first catches the eye from conveying a representation without regard to the qualification. See the discussion in Optus at 339-41; Medical Benefits Fund of Australia Ltd v Cassidy (2003) 205 ALR 402 at [35]-[41]. In Australian Competition and Consumer Commission v Telstra Corporation Limited (ACN 051 775 556) [2007] FCA 2058 , Gordon J summarised the principles concerning the issue of whether corrective advertising should be made. Her Honour said at [4]: Section 86C of [the TP Act] confers power on the Court to make an order for corrective advertising. Corrective advertising may have a number of purposes: (1) to protect the public interest by dispelling an incorrect or false impression that has been created as a result of misleading or deceptive conduct ( Medical Benefits Fund of Australia Ltd v Cassidy [2003] FCAFC 289 ; (2003) 135 FCR 1 at [49] (Full Court) and ACCC v Wizard Mortgage Corporation Ltd (2002) ATPR 41-903 at [27]) especially where all of the misleading or deceptive conduct arose out of advertisements and other public statements and promotions; (2) to alert consumers to the fact of the misleading or deceptive conduct and inform them that they might have some remedy if they relied upon any of the misleading or deceptive conduct: Medical Benefits Fund [2003] FCAFC 289 ; (2003) 135 FCR 1 at [54] ; (3) as an "aid in the enforcement of the primary orders and the prevention of repetition of the contravening conduct": ACCC v Real Estate Institute (WA) Inc (1999) 95 FCR 114 at 133 per French J, cited with approval in Medical Benefits Fund [2003] FCAFC 289 ; (2003) 135 FCR 1 at [51] .