case_text: The evidence established that Ann Boyapati created about half the questions and answers in the works in suit from scratch. Whilst the evidence established that she derived the balance of the questions and answers from third party sources, she used these sources in different ways, selecting, adapting and modifying them to varying degrees to suit her purpose of compiling sets of practice exams that simulated the UMAT. Even where she made minimal modification to a pre-existing question, she exercised skill and judgment in selecting the question and including it in either section 1 or 2 , depending on whether it concerned logical reasoning or interaction skills. There was also a degree of skill and judgment involved in organising the sequence and, to a lesser extent, the number of questions in sections 1 and 2 so as to simulate the UMAT. The practice exams that she created were therefore a product of her skill, judgment and labour, combined with that of Ray and Edward Boyapati to the extent that they contributed to the process. The skill, judgment and labour involved were sufficiently substantial to attract copyright: compare Desktop at 599 per Sackville J. The preparation for, and the creation and development of, the practice exams were not easy tasks and involved some considerable time and effort on the Boyapatis' part: compare Interlego AG v Tyco Industries Inc [1988] UKPC 3 ; [1989] AC 217 at 263.


case_outcome: cited

case_text: The respondents invited me to infer from the evidence that the third party sources would attract copyright since it might be inferred that the sources had been produced in the last fifty years. The respondents cited Desktop and Autodesk Inc v Dyason [1992] HCA 2 ; (1992) 173 CLR 330 in support of the proposition that there could be no originality in a work that derived "from other copyright sources without permission (or acknowledgement)". This was, so they said, due to a lack of originality. These two cases concerned copyright in factual information and, accordingly, are not directly in point in the present case. In any event, I would reject the respondents' basic submission on two bases. First, I accept that, as the applicants submitted, it would be a question of fact in each case as to whether the applicants had infringed copyright in any particular pre-existing work. Secondly, even if copyright in a pre-existing work was infringed, the proposition for which the respondents contend is unsupported by the authorities and authors learned in the field of copyright.


case_text: In Copyright and Designs (Butterworths, Australia, 2004) at 10,092-10,113 [10,055], James Lahore and Warwick A Rothnie state: Copyright can subsist in a selection of material such as poems, short stories or letters, although the material selected is in the public domain. The copyright is in the selection, not in the component parts of it, and the originality of the work lies in the labour, skill, and discrimination of the author in putting together the material. ... The selection is a new work quite separate from the works selected. Copyright will subsist, for example, in Palgrave's Golden Treasury of Songs and Lyrics although the songs and lyrics may themselves be in the public domain ... The selection by Palgrave was the subject of copyright as a work in itself and irrespective of whether or not copyright subsisted in the individual items selected. ... In the case of compilations that consist entirely of existing material the originality may be found in the selection alone, that is, in the skill labour and judgment involved in making the selection. There are numerous authorities that can be cited in support of the statements in this passage: see, for example, Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273 (" Ladbroke (Football) Ltd ") at 277-278 per Lord Reid, 286-287 per Lord Hodson, 289-290 per Lord Devlin, and 292-293 per Lord Pearce. See also S Ricketson and C Creswell, The Law of Intellectual Property: Copyright, Designs & Confidential Information (Lawbook Co, 2 nd ed (revised) 2002) at 7-2064 [7.100].


case_text: The judgment of Drummond J in A-One Accessory Imports Pty Ltd v Off Road Imports Pty Ltd (1996) 34 IPR 306 at 316 is particularly helpful. The applicant claimed to be the copyright owner in the literary work that was its motorcycle parts catalogue, as updated from time to time. It alleged that the respondents had infringed its copyright by producing the respondents' 1993 parts catalogue. A major issue in the case was whether the applicant's catalogue was the product of copying other catalogues, with the result, so the respondents argued, that the applicant's catalogue was not the subject of copyright. Drummond J rejected this argument. His Honour observed (at 316) that "the question is whether the compilation, looked at as an entity, is original: it is not proper to dissect the work into its parts, and by determining that the individual parts lack originality, to deny originality to the whole work". He concluded that the original version of the applicant's catalogue infringed the copyright in an earlier work. His Honour went on to say, however, that: But, in my opinion, the fact that the 1986 A-One catalogue may be an infringement of the copyright in the 1984 Phoenix catalogue does not prevent A-One having copyright in its own 1986 catalogue. I do not read Ladbroke (Football) Ltd ... as limiting the proposition that, so far as compilations that consist of or include existing material are concerned, originality for the purposes of copyright can be found in the work of selection, to compilations consisting only of material that is not the subject of copyright. In that case, Lord Pearce, in the course of dealing with the question whether the defendants had infringed the plaintiff's copyright in their football coupon by reproducing a substantial part of it, said, at 293: The reproduction of a part which by itself has not originality will not normally be a substantial part of the copyright and therefore will not be protected. For that which would not attract copyright except by reason of its collocation will, when robbed of that collocation, not be a substantial part of the copyright and therefore the courts will not hold its reproduction to be an infringement. It is this, I think, which is meant by one or two judicial observations that 'there is no copyright' in some unoriginal part of a whole that is copyright. They afford no justification, in my view, for holding that one starts the inquiry as to whether copyright exists by dissecting the compilation into component parts instead of starting it by regarding the compilation as a whole and seeing whether the whole has copyright. It is when one is debating whether the part reproduced is substantial that one considers the pirated portion on its own. Although Lord Pearce was dealing with the question of infringement where the copyright work was composed of non-original and original material, his Lordship, in the latter part of this statement, in my opinion, clearly accepted that copyright can exist in a compilation even though the compilation consists of partly pirated material and partly non-pirated material. This would seem to follow logically from what the House of Lords had to say in Ladbroke (Football) Ltd to the effect that, so far as compilations of existing material are concerned, originality sufficient to attract copyright in a compilation can be found entirely in the work of selecting the material to be included in the compilation, as opposed to the work of reducing those selections to written form. 54 As I have already found, copyright in the works in suit rests with the applicants. Dallas Gibson and RMC uploaded the works in suit onto the Icarus College website as part of their own course materials for their own students. These infringing copies are deemed, by virtue of s 116 of the Copyright Act , to be the property of the copyright owners, being the Boyapatis: see A-One Accessory Imports Pty Ltd v Off Road Imports Pty Ltd (1996) 34 IPR 332. A notice on the Icarus College website stated that it was the owner of the copyright in the materials published on the website. When the respondents made the works in suit available to their students via the Icarus College website, they treated the infringing copies as their own and acted in a manner inconsistent with the applicants' rights as deemed owners and, accordingly, converted them: see Caxton Publishing Co Ltd v Sutherland Publishing Co Ltd [1939] AC 178 at 189 per Lord Russell of Killowen and 202 per Lord Porter..


case_text: Drummond J also referred to Redwood Music Ltd v Chappell & Co Ltd [1982] RPC 109 at 120 per Goff J and Warwick Film Productions Ltd v Eisinger [1969] 1 Ch 508 at 524-525 per Plowman J, both of which supported the proposition that a work might be an original work in which copyright subsisted, even though infringing copyright in an earlier work because it is in part a copy of a substantial part of the earlier copyright work.


case_title: Warwick Film Productions Ltd v Eisinger [1969] 1 Ch 508


case_outcome: referred to

case_text: The respondents also submitted that the evidence showed that it was common for providers of preparation courses for the UMAT and the like to reproduce material from other copyright sources without permission or acknowledgment. Relying on Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55 ; (2006) 229 CLR 577 (" Concrete ") at 595-596 per Kirby and Crennan JJ, they argued that this "might be said to give rise to an implied licence or right based on industry practice to 'borrow' or reproduce such material (even though it is accepted that there was no direct or other contractual relationship between the applicants and the respondents in relation to the material)". The relevant passage in Concrete referred to the principle established in cases concerned with architectural drawings and plans, that a licence may be implied where architects, artists and other persons prepare written material on the basis that it should be used in a particular manner for a particular purpose. I do not consider that there is any basis for applying this principle to the subject-matter of this case, even if the evidence were as the respondents contended. The evidence supports the proposition that practice exams are written on the basis that they should be used by students enrolling in the providers' courses for the purpose of preparing for the UMAT and not for the purpose of assisting other commercial providers to make their products. 51 It follows from the foregoing that I would reject the respondents' submissions on lack of originality. 52 In view of the conclusions I have reached above, it is unnecessary to consider the applicants' claim in so far as it was based on s 38 of the Copyright Act or involved an alleged breach of moral rights. In any event, at trial, the applicants did not strenuously press these alternative bases for the respondents' liability.


case_text: The applicants also relied on s 116 of the Copyright Act . This provision treats a copyright owner as if the copyright owner were also the owner of the infringing articles: see Polygram Pty Ltd v Golden Editions Pty Ltd (No 2) (1997) 38 IPR 451 (" Polygram ") per Lockhart J. Section 116 is in the following terms: (1) The owner of the copyright in a work or other subject-matter may bring an action for conversion or detention in relation to: (a) an infringing copy; or (b) a device (including a circumvention device) used or intended to be used for making infringing copies. (1A) In an action for conversion or detention, a court may grant to the owner of the copyright all or any of the remedies that are available in such an action as if: (a) the owner of the copyright had been the owner of the infringing copy since the time the copy was made; or (b) the owner of the copyright had been the owner of the device since the time when it was used or intended to be used for making infringing copies. (1B) Any relief granted by a court in an action for conversion or detention is in addition to any relief that the court may grant under section 115. (1C) A court is not to grant any relief to the owner of the copyright in an action for conversion or detention if the relief that the court has granted or proposes to grant under section 115 is, in the opinion of the court, a sufficient remedy. (1D) In deciding whether to grant relief in an action for conversion or detention and in assessing the amount of damages payable, the court may have regard to the following: (a) the expenses incurred by the defendant, being a person who marketed or otherwise dealt with the infringing copy, in manufacturing or acquiring the infringing copy; (b) whether the expenses were incurred before or after the infringing copy was sold or otherwise disposed of by the defendant; (c) any other matter that the court considers relevant. (1E) If the infringing copy is an article of which only part consists of material that infringes copyright, the court, in deciding whether to grant relief and in assessing the amount of damages payable, may also have regard to the following: (a) the importance to the market value of the article of the material that infringes the copyright; (b) the proportion the material that infringes copyright bears to the article; (c) the extent to which the material that infringes copyright may be separated from the article. (2) A plaintiff is not entitled by virtue of this section to any damages or to any other pecuniary remedy, other than costs, if it is established that, at the time of the conversion or detention: (a) the defendant was not aware, and had no reasonable grounds for suspecting, that copyright subsisted in the work or other subject-matter to which the action relates; (b) where the articles converted or detained were infringing copies the defendant believed, and had reasonable grounds for believing, that they were not infringing copies; or (c) where an article converted or detained was a device used or intended to be used for making articles the defendant believed, and had reasonable grounds for believing, that the articles so made or intended to be made were not or would not be, as the case may be, infringing copies. 56 Section 116(1B) provides that the relief that the court grants for conversion is in addition to any relief that the court may grant under s 115 of the Copyright Act . The grant of relief for conversion is, however, subject to the proviso in 116(1C) that the "court is not to grant any relief to the owner of the copyright in an action for conversion ... if the relief that the court ... proposes to grant under section 115 is, in the opinion of the court, a sufficient remedy". In deciding whether to grant relief for conversion and in assessing the amount of damages payable, the court's attention is directed to the factors in s 116(1D) of the Copyright Act , to which it may have regard: see generally Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228 ; (2005) 64 IPR 18 at 34 per Jacobson J and Polygram (1997) 38 IPR 451 at 453-454 per Lockhart J. 57 As indicated above, the applicants have made out their case respecting the conversion of infringing copies by the respondents. Neither the applicants nor the respondents have yet made submissions, however, concerning the application of ss 116(1C) and (1D) of the Copyright Act . This may be on account of the Court's order of 10 July 2006, which deferred any questions concerning quantum of damages to a later stage in the proceeding. Accordingly, I propose to invite the parties to make such submissions as they consider appropriate on the application of ss 116(1C) and (1D) of the Copyright Act. 58 The respondents rely on ss 115(3) and 116(2), or what is sometimes referred to as the "innocent infringement" defence. In the present context, both provisions raise essentially the same issues.


case_text: As I have already found, copyright in the works in suit rests with the applicants. Dallas Gibson and RMC uploaded the works in suit onto the Icarus College website as part of their own course materials for their own students. These infringing copies are deemed, by virtue of s 116 of the Copyright Act , to be the property of the copyright owners, being the Boyapatis: see A-One Accessory Imports Pty Ltd v Off Road Imports Pty Ltd (1996) 34 IPR 332. A notice on the Icarus College website stated that it was the owner of the copyright in the materials published on the website. When the respondents made the works in suit available to their students via the Icarus College website, they treated the infringing copies as their own and acted in a manner inconsistent with the applicants' rights as deemed owners and, accordingly, converted them: see Caxton Publishing Co Ltd v Sutherland Publishing Co Ltd [1939] AC 178 at 189 per Lord Russell of Killowen and 202 per Lord Porter..


case_title: Birdseye v Sheahan (2002) 196 ALR 598

case_text: The applicants contended, and I accept, that Dallas Gibson's bankruptcy created a fundamental impediment to this claim. This was because Dallas Gibson's bankruptcy commenced on 18 October 2000 and ended on 19 October 2003: see Bankruptcy Act 1966 (Cth) ("Bankruptcy Act"), s 149(4). It is not entirely clear whether, on Dallas Gibson's version of events, he claimed to have acquired copyright in the cross-claim works in suit before or after his bankruptcy in October 2000. As it happens, nothing particularly turns on this. Section 58(1)(a) of the Bankruptcy Act vests the property of the bankrupt in the trustee when he or she becomes a bankrupt. Section 58(1)(b) vests after-acquired property (as defined in s 58(6)) of the bankrupt after the date of bankruptcy in the trustee as soon as the acquisition or devolution occurs. Section 58(6) provides that, in this context, "after-acquired property" in relation to a bankrupt means "property that is acquired by, or devolves on, the bankrupt on or after the date of the bankruptcy, being property that is divisible amongst the creditors of the bankrupt". Section 116 specifies property that is divisible amongst the creditors of the bankrupt. The term "property" for the purposes of ss 58 and 116 is defined broadly in s 5 of the Bankruptcy Act to mean "real or personal property of every description, whether situate in Australia or elsewhere, and includes any estate, interest or profit, whether present or future, vested or contingent, arising out of or incident to any such real or personal property". This definition encompasses copyright, which s 196(1) of the Copyright Act recognises as a form of personal property: see also Birdseye v Sheahan (2002) 196 ALR 598 at 607 [52] per Carr J. Copyright does not fall within one of the classes of enumerated exceptions in s 116 of the Bankruptcy Act and the Bankruptcy Regulations 1966 (Cth). Accordingly, copyright in the cross-claim works in suit (if it existed) vested in the trustee at the time Dallas Gibson became a bankrupt or as after-acquired property. As at September 2003, Dallas Gibson was incapable of assigning the proprietary interest in the cross-claim works in suit to RMC. Notwithstanding that Dallas Gibson sought to make an assignment of copyright to RMC at this date, RMC in fact acquired nothing. It follows that the purported assignment of the copyright in September 2003 from Dallas Gibson, whilst a bankrupt, was ineffective.


case_text: It seems probable (and it was not suggested otherwise) that Dallas Gibson's bankruptcy ended on 19 October 2003 pursuant to s 149(4) of the Bankruptcy Act , as a consequence of automatic discharge consequent on the expiration of three years from the date he filed his statement of affairs. Section 153 sets out the effect of an automatic discharge. This provision does not, however, have the effect of revesting in the bankrupt the property vested in the trustee: see Official Receiver in Bankruptcy v Schultz [1990] HCA 45 ; (1990) 170 CLR 306 at 320 per Mason CJ, Brennan, Deane, Dawson and Gaudron JJ; Daemar v Industrial Commission of NSW (No 2) (1990) 99 ALR 789 at 795-796 per Kirby P, Clarke and Meagher JJA agreeing; and Gosden v Dixon (1992) 107 ALR 329 at 331 per McLelland J. There was no evidence that the trustee in bankruptcy had assigned or transferred the copyright to Dallas Gibson since the discharge of his bankruptcy. Assuming that his discharge was by force of s 149(4) , the copyright continued to vest in the trustee in bankruptcy, and neither Dallas Gibson nor RMC is entitled to bring this part of the cross-claim.


case_title: Daemar v Industrial Commission of NSW (No 2) (1990) 99 ALR 789


case_title: Gosden v Dixon (1992) 107 ALR 329


case_text: In any event, in cross-examination, Ann Boyapati stated, and I accept, that she was not responsible for organising sponsorship or for the posting of the logos of third party organisations on the MedEntry website. She had no knowledge of any relevant matter: see Medical Benefits Fund of Australia Ltd v Cassidy [2002] FCA 1097 ; (2003) 205 ALR 402. Her father corroborated her evidence in this regard, saying that these matters were his responsibility. Accordingly, the claim made against Ann Boyapati under s 75B of the TPA that she was knowingly concerned in, or party to, contravening conduct of MedEntry or Anzie in connection with the representations as to third party endorsement must fail. 137 When MedEntry (and not Anzie) owned the website, Ray Boyapati was named as the contact person. He gave instructions for the work done on the site and posted the relevant logos on the MedEntry website. His evidence was, and I accept, that his father sent him the material and he put it up on the site. He said that he was aware of the posted material and that he had assumed the relevant organisations had given their consent, without further inquiry. I accept that he had no knowledge of any relevant matter. The claim made against him under s 75B of the TPA must fail. 138 For the reasons already stated, the claim made against Edward Boyapati must also fail. Further, as I have said, I accept that, if there had been any contravention of the TPA, this would have been as a result of an inadvertent mistake on the part of Edward Boyapati. There was no evidence that he knew of any matter that would have enabled any representation to be characterised as false. Accordingly, the claim made against him under s 75B of the TPA must fail.


case_text: As Stephen J said (Jacobs J agreeing) in Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 at 229-230: There is a price to be paid for the advantages flowing from the possession of an eloquently descriptive trade name. Because it is descriptive it is equally applicable to any business of a like kind, its very descriptiveness ensures that it is not distinctive of any particular business and hence its application to other like businesses will not ordinarily mislead the public. In cases of passing off, where it is the wrongful appropriation of the reputation of another or that of his goods is in question, a plaintiff which uses descriptive words in its trade name will find that quite small differences in a competitor's trade name will render the latter immune from action ... The risk of confusion must be accepted, to do otherwise is to give to one who appropriates to himself descriptive words an unfair monopoly in those words and might even deter others from pursuing the occupation which the words describe. If this be so in the case of passing off actions the case of s 52(1) , concerned only with the interests of third parties, is a fortiori. To allow this section of the [TPA] to be used as an instrument for the creation of any monopoly in descriptive names would be to mock the manifest intent of the legislation. Given that a name is no more than merely descriptive of a particular type of business, its use by others who carry on the same type of business does not deceive or mislead as to the nature of the business described ... Evidence of confusion in the minds of members of the public is not evidence that the use of the Hornsby Centre's name is itself misleading or deceptive but rather that its intrusion into the field originally occupied by the Sydney Centre has, naturally enough, caused a degree of confusion in the public mind. This is not, however, anything at which s 52(1) is directed. Since the cross-claimants' use of the name "Medical Entrance" is essentially descriptive, they bore a heavy onus to show that the name had gained a secondary meaning referring specifically to the goods and services of their business. 143 The evidence established that neither of the cross-claimants had traded under the name "Medical Entrance" alone. The evidence showed that Dallas Gibson (from 2000) and RMC (from September 2003) gave various names to their business and business products, including: (1) UMAT Superprep Courses; (2) Dallas Tertiary Prep Skills; (3) Dallas Medical Entrance; (4) Dallas Super Prep (according to Dallas Gibson, prior to 2004); (5) Tertiary Prep Skills (according to Dallas, this was an "early" usage); (6) Icarus College (from around March 2004); and (7) Dallas SuperKeenEye. There was little other evidence relating to the reputation of the cross-claimants in the use of the name "Medical Entrance": see also [144]-[145] below.


case_text: Since the cross-claimants used the words "Medical Entrance" descriptively and did not, in any event, trade under these words alone, I reject the proposition that the words "Medical Entrance" had become relevantly associated with them by the end of 2003. When the cross-respondents began their business in early 2004, the cross-claimants did not have a sufficient reputation in the name "Medical Entrance" to support their passing off claim. The fact that "Medical Entrance" was used as the domain name for their website did not establish that they had any reputation in the name. This is not a case at all like British Telecommunications PLC v One In A Million Ltd (1998) 42 IPR 289 or CSR Ltd v Resource Capital Australia Pty Ltd [2003] FCA 279 ; (2003) 128 FCR 408 , to both of which the cross-claimants referred. Further, there was in the circumstances no basis for the cross-claimants' assertion that, by their adoption of the name "MedEntry", the cross-respondents misrepresented that their business was the same as, or relevantly associated with, the cross-claimants' business. Nor was there any sufficient basis for the claim that the cross-respondents misrepresented that the cross-claimants had sponsored or approved MedEntry and Anzie or their goods and services in breach of ss 52 , 53 (c) or 53 (d) of the TPA.


case_title: CSR Ltd v Resource Capital Australia Pty Ltd [2003] FCA 279 ; (2003) 128 FCR 408


case_text: The Court has associated jurisdiction with respect to the defamation cross-claim: see Boyapati v Rockefeller Management Corporation [2006] FCA 897. The challenged publications were made across the Internet and, therefore, throughout Australia: see Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 at 606-607 per Gleeson CJ, McHugh, Gummow and Hayne JJ and 610 per Gaudron J. The Defamation Act 2005 , which came into force for all Australian States on 1 January 2006, does not apply to this proceeding. (In the Northern Territory, the legislation came into force on 26 April 2006. In the Australian Capital Territory, the uniform defamation laws are contained in Chapter 9 of the Civil Law (Wrongs) Act 2002 (ACT) by virtue of the commencement of the Civil Law (Wrongs) Amendment Act 2006 (ACT) on 22 February 2006.)


case_title: Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575


case_outcome: applied

case_text: At common law, the cross-claimants have the burden of proving on the balance of probabilities that: (a) the words were published of and concerning them; (b) the words were in a permanent form; (c) the words were published to a third person; (d) the words were published by the named persons as alleged; and (e) the words were defamatory of them. See Li v The Herald & Weekly Times Pty Ltd [2007] VSC 109 per Gillard J. The cross-claimants are entitled to recover damages if they establish these matters. Damages are presumed, and they are not required to prove actual damage. They have, however, also pleaded economic loss. This must be proved. 156 Dallas Gibson may of course bring an action for defamation. In all jurisdictions other than New South Wales, a trading corporation such as RMC may sue for defamation in so far as the imputations attack its commercial reputation and can generally be shown to have caused some financial harm: see RP Balkin and JLR Davis, Law of Torts (LexisNexis Butterworths Australia, 3 rd ed, 2004) ("Balkin and Davis") at p 563-564. Section 8A of the Defamation Act 1974 (NSW) denied a cause of action in defamation to a corporation other than one that employed less than 10 employees and had no subsidiaries.


case_text: Whether or not words are defamatory is a question of fact. This question of fact in turn depends on (1) what the words mean; and (2) whether the imputations are defamatory. The intention of the alleged defamer is irrelevant to the question of liability. In Reader's Digest Services Pty Ltd v Lamb [1982] HCA 4 ; (1982) 150 CLR 500 at 505-506, Brennan J, for the Court, said: Where no true innuendo is pleaded and the published words clearly related to the plaintiff, the issue of libel or no libel can be determined by asking whether hypothetical referees Lord Selborne's reasonable men ... or Lord Atkin's right thinking members of society generally ... or Lord Reid's ordinary men not avid for scandal ... would understand the published words in a defamatory sense. That simple question embraces two elements of the cause of action: the meaning of the words used (the imputation) and the defamatory character of the imputation. Whether the alleged libel is established depends upon the understanding of the hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made. They are taken to share a moral or social standard by which to judge the defamatory character of that imputation ... being a standard common to society generally. Consideration must be given to what the ordinary reasonable reader would think when reading the publication over the Internet. This is in part a matter of impression. The ordinary reasonable reader relies on his or her own knowledge and experience of human affairs: see Mirror Newspapers Ltd v Harrison [1982] HCA 50 ; (1982) 149 CLR 293 at 301 per Mason J.


case_title: Mirror Newspapers Ltd v Harrison [1982] HCA 50 ; (1982) 149 CLR 293


case_title: Sim v Stretch [1936] 2 All ER 1237

case_text: Whether or not words are defamatory depends on whether the words lower the defamed in the estimation of right-thinking people generally. In Sim v Stretch [1936] 2 All ER 1237 at 1240, Lord Atkin stated the well-accepted test in the following passage: The question, then, is whether the words in their ordinary signification are capable of being defamatory. Judges and textbook writers alike have found difficulty in defining with precision the word 'defamatory'. The conventional phrase exposing the plaintiff to hatred, ridicule and contempt is probably too narrow. The question is complicated by having to consider the person or class of persons whose reaction to the publication is the test of the wrongful character of the words used. I do not intend to ask your Lordships to lay down a formal definition, but after collating the opinions of many authorities I propose in the present case the test: would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally? 159 In considering whether words are defamatory, the context in which the words are used must be considered. The whole publication must be considered. The circumstances of the publication, the words used and the context may all have an effect on the imputation conveyed to the reader. Balkin and Davis stated at p 558: Whether statements which have a clearly disparaging meaning are to be found defamatory depends very much on the context in which they are made, and the audience to whom they are made. The words are taken to have their ordinary and natural meaning, which is that meaning that is reasonably understood by the ordinary reasonable reader using his or her knowledge and experience of human affairs. 160 A person need not be referred to by name to be defamed. It is sufficient if some people, proved to have knowledge of extrinsic circumstances, might reasonably believe that the statement referred to him or her: see Balkin and Davis at 564-565. They added at 565: Identification of the plaintiff as the person referred to may come from others' knowledge of extrinsic facts. Thus, a statement that an (unnamed) business college has misled the public as to the efficacy of its courses will be defamatory on proof that some readers thereof understood the statement to refer to a particular college. (References omitted.) An action for defamation will lie only where the matter is made known to someone other than the person claiming to be defamed.


case_text: At common law, it is a complete defence to show that the words complained of are true in substance and effect: see Howden v 'Truth' and 'Sportsman' Ltd [1937] HCA 74 ; (1937) 58 CLR 416 at 424-425 per Evatt J. At the relevant time, this defence was available in South Australia, Victoria, Western Australia and the Northern Territory: see Balkin and Davis, at p 574. In other jurisdictions, it had also to be shown that the publication of the imputation was for the public benefit or, in New South Wales, that it related to a matter of public interest: see Balkin and Davis, at p 574. The cross-respondents invoked these defences. They also invoked "qualified privilege" as a defence. In Toogood v Spyring (1834) 1 C M & R 181 at 193; [1834] EngR 363 ; 149 ER 1044 at 1049-1050, Parke B said that a person would be liable for a false and defamatory publication unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. ... If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits. A person whose good name is brought into question is granted qualified privilege in making a response provided the person to whom the response is made is "proper to receive it": see Mowlds v Fergusson [1940] HCA 38 ; (1946) 64 CLR 206 at 214 per Dixon J. As Dixon J said, at 214-215, however: Where the defamatory matter is published in self-defence or in defence or protection of an interest or by way of vindication against an imputation or attack, the conception of a corresponding duty or interest in the recipient must be very widely interpreted. The response must be proportionate to the original attack.


case_title: Mowlds v Fergusson [1940] HCA 38 ; (1946) 64 CLR 206


case_outcome: considered

case_text: Section 46(1) of the ROC Act empowers a party to appeal to this Court, on a question of law, from a determination of the Tribunal. The appeal for which s 46(1) provides is a proceeding that comes before the Court for hearing and determination in the exercise of its original, rather than its appellate, jurisdiction: see Employers First v Tolhurst Capital Ltd [2005] FCA 616 ; (2005) 143 FCR 356 (' Employers First ') at 357-358 [1] per Branson J. The subject matter of an appeal brought pursuant to s 46(1) is the question or questions of law on which the appeal is brought: Employers First at 357-358 [1]; and see generally TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation (1988) 19 ATR 1067 at 1070 per Gummow J. 39 Section 14(1) is directed to the nature of the trustee's decision, whereas s 14(6) is concerned with the nature of the complaint: see Employers First at 372-373 [74]. For the Tribunal to have jurisdiction, the decision complained of before the Tribunal must be one made 'in relation to a particular member' and the complaint must not 'relate to the management of a fund as a whole'. The Tribunal determined that it had jurisdiction on the basis that 'the Complaints relate to whether the [applicant] has acted appropriately in relation to these [respondents'] accounts, not to members' accounts generally'. The applicant contends that, by mistakenly asserting the existence of its jurisdiction, the Tribunal erred in law: Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 177. 43 The applicant also submitted that the Complaints were excluded from the Tribunal's jurisdiction by s 14(6), as they were not relevantly distinguishable from a complaint concerning the investment policy being adopted by the trustee of a fund. It relied on the statement by Branson J in Employers First at 372-373 [74] that '[a] clear example of a complaint that relates to the management of a fund as a whole would be a complaint concerning the investment policy being adopted by the trustee of the fund'. 44 For the reasons set out below, I am satisfied that the Tribunal had jurisdiction to make the Determinations. 45 Most, if not all, of the applicant's arguments on jurisdiction depend on the actions it took, adversely to the respondents, being characterised as a single decision in respect of all members of Division C of the Fund to set an interest rate applicable to members' account balances. The applicant denies that any implementation decisions were taken in relation to each member's account balance; rather, it asserts that the interest rate was applied to each member's account balance by a process more accurately described as an administrative or mechanical function. The necessary factual or evidentiary basis for these contentions is entirely absent. 53 These conclusions are supported by the analysis in Employers First . In Employers First , the trustee issued member statements to a particular member, Mr Barratt, for the years ended 30 June 1995, 1996 and 1997 in which it calculated his retirement benefit by aggregating the defined benefit calculated under r 4 of the trust deed and the superannuation guarantee contributions that had been paid in respect of his membership of the fund. However, on Mr Barratt's retirement, the trustee notified him that the only lump sum retirement benefit to which he was entitled was that calculated under r 4 of the trust deed. In the course of her reasons, Branson J concluded that the retirement benefits to which Mr Barratt was entitled were only those prescribed by r 4: at 370 [60]-[61]. But, in the result, Branson J remitted the matter to the Tribunal for rehearing and determination on the ground that Mr Barratt had been denied procedural fairness in the course of the review process. 54 Branson J held that the Tribunal's jurisdiction was not excluded by s 14(6). Her Honour said at 372-373 [74]-[76]: 'It appears that there is no judicial authority on the proper interpretation of s 14(6) of the [ROC Act]. It seems clear, however, that the subsection is concerned with the nature of the complaint made under the section, rather than with the nature of the determination reached by the Tribunal on that complaint. A clear example of a complaint that relates to the management of a fund as a whole would be a complaint concerning the investment policy being adopted by the trustee of the fund. In this case Mr Barratt complained about the amount of the lump sum retirement benefit to which the Trustee had decided that he was entitled on his retirement. Mr Barratt founded his complaint upon the Member Statements. The Member Statements were concerned with his particular entitlement under the Plan. I conclude that, on its proper construction, s 14(6) of the [ROC Act] did not prohibit the Tribunal from dealing with Mr Barratt's complaint. It is not necessary for me to hazard a comprehensive definition of a complaint that relates to the management of a fund as a whole within the meaning of s 14(6) of the [ROC Act].' 55 Before me, the applicant submitted that Employers First is distinguishable. Alternatively, it submitted that I should find that Branson J's observations concerning s 14(6) were wrong or need not be followed on the grounds that they were unnecessary to her decision. I reject these submissions. 56 According to the applicant, Employers First can be distinguished on the basis that the gravamen of Mr Barratt's complaint was that he was entitled to receive a lump sum retirement benefit that was consistent with the information previously provided to him in member statements (at 364 [35]); whereas the gravamen of the respondents' Complaints is that the word 'interest' in cl C.4.10 of the Deed bears a particular meaning such that it can only be positive. The applicant also submitted that it is unrealistic to characterise each respondent's Complaint as one relating to the debit applied to his or her individual account. 57 In my opinion, the supposed distinctions are fallacious. Each respondent sought to review the applicant's decision to reduce his or her benefits by an amount that was variously said to be a negative investment return or negative interest. Each such decision related to the particular member and to his or her entitlements. That position is not altered or denied by the fact that the respondents argue that the applicant had no power under cl C.4.10 of the Deed to effect the debits to their accounts, or to apply a negative investment return or negative crediting rate to all deferred benefit members. Like Mr Barratt, the respondents complain about the amount of their benefits, as notified by member statements. More particularly, they complain that the applicant unlawfully reduced the amount of their benefits. 58 The contention that Branson J's observations need not be followed because they were obiter dicta is unsound. Her Honour's conclusions concerning jurisdiction were integral to her decision and to the order she made remitting the matter back to the Tribunal for hearing and determination according to law. 59 Another reason why s 14(6) is inapplicable is that, in my opinion, a Complaint that the Deed has been contravened in a way that directly and adversely affects the financial position of the particular member lodging the Complaint cannot be described as a complaint about 'the management of a fund as a whole'. This is so even if it be assumed that the Complaints should be characterised in the way the applicant contends, ie as relating only to the question whether the debiting of interest contravened cl C.4.10 of the Deed. If the Complaints are upheld and if the applicant has in fact debited interest in contravention of cl C.4.10 of the Deed, that action could hardly be described as one relating to the management of the Fund as a whole. The Complaints are substantive and genuine and the applicant did not suggest otherwise. It follows, in my view, that the nature of the Complaints is such that they fall squarely within the Tribunal's jurisdiction. 60 The Tribunal concluded that the word 'interest' in cl C.4.10 of the Deed does not, on its proper construction, contemplate 'negative interest'. It was common ground that this construction involves a question of law.


case_text: Section 46(1) of the ROC Act empowers a party to appeal to this Court, on a question of law, from a determination of the Tribunal. The appeal for which s 46(1) provides is a proceeding that comes before the Court for hearing and determination in the exercise of its original, rather than its appellate, jurisdiction: see Employers First v Tolhurst Capital Ltd [2005] FCA 616 ; (2005) 143 FCR 356 (' Employers First ') at 357-358 [1] per Branson J. The subject matter of an appeal brought pursuant to s 46(1) is the question or questions of law on which the appeal is brought: Employers First at 357-358 [1]; and see generally TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation (1988) 19 ATR 1067 at 1070 per Gummow J.


case_text: Each respondent lodged a complaint ('the Complaints') with the Tribunal pursuant to s 14(2) of the ROC Act, which allows a member of a regulated superannuation fund to complain to the Tribunal that a decision made by the trustee of that fund is unfair or unreasonable. The role of the Tribunal in each case was to decide whether the applicant's decision to reduce the deferred benefit accounts was fair and reasonable in the circumstances: see Alcoa of Australia Retirement Plan Pty Ltd v Thompson [2002] FCA 256 ; (2002) 116 FCR 139 at 149-150 [45] - [51] per RD Nicholson J; and Haematite Pty Ltd v Ristevski (2002) 189 ALR 685 at 690-692 [14]-[20] per Goldberg J. 'Unreasonable' and 'unfair' are words of broad content, and should not be unduly restricted by using synonyms and definitions: see National Mutual Life Association of Australia Ltd v Campbell [2000] FCA 852 ; (2000) 99 FCR 562 (' National Mutual Life Association ') at 571 [36] per Black CJ, Emmett and Hely JJ.


case_title: Haematite Pty Ltd v Ristevski (2002) 189 ALR 685


case_text: Each respondent lodged a complaint ('the Complaints') with the Tribunal pursuant to s 14(2) of the ROC Act, which allows a member of a regulated superannuation fund to complain to the Tribunal that a decision made by the trustee of that fund is unfair or unreasonable. The role of the Tribunal in each case was to decide whether the applicant's decision to reduce the deferred benefit accounts was fair and reasonable in the circumstances: see Alcoa of Australia Retirement Plan Pty Ltd v Thompson [2002] FCA 256 ; (2002) 116 FCR 139 at 149-150 [45] - [51] per RD Nicholson J; and Haematite Pty Ltd v Ristevski (2002) 189 ALR 685 at 690-692 [14]-[20] per Goldberg J. 'Unreasonable' and 'unfair' are words of broad content, and should not be unduly restricted by using synonyms and definitions: see National Mutual Life Association of Australia Ltd v Campbell [2000] FCA 852 ; (2000) 99 FCR 562 (' National Mutual Life Association ') at 571 [36] per Black CJ, Emmett and Hely JJ. 32 Section 37(1) of the ROC Act gives the Tribunal, for the purpose of reviewing a decision of the trustee of a fund, all the powers, obligations and discretions that are conferred on the trustee. Under s 37(3), the Tribunal has the power to affirm, remit, vary or set aside the decision under review. However, its power to do so is not at large. First, pursuant to s 37(4), the Tribunal's power under s 37(3) may only be exercised for the purpose of placing the member as nearly as practicable in such a position that the unfairness or unreasonableness caused by the decision of the trustee of the fund no longer exists: see National Mutual Life Association at 566 [16]. Secondly, by virtue of s 37(5), the Tribunal must not do anything under s 37(3) that would be contrary to law or to the governing rules of the fund concerned. Thirdly, in accordance with s 37(6), the Tribunal must affirm the decision if it is satisfied that the decision, in its operation in relation the member bringing the complaint, was fair and reasonable in the circumstances. 33 The Tribunal made Determinations pursuant to s 37(3) of the ROC Act in relation to the Complaints that: (a) the Complaints related only to whether the applicant treated the respondents fairly and reasonably and were therefore within the Tribunal's jurisdiction; (b) the decision of the applicant was unfair and unreasonable in its operation in relation to the respondents in the circumstances; and (c) the decision under review would be set aside and the Tribunal would substitute its own decision for that of the applicant, namely that the applicant repay to the respondents' deferred benefit accounts all amounts of 'negative interest' deducted and interest calculated at the trustee's reasonable determination of the rate obtainable from investment in cash and bank bills from the date the deduction was made to the date of repayment.


case_title: Briffa v Hay (1997) 75 FCR 428

case_text: The Tribunal conducts a form of administrative review. The intention of ss 37 and 41 of the ROC Act is to place the Tribunal in the shoes of the trustee when making a determination in respect of a complaint: see Briffa v Hay (1997) 75 FCR 428 at 442 per Merkel J; Collins v AMP Superannuation Ltd (1997) 75 FCR 565 (' AMP Superannuation ') at 574 per Merkel J; and Lykogiannis v Retail Employees Superannuation Pty Ltd [2000] FCA 327 ; (2000) 97 FCR 361 (' Retail Employees Superannuation ') at 372 [47]-[48] per Mansfield J. The focus of s 37(6) of the ROC Act is upon the consequences of the decision in its practical operation, rather than upon the process by which the decision under review came to be made: see Retail Employees Superannuation at 372 [48].


case_text: The Tribunal conducts a form of administrative review. The intention of ss 37 and 41 of the ROC Act is to place the Tribunal in the shoes of the trustee when making a determination in respect of a complaint: see Briffa v Hay (1997) 75 FCR 428 at 442 per Merkel J; Collins v AMP Superannuation Ltd (1997) 75 FCR 565 (' AMP Superannuation ') at 574 per Merkel J; and Lykogiannis v Retail Employees Superannuation Pty Ltd [2000] FCA 327 ; (2000) 97 FCR 361 (' Retail Employees Superannuation ') at 372 [47]-[48] per Mansfield J. The focus of s 37(6) of the ROC Act is upon the consequences of the decision in its practical operation, rather than upon the process by which the decision under review came to be made: see Retail Employees Superannuation at 372 [48]. 66 There are no special rules of construction of documents relating to pension or superannuation schemes but, as a general rule, the Court's approach to the construction of such documents will be practical and purposive, rather than detached and literal: see Mettoy at 537 per Warner J; Lock at 602 per Waddell CJ in Eq; AMP Superannuation at 580 per Merkel J; and Gas and Fuel Corporation (Vic) v Fitzmaurice (1991) 22 ATR 10 at 24 per Hedigan J.


case_title: Lykogiannis v Retail Employees Superannuation Pty Ltd [2000] FCA 327 ; (2000) 97 FCR 361


case_text: In making the Determinations, the Tribunal considered that a construction beneficial to the respondents was appropriate and a purposive and practical construction should be given to the Deed, having regard to the whole of its provisions: see Lock v Westpac Banking Corporation (1991) 25 NSWLR 593 (' Lock') at 602 per Waddell CJ in Eq; and Mettoy Pension Trustees Ltd v Evans [1991] 2 All ER 513 (' Mettoy' ) at 537 per Warner J. 66 There are no special rules of construction of documents relating to pension or superannuation schemes but, as a general rule, the Court's approach to the construction of such documents will be practical and purposive, rather than detached and literal: see Mettoy at 537 per Warner J; Lock at 602 per Waddell CJ in Eq; AMP Superannuation at 580 per Merkel J; and Gas and Fuel Corporation (Vic) v Fitzmaurice (1991) 22 ATR 10 at 24 per Hedigan J.


case_title: Mettoy Pension Trustees Ltd v Evans [1991] 2 All ER 513


case_text: Section 14(1) is directed to the nature of the trustee's decision, whereas s 14(6) is concerned with the nature of the complaint: see Employers First at 372-373 [74]. For the Tribunal to have jurisdiction, the decision complained of before the Tribunal must be one made 'in relation to a particular member' and the complaint must not 'relate to the management of a fund as a whole'. The Tribunal determined that it had jurisdiction on the basis that 'the Complaints relate to whether the [applicant] has acted appropriately in relation to these [respondents'] accounts, not to members' accounts generally'. The applicant contends that, by mistakenly asserting the existence of its jurisdiction, the Tribunal erred in law: Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 177.


case_text: In support of these arguments, the applicant drew an analogy with the legal rules relating to standing viz., a plaintiff seeking declaratory or injunctive relief to prevent the violation of a public right must have a special interest in the subject matter of the action over and above that enjoyed by the public generally: see Australian Conservation Foundation Inc v Commonwealth [1979] HCA 1 ; (1980) 146 CLR 493; and Onus v Alcoa of Australia Ltd [1981] HCA 50 ; (1981) 149 CLR 27.


case_title: Onus v Alcoa of Australia Ltd [1981] HCA 50 ; (1981) 149 CLR 27


case_text: Even if, contrary to my view, attention is focused solely on the trustee's determination to set a negative crediting rate for all deferred benefit members (and all LASPLAN members) in the relevant periods, this would not alter my conclusion that s 14(1) is satisfied. If a decision is made to set a negative investment return or negative interest rate for all deferred benefit members for a specified period, and to carry that decision into effect with different financial consequences for each such member, it does not follow that no decision has been made 'in relation' to a particular member. The words 'in relation to' are very broad, and require a sufficient relationship or connection between the decision and the rights, entitlements or position of a particular member. The nature of the relationship or connection that will suffice will depend on the scope and purposes of the ROC Act: see O'Grady v Northern Queensland Co Ltd [1990] HCA 16 ; (1990) 169 CLR 356 at 365, 367 and 374; and Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1 at 245-246 [577] per Kirby J. The scope and purpose of s 14 of the ROC Act is, relevantly, to afford members of superannuation funds a right to review decisions of a trustee that affect their particular interests as members, subject to the exclusions otherwise provided for in s 14. In the circumstances of these three cases and in the context of the ROC Act, it is enough to satisfy s 14(1) that the applicant's decision involved, or resulted in, the making of particular debits to the respondents' deferred benefit accounts.


case_title: Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1


case_text: There are no special rules of construction of documents relating to pension or superannuation schemes but, as a general rule, the Court's approach to the construction of such documents will be practical and purposive, rather than detached and literal: see Mettoy at 537 per Warner J; Lock at 602 per Waddell CJ in Eq; AMP Superannuation at 580 per Merkel J; and Gas and Fuel Corporation (Vic) v Fitzmaurice (1991) 22 ATR 10 at 24 per Hedigan J.


case_text: This approach is not very different from the modern approach to statutory construction. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute: Project Blue Sky Inc v Australian Broadcasting Association [1998] HCA 28 ; (1998) 194 CLR 355 at 381 [69] - [70] per McHugh, Gummow, Kirby and Hayne JJ.


case_text: In Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36 ; (1996) 186 CLR 389 at 398, Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ cited with approval the statement of Lord Simon of Glaisdale in Maunsell v Olins [1975] AC 373 who said at 391: 'Statutory language, like all language, is capable of an almost infinite gradation of "register"- ie, it will be used at the semantic level appropriate to the subject matter and to the audience addressed (the man in the street, lawyers, merchants, etc). It is the duty of a court of construction to tune in to such register and so to interpret the statutory language as to give to it the primary meaning which is appropriate in that register (unless it is clear that some other meaning must be given in order to carry out the statutory purpose or to avoid injustice, anomaly, absurdity or contradiction). In other words, statutory language must always be given presumptively the most natural and ordinary meaning which is appropriate in the circumstances.' The notion of a practical and purposive approach to construction, rather than a detached and literal one, is entirely compatible with the view that language should be given presumptively the most natural and ordinary meaning which is appropriate in the circumstances. I propose to approach the construction of the Deed, and the meaning of the word 'interest', with these principles in mind. 69 It is convenient to commence with the language, structure and purposes of cl C.4.10 of the Deed. Under cl C.4.10, a member who resigns his or her employment before attaining 55 years and who elects to accept a deferred retirement benefit (as each of the respondents did) thereupon becomes entitled to a retirement benefit calculated under cl C.4.2 of the Deed. The structure of paragraphs (a) and (b) of cl C.4.10 makes it plain that the deferred retirement benefit falls 'due' when the employee makes his or her election. However, the benefit does not become payable before the member attains the age of 55 years, unless one of the conditions set out in cl C.4.10(b) is met. This may explain why Mr Poulter's member statement for the year ended 30 June 2002 referred to his benefit as a 'vested benefit'. 70 Under cl C.4.10(a)(2), the member is entitled to interest ' on the amount of that retirement benefit from the date on which that benefit falls due until the date it is paid' (my emphasis). The words 'the amount of that retirement benefit' refer to a fixed and ascertained sum, namely the benefit referred to in subcl (1) that has been calculated under cl C.4.2 as at the date upon which the member made his or her election.


case_text: There is no definition of 'interest' in the Deed. As a matter of ordinary language 'interest' is 'the return or compensation for the use or retention by one person of a sum of money belonging to or owed to another': see Adams v Paul's Properties Ltd [1965] NZLR 161 at 169 per Woodhouse J; Australian Finance Direct Ltd v Director of Consumer Affairs Victoria [2004] VSC 526 at [82] per Kaye J; Consolidated Fertilizers Ltd v Deputy Commissioner of Taxation (1992) 36 FCR 1 at 6 per Cooper J; and Riches v Westminster Bank Ltd [1947] AC 390 at 400 per Lord Wright.


case_title: Australian Finance Direct Ltd v Director of Consumer Affairs Victoria [2004] VSC 526


case_text: There is no definition of 'interest' in the Deed. As a matter of ordinary language 'interest' is 'the return or compensation for the use or retention by one person of a sum of money belonging to or owed to another': see Adams v Paul's Properties Ltd [1965] NZLR 161 at 169 per Woodhouse J; Australian Finance Direct Ltd v Director of Consumer Affairs Victoria [2004] VSC 526 at [82] per Kaye J; Consolidated Fertilizers Ltd v Deputy Commissioner of Taxation (1992) 36 FCR 1 at 6 per Cooper J; and Riches v Westminster Bank Ltd [1947] AC 390 at 400 per Lord Wright. 73 Rand J's classic description of the concept of interest in Reference as to the Validity of Section 6 of the Farm Security Act 1944 of the Province of Saskatchewan [1947] SCR 394 at 411-412 is frequently cited, but it bears repeating: 'Interest is, in general terms, the return or consideration or compensation for the use or retention by one person of a sum of money, belonging to, in a colloquial sense, or owed to, another.' Most recently, this description was referred to, with approval, by Morris J in Director of Consumer Affairs v City Finance Loans (Credit) [2005] VCAT 1989 at [13] ; see also Broken Hill Pty Co Ltd v Commissioner of Taxation (1999) 99 ATC 5193 at 5210 [72] and Consolidated Fertilizers Ltd v Deputy Commissioner of Taxation (1992) 36 FCR 1 at 6.


case_text: There is no definition of 'interest' in the Deed. As a matter of ordinary language 'interest' is 'the return or compensation for the use or retention by one person of a sum of money belonging to or owed to another': see Adams v Paul's Properties Ltd [1965] NZLR 161 at 169 per Woodhouse J; Australian Finance Direct Ltd v Director of Consumer Affairs Victoria [2004] VSC 526 at [82] per Kaye J; Consolidated Fertilizers Ltd v Deputy Commissioner of Taxation (1992) 36 FCR 1 at 6 per Cooper J; and Riches v Westminster Bank Ltd [1947] AC 390 at 400 per Lord Wright. 72 In Commissioner of Taxation v Myer Emporium Ltd [1987] HCA 18 ; (1987) 163 CLR 199 at 218, Mason ACJ, Wilson, Brennan, Deane and Dawson JJ explained the nature of interest: 'But the interest which becomes due is not the produce of the mere contractual right to interest severed from the debt for the money lent. Interest is regarded as flowing from the principal sum ( Federal Wharf Co Ltd v Deputy Federal Commissioner of Taxation ) and to be compensation to the lender for being kept out of the use and enjoyment of the principal sum: Riches v Westminster Bank Ltd . A covenant to pay interest on a principal sum may, according to the terms of the lending agreement, be independent of or accessory to a covenant to repay the principal sum or the covenants may be integral parts of a single obligation, but it is of the essence of interest that it be referable to a principal sum: per Rand J in Reference as to the Validity of Section 6 of the Farm Security Act, 1944, of the Province of Saskatchewan.'


case_text: In Commissioner of Taxation v Myer Emporium Ltd [1987] HCA 18 ; (1987) 163 CLR 199 at 218, Mason ACJ, Wilson, Brennan, Deane and Dawson JJ explained the nature of interest: 'But the interest which becomes due is not the produce of the mere contractual right to interest severed from the debt for the money lent. Interest is regarded as flowing from the principal sum ( Federal Wharf Co Ltd v Deputy Federal Commissioner of Taxation ) and to be compensation to the lender for being kept out of the use and enjoyment of the principal sum: Riches v Westminster Bank Ltd . A covenant to pay interest on a principal sum may, according to the terms of the lending agreement, be independent of or accessory to a covenant to repay the principal sum or the covenants may be integral parts of a single obligation, but it is of the essence of interest that it be referable to a principal sum: per Rand J in Reference as to the Validity of Section 6 of the Farm Security Act, 1944, of the Province of Saskatchewan.'


case_text: In Commissioner of Taxation v Myer Emporium Ltd [1987] HCA 18 ; (1987) 163 CLR 199 at 218, Mason ACJ, Wilson, Brennan, Deane and Dawson JJ explained the nature of interest: 'But the interest which becomes due is not the produce of the mere contractual right to interest severed from the debt for the money lent. Interest is regarded as flowing from the principal sum ( Federal Wharf Co Ltd v Deputy Federal Commissioner of Taxation ) and to be compensation to the lender for being kept out of the use and enjoyment of the principal sum: Riches v Westminster Bank Ltd . A covenant to pay interest on a principal sum may, according to the terms of the lending agreement, be independent of or accessory to a covenant to repay the principal sum or the covenants may be integral parts of a single obligation, but it is of the essence of interest that it be referable to a principal sum: per Rand J in Reference as to the Validity of Section 6 of the Farm Security Act, 1944, of the Province of Saskatchewan.' 73 Rand J's classic description of the concept of interest in Reference as to the Validity of Section 6 of the Farm Security Act 1944 of the Province of Saskatchewan [1947] SCR 394 at 411-412 is frequently cited, but it bears repeating: 'Interest is, in general terms, the return or consideration or compensation for the use or retention by one person of a sum of money, belonging to, in a colloquial sense, or owed to, another.' Most recently, this description was referred to, with approval, by Morris J in Director of Consumer Affairs v City Finance Loans (Credit) [2005] VCAT 1989 at [13] ; see also Broken Hill Pty Co Ltd v Commissioner of Taxation (1999) 99 ATC 5193 at 5210 [72] and Consolidated Fertilizers Ltd v Deputy Commissioner of Taxation (1992) 36 FCR 1 at 6.


case_text: Rand J's classic description of the concept of interest in Reference as to the Validity of Section 6 of the Farm Security Act 1944 of the Province of Saskatchewan [1947] SCR 394 at 411-412 is frequently cited, but it bears repeating: 'Interest is, in general terms, the return or consideration or compensation for the use or retention by one person of a sum of money, belonging to, in a colloquial sense, or owed to, another.' Most recently, this description was referred to, with approval, by Morris J in Director of Consumer Affairs v City Finance Loans (Credit) [2005] VCAT 1989 at [13] ; see also Broken Hill Pty Co Ltd v Commissioner of Taxation (1999) 99 ATC 5193 at 5210 [72] and Consolidated Fertilizers Ltd v Deputy Commissioner of Taxation (1992) 36 FCR 1 at 6.


case_title: Broken Hill Pty Co Ltd v Commissioner of Taxation (1999) 99 ATC 5193


case_title: Consolidated Fertilizers Ltd v Deputy Commissioner of Taxation (1992) 36 FCR 1


case_text: From time to time courts have expressed reservations about this maxim, and it is always applied with caution: see Houssein v Under Secretary, Department of Industrial Relations & Technology (NSW) (1982) 48 CLR 88 at 94 per Stephen, Mason, Aickin, Wilson and Brennan JJ; see also the authorities collected in Pearce and Geddes, Statutory Interpretation in Australia , supra, at paras [4.24]-[4.27]. 95 Bearing these reservations in mind and recognising the need to proceed with caution, I have concluded that the contrast between cl C.4.10 and these other provisions is capable of providing some support, albeit in a very subsidiary way, for the construction of cl C.4.10 that I prefer. The short point is that the drafters of the Deed could have specifically included a provision in cl C.4.10 entitling the applicant to deduct negative interest (as defined) from a member's deferred retirement benefit, but they did not do so. However, given the history of the LAS Act and the Deed and the way in which different divisions have been introduced at different times to accommodate different sub-schemes, I would treat the point very cautiously. 96 The applicant also sought, somewhat inconsistently, to gather some support for its construction of cl C.4.10 from these other provisions. It pointed out that each of cll B.3.2, D.4.5, G.2.2 and H.4.2 provided for a crediting of interest at the declared rate (if positive) and a debiting of interest at the declared rate (if negative). It submitted that these provisions show that the Deed contemplates the concept of negative interest. In my opinion, these provisions do not assist the proper construction of cl C.4.10. They simply show that it is possible to adopt special definitions that alter the ordinary meaning of a word such as 'interest', and to use those definitions for specified purposes.


case_text: The hearing before me is a hearing de novo: Mazukov v University of Tasmania [2004] FCAFC 159 ; Pattison v Hadjimouratis [2006] FCAFC 153 ; (2006) 155 FCR 226. The right to review arises because the Registrar has exercised the judicial power of the Commonwealth and, as such, is subject to the supervision of the Court. The Registrar's orders are reviewable by hearing de novo: Harris v Caladine [1991] HCA 9 ; (1991) 172 CLR 84 per Dawson J at 124. A hearing de novo contemplates a complete rehearing. The moving party before the Registrar has the responsibility of satisfying the Court that the orders should have been made. The parties may adduce further evidence before the Court and the rehearing is determined on the evidence put before the Court which may include the evidence put before the Registrar. The judge determines the rehearing without being fettered by the decision of the Registrar: Southern Motors Pty Ltd v Australian Guarantee Corporation Ltd [1980] VR 187. The parties did adduce the further evidence to which I have referred and the applicant cross-examined the first plaintiff.


case_title: Pattison v Hadjimouratis [2006] FCAFC 153 ; (2006) 155 FCR 226


case_title: Harris v Caladine [1991] HCA 9 ; (1991) 172 CLR 84


case_title: Southern Motors Pty Ltd v Australian Guarantee Corporation Ltd [1980] VR 187


case_text: The first question to be determined is whether the applicant is a person entitled to be heard in opposition to the order sought for reinstatement? The applicant is being presently sued for $290,000. He has a vital interest in the question and he is entitled to be heard: r 2.13 Federal Court (Corporations) Rules 2000 ; Re Peter Conyers Holdings Pty Ltd (In Liquidation) (1996) 14 ACLC 1835 at 1849; Payne v Wizard Industries Pty Ltd (1997) 15 ACLC 1012. He need not be or become a party: r 2.13 Federal Court (Corporations) Rules 2000 .


case_title: Payne v Wizard Industries Pty Ltd (1997) 15 ACLC 1012


case_text: The next question to be addressed is whether the first plaintiff is a person aggrieved by the deregistration. The first plaintiff was the director and company secretary, but not a shareholder of ACMF. Although the expression 'person aggrieved' is not defined in the Corporations Act , the term is understood in a different sense to its literal meaning. A person aggrieved is not someone who is merely dissatisfied by an event. A person aggrieved must be a person who has been damaged or injured in a legal sense: a person who has a legal grievance: Ealing Corporation v Jones [1959] 1 QB 384 at 391; Re G A & R J Elliot Pty Ltd; ex parte Mitcham (1978) 3 ACLR 523 at 525; GIS Electrical Pty Ltd v Melsom [2002] WASCA 302 ; (2002) 172 FLR 218. The applicant contended that merely being a director is not enough: Casali v Crisp [2001] NSWSC 860 ; (2001) 165 FLR 79. 51 The authorities suggest, as the applicant contended, that merely because a person is a shareholder or a director that is not enough to establish that a person is a person aggrieved. In this case, the first plaintiff is merely a director. However, upon his own evidence, the first plaintiff is the person who, by his own inaction, caused deregistration of ACMF. There is presently no suggestion that the first plaintiff might be prosecuted for a contravention of s 188 of the Corporations Act . As the secretary of ACMF, it was his responsibility to attend to the various matters in s 188(1) of the Corporations Act . Although there is presently no suggestion that any proceedings might be brought against the first plaintiff in relation to whatever breach of duty he committed, that is a risk, it seems to me, which would entitle the first plaintiff to say that he is a person aggrieved. The first plaintiff's conduct might have put some sort of legal burden on him that would be partly relieved by ACMF's reregistration: Ealing Corporation [1959] 1 QB at 391. In those circumstances, notwithstanding that the first plaintiff is a director and secretary only, in my opinion, he is a person aggrieved because he has a real and direct interest in the reregistration of ACMF: Denis & Ors v McMahon (1989) 7 ACLC 283.


case_text: The next question to be addressed is whether the first plaintiff is a person aggrieved by the deregistration. The first plaintiff was the director and company secretary, but not a shareholder of ACMF. Although the expression 'person aggrieved' is not defined in the Corporations Act , the term is understood in a different sense to its literal meaning. A person aggrieved is not someone who is merely dissatisfied by an event. A person aggrieved must be a person who has been damaged or injured in a legal sense: a person who has a legal grievance: Ealing Corporation v Jones [1959] 1 QB 384 at 391; Re G A & R J Elliot Pty Ltd; ex parte Mitcham (1978) 3 ACLR 523 at 525; GIS Electrical Pty Ltd v Melsom [2002] WASCA 302 ; (2002) 172 FLR 218. The applicant contended that merely being a director is not enough: Casali v Crisp [2001] NSWSC 860 ; (2001) 165 FLR 79.


case_title: GIS Electrical Pty Ltd v Melsom [2002] WASCA 302 ; (2002) 172 FLR 218


case_text: The next question to be addressed is whether the first plaintiff is a person aggrieved by the deregistration. The first plaintiff was the director and company secretary, but not a shareholder of ACMF. Although the expression 'person aggrieved' is not defined in the Corporations Act , the term is understood in a different sense to its literal meaning. A person aggrieved is not someone who is merely dissatisfied by an event. A person aggrieved must be a person who has been damaged or injured in a legal sense: a person who has a legal grievance: Ealing Corporation v Jones [1959] 1 QB 384 at 391; Re G A & R J Elliot Pty Ltd; ex parte Mitcham (1978) 3 ACLR 523 at 525; GIS Electrical Pty Ltd v Melsom [2002] WASCA 302 ; (2002) 172 FLR 218. The applicant contended that merely being a director is not enough: Casali v Crisp [2001] NSWSC 860 ; (2001) 165 FLR 79. 53 The fact that Claremont is a shareholder is not of itself enough to make Claremont a person aggrieved. However, if a shareholder can show that the shareholder might benefit from reinstatement by sharing in the assets of the company or obtaining a dividend of some kind that may make the shareholder a person aggrieved: Casali v Crisp [2001] NSWSC 860 ; 165 FLR 79. In this case, ACMF, if reregistered, has the potential of obtaining a judgment in the order of $290,000 with a consequential return to the shareholder, Claremont. In my opinion, Claremont is a person aggrieved because it will stand to benefit by ACMF's reregistration which allows it to prosecute its proceedings in the District Court. It will benefit if the litigation is successful to the extent of $290,000. It is not to the point, in my opinion, that Claremont is the trustee of the Callegher Family Trust and, as such, would not benefit in its own right if the action were successful. It has the responsibilities of a trustee to maintain the trust assets. The shareholding in ACMF has a significant value if the proceedings in the District Court are successful. In those circumstances, Claremont has the responsibility as trustee of maintaining that asset, being the shareholding in ACMF. 54 It was contended that the sale of the shares by ACMF to Mr De Angelis was completed on 3 March 2004 and Claremont did not become a shareholder in ACMF until 21 October 2004. It was contended, in those circumstances, that Claremont did not have a relevant interest in ACMF. That contention must be rejected. It is not to the point that Claremont did not become a shareholder in ACMF until after the loan was made by ACMF to Mr De Angelis (if in fact that be the case). If ACMF was possessed of an asset, being the loan, and if later Claremont became its sole shareholder, then Claremont had the rights of a sole shareholder in relation to that asset.


case_title: Denis & Ors v McMahon (1989) 7 ACLC 283

case_text: The authorities suggest, as the applicant contended, that merely because a person is a shareholder or a director that is not enough to establish that a person is a person aggrieved. In this case, the first plaintiff is merely a director. However, upon his own evidence, the first plaintiff is the person who, by his own inaction, caused deregistration of ACMF. There is presently no suggestion that the first plaintiff might be prosecuted for a contravention of s 188 of the Corporations Act . As the secretary of ACMF, it was his responsibility to attend to the various matters in s 188(1) of the Corporations Act . Although there is presently no suggestion that any proceedings might be brought against the first plaintiff in relation to whatever breach of duty he committed, that is a risk, it seems to me, which would entitle the first plaintiff to say that he is a person aggrieved. The first plaintiff's conduct might have put some sort of legal burden on him that would be partly relieved by ACMF's reregistration: Ealing Corporation [1959] 1 QB at 391. In those circumstances, notwithstanding that the first plaintiff is a director and secretary only, in my opinion, he is a person aggrieved because he has a real and direct interest in the reregistration of ACMF: Denis & Ors v McMahon (1989) 7 ACLC 283.


case_text: ACMF came to be deregistered because of the default of its director in failing to pay an ASIC fee. It has by its director undertaken to remedy that default. ASIC does not object to the reinstatement of the reregistration of ACMF. ASIC's attitude should be taken into account. It should be clearly understood that a company which has been deregistered for failing to comply with its statutory obligations could not be expected to be reregistered as of right. More is required. The Court must be satisfied that it would be just to order the reinstatement of the registration. The words of the section give the Court a very wide discretion. In exercising that discretion, which must remain unfettered, the Court will ordinarily have regard to the circumstances in which the company's registration lapsed; the party seeking the order; the reasons for seeking the order; the utility of making any order; the prejudice which any party including the company which is sought to be the subject of the order for reinstatement of the registration might suffer; and any other circumstances which would bear upon the making of an order which in all the circumstances would be just: see Australian Competition and Consumer Commission v Australian Securities and Investment Commission (2000) 174 ALR 688. In making the order it must also be steadily borne in mind that the company's registration is not to be reinstated for a particular purpose but the company's registration will be reinstated for all purposes: Donmastry Pty Ltd v Albarran (2004) 49 ACSR 745 at 747.


case_title: Donmastry Pty Ltd v Albarran (2004) 49 ACSR 745


case_text: It was put that Claremont may elect to fund ACMF in the District Court action without itself incurring any liability for the applicant's costs in the event that the applicant were successful in defending the proceedings. It was submitted that the reasoning in Knight v FP Special Assets Ltd [1992] HCA 28 ; (1992) 174 CLR 178 may not be apposite having regard to the statutory powers of the District Court to award costs against a non-party. I think that argument must be rejected. In Vestris v Cashman (1999) 72 SASR 449, the Full Court of the Supreme Court considered the District Court's power to award costs against non-parties. Following upon that decision, s 42 of the District Court Act 1991 (SA) was amended to make it clear that costs could be awarded by the Court against any party, whether a party to or a witness in the proceedings or not: s 42 of the District Court Act 1991 (SA).


case_title: Vestris v Cashman (1999) 72 SASR 449


case_text: Before the Federal Magistrate, the appellant argued that the RRT had failed to accord procedural fairness because it failed properly to inform him of the issues it had with the authenticity of the letters and documents he provided relating to his membership in the ANPP. The appellant cited WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 ; (2003) 131 FCR 511 in support of this submission. 8 The Federal Magistrate rejected the appellant's argument. It is not necessary to review his Honour's reasons as the appellant has abandoned this ground of appeal. 9 On 30 May 2006, the day before the hearing of the appeal, the appellant filed an amended notice of appeal. The appellant abandoned the ground raised before the Federal Magistrates Court and sought to substitute the following ground of appeal: "The Tribunal failed to comply with s 424A of the Act by failing to give particulars of information which was part of the reason for affirming the decision under review being the: i) information in his initial application for a protection visa that he was an Ijaw and feared persecution because he was an Ijaw and that he had said this and no more in failing to mention that he was a member of the Ijaw Youth Council or that he was Secretary of that organisation j) information in his initial application for a protection visa that the incident that appeared to motivate him to leave Nigeria was the assassination of Harry Marshall but it was clear from documents in the applicant's offshore visa application that he had planned to leave Nigeria and made inquiries about coming to Australia in 2002" At the hearing of the appeal, the appellant abandoned the second proposed ground entirely and sought only to advance a more limited form of the first ground.


case_text: The appellant filed written submission on 30 May 2006. In these submissions, the appellant argued that leave should be granted to allow him to present fresh grounds of appeal. The appellant claimed that granting leave would be expedient and in the interests of justice. In support of this claim, the appellant argued that the recent decision in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 (" SZEEU ") made new grounds available since the hearing in the Federal Magistrates Court. 11 Further, the appellant submitted that its new ground had a strong prospect of success and that the prejudice to the appellant of being deprived of this ground was significant. In contrast, according to the appellant, the first respondent would not suffer any prejudice that could not be cured by an appropriate costs order. 12 At the hearing on 31 May 2006, the appellant further modified his proposed grounds of appeal. As I have said, he abandoned the proposed second ground. That is, the appellant no longer relied on any failure to provide information relating to the appellant's motive for leaving Nigeria. 14 The appellant submitted that the RRT made a specific adverse credibility finding based on his failure, in his initial application, to mention his membership of the Ijaw Youth Council. The appellant conceded that, within the context of the RRT's reasons, this information was not a major reason for the decision. According to the appellant, however, under SZEEU , the Court should not consider the relative importance of the information. Rather, the question is simply whether the information was any part of the reason. Therefore, in the appellant's submission, the Court should find that the RRT breached its s 424A obligations. 15 The first respondent submitted that the RRT had fulfilled its obligations under s 424A. The first respondent argued that, in rejecting the appellant's claims concerning the Ijaw Youth Council, the RRT relied on the fact that the appellant had not mentioned that he was the Secretary of the Council. In the first respondent's submission, it was the appellant's failure to mention such a significant fact that led the RRT to reject his claims about the Ijaw Youth Council as a recent invention. The first respondent contended that, although the RRT found that the appellant was not a member of the Ijaw Youth Council, it did not specifically rely on the fact that the appellant had not mentioned this membership in his protection visa application. 16 The first respondent also noted that the s 424A letter informed the appellant that his failure to mention that he was the Secretary of the Ijaw Youth Council might lead to an inference that his claims to have "been involved with the Ijaw Youth Council were recent inventions." The first respondent posited that, by stating that it might conclude that his 'involvement' in the Council is a recent invention, the RRT informed the appellant of the significance of his initial failure to mention his membership in the organisation.


case_text: As counsel for the appellant acknowledged, the proposed ground of appeal raised a basis for a claim of jurisdictional error on the RRT's part that had not been argued before the Federal Magistrate. The court may allow such a ground to be argued on an appeal if it is satisfied that it is expedient in the interests of justice to allow the new ground to be argued and determined: see VAAC v Minster for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 (" VAAC ") at 177 [26] per North, Merkel and Weinberg JJ. Whether or not leave ought be granted depends on such matters as the prospects of success of the proposed new ground, the prejudice to the first respondent in allowing the ground to be raised, the possible serious consequences to the applicant if the leave sought is refused, and the integrity of the appellate process: see VAAC at 177 [26]. For the reasons given below, I find that the proposed new ground has no prospect of success. I would therefore refuse leave to amend on the basis that such leave would be futile. 18 Section 424A of the Act requires the RRT to give the applicant, in the way the RRT considers appropriate, particulars of any information that the RRT considers would be the reason, or part of the reason, for affirming the decision under review, to ensure, as far as reasonably practicable, that the applicant understands why it is relevant, and to invite the applicant to comment on it: s 424A(1). The information and invitation must be given by a prescribed method: s 424A(2). Section 424A does not apply to certain kinds of information, being information that is not specifically about an applicant and is just about a class of persons, or information that the applicant gave for the purpose of the application, or non-disclosable information: s 424A(3). 19 For the purposes of this appeal, the key passage of the RRT's reasons is the passage set out at [6] above. In that passage, the RRT gives its reasons for rejecting the appellant's claim to have been involved with the Ijaw Youth Council. This passage should be read in the context of the warning sent to the appellant pursuant to s 424A. In that letter, the RRT informed the appellant that, as he had not mentioned having been Secretary of the Council, the RRT might conclude that his involvement with the Council was a recent invention. Also, I note that the RRT said that it could not accept that the appellant would not have mentioned his membership if it "was of such significance". I accept the first respondent's submission that it was the appellant's failure to mention that he was the Secretary of the Ijaw Youth Council that was the basis of the RRT's finding that he was not involved in the Council. That is, this was, relevantly, a part of the reason for the decision the Tribunal made. Therefore, there was no beach of s 424A.