case_text: There is a conflict in the authorities as to the effect of a deed of company arrangement on the assets of the company. In Dean-Willcocks v ACG Engineering Pty Ltd (in liq) [2003] NSWSC 353 ; (2003) 45 ACSR 290 , the plaintiff liquidator had previously been the voluntary administrator of the company. After his appointment as administrator, the company entered into a deed of company arrangement which provided for the plaintiff to be the deed administrator. The deed provided for the creation of an administration fund on account of the creditors and provided that the administrator was to hold the administration fund in accordance with the terms of the deed of company arrangement. The deed recorded that the company and its directors had agreed that any monies paid to the administrator towards the fund were not refundable to the company or a third party. The deed of company arrangement required a distribution among the participating creditors. 40 The question for determination for Austin J was whether the administration fund was an asset of the company so as to be available for distribution in the liquidation of the company, or an asset held by the deed administrator for the benefit of the deed creditors and not for the benefit of the company. 41 Justice Austin examined the provisions of the deed of company arrangement and concluded that the plain and natural meaning of the words in the deed created a trust of the amount of the administration fund for the benefit of the participating creditors. The trust arose by reason of the provisions of the deed which created an obligation on the administrator to hold the administration fund in accordance with the terms of the deed. He said that s 444G had the effect of binding the company and the deed's administrators, as well as officers and members, which meant that the administrator was bound to hold the administration fund in accordance with the terms of the deed of company arrangement, which was also binding on all relevant parties. He said the provisions of the deed gave rise to an express trust of the administration fund for the benefit of the participating creditors as beneficiaries. 45 That decision was followed by Gyles J in Purchas v Estore Pty Ltd (in liq) [2006] FCA 1222 ; (2006) 154 FCR 246. His Honour said at [14] and [15]: Counsel for the plaintiffs has pointed out that there is an apparent division of opinion in the authorities upon the critical question. The decisions of Austin J in Dean-Willcocks v ACG Engineering Pty Ltd (in liq) [2003] NSWSC 353 ; (2003) 45 ACSR 290 and Campbell J in Sports Mondial favour the conclusion that the fund is held on trust for the deed creditors. After those decisions, Finkelstein J, in Commonwealth v Rocklea Spinning Mills Pty Ltd [2005] FCA 902 ; (2005) 145 FCR 220 , drew attention to the possibility of an inconsistency between them and the earlier decision of Davies J in Commissioner of Taxation (Cth) v All Suburbs Car Repairs Pty Ltd (1994) 29 ATR 329. Davies J held that payments to the administrator were payments to him in his capacity as the agent of the company and consequently the sums received were the property of that company. Barrett J needed to consider the differences in the reasoning in those authorities in Lombe v Wagga Leagues Club Ltd [2006] NSWSC 3 ; (2006) 56 ACSR 387 at [53] - [77] . In circumstances which I cannot distinguish in substance from the present facts, Barrett J in a careful and reasoned decision applied the reasoning of Davies J. It is appropriate to follow the decision of Barrett J unless I am satisfied that it is clearly wrong. Consistency of decision in relation to the Act is desirable. As I am not satisfied that the decision of Barrett J is clearly wrong, I propose to follow it and give directions accordingly. 46 In my opinion, the decision of Barrett J is to be preferred to the decisions of Austin J and Campbell J for the reasons given by Barrett J. 47 The Act provides a statutory scheme for the administration of a company under a deed of company arrangement. There is no reason, in principle, to treat an administrator any differently from a liquidator. The administrator, like a liquidator, is an officer of the company. He or she is obliged to act in accordance with the functions and powers given him or her under the deed of company arrangement which he or she is appointed to administer. 51 Clause 5 of the DOCA simply makes the fund available for distribution amongst creditors in accordance with clause 6 of the DOCA. In my opinion, clause 6 instructs the administrator as to the order in which the administrator shall distribute and apply the fund. Neither clause 5 nor 6, nor clauses 5 and 6 considered together, creates a trust whereby the monies are held by the administrator for the benefit of the deed creditors. For those reasons, this case can be distinguished from the facts in Dean-Willcocks v ACG Engineering Pty Ltd (in liq) [2003] NSWSC 353 ; 45 ACSR 290 and in Shepard v Sports Mondial of Australia Pty Ltd [2005] NSWSC 432 ; 53 ACSR 746. It follows therefore that the fund created by the DOCA is still the property of the company.


case_outcome: distinguished

case_text: That decision was followed by Campbell J in Shepard v Sports Mondial of Australia Pty Ltd (in liq) [2005] NSWSC 432 ; (2005) 53 ACSR 746 who said at 748 that "the manner of application of the available funds depends upon the terms of the deed of company arrangement." 51 Clause 5 of the DOCA simply makes the fund available for distribution amongst creditors in accordance with clause 6 of the DOCA. In my opinion, clause 6 instructs the administrator as to the order in which the administrator shall distribute and apply the fund. Neither clause 5 nor 6, nor clauses 5 and 6 considered together, creates a trust whereby the monies are held by the administrator for the benefit of the deed creditors. For those reasons, this case can be distinguished from the facts in Dean-Willcocks v ACG Engineering Pty Ltd (in liq) [2003] NSWSC 353 ; 45 ACSR 290 and in Shepard v Sports Mondial of Australia Pty Ltd [2005] NSWSC 432 ; 53 ACSR 746. It follows therefore that the fund created by the DOCA is still the property of the company.


case_outcome: followed

case_text: A contrary view was taken by Barrett J in Lombe v Wagga Leagues Club Ltd [2006] NSWSC 3 ; (2006) 56 ACSR 387. In that case, a clause of the deed provided that the deed fund was to be held on trust for the benefit of the administrators, deed administrators and for those creditors who became participating creditors. In other words, there was specific reference to the deed fund being held on trust. His Honour held, however, that no trust of the kind suggested by Austin J was created by the deed. Instead, the administrator was like a liquidator who was bound by statute to deal with the Club's assets in a particular way in accordance with the deed of company arrangement. In his reasons, Barrett J relied upon a decision of Davies J in Federal Commissioner of Taxation v All Suburbs Car Repairs Pty Ltd (1994) 14 ACSR 753. In that case, Davies J concluded that when an administrator was acting in accordance with the powers conferred by the deed and carrying out the duties arising under the deed, the administrator was acting in his capacity as agent for the company. After discussing that case, Barrett J said at 407: But that, in my opinion, is not what happened here. The segregation of part of the company's property (whether or not including property to be contributed by someone else) so that it becomes a fund to be applied by the deed administrator as the company's agent in accordance with the deed of company arrangement does not, of itself, give rise to a trust. And where, as in the present case, the segregation is made in a context referring to a "trust" administered by the deed administrator, there is again no trust unless it can clearly be seen that the company has divested itself of the legal and beneficial interests in its property. The fact that the fund is to be applied by reference to creditors' claims is not sufficient to give them such beneficial interests in the property concerned; nor is it sufficient to justify a conclusion that the deed administrators became the legal owners of the property so as to be capable of holding it on trust. 45 That decision was followed by Gyles J in Purchas v Estore Pty Ltd (in liq) [2006] FCA 1222 ; (2006) 154 FCR 246. His Honour said at [14] and [15]: Counsel for the plaintiffs has pointed out that there is an apparent division of opinion in the authorities upon the critical question. The decisions of Austin J in Dean-Willcocks v ACG Engineering Pty Ltd (in liq) [2003] NSWSC 353 ; (2003) 45 ACSR 290 and Campbell J in Sports Mondial favour the conclusion that the fund is held on trust for the deed creditors. After those decisions, Finkelstein J, in Commonwealth v Rocklea Spinning Mills Pty Ltd [2005] FCA 902 ; (2005) 145 FCR 220 , drew attention to the possibility of an inconsistency between them and the earlier decision of Davies J in Commissioner of Taxation (Cth) v All Suburbs Car Repairs Pty Ltd (1994) 29 ATR 329. Davies J held that payments to the administrator were payments to him in his capacity as the agent of the company and consequently the sums received were the property of that company. Barrett J needed to consider the differences in the reasoning in those authorities in Lombe v Wagga Leagues Club Ltd [2006] NSWSC 3 ; (2006) 56 ACSR 387 at [53] - [77] . In circumstances which I cannot distinguish in substance from the present facts, Barrett J in a careful and reasoned decision applied the reasoning of Davies J. It is appropriate to follow the decision of Barrett J unless I am satisfied that it is clearly wrong. Consistency of decision in relation to the Act is desirable. As I am not satisfied that the decision of Barrett J is clearly wrong, I propose to follow it and give directions accordingly.


case_text: A contrary view was taken by Barrett J in Lombe v Wagga Leagues Club Ltd [2006] NSWSC 3 ; (2006) 56 ACSR 387. In that case, a clause of the deed provided that the deed fund was to be held on trust for the benefit of the administrators, deed administrators and for those creditors who became participating creditors. In other words, there was specific reference to the deed fund being held on trust. His Honour held, however, that no trust of the kind suggested by Austin J was created by the deed. Instead, the administrator was like a liquidator who was bound by statute to deal with the Club's assets in a particular way in accordance with the deed of company arrangement. In his reasons, Barrett J relied upon a decision of Davies J in Federal Commissioner of Taxation v All Suburbs Car Repairs Pty Ltd (1994) 14 ACSR 753. In that case, Davies J concluded that when an administrator was acting in accordance with the powers conferred by the deed and carrying out the duties arising under the deed, the administrator was acting in his capacity as agent for the company. After discussing that case, Barrett J said at 407: But that, in my opinion, is not what happened here. The segregation of part of the company's property (whether or not including property to be contributed by someone else) so that it becomes a fund to be applied by the deed administrator as the company's agent in accordance with the deed of company arrangement does not, of itself, give rise to a trust. And where, as in the present case, the segregation is made in a context referring to a "trust" administered by the deed administrator, there is again no trust unless it can clearly be seen that the company has divested itself of the legal and beneficial interests in its property. The fact that the fund is to be applied by reference to creditors' claims is not sufficient to give them such beneficial interests in the property concerned; nor is it sufficient to justify a conclusion that the deed administrators became the legal owners of the property so as to be capable of holding it on trust.


case_outcome: cited

case_text: His Honour then considered the effect of the deed if he were wrong about his conclusion that no trust was created and in circumstances where the deed of company arrangement was terminated. In those circumstances, he held that the trust property (if there be trust property) would be held upon a resulting trust for the company: Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567.


case_text: That decision was followed by Gyles J in Purchas v Estore Pty Ltd (in liq) [2006] FCA 1222 ; (2006) 154 FCR 246. His Honour said at [14] and [15]: Counsel for the plaintiffs has pointed out that there is an apparent division of opinion in the authorities upon the critical question. The decisions of Austin J in Dean-Willcocks v ACG Engineering Pty Ltd (in liq) [2003] NSWSC 353 ; (2003) 45 ACSR 290 and Campbell J in Sports Mondial favour the conclusion that the fund is held on trust for the deed creditors. After those decisions, Finkelstein J, in Commonwealth v Rocklea Spinning Mills Pty Ltd [2005] FCA 902 ; (2005) 145 FCR 220 , drew attention to the possibility of an inconsistency between them and the earlier decision of Davies J in Commissioner of Taxation (Cth) v All Suburbs Car Repairs Pty Ltd (1994) 29 ATR 329. Davies J held that payments to the administrator were payments to him in his capacity as the agent of the company and consequently the sums received were the property of that company. Barrett J needed to consider the differences in the reasoning in those authorities in Lombe v Wagga Leagues Club Ltd [2006] NSWSC 3 ; (2006) 56 ACSR 387 at [53] - [77] . In circumstances which I cannot distinguish in substance from the present facts, Barrett J in a careful and reasoned decision applied the reasoning of Davies J. It is appropriate to follow the decision of Barrett J unless I am satisfied that it is clearly wrong. Consistency of decision in relation to the Act is desirable. As I am not satisfied that the decision of Barrett J is clearly wrong, I propose to follow it and give directions accordingly.


case_text: There is no reason to impress upon the administrator a trust so that the company is divested of its assets upon the execution of the deed of company arrangement. It is enough that the administrator is obliged to deal with the assets of the company in accordance with the directions given by the company by its execution of the deed of company arrangement. The Parliament could, if it wished, create the administrator as a trustee of the company's assets on execution of the deed of company arrangement: Registrar of the Accident Compensation Tribunal v Federal Commissioner of Taxation [1993] HCA 1 ; (1993) 178 CLR 145 at 167. Indeed, the legislation could render the administrator as trustee without the legislation using the expression "trust": Commissioner of Taxation of the Commonwealth of Australia v Linter Textiles Australia Ltd (in liq) [2005] HCA 20 ; 220 CLR 592 at 607. But that is not the case here. There is nothing in the statute which suggests that an administrator is to become the trustee of any fund created by the company pursuant to a deed of company arrangement. There is nothing to suggest that the administrator should occupy any different position to a liquidator. The purpose of an administration is to get in the available assets and distribute them to the creditors; in the case of an administrator in accordance with the deed of company arrangement and in the case of a liquidator in accordance with the statutory scheme.


case_text: The plaintiff has sought an order that the deed be terminated. It is not clear in which capacity the plaintiff makes that application but I think because of the provisions of s 471A that he has made this application as liquidator. Section 445D of the Act empowers the Court to terminate a deed in the circumstances specified in the section. A deed would be terminated if, in the exercise of the Court's discretion, it is in the interests of the creditors as a whole and in the public interest: Emanuele v Australian Securities Commission (1995) 63 FCR 54. 54 In the present circumstances, on the appointment of the plaintiff as liquidator, the DOCA has no further work to do and cannot assist the two creditors who have not received their dividend in accordance with the DOCA. For that reason, it would be appropriate to order its termination: s 445D(1)(g). In those circumstances, I am prepared to make an order terminating the deed. 55 If the deed is terminated, the plaintiff's remuneration as deed administrator would become a deferred expense for the purpose of s 556 of the Act and payable accordingly. 56 I make the following directions and orders: 1. A direction that the plaintiff would be justified in making an application for the termination of the deed of company arrangement executed by Strongest Link Pty Ltd (in Liq) (Subject to a Deed of Company Administration) on 31 December 2005. 2. An order pursuant to s 445D(1) of the Corporations Act 2001 (Cth) (the Act) that the deed of company arrangement executed by Strongest Link Pty Ltd (in Liq) (Subject to a Deed of Company Administration) on 31 December 2005 be terminated. 3. An order that pursuant to s 447A of the Act that the order made in paragraph 2 hereof is not to be taken as the passing of a special resolution in accordance with s 446B(1) of the Act and reg 5.3A.07 of the Corporations Regulations 2001 (Cth). 4. A direction that the plaintiff would be justified upon the termination of the deed of company arrangement executed by Strongest Link Pty Ltd (in Liq) (Subject to a Deed of Company Administration) on 31 December 2005, in applying and distributing the fund described in clause 5 of that deed as the property of Strongest Link Pty Ltd (in Liq) (Subject to a Deed of Company Administration) in due course of winding up. 5. A direction that the plaintiff would be justified upon the termination of the deed of company arrangement executed by Strongest Link Pty Ltd (in Liq) (Subject to a Deed of Company Administration) on 31 December 2005, in treating his remuneration payable pursuant to clause 8 of the deed "as deferred expenses" within the meaning of s 556 of the Act in the winding up. 6. The costs of this application be paid out of the assets of Strongest Link Pty Ltd (in Liq) (Subject to a Deed of Company Administration) as an expense of the winding up. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 3 July 2008 Counsel for the Plaintiff: Mr S Ower Solicitor for the Plaintiff: Camatta Lempens Pty Limited Date of Hearing: 24 June 2008 Date of Judgment: 3 July 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1007.html


case_outcome: applied

case_text: I would note in passing that the subsection's reasonable satisfaction standard is to be applied where the matter in issue is whether or not a veteran actually suffers the injury or disease said to be war-caused: see Repatriation Commission v Gosewinckel (1999) 59 ALD 690 at [35]-[49]. 32 It is well accepted that the Tribunal cannot use other evidence (expert or otherwise) to contradict or provide an alternative to the requirements of an SoP. As Weinberg J noted in Repatriation Commission v Gosewinckel at [67]: "Section 120A and the associated provisions in Part XIA of the VE Act [which include s 196B] were introduced in order to take the determination of 'purely medical ... issues' out of the hands of bodies such as the [Tribunal]."


case_text: The interaction of s 120 and s 120A has been considered in many cases, but most notably in Repatriation Commission v Deledio (1998) 83 FCR 82 which provided an exposition of the proper application of the provisions which, as in the present matter, is now regularly applied by the Commission and the Tribunal. The four steps the Court identified (at 97-98) are often referred to as "the Deledio steps". They are: "1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail. 2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11) ... 3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could never be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be 'reasonable' and the claim will fail. 4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved." 10 The appeal is concerned primarily with the third of these steps. 11 Before turning to each of the diseases in issue there is one further matter of a general character to which I need refer. It relates to SoPs. The function of an SoP for s 120(3) purposes is to prescribe a medical-scientific standard with which a hypothesis must be consistent: Deledio , at 96. Accentuating the "medical-scientific" character of the standards set in the three presently relevant SoPs, the factor or factors which must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting the relevant disease with a person's service, are all related in some way (usually by time) to the " clinical onset" or the " clinical worsening" of the disease. Diagnostic criteria, or else prescribed symptoms, are in turn specified for each of the diseases. 12 I emphasise the above for this reason. The essence of the Commission's challenge to the Tribunal's reasons in relation both to alcohol abuse and the depressive condition is that the clinical judgment and diagnostic standards prescribed in the two relevant SoPs were simply not made or applied respectively in raising the s 120(3) reasonable hypothesis. Because the Tribunal found that the clinical onset of each disease pre-dated war service, the relevant factor the SoP in each instance required to exist was tied to "the clinical worsening" of the respective diseases. As will be seen, the proper construction of this formula is central to this appeal. 13 For ease in exposition I will deal separately with the appeal as it relates to each of the three diseases. 16 Though Mr Milenz gave somewhat inconsistent histories of his drinking habits to those who provided expert reports, the evidence clearly established this problem predated both his operational service and the event on HMAS Yarra. In consequence, the Tribunal's focus in par 5 of the SoP above was upon factor (d). For Deledio step three purposes, the Tribunal was satisfied that a reasonable hypothesis had been raised that (a) Mr Milenz had experienced a "severe psychosocial stressor" in the "action stations" event; (b) he suffered from alcohol abuse; (c) there was material pointing to alcohol abuse existing prior to operational service being worsened by service; and (d) the hypothesis was consistent with the template in the SoP. 17 For the purposes of Deledio step four, the Tribunal was satisfied that (i) the psychosocial stressor was an identifiable event that evoked feelings of distress in Mr Milenz: Reasons [75]; and (ii) there had been a clinical worsening of the alcohol abuse: Reasons [77]. As to the latter, it commented at [78]: "The history of alcohol consumption is confusing and inconsistent, however, it was consumed prior to operational service. On occasions the quantity was immodest. But after operational service, the quantity, type and frequency of alcohol consumed was far greater. It follows that there has been a clinical worsening of alcohol abuse. The worsening, in my view is referable to him having experienced a severe stressor, as defined and within two years of the worsening. There was an event which objectively did occur and from which Mr Milenz suffered a subjective reaction. His increased alcohol consumption was an element of that reaction:" emphasis added. 18 In consequence the Tribunal was not satisfied beyond reasonable doubt that the Commission had established that the condition of alcohol abuse was not war-caused. 19 Three psychiatrists, Drs Percival, Ratnayake and Strauss provided reports for the Commission and two of them (Drs Percival and Strauss) gave brief oral evidence. Mr Milenz did not call any medical witnesses.


case_text: The question whether a disease as defined in a SoP has clinically worsened is a medical one, raising as it does a diagnostic question. I have emphasised "as defined" for the reason that the clinical worsening must be of the disease having the features, symptoms and manifestations prescribed in the relevant SoP's definition: cf Lees v Repatriation Commission [2002] FCAFC 398 ; (2002) 125 FCR 331 at [16] .


case_text: As I have already indicated, the definition of "alcohol abuse" provides its own diagnostic criteria. I need not repeat them here. These contrive the inquiry to be undertaken by a doctor in determining for the purposes of the SoP whether the disease is, or was, present at a particular time: cf Repatriation Commission v Cornelius [2002] FCA 750 at [26] ; or whether that disease, being present, had worsened. In other words, to use the language of the definition, the worsening is in the "clinically significant impairment or distress" which resulted from the maladaptive pattern of alcohol abuse and which, importantly for present purposes, was "manifested" in one or more of the prescribed ways within a 12-month period. 35 What is clear, in my view, is that the Tribunal misconstrued what was comprehended by the clinical worsening requirement of par 5(d) of the SoP. That requirement imposed a medical-scientific standard, not a lay standard. Though the Tribunal found a clinical worsening of Mr Milenz's alcohol abuse, it did not address whether there was a worsening in the disease as defined and manifest. It simply inferred a worsening because, "after operational service, the quantity, type and frequency of alcohol consumed was far greater". These are not features or manifest symptoms of the disease defined in par 2(b) of the SoP. 36 The consequence of the Tribunal so treating par 5(d) is that the actual hypothesis it considered was pointed to on the material before it was not one upheld by the SoP. For this reason the decision as it relates to alcohol abuse must be set aside.


case_text: The course pressed on me is not one I am prepared to take. I do not speculate on the likely fate of Mr Milenz's claim on a rehearing particularly given the standard of proof provisions of the VE Act. He is entitled to have his case put again to the Tribunal. It is possible that it might come to a result favourable to him: cf Santa Sabina College v Minister for Education (1985) 58 ALR 527 at 540. 39 The appeal in relation to this condition can be dealt with relatively briefly as it raises the same general issue as that considered in relation to alcohol abuse. 40 Only one of the three psychiatrists, Dr Strauss, diagnosed Mr Milenz as having a depressive disorder. Such views as the other two had on whether Mr Milenz suffered from a depressive/anxiety condition of some variety had no relevance either to the condition found by the Tribunal or to the SoP applying to it. That SoP (No 58 of 1998) concerned "Depressive Disorder".


case_text: To that list can be added: • it is necessary that the evidence sought to be adduced is relevant within the meaning of s 56 Evidence Act 1995 (Cth) and is of probative value (cf Australian Securities and Investments Commission v Rich [2006] NSWSC 826 at [18] ); and • the court must be conscious of the principle of finality of litigation in deciding whether to exercise discretion to allow evidence after the conclusion of the trial ( Bradshaw [2006] FCA 22 at [25] ).


case_outcome: related

case_text: As I have noted in my judgment in the primary proceedings ( Bing! Software Pty Ltd v Bing Technologies Pty Limited (No 1) [2008] FCA 1760) an undertaking given by a party to proceedings in Court is enforceable by order of the Court pursuant to O 35 r 11 Federal Court Rules . The submission of the first respondent that it anticipates the applicant submitting that the first respondent "giving the undertaking is not enough" is: • curious in light of the power of the Court to enforce the undertaking; and • indicative of the fact that the respondents, in seeking to introduce this additional evidence, are attempting a "second bite" at the case after the trial has concluded.


case_text: It is not in dispute that the Court has the power to grant leave for further evidence-in-chief to be adduced after the trial of the proceeding has concluded and judgment reserved. Indeed this jurisdiction is well recognised: Murray v Figge (1974) 4 ALR 612 , Gulf Pacific Pty Ltd v Londish [1992] FCA 502 , Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471, Smith v New South Wales Bar Association (1992) 176 CLR 256 , McCarthy v McIntyre [2000] FCA 1250 , Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 , Hawthorn Glen Pty Ltd v Aconex Pty Ltd (No 1) [2007] FCA 2010.


case_title: Hawthorn Glen v Aconex (No 1) [2007] FCA 2010


case_outcome: considered

case_text: It is not in dispute that the Court has the power to grant leave for further evidence-in-chief to be adduced after the trial of the proceeding has concluded and judgment reserved. Indeed this jurisdiction is well recognised: Murray v Figge (1974) 4 ALR 612 , Gulf Pacific Pty Ltd v Londish [1992] FCA 502 , Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471, Smith v New South Wales Bar Association (1992) 176 CLR 256 , McCarthy v McIntyre [2000] FCA 1250 , Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 , Hawthorn Glen Pty Ltd v Aconex Pty Ltd (No 1) [2007] FCA 2010. 13 In Bradshaw [2006] FCA 22 , Kenny J conveniently summarised the circumstances in which the Court will permit further evidence to be adduced between conclusion of the hearing and delivery of judgment as follows: [24] The authorities indicate that, broadly speaking, there are four recognised classes of case in which a court may grant leave to re-open, although these classes overlap and are not exhaustive. These four classes are (1) fresh evidence (Hughes v Hill [1937] SASR 285 at 287; Smith v New South Wales Bar Assn [No 2] (1992) 108 ALR 55 at 61 2); (2) inadvertent error (Brown v Petranker (1991) 22 NSWLR 717 at 728 (application to recall a witness); Murray v Figge (1974) 4 ALR 612 at 614 (application to tender answers to interrogatories); Henning v Lynch [1974] 2 NSWLR 254 at 259 (application to re-open); (3) mistaken apprehension of the facts (Urban Transport Authority of NSW v NWEISER (1992) 28 NSWLR 471 ("UTA") at 478; and (4) mistaken apprehension of the law (UTA at 478). In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open: see UTA at 478; also The Silver Fox Co Pty Ltd as Trustee for the Baker Family Trust v Lenard's Pty Ltd (No 2) [2004] FCA 1310 ("Silver Fox") at [22] and [25]. 15 To that list can be added: • it is necessary that the evidence sought to be adduced is relevant within the meaning of s 56 Evidence Act 1995 (Cth) and is of probative value (cf Australian Securities and Investments Commission v Rich [2006] NSWSC 826 at [18] ); and • the court must be conscious of the principle of finality of litigation in deciding whether to exercise discretion to allow evidence after the conclusion of the trial ( Bradshaw [2006] FCA 22 at [25] ).


case_title: McCarthy v McIntyre [2000] FCA 1250


case_text: In my view: • This is not a case where the first respondent has made a deliberate tactical decision not to adduce, during the proceedings, evidence which was already available. However the occurrence of the events the subject of the 9 April affidavit flow from a deliberate tactical decision of the first respondent during the trial to give an undertaking, the purpose of which as the respondents admit was to bring themselves within the principles articulated in MID Sydney Pty Ltd v Australian Tourism Co Ltd (1998) 90 FCR 236. I consider that, in principle, the distinction between: o making a deliberate tactical decision during the proceedings not to adduce evidence then available; and o making a deliberate tactical decision during the proceedings to give an undertaking from which evidence follows after the trial; is minimal in the sense that both decisions relate to the manner in which the first respondent has decided to conduct its case and the evidence to be put before the Court. In summary, it is as a result of decisions taken by the respondents, during the proceedings as to the manner in which their case was to be conducted, that the respondents now seek to put additional evidence before the Court. • I consider that allowing the respondents to supplement their case after the conclusion of the applicant's case at trial would offend the principle of finality of litigation. It is not in the interests of justice that a litigant should be entitled to adduce additional evidence after the conclusion of proceedings simply to bolster its own position, which I consider is the intention of the respondents here. • As the respondents concede, the evidence in the 9 April affidavit simply provides additional evidence that there has been compliance with the undertaking given by the first respondent in Court. I do not consider this evidence so material that the interests of justice require its admission. Further, while the evidence in the 9 April affidavit is of relevance to the primary proceedings, I consider that it would be of particular relevance in the event that the applicant subsequently claimed that the first respondent had failed to comply with that undertaking. I make this observation because I consider that the evidence goes primarily to compliance with the undertaking. • I do not consider that the additional evidence in the 9 April affidavit is evidence which, if believed, would most probably affect the result of the primary proceedings. The undertaking given by the first respondent in Court on 11 March 2008, and supported by an affidavit of Mr Cranitch, is enforceable on its own terms. • While, as I have already indicated, I consider the applicant has demonstrated little potential prejudice should I exercise my discretion to permit the respondents to adduce this additional evidence, that is not in itself a reason to exercise my discretion in the respondents' favour in light of the other factors I have taken into account. 23 Accordingly the notice of motion should be dismissed. I shall hear submissions as to costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 25 November 2008 Counsel for the Applicant: Mr A Franklin SC Solicitor for the Applicant: Bennett & Philp Counsel for the Respondent: Mr A Crowe SC Solicitor for the Respondent: Holding Redlich Date of Hearing: 27 May 2008 Date of Judgment: 25 November 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1761.html


case_title: Murray v Figge (1974) 4 ALR 612

case_text: It is not in dispute that the Court has the power to grant leave for further evidence-in-chief to be adduced after the trial of the proceeding has concluded and judgment reserved. Indeed this jurisdiction is well recognised: Murray v Figge (1974) 4 ALR 612 , Gulf Pacific Pty Ltd v Londish [1992] FCA 502 , Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471, Smith v New South Wales Bar Association (1992) 176 CLR 256 , McCarthy v McIntyre [2000] FCA 1250 , Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 , Hawthorn Glen Pty Ltd v Aconex Pty Ltd (No 1) [2007] FCA 2010. 13 In Bradshaw [2006] FCA 22 , Kenny J conveniently summarised the circumstances in which the Court will permit further evidence to be adduced between conclusion of the hearing and delivery of judgment as follows: [24] The authorities indicate that, broadly speaking, there are four recognised classes of case in which a court may grant leave to re-open, although these classes overlap and are not exhaustive. These four classes are (1) fresh evidence (Hughes v Hill [1937] SASR 285 at 287; Smith v New South Wales Bar Assn [No 2] (1992) 108 ALR 55 at 61 2); (2) inadvertent error (Brown v Petranker (1991) 22 NSWLR 717 at 728 (application to recall a witness); Murray v Figge (1974) 4 ALR 612 at 614 (application to tender answers to interrogatories); Henning v Lynch [1974] 2 NSWLR 254 at 259 (application to re-open); (3) mistaken apprehension of the facts (Urban Transport Authority of NSW v NWEISER (1992) 28 NSWLR 471 ("UTA") at 478; and (4) mistaken apprehension of the law (UTA at 478). In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open: see UTA at 478; also The Silver Fox Co Pty Ltd as Trustee for the Baker Family Trust v Lenard's Pty Ltd (No 2) [2004] FCA 1310 ("Silver Fox") at [22] and [25]. 14 With respect to fresh evidence, Muirhead J held in Murray v Figge 4 ALR 612 that fresh evidence should be admitted only when: (a) it is so material that the interests of justice require it; (b) the evidence if believed would most probably affect the result; (c) the evidence could not by reasonable diligence have been discovered before; (d) inadvertence was established; and (e) no prejudice was suffered by the other party by reason of its introduction at a late point of time.


case_title: Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256


case_title: Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471

case_text: It is not in dispute that the Court has the power to grant leave for further evidence-in-chief to be adduced after the trial of the proceeding has concluded and judgment reserved. Indeed this jurisdiction is well recognised: Murray v Figge (1974) 4 ALR 612 , Gulf Pacific Pty Ltd v Londish [1992] FCA 502 , Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471, Smith v New South Wales Bar Association (1992) 176 CLR 256 , McCarthy v McIntyre [2000] FCA 1250 , Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 , Hawthorn Glen Pty Ltd v Aconex Pty Ltd (No 1) [2007] FCA 2010. 13 In Bradshaw [2006] FCA 22 , Kenny J conveniently summarised the circumstances in which the Court will permit further evidence to be adduced between conclusion of the hearing and delivery of judgment as follows: [24] The authorities indicate that, broadly speaking, there are four recognised classes of case in which a court may grant leave to re-open, although these classes overlap and are not exhaustive. These four classes are (1) fresh evidence (Hughes v Hill [1937] SASR 285 at 287; Smith v New South Wales Bar Assn [No 2] (1992) 108 ALR 55 at 61 2); (2) inadvertent error (Brown v Petranker (1991) 22 NSWLR 717 at 728 (application to recall a witness); Murray v Figge (1974) 4 ALR 612 at 614 (application to tender answers to interrogatories); Henning v Lynch [1974] 2 NSWLR 254 at 259 (application to re-open); (3) mistaken apprehension of the facts (Urban Transport Authority of NSW v NWEISER (1992) 28 NSWLR 471 ("UTA") at 478; and (4) mistaken apprehension of the law (UTA at 478). In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open: see UTA at 478; also The Silver Fox Co Pty Ltd as Trustee for the Baker Family Trust v Lenard's Pty Ltd (No 2) [2004] FCA 1310 ("Silver Fox") at [22] and [25].


case_text: It can be seen that the content of the mandatory injunction is directed to achieving by an interlocutory order what is sought by para 3 of the claim for final relief. In order to make such an order, the Court would require a high degree of satisfaction that the applicant would be entitled to that relief at trial by way of final relief. In terms of an interlocutory mandatory order where a higher risk of injustice might arise, it is not enough for the Court to be satisfied that the applicant has demonstrated a sufficient likelihood of success in terms of Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 at [65] to [72] per Gummow and Hayne JJ. A higher state of assurance is necessary ( Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 92 ALR 499 per Gummow J). 43 For present purposes, I am satisfied by the weight of the applicant's material that had the financial adviser assumed a management responsibility for the margin loan transaction in each case and more particularly a "sole" responsibility for the management of the margin loan account through the period, the documents as between the Bank and Storm and in particular the letter of 18 May 2007 would have said so in clear and transparent terms. Secondly, the documents as between the financial adviser and the client would have reflected that position. Mr Cassimatis says it was not so as a matter of practice. Mr Johnston says it was not so in his experience although his experience concluded in 2003. Mr McCullough also gives evidence consistent with Mr Cassimatis. I am satisfied that solely for interlocutory purposes, Storm has demonstrated a sufficient likelihood of success in terms of Australian Broadcasting Corporation v O'Neill demonstrating that the statement as to sole management of the margin loan accounts and instructions allegedly given in the meeting on 4 December 2008 are capable of being misleading or deceptive or likely to mislead or deceive. Of course, the ultimate position must be tested at trial where the evidence will be closely examined and findings reached on all aspects of the controversy. 44 Storm also relies upon a further letter written by the Bank on 17 December 2008 in which it says that Storm is "completely responsible for your financial position". In that letter, the Bank changed its position slightly from one of asserting sole management of the clients margin loan throughout the period to one where "Storm Financial is primarily responsible for your margin loan and we are disappointed if they have not kept you informed of your account position or any instance of margin call". Storm also complains that the letter goes on to offer defaulting borrowers the opportunity to meet with another financial planner for a one hour consultation to discuss the borrower's financial position. Storm says that it only complains about that as a statement which reinforces the notion that Storm as manager of the margin loan has failed to discharge its responsibilities. 45 The Bank has not offered any undertaking not to make any of the statements complained of.


case_text: It can be seen that the content of the mandatory injunction is directed to achieving by an interlocutory order what is sought by para 3 of the claim for final relief. In order to make such an order, the Court would require a high degree of satisfaction that the applicant would be entitled to that relief at trial by way of final relief. In terms of an interlocutory mandatory order where a higher risk of injustice might arise, it is not enough for the Court to be satisfied that the applicant has demonstrated a sufficient likelihood of success in terms of Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 at [65] to [72] per Gummow and Hayne JJ. A higher state of assurance is necessary ( Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 92 ALR 499 per Gummow J).


case_outcome: referred to

case_text: The Federal Magistrate found that there was no arguable jurisdictional error affecting the Tribunal's decision. His Honour found that the Tribunal had complied with its obligations under ss 425 and 425A of the Act and that it was sufficient for the Tribunal to send an invitation to the authorised recipient pursuant to ss 441A(4) and 441G (1) of the Act and Reg 4.35D of the Migration Regulations 1994 (Cth) ("the Regulations "). The Federal Magistrate was not satisfied that the Tribunal had not followed those procedures and considered that it was probable that it did. He noted that the appellant was seeking to take advantage of his failure to comply with the instructions contained in Section D of the form on which he applied to the Tribunal for review of the delegate's decision. Section D asked the applicant: "Where do you want us to send correspondence about your application?" Various options appeared in the form. An applicant was instructed to "tick one box only." Despite this the appellant had ticked the boxes adjacent to "my residential address in Australia" and a box which authorised correspondence in connection with the review to be received by "my adviser". The Federal Magistrate held that the requirements of the Act relating to the giving of notice of a hearing had been satisfied by the advice given to the adviser notwithstanding the Tribunal's failure also to advise the appellant directly. His Honour relied on his decision in Song v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 685. The Federal Magistrate was prepared to accept that the appellant did not have actual notice, but considered that, if preconditions for the exercise of its power exist and the Tribunal has properly exercised its discretion to proceed, then it has no obligation to make further enquiries or efforts to notify an applicant that it proposed to do so. 7 The Federal Magistrate found that the Tribunal had taken into account the contents of the telephone conversation with the appellant's migration agent before deciding to proceed pursuant to s 426A(1) of the Act , but that there was no breach of s 424A(1) of the Act because the Tribunal did not take the information into account in order to affirm the delegate's decision. However, his Honour considered that, even if this conclusion were incorrect, the information from the appellant's migration agent would be treated as information given by the appellant and would attract the exception provided for in s 424A(3)(b) of the Act .


case_text: Rupert Co v Chameleon Mining (2006) 24 ACLC 635 presented factual circumstances somewhat similar to those of the present case. Austin J stated in that case (at [15]) that in the exercise of its discretion whether to terminate the winding up, the Court considers the interests of creditors (including future creditors), the liquidator, contributories and the public. 25 In the present case, the application is made by the Liquidators; the existing creditors have voted in favour of the DOCA and the Terraplanet Creditors' Trust; and the contributories (that is, the shareholders) have voted in favour of the various resolutions to implement the recapitalisation proposal. 26 Terraplanet is released from all existing debts under an arrangement that sees existing creditors better off than they would be if the winding up were to proceed to finalisation. 27 This leaves future creditors to be considered. In substance, Terraplanet is to commence its commercial life again. No doubt Dalgety is of the view that its capitalisation of Terraplanet is adequate to enable it to succeed commercially. 28 In the light of the absence of any existing debts and of the recapitalisation of the company, I infer that Terraplanet is solvent. There is no reason to doubt, on the present evidence, that the company will be able to pay debts it will incur as and when they fall due after it recommences business.


case_text: the applicant pays the first respondent and second respondent's taxed costs in this action. Mr Wharton now contends that the consent order was obtained by fraud. He says it should be set aside and an order made for the reinstatement of proceeding TAD 19 of 2003; see O 35 r 7(2) of the rules of Court. The motion was filed in TAD 19 of 2003. It may, more appropriately, have constituted a separate proceeding; although nothing material turns on this. See Pembroke School Incorporated v Human Rights and Equal Opportunity Commission [2002] FCA 1020 at [22] per Mansfield J. Mr Wharton submits that there is new evidence available which leads to the conclusion that the respondents perverted the course of justice. The new evidence is said to be that contained in a statutory declaration of a "key witness". Mr Wharton says that the new evidence shows that the respondents misled and deceived the witness in order to harm Mr Wharton's legal rights. Mr Wharton also says that the new evidence shows that the respondents turned the witness hostile against Mr Wharton. The relevant witness is Mrs Barbara Adams. In his substantive application, the subject of the consent order, Mr Wharton asserted that the respondents had taken his work in respect of a tourism proposal and had announced a proposal from Mrs Adams bearing a striking similarity to his proposal. In a statement filed in support of his original application, Mr Wharton said that he had met with Mrs Adams who told him, and others, that she had been approached by the respondents concerning the project. The inescapable inference from that statement is that Mr Wharton suspected strongly that Mrs Adams did not have her own plans for a tourism development but was being used by the respondents.


case_text: raises the issue of the difficulty in setting aside an order obtained by consent. There is no considered judgment of the Court to use as a yardstick to assist in determining what might have occurred; see SZCZF v Minister for Immigration and Citizenship [2009] FCA 208, where Flick J discussed other difficulties in setting aside a consent order. There is also the difficulty of the delay between the consent order in 2005 and this application some four years later. The reason for the delay is not satisfactorily explained by Mr Wharton. The evidence which is said to be new could have been adduced with appropriate questioning and the exercise of reasonable diligence by him at the trial. For the foregoing reasons the applicant's motion is dismissed with costs, to be agreed or taxed in default of agreement. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 28 July 2009 The Applicant represented himself. Counsel for the Respondents: Mr M O'Farrell SC Solicitor for the Respondents: James Crotty Barristers & Solicitors Date of Hearing: 27 July 2009 Date of Judgment: 27 July 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/791.html


case_text: principles governing the grant of interlocutory relief are settled. On application for an interlocutory injunction, the applicants must show that: (a) there is a serious question to be tried in respect of the actual or threatened infringement of the patent in suit; and (b) the balance of convenience favours the grant of an interlocutory injunction, including that an award of damages would not be an adequate remedy for the irreparable harm the applicants would suffer if an interlocutory injunction were not granted. In order to demonstrate that there is a serious question to be tried, the applicants must make out a prima facie case in the sense that, if the evidence remains the same, then there is a probability that at trial they will be found entitled to relief. As Gummow and Hayne JJ explained in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 at 81-82 [65] - [70] , "it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial". Their Honours added at 84 [71], "the governing consideration [is] that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought". Gyles J rejected a submission to the effect that the decision of the High Court in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 had restored the authority of Beecham in this regard. His Honour noted, correctly in my view, that the reaffirmation of Beecham by the High Court in O'Neill concerned the elucidation of what is required for a prima facie case (or serious question to be tried).


case_outcome: discussed

case_text: respondent's submission that, in a patent infringement case such as this, where the validity of the patent is challenged, the practice of the court is to refuse an interlocutory injunction depended on Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618 at 623-624. In Beecham , Kitto, Taylor, Menzies and Owen JJ referred (at 623) to "the special considerations which generally arise in a patent action where there is a substantial issue to be tried as to the validity of the patent". Their Honours (at 623-624) said: [T]he plaintiff's prima facie case must be a strong one so far as the question of validity is concerned, for he asserts a monopoly and must give more proof of the right he claims than is afforded by the mere granting of the patent ... The general practice in that kind of case has long been to refuse an interlocutory injunction unless either the patent has already been judicially held to be valid or it has stood unchallenged for a long period ... In Genrx (73 IPR at 503-504 [2]-[6]), Gyles J again considered the ongoing significance of Beecham for the grant of interlocutory injunctions in cases of alleged patent infringement. As his Honour observed, after American-Cyanamid Co v Ethicon Ltd [1975] UKHL 1 ; [1975] AC 396 , there was a good deal of discussion about the importance of apparent differences between American-Cyanamid and Beecham . His Honour continued (at 503 [4]): The most influential consideration of the issue in relation to patents was that by Gummow J in Martin Engineering Co v Trison Holdings Pty Ltd (1988) 81 ALR 543 ; 11 IPR 611. In the course of that judgment his Honour pointed out that the authorities referred to by the High Court in Beecham Group for not attributing great significance to the grant of a patent were old cases from England based upon a different system for grant than that which had developed in Australia by that time. The system of examination of patents prior to grant in Australia was more stringent than had been the case in England the century before. The practical effect of this decision was to give greater weight to the grant of a patent thereafter than might have been deduced from Beecham Group . Gyles J rejected a submission to the effect that the decision of the High Court in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 had restored the authority of Beecham in this regard. His Honour noted, correctly in my view, that the reaffirmation of Beecham by the High Court in O'Neill concerned the elucidation of what is required for a prima facie case (or serious question to be tried). The applicants submitted that the respondent got itself into this situation with its eyes wide open. As noted above, Ms Evans' evidence was that representatives of Shenzhen Ant had said that there were no patents that would cause any issue for the respondent in selling syringes in Australia. The applicants argued that the respondent ought to have checked the position for itself. That is, the respondent has offered for sale or sold the syringes in the knowledge that they were the subject of a patent, or in circumstances where the respondent should have known of the patent. A consideration of this kind has been weighed in the balance of convenience from time to time: see Beecham 118 CLR at 626; Tidy Tea Ltd v Unilever Australia Ltd (1995) 32 IPR 405 at 415; Pharmacia Italia SpA v Interpharma Pty Ltd (2005) 67 IPR 397 at 408 [52]; Interpharma 79 IPR at 282 [77]; and Sigma Pharmaceuticals [2009] FCA 595 at [61] - [62] . There would indeed appear to be some force in the applicants' criticism of the respondent's conduct in this regard. The evidence on this point is slight, however, and I would not therefore be inclined to give this factor much weight in determining the outcome of the applicants' interlocutory injunction application.


case_text: practice to which their Honours referred is no longer the practice of the courts. This much appears from the authorities to which counsel for the applicants referred me, including AB Hassle v Pharmacia (Australia) Pty Ltd (1995) 33 IPR 63 , Genrx Pty Ltd v Sanofi-Aventis [2007] FCA 1485 ; (2007) 73 IPR 502 , and Interpharma Pty Ltd v Commissioner of Patents [2008] FCA 1498 ; (2008) 79 IPR 261. The reason for the change in practice is that the legislative requirements for grant of a patent are more exacting than they once were and include provision for opposition proceedings before the grant. In AB Hassle (33 IPR at 69-70) Ashley J specifically rejected a submission similar to that made by the respondent in this case and held that, where the defendant challenged the validity of the patent, it was for the defendant to establish a triable question in respect of validity. If a strong case for invalidity was provisionally made out, then, as his Honour said, this factor would be relevant to the exercise of discretion.


case_text: practice to which their Honours referred is no longer the practice of the courts. This much appears from the authorities to which counsel for the applicants referred me, including AB Hassle v Pharmacia (Australia) Pty Ltd (1995) 33 IPR 63 , Genrx Pty Ltd v Sanofi-Aventis [2007] FCA 1485 ; (2007) 73 IPR 502 , and Interpharma Pty Ltd v Commissioner of Patents [2008] FCA 1498 ; (2008) 79 IPR 261. The reason for the change in practice is that the legislative requirements for grant of a patent are more exacting than they once were and include provision for opposition proceedings before the grant. In Genrx (73 IPR at 503-504 [2]-[6]), Gyles J again considered the ongoing significance of Beecham for the grant of interlocutory injunctions in cases of alleged patent infringement. As his Honour observed, after American-Cyanamid Co v Ethicon Ltd [1975] UKHL 1 ; [1975] AC 396 , there was a good deal of discussion about the importance of apparent differences between American-Cyanamid and Beecham . His Honour continued (at 503 [4]): The most influential consideration of the issue in relation to patents was that by Gummow J in Martin Engineering Co v Trison Holdings Pty Ltd (1988) 81 ALR 543 ; 11 IPR 611. In the course of that judgment his Honour pointed out that the authorities referred to by the High Court in Beecham Group for not attributing great significance to the grant of a patent were old cases from England based upon a different system for grant than that which had developed in Australia by that time. The system of examination of patents prior to grant in Australia was more stringent than had been the case in England the century before. The practical effect of this decision was to give greater weight to the grant of a patent thereafter than might have been deduced from Beecham Group . Further, Mr Reynolds' evidence is that, if the respondent is permitted to sell the syringes in issue, there will be what Gyles J called "interference with ... trade patterns": see Genrx at 506 [15] and Interpharma at 280 [71]. That is: If the respondent is permitted to continue supplying its syringes at a price that is approximately 20% less than Imaxeon's price, then Imaxeon would probably be compelled to lower the price for its equivalent syringes or lose its customer base. There is a real risk that if it held to its higher price, this would damage its reputation and have ramifications when a customer came to purchase or upgrade their injector system. If Imaxeon is compelled to lower the price for its syringes, the price reduction would probably be permanent (even if Imaxeon succeeded at trial) and result in a significant overall loss of revenue which would be very difficult to quantify. Any price increase would compromise Imaxeon's reputation and goodwill and the chances of securing new customers in a market where prices are either stable or declining. By regularly supplying their customers with replacement syringes, Imaxeon retains regular contact with the applicants' customers. This confers various advantages, including that Imaxeon is foremost in the customer's mind when the time arrives to replace an injector system. Imaxeon would likely suffer a loss of reputation if there were defects in the respondent's syringes because the defects would affect the operation of the injector system. (I note that, in argument, the applicants did not invite the court to give this consideration a great deal of weight since there was no evidence of defects in the respondent's syringes.) The respondent noted that the applicants had presented little detailed evidence on pricing and the effects of competition. The respondent noted that Mr Reynolds' affidavit established that, in any event, the major suppliers of injector systems compete against one another on the cost of the injector systems and consumables and that the prices for the applicants' syringes broadly reflect the pricing for other CT contrast injector systems. It followed, so the respondent said, that price competition was a feature of the market and that the applicants were already competing with the respondent, which was supplying syringes to competing systems. The respondent noted that the applicants had not yet lowered their prices as a result of the respondent's entry into the market. Further, the respondent challenged Mr Reynolds' evidence that any price reduction would be permanent and, in this regard, referred to Ms Evans' evidence that this had not been her experience in the business of Jacobs Medical Australia Pty Ltd. The respondent observed that, in elaborating on the harm likely to befall their business, the applicants had engaged in a degree of speculation. I accept that evidence about the nature of the competition in the medical injector systems and associated consumables market and the effect of new entrants might well be complex. Obtaining complete evidence of this kind would be expensive and probably unjustified for this application. It is undisputed that the applicants occupy a large proportion of the present market, and derive a large proportion of their revenue from the sales of consumables for the contrast injector systems, particularly KLIKFIT syringes and STELLANT™ syringes for the VISIMAX® CT and the STELLANT™ CT contrast injector systems respectively.


case_text: practice to which their Honours referred is no longer the practice of the courts. This much appears from the authorities to which counsel for the applicants referred me, including AB Hassle v Pharmacia (Australia) Pty Ltd (1995) 33 IPR 63 , Genrx Pty Ltd v Sanofi-Aventis [2007] FCA 1485 ; (2007) 73 IPR 502 , and Interpharma Pty Ltd v Commissioner of Patents [2008] FCA 1498 ; (2008) 79 IPR 261. The reason for the change in practice is that the legislative requirements for grant of a patent are more exacting than they once were and include provision for opposition proceedings before the grant. The applicants submitted that the respondent got itself into this situation with its eyes wide open. As noted above, Ms Evans' evidence was that representatives of Shenzhen Ant had said that there were no patents that would cause any issue for the respondent in selling syringes in Australia. The applicants argued that the respondent ought to have checked the position for itself. That is, the respondent has offered for sale or sold the syringes in the knowledge that they were the subject of a patent, or in circumstances where the respondent should have known of the patent. A consideration of this kind has been weighed in the balance of convenience from time to time: see Beecham 118 CLR at 626; Tidy Tea Ltd v Unilever Australia Ltd (1995) 32 IPR 405 at 415; Pharmacia Italia SpA v Interpharma Pty Ltd (2005) 67 IPR 397 at 408 [52]; Interpharma 79 IPR at 282 [77]; and Sigma Pharmaceuticals [2009] FCA 595 at [61] - [62] . There would indeed appear to be some force in the applicants' criticism of the respondent's conduct in this regard. The evidence on this point is slight, however, and I would not therefore be inclined to give this factor much weight in determining the outcome of the applicants' interlocutory injunction application.


case_text: Genrx (73 IPR at 503-504 [2]-[6]), Gyles J again considered the ongoing significance of Beecham for the grant of interlocutory injunctions in cases of alleged patent infringement. As his Honour observed, after American-Cyanamid Co v Ethicon Ltd [1975] UKHL 1 ; [1975] AC 396 , there was a good deal of discussion about the importance of apparent differences between American-Cyanamid and Beecham . His Honour continued (at 503 [4]): The most influential consideration of the issue in relation to patents was that by Gummow J in Martin Engineering Co v Trison Holdings Pty Ltd (1988) 81 ALR 543 ; 11 IPR 611. In the course of that judgment his Honour pointed out that the authorities referred to by the High Court in Beecham Group for not attributing great significance to the grant of a patent were old cases from England based upon a different system for grant than that which had developed in Australia by that time. The system of examination of patents prior to grant in Australia was more stringent than had been the case in England the century before. The practical effect of this decision was to give greater weight to the grant of a patent thereafter than might have been deduced from Beecham Group .


case_text: approach is consistent with that of Sundberg J in Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth [2009] FCA 595 , where his Honour granted an interlocutory injunction in an alleged case of patent infringement, notwithstanding that he was satisfied that there was a prima facie case that the invention would have been obvious to a person skilled in the relevant art in light of the common general knowledge as it existed in Australia before the priority date. See also Wake Forest University Health Sciences v Smith & Nephew Pty Ltd [2009] FCA 630 at [36] and [55], where Ryan J held that there was a serious question to be tried on the issue of novelty, but granted an interlocutory injunction on the basis that the applicants had established a serious question to be tried on infringement. The applicants submitted that the respondent got itself into this situation with its eyes wide open. As noted above, Ms Evans' evidence was that representatives of Shenzhen Ant had said that there were no patents that would cause any issue for the respondent in selling syringes in Australia. The applicants argued that the respondent ought to have checked the position for itself. That is, the respondent has offered for sale or sold the syringes in the knowledge that they were the subject of a patent, or in circumstances where the respondent should have known of the patent. A consideration of this kind has been weighed in the balance of convenience from time to time: see Beecham 118 CLR at 626; Tidy Tea Ltd v Unilever Australia Ltd (1995) 32 IPR 405 at 415; Pharmacia Italia SpA v Interpharma Pty Ltd (2005) 67 IPR 397 at 408 [52]; Interpharma 79 IPR at 282 [77]; and Sigma Pharmaceuticals [2009] FCA 595 at [61] - [62] . There would indeed appear to be some force in the applicants' criticism of the respondent's conduct in this regard. The evidence on this point is slight, however, and I would not therefore be inclined to give this factor much weight in determining the outcome of the applicants' interlocutory injunction application.


case_text: approach is consistent with that of Sundberg J in Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth [2009] FCA 595 , where his Honour granted an interlocutory injunction in an alleged case of patent infringement, notwithstanding that he was satisfied that there was a prima facie case that the invention would have been obvious to a person skilled in the relevant art in light of the common general knowledge as it existed in Australia before the priority date. See also Wake Forest University Health Sciences v Smith & Nephew Pty Ltd [2009] FCA 630 at [36] and [55], where Ryan J held that there was a serious question to be tried on the issue of novelty, but granted an interlocutory injunction on the basis that the applicants had established a serious question to be tried on infringement.


case_text: applicants submitted that the respondent got itself into this situation with its eyes wide open. As noted above, Ms Evans' evidence was that representatives of Shenzhen Ant had said that there were no patents that would cause any issue for the respondent in selling syringes in Australia. The applicants argued that the respondent ought to have checked the position for itself. That is, the respondent has offered for sale or sold the syringes in the knowledge that they were the subject of a patent, or in circumstances where the respondent should have known of the patent. A consideration of this kind has been weighed in the balance of convenience from time to time: see Beecham 118 CLR at 626; Tidy Tea Ltd v Unilever Australia Ltd (1995) 32 IPR 405 at 415; Pharmacia Italia SpA v Interpharma Pty Ltd (2005) 67 IPR 397 at 408 [52]; Interpharma 79 IPR at 282 [77]; and Sigma Pharmaceuticals [2009] FCA 595 at [61] - [62] . There would indeed appear to be some force in the applicants' criticism of the respondent's conduct in this regard. The evidence on this point is slight, however, and I would not therefore be inclined to give this factor much weight in determining the outcome of the applicants' interlocutory injunction application.


case_title: Pharmacia Italia SpA v Interpharma Pty Ltd (2005) 67 IPR 397


case_text: The Applicant contends that there is no power to revoke the s 16 notice: Dutton v Republic of South Africa [1999] FCA 498 , 162 ALR 625 ; Tervonen v Minister for Justice and Customs (No 2) [2007] FCA 1684 at [108] , [2007] FCA 1684 ; 98 ALD 589 (Varied: Minister for Home Affairs v Tervonen [2008] FCAFC 24).


case_title: Tervonen v Minister for Justice and Customs (No 2) [2007] FCA 1684


case_text: 15 May 2008, the ATO officer again wrote to Mr Nicholls, relevantly, in the following terms: The ATO and AFP have so far acquiesced to what amounts to a "blanket" claim for LPP notwithstanding that you have no legal basis for doing so. Opportunity was provided at the time of the warrant execution for you to make specific LPP claims which you did not do. You were also provided the opportunity to examine documents before they were removed from your premises and indeed I have been informed that you appeared to do so in the presence of the AFP Federal Agents Allen and Cameron in attendance at the time. On three occasions you attended in the shed at your property and examined documents and other records set aside for seizure by me whilst I was present but made no claim at the time in relation to those records. I acknowledge that you made reference to communications with lawyers at the time in the context that electronic records were likely to contain such communications however, I am informed by Federal Agent Allen that you did not make specific reference to any communication or document nor seek to claim LPP for such communication(s). A claim for LPP is based upon communications or documentation made for the dominant purpose of obtaining or giving legal advice and/or for the dominant purpose of conducting actual or contemplated litigation. Based upon records of the seizure, there appears to be a significant amount of documentation relating to financial records, invoicing, receipts, expenses, banking documents, diaries, notebooks and like documents. As such, there does not appear to be any basis for a claim of LPP. That letter then referred to the "dominant purpose test" in determining whether legal professional privilege exists, as set by Kenny J in Commissioner of Taxation v Pratt Holdings Pty Ltd [2004] FCAFC 122 ; (2004) 136 FCR 357 , and continued: In relation to any LPP claim you wish to make in respect of records held in electronic form, please indicate the location of such records and specifically identify the parties to the communications. The ATO will seek to have the LPP issue dealt with expeditiously and will not agree to or accept any unnecessary delay in respect of the same. The ATO officer then set out a proposal for access to be granted to the seized material for the purpose of Mr Nicholls identifying the seized material over which he claimed legal professional privilege. The letter differentiated between the hard copy seized material and the electronically stored seized material, requiring Mr Nicholls to identify with sufficient particularity his claim to legal professional privilege, with a full and proper description of each document and the basis upon which he claimed legal professional privilege: Each non-electronic document over which you make an LPP claim should be addressed by you vide the following criteria: (a) the nature of the document (e.g. advice, invoice, contract, etc): (b) the exact number of pages; (c) the date the document was prepared or executed; (d) the identity of each person(s) who prepared and/or signed the document and the identity of the person(s), if anyone, to whom it was directed; (e) a physical description of the document (e.g. typed or handwritten); (f) whether the document is an original or a copy; (g) whether LPP is asserted over the whole document or a part of the document and, if the latter, what part; (h) the basis upon which a claim of LPP is asserted; and (i) the person(s) in whose name the LPP claim is asserted and whether consent to the asserting of LPP has been given by that person or those persons. With regard to electronically stored communications and documents, as I stated, you have the original source in your possession. Upon attending any viewing process or at any time before that, you should be able to supply a list of such communications or documents electronically stored over which you wish to claim LPP which addresses the following criteria: (a) the filename of the document (eg. Smith.doc); (b) the location of the document (eg. C:/My Documents/Partner); (c) the nature of the document (e.g. advice, invoice, contract, etc); (d) the exact number of pages; (e) the date the document was prepared or executed; (f) whether LPP is asserted over the whole document or a part of the document and, if the latter, what part; (g) the basis upon which a claim of LPP is asserted; and (h) the person(s) in whose name the LPP claim is asserted and whether consent to the asserting of LPP has been given by that person or those persons. The letter then set out that any claims to legal professional privilege, in respect of both hard copy and electronically stored seized material, should record "sufficient information for the ATO to determine whether they wish to challenge the claim". Mr Nicholls replied by way of letter on 15 May 2008, relevantly, that he did not accept the ATO or AFP's "recollection of events in relation to the matters relating to LPP", and indicated that he was in the course of communications with the Legal Services Commission (LSC) in relation to his claim to legal professional privilege and advised: until such time as we have received a formal response from the LSC and have secured legal representation to adequately respond to the issues at hand, we do not waive our claim of legal professional privilege nor do we agree to the ATO accessing our documentation in the interim period. It appears that the process of identifying the claim to legal professional privilege stalled at that stage.


case_text: 12 March 2009 I ruled on Mr Nicholls' claim for legal professional privilege in respect of items 001 and 015: Deputy Commissioner of Taxation v Nicholls (No 2) [2009] FCA 234. I rejected the claim for legal professional privilege in respect of the documents in item 001, but upheld the claim for legal professional privilege in respect of the documents in item 015 described in the letter of 23 October 2008 as: Term Sheet "3pm" Handwriting 6 pages (4/5/2007) Email Discussions 4 & 8 May 2007/09:07am & 8:11am (2 pages) Spreadsheet of Whiteboard discussions (undated) (2 pages) Paper-clip 3 pages "Nettina/Julian Gyngell" discussions re 4 May 2007 08:54am 08 May 2007 08:15am email re Citech Conference Call Mr Nicholls did not appeal from that decision. The position therefore is that, in respect of seized items 001 and 015, described on the Record of Receipt of 8 May 2008 respectively as: Item 001: 11 x A4 sheets of documents on 1 x CD "SDS CITECH EMAILS GIVEN TO THE ATO" Item 015: Folder named Product development, Folder named SDS (invoices), Folder named SDS, Folder named Shareholders CR, legal professional privilege exists in respect only of the five documents in item 015 set out in the preceding paragraph. There remained the broad claims for privilege over certain other hard copy documents seized which, on the basis of Mr Nicholls' table enclosed with his solicitor's letter of 23 October 2008, the DCT had accepted in principle that privilege existed. As to that material, on 12 May 2009 I ordered Mr Nicholls to lodge in a sealed envelope or envelopes, marked as the case may be, the redacted documents, being the copy of the hard copy seized material, a copy of which was provided to Mr Nicholls by the Registry, redacted to exclude material which Mr Nicholls claimed to be privileged.


case_text: there have been separate issues as to whether the documents on both files to which O 46 r 6(1) and (2) of the Federal Court Rules applies should be available for inspection by any member of the public. I ruled on that issue: Deputy Commissioner of Taxation v Nicholls [2009] FCA 122 and Nicholls v Australian Federal Police (No 2) [2009] FCA 123. I also ruled on an application by Mr Nicholls that certain documents be ordered to be confidential, pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth). I refused to make such an order: Nicholls v Australian Federal Police (No 3) [2009] FCA 152.


case_text: onus is on the party claiming privilege to show that the document is privileged by pointing to the nature of the document itself or by evidence describing the circumstances in which the document was brought into existence: see Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 689, and Gold Securities Australia Pty Ltd v Siebe PLC (unreported, NSWSC, Giles J, 31 October 1990).


case_text: document is subject to legal professional privilege if it is a confidential communication between a client and the client's legal adviser, whether oral or in the form of written or other material, if it was made for the dominant purpose of submission to the legal adviser for advice (whether connected with litigation or not), or for use in existing or anticipated litigation: see Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 688 per Stephen, Mason and Murphy JJ. In Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 689, Stephen, Mason and Murphy JJ held that is for the party asserting or claiming legal professional privilege to establish the facts giving rise to it: see also National Crime Authority v S (1991) 29 FCR 203 at 211 per Lockhart J (Keely J agreeing). The onus is on the party claiming privilege to show that the document is privileged by pointing to the nature of the document itself or by evidence describing the circumstances in which the document was brought into existence: see Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 689, and Gold Securities Australia Pty Ltd v Siebe PLC (unreported, NSWSC, Giles J, 31 October 1990).


case_text: Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 689, Stephen, Mason and Murphy JJ held that is for the party asserting or claiming legal professional privilege to establish the facts giving rise to it: see also National Crime Authority v S (1991) 29 FCR 203 at 211 per Lockhart J (Keely J agreeing).


case_title: Nicholls v Australian Federal Police (No 2) [2009] FCA 123


case_title: Nicholls v Australian Federal Police (No 3) [2009] FCA 152


case_text: Nicholls challenged the validity of certain decisions concerning its grant and execution under various provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth). His application was dismissed: Nicholls v Australian Federal Police [2009] FCA 15 (the first proceeding). An appeal from that decision is to be heard shortly. This is the second action. It is in response to Mr Nicholls' blanket claim to legal professional privilege over the seized material. The process of having Mr Nicholls confine his claim to those documents which are in fact privileged has been prolonged. I shall refer to certain details of that process below. It is still incomplete. The Deputy Commissioner of Taxation (DCT) lost patience and brought this proceeding, seeking an order that the DCT be entitled to inspect the seized material. Incidentally, there have been separate issues as to whether the documents on both files to which O 46 r 6(1) and (2) of the Federal Court Rules applies should be available for inspection by any member of the public. I ruled on that issue: Deputy Commissioner of Taxation v Nicholls [2009] FCA 122 and Nicholls v Australian Federal Police (No 2) [2009] FCA 123. I also ruled on an application by Mr Nicholls that certain documents be ordered to be confidential, pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth). I refused to make such an order: Nicholls v Australian Federal Police (No 3) [2009] FCA 152.


case_title: Breen v Williams (1996) 186 CLR 71

case_text: The source of the obligation imposed upon the Respondent to keep the First Applicant ("the Trustee") so informed was said to be a fiduciary duty owed by Mr Rickus. So much is apparent from the terms of the Amended Statement of Claim and from the transcript of the proceedings before Gyles J on 4 October 2007. Written submissions as filed on behalf of both the Respondent and APRA deny the existence of any such duty. Reliance was placed in those submissions inter alia upon the decision in Breen v Williams (1996) 186 CLR 71. Particular reliance was placed upon the joint judgment of Gaudron and McHugh JJ at 113. Reference may also be made to like observations made subsequently in Pilmer v Duke Group Ltd [2001] HCA 31 , 207 CLR 165 at 197 8 by McHugh, Gummow, Hayne and Callinan JJ.


case_title: Pilmer v Duke Group Ltd [2001] HCA 31 , 207 CLR 165


case_text: Another area of factual uncertainty potentially surrounding the application is whether or not the documents produced by Mr Rickus pursuant to the notice were his personal property or the property of the Trustee. The submissions as made orally today by the Trustee were also at odds in some respects with its written Outline of Submissions as previously filed. It is not appropriate to formulate questions, or to answer questions ordered to be separately determined pursuant to O 29 of the Federal Court Rules , where such uncertainty prevails. It is unnecessary to cite further authority for the proposition that the procedure contemplated by O 29 should be adopted with caution and is a procedure fraught with difficulties, other than the decision of the Full Court in Save the Ridge Inc v Commonwealth [2005] FCAFC 203 , 147 FCR 97. 9 It should further be noted that at the commencement of the proceedings today, APRA sought leave to intervene pursuant to s 320 of the Superannuation Industry Supervision Act 1993 (Cth). No reliance was placed by APRA upon O 6, r 17 of the Federal Court Rules . Neither the Trustee nor the Respondent sought to contend that the Authority could not intervene because the proceedings presently before the Court did not relate to a matter arising under the 1993 Act within the meaning of s 320(1). 10 The orders of the Court are: 1. Leave is granted to the Applicant to further amend their Amended Statement of Claim and the Amended Application . 2. The orders made by Gyles J on 9 October 2007 be vacated. 3. The Applicant pay the costs of the First Respondent of and incidental to today's hearing and the application to further amend the Amended Statement of Claim and the Application . 4. The Australian Prudential Regulation Authority be joined as the Second Respondent to the proceedings. 5. The question of costs insofar as the Second Respondent is concerned is reserved. 6. The Second Respondent file and serve any submissions in support of an application that the Applicant pay its costs no later than 22 November 2007 at 5pm. 7. The Applicant file and serve any submissions in support of an application that the Second Respondent not be entitled to its costs, or an order that those costs be paid forthwith, on or before 23 November 2007 at 4pm. 8. The question as to whether the Applicant should pay the First Respondent its costs on an indemnity basis, and the question as to whether an order should be made under Federal Court Rules O 62, be reserved and heard on 26 November 2007 at 9:30am. 9. The First Respondent file and serve any submissions in support of an application for costs on an indemnity basis, together with an order that those costs be paid forthwith, and an indication as to the quantum of those costs, no later than 22 November 2007 at 5pm. 10. The Applicant file and serve any submissions in opposition to either of those two orders no later that 23 November 2007 at 4pm. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 15 July 2008 Counsel for the Applicants: S Robb QC Solicitor for the Applicants: Home Wilkinson Lowry Counsel for the First Respondent: M Livesey QC Solicitor for the First Respondent: DMAW Counsel for the Second Respondent N Hutley SC Date of Hearing: 7 November 2007 Date of Judgment: 7 November 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/2117.html


case_title: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 225 CLR

case_text: seems to me that this proposition would be contrary to what the High Court said in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2005] HCA 72 ; (2005) 225 CLR 88 at [12] . In my opinion, the effect of what their Honours said in SZBYR at [22] was that the Tribunal's reasons are not the starting point for determining whether it considered the information to be a reason for affirming the decision under review. What their Honours said at [22] in SZBYR was that the need for "unbundling" is "correspondingly reduced."


case_text: coming to this conclusion, his Honour distinguished the decision of Heerey J in MZXBQ v Minister for Immigration and Citizenship & Anor [2008] FCA 319 ; (2008) 166 FCR 483. In that case, Heerey J observed that the decision of the High Court in SZBYR & Anor v Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609 impliedly overruled a substantial body of authority in the Federal Court in which it was held that an assessment of whether the Tribunal has complied with section 424A(1) requires close attention to the reasons of the Tribunal. Driver FM considered that MZXBQ was distinguishable from the present case because in MZXBQ , the relevant information was raised by the Tribunal at the section 425 hearing. The decision of Heerey J in MZXBQ is distinguishable, because it appears, from [6] and [12] of his Honour's reasons, that the information in question was referred to in the course of the Tribunal hearing, even though there was no reference to it in the section 424A letter or the Tribunal's reasons. Jagot J followed MZXBQ in SZJZB v Minister for Immigration and Citizenship (2008) 105 ALD 226 , so too did Siopis J in SZMFZ , but both of those cases are distinguishable from the present matter upon the basis that the information in question was considered in those cases to be relevant by the Tribunal, either explicitly or by inference from the review process.


case_text: my view, these submissions are correct and are supported by the authorities. It is true that the High Court in SZBYR impliedly overruled a substantial body of authority in the Federal Court which held that an assessment of whether the Tribunal has complied with section 424A(1) requires close attention to the reasons of the Tribunal. Indeed, in SZBYR at [22], the High Court rejected the need for "unbundling" of the Tribunal's reasons, an approach which had been adopted in authorities of this court such as Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at [99] , and SZEEU & Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at [208] . But I do not think it follows from what the High Court said in SZBYR that in making an assessment of whether section 424A(1) was engaged, a court can never have regard to the reasons of the Tribunal.


case_text: do not consider that the conclusion I have reached is contrary to the decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] HCA 63 ; (2006) 228 CLR 152. In that case, the court held that the applicant was entitled to assume the issues considered dispositive by the delegate to be issues which arose in relation to the decision under review. The High Court also held that if the Tribunal were inclined to reach its decision by reference to an issue other than those considered to be dispositive by the delegate, a failure to notify the applicant would be a denial of procedural fairness and a contravention of section 425(1). In my opinion, that decision is of no assistance to the appellant in this case, because here the position is the opposite to that which occurred in SZBEL , because the Tribunal considered the issues to be narrower than those which were considered to be dispositive by the delegate. The appellant appeared in person this morning. She was assisted by a Mandarin interpreter. She did not address me on the question of law to which I have referred, but I have given it careful consideration in coming to the views that I have reached. The notice of appeal seeks to raise other grounds. The appellant did not speak to them, but I have considered them. The first ground is an unparticularised claim that the Federal Magistrate "erred in law". That seems to be covered by what I have said above.


case_text: coming to this conclusion, his Honour distinguished the decision of Heerey J in MZXBQ v Minister for Immigration and Citizenship & Anor [2008] FCA 319 ; (2008) 166 FCR 483. In that case, Heerey J observed that the decision of the High Court in SZBYR & Anor v Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609 impliedly overruled a substantial body of authority in the Federal Court in which it was held that an assessment of whether the Tribunal has complied with section 424A(1) requires close attention to the reasons of the Tribunal. Driver FM considered that MZXBQ was distinguishable from the present case because in MZXBQ , the relevant information was raised by the Tribunal at the section 425 hearing. In my view, these submissions are correct and are supported by the authorities. It is true that the High Court in SZBYR impliedly overruled a substantial body of authority in the Federal Court which held that an assessment of whether the Tribunal has complied with section 424A(1) requires close attention to the reasons of the Tribunal. Indeed, in SZBYR at [22], the High Court rejected the need for "unbundling" of the Tribunal's reasons, an approach which had been adopted in authorities of this court such as Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at [99] , and SZEEU & Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at [208] . But I do not think it follows from what the High Court said in SZBYR that in making an assessment of whether section 424A(1) was engaged, a court can never have regard to the reasons of the Tribunal. It seems to me that this proposition would be contrary to what the High Court said in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2005] HCA 72 ; (2005) 225 CLR 88 at [12] . In my opinion, the effect of what their Honours said in SZBYR at [22] was that the Tribunal's reasons are not the starting point for determining whether it considered the information to be a reason for affirming the decision under review. What their Honours said at [22] in SZBYR was that the need for "unbundling" is "correspondingly reduced."


case_title: SZEEU & Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214


case_text: decision of Heerey J in MZXBQ is distinguishable, because it appears, from [6] and [12] of his Honour's reasons, that the information in question was referred to in the course of the Tribunal hearing, even though there was no reference to it in the section 424A letter or the Tribunal's reasons. Jagot J followed MZXBQ in SZJZB v Minister for Immigration and Citizenship (2008) 105 ALD 226 , so too did Siopis J in SZMFZ , but both of those cases are distinguishable from the present matter upon the basis that the information in question was considered in those cases to be relevant by the Tribunal, either explicitly or by inference from the review process.


case_text: remaining five grounds were not raised before the Federal Magistrate, and the Minister objected to leave being granted to rely upon them for the first time on the appeal. In SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 at [18] [31], Lander J reviewed the authorities on the question of the grant of leave in these circumstances. His Honour was of the view that this court should not be made, de facto, the court of original jurisdiction when sitting on appeal.


case_text: 6 claims that the appellant was not provided with a tape-recording of her interview with the delegate, although the section 424A letter does refer to the interview tape. However, there is authority in the decision of Flick J in SZKOB v Minister for Immigration and Citizenship [2007] FCA 1949 at [12] [14] that the Tribunal was not obliged to provide the tape recording. It follows, in my view, that the appeal must be dismissed with costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 12 February 2009 The Appellant was self-represented. Counsel for the First Respondent: Tim Reilly Solicitor for the First Respondent: Sparke Helmore Date of Hearing: 12 February 2009 Date of Judgment: 12 February 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/99.html


case_text: question of whether the Tribunal considered the information to be a reason for affirming the decision must be a question of fact. As Siopis J observed in SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890 at [36] : [T]he assessment of whether the information enlivened the obligation on the Tribunal under s 424A(1) is made by reference to the time at which the Tribunal becomes aware of the information. Accordingly, and significantly, in light of the submission made by the first respondent, the assessment is not dependent upon the use that the Tribunal subsequently made of the information, although, in my view, that may be a relevant consideration in drawing inferences as to the proper characterisation of the information. That is to say, in a proper case, the Court, in making its assessment, may draw inferences from the Tribunal's reasons as to whether the Tribunal considered the information to be a reason for affirming the decision. In the present case, not only was there no mention of the information at the Tribunal hearing, it was not mentioned in the Tribunal's reasons or in any document generated by the Tribunal during the review process. The only inference therefore available was that the Tribunal did not consider the information to be relevant. It follows, in my opinion, that Driver FM was correct in the conclusion that he reached. The decision of Heerey J in MZXBQ is distinguishable, because it appears, from [6] and [12] of his Honour's reasons, that the information in question was referred to in the course of the Tribunal hearing, even though there was no reference to it in the section 424A letter or the Tribunal's reasons. Jagot J followed MZXBQ in SZJZB v Minister for Immigration and Citizenship (2008) 105 ALD 226 , so too did Siopis J in SZMFZ , but both of those cases are distinguishable from the present matter upon the basis that the information in question was considered in those cases to be relevant by the Tribunal, either explicitly or by inference from the review process.


case_text: his Honour referred to the decision of the Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 , in which it was said that, in cases such as this, leave is more readily granted where the point has merit and there is no prejudice. It seems to me that, without the need to address in any detail the principles referred to by Lander J, it is sufficient to dispose of the further grounds upon the basis that they do not have sufficient merit. Ground 2 states that the Refugee Review Tribunal was affected by a reasonable apprehension of bias. This has not been demonstrated. Ground 3 expresses disagreement with the Tribunal's conclusion at [111] of its reasons. This is an impermissible claim for merits review.